However, the government has recognised the ongoing need to protect vulnerable people in care. The proposed Mental Capacity Amendment Bill seeks to protect the rights of people who do not have the mental capacity to make decisions about their care whilst reducing the current burden on families and local authorities.
What was the situation before?
The Deprivation of Liberty Safeguards were an amendment to the Mental Capacity Act 2005 and were implemented in April 2009.
Deprivation of Liberty Safeguards were implemented following a ruling from the European Court of Human Rights in the case of HL which involved the care needs of HL and whether he could return to live with carers or be detained in hospital where he had lived in for 32 years.
The aim behind Deprivation of Liberty Safeguards was to ensure that people who cannot consent to their care arrangements in a care home or hospital are protected if those arrangements deprive them of their liberty. They are only used if absolutely necessary and are always intended to protect a person from harm.
Some common examples of deprivation of liberty include moving someone into a care home, installing locks on doors and stopping someone from leaving a building (i.e. a care home or hospital).
A report prepared by the Department of Health in April 2010 indicated that 5,500 people benefited from Deprivation of Liberty Safeguards in the first nine months. However, it became clear that the current system was not placing vulnerable people, their families and carers at the centre of the process.
Individuals were reporting that their voices were not being heard and reports also showed that the system was inefficient and lengthy: in 2017, 108,000 people were awaiting a Deprivation of Liberty Safeguards application.
Reform under the Mental Capacity Act Bill
As a result, the Mental Capacity Act Bill was introduced into the House of Lords on 3 July 2018. The reform seeks to replace the current Deprivation of Liberty Safeguards system in its entirety.
Essentially, the reforms seek to:
- introduce a simpler process that involves families more and gives swifter access to assessments;
- be less burdensome on people, carers, families and local authorities;
- allow the NHS, rather than local authorities, to make decisions about their patients, allowing a more efficient and accountable process;
- consider restrictions of people’s liberties as part of their overall care package; and
- get rid of repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment.
The Mental Capacity Act Bill is still currently under review by the House of Lords and has yet to be heard by the House of Commons, but, if enacted in their current form (as it is anticipated that they will be) the reforms will no doubt be a welcome change for the 2 million individuals living in the UK with impaired capacity, their families, friends and carers.
They will also hopefully have the additional benefits of improving access to human rights and reducing the existing strains placed upon the NHS and local authorities.
If you have concerns about a vulnerable person please contact a member of our Court of Protection disputes team on 029 2010 3914.
