Could mental capacity changes pose a threat to human rights?

Barbara Keeley MP

All too often, in these politically turbulent times, Brexit obscures important domestic issues. Perhaps the most glaring example of this is the Mental Capacity Amendment Act, which has been raced through Parliament by the Government with very little attention from the wider public.

The Bill will make important changes to the original Mental Capacity Act which created the system of Deprivation of Liberty Safeguards, often referred to as “DoLS”.

These safeguard the rights of vulnerable people detained in care homes or hospitals when they lack the capacity to consent to treatment. Currently, care homes and independent hospitals apply for authorisation to deprive someone’s liberty from the local authority, which assesses each case.

However, this system is not without its problems. It has been criticised in recent years as bureaucratic, overly complex and offering too little protection of people’s human rights.

To complicate matters, the combination of a landmark Supreme Court judgment and Government cuts to local authority budgets have created a new problem which could erode vital protections.

As of last year a substantial backlog of DoLS applications has sprung up, some 145,000 applications. This means that many people are potentially being deprived of their liberty without authorisation.

This situation has forced the Government to take action. However, instead of giving the affected councils funding to clear this backlog, Ministers have decided to reduce the backlog by amending the Mental Capacity Act to create a new legal definition of ‘deprivation of liberty’ and a new system of Liberty Protection Safeguards to replace the DoLS.

The Bill could remove hundreds of thousands of people from the scope of the Mental Capacity Act at a stroke – and at the same time sweep away vital safeguards on which vulnerable people rely.

Primarily, the Bill dilutes the duties of the accountable local authorities and gives care home managers more responsibility for arranging assessments creating a dangerous conflict of interest.

It is telling that Care England, which represents social care providers, has been vocal in its opposition to the Bill given the additional responsibilities it passes to over-stretched care home managers and the conflict of interest the Bill creates.

Care England is not the only organisation to have voiced concerns. The Government’s rushed approach has provoked repeated calls for a pause from concerned charities, patient groups and human rights organisations who were not consulted on the Bill before it was rushed through the House of Lords last summer.

Ministers have ignored numerous calls to change course, most recently a letter signed by over 100 charities and other concerned bodies, citing Brexit as the reason it needs to rush the Bill on to the statute book.

Labour has also been putting pressure on the Government. In the Common Labour tabled 34 amendments to improve the Bill, including amendments on the role of the care home manager, but these were rejected by the Minister, Caroline Dinenage.

The Government has now made some concessions on the role of private hospitals but has kept in place  the changes made which erode safeguards, including the rights of people being detained to information about their detainment and their entitlement to an advocate.

It is now for the House of Lords to make further amendments to the Bill, in a process known as ‘Ping Pong’, where the Bill passes between both Houses of Parliament until there is full agreement on changes made to it.

Labour will continue to oppose the Bill until we are satisfied it fully protects one of our most cherished and sacred human rights: liberty. It is nothing less than cared-for people across this country deserve.




Edel Harris





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