Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Tom Grace (MCAB74)

Re - Statutory Definition of Deprivation of Liberty

I am writing in a personal capacity in relation to the proposed statutory definition of a deprivation of liberty.

4ZA Meaning of a Deprivation at point 4) states that a person is not deprived of their liberty if the arrangements alleged to give rise to the DoL are put in place in order to give medical treatment for a physical illness or injury and the arrangements would be put in place for any person receiving that treatment

Whilst I understand that this is an important inclusion to incorporate the judgement in R (Ferreira) v HM Senior Coroner, I have concerns that it could be used to de facto deprive vulnerable people of their liberty without recourse to necessary procedural safeguards

I refer to the many very real situations where elderly people are admitted to hospital who are confused following a fall at home or some other incident or a state of delirium and are kept in hospital to facilitate a safe discharge but are in fact medically fit for discharge. Or such patients are not actually critically ill but never the less need some form of hospital care to facilitate a safe discharge. Such people who lack capacity to consent to their admission and treatment and who are not critically ill will be de facto deprived without any procedural safeguards if this definition is not clarified.

I believe it is perfectly reasonable to utilise the helpful judgement in Ferreira to state that those who are critically ill and in need of necessary treatment are not deprived of their liberty. However I believe to extend the meaning of this judgement to include anyone in hospital who lacks capacity to consent and who is receiving care would be to take away important safeguards for extremely vulnerable people. I do not think the Mental Capacity Act was intended to reduce and disempower those vulnerable people who lack capacity, but have real concerns that this aspect of the definition will do exactly that.

The scenario above could be extended to many people who may lack capacity to consent to their care and are receiving care in hospital but are not critically ill. This would be a worrying development

Yours respectfully,

Tom Grace RMN MSc LLM PGCE

Gwent Dols consortium

January 2019

 

Prepared 22nd January 2019