Mental Capacity (Amendment) Bill [Lords]

Norman Lamb 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

[Matt Hancock]

I want to make a little bit of progress.

For many reasons, the current system is broken. Too many people do not have the protections they need because of a bureaucratic backlog. There are currently more than 125,000 people waiting to be processed, and nearly 50,000 people have been waiting for over a year.

[Norman Lamb (North Norfolk) (LD)]

rose—

[Matt Hancock]

I will give way to the right hon. Gentleman, who did a huge amount of work on this as a Minister in the Department.

[Norman Lamb]

I thank the Secretary of State for giving way. I share his view on the extent to which the current system is broken. He will be aware that the Bill came under substantial criticism in the House of Lords, and that substantial improvements were made to it there. There is a recognition, however, that there is still a long way to go. Will he commit to working with the Opposition parties and to meeting us and interested parties beyond Parliament to ensure that by the end of this process we have an agreed Bill that will actually improve people’s safety?

[Matt Hancock]

Yes, absolutely I will. I know that the right hon. Gentleman met the Minister for Care, my hon. Friend the Member for Gosport (Caroline Dinenage), yesterday to discuss this question. Of course this ought to be a collaborative process. Improvements were made to the Bill in the other place—I shall talk about those in a moment—but we recognise that further improvements could still be made. Ultimately, there is a careful balance to be struck between the need to protect people who do not have the full mental capacity to take care of themselves and the need to ensure that we do not deprive people of their liberty unnecessarily. That is a careful balance, and we should take this forward on the basis of open discussion and deliberation, rather than of a party political ding-dong.

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[Norman Lamb (North Norfolk) (LD)]

I want to start by reinforcing the point that the Bill deals with an issue of profound importance: the deprivation of a citizen’s liberty and the circumstances in which that can be done. That is why it is so vital that the measures are properly and closely examined and scrutinised. This is particularly important when dealing with people who potentially cannot object to the deprivation of their liberty. There is a real need for robust safeguards to be in place to ensure the least restrictive care possible in all cases and to restrict liberty only if that is genuinely in the best interests of that individual.

The system that the Bill seeks to reform is clearly not fit for purpose. The Joint Committee on Human Rights reached that clear conclusion. After the Cheshire West ruling, which actually happened during the period when I was a Minister, we have seen the development of a massive backlog, in particular because of the broadening of the definition of what constitutes the deprivation of liberty. It is therefore imperative that we sort that out. If we think about it, here and now we are routinely flouting people’s human rights. All those people on the backlog waiting list are being deprived of their liberty without proper authorisation. That is intolerable and it is why I resist the idea that we should just stop this process and leave in place the current wholly imperfect system.

When we think about reform, it is vital that we replace a flawed bureaucratic system with an effective robust system with proper safeguards, not another flawed system. It is very important to recognise what turned up in the House of Lords. My colleague Baroness Barker commented:

“This is one of the worst pieces of legislation ever brought before this House.”—[Official Report, House of Lords, 11 December 2018; Vol. 794, c. 1247.]

That was the view of many peers when the Bill first appeared in the House. I pay tribute to peers on all sides. I know my Liberal Democrat team did an incredible amount of work, but they worked with Labour colleagues and, I should say, the Minister Lord O'Shaughnessy. He collaborated with peers on all sides to improve the proposed legislation.

[Barbara Keeley]

The comment from Baroness Barker, who did some great work in the House of Lords, was made on Third Reading; she still described it then as one of the “worst pieces of legislation” that they had seen in the House of Lords.

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[Norman Lamb]

I am grateful to the shadow Minister for her intervention, because I was just coming on to the comments that Baroness Barker added on Third Reading. She said that although it had become better legislation, it was still

“highly deficient, but not as bad as it was.”—[Official Report, House of Lords, 11 December 2018; Vol. 794, c. 1247.]

That, Minister, is not a ringing endorsement of this legislation. That is why it is critically important that the Government do what they say they will and collaborate to improve it, because improvements are absolutely necessary. Our assessment will be at the end of the process: is it workable? Does it genuinely respect and safeguard individuals’ human rights? Does it result in very vulnerable people being better protected than they are under the existing, highly flawed system? On those tests will we decide whether to support the Bill on Third Reading.

My plea to the Minister is, as we have discussed, to meet us well before the Committee stage. Do not rush headlong into the Committee stage. I am alarmed that we are talking about that happening at the end of January, given what else is going on then. Be in no doubt that if we do not sort out the flaws that still exist, I will work with others across the House to make sure that the Bill is defeated on Third Reading, because the stakes are so important.

I want to end by highlighting some of the key issues that need to be sorted out. First, many viewed the impact assessment that was presented to the House of Lords as based on fantasy, even before all the amendments were made there. I understand that it is being updated, but it is really important that it is a credible and robust document and, critically, that, along with the impact assessment, the new system is properly resourced. If it is not properly resourced, people’s human rights will continue to be flouted.

Secondly, there needs to be a published equality impact assessment. There has not been one yet. That is not acceptable. The Government need to get on and publish anything that they have produced. If they have not done the work on it, they need to get on and do that.

Thirdly, there are continuing concerns about really important conflicts of interest of independent hospitals and care home managers, who will still carry out consultations. Independent hospitals, as I understand it, are still able to authorise the deprivation of liberty within the hospital. When financial interests are at stake, there will be those who behave badly and who are prepared to act to keep a bed filled to earn the money from that individual—the “cash cow”, as the shadow Minister suggested. That is why robust safeguards are absolutely critical.

Fourthly, we need a clear definition of the “deprivation of liberty”, and the Minister has indicated that that will be forthcoming.

Fifthly, there are the renewal periods. I understand—the Minister made this point to me yesterday—that we do not want a tick-box exercise when it is clear and obvious to everyone that the arrangements are in that person’s interest, but there is something very concerning about our moving in the opposite direction to what Simon Wessely’s review said should happen with regard to the Mental Health Act 1983, where we would see improved safeguards. Here, however, we are talking about a longer period between reviews and renewals, and that seems to me to be a real concern.

Sixthly, there is the interface with the Mental Health Act—please get this right, because if we legislate and repent later, it will be too late and people will lose out as a result. My final comment is: listen to us, talk to us and talk to the interest groups to make sure that we get this right.

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[Helen Whately]

The hon. Gentleman has made a good point about the support for the Bill. Some Opposition Members have suggested that there is not much support for it, but it is, in fact, widely supported. Yes, there are concerns, with which I shall deal shortly, but, as the hon. Gentleman has said, there is widespread support for improvements in the current system. Those improvements include simplification—less bureaucracy and fewer administrative burdens—and the critically important representation of individuals through the independent mental capacity advocates, which will give them a voice. The frequency of assessments will become more appropriate; as my hon. Friend the Member for Berwick-upon-Tweed (Anne-Marie Trevelyan) said earlier, timings can be inappropriate and excessively burdensome. There is a better choice of language: the Bill removes the term “unsound mind”, which is very stigmatising and completely unnecessary. I am also pleased that the Government have listened to the concerns expressed by some of my constituents about, for instance, potential conflicts of interests for care home owners when a financial interest may be involved.

However, I have three outstanding concerns. First, there is the question of how the amended Act will work for people with severe mental illnesses. The Bill clearly focuses on those who lack capacity because of, for instance, dementia, learning difficulties, autism or brain injuries, but, if I understand it correctly, it could be applied to people with severe mental illnesses. Figures suggest that the current Act is applied to a significant number of people in such circumstances. We know that such illnesses—bipolar disorders, for example—are likely to fluctuate, and that as a result people’s capacity may also fluctuate. That could cause them to be detained and deprived of their liberty when, in fact, they have regained capacity. The Minister in the Lords, Lord O’ Shaughnessy, gave a commitment that that would be addressed in the code of practice, but may I press this Minister to ensure that there are sufficient safeguards in the Bill?

[Norman Lamb]

Does the hon. Lady agree that, given the cohort that could be covered by both pieces of legislation, it is particularly important that the approach be consistent?

[Helen Whately]

I completely agree, and that relates to my second concern, which others have mentioned and which relates to the interaction between the Bill and the 2005 Act. In his review, Sir Simon Wessely suggested that there should be a new dividing line between the two. I hope the Minister will explain how that will work.

My third concern is whether the Bill will address a situation that I suspect many of us have encountered, when elderly people are locked into their homes. When I have been knocking on doors, I have sometimes been told, “Do not knock on that door, because the lady there has been locked in by her family, and she becomes very distressed and upset if someone rings the doorbell because she cannot answer the door and she does not understand why.” This is clearly a completely inhumane way to treat people, but it is happening. People are being detained at home without appropriate safeguards for their safety as much as anything, so I ask the Minister to say whether the Bill can address this problem, or are there any other steps we might take to deal with the issue of people being inappropriately locked in at home and deprived of their liberty?

I appreciate the spirit in which this Bill has been presented to the House, and the willingness of the Government to listen, as they have already shown as the Bill has been going through the Lords. I have listened to Opposition Members, but think there is widespread support for the Bill among interest groups and experts. I look forward to the Government continuing to listen and improve the Bill so that we have a better system sooner rather than later.