Safeguarding rights or taking liberties?

Jonathan Senker says the Mental Capacity (Amendment) Bill still needs far-reaching change if it is to safeguard our rights: "Ultimately, the liberty and rights of each and any of us could be at stake. Even at this late stage, isn’t that worth a second thought?"

The framework for Deprivation of Liberty is amongst the most far-reaching legal arrangements which we have. Affecting hundreds of thousands of people each year, there is no inoculation available to prevent it impacting upon any one of us, nor any immunity which can be conferred to prevent it profoundly affecting someone who we love.

Whilst the current system is deeply flawed, the Mental Capacity (Amendment) Bill as it was originally published would have made the situation far worse, weakening people’s rights and the protection of individual’s liberties. I have written about this in two previous blogs (‘The Amendment Bill must change’ and ‘Time is running out’).

Through an enormous amount of work by many people and organisations, peers and MPs, changes have now been made:

  • Following a Government defeat, rights to information have been strengthened.
  • The role of the Care Home Manager as judge and jury on Deprivations has been somewhat limited.
  • Access to advocacy has been improved.
  • Greater scrutiny of decisions affecting people in private hospitals has been introduced.  

I am proud that VoiceAbility has played a very major role in this and has been able to represent the voice of the people we support.

I wouldn’t start from here

Despite this, and throughout work on the Bill, I have kept on thinking about a very old and poor joke (sorry). Upon asking a local, “Can you tell me the way to the city centre?” the tourist is told, “Well, if I were you, I wouldn’t start from here.”

Because of where it started, amending the Bill into positive legislation for people who may be on the receiving end of it has been challenging, and would always have been, even had the Government been strongly inclined to accept major changes.

The Bill remains deeply flawed. Sadly, it is still worse than the current legislation, truly inadequate as that is.

Amongst the problems:

  • The role of the Care Home Manager remains too central, too influential, too conflicted and too burdensome.
  • The eligibility conditions for an Approved Mental Capacity Professional to become involved are still too restricted.
  • The often critical interplay with the Mental Health Act cannot be addressed by the Bill, as the Government has not yet had opportunity to respond to the review of that Act.
  • The vitally important Code of Practice has not yet been developed, leaving far too many major questions unanswered for people to feel confident in the legislation.
  • The recently introduced definition of a Deprivation of Liberty is being questioned fundamentally.
  • The Impact Assessment appears to be out of kilter with the Bill, unclear, and likely to exacerbate the risk that many people are left without anyone independent to support and represent them. We are currently asking for it to be re-examined. I may blog separately about these issues.

Where do we go from here?

At every level of the Bill, problems remain; from matters of people’s rights; to gaps in understanding of how social care operates. Even as the Bill heads back to the House of Lords for consideration on 26th February, there have been robust calls for it to be paused.  There remains a near consensus across the social care sector that a different approach is needed and strong willingness to work with Government on this.

I do still hope that the Government shows an admirable mixture of strength of mind and preparedness to listen which is needed to get this right. That would require not minor changes but more thorough revision. Chief amongst these would be moving the Care Home Managers further away from conflicts of interest, reconsideration of the definition of a Deprivation of Liberty, a proper integration with a response to the Mental Health Act review and a clear and consistent approach to ensuring independent support and representation and voice for the person who should be at the heart of decisions.

It may be that, like the characters in that old joke, in the end we will have to accept that we are where we are. In which case, we must of course continue to do what we can to address the most unsavoury features of the Bill. Certainly, together with others, we are already engaged in contributing to the development of the Code of Practice, and we will not hold back from working to ensure that people’s voices and rights are fully considered in Regulations. With so many issues not clearly spelt out in the Bill, it will be essential that these are covered in the Code and Regulations and that the scope that the Bill provides to infringe upon people’s rights without sufficient scrutiny and challenge is reduced.

As the Bill heads back to the Lords, we remain deeply concerned that far-reaching changes are still required. Ultimately, the liberty and rights of each and any one of us could be at stake. Even at this late stage, isn’t that worth a second thought? 

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