Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Jolly and Lord Hope of Craighead

Tuesday 26th February 2019 Lords Chamber

[Baroness Jolly (LD)]

My Lords, I offer my support to my noble friend’s amendment. All of us know—with due respect to the lawyers sitting among us today—that when you have more than a few lawyers, you get more than some factorial of opinions. My noble friend’s amendment was drawn up in consultation with both the care sector and human rights lawyers—hence we have more than one view. We believe that where we are is the right view.

The Minister stated that it was not always possible to use plain English in legislation. That is patently not the case. I point the Minister to the Care Act, another piece of legislation that affects the care of vulnerable adults. It was written from top to toe in plain English.

There is a call for this amendment to be clear. We have already heard today that the double negatives used in the government amendment are not easily understood. It does not read well; it is not comfortable. It needs to be clear, in positive rather than negative language, and able to be understood by a lay person or a carer. This amendment has the backing of the care and health sector bodies, and so we support it.

[Lord Hope of Craighead (CB)]

My Lords, this is a very difficult area. I agree with all the noble Baronesses who have spoken, in so far as they stress the problems of trying to identify what one means by “liberty” in this area, particularly regarding mental health. A number of cases have come before the courts, both in this House when it was sitting in its appellate capacity, and in the UK Supreme Court, where I sat and grappled with this problem myself. I support the government amendment which seems much more consistent with the way the Strasbourg court has interpreted Article 5.

There is a great deal of case law that has been developed over the years as to the meaning of “liberty” in its various contexts. The point that comes out very clearly from a case called HL v the United Kingdom—it went to Strasbourg following a decision in this House in a case called R v Bournewood Community and Mental Health NHS Trust—is that account has to be taken of a whole range of factors when you look at the word “liberty” for the purposes of the article. The court says that in the end it will always come down to a question of degree and intensity, regarding whether what has been going on really is a deprivation of liberty or merely a restriction. It is trying to devise a dividing line between these factors that one is searching for in looking for a definition.

The court said it decided not to try to define the world “liberty”, because it was so difficult to find a workable definition that would apply to all circumstances. What you tend to find is the approach that the government amendment takes, of saying what does not fall within the article in a given case, and what does. It is a safer way of proceeding, rather than trying to, as the amendment in the name of the noble Baroness does, lay down in clear terms what the “deprivation of liberty” amounts to. The problem is that if one looks at the way in which that amendment is framed, in future cases the courts are going to find it very difficult to see whether Article 5 is consistent with what is in the amendment. Then there is the problem of the court having to declare an incompatibility, which then has to be sorted out by some further amendment.

The safer and most useful route is to anchor the amendment to Article 5, as subsection (1) of the government amendment does; and then, for the guidance of those who have to deal with these difficult issues, set out some clearly defined areas where they are not at risk of it being said that they are in conflict with the article. I do not find the provisions set out in the subsections that follow difficult to understand.