Mental Capacity (Amendment) Bill [Lords]

Debate between Caroline Dinenage and Peter Bottomley

Ping Pong: House of Commons
Tuesday 2nd April 2019 Commons Chamber

[Caroline Dinenage]

We now have an opportunity to deliver reforms that will provide quicker and fuller access to protections for the 125,000 people who are not currently receiving them. That is 125,000 vulnerable people without the legal protection that they deserve, whose families do not have peace of mind, and whose care providers have no legal cover for supporting them. We now have an opportunity to rectify this situation.

In February, the other place considered the 56 amendments made to the Bill by the House of Commons, the vast majority of which were agreed with. However, the Lords tabled alternatives to two of the Commons amendments, and they are the focus of our discussions.

[Sir Peter Bottomley (Worthing West) (Con)]

The Minister has rightly pointed out that the Bill will provide a great advantage to those who are directly affected. I do not want to be a total patsy for my local authority, but will she explain what the benefit will be for local authorities, which are responsible for trying to protect people’s welfare and safety?

[Caroline Dinenage]

My hon. Friend makes an incredibly important point. This issue has been a huge burden for local authorities: they have had to carry out multiple deprivation of liberty safeguards often for the same people and often when those people move from one setting to another. That involves a huge amount of bureaucracy and does not offer any better protection for the individuals concerned. The new service will enable local authorities to do this in a much more streamlined and efficient way. It will save them money and, at the same time, offer better protection for the individuals about whom we all care.

Lords amendment 1B was tabled by Baroness Tyler of Enfield to set out the meaning of a deprivation of liberty positively, rather than by using the exclusionary approach set out by the Government. Noble lords are, of course, absolutely right to want to ensure that any definition is understood by people and practitioners. However, a positive definition of a deprivation of liberty is likely to be subject to a legal challenge as article 5 case law evolves, and it would become unfit for purpose incredibly quickly. This is a view not only shared by the Government, but highlighted beautifully in the other place by the esteemed legal experts Lord Mackay and Lord Hope.

Lords amendment 1B does not link the definition of a deprivation of liberty to article 5 of the European convention on human rights, so creating a risk of the definition set out in statute diverging from the convention. This would mean that people who fall outside Parliament’s concept of deprivation of liberty but within the article 5 definition could not have their deprivation of liberty authorised under the Mental Capacity Act 2005. For those people, only the High Court would be available to authorise such a deprivation of liberty, which, in turn, would give rise to excessive delays in accessing vital safeguards.

That is precisely the situation that this piece of legislation looks to address—there are already too many people subject to delays when accessing safeguards, and we cannot introduce a provision that would further risk this.

Given that the Government have these concerns, we cannot agree with the noble lords in their amendment 1B. However, we know that concerns in the other place are reflected by many across the sector and we have taken that on board. We have listened carefully to the views of MPs, peers and other stakeholders and decided not to insist on amendment 1. Instead, I propose that the meaning of a deprivation of liberty will still be as defined under article 5 of the convention, as it is under section 64(5) of the Mental Capacity Act, but there will not be a clarification of the meaning of a deprivation of liberty in the Bill. The Bill will work alongside the rest of the Mental Capacity Act, so it does not impact on the existing definition.

I reassure the House that the Government are still absolutely committed to providing clarification regarding the meaning of a deprivation of liberty for both people and practitioners. We will use the code of practice to lay out in very clear terms and provide details of when a deprivation of liberty is and is not occurring, and this guidance will reflect existing case law. We will set out the meaning of a deprivation of liberty in a positive framing and in a way that is clearer for people and practitioners. We will also include case studies in the code to help bring this to life. Government amendment (a) in lieu of Lords amendment 1B will prescribe that the code of practice must contain guidance on what kind of arrangements amount to a deprivation of liberty.