Thinking it through

Glenys Thornton on a government Bill with implications for the human rights of people in care

Today in the House of Lords, we have the Second Reading of the government’s Mental Capacity (Amendment) Bill which seeks to amend the Mental Capacity Act to replace a framework known as the Deprivation of Liberty safeguards (DoLs). A framework that impacts on those who lack the mental capacity to consent to their caring arrangements, whether in hospital, a care home or another setting.

DoLs have been widely criticised as excessively bureaucratic and costly, while at the same time offering inadequate protection of human rights. Following the Supreme Court’s ruling on Cheshire West and Chester Council, a broader definition of ‘deprivation of liberty’ came into force. There are now over 230,000 DoLs applications in England and Wales each year, leading the Joint Committee on Human Rights (JCHR) to express concern that local authorities are ‘having to work out how best to break the law.’ And then there is the almost £2.2bn a year impact on the public purse – 2% of the NHS budget.

With serious criticism of DoLs made across Parliament, a wide consultation by the Law Commission between 2015 and 2017 led to the recommendation of a new framework called Liberty Protection Safeguards (LPS). This offered a more flexible and less bureaucratic means of authorising deprivation of liberty, channelling resources into situations where there are conflicts or concerns about care arrangements. It also included proposed amendments to the Mental Capacity Act’s ‘best interests’ test and promoted supported decision-making to bring it closer to the requirements of the UN Convention on the Rights of Persons with Disabilities (CRPD).

Having appeared to endorse most of the Law Commission proposals (including the name of the scheme), the government’s Bill has removed many of the important safeguards suggested. There are therefore, serious questions about whether it will do the job it sets out to or move the UK further away from compliance with the CRPD. That could have major implications for the human rights of hundreds of thousands of people with dementia, learning disabilities, brain injury and mental health problems. And none of this is helped by the current lack of an Equality Impact Assessment alongside the Bill. 

One of the most significant proposals is that care homes assume major new responsibilities for undertaking or coordinating assessments, and then providing information about residents who may lack mental capacity to statutory bodies. One local authority DoLs coordinator has told me: “I receive application forms from care homes, train care home staff and give advice about DoLS and MCA [Mental Capacity Act] issues. Based on these experiences, I have concerns that at present, despite honourable exceptions, care home staff do not routinely have the knowledge and skills to assess mental capacity and consider whether restrictions are proportionate.”

In other words, Ministers are putting at risk the whole DoLs process and the safeness of the decisions. That raises the suspicion that the government would simply like to transfer the burden, backlog and chaos of DoLs from statutory bodies to an unprepared frontline. Something that could see a further undermining of residents' rights, additional staffing in what is a heavily under resourced sector, and new forms of legal liability. Not to mention a huge human cost in suffering and anxiety.

This is a small Bill but one that may have enormous consequences, and therefore demands proper parliamentary scrutiny – and where necessary amendments that will make it fit for purpose on its own terms. Anything short of this will be selling short the human rights of many thousands of vulnerable people in our country.

Baroness Glenys Thornton is Shadow Health Minister in the House of Lords. She tweets @GlenysThornton

Published 16^th July 2018