Mental Capacity (Amendment) Bill [HL]

Baroness Meacher Excerpts

2nd reading (Hansard): House of Lords
Monday 16th July 2018 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I am hesitant to speak in this debate, having not been involved in earlier work on the Mental Capacity Act 2005. However, having worked in mental health services and as a Mental Health Act commissioner over a number of years, and having overseen the Mental Health Act appeals of Mental Health Act managers, I do have an interest in deprivation of liberty decisions and, in particular, the justification and proportionality of them.

This is clearly an important Bill, and I applaud the Government for bringing it forward. The DoLS scheme was clearly cumbersome, little understood and in many ways deficient. It is, however, far from clear to me that the new system will be as simple for patients and carers to use as the Minister seemed to imply in his opening remarks. As other noble Lords have indicated, a key issue will be the interface between this Bill and the review of the Mental Health Act, which I understand will report in the autumn of this year. Both relate to non-consensual care and treatment and may apply to some of the same people. As the Royal College of Psychiatrists says, it is the overlaps between the two systems which to some degree explain why the current arrangements are so complicated and why staff struggle to use them. Changes to address problems in one system will surely have unintended consequence for the other. Clarity will be needed about when a patient should be subject to one Act rather than the other. It will be vital that no patient should be deprived of their liberty under both Acts at the same time. I understand that this happens at present, and it is important that this situation be brought to an end. Can the Minister give the House some assurance about how the Government propose to achieve that end?

Another rather straightforward point, which was made by the Royal College of Psychiatrists and the GMC and with which I strongly agree—other noble Lords have mentioned it—is on the use of the term “unsound mind” in the Bill. The term, as others have said, dates back to the 1950s and is stigmatising and out of place today. The college suggests that this term be replaced by “has any disorder or disability of the mind”, which would certainly be greatly preferable. Will the Minister agree to bring forward an amendment to that effect? Perhaps he will be able to comment on that today.

As other noble Lords have said, it is difficult to understand why the Government have not extended the new scheme to 16 and 17 year-olds, as recommended by the Law Commission. Case law has established that the parents of a child under 16 can give consent to what would otherwise constitute a deprivation of that child’s liberty where the matter falls within the “zone of parental responsibility”, but a parent cannot give consent on behalf of a 16 or 17 year-old. Surely the Bill should apply to the young person themselves rather than assume that the parents will make decisions on their behalf. Again, maybe the Minister can explain this apparent contradiction this afternoon.

On the appeals process, under the DoLS system, appeals must be made to the Court of Protection, which can be complex, slow and expensive. Can the Minister explain why the Bill does not introduce any changes to that system? In particular, is there any reason why the appeals process should not replicate the system under the Mental Health Act, which seems to work pretty well? It is worth noting that the Joint Committee on Human Rights made the point that a tribunal system would be more efficient, accessible and cost effective, and would enhance the rights of the individual concerned to be directly involved in the proceedings. In addition, of course the Mental Health Act provides for a tribunal system, so we have a nice model to follow—and why not? Non-means-tested legal aid should be available in such cases but, again, it would be less costly to the taxpayer if tribunals were established to do that job.

The GMC has raised a concern about the lack of clarity in the Bill regarding precisely who should be consulted before an LPS authorisation is made. This apparently includes,

“anyone engaged in caring for the cared-for person or interested in the cared-for person’s welfare”.

Does this mean that both a GP and a hospital doctor should be consulted? Is that necessary? Surely the doctor who knows the patient best would be sufficient. How many others involved in the care of the patient should be consulted?

A particular issue in this context is the power of a decision-maker to decide who is consulted from the proposed list. Surely some are far more important than others. For example, if there is a holder of a lasting power of attorney with decision-making powers in relation to the care of the patient, surely that LPA must be consulted. Yet it seems that the decision-maker can decide whether that person is consulted. The same should apply to the next of kin, who surely must be consulted—it cannot be a choice.

An obvious gap in the Bill, as others have said, is any provision for a person to be able to consent in advance to specific care or treatment arrangements so that authorisation under the new safeguarding scheme could be avoided; it would also save a whole lot of resources and avoid delays for the individual. Advance decisions, with effective safeguards, would reduce bureaucracy and cost and enable more involvement of patients and their families. The Minister will be aware that advance decisions to prepare for end-of-life care are increasingly used—although as yet, not at all sufficiently. But where these advance decisions are in place, the problems for physicians and next of kin are greatly reduced in relation to decisions about whether life-prolonging treatment should be continued, for example. The need to respect the wishes of the individual is similarly important under this legislation. Can the Minister indicate whether the Government would object to including a system of advance decisions in the Bill, and if so, why?

In conclusion, is there any prospect that later stages of the Bill could be held over until the report on the review of the Mental Health Act becomes available, to try to ensure complementarity between the two? I also very much look forward, with other noble Lords, to hearing the Minister’s response to the points that have been made.