Mental Capacity (Amendment) Bill [HL]

Lord Woolf Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Baroness Murphy]

I really struggle to understand where these gaps might fall. For example, these people who have brain damage, which gives rise to a mental disorder, or people who have transient episodes of epilepsy, which might lead to some fugue state—would they not also be included in mental disorder, under the definition suggested by the noble Baroness, Lady Tyler? I cannot see where these gaps might arise. Have they been identified by psychiatrists? If we look through the Diagnostic and Statistical Manual of Mental Disorders, or the International Classification of Diseases, if you prefer, I cannot understand where these gaps might arise.

[Lord Woolf (CB)]

If the real purpose is to ensure protection under the Human Rights Act for those we are concerned about, has the Minister considered whether that might not be achieved merely by stating that the category of people we are looking at should have the benefit of the relevant section of the Human Rights Act? When I say the Human Rights Act, I mean the convention.

[Baroness Barker]

The Human Rights Act was in force when the Mental Capacity Act was being debated. During the passage of that Act we considered very carefully what language we should use. Is the Minister saying that we got that wrong, and have there been cases of people who have fallen into the gap? If so, how many are there, and can he give the evidence by which the Government arrived at the conclusion they have now?

--- Later in debate ---

[Lord O’Shaughnessy]

I am glad that we have had a subsequent opportunity to discuss this. I would like once again to restate that I personally, and government Ministers, officials and others, do not find this comfortable language. I know that the noble Baroness, Lady Watkins, did not mean it this way, but this is absolutely not a case of trying to take us back to the 1950s. In proceeding with this legislation, we have to make sure that people who currently get protection do not lose it. I know that we all agree that we do not want that to happen. If you like, that is the goal; the law is the means, if I may say so to the noble and learned Lord, Lord Woolf. The key is making sure that we have the terminology that will reflect that we do not want people falling through the gap. It is perfectly reasonable to ask, “What is the nature of this gap?”

The Court of Appeal in G v E said that a gap would arise. Our understanding and advice from lawyers is that current case law indicates that there might be individuals—I do not have specific details of the kind of conditions from which those people might be suffering. It is worth pointing out that the Court of Protection also uses the term “unsound mind” at the moment. It is a term that is clearly operable in a legal context but which has become inoperable in a medical context. That is the challenge we face and which we have explored in this discussion and at Second Reading.

We have given this very careful consideration. We need to be incredibly conscious of not creating that gap. However, I also understand that noble Lords would like to see more evidence of two things. First, there is the reality of the gap: who, what kinds of people and what situations? That is a perfectly reasonable thing to ask. Secondly, has there been further exploration of alternatives to what we all agree is an outmoded and regrettable phrase? I am absolutely prepared to commit to do that between now and Report, because I share noble Lords’ intentions that we should make sure both that we move with the times and that we do not remove protections from people currently entitled to them, or who would have been entitled to them, in the future. On that basis, I hope the noble Baroness might be prepared to move on from her starter for 10 and withdraw the amendment.

[Lord Woolf]

In the list of people whose help the Minister is going to seek, may I suggest that parliamentary counsel be invited to consider whether it is possible, through the use of language in the Bill, to ensure that there is no gap?

[Baroness Tyler of Enfield]

I am grateful to the Minister for his response, particularly the last bit, which I found a tiny bit more reassuring. I thank everyone who has contributed. It has been an excellent short debate and we have benefited hugely from highly distinguished medical and legal expertise.

I understand that the Minister may have concerns around risks and gaps, but we need—and he has agreed to bring forward—examples and evidence of what these gaps and risks are and why they could not be dealt with by language that is perhaps slightly different from that which I proposed. There is a huge opportunity to be seized here. I have made it very clear that the wording I propose may well not be quite right. I am sure that others could come up with better wording that meets the Minister’s concerns, which I understand are legitimate. I am grateful that he said he will think further and come back with further evidence. I should like to put down a marker that I will wish to return to this on Report.

--- Later in debate ---

[Baroness Thornton]

I have added my name to the amendment tabled by the noble Baroness, Lady Jolly, precisely because I thought we needed to have this discussion. That was exactly right. I would hate to choose between the two amendments, but this sets out when deprivation of liberty occurs:

“Arrangements that give rise to a deprivation of … liberty”,


are when the cared-for person is placed,

“under continuous supervision and control”,

they are “not free to leave” and the responsible body believes that it is in the cared-for person’s “best interests”. That is worth putting on the face of the Bill if at all possible.

The Joint Committee on Human Rights made a strong argument in favour of a statutory definition. I read its report and it seems absolutely right that that is what we should do. I would be interested to hear what one of the lawyers in our midst might have to say about this: whether they think that it would be a useful thing to do and whether the stabs we have made at it so far are helpful. We are interested in this discussion but we realise that this is the beginning of the discussion rather than something that may be appropriate right now.

When listening to the noble Baroness, Lady Finlay, talking about her amendment, it occurred to me that this is one of those occasions when technology is important. When you have an emergency admission, you need to be able to input the name of the person into a PalmPilot, which will tell you whether a DoLS is already in place and whether a do not resuscitate order has been made. Recently I have had experience of exactly this situation with a family member. Because the information was not readily available in an emergency, we ended up where we did not want to be. I just add that to the debate because I know that the Minister and his boss are very interested in technology and its uses in the health service. This is another of those occasions where it might be useful.

[Lord Woolf]

Perhaps I may respond by giving one lawyer’s view on the matter referred to by the noble Baroness, Lady Thornton. I should put on the record that I am a member of the Joint Committee on Human Rights and therefore was a party to the report, and of course I support it.

When the opportunity arises to deal with a situation where it is clear that a decision of the Supreme Court has had consequences which may never have been anticipated, it would sometimes be helpful if the judges had the opportunity to look at the matter again. If the sort of steps so ably advocated by the noble Baroness, Lady Murphy, were taken, I would suggest that serious consideration should be given to them as they could have a beneficial effect from the pragmatic point of view as well as on the point of principle.

I am sorry, but I ought to have added that I have a relative who could be affected by this legislation, and I declare that.

[Lord O’Shaughnessy]

I am grateful to all noble Lords who have spoken to their amendments, which have produced this discussion on the application of the liberty protection safeguards. Indeed, the noble Baroness, Lady Murphy, said that this goes to the heart of why we are here in the first place. I know that she has long-standing concerns about the DoLS system both in its application and the scenarios where it may or may not be appropriate, to whom it should best be applied and so on. I know that that is what has motivated her attempt in this amendment. She and others, including the noble Baroness, Lady Thornton, have said that this is the start of a process.

The first amendment in the name of the noble Baroness addresses the circumstances in which the authorisations could be given in a care home or supported accommodation environment, and people deprived of their liberty as interpreted in the Cheshire West case. As the noble and learned Lord, Lord Woolf, pointed out as a member of the committee, the Joint Committee on Human Rights has recommended introducing a statutory definition of the deprivation of liberty in its report The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards. I can tell him and all noble Lords that we are considering its findings closely. Many noble Lords have expressed a desire, whether in the form set out in the amendments in this group or otherwise, to explore the possibility of including a statutory definition in the Bill. Following this discussion, that is something I should like to consider further. It is worth stating, however, that there are risks in doing so because it means that to change a definition requires primary legislation. Noble Lords are much more knowledgeable about and aware of those risks than I am, but nevertheless it is something that warrants further consideration.

I am also sympathetic to the sentiment expressed by the noble Baroness, Lady Murphy, about the state involving itself unnecessarily in family and private life while also being mindful of making sure, as we all are, that individuals are not denied the safeguards they need and that we are complying with our obligations under Article 5 of the ECHR. The effect of her amendment would be to limit the circumstances in which arrangements giving rise to deprivation of liberty in a care home or in supported accommodation can be authorised under the liberty protection safeguards, but of course that would mean that such arrangements would still have to be authorised by the Court of Protection. We have already discussed how that can be burdensome and expensive for families. It is for that reason that domestic arrangements were included in the deprivation of liberty safeguards. Given that, while in general I would like to have a further discussion around definitions, there is a problem with the definition that the noble Baroness has provided because of its application in that case.

Mental Capacity (Amendment) Bill [HL]

Lord Woolf Excerpts

Report: 1st sitting: House of Lords
Wednesday 21st November 2018 Lords Chamber

[Lord Woolf (CB)]

My Lords, I am very grateful for the expectation about my contribution to this debate, which the noble Baroness, Lady Tyler, just referred to. I am only too conscious that I shall disappoint her, but I will do my best.

First, I must disclose an interest. I have a relative whom the Bill may affect. I am also a member of the Joint Committee on Human Rights. The noble Baroness, Lady Tyler, was quite right in everything she said about the committee’s report, which has something useful to say in connection to this. I hope the Minister will agree with that. I see him nodding his head and telling me that it is so.

I shall focus on the second amendment proposed by the committee, which supplements the one moved by the noble Baroness, Lady Tyler. It is designed to limit the unintended harm caused as a consequence of the Cheshire West case, which is not easy. That harm takes two forms: first, it has resulted in a huge increase in the number of people who will be caught by the Bill; secondly, it means that people who do not need the precise benefits normally available to those in their position are dragged into that protection to their disadvantage.

I shall try to describe the persons concerned. They are people who have problems that would fall within the context of the Bill, but are residing, possibly in their home or some other institution, somewhere where they are perfectly content and well looked-after. There is no problem in their case. I do not think it necessary to expand the burdens on the Treasury caused by people in their condition by including them, unless it can be shown that there is a real necessity. Although the language of the amendment proposed by the committee, to which I am speaking, is complex, if one reads it carefully it does not give rise to any difficulties, but it could have the ameliorating effects to which I have referred. For those reasons and those the noble Baroness has given, I commend this amendment.

[Baroness Finlay of Llandaff (CB)]

My Lords, I should like to comment on these amendments. Before I do that, I thank the Minister on behalf of everyone for listening, as well as for his willingness to meet Peers and to move on the things that had caused enormous concern to many of us.

I have a couple of concerns regarding these amendments. I commend the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for trying to get us back to a definition. I completely agree that if we do not have a definition, the matter will go to court and we will end up back in a circle that we do not want to be in. The problem I see is the non-negligible period, which will be really difficult to define. If somebody is in a confined space for even 10 minutes or a quarter of an hour, that could be absolutely terrifying for them and completely unjustifiable. We have a difficulty in trying to use time as a measure, but I understand why it is there as well.

In his amendment, the noble and learned Lord, Lord Woolf, certainly includes the principle of consent, which means that there should be information that the person has capacity and that their care and treatment are voluntary. I was a little worried, however, that his proposed new paragraph 2(1B)(d) in the amendment, which would require two clinicians to confirm in writing, rather ran counter to the principles set out in Part 1 of the Mental Capacity Act itself, Section 1(2) of which states:

“A person must be assumed to have capacity unless it is established that he lacks capacity”.


It almost turns itself on its head if you must have somebody to verify that they have capacity.

I note that in his letter to us, the Minister stressed the importance of supporting liberty as much as possible and valid consent wherever possible. Would the Minister be prepared to say that we can work on this between now and Third Reading? If we can reach a definition that seems right by then, we will have done the whole community a great service.

[Lord O’Shaughnessy]

My Lords, I am more than happy to do so. I express my gratitude to the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for tabling their amendments and for precipitating this incredibly important debate. As has been set out, Amendment 2, moved by the noble Baroness, Lady Tyler, states that the liberty protection safeguards apply only to,

“arrangements which give rise to the deprivation of the cared-for person’s liberty”,

when,

“the cared-for person is subject to confinement in a particular place for a not negligible period of time … and … the cared-for person has not given valid consent”.

The amendment explains that someone is confined when they are,

“prevented from removing himself or herself permanently … and … the dominant reason for the deprivation of liberty is the continuous supervision and control of the cared-for person, and not treatment for their underlying condition”.

Amendment 4, tabled by the noble and learned Lord, Lord Woolf, also states that a deprivation of liberty for the purposes of liberty protection safeguards is where,

“the cared-for person is subject to confinement in a particular place for a not negligible period of time … and … the cared-for person has not given valid consent to their confinement”.

The amendment goes on to define “valid consent”, stating in particular that valid consent has been given when,

“the cared-for person is capable of expressing their wishes and feelings … has expressed their persistent contentment with their care and treatment arrangements … there is no coercion involved in the implementation of the … arrangements”,

and it is,

“confirmed in writing by two professionals, one of whom must not be involved in the implementation of the cared-for person’s … arrangements”.

The intention behind the amendments is to create a statutory definition of the deprivation of liberty, as has been discussed. I note that the amendments were influenced by the work of the Joint Committee on Human Rights, which I both applaud and welcome. We are aware, and the Law Commission’s consultation confirmed, that there is real confusion on the ground over the application of the so-called acid test and determining whether a person has been deprived of their liberty. In some cases, that has led to blanket referrals and applications for authorisations being made where there may be no deprivation of liberty at all.

As the noble Baroness, Lady Thornton, pointed out, I promised to think about this issue and we have given it a great deal of thought. Like other noble Lords, we have reached the conclusion that deprivation of liberty should be clarified in statute. However, we want to get the definition right and make sure that it is compatible with Article 5 of the ECHR. I agree that the aims of the amendments are laudable. As I said, the Government support providing clarity in the Bill. However, as I am sure all noble Lords appreciate, this is a complex and technical issue, and we have to make sure that any amendment is compliant with Article 5.

The noble Baroness, Lady Thornton, pointed out one particular concern around the use of the term “not negligible … time”. The point I want to make is much more technical, but it serves to introduce how difficult this issue is. I hope noble Lords will bear with me as I explain it; it is incredibly important. We believe that the amendments tabled by the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, would not have the intended effect of defining deprivation of liberty, but would instead limit the application of liberty protection safeguards to those who fall within the respective definitions.

Section 64(5) of the Mental Capacity Act defines “deprivation of liberty” as having the same meaning as in Article 5. The definitions in the amendments would not change this. Deprivations of liberty that fall outside those definitions would still be deprivations of liberty under Article 5, and would still need to be authorised in accordance with Article 5. However, because the liberty protection safeguards would not apply, authorisation would instead need to be sought in the Court of Protection, which, as we know, can be a cumbersome and distressing process for persons and their families, and would have significant cost implications for public bodies and the court system

Furthermore, the amendment tabled by the noble and learned Lord, Lord Woolf, although closely resembling the proposal put forward by the JCHR, also seeks to determine what valid consent would mean, and we are worried that that would not work in the way intended, because the definition is very broad. Its consequence could be that a significant number of people currently subject to DoLS authorisation would be caught by the definition and excluded from the liberty protection safeguard system, and tens of thousands of people might need to seek authorisation from the Court of Protection. Again, I do not believe that anyone would want to see that outcome. I notice that the noble and learned Lord is shaking his head, so clearly there is some disagreement on this point. I use it, however, to illustrate that there is a concern that we get this right.

[Lord Woolf]

I was shaking my head because I do not want to see what the Minister suggested might be a consequence.

[Lord O’Shaughnessy]

I will come to that. I am using that technical point to illustrate that there are concerns with the amendments as laid. We recognise the importance of this issue and the strength of feeling on it in the House. As I have said, I see merit in the argument for having this defined in statute, and I am sympathetic to that point of view. I can therefore give noble Lords some assurance, and confirm today not only that we are working on this matter, but that we intend to bring forward an amendment in the Commons to give effect to a definition. We want to work with all noble Lords and other stakeholders, and of course the JCHR, to ensure that we can table an effective amendment that achieves our shared aims and gains the level of consensus that we all want to achieve, and that we shall be able to lay it and have it agreed during the Commons stages of the Bill. I hope that in providing that commitment, I have been able to reassure noble Lords of the strength of our intentions. We absolutely want to do this, and we want to get it right. I still think it will take a bit more time, but I know that, working together, we can achieve that.