House of Commons Library

Mental Capacity (Amendment) Bill

Published Monday, December 17, 2018

This Commons Library briefing provides an overview of the Mental Capacity (Amendment) Bill, and the debates and amendments made during the Bills Lords stages, ahead of its Second Reading in the Commons on 18 December 2018.

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The Mental Capacity (Amendment) Bill was introduced to the House of Lords on 3 July 2018 and completed its Lords stages on 11 December 2018. It is due to have its Commons Second Reading on Tuesday 18 December 2018. The intention of the Bill is to reform the process for authorising arrangements which enable people who lack capacity to consent to be deprived of their liberty (for the purpose of providing them with care or treatment).

The new regime created by the Bill would replace the existing authorisation process, known as Deprivation of Liberty Safeguards (DoLS), which were introduced in 2009. Those arrangements have attracted significant criticism for being too complex and bureaucratic. Key court judgments have also widened the interpretation of those who should be recognised as having been deprived of their liberty, with significant implications for local authorities and others involved in administering the DoLS scheme.

In March 2017, the Law Commission published a report, Mental Capacity and Deprivation of Liberty, recommending an overhaul of the DoLS process. It recommended that DoLS are repealed and replaced by a new scheme called the Liberty Protection Safeguards, which would streamline the process for approving a deprivation of liberty.

The Government’s final response, published in March 2018, broadly accepted the Law Commission’s recommendations. The Mental Capacity (Amendment) Bill was introduced to the House of Lords on 3 July 2018. The Bill broadly follows the Law Commission’s recommendations, with some changes.

While noting the shortcomings of the existing DoLS arrangements, Peers raised a wide range of concerns about the Bill during its passage through the Lords. These focussed on the following key areas:

  • The definition of deprivation of liberty.
  • The role of care home managers in carrying out assessments, with particular concerns raised about potential conflict of interests in care homes and independent hospitals.
  • The appointment and role of Independent Mental Capacity Advocates (IMCAs).
  • Provisions relating to reviews by Approved Mental Capacity Professionals (AMCPs) and referral to the Court of Protection.

The Lords stages of the Bill saw number of important changes agreed, and two amendments were made following Government defeats on division. A revised version of the Bill (Bill 303) was published following completion of its Lords stages and the Department has produced updated Explanatory Notes.

During the Third Reading debate on 11 December 2018 a number of Peers also asked how the provisions of the Bill would overlap with the recommendations of the Independent Review of the Mental Health Act review, which published its report in the previous week (on 6 December).

The House of Lords Library briefing on the Bill (July 2018), and the Commons Library briefing on Deprivation of Liberty Safeguards, provide an overview of the current DoLS system, and policy background to the introduction of the Liberty Protection Safeguards system.

Commons Briefing papers CBP-8466

Author: Tom Powell

Topics: Community care, Health services, Health staff and professions, Medical ethics, Patient rights and complaints

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