Changing Our Lives unite and sign open letter to ministers criticising careless Mental Capacity (Amendment) Bill.

On the 12th February 2019, the Minister of State for Care Caroline Dinenage responded to the open letter about the Mental Capacity (Amendment) Bill. We have since submitted a response which can be read below.

Re: the new Code of Practice

It is extremely concerning that the government have persisted in ignoring the concerns of the sector, and continues to push ahead with the Mental Capacity (Amendment) Bill, despite serious concerns about watering down human rights protections for disabled people.

We are pleased that the minister has committed to work with the sector to develop the Code of Practice. We now need a much clearer sense of how this will happen, and especially how disabled people will be involved at every stage. We need to get a clear sense of the timescales for revising the existing MCA Code, and for developing the LPS Code, so that we can find ways to dedicate the time needed to work with disabled people as well as at an organisational level. At present, it looks like the DHSC are pushing ahead at the same sort of pace they took with the Bill, and not factoring enough time into the process to engage in coproduction.

The consultation on the current MCA Code of Practice, for example, closes on 7th March, and it is not at all clear how stakeholders or disabled people have or will be engaged in this consultation, or supported to respond in to it.

Re: problems with the bill.

We applaud the government for removing the conflict of interest inherent in allowing independent hospitals to act as their own responsible body, and for including rights to information before a deprivation of liberty is authorised on the face of the bill. These are both important and positive amendments.

We are, however, still deeply concerned about four elements of the Bill:

  • The definition of deprivation of liberty in the bill is too complicated, and legal experts are unanimous in their view that it is not compliant with Article 5 of the ECHR.
  • The limits on the rights to advocacy in the bill will reduce the current entitlements to advocacy for disabled people who are deprived of their liberty. The provision of advocacy services should not be subject to a ‘best interests’ assessment or limited by the qualifier “all reasonable steps”.
  • The lack of minimum thresholds for reviews in the bill is very troublesome. We still do not know how often reviews will take place, who will be involved in reviews or how the person’s voice will be heard in them. Because there is no set of minimum standards on the face the bill, people deprived of their liberty and those who represent them will not have the tools they need enforce regular review. It also dilutes the potential for gradual reductions in the scale and scope of restrictions placed on a person through a deprivation of liberty authorisation.
  • The 3 year renewal period, and the process for renewal is also deeply concerning. The government have refused to listen to any critique of this element of the bill. Yet our experience shows that it is the unthinking rubber-stamping of restrictive ‘care’ regimes that carries the highest risks of breaching disabled people’s human rights.