Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Tyler of Enfield and Lord Cashman

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Lord Cashman]

My Lords, I too support Amendment 2 in the name of my noble friend Lady Thornton, and the consequential amendments. I am grateful to her for bringing her personal experience to this and reminding us of the young individuals involved. This amendment and the subsequent amendments are to be welcomed. By including 16 and 17 year-olds, it offers better safeguards to those who are not served well at the moment. The amendment would see 16 and 17 year-olds protected by the LPS. It would simplify the system, would bring clarity and ensure that their rights under Article 5 of the European Convention on Human Rights were therefore protected. For those reasons and many more, I support this amendment and the subsequent amendments.

[Baroness Tyler of Enfield]

My Lords, I rise briefly to support this group of amendments. I strongly support bringing 16 and 17 year-olds within the scope of the Mental Capacity Act, and support the proposed amendments to the authorisation and safeguards scheme. I will raise a couple of points, and I would be grateful if the Minister were able to provide some answers or reassurance.

First, clarity will be needed on the role of those who currently have parental responsibility, and how that will fit in with the proposals that are being put forward. Secondly, we need to make sure that there is a fully co-ordinated and joined-up approach across a number of different pieces of legislation. I have already talked about the join-up between the Mental Capacity Act and the Mental Health Act, but I am conscious that, when we are looking at 16 and 17 year-olds, we need to look also at other legal mechanisms that authorise a deprivation of liberty, such as Section 25 of the Children Act 1989, and at how the model dovetails with legal frameworks for the provision of care and support, such as education, health and care plans under the Children and Families Act 2014. So I would ask for some reassurance that someone is looking at the join-up with other relevant bits of children’s legislation.

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[Baroness Tyler of Enfield]

My Lords, the essence of this amendment is about language and use of language—in particular, the term “unsound mind”. I think we would all agree that language is important; it sends very important signals. Many noble Lords raised this point with passion at the Second Reading debate. I was pleased that the Minister’s helpful letter of 24 July referred to the debate about “unsound mind” and made clear that the Minister was sensitive to the points made and would welcome views. I guess this amendment is my way of putting forward my views.

The fact remains that, despite growing awareness and acceptance of mental illness, stigma and discrimination remain a regular experience of people with mental illnesses and their families and can put people off seeking help. We were given to understand that the use of the term “unsound mind” within the Bill was to ensure that it was in line with the ECHR—but this was written in the 1950s. Many people, both inside this Chamber and outside, have expressed serious concerns about the inclusion of this language in the Bill in 2018. Frankly, it perpetuates very unhelpful negative stereotypes. I would contend that the phrase “unsound mind” is out of place in today’s society; it is out of place in legislation being looked at in 2018; it is stigmatising and has no clear clinical meaning; indeed, I would say it is offensive to many.

Therefore, my amendment proposes that, in paragraph 2(2)(c) of Schedule 1 to the Bill, the term “is of unsound mind” is replaced by “has any disorder or disability of the mind”. This terminology is already a well-established term in the Mental Capacity Act and has proven to be compliant with the ECHR without, in my view, having anything like the same stigmatising connotations of “unsound mind”. A disorder or disability of the mind, I am informed by the Royal College of Psychiatrists, has a clear clinical meaning. It is well understood by clinicians and should be no more stigmatising than saying someone has a physical disability.

I am aware that the BMA, which supports not using the term “of unsound mind”, has put forward a proposition that this term should be reconsidered and experts and patient groups consulted to find an alternative to it. The BMA may be right, but I felt that, for my starter for 10, I wanted to put forward terminology that I thought was right. I am sure that others will be able to improve on it.

To conclude, above all this Bill must put the people most affected centre stage—that means some of the most vulnerable people in society, as we have already heard. In my view, it is simply not good enough to continue using terms that lawyers and drafters of legislation may find helpful—it might help them fit things in with other bits of legislation and other conventions—but which causes harm and distress to those we are all trying to help. I believe there is a real and welcome opportunity to change the narrative and discourse in a positive way, and this amendment is a way of taking that opportunity.

[Lord Cashman]

My Lords, it is a great pleasure to support this amendment. Language is crucial. Several times during the day I question whether I am of sound mind, and I think that the concept of unsound mind is extremely dubious. I welcome the amendment from the noble Baroness, Lady Tyler, because it seeks focus and clarity, substituting for “is of unsound mind” the words,

“has any disorder or disability of the mind”.

I believe that the Royal College of Psychiatrists has supported this approach. The BMA also suggests that there should be a different approach because the term “unsound mind” reinforces stigma and discrimination, and equally it is outdated. Its continued use merely perpetuates negative stereotypes of vulnerable people, particularly when we are trying to get over those stereotypes in order to get people to speak more openly at the beginning of their problems—our problems—with mental health issues. Therefore, it is a pleasure to support this amendment.