Mental Capacity (Amendment) Bill [HL]

Baroness Barker Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 24th April 2019 Lords Chamber

[Lord O'Shaughnessy (Con)]

My Lords, I want to speak briefly to offer some thanks to everybody who has participated in getting the Bill to this point.

First and foremost, I thank noble Lords. The noble Baroness, Lady Finlay, said that the Bill had been given a bumpy ride. As I was in the driving seat for some of that, I can tell noble Lords that it certainly did feel rather bumpy. However, once we got over the bumps and decided we could work together, we made considerable improvements to the Bill, driven largely, it has to be said, by this House and the expertise within it. The compromise reached on the issue of a code of conduct is a good example of that and reflects extremely well on the process this House has gone through in its desire to reach pragmatic solutions—perhaps there is a wider lesson for politics in that.

I want also to express my thanks to those in the Bill team, who have stuck with this and shown considerable and growing intellectual flexibility as the process has gone on. I am sure all noble Lords would want to thank them for both their input and feedback and the grace with which they have dealt with this.

I thank also my noble friend the Minister. This Bill was one of many passes I gave her when she took over, and she has handled it with great intelligence and grace, as she always does. I am delighted we have got to this point and that she has steered it so safely.

Finally, and most importantly, I thank those affected by this legislation: the cared for and the carers. I am sorry to hear the opinion of the noble Baroness, Lady Murphy, which I take very seriously. I am an optimist naturally, but it is not just my natural optimism that means I cannot agree with her gloomy outlook. I hope she is wrong, and I hope she will not mind my saying so. I believe that through this legislation we have made some positive changes and done some good for the cared for and their carers. I am sure this is a subject to which we will return, but, in the meantime, I hope the lives of those people have been improved by the work we have put in over the past few months.

[Baroness Barker (LD)]

My Lords, it has been a privilege to work again on a subject that we have now worked on several times in this House, from the original pre-legislative scrutiny and original legislation through to the post-legislative report on the implementation of the previous Bill. Apart from anything else, it shows the excellent results that can be achieved from the process that we put into scrutinising legislation and scrutinising its subsequent implementation. In light of all of that, I will say that I take a slightly different view from the noble Baroness, Lady Murphy. I think that we have done a very good job. The problem is that the legislation that came to us was fundamentally flawed, and we could not change that. But we changed the legislation where we could, and those changes will make it better.

The noble Baroness hit on two fundamental issues that are problematic. The first is the nature and scope of the Cheshire West ruling and the second is the lack of understanding of the original DoLS legislation. When it was introduced, the training for professionals—all sorts of different professionals—was lacking. Much of what has happened since has meant that we have fallen into a system that is deeply bureaucratic. A number of professionals are scared to exercise their professional judgment. Consequently, a whole bureaucracy has grown up around DoLS which, had it been introduced in the right way, would not have happened. Therefore, the noble Baroness was right to say that the Law Commission was trying to deal with that issue and could not. I have no doubt that what we have in front of us will not solve the problem. I doubt very much whether it will deal with the backlog of cases, about which people are rightly exercised.

My question is one that we were all concerned about—the resourcing for this. One of the first things that we did when we met the Bill team was to query the resourcing—half a day’s training for some doctors and no need for training for people in care homes. Much of that has got lost as we have gone deeper into the wording of the Bill. Will the Minister talk about the resourcing of training and the implementation of the code of practice? I have no doubt that, in due course, there will be further test cases that will shine a light on the deficiencies of this legislation and we will come back to dealing with the fundamental issue: how do we ensure that someone whose liberty is going to be deprived by an agency of the state can be enabled to understand their rights, and their carers enabled to understand their rights, in order that they and the professionals who work with them can ensure that everything is put in place to minimise the deprivation of liberty? If we had done that properly in the first place, we would not be dealing with the deficient legislation that we are now.

The noble Baroness, Lady Murphy, is right that we have not dealt with it, but I take some hope from a lot of the stramash, to use a Scottish word, that we have been through and the attention that has been paid to all of this by the department, by people in the sector and by the lawyers themselves. This is not the greatest job we have ever done, but what we should do today is put a marker down for the evidence that needs to be collated and gathered for the time in the future when we will, inevitably, return to this subject.

[Baroness Meacher (CB)]

I have a couple of points. Other noble Lords made detailed points about the work of this House and the contribution that noble Lords have made to the Bill—very effectively, I think. My experience, although in a sense peripheral, has been that this House has worked very effectively with both the noble Lord, Lord O’Shaughnessy, and the noble Baroness, Lady Blackwood, in their roles as Minister and with the Bill team, and has achieved a certain amount—which is all we ever expect. We do not normally expect to turn Bills upside down and back to front, but we have achieved certain things.

I will mention a couple of things for which I am grateful to the Government, if I am right that we have really seen them home. One of my concerns was the huge and growing number of people in domestic situations where very vulnerable carers are caring for very vulnerable loved ones. Of course we need some sort of safeguard to ensure that the deprivation of liberty, if it occurs, is proportionate, reasonable and all the rest of it, but I was very worried that these poor carers would have layers of bureaucracy that they really could cope with, in addition to the bureaucracy they already had to deal with. I think we had an agreement from the Government that the procedures for assessing deprivation of liberty, proportionality and the rest of it will be undertaken in the local authority’s normal care-planning process, in the work that local authority officials are already doing. That seems a very constructive way forward which will greatly benefit a huge number of carers and cared-for people. It is a small thing, but it may be quite significant.