Government changes to Mental Health Capacity Act places human rights of disabled people in jeopardy


Under the Conservative government, applications for the Deprivation of Liberty of citizens have soared. (Source: Court of Protection hub.) 

Last month I wrote an article about the government’s under the radar proposed changes to the Mental Capacity Act, raising my concerns about how it threatens human rights – Government changes to Mental Capacity Act threatens human rights of vulnerable citizens.

Deprivation of Liberty, which is defined in part of the Mental Capacity Act 2005, is there to ensure that there are checks and balances for a person placed in care, that decisions are made in their best interest and that an independent advocate can be appointed to speak on their behalf in these decision making processes. The government asked the Law Commission to review the legal framework that is called Deprivation of Liberty Safeguards (DoLs) which is put in place when a person who lacks capacity is placed in a care home. The Commission made recommendations to change the law, following public consultation. 

However, the government has not included all of the recommendations in their Bill.

The new legislation has been worded carefully, and its effect will be to risk the removal of key human rights; it also ignores the entire concept of best interests and has put decision making power over people’s liberty and rights in the hands of organisations and their managers with a commercial interest in decisions and outcomes.  

Any statutory scheme which permits the state to deprive someone of their liberty for the purpose of providing care and treatment must be comprehensible, with robust safeguards to ensure that human rights are observed. However, the proposed Bill has been widely criticised because it contains insufficient safeguards and is not fit for purpose in its current form. It requires serious reconsideration and extensive revision.

The Law Society has issued a rather damning briefing on the Mental Capacity (Amendment) Bill 2018 that moved to a Lords committee stage in early September.

The Society says that the Bill is not fit for purpose: “While agreeing that simplification is needed and acknowledging that there are resource constraints, these constraints are “insufficient justification for not implementing fully the safeguards recommended by the Law Commission.”

Inclusion London have also raised grave concerns about this amendment Bill:

“Right now the government is pushing a new law through Parliament that will make it easier to deprive someone of their liberty if they are judged unable to make decisions for themselves. It could mean people are forced to live in care homes because it’s cheaper and easier for the local council even though it’s not what they want or need.

“It’s hugely important as many people as possible sign our petition. We need to let the government know there is widespread opposition to their proposals. Please sign our petition to help us change the bill:

38 Degrees Petition to protect the human rights of people receiving care and support

“In July 2018 the government introduced The Mental Capacity (Amendment) Bill in Parliament.  The Bill will amend the Mental Capacity Act 2005 (MCA).  It will affect the human rights of over 300,000 citizens in England and Wales with conditions including dementia, learning difficulties, autism and brain injuries, as well as their families and supporters”

Inclusion go on to say: “We recognise the existing system needs to change, but not in the way proposed by the Bill. We are very much concerned that the bill weakens the existing safeguards that people have and does nothing to ensure support and care is provided in a way that promotes and maximises Disabled people’s liberty. 

In fact the Bill will make it easier to deprive Disabled people of their liberty.  We are also concerned that there has been very little consultation with Disabled people who will be affected by the Bill.

“We are working together with People First Self Advocacy, other Deaf and Disabled People’s (DDPOs) Organisations, lawyers and academics to ensure the Bill is changed.

“We want as many DDPOs and self-advocacy groups as possible to get involved in this work.  Please let Inclusion London know if you are interested and we’ll keep you in the loop.

Read Inclusion London’s briefing about the Bill, it will tell you exactly what changes the government wants to make and what our main concerns are:

Briefing on Metal Health Capacity Amendment Bill

Easy read version: Briefing on Mental Health Capacity Amendment Bill- Easy Read

And please sign their important petition: 38 Degrees Petition to protect the human rights of people receiving care and support



20 thoughts on “Government changes to Mental Health Capacity Act places human rights of disabled people in jeopardy

    1. It already is upon us . Disabled people have seen their human rights systematically and gravely violated – that is the conclusion of the UN, as well as many other organisations and of course, disabled people ourselves.


  1. What more do they want to do become Russia OMG disgrace r the people going to live under a NazI resigm get the government out of Ireland now


  2. My son is disabled and while the present law needs changing the proposed change is not the way to do it. While we are alive we can act in his best interests but after we are no longer here we can no longer do so.

    Liked by 1 person

  3. This report on Mental Health (released 06/12/18) is going to require some careful analysis to determine if it amounts to more than nice platitudes and empty rhetoric.

    Click to access MHA_reviewFINAL.pdf

    Modernising the Mental Health Act
    Increasing choice, reducing compulsion
    Final report of the Independent Review of the Mental Health Act 1983
    December 2018

    Liked by 1 person

      1. The government did not implement all of the Law Commission’s recommendations regarding the Mental Capacity Act and deprivation of freedom. I don’t think they will implement all of the ones concerning the mental health act itself either


      2. Of course you are right, the Tories are past masters in commisioning reports and then either kicking them into the long grass or cherry picking the implementaion to such an extent that the whole execrcise becomes meaningless (apart from the publicity they milked for all its worth when they comisioned the report )

        Liked by 1 person

  4. There was a 2rd reading of this bill in The Commons this evening. It is unfortunate, to say the least, that the Labour ammendment was defeated. However the debate was interesting with many of the MPs opposing the passage of the bill speaking eloquently about the points that Kitty has raised in this and previous postings. At times it was almost as if they were using this blog as a template for their objections. The Conservatives who spoke in favour of the bill seemed to follow the tried and tested Tory routine of vacuous assertions and the insistence that there was a need to just get on with it (where have we heard that before). This desire to rush things through is particularly disturbing when it is being applied to a bill which may in time deprive any of us, or our loved ones, of our liberty.

    The debate can be seen here in full ( c2hrs)

    Liked by 1 person

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s