Time is running out: Changes still needed to the Mental Capacity (Amendment) Bill

Jonathan Senker, chief executive of VoiceAbility, reviews the latest amendments made to the Mental Capacity (Amendment) Bill. He finds some positive changes – but concludes that the Bill will still not properly protect people at risk of being detained and that serious questions must be asked about the resources to implement it.

In my blog last week, I urged the Government to make major changes to the Mental Capacity Amendment Bill. These are needed in order for it to support the rights and wellbeing of some our most marginalised citizens. Since then the Health Minister has published his amendments to the Bill.

Positive movement

There have been positive changes to the legislation:

It is explicit that the person themselves must be consulted about a decision to deprive them of their liberty. This is a welcome and essential change.

People who are detained should have unconstrained access to advocacy to fulfil their fundamental human rights. This is a matter of law. Moving one step towards this, under the amendments, access to advocacy will not depend on the decision of a Care Home Manager.

The Bill originally made getting access to an advocate subject to a best interest test. That default position is now reversed: people will receive advocacy unless it is decided that it is not in their best interests. It’s not unconstrained access, but it is a step in the right direction.

The role of the Care Home Manager appears now be to arrange rather than to conduct the most contentious and significant assessment. This is progress.

Serious flaws

Despite these moves in the right direction, serious flaws remain in the Bill:

Under the Law Commission’s proposals, people’s own views and wishes were given particular weight. This remains absent in the Bill.

There remains no requirement to give the person being detained, their family or advocate information about the detention. Instead it is suggested that this is dealt with in the Code of Practice that will accompany the Bill. Knowing that you are being detained, why this is occurring and how you can challenge it is fundamental and ought to be in the main body of the Bill.

It’s still unclear what it means in practice for Care Home Managers to ‘arrange’ assessments. On the one hand their role might have a substantive effect on the important assessment, or on the other it might be purely administrative. The former is concerning given their conflict of interest; the latter has the appearance of work-load shifting under the guise of promoting engagement. 

A review by an Approved Mental Capacity Professional (AMCP) would still only be triggered if the person objects to their detention (I wrote previously about why this was far too high a hurdle). The Impact Assessment assumed that an AMCP would only be involved in 6% of assessments. This assumes that 15 out of every sixteen people are content to be deprived of their liberty. That is very far from my experience.

We know that many people subject to decisions about deprivation of liberty have friends and family who love and care for them deeply. However, these people often need access to information and support in order that they can ensure that the person’s rights and well-being are protected. For this reason, we proposed ready access to advocacy for friends and families who act as an ‘Appropriate Person.’ Yet in the current draft of the Bill, provision of advocacy when there is an Appropriate Person remains ‘opt in’. This means in most cases the friend or relative must request advocacy – rather than it being offered to them. Friends and family members won’t always know how advocacy can help or how to get it, until someone lets them know. As a result, this approach will leave many friends, relatives and detained people without the essential support which they need in order to raise concerns.

Insufficient resourcing?

Finally, there appears to be a pressing need to bring the Impact Assessment - which identifies the resources required to implement the legislation - into line with the Bill, even as it currently stands.

In the House of Lords debate, the Minister was clear in saying:

“Let me state again the intention that, in the vast majority of circumstances, we expect it would be in a cared-for person’s interests to receive representation and support from an IMCA or appropriate person. However, there may be a small number of circumstances where that is not the case. For example, if a person is adamant that they do not want this sort of representation, and has refused advocacy support in the past, it would not be right to impose such an advocate on them.”

However, unless I have misunderstood it, the Impact Assessment envisages that only 10% of people would have an Independent Mental Capacity Advocate (IMCA) or an Appropriate Person. In other words, nine out of 10 people would have no-one independent to stand up for their rights or to ensure that their voice is heard – either when decisions are being taken about their detention or after they are actually detained. 7.5% of people assessed for a detention are assumed to get an advocate, 5% of whom will also have an Appropriate Person. A further 2.5% of people will have an Appropriate Person but not an advocate.

Time running out

The Report Stage for the legislation is on 21st and 27th November, before the third reading in the Lords, after which the Bill moves across to the Commons.

In my previous blog, I suggested that there were two main options open to the Government: to make rapid and far-reaching changes to the Bill, or to pause its progression in order to allow for deeper consideration.

With far from all of the required changes made, both options do still remain open, but unless the legislation is paused, time is running short for getting this vital law right. The people whose lives will be shaped by it, and their friends and loved ones, deserve well-considered, carefully formulated Human Rights Act compliant legislation. Only this can provide the right framework to truly protect people’s liberty and well-being.

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