The Mental Capacity (Amendment) Bill, Second reading, House of Commons, 18 December 2018

The Bill provides a vital opportunity for long-awaited reform. It is important that this opportunity is not missed and that the Bill is passed as the current situation is not sustainable for councils and our communities.


Key messages

  • Local government has long called for an overhaul of the current Deprivation of Liberty Safeguards (DoLS) process to create a simpler and less bureaucratic scheme. The current system is unable to ensure adequate protection for human rights and we therefore support the introduction of the Mental Capacity (Amendment) Bill.
  • The Bill provides a vital opportunity for long-awaited reform. It is important that this opportunity is not missed and that the Bill is passed as the current situation is not sustainable for councils and our communities. We are pleased that the Government has listened to concerns in order to ensure that the Bill is fit for purpose and implementable in practice.
  • The underlying purpose of the Bill is to be enabling, highlighting both the rights of individuals to be consulted on decisions and ensuring that they, their families and carers, and the sector as a whole, have confidence that there will be independent oversight of those decisions when appropriate.
  • It is positive to see the ongoing opportunities to involve the sector in the production of the proposed code of practice. We also welcome the commitment to revise the current impact assessment to take full account of the costs to local councils.
  • We welcome a number of the changes to the Bill in the Lords which re-inforce the existing role of care home managers in identifying the need for, and arranging assessments, re-assessments and seeking reviews. Care home managers will not now be expected to undertake these reviews. This addresses concerns around conflicts of interest, independent oversight and new burdens.
  • We welcome the strengthened focus on how best to protect peoples’ liberty and the greater clarity on ensuring the rights of the cared for person are safeguarded. Individuals’ right to information for is now on the face of the Bill. This should ensure that people who lack capacity, their families and carers are at the heart of decisions about their care. The development of the Bill and the commitment to introduce a Mental Health Bill provide the further opportunity for reducing complexity whilst still maintaining individuals’ rights.
  • We are pleased with amendments which clarify that the pre-authorisation review and the appointment of the Independent Advocates will be arranged by the responsible body such as councils, NHS organisations or Clinical Commissioning Groups, to ensure independent scrutiny. These responsible bodies can also take on a care home’s role if it decided this would be necessary. We wish to continue to work with Government and national partners to ensure the Bill focuses on streamlining the system and delivering the checks and balances needed.

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The Mental Capacity (Amendment) Bill, Second reading, House of Commons, 18 December 2018