MPs and peers demand changes to Mental Capacity (Amendment) Bill

In a report, which can be viewed here, the Joint Human Rights Committee called for the definition of ‘Deprivation of Liberty’ to be clarified.

It also called for potential conflicts of interest for care home managers to be avoided.

The Government brought forward the Bill following the Law Commission’s proposals for a new scheme of Liberty Protection Safeguards.

However, the committee has warned that the Bill differs from those proposals in a number of respects.

The MPs and peers said they had identified several problems with the Bill, which would be solved by the amendments proposed in their report. These issues include:

• Many of those caught by the Cheshire West definition are not perceived by their family or professional carers as being ‘deprived of their liberty’. The committee repeated its call to Parliament to consider including in the legislation a definition of deprivation of liberty in the context of mental capacity law, “to clarify the application of the Supreme Court’s ‘acid test’ whilst being mindful of the fact that any definition must comply with Article 5”.
• Most significantly for those living in care homes, responsibility for undertaking or arranging the assessments required before a deprivation of liberty can be authorised would in future fall to care home managers. “The Government has asserted that its proposals provide the assessment process with the degree of independence required by Article 5 case law. The Committee shares concerns expressed by disabled people, professional bodies, service providers and lawyers that in practice, care home managers will face conflicts of interest that will seriously hinder their ability to make objective assessments.” The report proposes amendments to the Bill to enhance these safeguards.

Committee Chair Harriet Harman MP said: “The human rights of vulnerable people who lack mental capacity must be protected with a more robust system of safeguards.

“We must give cared-for people, their families and professionals greater certainty by providing a clear definition: the Bill must be changed if it is to do that.”