Mental Capacity (Amendment) Bill [HL]

Baroness Barker Excerpts

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

[Baroness Barker (LD)]

My Lords, I am not saying that some Members of your Lordships’ House are not veterans on this subject, but I came in today with my hard copy of the Mental Capacity Act 2005: Deprivation of Liberty Safeguards—Code of Practice. I may be the only person who has one, but I went back to look at it over the weekend in preparation for this. I am very glad to be taking part in this debate, alongside the noble Baroness, Lady Barran, who will bring to it her fresh eyes: I think that that perhaps shows one of the great strengths of your Lordships’ House.

I start by saying that the legislation we are considering came about because a vulnerable adult, HL, was detained in a place he did not want to be and which his carers knew was not right for him. It turned out that he had fewer safeguards than someone who had been sectioned under the Mental Health Act, or who had been detained under the criminal justice system. As we dive into the detail of what is inevitably quite a technical Bill, I urge us all to keep that person, and the hundreds of thousands of people like him, in mind. As we look at a piece of legislation that is essentially more than a decade old we need to think about updating this legislation in light of changes in society. We know that by 2030 there will be 2 million people over the age of 65 who are ageing without children: they will not have close family members to look after their interests. I rather think that our acid test ought to be whether we think that what is being proposed will look after those people.

It has been apparent since 2007—we should bear it in mind that the legislation we are talking about was not part of the Mental Capacity Act but part of the mental health legislation—that the safeguards have been poorly understood and practised. That is because the two pieces of legislation do not work well together or, indeed, at all. The mental health legislation rests on the judgment and expertise of individuals, saying ultimately what they believe to be right for the safety of other people. The Mental Capacity Act is instead based around the principles of autonomy, empowerment and the importance of supporting decision-making. Mental health legislation is very strictly overseen by statutory oversight bodies. The Mental Capacity Act never has been and therefore it is not surprising that when it has been implemented, it has been implemented very patchily and has been reliant largely upon the dedication of interested professionals.

Noble Lords will have had a number of briefings which talk about the welcome extension of these safeguards to settings such as care settings. I do not have a problem with that; in fact, I welcome it. I think many care facilities, particularly those run by charities, which have long and dedicated experience in looking after people with learning disabilities, will implement this extremely well, but they will do so without sufficient oversight or a sufficient guarantee that if they do not do their job properly the people concerned and their carers will have the relevant access to information and right of appeal. If the Government had intended to sort out this fundamental issue that has been hanging around for 20 years, they would have waited until the current review of the mental health legislation, which is being carried out by Sir Simon Wesley and which is inevitably looking at DoLS, had been concluded, but they have not.

Unlike the Law Commission, which took great care to consult on its proposals, the Government have come forward with this piece of legislation on which there has been very little consultation. It is quite clear that the Government have gone through the Law Commission legislation and selectively picked pieces out of it, when in fact the Law Commission was trying to bring together a whole package of measures which, taken as a whole, would have been a robust defence of the liberty of individuals. So my first question to the Minister is: why this legislation and why now? Why not wait until the mental health legislation is reviewed? Why not have a consultation on which people with interests, such as the parents or the families of people who have been detained, could talk about what has gone wrong and what has not worked in the current system? I say to the Minister that if the hurry is about saving money, that is something your Lordships’ House will have to bear in mind as we scrutinise the Bill.

The Select Committee which reviewed the implementation of the Act, on which I sat, was concerned about very patchy introduction. We were right. We now have the figures, which show that in some parts of the country the waiting time for having one of these assessments done is longer than the time for which somebody is supposed to be detained. There is no doubt that this has to be changed. But the changes which the Government are choosing to bring in do not strike me as being sufficiently robust. The noble Lord, Lord Touhig, began to outline some of the main areas of concern.

There is also concern about the limiting of legal aid. I hope that other noble Lords, in particular the noble and learned Lord, Lord Brown of Eaton-under-Heywood, will perhaps look at the limitation of legal aid. We are all in favour of having a system in which fewer people need to go to court fewer times, but when they do have to go to court they need to be able to be properly represented. Very few of them are in a position to represent themselves against local authorities or other authorities which have access to their own legal services. I would like us to look at that.

Secondly, the new definition of “proportionate” does not adequately reflect the best-interest tests that were in the original legislation. That is a severe problem. I understand, and noble Lords will appreciate, the desire to cut down on repetitious assessments and so on, but there is a danger that we might end up with decisions being made about a person’s capacity to make one decision which rest on information that was gathered for a wholly different purpose. That would not be right. I also think we have missed a trick in relation to the recognition that there are a number of people whose capacity to make decisions fluctuates. The Law Commission recommendation on that subject has not been picked up in the Bill.

Finally, I do not doubt for a moment that the Government have good intentions but there are several areas in which the detail of the Bill is deficient. We should also bear in mind the strong possibility that people who found themselves in the position that HL did all those years ago may not have the protection of the European Court of Human Rights in the future. Therefore, it is incumbent upon people in this Parliament to make sure that the human rights of those people enjoy greater safeguards than they have ever done in domestic legislation before. For those reasons, I conclude that the Bill before us is extremely flawed and deficient. I suggest that your Lordships bring their considerable experience and expertise to bear to change it radically before it goes to another place.