Mental Capacity (Amendment) Bill

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 Remaining stages on Tuesday 12 February 2019. 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 It recommended that DoLS are repealed and replaced by a new scheme called the Liberty Protection Safeguards, which would streamline the process for approving a deprivation of liberty.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, a number of concerns have been raised about the Bill during its passage through Parliament. These have 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.

There have been important changes to the Bill, in the Lords, and during the Commons Committee stage. The Government have introduced a number of amendments, including a new statutory definition of deprivation of liberty. Two amendments were made following Government defeats on division in the Lords. The Government has also tabled a number of amendments ahead of the Commons Report stage. A revised version of the Bill (Bill 323) was published following completion of the Commons Committee stages, and the Department produced updated Explanatory Notes after completion of the Lords stages in 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. The Bill would apply to England and Wales.