Mind responds to Mental Capacity (Amendment) Bill

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Posted on 22/01/2019

The next stage of the Mental Capacity (Amendment) Bill has begun in the House of Commons. While we welcome reform in this area, additional changes need to be made. The current version will strip essential legal protections from the most vulnerable.

What does this Bill do?

This Bill seeks to reform the safeguards available to people who lack capacity and who have restrictive care arrangements, such as not being allowed to leave without permission or not being able to see their family.

The current system of safeguards is known as Deprivation of Liberty Safeguards (DoLS) and has been widely criticised for being too complicated. This has resulted in a huge backlog of applications and has left an estimated 125,000 people, including those of us with mental health problems, without vital legal protection.

The Bill will replace DoLS with a new streamlined system known as the Liberty Protection Safeguards (LPS).

Michael Henson-Webb, Head of Legal at mental health charity Mind, said:

“Mind agrees that the current DoLS system needs an overhaul. The old system is not fit-for-purpose and has left thousands of people, including those of us with mental health problems, without vital legal protection. This Bill will make a number of important changes, such as expanding the scope of the system and reducing the number of assessments required, potentially making the process work for increasing numbers of people.

“However, in streamlining the process the Bill removes a number of important safeguards. The Bill ignores important recommendations made by the Law Commission that would make sure that those who lack capacity are better involved in decisions made about them.

“Our submission to the Public Bill Committee calls for changes to three key areas of the Bill, which would strengthen people’s rights, and empower them or someone acting on their behalf to question decisions about their care. All are critical amendments which have the potential to make a real difference to those who are in an extremely vulnerable situation.

“The Government needs to stop and think so that it does not replace one broken system with another and miss an opportunity to make a real difference to the lives of those in most need of support. It is crucial these issues are addressed to make sure the new system will help keep people safe and make sure they are treated with the dignity they deserve.”  

Specific examples: 

“At the moment, for example, not everyone is entitled to an advocate. We believe that everyone should be able to access good-quality advocacy – making sure that the wishes and feelings of the individual are at the heart of any decision being made.

“The Bill will create a two-tiered system of oversight, where those who object to the arrangements will receive a more thorough and more independent review. This will disadvantage those who may not object because they are unable to do so.

“The Bill was drafted before the final report of the Independent Review of the Mental Health Act and will provide fewer safeguards than the Review recommended. In some situations, people could be held under either Act. The Government needs to look into this so that people don’t get better or worse treatment depending on which applies to them.”

Read more about your legal rights here.

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