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The Mental Capacity (Amendment) Bill Heads to the Commons

The Mental Capacity (Amendment) Bill is due to begin its journey through the House of Commons this afternoon (18 December 2018). A wrecking amendment has been tabled by the opposition, and the debate itself is scheduled for after the Emergency Debate on the EU Withdrawal Agreement, so we will all have to wait and see what happens next. Assuming that neither the Government nor to Bill are defeated this afternoon, getting this Bill right will require a lot of work from MPs. **UPDATE** the Bill has cleared second reading, and committed to a Public Bill Committee. Proceedings in Committee are scheduled to be concluded by 24 January 2019. Given that parliamentarians will be away on their holidays from 20 December to 7 January, the breakneck pace of this Bill shows no signs of slowing down.

When the Bill was initially published in July 2018, I was very disappointed at the way it had been drafted. It seemed to me that the Government had rushed it out in an effort to save money[1] without any attempt to actually make life better for the people who would be most affected by it (people living with dementia, learning disabilities, autism and brain injury).

The Bill as it currently stands [https://services.parliament.uk/Bills/2017-19/mentalcapacityamendment.html] is, in many ways, a much better Bill than the one introduced in July 2018. The Lords addressed several of the serious failures in the original Bill.  I was particularly pleased to see the Lords pass an amendment at third reading that added a new clause on rights to information,[2] taking forward the recommendation to do so from the JCHR. Other amendments that have improved the bill include: extending the Bill to cover 16 and 17 year olds; including rights of enhanced access to independent advocacy; including protection from conflicts of interest created through the enhanced role for registered care home managers; making the role of AMCPs clearer and stronger; and clarifying that the ‘necessary and proportionate’  test relates to harm to the cared-for person. Despite all these improvements, I agree with the Law Society that there is a lot more work to be done to make this bill lawful and workable.

Capacity law reform doesn’t happen very often. Usually, when we do get reform in the area of mental disability law it happens slowly, with careful attention to detail and consensus building across the political spectrum. The recently published Mental Health Act Review is an example of this approach. The current Bill seems to be much more knee-jerk than it could have been, despite being grounded in a Law Commission report from 2017. Reform of the current system of Deprivation of Liberty Safeguards is, undoubtedly, required, but it really is important that we get this right.

I’m still deeply disappointed by the lack of engagement with the wider reforms to the Mental Capacity Act that were proposed by the Law Commission. The recommendations that were left out of this bill, and are still left out, would give priority to P’s wishes and feelings in the best interests test, and include a regulatory power to introduce a nominated supporter scheme. These changes have the potential to re-focus our capacity law, to bring us closer to compliance with the UN Convention on the Rights of Persons with Disabilities, and to transform the lives of disabled people. I would dearly like to see changes along these lines made during its progress through the commons.

[1] For the avoidance of doubt, I don’t think that the MC(A)B will actually save much money – it will move some costs away from being borne directly by local authorities. But it will increase costs for care providers, which will then be passed on to service users, increasing the fees charged by care homes. This will then either cost local authorities more in care home fees, or increase the self-funder subsidy even further.

[2] Mental Capacity (Amendment) Bill  Schedule 1, Paragraph 13.

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