The wait is now over! The Law Commission’s Mental Capacity and Deprivation of Liberty report and draft Bill has now been published.
Full coverage will appear in our April Mental Capacity Law Report, and a podcast of my breakfast briefing to be held tomorrow (14 March) should be available shortly thereafter. In the interim, and by way of a very rapid overview of the draft Bill, it can be divided into two broad parts.
The first proposes reforms to the MCA as a whole designed to give greater teeth to the proposition that the individual is supposed to be at the heart of decision-making.
The second proposes a new approach to authorising deprivation of liberty, given the name in the report (but not the draft Bill) of the Liberty Protection Safeguards. These safeguards are setting-neutral, can apply in more than one place and apply in relation to those aged 16 and above. They seek to calibrate the degree of scrutiny to the circumstances of the individual in a way not possible under DoLS, and so to do in a way that draws, where appropriate, upon the knowledge of those caring and treating for the individual whilst at the same time ensuring that there is operational independence between those caring and treating for them and those determining whether the arrangements for them should be authorised. They also seek to simplify the interface between the MHA and MCA whilst recognising – as the report puts it – that “fusion,” outside the remit of the project, represents potentially the future for mental health law reform in England and Wales.
What happens next is up to Government; I would, though, urge you to read the report and draft Bill and make your views known. There is an opportunity now that will not soon be repeated to learn from the experiences both of the first ten years of the MCA and of DoLS so as to upgrade to MCA 1.5.
[full disclosure: I have been a consultant to the Law Commission project since November 2015; the observations above, though, are made in my personal capacity and not on behalf of the Commission]