Mental Capacity (Amendment) Bill [ Lords ] (Sixth sitting)

Steve McCabe Excerpts

Tuesday 22nd January 2019 Public Bill Committees

[Caroline Dinenage]

I think it would be helpful if I began by setting out how we got to where we are, for the sake of clarity, although I know that many hon. Members know this. The case of MIG and MEG and P widened the understanding of the scope of deprivation of liberty safeguards with the Supreme Court decision that:

“A gilded cage is still a cage”.

Even though the cared-for person was happy in their situation, it was still a deprivation of liberty and required a safeguard. The acid test set out by Baroness Hale in Cheshire West had two limbs: first, is the person subject to continuous supervision and control, and secondly, is the person free to leave? We can see that test running through this clause. We cannot directly challenge or go against Cheshire West, as it is the Supreme Court’s articulation of article 5, and our Bill must be compliant with the European convention on human rights. That is why deprivation of liberty continues to be defined by reference to article 5 of the ECHR.

We are confident that the exceptions in subsections (2) to (4) represent existing case law. The clause defines deprivation of liberty in that way, and the subsections are consistent with and drawn from existing case law—for example, as I have detailed, subsections (2) and (3) are based on the Cheshire West acid test. It is unlikely that there will be a mismatch between our clause and the High Court’s view; it may be that the clause is subject to litigation in future, but we are confident that the Government’s approach of providing for situations that would not constitute a deprivation of liberty will give sufficient flexibility for the meaning of the clause to develop alongside case law as that evolves.

Much of the discussion has emphasised how incredibly complex a legal matter this is; the clause must be drafted incredibly carefully to ensure that it is legally compliant. We have worked with other Government Departments such as the Ministry of Justice to develop the clause. We listened to stakeholders and peers during the progress of the Bill through the House of Lords to understand their requirements for a definition and drafted the new clause in a way that would achieve what they wanted legally. Since drafting it, we have shared it with stakeholders to explore its impact. We are consulting a wide variety of organisations to gather case studies, which we will use in the statutory guidance.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

I wonder whether the Minister can explain how, if there was consultation with stakeholders, my hon. Friend the Member for Worsley and Eccles South has that impressive list of organisations with such grave reservations. That suggests the consultation was a bit inadequate.

[Caroline Dinenage]

The decision to put the definition in the Bill was made in the House of Lords. We had to work carefully on the definition. That information has been shared with stakeholders only in the past couple of weeks. The definition is where we have been working most latterly.

Stakeholders have agreed to work with us and to bring forward case studies that we can put in the statutory guidance that will make it very clear how the Bill will work in every instance and for all the different types of vulnerable people we have discussed. That is what we need to provide clarity. Those case studies will demonstrate how the exceptions will apply in different settings and scenarios, provide clarity, and aid practitioners in identifying when one of the exceptions applies. We are working with stakeholders to co-produce that guidance to ensure that it is clear, unambiguous and of real help to those who use it. It would not be appropriate to include that kind of detail in primary legislation. As I have tried to articulate, the new clause needs to be precise and to fit with evolving case law.