Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Nigel Hodder, Best Interests Assessor for DOLS (MCAB65)

Mental Capacity (Amendment) Bill

I am writing in a personal capacity.

I am responding to the proposed statutory definition of ‘deprivation of liberty’ to be inserted into the Liberty Protection Safeguards.

I agree with most of the proposed definition.

However, I do not agreed with the proposed section 3b:

the person is free to leave the place temporarily (even if subject to supervision while outside that place).

It is my view that this will exclude many people from the LPS who should be under their protection. Currently ‘freedom to leave’ asks what the care home/hospital would do if someone made an attempt to leave, if they are stopped them from leaving the person would not be free to leave. If someone is able to leave for a period of time but if they did not return they would be looked for (which may include the police being called) then they are not free to leave. Indeed if someone is not able to leave to live where and with whom they wish, it is currently considered that they are ‘not free to leave’. ,

This current definition acknowledges that people who lack mental capacity and have support needs still have the same rights as people who have mental capacity and no support needs. The aim of the Cheshire West ruling was to make sure that human rights apply to everybody equally no matter what their ability to understand their circumstances or whether they have support needs.

My concern with the proposed definition (above) is that it effectively reverses the assertion of rights as set out by Lady Hale in the Cheshire West case. The proposed definition implies that even if someone is subject to a highly restrictive care plan and prevented from leaving the care home (even if they request to do so) they would be considered ‘free to leave’ as long as they go out with a member of staff every once in a while.

In my view this is a regression of the law with regards to the rights of people with support needs as it implicitly implies that they do not have the same rights as people without support needs. This cannot be so and I would urge this section to be removed from this proposed definition.

January 2019


Prepared 22nd January 2019