Rush to reform mental capacity laws will fail to protect human rights, says charity

The government must resolve confusing and troubling aspects of its mental capacity law reform if it wants to strengthen people’s human rights.

The Voluntary Organisations Disability Group (VODG) which represents charities providing services for disabled people has issued the warning ahead of the Mental Capacity (Amendment) Bill reaching the House of Commons committee stage on 22 January.

The draft legislation for England and Wales seeks to replace the current system known as ‘Deprivation of Liberty Safeguards’ (DoLs). It aims to change the legal safeguards for people who lack capacity to consent to their care or treatment.

The changes are vital to strengthen and streamline an under-funded system, but the draft legislation in its current form is complicated and difficult for providers to deliver.

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Amendments in the House of Lords have allayed some fears about conflicts of interest, oversight and new responsibilities for providers relating to the reforms, but significant concerns remain.

Concerns include:

• a lack of consultation by government among care providers, families and people using services (there is as yet no response to a freedom of information request about details of the consultation process)
• the lack of any easy read or accessible version of the draft Bill
• a lack of any draft code of practice to ensure clarity and consistency in the new system
• doubts over how the new system will be regulated and what independent oversight will be introduced
• doubts over the wording and complicated language used in the statutory definition of ‘deprivation of liberty’
• the need for an impact assessment relating to the new responsibilities created by the bill, such as staff training and implementation (MPs have previously called for an costed impact assessment.)

Analysis of the impact of legislative reform is vital, given the government’s statement that the changes will save an estimated £200m a year.

Dr Rhidian Hughes, VODG chief executive, said:

“Throughout the Mental Capacity (Amendment) Bill’s progress through parliament, we have raised concerns about the government’s reluctance to work alongside the care sector and the people it supports. Such a vital piece of reform demands rigorous scrutiny by and meaningful involvement from all those who will be affected by it. Our pleas have so far been ignored and the draft legislation remains confusing and inconsistent. In its latest incarnation, the Bill not only presents social care providers with an overly complex framework in which to operate, but it fails to protect the rights of people who need support but may lack mental capacity.”