Full Steam Ahead On Changes To The Deprivation Of Liberty Safeguards

The Mental Capacity (Amendment) Bill was published on 4 July 2018.  It aims to give effect, with some changes, to the scheme of Liberty Protection Safeguards recommended in the Law Commission’s Report: Mental Capacity and Deprivation of Liberty (2017).

Frankly, although it was rumoured that the Government was going to do something, and undoubtedly something needs doing, we were not expecting Parliamentary time to be found to debate an issue of this complexity.  The second reading of the Bill is set for 16 July 2018 and we may then get a better idea of how detailed the debate will be and what timetable is expected for the overall passage of the Bill.

The Bill itself is only 5 paragraphs long (4 pages) but will add a new Schedule AA1 to the Mental Capacity Act 2005, which runs to 20 pages (the current Schedules A1 and 1A will go).

The Bill will need further consideration but some initial points of note are:

• The scheme will apply to people 18 and over, not 16 and over as recommended by the Law Commission.  This may be intended to reflect recent case law on the scope of parental responsibility and deprivation of liberty for 16 and 17 year olds but risks leaving gaps.
• Allows a more comprehensive authorisation of “arrangements” to avoid the need for new authorisations with a change of location and to cover transportation to be covered.
• Covers “arrangements” in any location i.e. community placements as well as hospital and care homes.
• Authorisation will be given by hospitals for “arrangements” mainly in a hospital; CCGs for CHC funded individuals or, otherwise, local authorities.  Additional processes will apply in certain situation.

There had been an indication that the Government was going to await the Report from the Committee looking at the Mental Health Act 1983 and it appears one of the ways the proposals may have been simplified is by not tackling the issues with the MCA/MHA interface around deprivation of liberty.

Further updates will deal with analysis of the new scheme in more detail.

In the meantime, if you want to read further:

The Bill can be found here – https://publications.parliament.uk/pa/bills/lbill/2017-2019/0117/18117.pdf

A Memorandum briefly explaining the Bill and the delegated powers can be found here – https://publications.parliament.uk/pa/bills/lbill/2017-2019/0117/18117-DPM.pdf

The Law Commission’s Report is here – https://www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/

Additional comment and analysis, which will be expanded, can be found at the very useful Mental Capacity Law and Policy website by Alex Ruck Keene – http://www.mentalcapacitylawandpolicy.org.uk/mental-capacity-amendment-bill-published-headlines/