Mental Capacity Act 2005 (Select Committee Report)

Baroness Browning Excerpts

Tuesday 10th March 2015 Lords Chamber

[Baroness Browning (Con)]

My Lords, I refer the House to my declarations in the register. I join the noble and learned Lord, Lord Hardie, in his thanks to all those who supported the committee. I take this opportunity to thank the noble and learned Lord for his wise chairmanship of this committee. The members of the committee very much benefited from him sitting in that chair and giving us the benefit of his opinion as our deliberations progressed.

I shall focus on recommendation 13 and the deprivation of liberty for people who are particularly vulnerable. The Government’s initial response to the committee’s recommendations was:

“We do not believe that there is a fundamental flaw in the legislative framework underpinning the current deprivation of liberty system”.

I sat on the pre-legislative scrutiny committee for the Mental Capacity Act; that seems like a lifetime ago now. I was also on the committee that took the Bill through the House of Commons and had the privilege of sitting on the post-legislative committee. I think the Government were somewhat cavalier in that comment because right the way through from start to finish there has always been debate and concern about this aspect of the legislation, not least about the Bournewood judgment. There was much debate about whether it should go into the Mental Capacity Act or the Mental Health Act, and nobody could quite make up their mind, so the idea that there is not a fundamental flaw is something the Government should have considered in a lot more depth than they did when they sent their response to the committee. However, I move on because the Minister has circulated more information about what the Government now intend to do and, like the noble and learned Lord, Lord Hardie, I welcome the fact that they will make changes following the Law Commission report. None the less, I hope the Government will understand just how complex this is. The Winterbourne View report was shared with Members of the House in a meeting convened by the noble Baroness, Lady Hollins. The Mental Capacity Act was not mentioned or used at all at Winterbourne View, yet the patients there were a very mixed group of people. I contend that not only should those people not have been detained there, but many of them should not have been in Winterbourne View at all. It was quite inappropriate.

Only last week I attended an autism conference in Harrogate, where 39 Essex Chambers gave an interesting and profound presentation on the code of practice for the Mental Health Act. It is extremely relevant to the work that the Law Commission now intends to undertake, and I shall share a little of it with the House. Looking at the Mental Health Act code of practice as it now stands, on the question of avoiding detention at all, as 39 Essex Chambers advised us:

“Learning disabilities and autism share few features with the serious mental illnesses that are the most common reason for using the Act, and so consideration should be given to whether detention of a person with learning disability or autism is appropriate.

Hospitals are not homes, and most support for people with a learning disability or autism should be provided in a local community setting.

Detaining a person with learning disabilities or autism under the Act because there is no treatment available for them in the community is not a substitute for appropriate commissioning of care”.

One of the shocking features of Winterbourne View and other institutions—it was not unique—is that not only are people placed in them for the wrong clinical reason, but they are a long way away from their relatives or carers, who do not have access to them and are very often rebuffed. As a Member of Parliament for 18 years, with an interest in autism and dealing with many cases around the country of people on the autism spectrum being inappropriately detained, I cannot count the number of mothers—it seemed to be mothers in particular—who spoke to me about going to a hospital or home where their adult children were detained, only to be told, “We don’t think it appropriate for you to visit them, because it upsets them whenever you come”. Of course it does. If one of us were detained, clearly for the wrong reasons, and somebody close to us came to visit, I think that we would all be pretty emotional and upset. Yet that is used as an excuse to keep family and carers away, when they have an insight into that how that person functions, and could easily contribute to making the right decisions—the best interest decisions—on what the next steps for that person should be.

I had a recent conversation with a consultant forensic psychiatrist who expressed concern about the fact that although the Government are trying hard to move people out of institutions where they have been detained inappropriately, some of the decisions on moving them, and where to move them to, are not personally focused on the individual patient. “Best interests” are about the individual and the particular decision being made, yet that consultant said that in the present haste to get people out of institutions and into the community—something that we would all support—the methodology being employed means that decisions are often taken by people who have never even met the person concerned. One cannot say that such decisions will be best interest decisions.

I ask the Minister: can we have a parallel system running between now and when the Law Commission report comes in? For existing patients who need appropriate packages of care—people who need to be moved and have their liberty restored—much more attention would be paid to the way in which they are assessed, who does the assessment and, in particular, what the services and care packages are like where they are being moved to. It is not enough simply to tick a box and move them out. Many people who have been inappropriately detained have been medicated in detention—again, I would say, inappropriately—so there is a need for a great deal of expertise in the community in relation to the packages provided for those people.

I welcome what my noble friend and the rest of the Government are going to do, and I welcome the Law Commission report. But I say to my noble friend that they cannot afford to be complacent in this area. This has gone on for far too long.