Law Society: Mental Capacity (Amendment) Bill 2018 ‘not fit for purpose’

The Law Society has issued a rather damning briefing on the Mental Capacity (Amendment) Bill 2018 that this week moved to a Lords committee stage.

While agreeing that simplification is needed and acknowledging that there are resource constraints, these constraints are “insufficient justification for not implementing fully the safeguards recommended by the Law Commission.” 

The Briefing sets out six recommendations for change, what the authors feel should be the principles underpinning the new framework and why they are concerned that the Bill does not meet those principles as it includes:

• "an already overly complex scheme being further complicated by a replacement scheme which instead of placing the cared-for person at the centre of the process, significantly dilutes and even removes the existing protections for them
• the risk of increased burdens on local authorities who will bear ultimate responsibility for mistakes and poor implementation rather than building on the learning from the problems with DoLS and retaining those elements that have been effective whilst removing those which are unnecessary and bureaucratic
• the cared-for person will not be at the centre of the process but side-lined with decisions being made without proper or even basic protections
• the removal of the invaluable role of Best Interests Assessors and Relevant Person’s Representatives would leave vulnerable people without protection from unnecessary detention."

The full briefing is available on the Law Society website.

You can stay up to date with progress of the Bill, and read the latest version, on the Parliament website.