Mental Capacity (Amendment) Bill [Lords]

Paul Blomfield 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]

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.

[Paul Blomfield (Sheffield Central) (Lab)]

The Secretary of State is clearly right about the system being broken, and one aspect of that is the shockingly low rate of appeals under deprivation of liberty orders, which currently stands at about 1%. Although the case law has become clearer, in most situations there is a positive obligation on advocates to progress cases to court where somebody is objecting to their deprivation of liberty, either directly or even through their behaviour. In contrast, 47% of detention decisions under the Mental Health Act 1983 are appealed. The Bill’s impact assessment predicts that the number of appeals will halve under the new procedure. Given the amendments that were made to the Bill in the Lords, does the Secretary of State think that the Government should now review that figure?

[Matt Hancock]

All such considerations should be taken into account and looked at in Committee. We made changes to that area in the Lords, and we are determined to reach the right balance, but I take the hon. Gentleman’s important point seriously. Like anyone who has read the Bill, he will know that it makes a significant improvement in this area. Rather than cases being immediately passed on to the courts, there is a process in place both before the deprivation of liberty where that is possible, which is a big improvement, and then later on when the deprivation is questioned. I accept the thrust of the hon. Gentleman’s intervention, but the Bill makes significant progress, and if he has suggestions for how the details may be nuanced still further, we are all ears because this is very much a collaborative process.

--- Later in debate ---

[Matt Hancock]

It could easily be a carer, yes. Some people have no family and in others cases the family are not the appropriate people to be the spokesperson for those who are mentally incapacitated. The appropriate person—the families and carers—will have greater powers to intervene or to object. Crucially, where there is no family or an appropriate person to advocate for the individual, the person has the right to an independent mental capacity advocate. So in all cases there should be a person whose role in the system is to advocate on behalf of the person whose liberty is being restricted.

[Paul Blomfield]

Does the Secretary of State accept that that access to an advocate should not be necessarily subject to a best interest test, as is being proposed, but should be a right?

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

Order. Just to help everybody, let me say that we have 11 speakers, we still have to hear from the Opposition shadow Minister and we have the wind-ups. So I hope we can take that into account, although I recognise that the Minister is being very generous.