This week saw the Mental Capacity Act (Amendment) Bill (the Bill that will introduce the Liberty Protection Safeguards) move to Committee Stage in the House of Lords and on 5th September around 5 hours of discussions were held. The discussions concerned just a few (of the many) amendments that the Lords would like to see addressed for the Bill to continue its passage through Parliament. The next Committee Stage session is scheduled for 15th October 2018 and can be viewed here. Amongst the widespread concern were issues including:
Lord O’Shaughnessy, Parliamentary Under Secretary of State for Health (Lords), responded to by saying the proposals were robust and built upon the responsibilities that care home managers already have. By this I would assume that he is comparing the completion of the current Form 1 and Form 2 to the subsequent assessment process!
On 3rd September, the Law Society published a Parliamentary Briefing outlining why they considered the Bill to be inadequate in its current form. They recognised that there are resource constraints but warned against placing resources ahead of the safeguards proposed by the Law Commission. They also identified that the Liberty Protection Safeguards as currently proposed would weaken important safeguards currently provided under existing DoLS.
The Law Society recommended changes in the following areas for the Bill to be fit for purpose:
I agree with widespread concern that the current system is very cumbersome and for many, not the correct process. However, I have also experienced the tremendous freedom that people have been afforded as a direct result of the DoLS process. Freedoms that are unlikely to have existed without it. In my opinion, these proposals are heavily focused on the financial constraints of Local Authorities and less on protecting the freedom of people. Depriving a person of their liberty was described by the Law Society as one of the greatest interference with a person’s fundamental rights (second only to violating the right to life and the prohibition of torture). The proposals make assumptions that just don’t exist in practice. They assume that; care home managers have sufficient time to undertake a thorough assessment, care home managers have sufficient training to undertake an assessment similar to that which a Best Interests Assessor currently undertakes, Local Authorities (and NHS bodies) have sufficient time to scrutinise every assessment and then identify whether further assessment is required and that care home managers will place this process above running their care home as a business.