Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Lord Woolf

Report: 1st sitting: House of Lords
Wednesday 21st November 2018 Lords Chamber

[Lord Woolf (CB)]

My Lords, I am very grateful for the expectation about my contribution to this debate, which the noble Baroness, Lady Tyler, just referred to. I am only too conscious that I shall disappoint her, but I will do my best.

First, I must disclose an interest. I have a relative whom the Bill may affect. I am also a member of the Joint Committee on Human Rights. The noble Baroness, Lady Tyler, was quite right in everything she said about the committee’s report, which has something useful to say in connection to this. I hope the Minister will agree with that. I see him nodding his head and telling me that it is so.

I shall focus on the second amendment proposed by the committee, which supplements the one moved by the noble Baroness, Lady Tyler. It is designed to limit the unintended harm caused as a consequence of the Cheshire West case, which is not easy. That harm takes two forms: first, it has resulted in a huge increase in the number of people who will be caught by the Bill; secondly, it means that people who do not need the precise benefits normally available to those in their position are dragged into that protection to their disadvantage.

I shall try to describe the persons concerned. They are people who have problems that would fall within the context of the Bill, but are residing, possibly in their home or some other institution, somewhere where they are perfectly content and well looked-after. There is no problem in their case. I do not think it necessary to expand the burdens on the Treasury caused by people in their condition by including them, unless it can be shown that there is a real necessity. Although the language of the amendment proposed by the committee, to which I am speaking, is complex, if one reads it carefully it does not give rise to any difficulties, but it could have the ameliorating effects to which I have referred. For those reasons and those the noble Baroness has given, I commend this amendment.

[Baroness Finlay of Llandaff (CB)]

My Lords, I should like to comment on these amendments. Before I do that, I thank the Minister on behalf of everyone for listening, as well as for his willingness to meet Peers and to move on the things that had caused enormous concern to many of us.

I have a couple of concerns regarding these amendments. I commend the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for trying to get us back to a definition. I completely agree that if we do not have a definition, the matter will go to court and we will end up back in a circle that we do not want to be in. The problem I see is the non-negligible period, which will be really difficult to define. If somebody is in a confined space for even 10 minutes or a quarter of an hour, that could be absolutely terrifying for them and completely unjustifiable. We have a difficulty in trying to use time as a measure, but I understand why it is there as well.

In his amendment, the noble and learned Lord, Lord Woolf, certainly includes the principle of consent, which means that there should be information that the person has capacity and that their care and treatment are voluntary. I was a little worried, however, that his proposed new paragraph 2(1B)(d) in the amendment, which would require two clinicians to confirm in writing, rather ran counter to the principles set out in Part 1 of the Mental Capacity Act itself, Section 1(2) of which states:

“A person must be assumed to have capacity unless it is established that he lacks capacity”.


It almost turns itself on its head if you must have somebody to verify that they have capacity.

I note that in his letter to us, the Minister stressed the importance of supporting liberty as much as possible and valid consent wherever possible. Would the Minister be prepared to say that we can work on this between now and Third Reading? If we can reach a definition that seems right by then, we will have done the whole community a great service.