Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Hollins and Baroness Stedman-Scott

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 15th October 2018 Lords Chamber

[Baroness Stedman-Scott]

The noble Baroness is pleased with me; that makes me worried.

The amendments from the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt of Kings Heath, would mean that the referral to an approved mental capacity professional would also be required in the following circumstances: if any person interested in the person’s welfare does not wish them to receive treatment at the place, if any other person interested in the person’s welfare makes a request, or if there is reason to believe that an approved mental capacity professional should carry out the review. I am assured that the Bill is already explicit—where it is reasonable to believe that the cared-for person does not wish to reside or receive care or treatment at a place, an approved mental capacity professional must consider their arrangements. If an objection is made on the person’s behalf by a family member of the person or someone who is interested in their welfare, we would generally consider this to constitute a reasonable objection. We will provide detail—including examples—of when an approved mental capacity professional should complete a review in the code of practice. We plan to set out in detail where this would apply in the code of practice but it will include complex cases such as arrangements proposed for people with acquired brain injuries, and people in independent hospitals receiving mental health treatment.

While I understand the intention of the amendment tabled by the noble Baroness, Lady Hollins, the effect would be that any objection by any person with an interest in the person’s welfare would trigger a referral to an approved mental capacity professional. In short, this would mean that anyone could trigger a referral. An acquaintance from social media or a distant relative would be able to raise an objection. While this might be appropriate in some cases, there may be others where it would not represent the person’s wishes and feelings. As currently written, the amendment would undermine the purpose of the duty, which is to ensure that the views of the person are central to the process. I am sure that noble Lords agree that a focus on the views of the cared-for person is vital. That is why the Government have made this core to the new model.

The amendment in the name of the noble Baroness, Lady Finlay, would require a referral to an AMCP when others have expressed concerns, when an authorisation is being justified because of risk to others, or when the arrangements involve restrictions on contact with named persons. I thank her for raising these points and we will consider this carefully for the code of practice. I also hope I can provide reassurance that the Bill only enables authorisation of arrangements that give rise to a deprivation of liberty necessary for the purpose of receiving care or treatment. We would not ordinarily expect the liberty protection safeguards to be used to authorise a restriction on contact and we will make this clear in the code of practice. I am also sure that the noble Baroness is aware that risk to others is being considered as part of the Mental Health Act review.

The noble Baroness, Lady Thornton, wants to ensure that an AMCP conducts the pre-authorisation review for everyone in an independent hospital receiving a mental health assessment or treatment. I am sympathetic to this and wish to consider the matter. Such cases should be referred to an AMCP. Detail of this will be provided in the code of practice.

We have tried to respond to all the points made by noble Lords this evening, but there is more to do. If it is acceptable to your Lordships, we should carry on talking about these issues. The Government are absolutely committed to doing this. On that basis, I hope that I may have passed the exam set by the noble Baroness, Lady Thornton, and that the noble Baroness, Lady Hollins, will be able to withdraw her amendment.

[Baroness Hollins]

My Lords, I am grateful to all noble Lords who have spoken on the amendments in this group and asked very astute questions. I am grateful to the Minister for her optimistic response, but I am not completely reassured. I disagree with her interpretation of my amendment’s intentions. I reserve the right to bring this matter back on Report after further consideration. I will certainly read Hansard carefully and look forward to any other communication which may be forthcoming from the Minister’s office. I beg leave to withdraw the amendment.