The Mental Capacity Amendment Bill: The Latest Awful Policy

The Mental Capacity Amendment Bill: The Latest Awful Policy

Bad bills are common - but the government is currently passing one that is dangerous for those least able to protect themselves

The ‘bedroom tax’ was implemented in 2013 and it saw a cut in housing benefit for people who were either working age or classed as having a spare bedroom. The policy was a disaster. However, as Isabel Hardman writes in a part of her book entitled ‘Why We Get the Wrong Policies’, the MPs who passed it only became aware of the failure of the policy months after it was passed.

“How had MPs failed to notice the consequences of this benefit change until it pitched up in their surgeries? The cut was announced in the Emergency Budget following the 2010 election and had been the subject of repeated rows in Parliament. It was only when cases started appearing in constituency surgeries that Conservative MPs started to understand the design and effect of a policy that they had approved.”

Hardman explains that ‘yes men’ are one of the biggest reasons for policy failures; the notion that MPs are as loyal as Labradors and if they are told by their government to pass a bill, they will do so with little hesitation. However, this is almost surprising considering how much time and effort goes into preparing for bill committees. MPs and researchers spend hours reading reports, meeting stakeholders, and preparing amendments. Still, bad bills pass – and they pass regularly. The failure to properly legislate is evident in a new policy currently on the horizon that could be disastrous…

The Mental Capacity Amendment Bill, which would replace the 2005 Mental Capacity Act, is currently in the report stage of the House of Commons. (If you didn’t know, the Mental Capacity Act was designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment). However, the bill is severely flawed, potentially dangerous and even though the opposition is suggesting amendments, the government aren’t budging.

To give you a flavour of the kind of things wrong with this bill:

• It does not explicitly place the best interests of the cared-for person at its heart, and the fate of a cared-for person can be decided without their wishes being taken into consideration. Even access to an advocate can be denied.

• There is a huge conflict of interest. The bill, in its current form, would allow managers of care home and independent hospital (whose corporate interests are to keep people in the care home) to decide whether a cared-for person remains there. They are not scrutinised nor made to answer to any outside body, which opens the door to malpractice.

• Similarly, care homes will be able to hire an internal Approved Mental Capacity Professional or one they keep on a contract which, again, lacks accountability. Although you assume these people are ethical (and most are), the opportunity for neglect should not exist in the first place.

• The bill does not outline what circumstances constitute depriving a person of their liberty. This is concerning because avoiding deprivation of liberty was the purpose of the original act and also part of the European Convention on Human Rights.

• Adequate safeguards are lacking. A person can currently spend three years at a time in care without an independent review of their status.

• No impact assessment has been carried out, nor is it clear if/how this bill will affect 16 and 17-year-olds.

Even on a technical level, only non-controversial legislation is supposed to be introduced to the House of Lords but, as you will have gathered by the list above, this is far from anodyne. Others have accused the government of rushing the bill through.

To be clear though, the original Mental Capacity Act was not perfect – although many argue it might have worked better if it was funded properly. Moreover, the government might decide to amend the bill themselves in the near future to rectify some of these issues. But they haven’t yet, and it’s not clear whether they will.

So why isn’t this front-page news? Multiple explanations, I suppose. From Brexit drama being sexier to welfare policy changes being weedy. The fact it boils down to: ‘Government does something that is in their own interest’, doesn’t make a particularly exciting headline either.

Just like the ‘bedroom tax’, I suspect this policy will slide through Parliament with ease. But, in a few months’ time, an MP will be sat in a surgery somewhere, scratching their head as a constituent explains to them how this policy has failed to properly look after someone they know who is in care, and the MP will wonder how this policy ever got passed in the first place.

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