Mental Capacity (Amendment) Bill

Related Sector: Health & Social Care

On the 3rd of July 2018, the Mental Capacity (Amendment) Bill was introduced into the House of Lords. This stage is a formality that signals the start of the Bill's journey through the Lords and the Commons giving both the opportunity to debate and amend.

This Bill seeks to introduce the much welcomed Liberty Protection Safeguards (LPS) which will replace the current system; ‘Deprivation of Liberty Safeguards’ (DoLS). The proposals were issued by the Law Commission in March 2017.

As we communicated at the time, the key points of the recommended new scheme include:

The LPS appears to focus on placing human rights protections and considerations around Article 8 and Article 5 at the beginning of the care planning decision-making process for commissioners.

• It increases the scheme from people in placements in care homes and hospitals, to any setting which might give rise to a deprivation of liberty to take into account people in their own home, supported living or shared lives schemes.
• The creation of new job roles, including an “independent reviewer” and also an “Approved Mental Capacity Professional” (AMCP).
• It introduces a new two-tier system of protection and places the “responsible body”, the commissioner, as the “driver” of the process rather than the ultimate provider of care as was the case under the DoL Safeguards.
• It recommends improving supported decision making by introducing a scheme to bolster Principle 2 of the MCA, and improving decision-making across the Mental Capacity Act, not just in cases involving deprivation of liberty.

What happens next?

The Bill will now go through several formal stages in the House of Lords and then the House of Commons. Lords and MPs will debate the Bill, which may lead to amendments and changes from its current form.

Should the Bill be passed as an Act (law), there will be a transitional period to allow time for the necessary structures to be put in place and for the framework of the new system to be created. This will include new supporting guidance and codes of practice, and the creation of new job roles and their relevant training.

Until then, the present system continues as it is, and we will continue to train Best Interest Assessors under the DoL Safeguards scheme to undertake their role.

Our BIA Training

Bond Solon’s trained BIAs will be ahead of the game. Our BIA training has always focused on the human rights of the individual especially around autonomy and self-determination and the right to respect for family life, privacy, home and of course liberty, and looking at the duty of the professional to respect and uphold those rights from the very beginning of the care management process.

As the UK’s leading legal skills and safeguarding training company, we will be closely watching how the Bill progresses, and will keep you updated with any relevant information.

Zak McNally
Health and Social Care Manager

This article was first published on Thursday 5th of July 2018.