Mental Capacity (Amendment) Bill update

The Mental Capacity (Amendment) Bill returned to the Lords on 26 February. The majority of the amendments introduced by the Government in the Commons were accepted (for an explanation of their rationale, see here). However, the Government’s proposed statutory definition of deprivation of liberty was not accepted, and the Lords instead voted for the following definition advanced by Baroness Tyler.

4ZA Meaning of deprivation of liberty
(1) A person is deprived of liberty if the circumstances described in subsection (2) apply to them.
(2) A person is deprived of liberty if they—
(a) are subject to confinement in a particular place for more than a negligible period of time; and
(b) have not given valid consent to their confinement; and
(c) the arrangements are due to an action of a person or body responsible to the state.
(3) For the purpose of subsection (2)(a), a person is subject to confinement where they—
(a) are prevented from removing themselves permanently from the place in which they are required to reside, in order to live where and with whom they choose; and
(b) are subject to continuous supervision and control.”

The Lords also voted for a cross-bench amendment proposed by Baroness Watkins to require responsible bodies to keep a record of the decision and justification if an authorisation record is not given to the person (and others) within 72 hours, and a review thereafter.

During the course of the debate, Baroness Blackwood (for the Government) made an important clarification of the extent of ‘portability’ of authorisations under the LPS, confirming that the Government’s intention is that:

An authorisation can apply to different settings so that it can travel with a person but cannot be varied to apply to completely new settings once it has been made, as this would undermine Article 5.

The Bill now returns to the Commons for consideration of the amendments proposed by the Lords.

Ed. As ever, I would like to express my thanks and gratitude to specialist barristers:
Alex Ruck Keene
Victoria Butler-Cole
Neil Allen
Annabel Lee
Nicola Kohn
Katie Scott
Katherine Barnes
Simon Edwards (P&A)
Adrian Ward
Jill Stavert

for their kind permission to reproduce the case summaries above which first appeared in Mental Capacity Law Newsletter, March 2019, published by 39 Essex Chambers.

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