Mental Capacity Amendment Bill Ping Ponging Through Parliament

Having progressed through 5 stages at the House of Lords and 5 stages in Parliament, The Metal Capacity (Amendment) Bill [HL] 2017-19 has been pinged back to the Commons with two proposed amendments from the House of Lords yesterday following their latest consideration of amendments.

Most notably, Baroness Tyler of Enfield felt the government’s statutory clarification of deprivation of liberty “definition based on someone not having their liberty restricted does not, in my view, allow for a clear assessment of whether a cared-for person is currently being deprived of their liberty.”

After an hour of discussions, the motion was amended and agreed by a vote of 232 to 223. Amendment 1b replaces the Commons amendment 1 and will now define the deprivation of liberty as:

​(1) A person is deprived of liberty if the circumstances described in subsection (2) apply to them.

(2) A person is deprived of liberty if they—

(a) are subject to confinement in a particular place for more than a negligible period of time; and

(b) have not given valid consent to their confinement; and

(c) the arrangements are due to an action of a person or body responsible to the state.

(3) For the purpose of subsection (2)(a), a person is subject to confinement where they—

(a) are prevented from removing themselves permanently from the place in which they are required to reside, in order to live where and with whom they choose; and

(b) are subject to continuous supervision and control.”

(2) In section 64(5) of that Act (interpretation) for the words from “same” to the end substitute “meaning given by section 4ZA.

An amendment to section 25A was also agreed by a vote of 229 to 215, stating that all records should be maintained and kept by an authorised and responsible body where an authorisation record is not given to the person or others within 72 hours of the decision being made. The amendment states:

25A: Line 10, at end insert—

“(1A) A record of any decision and justification for not immediately giving a copy of the authorisation record under sub-paragraph (1) must be kept.

(1B) If a copy of the authorisation record has not been given to those specified in sub-paragraph (1) within 72 hours, there must be a review of whether the lack of information was appropriate.”

Baroness Tyler of Enfield, representing the Liberal Democrats, justified her proposed ping back amendments to the definition of deprivation of liberty by stating: “I believe that there are serious problems with the government definition. My overriding concern is that as it currently stands, the government amendment defines only when a person is not being deprived of their liberty. A definition based on someone not having their liberty restricted does not, in my view, allow for a clear assessment of whether a cared-for person is currently being deprived of their liberty. The whole of the definition is couched in the negative, and splattered with double negatives, which I consider very difficult to understand.

“I also have concerns over Clause 1(4) in the government definition, which I believe is unnecessary. When it is in someone’s best interest to receive emergency or routine medical care, there is already a clear consent procedure—even when that patient lacks capacity. As currently worded, it is discriminatory between physical and mental illnesses. I have taken much advice, and I am grateful to people in the sector—charities, lawyers, human rights groups, academics and others—who have offered invaluable expertise in this very complicated issue. I note that some leading academics have described the Government definition as too complicated, unclear and out of step with Article 5 of the ECHR, and therefore likely to lead to costly litigation. I accept that my last two points run contrary to what the Minister has said, but this demonstrates what a highly complex, contested and difficult-to-interpret area this is. Nothing is that clear-cut.

“What is needed is a definition which is simple, easy to understand and provides practitioners, and above all, families and cared-for people, with a clear understanding of where they stand. The purpose of any definition is to provide absolute clarity to practitioners. Perhaps more importantly, it should tell cared-for people and their families when they are deprived of ​their liberties and thus have certain rights which they can call upon. It is, frankly, of little use if people cannot use it to make such a determination, and my conclusion at the moment is that the definition does not serve that purpose.

“We need a definition which, as well as being simple and easy to understand, allows guidance and information to be developed for families and practitioners that will allow them to make a real-world determination of whether the care arrangements they are putting in place when their loved ones lack capacity amount to a deprivation of liberty.

“The definition that best captured the recommendations from the Cheshire West case of the noble and learned Baroness, Lady Hale is that the person concerned is under continuous supervision and control and is not free to leave. I believe that the wording in Amendment 1B meets these vital tests. My definition of what constitutes a deprivation on liberty is based on the principles outlined in the noble and learned Baroness’s judgment in the Cheshire West case. I believe that it would allow practitioners and family members to clearly test their individual circumstances against that definition.

“This is complex and I think many of us have found it difficult to get our head round it, but it is so important that the definition is compliant with Article 5 of the ECHR. The definition that I have put forward meets that test. It may not be perfect but it provides a basis for moving forwards. I beg to move.”

The amended version of the Mental Capacity (amendment) Bill will now move back to the Commons for a review of the Lord’s amendments.

Will these changes help people that are lacking capacity? Is this amended definition of deprivation of liberty “simple, easy to understand and provides practitioners, and above all, families and cared-for people, with a clear understanding of where they stand?”

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