Mental Capacity (Amendment) Bill [Lords]

Rebecca Pow 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

[Alex Cunningham (Stockton North) (Lab)]

First, I declare my interest as chair of the all-party group on social work. This very Bill was the subject of our most recent meeting, when we heard from those working in this sector. These are no doubt some of the most important issues we could be debating and legislating on, and judging by the attendance at the all-party group meeting, it could not be more important to the policy makers and professionals in the field. This legislation governs the rights of individuals and the people who can deprive them of one of their most basic fundamental rights—freedom.

Some of the people attending the all-party group felt the Bill had made some progress with the amendments in the House of Lords, but it is fair to say that the Bill is simply not yet good enough. I really think that the Government need to pause, think again about the implications of the plans that Ministers are putting before us today, listen to the countless charities, other organisations and professionals that work with the legislation every day and then come back with a Bill that is fit for purpose.

This cannot and must not be a basic political argument between the Government and the Opposition; it is a debate between law makers and the people, some of whom at a particular time in their life can be subject to some of the most restrictive legislation we have. It saddens me that this could be another Government measure to cut the costs of associated assessments under the current Act.

There is a wealth of briefing material, from organisations as diverse as the Law Society and the Royal College of Nursing, outlining concerns that need to be discussed and addressed through the legislation. There are serious issues with potential conflicts of interest, but I think the Minister knows that. Imagine a scenario in which a care home manager is making a decision on someone’s life but has a financial interest in making a judgment either way. The Royal College of Nursing shares my concerns on this. Care home managers may feel under pressure in their workplace, meaning that they may make decisions that are not always in the best interests of the person they are caring for. There should not be any vested interest—only an interest in the wellbeing and freedom of the person concerned. Issues have already been raised about private hospitals. A private hospital could authorise deprivation of liberty, knowing that it would benefit financially from that. I know that the vast majority of people are honest and work in the best interests of those they care for, but such judgments should be made by a genuinely independent person.

My hon. Friend the Member for Swansea West (Geraint Davies) mentioned the Royal College of Speech and Language Therapists. There is a real and genuine risk that people may be wrongly deemed to lack mental capacity because any communication needs they have are not properly recognised. Nothing short of full staff training on communication needs—for everyone in the system—would be satisfactory as a measure to ensure that people are being assessed correctly and that any additional needs are addressed.

[Rebecca Pow (Taunton Deane) (Con)]

The hon. Gentleman is making a very sound point. Given the importance of communication and of being able to assess people correctly, does he agree that it may be beneficial to add speech and language therapists to the list of approved mental capacity professionals, which would benefit some of the people being assessed?

[Alex Cunningham]

That is not something that has previously come to my attention, but I am sure the organisation would very much like to look at that possibility.

Following on from that, there must be a suitably qualified person carrying out the assessments and they must also be independent. A skilled approved mental capacity professional should be involved before a person is placed in an institution, not just when there is an objection or a trigger. There needs to be further clarity on the role of independent mental capacity advocates. Considering that the Bill in its current draft would allow responsible bodies to detain someone without renewal for up to three years, leaving people deprived of their liberty for inappropriate lengths of time, it is essential that there is genuine independence when it comes to such an assessment.

--- Later in debate ---

[Geraint Davies (Swansea West) (Lab/Co-op)]

I speak as the chair of the all-party parliamentary group on speech and language difficulties, so my primary concern is that people will have their freedom taken away simply because they cannot be understood rather than due to a mental capacity problem. The Minister will know that this is a big problem, with something like 10% of children entering school having a speech or language difficulty. Some 60% of young people in the criminal justice system have a speech or language difficulty, and yet speech and language therapy reduces reoffending from 39% to 26%, so it is a cost-effective intervention at that stage and would be even more cost-effective beforehand. Some 81% of children with emotional and behavioural disorders have unidentified language difficulties. Left untreated, 33% of children with speech and language difficulties develop a mental illness, and half of them commit crimes.

In other words, it is important to identify and provide support for people in such situations because, as we have already heard, it can cost £13,000 a week to keep someone incarcerated, but that may be happening simply because they have not been properly understood and have not received the support they needed. There is therefore a financial and moral onus on us to identify and provide therapy to reduce and reverse the development of mental health problems linked to speech and language difficulties.

The situation at the moment—it will be the same under the Bill—is that assessors often will not and do not recognise speech and language difficulties or cannot differentiate between them, and they often do not know how to support the client and communicate their needs.

[Rebecca Pow]

I support all the hon. Gentleman’s comments. He is making a strong case. Does he believe that staff training on communication ought to be included in the Bill, and that speech therapists should be included in the list of approved mental capacity professionals?

[Geraint Davies]

I was going to make precisely that point. The Royal College of Speech and Language Therapists has said that the list of professionals should include such therapists and that all professionals carrying out assessments should have speech and language training so that they can identify the issues that they currently do not identify and provide clients with support. I ask the Minister to consider the Mental Capacity Act (Northern Ireland) 2016, which requires that support must be provided for communication.

When people are deprived of their liberty, that comes through their lack of capacity to consent, which is questionable if there has been no proper assessment of speech and language difficulties. The person may have a mental disorder, and the action that is taken must be necessary and proportionate. If they object, a review is carried out, but there is no requirement that a speech and language therapist should be involved in the review, which is another change that needs to be made.

The central point is that speech and language problems do not mean a problem with mental capacity, but they are commonly misread as such, which obviously costs the public sector a fortune and costs thousands of people their liberty. As has already been asked, I ask the Minister to look carefully at these issues over a longer timeframe, because we are in danger of rushing this through under the heat and smoke of Brexit, and everything else, and we risk denying the liberty of people whose liberty should not be denied and costing the public sector a fortune when that money would be better invested in preventive treatment such as early intervention for speech and language problems.