Mental Capacity (Amendment) Bill [Lords]

Dan Poulter Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons & Ways and Means resolution: House of Commons
Tuesday 18th December 2018 Commons Chamber

[Barbara Keeley]

The Minister says no, but Lord O’Shaughnessy in the House of Lords would not consider amendments tabled by two parties to deal with that issue. It is plainly wrong and represents a very clear conflict of interest.

Moreover, the Bill currently allows for the deprivation of someone’s liberty to be authorised for up to three years without review after two initial periods of 12 months, as the Secretary of State said earlier. It cannot be right to have that period of three years without renewal. The Bill is reducing the protections afforded by the current DoLS system, which operates a maximum period of 12 months before renewal.

[Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)]

The hon. Lady is outlining, with some good reason, the fact that there may be fewer safeguards and fewer opportunities for people to review or appeal under this Bill than when someone is sectioned under the Mental Health Act. She has a point about the need to look into that point, and to look more broadly at how this Bill sits alongside the Mental Health Act, given Simon Wessely’s review. Does she agree that a pause would be helpful to consider the interface of those pieces of legislation?

[Barbara Keeley]

Very much so. I will come on to that shortly, but I will not leave the point about independent hospitals, because it is important.

We know only too well from media reports, and the Secretary of State does too, of the torrid situation in independent hospitals that detain people with autism and learning disabilities under the Mental Health Act, and the measures in this Bill could have disastrous and far-reaching consequences. I have raised at the Dispatch Box on several occasions the appalling treatment of people with autism and learning disabilities in assessment and treatment units. I have described the situation as amounting to a national scandal, and I believe that it is still so. As many as 20% of people in these units have been there for more than 10 years. The average stay is five and a half years. The average cost of a placement in an assessment and treatment unit for people with a learning disability is £3,500 a week, but the costs can be as high as £13,000 a week or more.

As the journalist Ian Birrell has exposed in The Mail on Sunday, private sector companies are making enormous profits from admitting people to those units and keeping them there for long periods. Two giant US healthcare companies, a global private equity group, a Guernsey-based hedge fund, two British firms and a major charity are among the beneficiaries of what campaigners have seen as patients being seen as cash cows to be milked by a flawed system at the expense of taxpayers. According to a written answer I obtained from the Department of Health and Social Care, in the past year alone the NHS has paid out over £100 million to private companies for these placements. Shamefully, the Government cannot reveal how much they have spent since they came to power, because they claim that they did not record the expenditure before 2017. It cannot be right that the Bill potentially gives private companies the power to lock up vulnerable people for years at a time to feed a lucrative and expanding private health sector.

I would like to draw attention to one more issue that the Bill does not address—we have already discussed it—and that cannot be papered over by amendments. The Government commissioned Professor Sir Simon Wessely to lead a review of the Mental Health Act, which is of course long overdue for reform. However, as the hon. Member for Central Suffolk and North Ipswich (Dr Poulter) said, there is clearly a complex interface between the Mental Capacity Act and the Mental Health Act. Professor Sir Simon Wessely has made the point that there is now a worrying trend of people, particularly with dementia, being detained under the Mental Health Act when their deprivation of liberty should be dealt with under the Mental Capacity Act. His review recommended imposing a new line of objection to determine who should be treated under which legislation, but, as the hon. Gentleman said, there has been no engagement with these recommendations, which were finalised as this Bill was going through the House of Lords.

In our view, the Government must commit to a review of the interface between the two Acts, with full consultation, which has, to date, been sorely lacking. It is one thing to say that Sir Simon had a conversation with the Secretary of State about this, but that is not full consultation. The consultation must look at both hospital and community settings and provide clear and accessible rights of appeal.

--- Later in debate ---

[Alex Cunningham]

That is not something that has previously come to my attention, but I am sure the organisation would very much like to look at that possibility.

Following on from that, there must be a suitably qualified person carrying out the assessments and they must also be independent. A skilled approved mental capacity professional should be involved before a person is placed in an institution, not just when there is an objection or a trigger. There needs to be further clarity on the role of independent mental capacity advocates. Considering that the Bill in its current draft would allow responsible bodies to detain someone without renewal for up to three years, leaving people deprived of their liberty for inappropriate lengths of time, it is essential that there is genuine independence when it comes to such an assessment.

[Dr Poulter]

The hon. Gentleman is making some very good points. I am sure he is aware that, for a section 2 or section 3 admission to be approved under the Mental Health Act, there needs to be a second-opinion doctor—it is good practice for that doctor to be independent—and a social worker to ensure that the section admission takes place. It therefore seems extraordinary to me that, in a similar situation where there is an issue of capacity to be decided, there is not the safeguard of a second opinion, given that the decision may last for three years.

[Alex Cunningham]

I would certainly bow to the expertise of the good doctor and acknowledge exactly what the hon. Gentleman says. These second opinions and safeguards are absolutely essential, and I do not see such cover in the Bill at the moment.

Another concern I want to highlight is the lack of consultation and clarity about extending the scheme to 16 and 17-years-olds, and the risk that the new scheme will make it easier for authorities to remove young people from the care of their families, despite the family objecting. The Government must go back and give careful thought and consideration to the risk that 16 and 17-year-olds could see their liberty restricted inappropriately.

This issue has already been mentioned, but I too am concerned about the fact that there is no real acknowledgement of the interface between the Mental Capacity Act and the Mental Health Act, although the Secretary of State said it would be considered. I am no expert in this area, but does the Minister not agree that, as the Wessely review on the Mental Health Act has only just been published, the Government should pause the Bill to look at its recommendations properly, rather than risk creating legislation that does not fit together? Professionals must be able to understand the differences in regime and to clearly decide which is most appropriate.

We are dealing with changes to the law that any of our relatives, or even ourselves, could be subjected to in the future. We cannot just bounce this through the Commons and potentially hand substandard powers to a group of people who could rule the roost over an older person, a middle-aged person or a teenager, with nothing at all that their families could do about it.

There are plenty of people out there who are experts in this field; they could have been consulted and heard if there had been pre-legislative scrutiny of the Bill. I have some questions and concerns that have been raised by some of the organisations out there. From Inclusion London: does the Minister agree that the Bill makes it clear that deprivation of liberty cannot be used as a way to deliver care in the cheapest way possible? From the Royal College of Psychiatrists: can the Minister confirm that the Bill will not prevent psychiatrists from being called away from frontline services? From Mencap: what reassurances can the Minister give that all conflict of interest is removed from the Bill? There is plenty in there. From the Law Society: will the Government consider the interaction between the Bill and the Mental Health Act, as set out in their recently published review? Will they take the time to do that properly?

There are many other questions from many other organisations, and I hope that we have real time to address them if the Bill gets into Committee. I gather that the programme motion suggests that the Bill should come back towards the end of January, and there will not be a lot of time in January to consider the real issues. I just hope that the Minister will listen to that point.