Mental Capacity (Amendment) Bill [HL]

Lord Hunt of Kings Heath Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 27th November 2018 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

140: After Clause 3, insert the following new Clause—
“Requirement before commencement: consultation
Before any provisions of this Act other than those which come into force on its passing can come into force, the Secretary of State must publish a report listing the names of organisations consulted by the Government in preparation of the Mental Capacity (Amendment) Bill since 13 March 2017.”

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have three substantive amendments in this group, Amendments 140, 141 and 143. Amendments 145, 146 and 147 are linked to and consequential on the first three.

Amendment 140 states that before the Act comes into force, the Secretary of State should publish a report listing the names of organisations consulted by the Government since March 2017 in preparing the Bill. I am very surprised that the Government have refused to list the organisations they consulted. I understand they refused an FoI request because it would be too expensive, which is difficult to understand. I think the Government and the Department of Health and Social Care are clearly embarrassed about the consultation they undertook. It was clearly one of those selective consultations, and I am afraid it reflects the rushed nature of the Bill.

The Law Commission undertook extensive work and published a draft Bill. Instead of discussing that with stakeholders and having the proper pre-legislative scrutiny for a mental capacity Bill, the Government essentially cherry picked the Law Commission Bill, did a rushed consultation, ended up in trouble and have now had to produce a load of amendments to try to put the Bill as right as possible.

I am grateful to the Minister and his officials for what they have done, but I do not think anyone believes this is a good Bill that will work in practice. I am sure the reality is that another Bill will have to be produced when it is found that this Bill, too, cannot be implemented effectively in the field, for all the reasons we have suggested. A Bill in this kind of area, particularly when it starts in the House of Lords, cries out either for pre-legislative scrutiny or at least—as the noble Lord, Lord Norton, has suggested on a number of occasions—a Select Committee process to engage with stakeholders and question officials before it reaches Committee in your Lordships’ House. It is a matter of regret that this did not happen. I am sure this will come up again in the Commons, and I still think we ought to know for the record which organisations were consulted on the Bill.

Amendment 141 relates to outstanding applications under the current legislation, which I raised in Committee. We are told that the reason for the Bill is the huge backlog of applications that have not been dealt with at all. The question is: what will happen to them? In Committee, the Minister said that,

“existing DoLS authorisations can continue until they are due for renewal or review”.—[Official Report, 22/10/18; col. 758.]

I well understand that; it is sensible. When they come up for review or renewal, they will then need to be dealt with under the provisions of this Bill, once it is enacted. But I want to know what will happen to the tens of thousands of applications that have simply not started. Because they have not been started, will they have to be dealt with under the existing legislation, or, if not, how will the sector cope with these thousands of applications under the new system?

All evidence suggests that, when you start a new process and then immediately put on to it all the people who have not been through the old process, it leads to chaos, because the system cannot handle it. I have mentioned my wonderful experience as Minister for the Child Support Agency. Mrs Thatcher invented the CSA, thinking she could reduce benefit payments because, in essence, benefits were being paid in circumstances where people were not paying maintenance to their partner who was looking after the children. She had the great idea that, by bringing in the CSA and making everyone on benefits go through the system, suddenly a lot of money would be produced. Of course, what it produced was absolute chaos. On the vesting day, everyone who was claiming benefits in those circumstances was immediately expected to come on to the system. I want to make sure that we avoid a similar situation here—as well as wanting to share with noble Lords a second time my angst with the CSA.

Amendment 143, my third in this group, relates to the code of practice. We have talked about this code on many happy occasions during our debates. Will the Minister explain how he sees the timing for the code, and confirm that it will have to be laid before Parliament? Finally, I hope the Minister will accept my amendment. He has put so much emphasis on the importance of the code; surely it should be approved by affirmative rather than negative resolution. I know that the Minister has given quite a bit on this Bill recently; I hope he might just give on that. I beg to move.

--- Later in debate ---

[Lord O'Shaughnessy]

That would be correct at the point at which it came before the House, but it would be published for consultation before then. There will be an opportunity for everybody—noble Lords, Members of the other place and stakeholders—to consider a draft and to recommend changes. The final product would be laid before Parliament.

We discussed the Mental Health Act review a little bit last week. We await its conclusions. Many of us have had conversations with Sir Simon Wessely about what it is likely to conclude, and about the interaction between the Mental Health Act and the mental capacity Bill when enacted. Since we are expecting its recommendations in the middle of next month—I think the scheduled date is the 12th—we will have an opportunity to consider the review’s recommendations before we move to the new system. Indeed, given that those recommendations will be out at about the time the Bill moves to the Commons, they will clearly be the subject of debate there. The Government will need to respond to those findings as we go through the Commons stages.

Amendments 143A and 147A, tabled by the noble Baroness, Lady Thornton, would require the Government, before the new system could come into force, to conduct public consultation on the Act with vulnerable people and other stakeholders and publish a report on its findings, as well as to publish their response to the Mental Health Act review and an equality impact assessment. I hope that I have dealt with the issue of public consultation, as well as consultation on the code and, equally, on the Mental Health Act review. The noble Baroness is quite right to bring the equality impact assessment to the House’s attention. It was prepared prior to introduction and required amendment following input from the Welsh Government. It will now need to be amended further to reflect the changes made in the Bill. I can commit to publishing the equality impact assessment before the Bill makes it to the Commons so that there will be ample time for consideration before it is debated there.

If the House will allow me, I will finish by thanking all noble Lords for their perseverance and patience during a sometimes difficult and challenging debate. We know that we all want to achieve the same end to our journey; there has been disagreement at times on the right way to get there. I am deeply grateful to all noble Lords for their contributions. The Bill has been immeasurably improved already in its passage through this House. That is a very good thing in itself and will have a very positive impact—notwithstanding the slightly gloomy prospect given by the noble Lord, Lord Hunt—when it goes to the other place and on to implementation.

Once again, I extend my sincere gratitude to all noble Lords. I hope that I provided reassurances on the amendments in this group and that they will feel able not to press their amendments.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the Minister. After such an uplifting response from him I do not want to drag us down again into negative thinking as we move on to Third Reading. I will just say that the problem with selective consultation is that it disfranchises some key respondents, and the problems we had over the summer were a consequence of that; it is a lesson to be learned for the future. I am grateful for the information about the work that has been done on the backlog. It will be important that the sector is clear as to which application falls under which part of the law. It is also very good that we will see the draft code in good time. Will the Minister arrange a briefing for noble Lords, rather than just going through a formal process? That would be extremely helpful.

Finally, Sir Simon Wessely’s review is clearly very important. It is obviously important that there be consistency, and the only thing I would say is that there are lessons for all of us for a future Bill in the way this Bill has been dealt with. There is no doubt in my mind that the issues raised by Sir Simon’s review lend themselves to pre-legislative scrutiny. Pre-legislative scrutiny is not fashionable any more, but my experience with the Mental Health (Amendment) Bill 2007 suggests that it doesn’t half pay off in terms of coherent legislation.

With that, I am very grateful to the Minister for his very full response and I beg leave to withdraw the amendment.

Amendment 140 withdrawn.