Mental Capacity (Amendment) Bill [Lords]

Steve McCabe 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

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

Coming here tonight, I thought that this was in origin a well-intentioned but flawed Bill, but after listening to the Secretary of State I am not sure we are discussing the same legislation. It is hard to believe that in a free society such as ours, probably more than 125,000 people are currently denied their lawful liberty because of failings in the system. We need to improve the situation, not make it worse.

As with much of this Government’s legislation, the Bill seems to be more about reducing costs than protecting and promoting the rights of vulnerable people. As we have heard, the impact assessment was produced before a raft of Government amendments were made, so there is now a clear argument for producing an updated assessment before we proceed. The attempts to transfer some of the responsibilities set out in the Bill just do not make sense. I am not sure it is wise to transfer any responsibilities for things such as liberty to bodies such as CCGs. They are already very stretched and prone to questionable judgments on delivering equality and fairness in the NHS.

There are real doubts about the protections in the Bill. Access to legal aid is a Catch-22 if a person qualifies for it only after they have been deprived of their liberty. How can that be fair? There is also concern about the length of detentions and authorisations. Sir Simon Wessely recommended that initial detention should be reduced to three months, with a three-month renewal and six-month periods thereafter. Under the Bill, despite what the Secretary of State claims, a person can be subject to an order for three years.

The Bill does not put the interests of the cared-for person at its heart. The existing arrangements explicitly state that deprivation of liberty may be granted only where it is in the best interests of the cared-for person. The Government should make it clear on the face of the Bill that depriving a person of their liberty must be in their best interests, and should come only after the consideration of less restrictive options.

Proposals must ensure the right of a person to object to and challenge arrangements if they so wish, and that they have appropriate support and representation to do so. Access to an approved mental capacity professional is currently available only in limited circumstances. That is wrong: access should be made available in all cases. Scrutiny for pre-authorisation reviews should be extended to all situations in which a person might be considered vulnerable.

All cared-for people in private hospitals should have an independent mental capacity advocate appointed, and all authorisations must be carried out with approved mental capacity professional oversight. Independent oversight is essential in all cases, as cared-for people may not be able to object in the formal sense. Appropriate advocacy must therefore be available. The Royal College of Psychiatrists rightly draws attention to its concern that no one should have their liberty denied because of a mental disorder without first being seen by a qualified doctor.

It is essential that these matters are dealt with properly, which is why there are real concerns about the role of the care home manager. It is wrong that they should make the decision on independent representation. As drafted, the Bill makes the care home manager responsible for carrying out the consultation with the cared-for person, when the main purpose of that consultation is to ascertain that person’s wishes. Nor can it be right that the choice of assessor should lie with the care home. There is an obvious conflict of interest if independent health and care providers are responsible for both providing a service and deciding on that service’s suitability. The Bill allows for managers of independent hospitals to authorise deprivation of liberty when care is being delivered in their hospital. That is plain wrong.