Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by David Thornicroft, Managing Director, St Thomas Training (MCAB45)

St Thomas Training provides health & social care training to a wide range of organisations across the UK. We specialise in delivering Mental Capacity Act and Deprivation of Liberty Safeguards training. I deliver much of this training myself, and we also have around 20 Associate Trainers. As such, we have contracts with numerous organisations such as local authorities, NHS Trusts, housing associations and private care homes. I have taken a close interest in the passage of the Bill, starting with the Law Commission’s proposals back in March 2017.

1. I completely agree and accept that the current system of DoLS is unsatisfactory and unsustainable. It requires a root and branch reform, not just a little bit of tinkering.

2. I would like to express a concern about the proposed definition of "deprivation of liberty". It seems odd to me that you would define a term by saying what it is not, rather than what it is. Moreover, I would be concerned about what might happen if the Supreme Court were to come up with a different definition. The Law Commission, sensibly in my view, refrained from giving its own definition, instead saying that we should rely on whatever the Supreme Court has given as its latest definition.

3. I agree that there should be one system to cover any adult (over 16) who is being deprived of their liberty. This system should be as simple as possible to administer.

4. I agree with the "default position" that the person should have an advocate.

5. The "necessary and proportionate" assessment seems to me much simpler and more manageable than the existing system of 6 Qualifying Requirements.

6. It’s a shame that Parliament has not taken up the Law Commission’s recommendations on reforms to the wider Mental Capacity Act, in particular giving greater weight to the "Best Interests Checklist" and the idea of "supported decision making".

7. The Law Commission’s original proposals also gave clear guidance on how to deal with situations where the person has fluctuating capacity, and I cannot see that these proposals have been taken forward in the Bill. These were sensible proposals to deal with a real issue, and again it’s a shame if they have been dropped.

January 2019

 

Prepared 16th January 2019