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Summary – Amendments to the Mental Capacity (Amendment) Bill

3 December 2018

The Deprivation of Liberty Safeguards process is universally recognised as “not fit for purpose” and is failing to provide vulnerable people with the protections they need. It is burdensome and bureaucratic for the user, care provider and the local authority and does not give enough regard to the needs of the person. The Liberty Protection Safeguards are based on the Law Commission’s four years of engagement with service users, local government and providers, and will reform this broken system. The new model will:

  • Secure protections for vulnerable people through a simpler process and removing duplication, reducing the backlog so that people can access the safeguards they need.
  • Be person-centric and include a clear role for carers and families including an explicit duty to consult with them on proposed arrangements
  • Be easier for people, their carers and families as assessments can take place as part of the wider care-planning process.

Since the Bill’s introduction, the Government has listened to concerns of peers and stakeholders. We have now brought forward amendments to address these concerns, which have been agreed at Report Stage in the House of Lords. This note details these amendments and other commitments.

The Care Home Manager

The role of care home managers for authorisations in care homes was an area of concern for many, who raised the risk of conflict of interest. We have addressed this with amendments:  

Other Amendments to strengthen safeguards within the model

Commitments by Government to bring forward in House of Commons

  • Government will introduce an amendment in response to calls for a statutory definition of deprivation of liberty. The aim of this is to bring clarity and ensure that LPS is not being applied unnecessarily. The Government will be working closely with stakeholders and peers over this definition to ensure we bring clarity in the application of Liberty Protection Safeguards.
  • There will be a requirement that all cases in independent hospitals must be referred to an Approved Mental Capacity Professional (AMCP), regardless of objection status. This is to address concern over conflict of interest in independent hospitals, where the hospital manager would otherwise authorise arrangements: this adds independent oversight.

Other commitments

  • Developing a new Code of Practice for the new legislation by directly consulting with stakeholders, possibly setting up a specific working group.
  • Support and training for all involved in the new model.

We are grateful to stakeholders who have worked with us so far and given their insight as to how we can improve safeguards in this Bill. We look forward to continuing this cooperation as we move towards introduction in the House of Commons and remain conscious of the essential need for reform and the 125,000 people waiting without protections.

For questions or to be involved please contact Rosily.Jones@dhsc.gov.uk 

Click here to download the print version of the Bill as amended after Report.

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