Mental Capacity (Amendment) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

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

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, the nod has come that we are resuming the Second Reading debate on the Bill before the House. Tea might be the preferred choice of those who are not remaining.

I start by joining other noble Lords in complimenting and congratulating the noble Baroness, Lady Barran, on her most distinguished and illuminating maiden speech. Plainly, she is going to be a great strength in the House.

I spoke in the debate just over three years ago on the Select Committee’s post-legislative scrutiny report on the 2005 Act. I focused principally on the perhaps somewhat surprising decision of the Supreme Court in the Cheshire West case, a decision by a narrow four-to-three majority vote, which came out six days after the Select Committee’s report. It was a decision which gave huge relevance to the issues arising and highlighted an urgent need to legislate afresh.

The critical concept then under question was what amounted to deprivation of liberty. The central question raised was what was required to authorise it. Put simply, Cheshire West hugely increased the number of cases in which people were to be regarded in law as deprived of their liberty, and it left in place the need for two distinct categories of authorisation. One was for people detained in hospitals and care homes who continued, and continue still, to require authorisation under the Schedule A1 procedures known as DoLS, deprivation of liberty safeguards. The other is for those, like the two particular patients under direct consideration in the Cheshire West case itself, detained in community settings whose placements presently require authorisation by the Court of Protection under a Section 16(2)(a) order.

By the time of the March 2015 debate here, the Government had already asked the Law Commission to look into all this. As eventually the Law Commission came to note in its March 2017 report, there were more than 14 times as many applications for DoLS in the year 2015-16 than in the year before Cheshire West two years earlier, 2013-14. As the Joint Committee on Human Rights records in its recent June 2018 report, 70% of the almost 220,000 such applications in the past year were not authorised within the statutory timeframe and, I quote from the report’s summary:

“Consequently, many incapacitated people continue to be deprived of their liberty unlawfully and those responsible for their care, or for obtaining authorisations, are having to work out how best to break the law”.


Indeed, paragraph 32 of the report says that,

“hundreds of thousands of people are being unlawfully detained”.

Your Lordships will of course agree that that is no light matter. There is therefore real urgency in processing the amending legislation before us.

In that context, I touch next on one particular recommendation made by the Joint Committee in paragraph 45 of its report, which has already been alluded to by a number of your Lordships, the recommendation that Parliament should set out a statutory definition of deprivation of liberty that clarifies the Cheshire West test and,

“would extend safeguards only to those who truly need them, whilst respecting the right to personal autonomy of those who are clearly content with their situation, even if they are not capable of verbalising such consent”.

For my part, while certainly not disagreeing with that recommendation, and while recognising that the majority of the court in Cheshire West may well be regarded as having inappropriately and needlessly—by which I mean going substantially further than required by the Strasbourg jurisprudence on Article 5—gone too wide in their categorisation of deprivation of liberty, I would be disinclined to burden and complicate this current proposed amending legislation still further by including within it a statutory definition. Better, I would suggest, to cure the all too obvious existing problems of authorisations as speedily as possible.

As to that, I broadly support the approach in the Bill, which essentially comes to this: first, a proposed replacement Schedule AA1 to authorise deprivation of liberty by new, proportionate and less bureaucratic means; and, secondly, extending the safeguards into domestic settings—in other words, to apply to all those deprived of their liberty irrespective of where they reside, thus including those who were the specific subject of consideration in the Cheshire West case and therefore relieving some of the pressure on the Court of Protection.

I am in no position today to comment helpfully on the various detailed criticisms of the Bill made by several of your Lordships in the debate, nor even to deal with the availability or otherwise of legal aid to which the noble Baroness, Lady Barker, referred. That will be for Committee.

The last matter I want to touch on, although I do not think it could or should directly affect the form in which the Bill should reach the statute book, is what has been called the Mental Health Act interface. In its hugely impressive, very long, 259-page report of March 2017, the Law Commission, in chapter 13, under this heading, pointed out that,

“the non-consensual care and treatment of people with mental health problems is governed largely by two parallel legal schemes – the Mental Health Act and the Mental Capacity Act”,

the former providing for detention based on protection of the patient and the public, irrespective of mental capacity, whereas the Mental Capacity Act applies only to those who lack capacity, and provides for deprivation of liberty based on the person’s best interests. But, as it goes on to say,

“there is considerable overlap between the two regimes, and the relationship can be extremely complex”.

Chapter 13 concludes with Recommendation 39:

“The UK Government and the Welsh Government should review mental health law in England and in Wales with a view to the introduction of a single legislative scheme governing non-consensual care or treatment of both physical and mental disorders, whereby such care or treatment may only be given if the person lacks the capacity to consent”.


Following that report, in October 2017 the Government commissioned an independent review of the Mental Health Act 1983, an Act which I ought perhaps to confess was enacted principally and specifically to deal with an ECHR challenge which, as counsel for the Government, I had lost in Strasbourg the previous year.

As your Lordships know, the present review is being conducted by the most distinguished group. It is chaired by Professor Sir Simon Wessely, and its vice-chairs include our own noble Baroness, Lady Neuberger, and a much admired, now retired High Court Family Division judge, Sir Mark Hedley. Its terms of reference include recommending improvements in relation to rising detention rates.

In its interim report of 1 May this year, the independent review discusses the interface with the Mental Capacity Act. At paragraph 7.3 of the review, it states:

“We agree and support the urgent reform of DoLS to make sure service users receive the most appropriate care for their needs”,


also pointing out that,

“there needs to be an appropriate calibration between resources spent on delivery of care and those spent on safeguards surrounding the delivery of that care”.

The review, having noted the Government’s broad acceptance of the Law Commission’s conclusions, continues:

“The government has also indicated that it awaits our recommendations on the interface issues”,


and observes:

“It is likely that, if only for practical reasons, we will be unlikely to be recommending ‘fusion’ between the MCA and MHA in the short term, but will be considering this as a longer-term option”.


Finally, to return to the Joint Committee report of 29 June, the interface between the two legislative regimes is thoughtfully discussed in paragraphs 70 to 74, and recommendations are made in paragraph 74. The Mental Health Act review will clearly want to note those recommendations and the concerns expressed by the Joint Committee. Clearly, the resolution of the critical interface between the two legislative schemes is a work in progress, and we are likely to have to return to the Mental Capacity Act yet again in probably well over a year’s time.

In the meantime, I would strongly support the amending legislation now before us, although I recognise that it will need to be considered carefully in Committee. I repeat: this Bill is urgently required now to end the lawlessness consequent on Cheshire West.

Abortion (Disability Equality) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Report stage (Hansard): House of Lords
Friday 24th February 2017 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I pay tribute to the noble Lord, Lord Shinkwin, for bringing the Bill before your Lordships’ House. It is very important that we come back to what the Bill deals with and possibly leave behind some of what I might regard as the slightly unwarranted assertions that we are in danger of reintroducing back-street abortions wholesale as a consequence of this Bill. What it actually does is give us the opportunity to remove the right to abort after 24 weeks an unborn baby which has a disability unless there is a risk of serious permanent damage to the mother or her life is at risk. I say with the greatest respect that it is, therefore, perhaps a rather more modest proposal than was described by the noble Lords, Lord Winston and Lord Lester.

Amendment 1 deals with the situation in which the foetus will die at or shortly after delivery due to serious foetal abnormality. I absolutely oppose this amendment. The noble Lord, Lord Alton, has very competently articulated some of the problems with the amendment, and I am not going to rehearse all the arguments against it. I will simply tell another little story. I have a friend: her name is Tracy Harkin. Tom and Tracy have a little daughter. When Kathleen Rose was born in November 2006, she had trisomy 13, which is one of the conditions that is generally regarded as what is loosely described as a fatal foetal abnormality. Kathleen Rose is now 10 years old. I want to quote her parents: “She has a beautiful, distinct personality. She is known for her mischievous laughter and her enormous hugs. Last year, she was the angel in the school nativity play, and to all of us, of course, she was the star of the show”.

I have another concern. The amendment in the name of the noble Lord, Lord Winston, would extend the provisions of this Bill to Northern Ireland. As noble Lords will know, Northern Ireland is currently in the midst of a very fraught election campaign. I know that in Northern Ireland the tabling of Amendment 1 and Amendment 8 has caused considerable anger and concern. Both justice and health are devolved to Northern Ireland. Therefore, the law on abortion in Northern Ireland—undoubtedly a sensitive and very controversial topic—should be dealt with only by the people of Northern Ireland through their constitutional processes. And my goodness, the right to do business in Northern Ireland through constitutional process has been very hard won. The Abortion Act does not extend to Northern Ireland. That is a position which, despite consideration, has not changed since 1967. It is therefore entirely inappropriate for this House to be considering introducing a change to an Act that does not apply in Northern Ireland and making that change apply in Northern Ireland.

As noble Lords may be aware, only last February, the Northern Ireland Assembly considered the question of whether abortion should be legal in Northern Ireland on the grounds of what is described as “fatal foetal abnormality”—a term which even the noble Lord, Lord Winston, explained to us lacks clarity. For a disability to be fatal, when does it have to be fatal—within hours, days, weeks, months or years? What of Kathleen Rose, heading for her 11th birthday? After a lengthy debate, the Assembly decisively rejected this move by 59 votes to 40. Following last May’s election, an MLA brought forward a Private Member’s Bill to allow for abortion on these grounds. The Northern Ireland Assembly had plenty of time to consider this Bill—in the nine months since the last election, the Assembly passed one Bill: the Finance Act. However, the Private Member’s Bill was not dealt with and it fell. The Northern Ireland Assembly is the place where this issue should be developed and debated, as it affects the people of Northern Ireland.

I know that some noble Lords do not accept the law on abortion in Northern Ireland, but when Parliament accepted the principle of devolution, we accepted that devolved parliaments have a right to make decisions about their own law, whether we like them or not. Reversing that principle and bringing the powers back to Westminster would be a major constitutional change, which Parliament would have to consider very seriously in the light of all the implications of such an action. It is fundamentally wrong for this House to seek to make a decision in this area and we should not, therefore, support these amendments.

Equally importantly, the sensitivities which surround this amendment are greatly compounded by the fact that they are proposed within five days of the elections in the Northern Ireland Assembly. Those elections are unlikely to result in a devolved Assembly because the two parties having the greatest number of seats currently have indicated that they will not go into government together unless significant preconditions are met. In those circumstances we are moving rapidly towards direct rule, with all the political sensitivities attaching thereto, including the threat to our fragile peace process. Only yesterday there was an attempt to murder a police officer. A bomb was placed under his car; that bomb exploded and in all probability it would have killed him. These are fragile days in Northern Ireland and noble colleagues who are supportive of this Bill are understandably there today and unable to address your Lordships’ House.

Whatever happens, there will eventually be a devolved Assembly which has a mandate to uphold or change Northern Ireland abortion law, and that is where this debate should take place. I hope, therefore, that other noble Lords will join me in rejecting Amendment 1 because of the effect of it on the Bill of the noble Lord, Lord Shinkwin, and in rejecting Amendment 8 because it is repugnant.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, my position on the Bill is rather less in favour of the noble Lord, Lord Winston, than it is against the Bill as a whole. I come to the Bill with no pretence to any medical expertise or direct experience in this field but, alas, as an arid lawyer. As such, I seek to stand aside from the huge emotional weight which always attaches to debates on abortion and on disability—as here, where both those emotive topics come together, there is much to be disregarded.

The Bill is concerned with cases where there is a substantial risk, recognised by two doctors, of a child being born with a serious handicap. As the noble Lord, Lord Shinkwin, for whom I have the most profound regard, recognised at Second Reading, at column 2546 of Hansard, if that risk comes to light within the first 24 weeks it is highly likely that, if the mother so wishes, she may be aborted under Section 1(1)(a) of the Act. However, if it is discovered later, the question arises—and this is the crunch question—should the mother be compelled to carry that child to birth or should she be allowed a later abortion?

According to the statistics given at Second Reading by the noble Baroness, Lady Chisholm, at column 2560 of Hansard, in 2015 there were some 230 abortions carried out under the Section 1(1)(d) provision after the 24-week initial period. That squares with the figure given by the noble Baroness, Lady Hayter, of some 200 to 300 women.

The noble Lord, Lord Alton, for whom I have the greatest respect, as I have for all who have taken part on both sides of this debate, referred at Second Reading—as he has again today—to terminations on grounds of “rectifiable disabilities”, and mentioned cleft palate and hare-lip, and in Committee he added club foot. I find it difficult to suppose there have been Section 1(1)(d) cases after 24 weeks on those grounds, and that two registered medical practitioners have certified in the terms of that provision. If they have, that seems to be a matter for the proper policing of this legislation. It is not the altar on which should be sacrificed the interests of those 200 or 300 women a year whom this Bill is otherwise condemning to be required to bear that child, whatever feelings they may develop, and however justifiable that it is a disability which only came to light after 24 weeks. For my part, I would not wish that they be so condemned.

Medical Innovation Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Friday 23rd January 2015 Lords Chamber

[Earl Howe]

Of course the Government will consider this carefully. Let me make it clear that I do not want to sound negative about the idea of data gathering. I am the first to recognise that that could be a major advantage of the procedures that my noble friend Lord Saatchi is encouraging within the scope of the Bill. I would not dispute that for a moment. My concern is that to build a further requirement into the test of negligence would be the wrong course to take, because that is how this amendment is framed.

Also, what would be the benefit if we do not engage fully with the medical community to make sure that doctors are able to use any registry that might be created easily and simply? If it does not work for doctors, there will be no benefit—so I think that we need to take longer over this. It is not a case of kicking it into the long grass, but in the time available we have not been able to come up with a precise solution, despite our best endeavours in our discussions with the GMC.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, before the Minister finally sits down, does he agree that it would be desirable that any professional requirements of registration should deal not only with innovation,

“under the provisions of this Act”,

but also with innovation that may well be outside the provisions of this Bill but are covered by Bolam and expressly contemplated in Clause 2(1): namely,

“a departure from the existing range of accepted medical treatments”.

That, too, needs to be recorded and registered because it may point the way ahead. As matters stand, that is not within the compass of the proposed amendment to Clause 1.

Perhaps I may further ask the Minister whether he agrees with me that the real purpose of this Bill is to carry Bolam a stage further. Bolam applies if a proposed innovation is,

“a departure from the existing range of accepted medical treatments”,

and is,

“supported by a responsible body of medical opinion”.

Clause 1 of the Bill, as was made plain by the first proposed amendment, deals with a situation where,

“a departure from the existing range of accepted medical treatments”,

may not actually be supported by, but has the respect of,

“a responsible body of medical opinion”.

In other words, the,

“responsible body of medical opinion”,

may not support it, but, taking that into account and having regard to patient safety, none the less respects it and therefore implicitly allows it to go forward as a responsible treatment. That is outside Bolam but within the compass of the Bill.