Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Bill O’Grady, Social Worker (MCAB29)

To the House o f Commons Public Bill Committee

I’m responding to your committees open consultation on the Mental Capacity (Amendment) Bill

I am a social worker and I work as a best interest assessor (BIA) and carry out Deprivation of Liberty Safeguards (DOLS) assessments which the Bill will replace, but my comments are my personal views as a worker who carries out these assessments on a daily basis.

I agree that the present DOLS system is in desperate need of reform, I have grave concerns however, regarding that the new one being proposed. Despite the welcome amendments that have already been made, the mental capacity ( Amendment) Bill , as it stands is in danger of becoming an expensive, bureaucratic paper exercise and will fail to protect our citizens’ basic human rights. In particular, article 5 – the right to liberty and security and this includes the proviso that everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. And Article 8 - which provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society"

The original Bill was amended because it didn’t (unbelievably) include a requirement to consult the person deprived of their liberty. The amendment doesn’t however, give any greater weight to their opinion than that of others on a long list of others who should be consulted.

1. Currently under Dols if the person objects to their deprivation, they are assisted to initiate an appeal against their deprivation to the Court of Protection.

The Bill should be further amended to include the provision that if a person objects to where they are accommodated, that an independent advocate should be appointed immediately to support the person to appeal to whatever independent body is deemed appropriate in the new legislation.

Furthermore, the Bill should also make it possible for Independent advocates to be appointed for people whose families object to their placement and for people who have no family or friends

2. In the Bill only those objecting to their accommodation /care plan qualify for an assessment by an Approved Mental Capacity Professional - AMCP (which is the replacement for my BIA role). I’m concerned that the amended Bill still allows care home staff to carry out many parts of the assessment

The bill should be amended so that all mention of care home managers is removed and allow responsible bodies to identify staff they feel are appropriate to carry out LPS assessments

3. Currently, the DOLS allows me as a BIA to impose conditions in consultation with the homes, designed to lessen the restrictions or effect of a person’s deprivation, but conditions aren’t mentioned in the Bill. The use of conditions is widely used by current assessors and has lessened the effect of their deprivation for thousands of people

The Bill should be amended to enable the assessor to impose conditions the managing authority is subject to

4. The Deprivation of Liberty Safeguards were intended to provide access to advocacy and the right of appeal for anyone who was deprived of their liberty because they were deemed not to have the capacity to decide where to live and what care to receive. It has been however, vastly underfunded and, as a result, there is an ever increasing backlog of people who should be offered these fundamental rights who remain unprotected. 137,065 people are on the waiting list according to the latest figures and this is likely to be an underestimate.

The new system does nothing to address this funding shortfall. In fact it ambitiously extends the number of people who will be covered as it will include 16 and 17 year olds as well as people who are resident in their own homes or in shared lives or supported living arrangements. However the expectation is that this should be delivered with a £200 million reduction in resources provided to Local Authorities. The effects of this broadening out of demand, whilst further contracting the funding in this area will make a successful implementation of the new system even less possible than has been the case for the existing failing regime.

There can be no greater interference with a person’s fundamental rights than depriving them of their liberty, any statutory scheme which permits the state to deprive someone of their liberty for the purpose of providing care and treatment must be robust and comprehensible and must be adequately funded. To ensure it protects the right of people to object to and challenge their placement, care and treatment, the comments and suggestions of all those contributing to the consultation need to be taken seriously by Members of Parliament.

Without adequate funding and an in the right to advocacy and appeal the new Bill is in danger of becoming an expensive, bureaucratic paper exercise and will fail to protect our citizens’ basic human rights.

Yours sincerely

Bill O’Grady

January 2019


Prepared 15th January 2019