Mental Capacity (Amendment) Bill [HL]

Baroness Jolly Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 27th November 2018 Lords Chamber

[Baroness Jolly (LD)]

My Lords, I too support Amendments 29 and 86 and others in this group.

It is essential that the cared-for person and their appropriate person and/or advocate are provided with information about the reasons for the cared-for person’s detention and their rights to review and also to challenge. It is a fundamental human right under Article 5 of the ECHR. Both the Mental Health Act and the DoLS contain clear obligations to take steps to help the person understand their situation and their rights; and the DoLS set out a clear statutory list of those entitled to copies of the authorisation and the assessment.

Despite this, the Bill is silent on these rights to information. The Minister has suggested that the person could request the information by making a subject access request under the GDPR. I agree with the Joint Committee on Human Rights, which does not accept this as an adequate substitute. This misunderstands the obligation, which is a right to be informed, not a right to request information. It is highly unrealistic to expect a person subject to the LPS to think that they would know to make this request and be able to do so.

Meanwhile, the person’s family would have no obvious rights to this information unless, of course, they held a lasting power of attorney or deputyship, and most will not. At the moment, requests for personal data are managed through the MCA code’s guidance, with data being disclosed only if it is in the best interests of the person. In practice, families, and even advocates, are often shut out of decision-making and consultations about the person, and can experience obstruction in trying to access vital information like this. The Bill should be compatible with the ECHR, not on promises of what might possibly be in the code—as my noble friend Lady Barker has just stated.

The Minister has confirmed that the code of practice is statutory and that it must be followed unless there is good reason not to do so. However, this is not the main problem. In some places the code is being asked to effectively establish rights and duties instead of explaining or elaborating on them. Duties to provide information about the authorisation and clear-cut rights to obtain copies of the authorisation documentation are an important example. A code cannot be used to achieve this.

I remind the House of a recent example in which the MCA code of practice said that certain very serious decisions—such as withdrawal of artificial nutrition or hydration—could be taken only by the court of protection. Peers were reassured in Parliament that that was the case and shown a draft copy of the code of practice, which stated it clearly. However, the Supreme Court ruled this year that that was not the case in law and that the MCA code of practice not only misstated the legal situation but could not establish a duty where none had existed. Consequently, if there is a need for a hard-edged duty or right, that needs to be put into legislation, not in the code.

I therefore urge the Minister that in this Bill we must have the provisions to provide the person with information about their situation and their rights, and also clear statutory entitlements to copies of the relevant documentation for those supporting and representing them.

--- Later in debate ---

[Lord O’Shaughnessy]

My Lords—

[Baroness Jolly]

My Lords, I had not fallen asleep. We are nearly there. I put my name to Amendments 140 to 147A because they are important, although I suspect that they will not make it into the Bill. It is important to have these discussions at this stage.

In Committee, I tabled amendments on the review of the Mental Health Act and the code of practice. I still support them. The request for an equality impact assessment in Amendment 143A in the name of the noble Baroness, Lady Thornton, is the right thing to do. The amendments ask the questions but the issues are still real and important. The amendments also relate to how a future Bill could be handled. Indeed, it helps us to look back to other Bills; I cite the Care Act, for example, where a Committee of both Houses went through the Bill over a prolonged period to ensure that by the time it hit your Lordships’ House, it was worth reviewing.

The Minister has done a very good job of pulling this all together so far; Third Reading is still to come. I understand full well that he will not put any of these amendments in the Bill, but he should take seriously the concerns that they raise from Members of your Lordships’ House.

[Lord O'Shaughnessy]

I apologise for pre-empting the noble Baroness. I take the points raised in these amendments seriously, and I will attempt to deal with them as we go through. I applaud noble Lords for the contribution they have made in improving the legislation before us, but of course it is one thing getting the legislation in better order and another thing putting it into practice. I think that is what has inspired the amendments in this group. I will attempt to deal with them as comprehensively as I can and explain why we will not be accepting them in practice—as the noble Baroness, Lady Jolly, pointed out—although we are dealing with them in spirit.

Amendments 140 and 146, tabled by the noble Lord, Lord Hunt and the noble Baroness, Lady Jolly, require the Government to publish a list of every organisation we have consulted with. The noble Lord expressed concern about our response to his FOI request; as I understand it, there were some technical reasons why that did not elicit the information he was after. However, I hope the noble Lord will have seen the letter I sent following Committee, explaining that we have held over 50 engagement events since March 2017. I outlined the broad range of organisations that the Government have engaged with. That letter has been put in the Library and will be published online in due course.

I will not detain noble Lords by going through that list, but of course I am more than happy to circulate it again; indeed, it has obviously developed over time. We have engaged with care providers, a range of third-sector organisations, the royal colleges, stakeholders in local government, the NHS and the social care sector, and, critically, people who themselves have impaired capacity. That builds on three years of engagement conducted by the Law Commission in drawing up its draft Bill.

Nevertheless, I accept there is concern that we have moved too swiftly and that we have not always taken concerns on board. I know we have come in for some criticism for that, but we moved ahead with this Bill because of the urgent need for reform and because the system is not working. While I do not pretend our approach has been perfect, I and the Government feel it has been necessary to move ahead at pace.

The point I want to emphasise is that, in doing so, we have listened and acted. I am grateful to noble Lords for recognising the changes made as a consequence of challenges and ideas from them and other stakeholders. I also applaud the Bill team for responding and providing government amendments. I am pleased we have been able to move on some incredibly important topics, such as “unsound mind”, 16 and 17 year-olds, the point about IMCAs, thinking about when reviews should be considered by AMCPs, and so on.

As I said, in retrospect and as a lesson for the future, things could perhaps have been done differently. However, I believe we are in a much better place than we were at the start of the process as a consequence of our deliberations.

Amendments 141 and 147, also tabled by the noble Lord, Lord Hunt, and the noble Baroness, Lady Jolly, would require us to publish a plan to ensure that all outstanding deprivation of liberty safeguards applications are settled. The noble Lord is right to worry about this issue and give us the cautionary tale of a too-abrupt switch to a new system and the chaos that can ensue.

On commencement of the new system, existing deprivation of liberty safeguards authorisations will continue until they expire, at which point a liberty protection safeguards authorisation will need to be arranged, or the person should be provided with alternative arrangements that do not amount to a deprivation of liberty—we are seeking less restrictive care wherever possible. Given the length of time for which these authorisations exist, that will provide for a degree of staggering of the case load through the implementation of the new scheme.

On the backlog itself, many local authorities are already working to clear this. Some innovative working models have been introduced and I would be happy to write to noble Lords about them. We are working closely with the LGA and ADASS, as well as the Welsh DoLS network, to provide examples of best practice so that we can move through that backlog and into the new system. There will of course be some outstanding cases as we move from one system to another, particularly if an application is made shortly before the date the new system comes in. We will need special arrangements in place for those, but I reassure all noble Lords that we are working closely with all the people and organisations who will be responsible for implementing the new system to ensure a smooth transition.