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Deprivation of Liberty Safeguards

Our People - Maria Nicholas
16 August, 2013

A House of Lords Select Committee has been appointed to consider and report on the Mental Capacity Act 2005 and it is currently in the process of hearing oral submissions from those working in the field.

The Committee has been hearing from a variety of people, including solicitors and those involved in organisations for carers, such as Carers UK.

During the evidence, there has been some criticism of the fact that family and friends who play a caring role in someone’s life are not sufficiently consulted or listened to, despite the fact they will often be able to provide valuable insight and information into that person’s wishes, feelings and ways of communicating. It is also thought to be difficult for carers to know about and fully understand the intricacies of the Mental Capacity Act 2005 in order to ensure they are acting within the principles set out in the Act.

Separately there have been concerns raised about a lack of information on Powers of Attorney and Property and Affairs Deputyship, which results in carers not acting to get a Lasting Power of Attorney whilst they still can (i.e. whilst their family member still has capacity), or perhaps do not fully understand the powers and responsibilities that come with it.

Lawyers giving evidence have in particular criticised the use of the deprivation of liberty safeguards, and the lack of training and awareness staff have which can lead to vulnerable adults being deprived of their liberty without the proper authority. Better and more consistent training for professionals involved with vulnerable adults is key.

It has emerged that some contributors consider there is a need to ensure vulnerable adults have access to an independent advocacy service, particularly if they do not have family or friends who can advocate on their behalf. At the moment, referrals to Independent Mental Capacity Advocates seem to be inconsistent, non-existent or only occurring after some delay.

The overall view that seems to be emerging thus far is that although the Mental Capacity Act 2005 is broadly fit for purpose, there are a number of areas which require improvement.

The final report is due by 28 February 2014. If you have something you would like to share, we suggest you read the British Institute of Human Right’s Unofficial Guide to the Select Committee, which you can access HERE to help you shape that information into a useful form for the Committee. The deadline for written responses is 2 September 2013.

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Head of Court of Protection
Maria Nicholas is a Solicitor and Director at GN Law, and the Head of the Court of Protection and Community Care Departments. Maria advises on issues of mental capacity, best interests, deprivation of liberty and all aspects of community care law.

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