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

Debate between Helen Whately and Paul Williams

Thursday 17th January 2019 Public Bill Committees

[Dr Williams]

I thank my hon. Friend for referring to the Law Commission’s recommendations.

I am sure that the Government will argue that the substance of the amendment will be reflected in the code of practice, but it is so important and so fundamental that it needs to be reflected in the Bill. Obviously, somebody may well have the capacity to consent to different decisions. Capacity is not just assessed over a period of time; assessments depend on the decision that somebody is going to make. Somebody may well have the capacity to decide whether they want tea or coffee, but may not have the capacity to decide all the time whether they consent to their deprivation of liberty.

Anyone who has ever spent any time with somebody who has capacity issues—we are usually talking about people who have a dementia, as the majority of people who have fluctuating capacity, though not all, have a dementia—will know that people have good and bad days. Sometimes people have good and bad hours. It is common for someone to say, “She was bright and sharp this morning,” or, “He’s not quite himself tonight.”

Acute illness can affect capacity, but so can sleep, stress and nutrition. The very nature of memory issues means that people fluctuate in and out of having capacity sometimes. In the same way, many physical issues have a fluctuating nature. People with arthritis have good and bad hours, and good and bad days. Rheumatoid arthritis is typically worse in the mornings.

The amendment is fundamental because the assessments of capacity that are made as part of the authorised deprivation conditions are likely to determine the length of the liberty protection safeguard. At the least, they may be one of the important determinants of the length of the safeguard—possibly the most important. In deciding how long the safeguards should apply, it is imperative to know whether someone has fluctuating capacity. As I have indicated, that might require more than one assessment of capacity.

[Helen Whately]

I spoke about my concerns about fluctuating capacity on Second Reading. The hon. Gentleman just mentioned that in these discussions, we usually think about someone with dementia, but it has been flagged to me that sometimes the Mental Capacity Act has been used to detain people who have other serious mental health conditions—not necessarily just dementia. Those conditions very much fluctuate, too. It is important that the Bill addresses the fluctuating capacity of people with serious mental illness if they might be detained under the Bill. I am keen for the Minister to respond on that point.

[Dr Williams]

The hon. Lady’s words are wise. The fact that people’s capacity is likely to fluctuate makes them uniquely vulnerable to the wrong decisions being made about them.

My assessment is that it is better to err on the side of caution. People with fluctuating capacity are likely to need regular review. The liberty protection safeguards are likely to be put in place for shorter periods. Unless that assessment of fluctuating capacity is mandatory and put front and centre of the decision-making process about the length of the safeguard, there is a risk that the wrong decisions will be made. For that reason, I support amendment 32 as a fundamental requirement to assess whether the cared-for person’s capacity is likely to fluctuate.