Mental Capacity (Amendment) Bill [Lords]

Debate between Caroline Dinenage and Kevin Foster

Ping Pong: House of Commons
Tuesday 2nd April 2019 Commons Chamber

[Caroline Dinenage]

My hon. Friend makes an incredibly important point. This issue has been a huge burden for local authorities: they have had to carry out multiple deprivation of liberty safeguards often for the same people and often when those people move from one setting to another. That involves a huge amount of bureaucracy and does not offer any better protection for the individuals concerned. The new service will enable local authorities to do this in a much more streamlined and efficient way. It will save them money and, at the same time, offer better protection for the individuals about whom we all care.

Lords amendment 1B was tabled by Baroness Tyler of Enfield to set out the meaning of a deprivation of liberty positively, rather than by using the exclusionary approach set out by the Government. Noble lords are, of course, absolutely right to want to ensure that any definition is understood by people and practitioners. However, a positive definition of a deprivation of liberty is likely to be subject to a legal challenge as article 5 case law evolves, and it would become unfit for purpose incredibly quickly. This is a view not only shared by the Government, but highlighted beautifully in the other place by the esteemed legal experts Lord Mackay and Lord Hope.

Lords amendment 1B does not link the definition of a deprivation of liberty to article 5 of the European convention on human rights, so creating a risk of the definition set out in statute diverging from the convention. This would mean that people who fall outside Parliament’s concept of deprivation of liberty but within the article 5 definition could not have their deprivation of liberty authorised under the Mental Capacity Act 2005. For those people, only the High Court would be available to authorise such a deprivation of liberty, which, in turn, would give rise to excessive delays in accessing vital safeguards.

That is precisely the situation that this piece of legislation looks to address—there are already too many people subject to delays when accessing safeguards, and we cannot introduce a provision that would further risk this.

Given that the Government have these concerns, we cannot agree with the noble lords in their amendment 1B. However, we know that concerns in the other place are reflected by many across the sector and we have taken that on board. We have listened carefully to the views of MPs, peers and other stakeholders and decided not to insist on amendment 1. Instead, I propose that the meaning of a deprivation of liberty will still be as defined under article 5 of the convention, as it is under section 64(5) of the Mental Capacity Act, but there will not be a clarification of the meaning of a deprivation of liberty in the Bill. The Bill will work alongside the rest of the Mental Capacity Act, so it does not impact on the existing definition.

I reassure the House that the Government are still absolutely committed to providing clarification regarding the meaning of a deprivation of liberty for both people and practitioners. We will use the code of practice to lay out in very clear terms and provide details of when a deprivation of liberty is and is not occurring, and this guidance will reflect existing case law. We will set out the meaning of a deprivation of liberty in a positive framing and in a way that is clearer for people and practitioners. We will also include case studies in the code to help bring this to life. Government amendment (a) in lieu of Lords amendment 1B will prescribe that the code of practice must contain guidance on what kind of arrangements amount to a deprivation of liberty.

[Kevin Foster (Torbay) (Con)]

I thank the Minister for giving way and I am reassured by what she says. It would not be appropriate, for example, to put case studies on the front of a piece of primary legislation. Will she outline the timescale for bringing that code of practice forward?

Assessment and Treatment Units: Vulnerable People

Debate between Caroline Dinenage and Kevin Foster

Tuesday 6th November 2018 Commons Chamber

[Caroline Dinenage]

NHS England transferred over £50 million up front to CCGs that are closing beds over the course of the financial year, so that they can invest in community alternatives. In addition, between 2015 and March 2019 it will invest another £50 million in transforming funding to put in place things such as the much needed crisis prevention teams, which are focused on supporting children in the community.

[Kevin Foster (Torbay) (Con)]

The number of people with learning disabilities and autism in secure mental health hospitals is unacceptable and I welcome the commitment to reduce it. Can the Minister confirm exactly how she will monitor that and keep the House updated on progress?

[Caroline Dinenage]

That is the thrust of the whole transforming care and building the right support programme. We know that in some cases during the course of the programme people who have left residential units and gone into the community have gone back in to the units again. We have to keep a very close eye on the figures and ensure that the right package of support and care is provided so that once people leave a secure unit and go into the community, they are able to stay there.

Learning Disabilities Mortality Review

Debate between Caroline Dinenage and Kevin Foster

Tuesday 8th May 2018 Commons Chamber

[Caroline Dinenage]

The hon. Lady is right to raise that, but I will point out that we commissioned the review to examine the situation. We are not running away from our responsibilities; we are standing up and facing them. We are allowing them to be entirely transparent and out there in the public domain for people to judge. The deaths that the report covered come from the period starting July 2016, so they are historical, but it is important that they are examined. The hon. Lady is right to mention the issue of the commissioner, and I will look at that.

[Kevin Foster (Torbay) (Con)]

While the review’s conclusions make difficult reading in some ways, it is welcome that it happened, given that it is a world first and that it gives us the chance to have this discussion. What work will be done with councils and other third sector partners on taking away some of the lessons that can be learned from the review?

[Caroline Dinenage]

My hon. Friend is right to say that this is the first time in the world that such a review has been done. We are the first to have a learning from deaths programme and a Healthcare Safety Investigation Branch, so we take such things incredibly seriously. The whole point of the learning disabilities mortality reviews is that the information will be disseminated to local trusts so that they can make plans to avoid such disastrous, tragic incidents happening in the future.