Mental Capacity (Amendment) Bill [ Lords ] (Fifth sitting)

Caroline Dinenage Excerpts

Tuesday 22nd January 2019 Public Bill Committees

[Barbara Keeley (Worsley and Eccles South) (Lab)]

I beg to move amendment 45, in schedule 1, page 19, line 34, at end insert—

“(2) In varying an authorisation, the responsible body may also consider—

(a) whether the cared-for person’s capacity is likely to fluctuate, and

(b) whether any restrictions imposed are necessary to prevent harm to the cared-for person and proportionate to the likelihood of that harm, and are likely to continue to be necessary for the duration of the authorisation.”

This amendment enhances safeguards around the variation of conditions by the responsible body. It indicates that the responsible body should consider whether the person’s capacity may fluctuate, and whether the restrictions which are proposed should be in place for the duration of the authorisation.

It is a pleasure to speak under your chairmanship again, Mr Austin. At least we do not have a boiling hot room to contend with.

The amendment deals with the way fluctuating conditions are addressed under the liberty protection safeguards system. The concept of fluctuating capacity is not expressly addressed or provided for in the Mental Capacity Act 2005, including the deprivation of liberty safeguards. The Mental Capacity Act code of practice recognises the steps that should be taken to support a person with fluctuating capacity to take their own decisions—choosing the time of day at which they are most alert, for instance. However, it does not indicate what should happen where an assessment is required of a person’s ability to make decisions on an ongoing basis about a particular matter. As such, the Law Commission did not consult on fluctuating capacity. However, when it launched its consultation, it received a large number of submissions on the topic.

It is clear that individuals with fluctuating capacity represent a major challenge under the current system. That is unsurprising, as capacity to consent is not a black and white issue. Everyone has varying capacity from day to day and from issue to issue. It is not reasonable to categorise people as entirely having or lacking capacity in all cases. My hon. Friend the Member for Dewsbury gave an example of how that can go wrong in practice.

Our amendment 32 would have required an assessment to be made of whether a cared-for person’s capacity was likely to fluctuate. That would have laid the ground for our amendment 45, which would allow the responsible body to take account of fluctuating conditions in varying an authorisation.

Under the current system, a deprivation of liberty safeguard must be terminated if a person regains the capacity to consent; the Mental Capacity Act makes no mention of what should happen if a person is likely to regain capacity only for a short period. That is not changed in the Bill. Under paragraph 26 of new schedule AA1, the authorisation will end if

“the responsible body believes or ought reasonably to suspect that any of the authorisation conditions are not met.”

That includes the person regaining capacity for any length of time.

There are two ways the issue can be dealt with. The first is that a new authorisation will have to be sought every time someone regains and then loses capacity, but that would dramatically increase the number of applications made. It would place more pressure on approved mental capacity professionals and on the cared-for person, who would be undergoing regular identical assessments. I understand that one aim of the Bill, as we have discussed, is to reduce the backlog of applications for deprivation of liberty. Requiring regular repeated applications for the same individual would not help to achieve that.

The second outcome is that the liberty protection safeguards will not be used properly. For example, in the case of older people with dementia whose condition fluctuates, such assessment might need to be hourly. It would simply not be practical to reapply for an authorisation every time they lost the capacity to consent. A person cannot give advance consent to be deprived of their liberty, so either they will be inappropriately deprived of their liberty through a blanket application or they will not receive the safeguards in the system because no application will ever be made. I reiterate that it does not matter, under the current system, whether a person is perfectly happy with arrangements when they have capacity. The moment that they no longer have capacity to consent, that consent is invalid. They cannot consent to any future arrangements.

Both outcomes leave responsible bodies potentially liable for breaching people’s rights under article 5 of the European convention on human rights. The Law Commission report states:

“it is not acceptable for the legislative framework simply to ignore fluctuating capacity. That exposes health and social care professionals and those authorising a deprivation of liberty to significant legal risk. It is therefore vital that the Liberty Protection Safeguards provide for fluctuating capacity expressly.”

However, the Bill the Government have brought forward makes no provision for fluctuating capacity. Our amendment is aimed at addressing that.

Amendment 45 would allow the responsible body to consider whether the arrangements it is authorising need to be in place for the entire duration of the authorisation it is granting. That would allow authorisations to be granted with specific provision for the arrangements to be suspended while a person has regained capacity. We will return later to what deprivation of liberty means, but that is relevant here. It may be that while someone has capacity, they are free to come and go as they please, with no supervision. But when they do not have capacity, they must be accompanied at all times for their own safety. There is no need for arrangements to require that they be accompanied at all times, regardless of their capacity. Instead, it should depend on their condition on a given day.

This comes back to the amendment moved by my hon. Friend the Member for Birmingham, Selly Oak. In it, he called for arrangements to be authorised only if there were no less restrictive alternatives available. If care providers treat capacity as something that, once lost, remains lost, people will inevitably be subject to unnecessarily restrictive arrangements—not all the time, but for the periods when they have regained capacity. That approach also fails to recognise that people’s capacity can vary without crossing the legal line in the sand. There will be days when someone with dementia can, with a certain amount of support, make the decision that they want to go out for coffee with an old friend, but it may be that, because they cannot make such a decision normally, there is no provision in the arrangements for them to go out. I am sure that the Minister would agree that we do not want over-zealous care managers, concerned about the danger of litigation, to end up unduly restricting a person’s liberty purely because they are treating capacity as a constant. Instead, we must establish a system that recognises the way capacity changes and what that can mean for the cared-for person, and that system should be described in the Bill.

The current system deals with fluctuating capacity through the code of practice. I will be concerned if the Minister says in her response that the Government mean that to continue to be the case. The Law Commission was clear, in its assessment of this legislation, that the code of practice was simply not an appropriate place to deal with this issue. I remind the Minister of the Law Commission’s comment that

“it is not acceptable for the legislative framework simply to ignore fluctuating capacity.”

Bringing individuals with fluctuating conditions within the scope of the Bill would not require them to be deprived of their liberty when that was not appropriate. An authorisation is not an order or injunction to detain the person, and professional discretion should of course be exercised—for example, as to when to take or not take steps to ensure that the person is not allowed to leave, or to bring about their return if they do leave.

Will the Minister cast her mind back to 14 March 2018, the day she published the Government’s response to the Law Commission review of the Mental Capacity Act 2005? On page 6 of the response, she accepted the Law Commission’s recommendations about fluctuating capacity. I should like her to clarify why she accepted them if she had no intention of taking on board the commission’s advice that they be contained in the statutory framework.

The amendment would require a consultation to be carried out before arrangements can be varied to account for fluctuating conditions. In some cases, where capacity fluctuates for short periods, that would be an onerous requirement, but it would also mean arrangements could not be made more restrictive when that might not be appropriate. The amendment does not go as far as the Law Commission wanted to on this topic, so it could be seen as a compromise.

In its draft Bill, the Law Commission set out provision for people to consent in advance of being deprived of their liberty. That would have meant that a cohort of people with degenerative conditions, who foresaw the requirement to deprive them of their liberty, would be removed from the system altogether. The Law Commission also said that

“the giving of consent should generally be regarded as an ongoing state of mind which is required in order for a confinement not to amount to a deprivation of liberty. There will be some who will lack capacity to give such consent for such a substantial proportion of the period covered by the proposed authorisation, and regain it for such brief periods, that it is right to regard them as, overall, lacking capacity to give or withhold consent to the arrangements.”

That is in line with the provisions in the current code of practice. It would codify them in statute, ensuring that the group in question would be adequately covered by the liberty protection safeguards. I do not understand why the Government have not yet taken those suggestions on board. They would ensure that people whose conditions fluctuate are properly dealt with by the new liberty protection safeguards, and close up one of the most glaring holes in the current Act. It seems clear that detaining someone while they have capacity would, at the moment, be a breach of the Act. We need real amendments to the Bill to make sense of the system, rather than yet more promises about a code of practice that we have not yet seen. I acknowledge that the Minister has sent us a list of its contents—but that is not the code of practice.

[The Minister for Care (Caroline Dinenage)]

It is a great pleasure, once again, to serve under your chairmanship, Mr Austin.

I thank hon. Members for raising an important point. We agree that the likelihood of fluctuating capacity should be addressed by the mental capacity assessment. We also expect fluctuating capacity to be considered when the responsible body is deciding to give an authorisation and setting the length of authorisation and frequency of reviews.

I think I set out in my comments on amendment 32 that I am tempted by some of the hon. Lady’s suggestions. However, they do not quite encapsulate the “What then?” of the issue: fluctuating capacity should be considered, but what then? That is why I have concerns. Fluctuating capacity is a complex, fact-specific matter that deserves in-depth, detailed guidance. That is why we will include details of it in the code of practice. We consider that a much better way, allowing examples and real guidance to be set out. That will include the issue of where a person with fluctuating capacity meets or does not meet the authorisation condition of lacking capacity to consent to the arrangements, and whether the authorisation continues in force or ceases to have effect.

The backdrop to the matter is the fact that courts have been considering whether decision makers can take a long-term view in some cases of fluctuating capacity. We expect a judgment from the Court of Appeal soon, in the case of Royal Borough of Greenwich v. CDM. Hopefully, that will give legal guidance on how decision makers should deal with fluctuating capacity. That, of course, will be reflected in the code.

With those assurances in mind, I hope the hon. Lady will feel able to withdraw the amendment.

[Barbara Keeley]

The Minister says she is tempted by the amendment. It is about time, because she accepted the recommendations when she accepted the Law Commission’s report, and I have even read out the date when she did that. The Law Commission was clear in saying that fluctuating capacity is not something that can be dealt with adequately in the code of practice.

Despite the Minister’s having said that she would accept the recommendations, the Government have made no attempt to deal with fluctuating conditions on the face of the Bill. There is a real danger that breaches of the Act will be encouraged because responsible bodies and care practitioners have no proper avenue to pursue if a cared-for person has a fluctuating condition. It is open to the Minister to move an amendment on Report, but we will be putting our amendment to a vote this morning.

Question put, That the amendment be made.

--- Later in debate ---

That is the root and substance of the measure. We need some extra independence in the system—someone who has the responsibility to go in to help, to talk and to try to engage the person, even if they are a bit lethargic. The advocate did that for Jo, and numerous Members have given accounts of that happening. There is a compelling case for switching the default from a best interest judgment to an “everybody” judgment, unless there is a strong reason why the person in question would not want one.

[Caroline Dinenage]

We are, largely, starting on the same page. We all agree that advocacy is of the utmost importance for the cared-for person. The Bill is clear that everyone has a right to an advocate, whether an appropriate person, an IMCA or, in some cases, both. The Bill sets out clearly that, if no appropriate person is available or able to represent and support a person, the responsible body must take all reasonable steps to appoint an IMCA, if the person has capacity and requests an IMCA and wherever a person lacks capacity, unless in very rare cases it is not in their best interest, as my hon. Friend the Member for Halesowen and Rowley Regis mentioned.

I thank hon. Members for recognising in the amendment the wishes of the cared-for person as a condition for appointment, as we would not wish to force advocacy on anyone. The Bill already allows an appropriate person to request the support of an IMCA. However, I am concerned about the way in which that best interest has been discussed today. Best interest is the standard that governs decision making under the MCA. I am concerned that the Opposition are disregarding that in relation to IMCAs. I apologise if I have misinterpreted what hon. Members have said. The core aspect of best interest is the person’s wishes and feelings. That has to be the primary consideration when it comes to rights and IMCAs.

[Barbara Keeley]

Given that the Minister has just expressed her view on how we are presenting our views on best interest, I hope I can summarise the examples that we have given and the view that we are putting forward that it is a subjective judgment. There is a difference with a cared-for person being allowed to have an advocate, as a default arrangement, unless they do not want that, as in some of the cases we have mentioned. The best interest test is at best a subjective judgment. There are many examples where somebody’s best interests have been ignored. That is why we have given many cases; those cases illustrate how incorrectly this test can be applied and how wrong it can go.

[Caroline Dinenage]

I thank the hon. Lady for that clarification. I am really grateful for all the interesting case studies and examples set out today. They show the incredible variety of cases, experiences and issues that the Bill needs to encompass, and the challenges of getting it 100% right. That is why we have to be incredibly careful with carte blanche.

We think it would only be in very rare cases that it would not be in the person’s best interest to have an IMCA or appropriate person representing them. Of course, the default is that they would. If the appropriate person is not fulfilling their duties, there should be an alternative appropriate person in place, or an IMCA should be appointed by the responsible body.

There is a presumption in a case where a person lacks capacity. They have the right to request an advocate, if they have capacity, and that best interest test is to avoid overriding their wishes and feelings in cases where they do not. Families of those who lack capacity have told us that they often feel left out of the process. Allowing them to act as appropriate persons enables them to be involved and provide support. I am sure hon. Members agree that that is a good thing.

The role of appropriate person is an important way of involving those who are close to a person, but is not necessarily a matter of either/or. An appropriate person can request support from an IMCA if they wish, and that will include access to challenge in court. We are expanding rights to IMCAs. Currently they are available only to people in hospitals and care homes. The liberty protection safeguard would expand that to those in the community and supported living.

We have set out the fundamental requirements of who can act as an appropriate person and the code of practice will give further detail. I know there were concerns that an IMCA would make a one-off visit and, once everything was settled, they would never be seen again, but it is clear that an IMCA must keep up ongoing contact outside of review times to ensure that the person’s rights continue to be protected and respected.

[Barbara Keeley]

The Minister said that that is clear. How is it clear? It is not clear anywhere in the Bill that there have to be constant visits. Where is that provision in the Bill?

[Caroline Dinenage]

It is clear in our minds, and it will be clear in the code of practice that hon. Members can approve.

[Alex Cunningham]

Will the Minister indicate what the code of practice will say in that respect?

[Caroline Dinenage]

I cannot give the exact wording because, as I have said, we are engaging with stakeholders and we wish to get the provision exactly right. If I were to provide the wording it would be just the opinion of a politician, and we will all agree that we need the voices of experts, and that the views of those with lived experience of having to support people should be taken into consideration.

[Alex Cunningham]

Will the Minister give way?

[Caroline Dinenage]

I will in a moment, but I also wish to consider those parts of the amendment with which I fundamentally disagree, as that is important. The amendment would require all 16 and 17-year-olds to have an IMCA as well as an appropriate person. I feel strongly that automatically appointing an IMCA for a 16 or 17-year-old would risk freezing out parents from providing representation and support, and parents are often best placed to take such a role.

The hon. Member for Worsley and Eccles South often talks about the desperately distressing case of Bethany and countless others, where parents’ wishes and concerns are not listened to or heeded. We have been clear about giving families a strong role in this model, and we do not want to risk that. As with an appropriate person, a parent or family can request the support of an IMCA, or for their role to be performed by an IMCA.

[Barbara Keeley]

I am surprised that the Minster seems to be referring to an advocate as someone who will get in the way of the parents. When I have met parents—I have met Bethany’s father—a great deal of advocacy is going on. Stakeholders in the Bill help with the provision of advocates—indeed, they themselves provide advocacy and legal support. I know for a fact that Bethany’s father would not have got very far because, as the Minister knows, an injunction against him by his local council tried to prevent him from even speaking about his daughter’s case. People need professional support—parents need it, as do other carers—and I hope the Minister will not categorise the support of an advocate as somehow “getting in the way”. The professionals who make decisions have to be challenged, not advocates who are there to support people and their parents.

[Caroline Dinenage]

The hon. Lady slightly misrepresents what I am trying to say. Of course we have seen numerous examples of how important advocacy can be—it can literally make the difference between people living a happy life that suits their needs, or being kept in a place where they feel unhappy and that does not fulfil those needs. I agree that people should be able to access advocacy, that advocates should be able to work alongside parents, and that if parents feel that they cannot take on such a role, advocates should do that work instead of parents. I also feel, however, that if parents feel that they want to do this on their own and not take on additional advice they should not be forced to, and that is probably the fundamental difference between the Government and Opposition positions. People should be allowed to make decisions for themselves if they wish, and they should not continually be forced to take advice if they do not want to.

We want to make this model person-centric—that is key—and base it on the needs of individuals. By mandating the conditions for IMCA appointments in primary legislation we would once again be prescribing a one-size-fits-all approach that does not consider someone’s individual circumstances, or the wishes and feelings of those involved and their family and loved ones. I hope hon. Members agree and will withdraw the amendment.

[Barbara Keeley]

The Minister seemed to imply—I think she used similar words—that appointing an IMCA will be the default, but that is not the case in the Bill. The Bill states that an IMCA should be appointed if the responsible body is satisfied that being represented and supported by an IMCA is in the cared-for person’s best interests. There is a best interest test there, which will potentially get in the way. With the wrong sort of process going through in independent hospitals, it will be subject to that best interest test. That is how people can end up ignored, festering in situations where they do not want to be.

[Caroline Dinenage]

I am struggling with this, because the hon. Lady is giving the impression that best interest should not be taken into consideration. “Best interest” is basically code for the wishes and feelings of the individual. Is she honestly saying that because a person may be lacking capacity their wishes and feelings should be totally ignored, and they should be given what everyone else thinks is best for them?

[Barbara Keeley]

The Minister knows that that is not an accurate interpretation of what I am saying. We spent a fair amount of time talking about independent hospitals, which are still a massive worry and concern. There is still great concern about the potential role of care home managers, because of the conflict of interest in the case of both independent hospitals and care home managers. There are too many actors in this process who could get in the way and be the people deciding whether a best interest test is met.

Were the best interest assessors the people who are used to this and have been doing this job in local authorities, I would be more comfortable. The Government are trying to give power over the process to care home managers and independent hospitals as responsible bodies, and we disagree with that profoundly, because of the cases that I have brought to the Minister’s attention. I think she and the Government are wrong to put faith in bodies where there is a conflict of interest. That is why I feel so strongly about this.

--- Later in debate ---

[Caroline Dinenage]

I beg to move amendment 11, in schedule 1, page 24, line 3, at end insert “in a hospital”.

This is to provide that only arrangements to enable medical treatment for mental disorder in a hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded from being authorised under the new Schedule AA1.

[The Chair]

With this it will be convenient to discuss Government amendments 12 and 13.

[Caroline Dinenage]

Amendments 11 and 12 are technical and tidy up the provisions in part 7 of new schedule AA1 to the Mental Health Act 1983 that set out the interface with that Act. They provide that liberty protection safeguards cannot be used to recall to a hospital a person who is subject to the Mental Health Act and is residing outside a hospital. If someone is subject to a community power under the Mental Health Act and needs to be recalled to a hospital, that should be done through the Mental Health Act. That is already the case under the current DoLS system, and the amendments ensure that the Bill replicates that. The Bill is already clear that an order made under the liberty protection safeguards cannot conflict with an order made under the community provisions of the Mental Health Act, so if someone is required to reside at a place under a community treatment order, they cannot be required to live somewhere else under the liberty protection safeguards.

Amendment 13 ensures that that principle also applies to other legislation with a similar effect to the community powers of the Mental Health Act. That means that if someone is required to reside in a particular place under equivalent enactments that extend to England and Wales, they cannot be required to be placed somewhere else under liberty protection safeguards. The amendments effectively ensure that liberty protection safeguards are not used inappropriately to complete functions that should be completed using the Mental Health Act, and clarify what we all know: that a person cannot be required to be in two places at once. I hope the Committee supports the amendments.

[Barbara Keeley]

I understand that the amendments are designed to address the interface between the Mental Capacity Act and the Mental Health Act, and to keep that interface exactly the same as it is now. I think this is the point to say that this is not the course we wanted the Bill to take. Amendment 52, tabled in my name and to be discussed later, would delay the implementation of the Bill until the Government have given proper thought to how that interface ought to work. We will not oppose amendments 11 to 13, because I can see that they are intended as technical, drafting amendments and we will treat them as such, but I think this is a missed opportunity.

There is a considerable grey area between the Mental Capacity Act and the Mental Health Act, and in his recent review, Sir Simon Wessely made some valuable recommendations on how that divide could be clarified. At this stage, the Government have not tabled amendments to enact those recommendations, but through these amendments they will instead maintain a deficient set of arrangements. I fall back on what I have said before: I call on the Government to pause the Bill until they have given proper consideration to the interface between the two Acts and can produce a Bill that will not require near-immediate amendment and generate a lot of court cases, as we think this Bill will do.

Amendment 11 agreed to.

Amendments made: 12, in schedule 1, page 24, line 10, at end insert “in a hospital.”

This is to provide that only arrangements to enable medical treatment for mental disorder in a hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded from being authorised under the new Schedule AA1.

Amendment 13, in schedule 1, page 27, line 16, at end insert—

“(g) anything which has the same effect as something within any of paragraphs (a) to (f), under another England and Wales enactment.”—(Caroline Dinenage.)

If arrangements conflict with requirements, conditions or directions imposed or given under certain provisions of the Mental Health Act 1983 those arrangements cannot be authorised under the new Schedule AA1 of the Mental Capacity Act 2005. This amendment provides that arrangements which conflict with requirements, conditions or directions arising from an England and Wales enactment having the same effect as the provisions of the Mental Health Act listed in paragraph 54 also cannot be authorised under the new Schedule AA1.

Schedule 1, as amended, agreed to.

Clause 2

Deprivation of liberty: authorisation of steps necessary for life-sustaining treatment or vital act

--- Later in debate ---

[Alex Cunningham]

I share my hon. Friend’s paranoia. I do not understand why we would put any barriers at all in the way of people’s having a proper assessment within a reasonable time. Detaining someone for 14 days is effectively locking them up for 14 days. It means depriving them of their liberty and there may be no real necessity. An assessment, as quickly as possible, is essential.

Of course, if we allow those authorisations to go on for longer than 14 days or any other reasonable timeframe, we are putting people at risk of abuse, as the Law Society has said. I say to the Minister that we must put vulnerable people first. We must always put the individual first. We must have the safeguards in place, because to do anything else is to risk their liberty, and that is a risk I am not prepared to take. I hope she accepts the amendment.

[Caroline Dinenage]

Clause 2 allows caregivers, in limited situations, to deprive someone of their liberty for a short period of time prior to an authorisation being in place or in an emergency. That can be done only to provide the person with life-sustaining treatment or to prevent a serious deterioration in their condition. The clause enables a care home to place restrictions on the person for their own protection ahead of an authorisation being approved. That interim legal cover will be decision-specific and it will be targeted to life-sustaining treatment and care or to a vital act. Once those acts are completed, the conditions no longer apply and legal cover for depriving someone of their liberty ends.

In that way, the clause replicates clause 4B of the Mental Health Act 2005, already in DoLS. The emergency authorisation system applies in exactly the same way when a court application being made relates to a deprivation of liberty. There is no evidence at this time that it would lead to any lengthy deprivation of liberty, and the provision of the Bill builds on an existing and well-understood provision. The previous system also included an urgent authorisation. That has gone because it was used too often and its time limit was ineffectual.

Under the Bill, the legal cover is provided simply for as long as the life-sustaining care is needed and no longer. It is therefore a limited power and a better safeguard. An emergency is defined as a situation where there is an urgent need to act and it is not “reasonably practicable” to make an application under the liberty protection safeguards to the Court of Protection or under part 2 of the Mental Health Act. It was carefully considered by the Law Commission, which looked at the inclusion of a time limit and decided against it. We agree with its conclusion that a time limit could encourage care providers to aim for the time allowed rather than to adhere to best practice for that case and that person, which is certainly what we have seen in some urgent cases.

Given the seriousness of depriving someone of their liberty, it should be limited to the shortest possible timescale and should reflect the huge range of causes that it can be required to cover. The amendment would create a blunt, one-size-fits-all approach, rather than allowing us to reflect the different approaches called for.

[Steve McCabe]

The Minister cites the Law Commission, but is it not the case that the Law Society recommended this very type of safeguard?

[Caroline Dinenage]

I do not know about the Law Society. The Law Commission was tasked with reviewing the measure—it took three years to do so. The commission took evidence from across the sector and we have used its recommendations as the basis for this provision.

[Barbara Keeley]

It is interesting that the Minister is being so selective about which of the Law Commission’s recommendations she is accepting. I challenged her earlier about a recommendation that she had accepted at the time it was made and which has not been taken further in the Bill. This is a five-clause Bill, which Opposition Members have had to battle our way through. It is not the fifteen-clause draft Bill that the Law Commission brought forward, which had been consulted on. It is rather rich of the Minister at this point, when it suits her, to be quoting the Law Commission’s recommendations and adopting them when she has not accepted them on many other occasions, including the one on which I moved an amendment this morning.

[Caroline Dinenage]

The reason for that is quite simple. The Law Commission’s draft Bill had a whole lot more scope and took into it things that we have not been able to look at as part of this particular revision of DoLS, on which we want to focus. We are painfully aware of the fact that 125,000 people are still in a backlog, waiting for DoLS. They do not have the protections that they need; the families do not have the reassurance; and the people caring for them do not have the protection of the law. That is why, necessarily, this had to be a very narrow Bill. Where possible, though, we have taken the words of the Law Commission to its very heart.

[Barbara Keeley]

I am astonished that the Minister thought it was okay not very long ago this morning to not accept a Law Commission recommendation and then, in her very next speech, put forward such a recommendation as the main reason for turning down an amendment. There is an astonishing lack of logic.

Opposition Members believe that it cannot be right that emergency authorisations have no time limit. There is a concern that it could become easy to drop into using the provision given that there is no time limit on it. We can see how, given how systems are designed, people can get into going to the easiest place. If it is the easiest place to deprive someone of their liberty, that situation can become dangerous.

By failing to include a time limit, the Bill fails to incentivise local authorities and the courts to hear emergency authorisation cases promptly. There is no time pressure on them—they can take as long as they like. Applications can already take too long to process and, without a hard end date, they could drag on for weeks or months. The emergency authorisations contain far fewer safeguards than full authorisations, and as such Opposition Members believe that they should be used only sparingly and for brief periods.

Question put, That the amendment be made.

--- Later in debate ---

The amendment simply seeks to ensure that emergency authorisations do not create a second-class deprivation of liberty. The fact that it is an emergency should not mean that we disregard the rights of the cared-for person, as has happened in the past with fatal consequences for that young man, Oliver McGowan. I am sure that the Minister would agree that that is the case. As such, I hope she will accept our amendment.

[Caroline Dinenage]

The ability to deprive someone of their liberty for a short period of time prior to an authorisation being in place or in an emergency is an important part of this model, as we have discussed. That can be done only to provide the person with life-sustaining treatment or to prevent a serious deterioration in their condition.

I spoke on amendment 16 about how this provision is limited to emergency and life-sustaining treatment or a vital act, and to the time limit that is legally enforced. We agree that the provision of information to the cared-for person and those who care for them is extremely important to help them understand the process and exercise their rights. I have committed in respect of other clauses to look again at information and how quickly and early it is disseminated and distributed. I agree in principle with the information part of the amendment.

My only reservation is that, given the nature of the situation, medical professionals have to work urgently in a short period of time, so the amendment might not be practical in practice. However, I agree 100% with the hon. Member for Worsley and Eccles South that information needs to be given out and that people need to understand what is happening to them and their loved ones, so I will commit to look again at this matter.

We agree, and I confirm that, when people are deprived of their liberty, records will need to be kept and those will need to be available after the event. We will outline the details in the statutory code of practice, including how that information should be shared with others.

The amendment outlines circumstances when objections to deprivation of liberty for the provision of life-saving or sustaining treatment should be referred immediately to the Court of Protection. Under the Bill, all people in those cases will have the ability to challenge emergency authorisations in the Court of Protection via section 16 of the Mental Capacity Act, and it is unnecessary for that to be made explicit again in the Bill. The applications will also operate alongside a full authorisation made under new schedule AA1 where appropriate and, of course, there will be full recourse to the court to challenge those authorisations too. For that reason, the Government cannot support the amendment.

[Barbara Keeley]

I am disappointed that the Minister will not accept the amendment because I have given her a very powerful example of why she should. I had not understood, until I engaged with Paula McGowan recently, how defective the processes were. I know that the Minister has been engaged in that case, so I ask her to think about how it adds to the burden of grief and bereavement for the parents that the processes that should have protected a young person such as Oliver were not engaged properly.

The point about information is important; the McGowans were not informed of their rights or listened to. There was no best interest meeting for Oliver. Had that happened, his parents could have pointed out the danger of the anti-psychotic medication. The Minister has just said that medical and care professionals are busy. That is the problem, is it not? That is how these cases happen—in the busyness of urgent care. The warnings about the medication were just ignored. That is why we very much need information to be given.