Read this impact write-up as a PDF here.

In May 2019, the Mental Capacity (Amendment) Bill became law. The new law made changes to the existing Mental Capacity Act (2005) which covers England and Wales, which will effectively replace the Deprivation of Liberty Safeguards (DoLS) with a scheme known as the Liberty Protection Safeguards. The government has explained that the Liberty Protection Safeguards, “will authorise deprivation of liberty in order to provide care or treatment to an individual who lacks capacity to consent to their arrangements, in England and Wales.”

Why were we concerned?

We know through our direct work with people with mental health and/or capacity issues their loved ones and the staff supporting them that re-looking at the Mental Capacity Act, specifically the DoLS scheme, was much needed.

When the amendments were announced, we had serious concerns about the lack of consideration of people’s human rights and the legal duty on services to uphold these in the drafting process and consequentially, the content of the new Bill. We were later concerned about the proposal of a new definition of “deprivation of liberty”, one which diverged from our right to liberty as set out in the Human Rights Act (which brings the European Convention of Human Rights into UK law).

From the day the first draft of the Mental Capacity (Amendment) Bill arrived in the House of Lords in July 2018, we worked to ensure that the existing Mental Capacity Act would not be replaced with another framework which risked people’s human rights, albeit in different ways to the current system. We know through our direct work that if what is on paper is not compatible with people’s human rights, ensuring human rights practice becomes much more difficult. Rights-respecting practice requires staff to recognise incompatibility with human rights law and disapply provisions where necessary, something which is not easy and often not known unless staff have received training and support on the Human Rights Act.

What did we do?

After over 9 months of lobbying, we secured major concessions in two key areas: the definition of ‘deprivation of liberty’ and the right to information.

This was achieved through a range of concerted action together with civil society partners including Liberty, Alzheimer’s Society, MIND, Rethink Mental Illness and Compassion in Dying. We attended meetings, forums, we wrote briefing after briefing at every stage of the process pushing people’s human rights to the forefront of parliamentarian’s minds – or at least their desks. We published a letter in the Times calling on the public to join us in lobbying to make sure that this new Bill does not replace one dysfunctional system of protections with another. We sat down with members of the Bill team at government and urged them to put human rights at the heart of any amendment to the Mental Capacity Act. 

In the absence of experts by experience round the table, we continued to work with those impacted by this legal change separately and amplified their voices in each meeting. Their concerns, explained through experience of the existing DoLS system brought home that this was not just words on a page, it impacts practice which impacts people and their loved ones. In the absence of staff and advocates who support people directly round the table, we asked our partners at POhWER to join us in forums and meetings about the Bill and share their direct experience of working with people whose liberty may need to be restricted.

What was the outcome?

The definition of ‘deprivation of liberty’

At the Committee Stage of debating the Bill in Parliament, the Government introduced an amendment to add in a completely new statutory definition of a deprivation of liberty. This was set out in complicated language and working on an exclusionary, narrow basis.

We met with the Bill Team and raised our serious concerns about creating a new definition which was not linked to the definition of the right to liberty in Article 5 in our Human Rights Act (and ECHR). Brainstorming a new definition of deprivation of liberty, round a policy table, without an understanding of human rights law and without consultation with those who would be impacted was at best superfluous and confusing. At worst, extremely dangerous. A new, statutory definition could mean that people who fall outside of Parliament’s concept of deprivation of liberty but within the right to liberty definition (Article 5 HRA and ECHR) could not have their deprivation of liberty authorised under the Mental Capacity Act 2005. For those people, only the High Court would be available to authorise such a deprivation of liberty, which, in turn, would give rise to excessive delays in accessing vital safeguards. During these delays, an individual’s right to liberty (Article 5, HRA) is being violated without the protective framework which ensures that this is done lawfully, legitimately and in the least restrictive manner.

After weeks of lobbying, the Government decided not to pursue a statutory definition of deprivation of liberty. Instead, its amendment would retain section 64(5) of the MCA which provides that deprivation of liberty has the same meaning as in the right to liberty (Article 5, HRA and ECHR).

The right to information

We fully supported an amendment voted in by Peers which meant that important information would be provided upfront to families as a matter of course. Information not only about the process, but, importantly, also about their rights to advocacy and to challenge in a format that they can understand. You can read our guide on the right to accessible information here. After initially rejecting the Peers’ amendment, the Government brought forward amendment 24 at Report stage in the House of Commons, which placed a duty on hospitals, CCGs and local authorities to publish information for families on the process, effect of the measures and rights to challenge ‘as soon as practicable’.

We were happy with the government’s acceptance of this important human rights safeguard. But we were still concerned that the phrase ‘as soon as practicable’ could mean a system working on the timescales of the responsible body seeking to restrict someone’s liberty, rather than the individual and their family and supporters. We saw the Government concede again, providing more detail which now states that after authorising arrangements, the responsible body must “without delay” arrange for copies of the person’s care plan to be given or sent to the person and certain others – and if this does not happen the responsible body must record why not within 72 hours. Caroline Dinenage, the then Minister of State at the Department of Health and Social Care, speaking on 2 April 2019 in the House of Commons, acknowledged:

“Providing information, including in the authorisation record, is so important to ensure that people are able to exercise their rights. The Government have listened and reflected on the concerns of the other place and have brought forward this amendment.”

What did this achieve?

Our campaigning around key human rights concerns with the Mental Capacity (Amendment) Bill led to two key concessions from the government. You can find the provision on accessible information at s16(2) of the Mental Capacity (Amendment) Act; and the definition of a deprivation of liberty, unchanged, at s64(5) of the Mental Capacity Act.

It is important to acknowledge that lots of our challenges to the process and the content of the Bill were not as successful as those outlined above. You can read our blog expressing our wider concerns at that time here. We continue to challenge and to make clear recommendations for the implementation process of the new Safeguards. However, the changes that were achieved will take us one step closer to stronger human rights protections for people deprived of their liberty under the new Liberty Protection Safeguards scheme.

You can read about more about our policy approach and impact here.

What happens next?

The Liberty Protection Safeguards were due to be implemented in October 2020. This did not happen, and the pandemic pushed the timetable back even further, with the government announcing in July 2020 that the revised implementation date is April 2022. In that announcement, the government said that before the new Liberty Protection Safeguards scheme is ready to go, there will be “a public consultation on the draft regulations and Code of Practice for Liberty Protection Safeguards. That will run for 12 weeks, allowing sufficient time for those that are affected, including those with learning disabilities, to engage properly.” We are keeping our eyes peeled for when this consultation is open! We have not yet seen anything as of time of writing (18 May 2021).

In the meantime, the government held a public consultation on proposals for reforming the Mental Health Act. Working with people interacting with services, advocates, supporters and frontline staff, we responded to this consultation - you can find our response here. We welcomed some of the proposals, especially the focus on the guiding principles which have clear links to upholding people’s human rights. However, we felt that to have real impact on the rights of those trying to/accessing mental health services, the proposals must be properly implemented, staff must be supported and adequate funding provided. Our submission puts forward recommendations on how to make this a reality.

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