Vulnerable Patients at Risk

The Law Society has warned that vulnerable patients are at greater risk under proposed legislation. So what are the concerns surrounding the Mental Capacity (Amendment) Bill, and how can practitioners react?

As lawyers, particularly private client practitioners, we are all instructed by vulnerable people or their representatives from time to time. We know what our professional obligations are in those circumstances, and where we can take guidance when necessary, for example, there is the Law Society’s practice note on meeting vulnerable clients’ needs. The SRA also offers resources to solicitors providing services to the vulnerable.

But there are warnings that vulnerable patients face greater risks to their rights and liberty when the Mental Capacity (Amendment) Bill comes into effect (probably in 2020). Practitioners need to understand what changes are due – and how vulnerable clients could be affected.

What changes are expected?

The key changes include a new system, Liberty Protection Safeguards (LPSs), for authorising deprivations of liberty which will replace the existing Deprivation of Liberty Safeguards (DoLS).

Under the proposed changes, a responsible body will be able to authorise arrangements giving rise to a deprivation of liberty. The relevant responsible body depends on the circumstances: it could be a hospital, local authority, CCG, etc. However, the responsible body must first be satisfied that the patient is of unsound mind and lacks capacity to consent to the arrangements, and that the arrangements are necessary and proportionate. (Note: as drafted, the arrangements do not have to be in their best interests – which is a potential cause for concern.)

One of the most contentious issues surrounding the bill has been the definition of what constitutes a deprivation of liberty, however, there will not now be a statutory definition in the bill (though this has been labelled a ‘cop-out’). Instead, guidance will be provided in a code of conduct on what sorts of arrangements constitute a deprivation of liberty. The Lords made clear that the code of practice must lay out in clear terms when a deprivation of liberty is and is not occurring.

Approved Mental Capacity Professionals (AMCPs) will receive specialist training under the MCA. They will be tasked with providing a ‘pre-authorisation review’ (where there is reasonable belief that the person is objecting to the arrangements- on whether the conditions for a deprivation of liberty under LPS have been met.

There will be provision for the patient to be consulted during the course of an assessment. The original version of the Bill did not include such a requirement to consult.

What are the concerns and to what extent have they been addressed?

The Law Society has warned that 300,000 people with conditions such as Alzheimer’s, autism or learning disabilities will have their rights, specifically their right to liberty, stripped back every year under the changes. It warns that “fewer cared for people will qualify for the protection of important safeguards under the new scheme, their access to advocacy and independent professional support will be more limited. People who are deprived of their liberty may face detention without any review for periods of up to three years”.

The Society cites various examples of its potential practical outworkings, including people being subjected to highly restrictive measures in care homes; “gravely weakened safeguards” for 16- and 17-year olds and their parents’ rights undermined; and too much influence given to care home managers over decisions about whether someone should be detained in a residential or nursing home.

Following slight (but important) amendments to the bill, some concerns have been somewhat allayed. LAs, for instance, will now have the option of giving the decision-making responsibilities to the care home manager or undertaking the duties themselves. The power of care home managers over the process will also be reduced as the LA will now be required to sign off proposed arrangements.

In a further, significant amendment, the bill now includes 16- and 17-years-olds who will come within the new scheme.

Whilst it is widely accepted that a new system is necessary, the Government’s proposals have been criticised for removing valuable safeguards, raising human rights implications. This means there remains live concerns about the level of safeguards for detained people once the changes come into effect next year, for instance (as the Law Society highlights), ensuring that patients have ready access to representation without being imposed with unfair limitations.



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