Mental Capacity (Amendment) Bill [HL]

Baroness Jolly Excerpts

2nd reading (Hansard - continued): House of Lords
Monday 16th July 2018 Lords Chamber

[Baroness Jolly (LD)]

My Lords, this has been an interesting and hugely well-informed Second Reading of the Bill and I join other noble Lords in welcoming the noble Baroness, Lady Barran, to her place. I am sure that she will bring a new and welcome voice to the House on all issues. My noble friend Lady Barker gave us a helpful account—a history lesson, if you like—which put everything into context. It is worth saying to the Minister now that it is absolutely not the case that we all sat around a table and decided what needed to be said. We have come to our views all on our own, and if we are saying much the same things, it is because they need to be said and are true.

I, too, welcome the Bill. It aims to make the process of depriving a vulnerable individual of their liberty simpler and less bureaucratic. Everyone here would agree that society is judged on how it manages its members who are vulnerable and unable to speak for themselves. This Bill makes a fair attempt at this, but it is not the finished article and I would probably give it a C. The points I will make fall into two distinct categories: points concerning the process of the creation of the impact of the Bill once it is enacted, and the second concerning the legislation itself: what should be in it, what should be taken out, and which clauses could be better worded.

The people who will be affected by this Bill are likely to be old, have mental health problems, autism or a learning disability, or have more than one of these conditions. I should refer to my interests as set out in the register. I chair a learning disability trust caring for more than 2,000 people, many of whom in our care lack capacity. I thank all of those who have provided us with briefings, and it is clear that common themes came out of them. One was the issue of finance. There was a feeling that this is going to be an expensive exercise. There will be a need to train assessors in care homes, to which I shall return later, to train advocates and, of course, to train the trainers. All of this will need to be rolled across England and Wales. Will care providers have to fund this, or will one-off training grants be made available? Certainly the system is under so much stress at the moment that it is unlikely to have the slack in budgets for extra training.

Then there is the role of care home managers. For some this might seem fine and a natural extension of their role. For others it may go into completely new territory where they have no experience and no confidence. I am sure that the Minister appreciates that most people with a learning disability no longer live in a care home but with carers in a domestic supported living setting. It would be a very large ask for those carers to assess the mental capacity of the person they support. Most carers are on the national living wage and may not be professionally ready to make such assessments.

Can the Minister clarify where the AMCP—approved mental capacity practitioner—sits in the new system and from where their funding comes? Where liberty protection safeguards are put in place, could an affected individual have an appeal funded? Will legal aid be available? Will the Minister explain why best interests are not included and what has taken their place? At the useful briefing last week, I inquired about consultation. For a Bill of such importance and with such a potentially huge impact, can the Minister clarify what consultation there was with provider organisations in the sector, the LGA, ADASS and the public at large? Over the last few months, many of us have had really interesting conversations with Sir Simon Wessely about his work reviewing the Mental Health Act. We welcome that review, but would it not have made sense to have waited until Sir Simon finished his work and then have a single view of the issue?

The Bill did not start from cold: the House of Lords Select Committee reported in 2014 on its scrutiny of the Mental Capacity Act 2005. Many noble Lords speaking today took part in those committee sittings. There was also the Law Commission’s Mental Capacity and Deprivation of Liberty report of 2017. They both made many fine recommendations and, along with many in the sector, I am surprised that a lot of work will need to be done in the summer to make the Bill finally fit for purpose. Among the areas I will be looking at in Committee is the issue of 16 and 17 year-olds. To include them in the legislation would align with the Mental Capacity Act. Can the Minister tell the House the rationale for not putting this transitional cohort in the Bill?

Article 5(1) of the European Convention on Human Rights uses the phrase “unsound mind”. The same paragraph also talks about vagrants. It was first drafted in 1950, nearly 70 years ago. It is not used professionally now and the profession believes that it has no place in a piece of modernising legislation; it creates unease among individuals, advocates and the sector alike. Article 5(2) calls for a detainee to be informed of the reason they are to be deprived of their liberty. Rather than having to refer elsewhere, how much more straightforward would it be to have this in the Bill? I support my noble friend Lady Barker’s view that any part of the Bill referring to the ECHR should spell out the impacts rather than cross-reference the Brexit debate.

Although not part of the legislation, the code of practice, once enacted, will make the Bill workable. Will the Minister clarify what progress has been made on writing a draft? Can noble Lords have sight of it? If so, when? This is a complex and important piece of legislation; I hope that the Minister is not expecting to complete it with just one day in Committee. We need to produce an A-plus Bill to send to the Commons. It may take more time than the Government want, but all the people affected by the Bill deserve better.