Mental Capacity (amendment) Bill: an update

Our President, Professor Wendy Burn, provides an update on new legislation which will be relevant to many of our members.

Listening to the news you would be forgiven for thinking that politicians haven’t spoken about anything else but Brexit for the last two years.

However, assuming no last-minute dramas, Parliament is about to pass a new piece of legislation which will be relevant to the work of many of our members.

The Mental Capacity (Amendment) Bill introduces a new scheme to replace the Deprivation of Liberty Safeguard rules which have been deemed “broken”, largely due to the large backlog of people waiting to be covered by the scheme.

So apart from having to learn a whole new set of initials (goodbye DoLs, hello Liberty Protection Safeguards or LPS for short) what will this mean for psychiatrists?

In the short term not much. No changes will happen immediately. The scheme is not yet active (the date for this is TBC – we expect late this year).

In the longer-term the Government believes that it will solve the problems with the DoLs backlog by changing the process for ensuring that your patients who lack capacity to consent can benefit from a safeguarding scheme.

Many of the details for how the scheme should be applied in practice are still being developed and will form the Code of Practice.

Ministers believed that a key problem with the old DoLs system was that it was too prescriptive and inflexible, so decided that much of the detail in the new Act would be left to guidance and a Code of Practice.

These can be changed without having to start a whole new piece of legislation.

I am very grateful to all our members who gave up their time, often at short notice, to help improve this legislation.

The draft Bill was loosely based on the Law Commission’s recommendations, but as the Government did not consult on their adapted proposals there was very little time to feedback.

The College’s Child and Adolescent faculty were the leading voice which convinced the Government to amend the Act to extend Liberty Protection Safeguards to 16 and 17-year olds.

It was also the RCPsych who led the campaign to persuade the Government to remove the outdated, stigmatising phrase ‘unsound mind’ from the Act and to replace it with the phrase ‘mental disorder’.

As the Bill was going through Parliament, we made the case to politicians and civil servants that the guidance for clinicians needs to be as clear as possible.

Several politicians quoted our briefing in Parliament, highlighting the kind of difficult situations clinicians can be faced with and the need for clarity for those who make decisions relating to often very vulnerable people who lack capacity.

I am also very grateful that a range of our members have agreed to share their expertise and are now working with the civil servants to help shape what is going to be in the new Code of Practice and guidance.

We will continue to update you as the Code of Practice develops - after the current drafting stage we expect it to go out to public consultation this summer/autumn.

For now, you will need to continue to use the old system until the new law is enacted and DoLs is sent to the retirement home for old acronyms.

Get in contact to receive further information regarding a career in psychiatry