Mental Capacity (Amendment) Bill [HL]

Lord Faulkner of Worcester Excerpts

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

I also suggest to the Minister that, in the light of our discussion last week, another issue is germane to this. I thank the noble Baroness, Lady Stedman-Scott, for clarifying that the Bill as it stands means that decisions about somebody’s capacity will include risk to others. Under the Mental Capacity Act, best interest decisions are really about the risk to self. It is therefore highly likely, again, that decisions will be made under this legislation which could—and potentially should—be made under the Mental Health Act. It is perhaps the case that this legislation will confuse things and it may well increase the Bournewood gap; it certainly will not decrease it but there is a severe chance that it will increase it. For all those reasons, I believe that the interaction of the Bill with the Mental Health Act really needs some thorough researching and I look forward to some robust answers from the Minister.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

I must advise the Committee that if this amendment is agreed to, I cannot call Amendment 56 for reasons of pre-emption.

[Baroness Tyler of Enfield (LD)]

My Lords, I support what my noble friend Lady Barker said about this important set of amendments. Briefly, they look at the interaction between the Mental Capacity Act and the Mental Health Act, which has not been properly thought through at all in how the Bill has been brought forward. The amendments focus in particular on people with fluctuating conditions. We have had a bit of discussion about such people but not nearly enough to understand what the real implications will be for people who may have a severe mental illness that fluctuates. They may have a range of other physical conditions requiring treatment and care. There may be times when they are in a position to give consent to treatment and times when they are not. We really need to think much more about how that is to be dealt with in the new system.

My concern, if I may summarise it, is that this complex interaction between the two Acts will result in a two-tier system, with a considerable imbalance in rights and safeguards between the regimes of the Mental Health Act and the Mental Capacity Act. To pick out one example, I understand that under the Mental Capacity Act everyone is entitled to make a legally binding advance decision to refuse various future medical treatments, but that decision can be overridden under the Mental Health Act in most circumstances. It is complicated. There are people covered by both Acts; it is not a question of having the Mental Health Act and people covered by it over here and having the Mental Capacity Act and people covered by that there.

We really need to think this through and satisfy ourselves that any new system deals with that and, frankly, makes the most of the opportunity to streamline these regimes, in particular to take account of people who are covered by both. I would be particularly pleased if the Minister, in responding, would say something about the needs of people who are severely affected by mental health issues and whose capacity may fluctuate, and about how that has been taken into account in the drafting of the Bill.