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Mental Capacity (Amendment) Bill implements key recommendation by Lords committee


The House of Lords will today debate the Government's Mental Capacity (Amendment) Bill which would implement changes recommended by the Lords post-legislative scrutiny Committee on the Mental Capacity Act 2005.

The Committee, which reported in March 2014, made a number of recommendations for changes to the Mental Capacity Act, including scrapping the Deprivation of Liberty Safeguards (DoLS), which the Committee said were ‘not fit for purpose'.

In particular the Committee said:

“The provisions are poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act. The safeguards are not well understood and are poorly implemented. Evidence suggested that thousands, if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law, and therefore without the safeguards which Parliament intended. Worse still, far from being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned.”

The Committee recommended a comprehensive review of the Deprivation of Liberty safeguards, with a view to replacing them with provisions more in keeping with the spirit and the ethos of the rest of the Mental Capacity Act. The new Bill being debated today would implement that recommendation.

The Committee's other main recommendation – to establish an independent body responsible for oversight of the Mental Capacity Act – has already been implemented with the creation of the Mental Capacity Act Forum in September 2015.

Commenting ahead of the Second Reading of the Mental Capacity (Amendment) Bill in the House of Lords, Baroness Browning, who served on the Committee, said:

“I am delighted that the Government has followed up its response to the Committee's report in 2014 with positive action. We said in unequivocal terms that the Deprivation of Liberty safeguards – the protections in law for persons who lack capacity to decide where they should live and who are kept in circumstances which constitute a deprivation of liberty – were not fit for purpose and should be scrapped. The Government listened. It commissioned a review by the Law Commission and now has brought forward this Bill.

 “That is the first step. There will be details to iron out as the Bill passes through this House, but there is now an opportunity to improve the protections in law for thousands of people affected by dementia, learning disabilities or brain injury. That is the most important outcome and it is an honour to have served on the Committee which set these changes in motion.”

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