Mental Capacity (Amendment) Bill [HL]

Baroness Blackwood of North Oxford Excerpts

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

Moved by

[Baroness Blackwood of North Oxford]

That this House do not insist on its Amendment 1B proposed in lieu of Commons Amendment 1, to which the Commons have disagreed, and do agree with the Commons in their Amendment 1C in lieu.

1C: After Clause 3, page 3, line 28, at end insert the following new Clause—
“Deprivation of liberty: code of practice
(1) Section 42 of the Mental Capacity Act 2005 (codes of practice) is amended as follows.
(2) After subsection (1) insert—
“(1A) Guidance about what kinds of arrangements for enabling the care or treatment of a person fall within paragraph 2(1)(b) of Schedule AA1 must be included in the code, or one of the codes, issued under subsection (1).”
(3) After subsection (2) insert—
“(2A) Before the end of each review period the Lord Chancellor must—
(a) review each code for the guidance of persons exercising functions under Schedule AA1, and
(b) lay a report of the review before Parliament.
But this does not affect the Lord Chancellor’s functions under subsection (2).
(2B) A review period is—
(a) in relation to the first review, the period of 3 years beginning with the day on which this subsection comes into force, and
(b) in relation to subsequent reviews, each period of 5 years beginning with the day on which the report of the previous review was laid before Parliament.”
(4) In subsection (3) after “preparation” insert “, review”.”

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[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)]

My Lords, today we have an opportunity to pass legislation which will reform a broken and bureaucratic DoLS system which is leaving thousands without safeguards and bring forward a new system which will deliver protections to those who are not currently receiving them. Before I talk about amendments from the other place, I take the opportunity to thank noble Lords for the contributions they have made throughout this process. The noble Baronesses, Lady Thornton and Lady Jolly, have provided important scrutiny from the Opposition and Liberal Democrat Front Benches. The noble Baroness, Lady Finlay, has brought great insight from her role as chair of the National Mental Capacity Forum. The noble Baronesses, Lady Tyler and Lady Murphy, have brought the important issue of clarifying the meaning of a deprivation of liberty to the fore, and the noble Baronesses, Lady Hollins and Lady Watkins, have done excellent work to highlight the importance of providing a person with information about their authorisation and relevant rights.

The Bill has dealt with a number of legal issues and to this end our discussion has benefited from contributions from the noble and learned Lords, Lord Brown, Lord Hope and Lord Woolf, and my noble and learned friend Lord Mackay. Our debates have also benefited from contributions from my noble friends Lady Browning and Lady Barran, the noble Baronesses, Lady Meacher and Lady Barker, and the noble Lords, Lord Hunt, Lord Touhig and Lord Cashman. Finally, I thank my noble friend Lady Stedman-Scott for her excellent support and to my predecessor and noble friend Lord O’Shaughnessy, who marshalled the Bill through its earlier stages most ably, of course. Through the work of noble Lords, the Bill has been improved to address potential conflicts of interest in the new system and to ensure that protections for those in independent hospitals are now strengthened. After the work of the noble Baroness, Lady Finlay, and others in highlighting this, we have clarified the ability of families and care staff to whistleblow. The Bill has also benefited from the hard work of many outside this Chamber and from the careful scrutiny of the Joint Committee on Human Rights.

Today, we turn to the Commons amendments, which were tabled as alternatives to the amendments put forward by this House. The Government listened carefully to the concerns of noble Lords and reflected these in our amendments. Amendment 1C prescribes that the code of practice must contain guidance on what kinds of arrangements amount to a deprivation of liberty. There is also a duty to review any parts of the code that give guidance to persons exercising functions under the liberty protection safeguards and to lay a report of the review before Parliament, initially after three years of the subsection coming into force and then every five years after the date on which a report is laid before Parliament.

The meaning of a deprivation of liberty will remain as defined under Article 5 of the European Convention on Human Rights, as it is under Section 64(5) of the Mental Capacity Act. I know that noble Lords and other stakeholders had hoped that we could provide further clarification on the meaning of a deprivation of liberty in statute; we have had many debates about that. The Government had hoped to do so as well. We agreed with the Joint Committee on Human Rights that a definition could help bring greater certainty to people and professionals; to this end, we explored providing a statutory clarification over several months, working with colleagues across government and across the sector.

However, we established that the only way we could do this was to take an exclusionary approach and define a deprivation of liberty as having the same meaning as in Article 5 of the convention, then setting out what does not constitute a deprivation of liberty. This House made it clear that it was uncomfortable with an exclusionary approach to defining a deprivation of liberty. The Government have listened carefully to the views of Peers, MPs and other stakeholders, and decided not to insist on our original amendment. However, the Government were not able to accept the amendment tabled by the noble Baroness, Lady Tyler. It risked falling out of line with case law and would mean having two different definitions in place, which would bring confusion to a sector that needs clarity.

I assure noble Lords that the Government are still committed to providing clarification regarding the meaning of a deprivation of liberty for both people and practitioners. Amendment 1C makes it clear that the code of practice must lay out in clear terms, and provide detail of, when a deprivation of liberty is and is not occurring; this guidance will reflect existing case law, including the Ferreira decision, which addresses the provision of life-sustaining treatment. We will set out the meaning of a deprivation of liberty in a positive framing and in a way that is clear for people and practitioners. We will also include case studies in the code to help illustrate this.

The amendment also brings in a duty to review any parts of the code that give guidance to anyone exercising functions under LPS. This includes laying a report of the review before Parliament. As I said, initially, there must be a review within three years of the subsection coming into force to ensure that it is working as intended. Following that, there must be a review every five years after the date on which a report is laid before Parliament. This will mean that the meaning of a deprivation of liberty will be considered regularly and remain up to date with evolving case law. The review will not be limited to the definition but will include all the guidance relating to the liberty protection safeguards contained in the code of practice. By regularly reviewing the code in this way, we will ensure that there is up-to-date guidance for people and practitioners, which will support the successful operation of the liberty protection safeguards system.

Amendments 25B and 25C state that after authorising arrangements, the responsible body must, without delay, arrange for a copy of the authorisation record to be given or sent. If the responsible body has not done this within 72 hours of the arrangements being authorised, it must review and record why not. The Government recognise the importance of providing people with information. We amended the Bill in the other place to clarify that people should be informed of their rights under the liberty protection safeguards process and provided with a copy of their authorisation record.

Building on this, the noble Baroness, Lady Watkins, tabled an amendment in this place specifying that a record must be kept if the authorisation record is not provided immediately, and that if the authorisation record is not provided to the person within 72 hours, a review must be conducted. The Government agree that it is important to make sure that the authorisation record is provided quickly; however, there were some issues with Amendment 25A, which we have addressed in our amendments. For example, we have made it clear in our amendments that the new duty falls on the responsible body. This is important as it means that the duty to arrange for the authorisation record to be provided to the person and their representatives can now be enforced.

The government amendments reflect the aims of the Lords amendment. Noble Lords will notice a small difference in that we do not require it to be recorded if an authorisation record has not been provided immediately. The reason for this is simple: our priority is ensuring that the person and their representatives receive the authorisation record. If there is an opportunity for the responsible body to send the authorisation record within 72 hours, they should be doing so rather than recording why they have not sent it. Providing information, including the authorisation record, is important to ensure that people are able to exercise their rights. Noble Lords have made clear their view that there should be a contingency provision to ensure that the responsible body makes arrangements in a timely manner to provide the authorisation record. The Government have listened and this amendment reflects that.

By passing these final amendments today we will bring to a close the parliamentary stages of the Bill. When the Government introduced it last year we committed to reforming the process so that it is less burdensome for people, carers, families and local authorities. That is what the Bill will deliver. On Royal Assent, the Bill will become an Act and will introduce a new targeted and streamlined system that will allow people to access protections quicker. This is vital when we have more than 125,000 people in the backlog not receiving protections and over 45,000 people who have been waiting for more than a year. I ask the House for its support and I thank all Members who have helped to deliver the Bill we have today. I beg to move.

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[Baroness Thornton (Lab)]

My Lords, it is always a good moment when we get to this point in any legislation. It is also an opportunity for us to look at where we started in July. In July, my Chief Whip spoke to me about a really small, uncontroversial Bill that would amend the Mental Capacity Act. I am not criticising him, because that is what he had been told. The idea was that we would have the Second Reading quickly before the Summer Recess and then move straight into Committee immediately after it and get through the Bill quite quickly. It is a great testament to this House that we recognised quite quickly that it might be a small Bill but it was certainly not uncontroversial. As I said when we moved into Committee, the noble Baronesses, Lady Jolly and Lady Barker, and I were sending each other messages about this Bill when we were all poolside in different parts of Europe because we realised that we needed to understand it much better.

I do not accept the criticism that we have failed. I think we started off with a flawed Bill and that we have improved it. In a few years’ time I think we will almost certainly return to this subject, because by then we will have discovered things that have not worked out and that need to be reviewed and possibly changed. We need to thank both Ministers for listening, hearing and working to change the Bill. I particularly thank my fellow Peers for working so co-operatively and with such great expertise. It is always a pleasure when we do that and we are always at our most effective when we do so, and I have been very happy that various Members of the House have taken the lead on various issues throughout the passage of the Bill. The Minister named everybody, so I shall not do so again, but they know who they are and it has been a pleasure to work with them.

We should be pleased that we have successfully tackled what, as far as we were concerned, were certain huge issues, many of which have been mentioned by the noble Baroness, Lady Barker. They included care home managers’ powers, conflicts of interest, private hospitals, the definition of deprivation of liberty and the information provided. We should be proud that those issues have been tackled. I particularly thank the noble Lord, Lord O’Shaughnessy. I have not often been called a juggernaut but on Report he suggested that I was. I think he was expressing the opinion that in my remarks I was representing the views of the whole House and that we were definitely coming for him, as it were.

If we are to learn some lessons from this, one is possibly that the Bill team took a little while to gear up to what happens in the House of Lords and how we approach things. We talk to the stakeholders—we have a continuous dialogue with them—and that is the next group that I would like to thank. I thank all the stakeholders who came to endless meetings with us to make sure that we did our job properly, although some of them still have some major concerns.

I say to the House that what matters is what happens next. First, it seems likely that within the next year or so we will have another mental health Bill, so it is quite possible that some of the issues that we have been concerned about will re-emerge and be discussed during that process. Secondly, we will have the regulations and the code of practice. I would like to be assured that the consultation, which might not have been quite as good as it should have been at the beginning of this whole process, will absolutely inform the code of practice and the regulations that follow the implementation of this legislation.

I do not wish to threaten the Minister but, after the past eight or nine months, there is a body of commitment and passion over this issue that will certainly be watching and be interested in what happens next and will have something to say about it. Therefore, in a spirit of positiveness, we hope that we will be able to help with the next stages but we will certainly be watching them to make sure that the gains that we have made are reflected in the code of practice and the regulations.

Finally, I very much thank the Minister, who came in in the middle of the Bill. This is the second Bill that she has had to pick up and run with in your Lordships’ House. She has done it with great dignity and intelligence, and it has been a pleasure to work with her.

[Baroness Blackwood of North Oxford]

I thank noble Lords for an important moment in the passage of the Bill. I assure them that they will never have to threaten me to get me to listen to important points regarding the progression of legislation of this import. I identify myself with the comments of the noble Baroness, Lady Tyler. This is indeed a pragmatic solution to the very challenging problem of getting the right solution.

I also echo the comments of the noble Baroness, Lady Finlay, who said that this has been a bumpy ride, but it is a major decision to deprive someone of their liberty, so it is right that there has been very detailed scrutiny of the legislation. When someone is deprived of their liberty we have to ensure that it is always necessary and proportionate and, wherever possible, consistent with their wishes and feelings. I agree with her that the advocacy provisions in this Bill are stronger than in the DoLS legislation, and that it will provide greater responsiveness and flexibility than previous legislation. We can be proud as a House to have delivered that.

I am sorry to hear the concerns raised by the noble Baroness, Lady Murphy. As we proceed through the next stages of engagement over the code of practice, I hope that we shall be able to prove her wrong, in the most positive sense. We have put in place very strong measures for whistleblowing thanks to the contribution of the noble Baroness, Lady Watkins; thanks also to her work, we have strengthened the provisions for information. We have also to nail down the questions around the definition, of course, but I think it right that this is not on the face of the Bill for all the reasons that we have debated at great length in this Chamber. I will not rehearse them now but will try to answer some of the questions that I was asked.

The first is about when the code of practice will be published. Obviously, as the noble Baroness, Lady Finlay, pointed out, the department is collaborating very closely with the sector in the preparation of the code; that is already happening. We are working with many organisations and individuals. The drafting will be considered by expert reference groups and people with lived experiences, to ensure that we get the most practical and workable code of practice. The department has already convened a working group involving a wide range of stakeholders. We expect to have output from the working group by this summer. After Royal Assent, I will place a letter in the Commons Library as requested; this will contain timescales for the code of practice, including when a draft code will be published for consultation. I hope that is reassuring.

As I have said, the statutory guidance will include a suite of case studies which will demonstrate how the definition applies in different settings and scenarios. It will provide clarity and aid to practitioners. We are collaborating to ensure that it can provide clarity and lack of ambiguity and can be a real help to those using it. As the noble Baroness, Lady Tyler, said, we have made a commitment that it will provide detail about when deprivation of liberty does and does not occur. It will reflect existing case law, including the Ferreira decision, and it will set out the meaning of a deprivation of liberty in a positive framing; this should be reassuring. On the question of a review, the code can be updated at any point. This will ensure that it can reflect changes in legislation practice or case law—that is, the entire code, not just the definition. I hope that is reassuring.

I would like to respond also to some of the points made by the noble Baroness, Lady Barker. She is absolutely right regarding the questions of resourcing, the backlog and training. We are very alive to this. A further impact assessment will be done following Royal Assent and we will work with stakeholders collaboratively to take on board feedback from previous iterations. We will also ensure that the Government will provide guidance ahead of implementation. That will include steps that can be taken to help reduce the backlog.

However, we will not stop there. The Government are committed to supporting training ahead of the new system coming into force and are working with Skills for Care, Health Education England and Social Work England to deliver that. Ahead of day one, we will work with local and national networks and the Welsh DoLS network, in partnership with the LGA and ADASS, to reduce the existing backlog. Work is under way for that. Cared-for persons who have existing DoLS authorisation on day one will remain under that authorisation until it expires, after which a new application will be needed to try to manage the volume of work that will be undertaken. I hope this is reassuring. To respond to the point raised by the noble Baroness, Lady Finlay, I can assure her categorically that the code of practice will be statutory.

I hope that all this is reassuring; I think this is a great step forward and I commend the Bill to the House.

Motion A agreed.

Moved by

[Baroness Blackwood of North Oxford]

That this House do not insist on its Amendment 25A to Commons Amendment 25, to which the Commons have disagreed, and do agree with the Commons in their Amendments 25B and 25C to Commons Amendment 25 in lieu.

25B: Line 2, leave out from “(1)” to “to” in line 3 and insert “After authorising arrangements the responsible body must, without delay, arrange for a copy of the authorisation record to be given or sent”