Important reforms to the law needed
The Chair of the Committee, Harriet Harman MP responded:
“This legislation is needed to protect the most vulnerable in our society.
We are talking here about important reforms to the law which could affect us, our loved ones and their future care.
The protections for people who lack mental capacity must be both robust and proportionate: we need to ensure that people’s right not to be arbitrarily deprived of their liberty is fully protected.
But any system must not be excessively bureaucratic not least because resources must not be diverted from vital care into unnecessary bureaucracy.
We welcome where the Government has listened to the Committee and proposed some changes to the Bill.
In our report we recommended that a statutory definition of deprivation of liberty be introduced to make sure that people who needed it are properly protected, to make sure the scheme was also workable and proportionate.
The two Houses have not yet agreed on a definition, and now the Government is proposing an amendment so that Codes of Practice would include details of what arrangements are considered to fall within the new Liberty Protection Safeguards.
The Government’s proposals will be probed in Tuesday’s debate on the Lord’s Amendments, including the level of Parliamentary oversight that will apply to the Code of Practice."
Government responds to Committee’s points
Below are listed the points which the Committee raised in its reports last year to which the Government has now responded:
The Government is attempting to introduce a definition of deprivation of liberty into the Bill, as the Committee recommended.
However, the Committee was previously concerned that definitions intended to reflect existing case law and put the ‘acid test’ on a statutory footing would perpetuate the existing backlog of cases and would catch content individuals living with their families and receiving care in their own homes.
The Bill is currently in Ping Pong.
Following disagreement between the Commons and the Lords as to the drafting of the definition, the Government has now proposed to remove the definition from the Bill and to say that “guidance about what kinds of arrangements for enabling the care or treatment of a person fall within paragraph 2(1)(b) of schedule AA1” must be included in Codes of Practice under the Mental Capacity Act.
The Committee considered there was a need to streamline the application process for individuals receiving care or treatment in domestic settings and the need to avoid costly and cumbersome applications to the Court of Protection.
However, given the proposed definition of ‘deprivation of liberty’ would reflect the current broad definition in case law, the Committee has previously expressed concern that extending Liberty Protection Safeguards into domestic settings will expand the scheme too widely, would have significant resource implications, and would capture many who are contently receiving care from their families in their own homes.
The Committee recommended that advance consent, with appropriate safeguards, could offer individuals greater choice over their future care and treatment. Whilst this has not been included within the Bill, the Government will explore how advance consent operates in practice as part of care planning.
Independent Mental Capacity Advocates
The Government response makes clear that the right to an independent advocate is not an automatic right.
Access to Information
The Bill has been amended in line with the Committee’s recommendation that there should be a duty to provide information to cared-for persons regarding their rights.
Care Home Managers
The Bill has been amended in line with the Committee’s recommendation that care home managers must provide the responsible body with a record of the necessity and proportionality assessments.
As the Committee recommended, the Government is committed to reviewing whether challenges should be dealt with by the Court of Protection or a tribunal.
As the Committee recommended non-means tested legal aid will be made available for those challenging a LPS authorisation, but we remain concerned that legal aid is not available for all persons deprived of their liberty, irrespective of whether an authorisation has been made – this is particularly problematic in circumstances where significant numbers are deprived without authorisation.
As the Committee recommended the Bill has been amended in line with our recommendation to replace the stigmatising term ‘unsound mind’ with ‘mental disorder’.
Interface between Mental Health Act and the Mental Capacity Act
The Bill does not address the confused interface between these two Acts. The Committee looks forward to the Government’s response to the MHA Review.
Conflict of Interest
As the Committee recommended the Bill has been amended to address potential conflicts of interest by preventing care home managers from conducting assessments themselves.