At some point in our lives we will all need caring for. We want to know that when we are being cared for, we will be treated with respect and dignity. If we are unable to make our own decisions we need to know that the law will protect us, making sure that the people deciding for us are acting in our best interests.
Amid all the noise of Brexit, an important piece of mental health legislation was debated in Parliament yesterday. We needed this legislation – the previous law was badly in need of reform.
But legislation passed yesterday is insufficient. It goes against the recommendations of experts, the Law Commission and a large number of Non-Government Organisations (NGOs). I am worried about the effect this bill will have.
Safeguards in need of reform
The Mental Capacity Amendment (MCA) Bill amended the Mental Capacity Act 2005 in relation to ‘deprivation of liberty’. This is sometimes necessary when someone is too ill to make decisions for themselves, but it is vitally important that there are strong safeguards to prevent this power from being abused. These are currently set out in the Deprivation of Liberty safeguards (DoLS).
The DoLS are designed to ensure that any care that restricts a person’s liberty is both appropriate and in their best interests.
In its review of the Mental Capacity Act 2005 and the DoLS scheme, the Law Commission concluded that “the current regime is in crisis and needs to be overhauled”. The government’s new legislation does not reflect these recommendations. As a result, it just replaces one inadequate system with another.
Conflicts of interest
Many constituents have written to me with real concerns about this law. I share these concerns.
I served on the committee scrutinising the MCA bill and am the Opposition whip for Health and Social Care. Having seen first-hand how rushed and poorly thought out this bill is, I am deeply worried about a number of other matters, including potential conflicts of interest.
In January, 13 mental health and disability NGOs published a letter in the Times newspaper outlining their concerns with the bill. They highlighted the potential conflicts of interest that will arise by giving care providers a greater role in assessing whether their paying residents are receiving good care. They also present many of the other concerns, such as the restriction of rights to advocacy, and the fact that the bill does not make sure that those who lack capacity are better involved in decisions made about them.
Labour opposition to the bill
In Labour, we put down a large number amendments, at every stage. These amendments would have solved many of the problems and removed the clear conflict of interest. All were rejected by Ministers.
During the committee stage, the Minister responsible, Caroline Dinenage MP, kept referring to the code of guidance as a solution to the problems present in the bill, even though this code has not yet been published and has not been seen by Opposition MPs.
In my role as a Whip I fought hard against this bill. Unfortunately, this is the nature of being in opposition: there is only so much you can do to challenge the government.
I am sure that NGOs and service user groups will continue to advise their supporters and members of these changes and work to challenge the Government. I will be joining them. Together with my colleagues in Opposition, we will try to do what we can to try to fix this legislation. A guide to your rights under the current legislation (the Mental Capacity Act 2005) can be found on Mind’s website here.
I believe the decision to deprive someone of their liberty is needs to be taken with the utmost thought and respect. This legislation fails to do that.