Mental Capacity (Amendment) Bill [HL]

Debate between Lord O'Shaughnessy and Baroness Stedman-Scott

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 15th October 2018 Lords Chamber

[Baroness Stedman-Scott (Con)]

My Lords, I thank all noble Lords for initiating this discussion about approved mental capacity professionals and providing me with an opportunity, for the first time ever, to respond to amendments to a Bill.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)]

Hear, hear.

[Baroness Stedman-Scott]

I thank my noble friend for that intervention. I have been hugely impressed by the commitment on all sides of the House to interrogate this Bill to make sure that it is fit for purpose and does the right job for the people we all seek to serve.

The amendments from the noble Baronesses, Lady Thornton, Lady Jolly and Lady Finlay, would have the effect of requiring that, in each and every case referred to an approved mental capacity professional, the AMCP would have to explicitly consider whether the case should be referred to the Court of Protection. We are clear that if a person wants to challenge their authorisation in the Court of Protection they have the right to do so. However, part of the reason we are creating the approved mental capacity professional role is so that cases where the person is objecting to the proposed arrangements can be considered outside having to go court, which we expect to be in line with the people’s wishes. It is always good to remind ourselves—as has been done many times during today’s business—of what we are trying to achieve and what we are trying to avoid. If we can avoid going to court, as has already been said, but serve people well, then we will have achieved something.

I am conscious that we do not want to create a situation where approved mental capacity professionals defer their responsibility to the Court of Protection and individuals have to undergo court procedures unnecessarily, particularly as we know this can be burdensome for people. In the short debate about this group of amendments, we have all agreed that we should avoid court at all costs, not only fiscally but because of the burden, stress and blockages that it puts into the system. However, I would like to reassure noble Lords that the responsible body has a responsibility to ensure that individuals who want to bring a challenge, in line with their Article 5 rights, have access to the Court of Protection, and the approved mental capacity professional would be important in identifying where this will be the case.

The amendment of the noble Baroness, Lady Barker, would have the effect of requiring the approved mental capacity professional to meet with the cared-for person unless there is agreement with consulted persons that it is not necessary or appropriate to do so. We are clear that our intention is for approved mental capacity professionals to meet with the cared-for persons in almost all cases. Exceptions would be extreme circumstances, such as if the cared-for person is in a coma or clearly expresses a wish that they do not wish to meet with the approved mental capacity professional. I am sure that noble Lords agree that in these exceptional cases it is right that the approved mental capacity professionals do not meet the person.

To reflect this, we have imposed a duty to meet the person where it appears to the approved mental capacity professionals to be appropriate and practical to do so. I understand that the intention of the amendment is to limit the circumstances in which an approved mental capacity professional does not meet with the cared-for person. However, I am conscious that there could be situations—for example, where the AMCP and all consultees bar one agree that it was not necessary or appropriate to meet the person. However, if one consultee did not agree, it would mean that one consultee would effectively have a veto and the AMCP would be required to meet the person. We will ensure that guidance regarding that rare circumstance where it is not practical and appropriate is included in the code of practice.

The amendment of the noble Baronesses, Lady Barker and Lady Hollins, and the noble Lord, Lord Hunt of Kings Heath, requires the person completing the pre-authorisation review, where this is not an approved mental capacity professional, to meet with the cared-for person regardless of whether this is appropriate or practical. We appreciate that there may be circumstances—