The Government’s Mental Capacity (Amendment) Bill requires
further changes to protect the human rights of vulnerable people.
To achieve this it must clarify the definition of ‘Deprivation of
Liberty’ and avoid potential conflicts of interest for care home
managers, says the Joint Committee on Human Rights in a report
published today.
The current Deprivation of Liberty Safeguards scheme safeguards
against the arbitrary deprivation of liberty of people who lack
capacity to consent to their care or treatment, such as people
living with dementia, autism and learning disabilities, providing
legal authorisation for depriving a person of their liberty in a
care home or hospital setting. However, there is widespread
consensus that the scheme is broken, as the Committee said in its
report on the Right to Freedom and
Safety.
In Cheshire West (more on this case- see notes
to editors) the Supreme Court decided that the ‘acid test’ for
deprivation of liberty is whether a person is under continuous
supervision and control and not free to leave, regardless of
whether they are content or compliant. Following this judgment,
the breadth of the test means that as many as 125,630 people are
currently unlawfully deprived of their liberty, in breach of
Article 5 of the European Convention on Human Rights. Extending
the existing scheme to all those caught by this definition could
cost £2 billion a year.
In an attempt to resolve the crisis, the Govt has brought forward
this Bill, which follows the Law Commission’s proposals for a
new scheme of Liberty Protection Safeguardsbut differs from
the proposals in a number of respects.
The Committee has identified several problems with the Bill,
which would be solved by the amendments proposed in the report.
These include:
- Many of those caught by the Cheshire West definition are not
perceived by their family or professional carers as being
‘deprived of their liberty’. The Committee repeats its call to
Parliament to consider including in the legislation a definition
of deprivation of liberty in the context of mental capacity law,
to clarify the application of the Supreme Court’s ‘acid test’
whilst being mindful of the fact that any definition must comply
with Article 5.
- Most significantly for those living in care homes,
responsibility for undertaking or arranging the assessments
required before a deprivation of liberty can be authorised would
in future fall to care home managers. The Government has asserted
that its proposals provide the assessment process with the degree
of independence required by Article 5 case law. The Committee
shares concerns expressed by disabled people, professional
bodies, service providers and lawyers that in practice, care home
managers will face conflicts of interest that will seriously
hinder their ability to make objective assessments. The report
proposes amendments to the Bill to enhance these safeguards.
Committee Chair MP said:
“The human rights of vulnerable people who lack mental capacity
must be protected with a more robust system of safeguards. We
must give cared-for people, their families and professionals
greater certainty by providing a clear definition: the Bill must
be changed if it is to do that.”
