Mental Capacity (Amendment) Bill returns to the Lords

27 February 2019

The Mental Capacity (Amendment) Bill returned to the House of Lords on Tuesday 26 January for consideration of Commons amendments in 'ping pong'. 

During the debate, there were two divisions (votes) on proposed amendments (changes) to the bill.

Members of the Lords discussed the inclusion of a new clause into the bill, suggested by the Commons, to clarify the meaning of 'deprivation of liberty'.

The first vote concerned a proposed alternative to the new clause, suggested by the Lords.

The alternative clause defines the criteria for an individual deprived of their liberty as being subject to confinement for longer than a negligible period of time, without giving valid consent and/or due to an action of a body or person responsible to the state.

The clause further defines 'subject to confinement' as being an individual prevented from removing themselves permanently from their residence, in order to live where they choose, and subject to continuous supervision.

232 members of the Lords voted in favour of the alternative clause and 223 voted against, and so the change was made.

Members then discussed a suggested change to the bill made by the Commons concerning authorisation records for an individual's care arrangements.

The Commons amendment provides for a copy of the record to be issued to the cared for person and any mental capacity advocate, and to ensure all practicable steps are taken to ensure the cared for person understands its content.

The second vote was on a proposed extension to this amendment, which would require:

  • A record to be kept of the reasons why an authorisation record is not immediately provided
  • A review to be undertaken, if no authorisation record is provided with 72 hours, on the justification for such action

Members voted, with 229 in favour of the Lords extension to the amendment, with 15 against, and so the change was made.

The bill now passes back to the Commons for further consideration of Lords amendments.

Lords third reading: Tuesday 11 December

Members discussed bringing to the attention of the responsible body the views of any relevant person regarding the wishes of the cared-for individual, along with the meaning of the term 'relevant person'. 

Lords report stage day two: Tuesday 27 November

Members discussed a range of subjects including the appointment of an Approved Mental Capacity Professional in the case of disagreement over care arrangements and the settlement of outstanding safeguarding applications prior to the commencement of Act.

There was one division (vote) on a proposed change to the bill.

The vote concerned the insertion of a new clause into the bill entitled 'Right to Information'.

The clause would ensure that prior to any authorisation of care arrangements, the cared-for individual - or their advocate - are fully informed of their rights, and the responsible body takes necessary steps to explain all possible outcomes and the reasons why the cared-for person may be deprived of their liberty.

The rights of the cared-for individual would include:

  • the right to an assessment of arrangements by an Approved Mental Capacity professional
  • the right to an advocate
  • the right to challenge the authorisation of care arrangements in court

The clause would also ensure:

  • The Independent Mental Capacity Advocate takes necessary steps to assist the cared-for individual in understanding their care arrangements and rights
  • The responsible body takes responsibility for referring cases to court when the cared-for individuals exercises their right for judicial review

277 members voted in favour of the new clause and 192 voted against, and so the change was made.

Lords report stage day one: Wednesday 21 November

Members discussed a range of subjects including education, health and care plans and deprivation of liberty.

There was also one division (vote) on proposed changes (amendments) to the bill.

Members considered a change to the bill which would ensure that the authorisation arrangements for care and treatments are necessary to prevent harm to the cared-for person.

202 members were in favour of this amendment, with 188 against, so the change was made.

Lords committee stage day three: Monday 22 October

Members discussed a range of subjects, including the restriction on power of attorneys, training for home care managers and the duties of the Care Quality Commission.

Lords committee stage day two: Monday 15 October

Members discussed a range of subjects, including the authorisation of home care arrangements, the duty of care providers to ascertain the wishes of the cared-for person and the access of NHS bodies to a clinical ethics committee.

Lords committee stage day one: Wednesday 5 September

Members discussed a range of topics, including unlawful deprivation of liberty, advance consent and training for care home managers.

Lords second reading: Monday 16 July

Baroness Barran (Conservative), chair of the Henry Smith Charity, made her maiden speech.

Lord O'Shaughnessy (Conservative), parliamentary under-secretary in the Department of Health and Social Care, responded on behalf of the government.

Mental Capacity (Amendment) Bill summary

This bill will reform the process in the Mental Capacity Act 2005 for authorising arrangements enabling the care or treatment of people who lack capacity to consent to such arrangements, which give rise to a deprivation of their liberty.

Further information

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