Mental Capacity (Amendment) Bill [Lords]

Lord Beamish Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons & Ways and Means resolution: House of Commons
Tuesday 18th December 2018 Commons Chamber

[Matt Hancock]

The hon. Lady is not quite right about the three-year period, because there are review points, meaning that it involves a twice-possible one-year extension, so she is not quite right about the relationship between that and what happens under the Mental Health Act. However, she makes an important point about the links between the Mental Capacity Act 2005, this Mental Capacity (Amendment) Bill and the mental health Bill that we propose to bring forward.

We considered putting the two Bills together, but we did not do that for two reasons. First, it would simply be a big Bill that included two separate regimes, and we would not want the full Mental Health Act powers to be applied across the board, and I think there is a broad consensus behind that. Secondly, the view of Sir Simon Wessely, who ran the review into the Mental Health Act, is that we need to get on with this while taking the time to get the Mental Health Act update right. Combining the two was seriously considered, and I considered it again when I became Health and Social Care Secretary and asked for further advice, but we came to this conclusion, which I hope the hon. Lady will support.

[Mr Kevan Jones (North Durham) (Lab)]

I do not disagree with Sir Simon Wessely’s conclusions about that, but the review does contain suggestions that could be transferred into this Bill. For example, the use of tribunals instead of the Court of Protection in some cases would make them a lot simpler, cheaper and better for the person involved.

[Matt Hancock]

The right hon. Gentleman is quite right. To start to deal with the serious number of cases that we need to make progress with, the interface between this Bill—hopefully on the statute book by then—and the Mental Health Act provisions will be considered as we develop the draft mental health Bill. The truth is that the current system causes unnecessary suffering, and the case for reform could not be more urgent. That is why we are bringing forward this Bill now. Age UK, the UK’s largest charity working with older people, says we have a crisis in the current system that is

“leaving many older people with no protection at all… If we lose this opportunity we’re unlikely to get another one in this Parliament and it is profoundly unfair on the older people and their families…to have to wait any longer…doing nothing is not an option.”

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[Mr Kevan Jones (North Durham) (Lab)]

We judge a civilised society by how it treats its most vulnerable citizens, so getting this legislation right is vital. My hon. Friend the Member for Stockton North (Alex Cunningham) said, “There by the grace of God go we all,” and I agree: we could all find ourselves or family members involved in this. The right hon. Member for North Norfolk (Norman Lamb) raised the issue of the Cheshire West case, which demonstrates that we do need change because we have got people whose human rights are being denied at the moment. It is not the case, therefore, that we can just do this at our leisure.

Is the Bill flawed? Yes, in its current state it is, but change needs to happen among the voluntary sector and others and we need to put some principles behind this, and one of them must be putting the person at the centre of the legislation. We should also only use these measures where there are no alternatives; they should not be used as a recourse of first resort or for financial or convenience reasons.

The review of the Mental Health Act 1983 introduced the least restriction principle and that should be written into this Bill. It is also key to ensure that individuals and families not only know their rights, but have access to them. Also, the length of detention should be kept to a minimum, and certainly kept under regular review. The care plans of individuals must be kept up to date with the individual’s situation, too. The access of individuals and families to independent medical advocates must be a central part of this Bill as well, and if people do not have family or relatives an independent advocate should be appointed to them automatically. The possibility of conflicts of interest has been raised and I am not yet happy that this Bill addresses that. There are issues that need to be looked at. Referring to the Mental Health Act again, having second opinions is important; we must tighten that up in this Bill.

A lot of this could be covered in the code of practice. The Government have not yet produced that, and it needs to be produced before the Bill goes any further. It would also be important for it to be incorporated into the Bill.

Reference has been made to the interface with the review of the Mental Health Act. I have read it and know Simon Wessely, and he is clear in that report that he does not want this legislation held up, and he does not think that fusing the two Acts would be a way forward. He makes a suggestion on how to use the two Acts: for objection we use the Mental Health Act, and for not having capacity we use this mental capacity Act. He also deals with the issue of cases that cover both, offering some ideas around tribunals and judges and court protection. I would also like the Minister to address the issue around 16 and 17-year-olds and how this interplays with the Children Act 1989 which gives certain rights to parents.

The right hon. Member for North Norfolk said that the situation needed to change, because people are now being detained who are not having their human rights observed. I have to say that I agree with him, and that is why I cannot support the reasoned amendment. Throwing the Bill out at this stage would be a huge mistake. I plead with the Minister to look at a number of things. The delaying of the Committee stage that the right hon. Gentleman mentioned would be important, and I believe that we should extend the sittings of the Committee if we need to. We ought to take as much time as possible in Committee. With good will, we can get there.

Is the Bill perfect? No, it is not, and I am not happy with it as it is outlined, but we can get some changes into it. I know that the Minister is an advocate for the sector and that she is passionate about doing the right thing, and it is not beyond the wit of man or woman to get to where we should be. To throw the Bill out at this stage would be a mistake, because my fear is that it would not come back, owing to a lack of legislative time. That would mean that the legal crisis would continue. Also we would be missing an opportunity to change the legislation. We can make the necessary changes if the good will is there.

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[Gareth Snell (Stoke-on-Trent Central) (Lab/Co-op)]

I will be brief, as I am aware that others wish to speak.

The privilege we have as a Parliament is to defend liberty, so any action we take to seek to deprive a person of their liberty should always be weighed against their best interest. I was not greatly aware of the deprivation of liberty safeguards until the Bill was tabled and I received lots of representations from constituents who work in the social work sector. They are concerned that, although the Bill may be well meaning, it does not necessarily have at its heart protections for the best interests of the people to whom it might apply. I have always listened when a doctor tells me something is not right and I am unwell, and we should listen when a social worker tells us that the Bill’s provisions for depriving a person of their liberty fall short of their expectations.

My hon. Friend the Member for Worsley and Eccles South (Barbara Keeley) made two excellent points. First, if we are to take away a person’s liberty, there has to be no possibility that the process could be abused for whatever purpose. I fear that, in some of the arrangements for moving away from a local authority-based system to a responsible body, the potential exists, however small that potential may be, for an unscrupulous person who is not necessarily working in the best interest of an individual to exercise that power simply to maintain a business model in their own facility or care home. Such cases may be few and far between, but we have seen many situations across the country where one or two individuals have taken advantage of people in vulnerable situations, and I am not convinced that the Bill, as currently written, goes far enough to provide safeguards. [Interruption.] The Minister shakes her head, and it would be wonderful if she could address that in her summing up.

[Mr Kevan Jones]

Will my hon. Friend give way?

[Gareth Snell]

I am sorry, but I cannot give way.

My other area of concern is the independence of advocates. I am fortunate to have a family who can speak up if a relative were ever in such a situation, but there are countless people across the country who do not have somebody who can stand up for their best interest and represent what might be right for them. The Bill contains no provision properly to strengthen the independent advocacy rights and make them robust so that everybody who might be subject to the liberty protection safeguards is able to be represented and have their views considered, which is important. [Interruption.] The Minister is nodding, and I would welcome it if she offered some sort of guidance and further clarity on how the Bill will deliver that. From where I sit, from what I have read and from the evidence given to me by social workers, there are several holes in the Bill that do not stand up to scrutiny.

I suspect the Bill will get its Second Reading, and I hope several of those holes will be identified and considered in Committee. At the moment, my fear is that the Bill is well intentioned but simply does not bear scrutiny. There is therefore a potential for exploitative people to take advantage of vulnerable people and, as a Parliament, we must make sure to address that.