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Mental Capacity (Amendment) Bill published

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A new piece of draft legislation promises to establish legal safeguards to protect the human rights of those who lack the capacity to consent to care, treatment and support.

On 3 July 2018, the Mental Capacity (Amendment) Bill 2017-19, designed to amend the Mental Capacity Act 2005, had its first reading in the House of Lords. The Mental Capacity Act 2005 covers the care, treatment and support of people aged 16 and over living in England and Wales who are unable to make all or some decisions for themselves. This amendment relates to procedures which may deprive a person of liberty where they lack capacity to consent. The second reading - a general debate on all aspects of the Bill - is scheduled for 16 July 2018.

The Bill replaces the DoLS provisions of the Mental Capacity Act which currently protect adults who lack the mental capacity to consent to being accommodated in a hospital or care home for care or treatment. It introduces the Liberty Protection Safeguards (LPS), intended to be less onerous than DoLS, and aims to improve the protection of human rights.

In short, this scheme is intended to provide for:

· a simplified version of the best interests assessment which emphasises that, in all cases, certain conditions must before the responsible body can authorise arrangements which would result in a deprivation of a person’s liberty. These include the person lacking capacity to consent to the arrangements and the arrangements being necessary and proportionate

· the abolition of unnecessary repeat assessment and duplication by considering previous assessments, enabling authorisations to cover more than one setting and allowing renewals for those with long-term conditions

· enhanced periodic checks on the care or treatment arrangements for those most in need

· greater prominence given to issues of the person’s human rights, and as to whether a deprivation of their liberty is necessary and proportionate, when arrangements are being devised

· the widening of the scope of protection to cover 16 and 17-year olds and planned moves between settings

· the extension of responsibilities for giving authorisations, from councils to the NHS, if in a hospital or NHS health care setting.

Interestingly, the LPS will cover a broader group of people than those currently covered by DoLS (currently limited to those over 18 years old), and which is presently restricted to placements in care homes and hospitals. The LPS would extend to supported and shared living arrangements, addressing the current unsatisfactory situation where all such arrangements must be authorised by the court.

In summary, the LPS is designed to improve patient participation. There will be an active duty on the responsible body to ascertain an individual’s wishes, feelings, beliefs and values which, in turn, should be well documented by practitioners. The clear intention of the Bill is to make the LPS scheme more accessible and reflective of the realities of daily care.

Should you have any queries regarding a similar matter then do not hesitate to contact our Dispute Resolution Department or Suzanne Evans (Head of Court of Protection) on 01733 888888.