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Ping Pong Continues on the Liberty Protection Safeguards

On 2 April, in amongst the ongoing Brexit uncertainty, the Mental Capacity (Amendment) Bill is scheduled to return to the House of Commons for the next stage of ‘Ping Pong’.

When the Lords considered the Commons amendments to the Bill during the first stage of Ping Pong, two substantive amendments were made:

  1. replacing the definition of ‘deprivation of liberty’ that had been inserted as new Clause 1 with a different definition; and
  2. an amendment placing time limits and notification duties on the responsible body regarding providing a copy of the authorisation record to the cared-for person, their ‘appropriate person’ and any IMCA appointed under the Liberty Protection Safeguards.

Government amendments to the Bill proposed in the Commons stage of Ping Pong have taken on board both of these amendments.

The Definition of Deprivation of Liberty

In response to the Lords’ amendments of the definition of ‘Deprivation of Liberty’ the Commons amendment seeks to remove the definition from the face of the Bill and place it in the Code of Practice instead. Whilst this does not, perhaps, fully respond to the calls from the Joint Committee on Human Rights and from some stakeholders to place a definition on the face of the Bill, this seems to me to be a sensible way forward.

As I made clear in my policy brief before the first stage of Ping Pong, there were many problems with the definition initially put forward by the government. For me, the most troubling of these was a lack of clarity that would have required early, and costly, judicial interpretation before it would be of use in practice. Placing the definition in the Code of Practice, and leaving the Mental Capacity Act 2005 definition in place (s. 64(5) of the MCA interprets deprivation of liberty to “have the same meaning as in Article 5(1) of the Human Rights Convention”), allows the definition to be drafted in a more accessible way. It also allows it to be updated without the need for changes to primary legislation. This means that if a significant new judgment is handed down by the Supreme Court or by the European Court of Human Rights, then the Code can be updated without all the delays associated with amending the Act through Parliament.

The Government amendment also guards against leaving the Code of Practice to fall out of date (as has arguably happened with the existing code) by requiring for the provisions in it to be reviewed regularly, and a report of the review laid before Parliament. The time scales for review in the amendment would mean that the definition in the code must be reviewed after 3 years, then every 5 years.

Whilst this amendment may disappoint those who wanted to see a clear definition on the face of the Bill, my view is that it is a sensible compromise position to take. This is because setting out a clear definition that is in line with all of the decisions on Article 5 is an extremely difficult task. The nuances of the ECtHR, UK Supreme Court and the Court of Protection judgments on deprivation of liberty can be much more clearly laid out in the Code of Practice, using examples and scenarios to illustrate the definition. Approaching the issue in this way will also avoid costly and time-consuming litigation which would be needed to test the boundaries of any new definition.

Information Duties

The amendments to the duty to send a copy of the authorisation record are, in substance, the same as those in the Lords amendments. This would mean that the authorisation record must be given or sent to the the person, their appropriate adult, or IMCAs that are involved “without delay”. If there is a delay of more than 72 hours, then the reasons why must be both reviewed and recorded.

This amendment will ensure that there are no arbitrary and lengthy delays in sharing important information about deprivation of liberty with the person who is deprived of their liberty and those who are supporting that person.

What happens next?

It seems to me that these amendments are sensible, and sufficient to respond to the concerns raised by the Lords. They should have every chance of passing in both houses.

If these amendments are agreed to by both the Commons and Lords, then the Bill will go for Royal Assent, the final step required for the Bill to become an Act. Before the new ‘Liberty Protection Safeguards’ come into force, however, the new Code of Practice will need to be drafted, consulted on, revised and laid before Parliament. The various regulations that support the Bill will also need to be written and laid before Parliament. All of this will need to happen before the new Liberty Protection Safeguards can be implemented. So, whilst the Mental Capacity (Amendment) Bill may be nearing the end of its Parliamentary journey, the task of putting the Liberty Protection Safeguards into practice is only just beginning.

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