Mental Capacity (Amendment) Bill published – headlines

The Mental Capacity (Amendment) Bill has been published.   More detail and commentary will follow in the 39 Essex Chambers Mental Capacity Report next week, but on an initial read, the headlines are:

(1) The Bill is focused solely upon a (version of) the Liberty Protection Safeguards, so the Law Commission’s proposed amendments to ss.4/5 have gone, as have regulation-making powers in relation to supported decision-making;

(2) There is no statutory definition of deprivation of liberty (or provision for advance consent);

(3) There are provisions for emergency deprivation of liberty/deprivations pending authorisation under the LPS;

(4) The scheme of the LPS is broadly replicated, albeit from age 18 upwards, and with a significant change in relation to care homes, where considerably more responsibility is going to be placed on the care home managers in terms of arranging assessments/carrying out consultation.   The reference to necessity/proportionality is no longer tied specifically to risk of harm/risk to self, but simply, now, necessity and proportionality;

(5) The Law Commission’s proposed tort of unlawful deprivation of liberty (actionable against a private care provider) has gone;

(6) The LPS ‘line’ of excluding the LPS from the mental health arrangements has been changed, and the current status quo (i.e. objection) as regards the dividing line between the MCA/MHA in DOLS is maintained.





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