Mental Capacity (Amendment) Bill [HL]

Baroness Browning Excerpts

Tuesday 26th February 2019 Lords Chamber

[Baroness Browning (Con)]

My Lords, I will be brief. I too had concerns about this definition when the original legislation went through pre-legislative scrutiny—it seems an eternity ago now. It does not seem to be any easier for my noble friend to put this in the Bill. But there are some concerns. I declare my interests as a vice-president of the National Autistic Society, which has written to me, along with other similar charities, to say that it has concerns, not so much on the substance but on the clarity.

As my noble friend has just pointed out, there are two areas here. One is the clarity of the legal definition which lawyers will need, and that is important. But also, as the noble Baroness, Lady Tyler, has said—I assume this will be in the guidance and consultations that my noble friend is now undertaking—it needs to be in clear English for practitioners, relatives and people deprived of their liberty. If anybody asks in the future what Parliament’s intention was at the time—a question which I understand is sometimes asked in courts of law and to which we perhaps pay scant attention when we are legislating—I hope that on both counts, in terms of the legal definition and the guidance for others who are not lawyers, my noble friend will make sure in those documents that Parliament’s intention in defining deprivation of liberty is clear.

[Lord Mackay of Clashfern (Con)]

My Lords, this area of the definition of liberty is, and always has been, extremely difficult. The Strasbourg court has wrestled with it. It is absolutely vital from the legal point of view—I understand the distinction that has been made and I will mention that again—that this definition should be in accord with the convention; otherwise, we will have trouble maintaining this in the face of challenge. It is difficult to say that the Government’s definition is not in accordance with the convention. It seems clear that it is so. Therefore, all the decisions taken here and in Strasbourg in respect of it are available to help in the formulation of guidance.

If a different definition is taken which does not expressly subscribe to the convention, there is certainly room to try to squash definitions or applications which are in line with this definition as amended by the noble Baroness. It is perfectly open to use the legal definition in the main, in accordance with the convention, and then to help people as best we can to understand what it is all about by giving guidance, which is not authoritative in the same way as judicial decisions. There is quite a lot of scope for trying to do that with guidance which will be in accordance with what the practitioners have asked for. I should say that I am an honorary vice-president of the Carers Trust, but that does not affect what I have to say about it. I can see the need to help people in the actual work they have to do; this is a legal definition, and not all legal definitions are absolutely self-apparent to people who are not lawyers. But the guidance provided for can help in that respect, and there is a serious risk that, if we do not do something of that kind, the result will be litigation which could affect the viability of this clause in the future.

--- Later in debate ---

[Baroness Blackwood of North Oxford]

My Lords, It is vital that those who are deprived of their liberty are provided with the information necessary for them to be able to exercise their rights. Although there is a duty to provide information in Article 5 of the European Convention on Human Rights, noble Lords have rightly flagged that the Bill should be explicit about this duty, and amended the Bill to this effect.

The Government listened to noble Lords and agreed that the Bill should be explicit on this matter. However, the amendment tabled in this place was not clear about when information should be provided; we felt that this drafting could cause some confusion for practitioners, so we tabled alternative amendments. Amendment 24 clarifies that, as soon as practicable after arrangements are proposed, the responsible body must take such steps as are practicable to ensure that the person understands the key steps and safeguards in the authorisation process. This is particularly important to ensure that people are aware of their options to challenge the authorisation. Importantly, there is also a duty to provide the same information to any appropriate person who is providing representation and support to the person. This is important in ensuring that family members and those close to the person are also provided with the necessary information to enable them to effectively provide representation and support to the person.

The duty on the responsible body is to take steps as soon as practicable to provide the person with the information. This means that this should be done as soon as possible after the responsible body is aware that arrangements are proposed. The responsible body will need to identify an appropriate person or appoint an IMCA at the earliest possible stage to provide support and representation for the person; the same principle applies for the duty to provide information. Information should be provided in the early stages of the process so that the person can make an informed decision regarding the support they receive through the process, and is able to exercise their rights. The code will provide details about how this will work in practice. We have already established a working group on the code of practice, which includes stakeholders from across the sector, ensuring that information is provided at the earliest possible point to form a part of these discussions.

Amendment 24 also introduces a general duty to publish information about the authorisation, including: the process; the circumstances in which an IMCA should be appointed; the role of the appropriate person; and the right to challenge an authorisation in court. This ensures that anyone who has an interest in the welfare of the person is subject to liberty protection safeguards authorisation, has access to the important information about a person’s rights, and is able to raise objections on behalf of the person.

Amendment 25 requires that the responsible body remind the cared-for person and any appropriate person of this information after the authorisation is granted. The information that needs to be provided to the person, and to any appropriate persons, includes details of the authorisation process, access to representation and support from an appropriate person or an IMCA, the right to request a review, and circumstances in which an AMCP will consider a case, which includes objections and the right to challenge authorisations in court.

On the matter of challenging authorisations in court, the responsible body under Article 5 of the European Convention on Human Rights has a duty to ensure that relevant cases are referred to the Court of Protection. I know that there has been a particular concern about ensuring that in very rare cases where it is not in the person’s best interests to receive support and representation, those people are enabled to challenge in the Court of Protection if they want to. In these cases, the responsible body will need to ensure that the cases are referred to the court. If it fails in this duty, it can be challenged in court.

I understand that Amendment 25A, tabled by the noble Baroness, Lady Watkins, seeks to require responsible bodies to keep a record of the decision and justification for not immediately giving a copy of the authorisation record, and if an authorisation record is not given within 72 hours, there must be a review into whether the lack of information is appropriate. I understand her desire to ensure that information about an authorisation record is provided promptly. However, we think that the drafting of the amendment would cause some issues; for example, it is not clear who is responsible for the duty to record or carry out a review. I am certainly willing to reflect on how best we can ensure that information is shared promptly, but I hope that I can reassure the noble Baroness that we will generally expect the information to be provided earlier than this, and we will set out reasonable timescales for the responsible body in the statutory code of practice. I hope that, with this reassurance, she will decide not to press her amendment.

The House has made clear its view that the Bill should be explicit about the duty to provide information. The Government have listened: these amendments outline clearly the duty to provide information at the earliest possible stage; to require, as far as possible, that the person understands the information they are being given; and to take action on it if necessary. I hope that noble Lords will accept these changes made by the House of Commons, and on that basis, I beg to move.

[Baroness Browning]

Is my noble friend able to define what the Government describe as “as soon as practicable”, which she said was going into the code of practice? Linked to that, how will it be defined for those people who will need the support of speech and language therapists, of an approved mental capacity professional or of an IMCA? It seems that we will need information to be provided at a very early stage, so that it can be considered and then decided whether there is a need for additional support. Can she give us some indication of how she is going to deal with that in the code of practice?

[Baroness Watkins of Tavistock (CB)]

My Lords, I welcome the Minister to her new role, and look forward very much to working with her. I also acknowledge that the Government have gone a very long way in responding to previous amendments in the name of Lady Hollis and myself with regard to the supply of information to the cared-for person and other relevant bodies.

I turn briefly to my Amendment 25A. While I fully appreciate that it is not always practicable for the responsible body to ensure that a copy of the authorisation record is given to the cared-for person and other bodies immediately after authorisation, as outlined, Commons Amendment 25 is not at all specific about the time limits. I believe this means that busy clinical staff may not always feel it necessary to chase up this issue and make time swiftly to explain issues to the cared-for person or the appropriate person. This needs to be done quickly enough in terms of ongoing deprivation of liberty safeguard orders for appeals or challenges to the authorisation to be made, if individuals so require.