Mental Capacity (Amendment) Bill will take our rights backwards

Tue,4 September 2018
News Equality & Rights

Today (Wednesday 5th September) the committee stage of the Mental Capacity (Amendment) Bill begins in the House of Lords.

View progress of the Bill

Mental Capacity (Amendment) Bill equality analysis

The Bill proposes a Liberty Protection Safeguards (LPS) scheme to replace the Deprivation of Liberty scheme (DoLs) which authorises the deprivation of liberty of people who ‘lack mental capacity’. The Bill will affect the fundamental human rights of hundreds of thousands of people with conditions such as dementia, learning disability and brain injury.

Commenting on the Bill Sue Bott CBE, Deputy CEO Disability Rights UK said:

“I am concerned with the contents of this Bill which takes the rights of disabled people backwards. 

"There is nothing more serious for an individual than a decision to deprive them of their liberty yet, as it stands, this Bill will make challenging such decisions difficult and costly with little independent oversight and no commitment to taking the views of the individual into account. 

"I hope members of the House of Lords will, through amendments, be able to radically improve the Bill.”

Amongst the concerns highlighted by Disability Rights UK are:

  • The very least people, who are detained, need is information about why that decision has been made and what their rights are – there is no provision for this in the Bill
  • The Bill makes access to justice worse than the current system in not providing for non-means tested legal aid
  • There is no provision for the ‘cared for’ person to participate in court proceedings regarding their own liberty
  • Contains offensive and out-of-date language such as ‘unsoundness of mind’
  • Too much power is being given to care home managers to decide about people being deprived of their liberty
  • The Bill moves UK law even further away from the UN Convention on the Rights of People with Disabilities by not providing for supported decision making and for the wishes and feeling of the person to be taken into account.
  • The Bill in its current form is not supported by professionals in this area

More information on concerns about the Bill can be found here

Why DoLs are being replaced

The DoLS were widely criticised as complex, bureaucratic, costly, whilst offering inadequate protection of human rights.  Following the Supreme Court’s ruling in Cheshire West, which offered a broader definition of deprivation of liberty than had previously been adopted by the courts, there are over 230,000 applications for authorisation of deprivation of liberty in England and Wales each year. Local authorities have been unable to keep up with the volume of applications and the cost has been estimated to be £200 million.