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12 February 2019

The government is quietly shifting power away from patients to hospitals and care homes

Six weeks before Brexit, it’s rushing through a bill that would have serious implications for patients’ liberty.

By Eleni Courea

Who should make decisions for you when you can’t? It’s one of the most fraught questions in medicine and the trade-off is finely balanced. But today, with no real public debate and little scrutiny, MPs will vote to radically shift the balance of power towards care homes and hospitals and away from patients. 

The measure in question is the Mental Capacity (Amendment) Bill, which MPs are debating in the main chamber. The bill would reform the rules about making decisions for people if they aren’t able to do so themselves. This is what gives hospitals and care homes the right to prevent people with dementia or who have suffered a stroke from walking out.

The bill would override the existing rules, known as Deprivation of Liberty Safeguards, which are seen as overly complex and bureaucratic. There is a backlog of around 125,000 people in care homes and hospitals and waiting for an assessment under these rules of whether or not they should be there.

Although there is agreement that reform is badly needed, the proposed replacements have proven just as controversial. Charities are calling for the bill to be paused, because they are concerned it gives care homes and private hospitals too much power to decide whether to keep someone there, leading to a conflict of interest. The proposals would also triple the time that people can be held without review from one to three years, provided they have already been held for two years. 

Labour tried to vote down the bill at its second reading, with Barbara Keeley arguing that the party does “not want to end up with a flawed piece of legislation replacing another flawed piece of legislation”. One thing they are worried about is the bill’s interface with the Mental Health Act. In December, the Mail on Sunday revealed that the MHA was being used to detain hundreds of people with autism and learning disabilities for years in appalling conditions in privately-run assessment and treatment centres. An independent review in the same month found that the MHA, rather than the Mental Capacity Act, is now increasingly being wrongly used to detain people with dementia.

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As the bill made its way through parliament, Labour put forward 34 amendments, all of which were voted down. It has already been through the Lords and today it reaches report stage in the Commons, which means it’s the last chance for parliament to amend it. But with Brexit still taking up most of the political bandwidth, this is another subject that’s falling through the cracks.