By Kitty Jones
Under the Conservative government, applications for the Deprivation of Liberty of citizens have soared. (Source: Court of Protection hub.)
Last month I wrote an article about the government’s under the radar proposed changes to the Mental Capacity Act, raising my concerns about how it threatens human rights – Government changes to Mental Capacity Act threatens human rights of vulnerable citizens.
Deprivation of Liberty, which is defined in part of the Mental Capacity Act 2005, is there to ensure that there are checks and balances for a person placed in care, that decisions are made in their best interest and that an independent advocate can be appointed to speak on their behalf in these decision making processes. The government asked the Law Commission to review the legal framework that is called Deprivation of Liberty Safeguards (DoLs) which is put in place when a person who lacks capacity is placed in a care home. The Commission made recommendations to change the law, following public consultation.
However, the government has not included all of the recommendations in their Bill.
The new legislation has been worded carefully, and its effect will be to risk the removal of key human rights; it also ignores the entire concept of best interests and has put decision making power over people’s liberty and rights in the hands of organisations and their managers with a commercial interest in decisions and outcomes.
Any statutory scheme which permits the state to deprive someone of their liberty for the purpose of providing care and treatment must be comprehensible, with robust safeguards to ensure that human rights are observed. However, the proposed Bill has been widely criticised because it contains insufficient safeguards and is not fit for purpose in its current form. It requires serious reconsideration and extensive revision.
The Law Society has issued a rather damning briefing on the Mental Capacity (Amendment) Bill 2018 that moved to a Lords committee stage in early September.
The Society says that the Bill is not fit for purpose: “While agreeing that simplification is needed and acknowledging that there are resource constraints, these constraints are “insufficient justification for not implementing fully the safeguards recommended by the Law Commission.”
Inclusion London have also raised grave concerns about this amendment Bill:
“Right now the government is pushing a new law through Parliament that will make it easier to deprive someone of their liberty if they are judged unable to make decisions for themselves. It could mean people are forced to live in care homes because it’s cheaper and easier for the local council even though it’s not what they want or need.
“It’s hugely important as many people as possible sign our petition. We need to let the government know there is widespread opposition to their proposals. Please sign our petition to help us change the bill:
“In July 2018 the government introduced The Mental Capacity (Amendment) Bill in Parliament. The Bill will amend the Mental Capacity Act 2005 (MCA). It will affect the human rights of over 300,000 citizens in England and Wales with conditions including dementia, learning difficulties, autism and brain injuries, as well as their families and supporters”
Inclusion go on to say: “We recognise the existing system needs to change, but not in the way proposed by the Bill. We are very much concerned that the bill weakens the existing safeguards that people have and does nothing to ensure support and care is provided in a way that promotes and maximises Disabled people’s liberty.
In fact the Bill will make it easier to deprive Disabled people of their liberty. We are also concerned that there has been very little consultation with Disabled people who will be affected by the Bill.
“We are working together with People First Self Advocacy, other Deaf and Disabled People’s (DDPOs) Organisations, lawyers and academics to ensure the Bill is changed.
“We want as many DDPOs and self-advocacy groups as possible to get involved in this work. Please let Inclusion London know if you are interested and we’ll keep you in the loop.
Read Inclusion London’s briefing about the Bill, it will tell you exactly what changes the government wants to make and what our main concerns are:
Easy read version: Briefing on Mental Health Capacity Amendment Bill- Easy Read
And please sign their important petition: 38 Degrees Petition to protect the human rights of people receiving care and support