What would the repercussions of the Mental Incapacity Amendment Bill be?

11 July 2018

Mental health care at Exemplar

On Tuesday 3rd July, The Mental Capacity (Amendment) Bill was presented to the House of Lords as an alternative and possible replacement of the current system which is known as ‘Deprivation of Liberty Safeguards’ (DoLS).

The proposed amendment follows criticism of the current system by the Law commission review in 2017 where it was deemed as being too complex and bureaucratic. DoLS have been difficult for care staff, service users and their families to navigate due to the complexities of the process, which is needed at a time when people are at their most vulnerable to ensure that they stay at the heart of decision-making. 

Following the review, the government has developed a new system, known as ‘Liberty Protection Safeguards’ which will become legally binding through acceptance of the bill.

The reforms are anticipated to introduce a simpler process that involves families and gives swifter access to assessments. In addition, it is expected to be less burdensome on people, carers, families and local authorities which will be a relief to many local authorities and care home providers. 

The current DoLS process generates a significant workload for local authorities and as such, it is often the case that the enormous pressure they are under leads to missed deadlines which in turn inadvertently places the care home under pressure from a regulatory point of view.

The amendments will also allow the NHS, rather than local authorities, to make decisions about their patients, allowing a more efficient and accountable process which utilises the knowledge of the medical professionals who have a full understanding of the person’s care. This will remove the requirement for multiple, often unnecessary, assessments and authorisations when a person moves between a care home, hospital and ambulance as part of their treatment.

In addition, the reform seeks to consider restrictions of people’s liberties as part of their overall care package. The phrasing may sound more sinister for families than the reality as the consideration is in relation to providing care to give life-sustaining treatment or there is an emergency where the relevant processes under the Mental Capacity Act 2005 cannot be undertaken in a timely manner.

The removal of complex processes which confuse and delay the necessary care updates for the person involved will be a huge relief to many, and for local authorities, they are estimated to save £200million or more a year. The cost saving comes at a time where a spotlight has once again been placed on the expected rising costs of social care and government representatives at a national and local level are debating how the shortfall in funding will be bridged.

Whilst the new bill proposes to streamline the current processes, it will still have the best interests of the person at its core which will give a sense of relief to families. It is fundamental that any new processes support and maintain people’s dignity at a time where they find themselves unable to do so.

The streamlined system can only bring benefits to everyone involved and ultimately impact positively on the care of people.