Private Client analysis: Amendments to mental health legislation aim to correct some of the current system’s obvious failings. Ben Troke, solicitor at Browne Jacobson LLP, discusses the Mental Capacity (Amendment) Bill, which introduces new law to protect the rights of people who do not have the mental capacity to make decisions about their care, and replaces the much-criticised deprivation of liberty safeguards (DoLS).
What are the key changes to the Mental Capacity Act 2005 proposed by the draft legislation?
In a way it is a little misleading to refer to this draft legislation as amending the Mental Capacity Act 2005 (MCA 2005), as it rejects the opportunity (and the recommendations of the Law Commission of March 2017) to amend the substance of MCA 2005 – for example, to put more emphasis on the person’s own wishes when making best interests decisions, to make more provision for advanced decision-making before someone loses capacity, or to clarify the line between MCA 2005 and the Mental Health Act 2007 (MHA 2007).
Instead, the Mental Capacity (Amendment) Bill is focused entirely on the DoLS, which were themselves a largely unloved, and ultimately unsuccessful, amendment to MCA 2005 added by MHA 2007, and brought into force in 2009.
DoLS were hurried through Parliament in response to the European Court of Human Rights judgment in the case of Bournewood (HL v UK App No 45508/99
,  All ER (D) 39 (Oct)), which held that common law necessity was an insufficient safeguard of rights to liberty (under Art 5 of the European Convention on Human Rights (ECHR)) where a patient/service user (P) lacks capacity to consent to arrangements that amount to a deprivation of liberty, and no other formal legal framework (such as MHA 2007) is being used. DoLS was always seen as a little bureaucratic and unwieldy, and its faults were magnified beyond redemption when the Supreme Court in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another
 UKSC 19,  COPLR 313, identified a wider definition of deprivation of liberty (DoL) to trigger the safeguards, which meant a ten-fold increase in the number of referrals to DoLS.
The Government has accepted the near-universal criticism of DoLS (and, no doubt, noted the colossal estimates of the funding levels required to implement DoLS properly at the post-Cheshire West
scale required), and the Bill abolishes DoLS in its entirety, by deleting MCA 2005, Sch A1 and 1A. It adds instead a new Sch AA1 – which we anticipate will be known as the ‘liberty protection safeguards’ (LPS) (although the Bill does not use that title explicitly), as proposed by the Law Commission.