Helen Whately contributions to the Mental Capacity (Amendment) Act 2019


Tue 2nd April 2019 Mental Capacity (Amendment) Bill [Lords] (Commons Chamber)
Ping Pong: House of Commons
4 interactions (625 words)
Tue 18th December 2018 Mental Capacity (Amendment) Bill [Lords] (Commons Chamber)
2nd reading: House of Commons
Money resolution: House of Commons
Programme motion: House of Commons
Ways and Means resolution: House of Commons
7 interactions (779 words)

Mental Capacity (Amendment) Bill [Lords]

(Ping Pong: House of Commons)
Helen Whately Excerpts
Tuesday 2nd April 2019

(1 year, 9 months ago)

Commons Chamber

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Department of Health and Social Care
Jim Shannon Portrait Jim Shannon
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I would never put pressure on the Minister—not in a million years; I know my place. I suggest gently to her that those two things could be looked at.

Helen Whately Portrait Helen Whately (Faversham and Mid Kent) (Con)
- Parliament Live - Hansard - -

2 Apr 2019, 12:34 p.m.

It is always a pleasure to follow the hon. Member for Strangford (Jim Shannon), who makes such thoughtful contributions. I will be brief, as we appear to have a large amount of consensus on this piece of legislation.

First, I want to pay tribute to my hon. Friend the Minister for the work she has done on the Bill, her extremely consensual approach to it and the way she has listened to concerns from Members on both sides of the House and consulted stakeholders widely. It has been a real pleasure to work with her on the Bill, and I thank her for that.

This Bill is critical because it concerns some of the most vulnerable people in our society. We have talked about the fact that there are 125,000 people waiting to be processed for deprivation of liberty orders, and the system is not working, but there are 2 million people who have impaired mental capacity in the country, and we need to get the system right for all of them, not just the 125,000 who are being let down by the current system.

It is also important to say that the Bill builds on more than three years of work and the recommendations of the Law Commission. It has been fully scrutinised by the Joint Committee on Human Rights, and the other place has contributed to it, as have members of the Bill Committee. I have received many emails in support of the fact that it introduces a better system, gets rid of the bureaucratic box-ticking exercises in the old system and should be better for both the individuals who are deprived of their liberty and their families.

Barbara Keeley Portrait Barbara Keeley
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2 Apr 2019, 2:49 p.m.

The work that was done for three years was on a 15-clause Bill that is not this Bill. We discussed that plenty of times in Committee. I think it only fair to be accurate. This five-clause Bill is not the Bill that was consulted on, and it is not the Bill that had three years of work. It is not correct to claim that it is. We spent a lot of time in Committee trying to put right the things that were missing and taken out of the earlier 15-clause Bill, and it is better to be accurate about that.

Helen Whately Portrait Helen Whately
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I thank the hon. Lady for her intervention. Broadly, I was attempting to say that a significant amount of work has gone into this. I have heard overwhelmingly from those working in the sector about the importance of doing something about the current situation, because it is not working and cannot be allowed to continue. This is urgent.

It is right that the NHS and social care providers will be given a bigger role in the decision-making process, so that people under their care receive better care and their rights are protected. The fact that we have people outside the system unprotected at the moment clearly cannot be right and cannot continue. During the passage of the Bill, I raised concerns about how it will work for people with fluctuating conditions, and I have been reassured by the Minister that responsible bodies will be required to keep individuals’ circumstances under review. I welcome the fact that there is further detailed guidance on fluctuating conditions in the code of practice.

I turn to the amendments and particularly the debate about the best way to define “deprivation of liberty”. It feels like a sensible conclusion has been reached in order for us to move forward, with a plan to develop the definition further through the code of practice. These things evolve and are extremely complex, and we need a flexible system that meets the needs of our society.

To sum up, the old system is not fit for purpose. The Bill makes important and timely amendments. It is better for individuals and all those around them to ensure that they have appropriate protections for the very serious matter of depriving individuals of liberty.

Question put and agreed to.

Resolved,

That this House does not insist on its amendment 1 to which the Lords has disagreed, and disagrees with Lords amendment 1B proposed in lieu, but proposes amendment (a) to the Bill in lieu of the Lords amendment.

Resolved,

That this House disagrees with Lords amendment 25A proposed to its amendment 25, but proposes amendments (a) and (b) to its amendment 25 in lieu of the Lords amendment.—(Jo Churchill.)

Mental Capacity (Amendment) Bill [Lords]

(2nd reading: House of Commons)
(Money resolution: House of Commons)
(Programme motion: House of Commons)
(Ways and Means resolution: House of Commons)
Helen Whately Excerpts
Tuesday 18th December 2018

(2 years ago)

Commons Chamber

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Department of Health and Social Care
Norman Lamb
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18 Dec 2018, 6:10 p.m.

I am grateful to the shadow Minister for her intervention, because I was just coming on to the comments that Baroness Barker added on Third Reading. She said that although it had become better legislation, it was still

“highly deficient, but not as bad as it was.”—[Official Report, House of Lords, 11 December 2018; Vol. 794, c. 1247.]

That, Minister, is not a ringing endorsement of this legislation. That is why it is critically important that the Government do what they say they will and collaborate to improve it, because improvements are absolutely necessary. Our assessment will be at the end of the process: is it workable? Does it genuinely respect and safeguard individuals’ human rights? Does it result in very vulnerable people being better protected than they are under the existing, highly flawed system? On those tests will we decide whether to support the Bill on Third Reading.

My plea to the Minister is, as we have discussed, to meet us well before the Committee stage. Do not rush headlong into the Committee stage. I am alarmed that we are talking about that happening at the end of January, given what else is going on then. Be in no doubt that if we do not sort out the flaws that still exist, I will work with others across the House to make sure that the Bill is defeated on Third Reading, because the stakes are so important.

I want to end by highlighting some of the key issues that need to be sorted out. First, many viewed the impact assessment that was presented to the House of Lords as based on fantasy, even before all the amendments were made there. I understand that it is being updated, but it is really important that it is a credible and robust document and, critically, that, along with the impact assessment, the new system is properly resourced. If it is not properly resourced, people’s human rights will continue to be flouted.

Secondly, there needs to be a published equality impact assessment. There has not been one yet. That is not acceptable. The Government need to get on and publish anything that they have produced. If they have not done the work on it, they need to get on and do that.

Thirdly, there are continuing concerns about really important conflicts of interest of independent hospitals and care home managers, who will still carry out consultations. Independent hospitals, as I understand it, are still able to authorise the deprivation of liberty within the hospital. When financial interests are at stake, there will be those who behave badly and who are prepared to act to keep a bed filled to earn the money from that individual—the “cash cow”, as the shadow Minister suggested. That is why robust safeguards are absolutely critical.

Fourthly, we need a clear definition of the “deprivation of liberty”, and the Minister has indicated that that will be forthcoming.

Fifthly, there are the renewal periods. I understand—the Minister made this point to me yesterday—that we do not want a tick-box exercise when it is clear and obvious to everyone that the arrangements are in that person’s interest, but there is something very concerning about our moving in the opposite direction to what Simon Wessely’s review said should happen with regard to the Mental Health Act 1983, where we would see improved safeguards. Here, however, we are talking about a longer period between reviews and renewals, and that seems to me to be a real concern.

Sixthly, there is the interface with the Mental Health Act—please get this right, because if we legislate and repent later, it will be too late and people will lose out as a result. My final comment is: listen to us, talk to us and talk to the interest groups to make sure that we get this right.

Helen Whately Portrait Helen Whately (Faversham and Mid Kent) (Con)
- Parliament Live - Hansard - -

18 Dec 2018, 6:14 p.m.

It is a pleasure to follow the right hon. Member for North Norfolk (Norman Lamb), who has such expertise in this area and brought such valuable content to this debate as well as a valuable tone, which was very good to hear. I want to say a few things, first, in support of the Bill. As the right hon. Gentleman said, it is very important that we take a moment to reflect on the significance of getting this right.

Depriving someone of their liberty is a very significant act. Liberty is a fundamental right and freedom. We must take it seriously, and we must get this right. It is clear that the current system is not working. The fact that between 100,000 and 200,000 people are waiting because of an applications backlog is clearly unacceptable and cannot continue, given the consequences for individuals who have been deprived of the safeguards to which they are entitled, and the impact on their families and on care homes in which they may be residing.

Jim Shannon Portrait Jim Shannon (Strangford) (DUP)
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18 Dec 2018, 6:15 p.m.

Earlier today I had a chance to speak about this matter to the Minister and some of her officials. Is it the hon. Lady’s understanding that the issue of human rights has been included in legislation that has been endorsed by Age UK, the Law Commission and Simon Wessely? If that is the case, the action that the Minister and the Government are taking this year is right, because it brings everyone together and ensures that there is legislation that everyone in the House can support.

Helen Whately Portrait Helen Whately
- Parliament Live - Hansard - -

18 Dec 2018, 6:17 p.m.

The hon. Gentleman has made a good point about the support for the Bill. Some Opposition Members have suggested that there is not much support for it, but it is, in fact, widely supported. Yes, there are concerns, with which I shall deal shortly, but, as the hon. Gentleman has said, there is widespread support for improvements in the current system. Those improvements include simplification—less bureaucracy and fewer administrative burdens—and the critically important representation of individuals through the independent mental capacity advocates, which will give them a voice. The frequency of assessments will become more appropriate; as my hon. Friend the Member for Berwick-upon-Tweed (Anne-Marie Trevelyan) said earlier, timings can be inappropriate and excessively burdensome. There is a better choice of language: the Bill removes the term “unsound mind”, which is very stigmatising and completely unnecessary. I am also pleased that the Government have listened to the concerns expressed by some of my constituents about, for instance, potential conflicts of interests for care home owners when a financial interest may be involved.

However, I have three outstanding concerns. First, there is the question of how the amended Act will work for people with severe mental illnesses. The Bill clearly focuses on those who lack capacity because of, for instance, dementia, learning difficulties, autism or brain injuries, but, if I understand it correctly, it could be applied to people with severe mental illnesses. Figures suggest that the current Act is applied to a significant number of people in such circumstances. We know that such illnesses—bipolar disorders, for example—are likely to fluctuate, and that as a result people’s capacity may also fluctuate. That could cause them to be detained and deprived of their liberty when, in fact, they have regained capacity. The Minister in the Lords, Lord O’ Shaughnessy, gave a commitment that that would be addressed in the code of practice, but may I press this Minister to ensure that there are sufficient safeguards in the Bill?

Norman Lamb
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Does the hon. Lady agree that, given the cohort that could be covered by both pieces of legislation, it is particularly important that the approach be consistent?

Helen Whately Portrait Helen Whately
- Parliament Live - Hansard - -

18 Dec 2018, 6:19 p.m.

I completely agree, and that relates to my second concern, which others have mentioned and which relates to the interaction between the Bill and the 2005 Act. In his review, Sir Simon Wessely suggested that there should be a new dividing line between the two. I hope the Minister will explain how that will work.

My third concern is whether the Bill will address a situation that I suspect many of us have encountered, when elderly people are locked into their homes. When I have been knocking on doors, I have sometimes been told, “Do not knock on that door, because the lady there has been locked in by her family, and she becomes very distressed and upset if someone rings the doorbell because she cannot answer the door and she does not understand why.” This is clearly a completely inhumane way to treat people, but it is happening. People are being detained at home without appropriate safeguards for their safety as much as anything, so I ask the Minister to say whether the Bill can address this problem, or are there any other steps we might take to deal with the issue of people being inappropriately locked in at home and deprived of their liberty?

I appreciate the spirit in which this Bill has been presented to this House, and the willingness of the Government to listen, as they have already shown as the Bill has been going through the Lords. I have listened to Opposition Members, but think there is widespread support for the Bill among interest groups and experts. I look forward to the Government continuing to listen and improve the Bill so that we have a better system sooner rather than later.

Rosie Winterton Portrait Madam Deputy Speaker (Dame Rosie Winterton)
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Order. I am anxious to make sure everybody gets in so I must now reduce the time limit to five minutes.