Schedule to be inserted as Schedule AA1 to the Mental Capacity Act 2005

Part of Mental Capacity (Amendment) Bill [Lords] – in a Public Bill Committee at 9:25 am on 15th January 2019.

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Photo of Caroline Dinenage Caroline Dinenage Minister of State (Department of Health and Social Care) 9:25 am, 15th January 2019

In each case, these are professional social workers who have the required skills and training to make this kind of decision. We do not want to recreate the current system, which very much leaves families and loved ones excluded from the whole process. We want to make sure that their consideration is taken into account at the same time, but we also want to rely on the judgment of professionals, who are incredibly skilled and well trained and who will have the additional workforce training to ensure that they are able to carry out this function successfully.

Amendment 39 broadens the criteria for objections within liberty protection safeguards. The Bill currently provides that the referral must be made to the AMCP if there is a reasonable belief that the person objects to the arrangements to reside in or receive treatment at a specified place. The amendment would expand this to care and treatment overall. I agree that it is important to take into account a person’s wishes and feelings in relation to their care and treatment. It is really important to remember that the provision of care or treatment is already governed by section 4 of the Mental Capacity Act. This amendment to the Act does not override some of the existing parts of the Bill, which are very valuable. In these situations, a best interest decision would need to be made, having regard to ascertainable wishes and feelings, as set out in the Act.

If a person objects, or has objected in the past, to the care or treatment, this must be taken into account within best interest decisions. In some cases a best interest decision must be referred to a court if the person or their family objects. Nothing in the Bill changes this. The statutory code of practice will set out how liberty protection safeguards work within the wider framework of the Mental Capacity Act.