Mental Capacity (Amendment) Bill [Lords]

Paula Sherriff 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

[Paula Sherriff (Dewsbury) (Lab)]

I thank all right hon. and hon. Members who have participated in this important debate. There have been many worthwhile and thoughtful contributions from all parts of the House, including from my right hon. Friend the Member for North Durham (Mr Jones), the right hon. Member for North Norfolk (Norman Lamb), the hon. Member for Berwick-upon-Tweed (Anne-Marie Trevelyan), my hon. Friend the Member for Stockton North (Alex Cunningham), the hon. Member for Stafford (Jeremy Lefroy), my hon. Friends the Members for Swansea West (Geraint Davies) and for Stoke-on-Trent Central (Gareth Snell), the hon. Member for Lewes (Maria Caulfield), and my hon. Friends the Members for Oxford East (Anneliese Dodds) and for Birmingham, Selly Oak (Steve McCabe).

The Bill was supposed to be a welcome proposal to simplify a complicated system, but what is before us is equally problematic and will not fix the fundamental challenges that it was supposed to fix. That point was eloquently articulated by my hon. Friend the Member for Stockton North. Put simply, the Bill has been rushed from start to finish. It has not received the meticulous and careful planning that befits legislation about the human rights of the most vulnerable people in our society.

The Government have shifted the goalposts. First, they agreed with the recommendations of the Law Commission’s draft Bill, but the Bill before us has only five clauses, compared with the Law Commission’s 15 clauses. The Law Commission consulted widely with stakeholders over a two-year period, but the Government did not consult those stakeholders even once before developing their much-changed Bill. Do they think they know better than the Law Commission, which spent years developing its draft legislation? I know from my own discussions with those stakeholders the serious concerns about how the Bill has proceeded. Surely the Government should have started consulting them at an early stage rather than proceeding at what Mencap, the National Autistic Society and many others have called “a breakneck speed”.

There are other examples of the Government acting hastily. There has still been no code of practice, and no definition of “deprivation of liberty”, on which much of this whole debate hinges. As we have heard, the Bill’s equality impact assessment was published only yesterday—that is not good enough—and despite what the Government say, it was not simply an update of a previous impact assessment in the House of Lords. That impact assessment, which is now completely out of date, discussed only the savings that the new system would make for the taxpayer. This process has been bungled to the point that Baroness Barker called the Bill the worst piece of legislation ever to have come before the House of Lords. It was clearly designed with one thing in mind: to save money on dealing with the backlog of DoLS applications.

We accept that the backlog that has arisen since the Cheshire West judgment, which widened the scope for what constitutes a deprivation of liberty, needs dealing with. That could be done through properly resourcing local authorities to deal with the problem, as my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley) pointed out earlier. We know that the Government initially intended to solve the problem by foisting this responsibility on care home managers. Leaving aside the massive pressure that this would add to already overstretched care home managers and the worryingly high vacancy rate of care home managers, this would have created a dangerous conflict of interest. Thankfully that was amended in the House of Lords, but an equally dangerous conflict of interest remains in the role that has been given to independent hospitals. It simply cannot be right that this House legislates to give independent hospitals, so many of which are detaining people for years on end under the Mental Health Act, a similar ability under the Mental Capacity Act. It is totally unacceptable to enable them to determine whether appointing an independent mental capacity advocate is in someone’s best interest. It could create the very conditions that my hon. Friend described so harrowingly earlier. We could see even more Bethanys, and that would be a truly horrifying prospect for this House.

It is only down to the tenacity of the noble Lords, including my colleagues on the Labour Benches in the other place, that vital concessions to address some serious problems with this Bill. However, this Bill still falls far short of what is required. This debate has discussed the concept of an individual’s best interest, which should be at the heart of this Bill. If that were the case, the Government would have implemented the Law Commission’s recommendations in full. There are still several areas where the Government have diverged fatally from the Law Commission’s recommendations.

This Bill did not adopt the Law Commission’s recommendation that independent mental capacity advocacy should be available on an opt-out basis and not dependent on a best interest test. There are still worrying shortcomings in the arrangements for approved mental capacity professionals, and there has been no consideration of the interface between the Mental Capacity Act and the Mental Health Act, which has recently been the subject of review by Sir Simon Wessely. Sir Simon made important recommendations about the overlap between those Acts. The hon. Member for Central Suffolk and North Ipswich (Dr Poulter) suggested a pause to consider that interface, and I concur with him on that.

This Bill is simply not fit for purpose. We cannot and must not rush legislation that deals with fundamental human rights. The Government must pause and take stock of the concerns that are being raised by so many voices urging them to revise these disastrous proposals. Some excellent suggestions have been made in this debate this afternoon. It is time to stop and think again.