Mental Capacity (Amendment) Bill [Lords]

Maria Caulfield Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons & Ways and Means resolution: House of Commons
Tuesday 18th December 2018 Commons Chamber

[Barbara Keeley]

Absolutely, we do, and that is a real concern. The Opposition’s concern is that we do not want to end up with a flawed piece of legislation replacing another flawed piece of legislation, and then to have to change it again.

It is worth noting that until yesterday the Government had not even published an equality impact assessment, more than five months after the draft Bill was first presented. Before that, the Government’s only published impact assessment was concerned solely with the cost savings that the new system would bring. That initial impact assessment is now woefully out of date, given the number of amendments made to the Bill in the House of Lords—I understand that more than 300 amendment were tabled. I pay tribute to the work of many peers in the House of Lords, including my colleagues on the Labour Front Bench, who worked to try to improve the Bill, despite the hurdles placed in front of them by the Government. Nevertheless, fundamental problems with the Bill remain that simply cannot be rectified by amendments.

We cannot support the Bill in its current form because, quite simply, it proposes to replace one deeply flawed system with another. I will come onto the flaws in the Bill in due course, but, first, I wish to address the need for substantial reform of the Mental Capacity Act, which we accept. We recognise that the deprivation of liberty safeguards system is deeply complex and bureaucratic, as the Law Commission identified in its report last year. Concerns about the deprivation of liberty safeguards predated even the Law Commission’s report, and we know that a House of Lords Committee declared the DoLS not fit for purpose in 2014.

The scope of DoLS is too narrow, applying only in care homes and hospitals. Authorisations outside care homes and hospitals have to be done through the Court of Protection, which is costly and cumbersome. It is clear, as we have already heard in this debate, that the explosion in the number of DoLS applications after the Cheshire West judgment left the system struggling to cope. The latest figures, as the Secretary of State has said, show a backlog of 125,000 applications. That, of course, leaves the person subject to the application potentially unlawfully deprived of their liberty. If the Government want to resolve that backlog, as they profess to, then the way to do it is to provide local authorities with the resources they need to process all the applications they receive. The Government should not be trying to hide their failure to fund local government behind a streamlined process that does not protect vulnerable people.

Although the deprivation of liberty safeguards need reform, and I agree that they do, the Bill deals with none of the challenges that have been outlined and creates some new problems that cannot be solved simply with further amendments. I am afraid we feel that the Government cannot be relied on to make the necessary changes during the remaining legislative stages given the resistance that they showed to making important changes in the House of Lords. On the contrary, the transformative spirit of the Law Commission’s draft Bill has been squashed, and the measures that would place the best interests of the cared-for person at the heart of the new system have been reduced.

The Government should have enacted the Law Commission’s proposals in full through the 15-clause Bill that was drafted, but instead we have this five-clause Bill. Why did they not simply bring forward the Law Commission’s proposals? The inescapable conclusion that we have come to from reading the Bill is that the Government are more interested in cost saving than in the best interests of cared-for people. This is a crucial point, because there can be disastrous consequences when the best interests of cared-for people are not taken into consideration.

[Maria Caulfield (Lewes) (Con)]

I say this in a spirit of co-operation on such an important issue. The Labour party amendment is to decline to give the Bill a Second Reading. Instead of trying to change the Bill and bring in some of the Law Commission’s recommendations, why, with nearly 200,000 people waiting to have a DoLS assessment, have the Opposition proposed an amendment to reject the Bill out of hand?

[Barbara Keeley]

That is a question that the hon. Lady needs to put to her own party. What has happened up to this point is that the Government have been asked repeatedly to pause, to carry out more consultation, and to consider redrafting the Bill. There is a list of 40 organisations that have asked for a pause and a redrafting of the Bill. This is a familiar situation from health and social care legislation—it has happened before in this House. The Government could have considered a pause, and the Minister for Care, the hon. Member for Gosport (Caroline Dinenage), knows that I have discussed that with her. The whole question really falls back on the Government.

--- Later in debate ---

[Maria Caulfield (Lewes) (Con)]

Let me start by welcoming the Second Reading of the Bill and by declaring an interest as a registered nurse who has used the current legislation in clinical practice. I therefore welcome the provisions in the Bill, which amend and reform the current legislation.

The Mental Capacity Act 2005 was a groundbreaking piece of legislation, which, for the first time, provided safeguards not just for those without capacity, to enable decisions to be made about their care, but for healthcare professionals, families and friends who were having to make the most difficult decisions in the most difficult circumstances.

In terms of the deprivation of liberty aspects of the legislation, there is no doubt that, after 10 years, reform is urgently needed. The DoL system has become too cumbersome and too bureaucratic, and it is not responsive enough to patients’ changing needs. I therefore fully support the Law Commission’s report last year, which recommended that DoL be repealed and replaced. The Bill delivers those reforms.

There was a huge amount of debate in the House of Lords, and many amendments were tabled. The Government were in listening mode and accepted many of those amendments. Therefore, it is disappointing to see the Opposition amendment before us today, which simply states that we should decline to give the Bill a Second Reading. There will be plenty of opportunities in Committee and on Report for Members to lay down amendments about the concerns they have. This is such a serious issue, and there is such a backlog of cases; we are talking about the most vulnerable people in our society, and to leave them waiting for assessment or languishing with a DoL system in place that is clearly not working—we have a huge body of evidence that shows that—is irresponsible. If Opposition Members have concerns—many of them have raised genuine concerns today—I urge them to table amendments to address them, and not simply to reject Second Reading out of hand.

At the Lord’s Committee stage, concerns were raised, and the Bill has been amended accordingly. There are four measures, in particular, that I welcome. First, the scope of the Bill was extended to 16 and 17-year-olds. That is a welcome move, which will ensure that they are covered by the new legislation. In addition, I welcome the fact that family and friends will be able to trigger a review if there is an objection. That possibility does not exist in the current legislation. I also welcome the fact that the person we are discussing will be part of the consultation. Although they cannot make an informed choice, because they lack capacity, it is important to continue that dialogue with them, because they are the most important people in the whole process. I welcome the introduction of safeguards in relation to conflicts of interest and care home providers undertaking assessments. That was recognised as a genuine concern and the Bill has been amended as a result.

I still have a concern about independent hospitals. It would have been helpful if Opposition Members had tabled an amendment to reflect that concern. We want to ensure that the proposed legislation covers patients who move between various sectors—independent hospitals, care homes or NHS hospitals—in all scenarios. There is a feeling that there is a gap that still needs to be bridged and perhaps that could be considered in Committee.

I want to make a final point, Madam Deputy Speaker, on what I know is not the responsibility of UK Government Ministers. I sit on the Northern Ireland Affairs Committee. Only last week, the Committee heard evidence from mental health professionals about people who lack capacity in Northern Ireland. There is actually no legislation in Northern Ireland, compared to the rest of the UK, on mental capacity. While there is no Northern Ireland Assembly and no Northern Ireland health Minister, that will remain the case. It is a huge concern that while UK Ministers are amending current legislation to make it more adaptable and responsive to patients’ needs, vulnerable patients in Northern Ireland have no legislation to cover them. There are healthcare professionals working in Northern Ireland who do not have safeguards to protect them. I urge Ministers to have discussions with the Northern Ireland Office and Northern Ireland Ministers to see whether something can be done until the Northern Ireland Assembly is up and running.

As a healthcare professional who has used the existing legislation, I am encouraged by the changes proposed in the Bill. I welcome the reform of the legislation to protect the most vulnerable, to protect healthcare workers in that setting, and to protect family and friends. I welcome further debate in Committee.