Mental Capacity (Amendment) Bill [Lords]

Lindsay Hoyle Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 12th February 2019 Commons Chamber

[Chris Bryant (Rhondda) (Lab)]

I beg to move amendment 1, page 5, line 10, at end insert—

“(3A) Before making any regulations under subsection (3)(b), the Secretary of State must lay before Parliament a report on—

(a) the likely effects of the provisions of this Act on persons undergoing rehabilitation for brain injuries, and

(b) the interaction between the provisions of this Act and the processes for prescribing for brain injury rehabilitation therapy.”

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

With this it will be convenient to discuss the following:

Government amendments 5 to 32.

Amendment 2, in schedule 1, page 15, line 24, at end insert—

“(d) the effects of any treatment undergone by the cared-for person, including prescription brain injury rehabilitation therapy.”

Government amendments 33 to 37.

Amendment 49, page 16, line, leave out from “out” to the end of line 16, and insert

“by the responsible body.”

This amendment would require the responsible body to carry out the consultation in all cases.

Government amendment 38.

Amendment 50, page 17, line 13, at end insert—

“(ca) the arrangements are being authorised under paragraph 16 of this Schedule, or”

This amendment would require an AMCP to review all cases where the responsible body is authorising arrangements based on a statement provided by a care home manager.

Government amendment 39.

Amendment 48, page 18, line 21, at end insert—

“Authorisation charges

24A No charges may be made in relation to the steps taken in determining whether the responsible body may authorise the arrangements for the cared-for person.”

Amendment 3, page 18, line 35, at end insert “or

(c) at the end of a period of prescription brain injury rehabilitation therapy undergone by the cared-for person.”

Amendment 4, page 20, line 4, after “met” insert

“taking into account any treatment to be undergone by the cared-for person, including prescription brain injury rehabilitation therapy.”

Government amendments 40 to 46.

Amendment 51, page 23, line 1, leave out paragraphs 39 and 40 and insert—

“39 (1) The responsible body must appoint an IMCA to represent and support the cared-for person if–

(a) one or more of sub-paragraphs (2), (3), (4) or (5) applies, and

(b) sub-paragraph (6) does not apply.

(2) The cared-for person makes a request to the responsible body for an IMCA to be appointed.

(3) The responsible body has not identified an ‘appropriate person’ to support and represent the cared-for person in matters connected with the authorisation.

(4) The responsible body has identified an ‘appropriate person’ to support and represent the cared for person in matters connected with the authorisation, and they have made a request to the responsible body for an IMCA to be appointed.

(5) The responsible body has reason to believe one or more of the following—

(a) that, without the help of an IMCA, the cared-for person and any appropriate person supporting and representing them would be unable to understand or exercise one or more of the relevant rights;

(b) that the cared-for person and any appropriate person supporting and representing them have each failed to exercise a relevant right when it would have been reasonable to exercise it;

(c) that the cared for person and any appropriate person supporting and representing them are each unlikely to exercise a relevant right when it would be reasonable to exercise it.

(6) The cared-for person objects to being represented and supported by an IMCA.

(7) A person is not to be regarded as an ‘appropriate person’ to represent and support the cared-for person in matters connected with this schedule unless—

(a) they consent to representing and supporting the cared-for person,

(b) they are not engaged in providing care or treatment for the cared-for person in a professional capacity,

(c) where the cared-for person is able to express a view about who they would like to represent and support them, the cared-for person agree to being represented and supported by that person,

(d) where the cared-for person is unable to express a view about who they would like to represent and support them, the responsible body has no reason to believe that the cared-for person would object to being represented and supported by that person,

(e) they are both willing and able to assist the cared-for person in understanding and exercising the relevant rights under this Schedule, including with the support of an IMCA if appropriate.

(8) The ‘relevant rights’ under this schedule include rights to request a review under Part III of this Schedule, and the right to make an application to the court to exercise its jurisdiction under section 21ZA of this Act.”

This amendment would broaden the provision of advocacy, ensuring that advocates are provided as a default unless the cared-for person does not want one.

Government amendment 47.

[Chris Bryant]

I will speak to amendment 1 and the three other amendments in my name and the names of several colleagues.

I want to start with enormous praise for the national health service, which in many cases makes the key decisions on everything that we will talk about today. Sometimes those are very difficult decisions, including for families, and they need to be managed with care and sensitivity. Ensuring that we have the right law in place to enable clinicians to make the right decisions is vital. I was on the Public Bill Committee for the Mental Health Act 2007 under the Labour Government, and I remember many of the rows and difficulties then. Ensuring that legislation fits the complicated circumstances of real life is not all that easy, and in particular, the definition of what might be proper treatment is not readily come by.

Often lobbyists get a really bad press. My experience of lobbyists in this field is entirely positive, including those working for the pharmaceutical industry, who do an amazing job in providing new drugs that can save people’s lives and manage their conditions much better, and the many charities in this field. When lobbyists are decried, I sometimes want to point out that they play an important part in ensuring that Members of Parliament know exactly what they are doing when it comes to legislation.

All the amendments that I have tabled relate to acquired brain injury. I am aware that several other colleagues who are members of the all-party parliamentary group on acquired brain injury are here today. I do not want to make an apology for that, but I want to explain why I have tabled these amendments. It is partly because I believe that acquired brain injury, though recognised and understood by some, is something of a hidden epidemic in Britain.

Something like 1.4 million people in this country are living with an acquired brain injury. A new person presents at accident and emergency with a brain injury every 90 seconds. Many of these injuries have lasting effects that are completely invisible to an ordinary member of the public. For instance, the person standing in front of us in a queue who is being difficult might look as if they are drunk or just being difficult, but they may have a brain injury. We would have no idea, and the person feels trapped and finds the situation as difficult as we do. The more we come to an understanding of acquired brain injury in this country, the better.

There are many different causes of brain injury, including road traffic accidents, accidents about the home and stroke. One cause that has been brought home to me recently is carbon monoxide poisoning. Not only the high level of carbon monoxide poisoning that follows an incident, but a sustained low level of carbon monoxide due to poor central heating systems or facilities or something like a Calor gas burner in a home, can end up causing a long-term brain injury. This particularly affects some of those who live in the worst housing in the land, and who are the poorest and least able to afford, for instance, to have their boiler mended or assessed every year.

--- Later in debate ---

[Chris Bryant]

My hon. Friend makes a very good point. One of the things about rugby league and about rugby union, which I know rather better, being from south Wales—[Interruption.] I do not think it is parliamentary to tut-tut from the Chair, Mr Deputy Speaker, if you don’t mind my saying so. The truth is that many of the players today are bigger, stronger and faster, so the impacts may be much more significant than they were in the past. Curiously, when we watch some of the commentary on Twitter and Facebook about matches, we see a kind of rejoicing in the physical pain that people are going through, and I think we really need to roll that back. We need to roll that back so that we are actually caring about the players. Quite often the players themselves will be desperate to go back on. It should not be the player who makes that decision; it should be an independent doctor who makes it. [Interruption.] I think you want to intervene on me, Mr Deputy Speaker.

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

The tut-tut was to say that the hon. Gentleman would benefit from knowing both types of rugby. The only thing I would add, just to help his case, is that in rugby league a player is taken off for a full assessment by a doctor and not allowed back on. That is the benefit on which rugby league is leading the sport.

[Chris Bryant]

I am glad I took that intervention. It is unusual to get an intervention from the Chair, but I think we welcome this new style of chairing.

[Mr Deputy Speaker]

It was a clarification.

[Chris Bryant]

I am tempted to make a point of order! No—you are absolutely right, Mr Deputy Speaker.

The key thing is to have the same protocols for all sports, so that there is the same protection. A child might play rugby league one year and rugby union the next; if there are different protocols, that will undermine the whole system. Incidentally, the point also applies to a whole range of other sports—hockey and ice hockey, as well as American football, in which there is growing interest in the United Kingdom. We should not let the issue be led by litigation, which is what has happened in the United States of America: we should let it be led by the medical science, which is rapidly changing.

--- Later in debate ---

[Several hon. Members rose—]

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

A lot of people want to speak, but we have to finish at 6 o’clock, so we only have 90 minutes.

--- Later in debate ---

[Several hon. Members rose—]

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

The opening two speeches have taken 55 minutes, and we have to finish at 6 pm. I recognise that a lot of other people want to speak, and I certainly do not want to put pressure on the Opposition spokesperson, who also wants to make a speech. When other people come in, please remember that we want to get through everybody.

[Barbara Keeley]

We should not be in this position of having less than two hours on Report. This Bill has been rushed. We were in the same position on Second Reading, and it is absolutely unacceptable for such an important Bill to be rushed through as it has been today. I spoke to the Minister about this yesterday. She could have chosen to bring the Bill back on a different day, and I am sorry that she has not.

I am every bit as concerned about this Bill as I was on Second Reading. It remains deeply flawed. It weakens the current safeguards for people who lack capacity, and we have not even had a clear answer to the question that the hon. Member for Totnes (Dr Wollaston) just asked about the current backlog of DoLS applications. It is not clear how that will be cleared.

The Minister said at the start of Committee that she would work constructively with other parties on this Bill, but that has not been reflected in our experience. She has dismissed many of the serious concerns raised both by Opposition Members and by the many charities and representative groups outside the House with an interest in the Bill.

I said in Committee that our amendments were the bare minimum required to ensure that the Bill is fit for purpose. The Government rejected all our amendments in Committee, and, despite some movement on one or two issues since, the Bill retains the majority of the significant flaws it contained on Second Reading. It is sad that, having been through all the stages, this is where we are.

We have tabled further amendments to address some of the glaring holes that remain in the Bill, and I thank all the stakeholders who have helped us, including the Alzheimer’s Society, VoiceAbility, Mencap and Lucy Series. Without these amendments, we simply do not believe that the Bill is fit for purpose, and we oppose it progressing further.