This Bill proposes amendments to the protections available to safeguard our most vulnerable clients, including those with advanced dementia, severe learning disability, mental ill-health or brain injury.

POhWER is on the Third Sector Mental Capacity Group actively lobbying MPs to make changes to the Bill, providing them with evidence of statistics and case studies to support the changes we feel need to be made to the Bill. The government is trying to push the legislation through at speed, so the Group is very active. Thanks to the work of our IMCAs and RPPRs, POhWER can represent our clients’ and our advocacy voice and concerns, making sure that the vital work our IMCAs and RPPRs deliver is recognised and understood as a key protection for people with no voice who are deprived of their liberty. The Group includes Mencap, Mind, Alzheimer’s Society, National Autistic Society, Liberty, British Institute for Human Rights, Sense, Headway, Learning Disability England, Voluntary Organisations Disability Group, Compassion in Dying, Parkinson’s UK, Young Minds.

We recently signed a joint letter to The Times highlighting our concerns. A shortened version of the letter was published in the Times of 22nd January:

We write as a coalition of national charities who work with and advocate on behalf of people with dementia, learning disability, autism, acquired brain injury and mental health concerns. Collectively our organisations support and advocate for some of the most vulnerable people in society.

As such, it is with dismay that we note the lack of improvement within the Mental Capacity (Amendment) Bill. The Bill has been criticised in the House of Lords, and by human rights NGOs, service providers, academics and national mental health and capacity organisations. Time is of the essence, as the Bill continues to progress through parliament.

The Bill aims to replace current Deprivation of Liberty Safeguards (DoLS) with an entirely unfit new system of protection. To avoid the risk of exploitation and abuse it is vital that there are robust safeguards in place. These safeguards should ensure those who lack the mental capacity to consent to their care arrangements have their fundamental rights upheld; that they receive the least restrictive care possible and are not detained for longer than necessary. 

Alarmingly the Bill proposes to triple the time people can be deprived of their liberty without review - from one to three years – whilst not doing enough to guarantee that all patients have access to independent and impartial advocates or ensure that patients are given information to understand their rights. The Government has not yet clarified how additional protections would translate for 16 and17 year olds who are now in scope of the new system. The Bill also creates a worrying conflict of interest for care home managers, giving them a greater role in the assessment process. Many vulnerable people will find it hard to express their concerns to a person providing them with care.

On top of this, the Government has published the Bill before anyone has seen its full response to the Independent Review of the Mental Health Act – a review with clear implications for this Bill around the dividing line between the Mental Health Act and the Mental Capacity Act.

Furthermore, there has there been no up-to-date impact assessment outlining the costs of the legislation, nor a code of practice setting out how it must be implemented on the ground. History shows us that a Bill which exists without a clearly defined implementation and funding strategy will not achieve change in practice.

The result is a rushed, incomplete and unworkable Bill that will only replace one dysfunctional system with another, and for which MPs will be unable to provide meaningful scrutiny in the House.

We urge the Government to reflect on the remaining challenges within the Bill and take the time needed to set out a unified proposal that actually serves the people who need our protection most.

A number of anonymised POhWER case studies were used as evidence by Labour MPs on the House of Commons Bill Committee that was debating amendments that would make the Bill better and provide better protections for our most vulnerable clients (links to the official transcripts of the debates below). Unfortunately, because of the government majority on the Bill Committee, none of the excellent amendment proposed by the opposition were approved and so more work needs to be done to persuade other MPs to improve the Bill to safeguard the protections for our clients as the Bill moves into the next stage of the House of Commons process.

If you want more information about this or want to get involved, please contact us…

Transcript of House of Commons Bill Committee debate – session 5 on 22nd January 2019:
https://hansard.parliament.uk/commons/2019-01-22/debates/e808a477-72ad-4947-93bf-91b64df7f57e/MentalCapacity(Amendment)Bill(Lords)(FifthSitting) 

Transcript of House of Commons Bill Committee debate – session 6 on 22nd January 2019:
https://hansard.parliament.uk/commons/2019-01-22/debates/59ba9b97-c5b8-47ea-8016-b8cedb401222/MentalCapacity(Amendment)Bill(Lords)(SixthSitting)