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

Tanmanjeet Singh Dhesi Excerpts

Thursday 17th January 2019 Public Bill Committees

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

As well as being against the 1989 Act, does my hon. Friend agree with me that it is common sense for parents to be at the heart of any DoLS? It is not good to be sidelining them on what is, in effect, the issue of the health and wellbeing of their children.

[Alex Cunningham]

That is very much the case. I always try to place myself into such a situation. I am at the grandfather stage of life now, and I think about how that would affect the children of my children, or other parts of my family who have children. I would most certainly want them to be at the centre of it—I would probably try to interfere a bit myself as well.

The Children Act, however, provides protection—it is a real safeguard—and yet the Bill is not at all clear about how it will sit with that existing legislation. Surely, as my hon. Friend the Member for Worsley and Eccles South suggested, parents must be consulted and have that ability to make decisions about their child, even if they are 16 or 17. We must ensure that such safeguards are enhanced, not watered down or in conflict with each other.

The Royal College of Psychiatrists has highlighted to me that encompassing 16 and 17-year-olds in the Bill can be positive where they lack capacity to make their own decisions, but that must be authorised by an appropriate safeguarding system. The RCP shares my belief that a parent or legal guardian with capacity to make the decision should be able to authorise the required deprivation of liberty.

Many social workers and other professionals in the field have made submissions. There is a strong consensus that additional safeguards should be available where objection is made by a person with parental responsibility. The Mencap submission, too, welcomes the inclusion of 16 and 17-year-olds in the Bill, but it also expressed concern that we might be reducing protections and eroding parental rights. Mencap has asked the Government to conduct further public consultation on the measures for 16 and 17-year-olds to understand the implications fully.

Does the Minister believe that the Government have consulted properly on the issue of 16 and 17-year-olds? Clearly, the organisations with an interest in such matters do not think so. Will she commit to undertake a rapid consultation exercise ahead of Report, in the hope that we in Committee can be reassured about parental rights and the very necessary protections for young people?

Mencap highlighted the particular uncertainty about how the new system works alongside existing legislation. I have already talked about that, but a complex web of legislation and guidance relates to those young people who might fall under the LPS system, including looked-after children. My hon. Friend, however, has already spoken about that. It is essential for the Minister to provide clarity in such areas, preferably now but certainly before Report.

In closing, I will make a general point about involving parents in all manner of processes in the health and social care world. For them to be excluded from the process, denied the right to report or told simply that the authorities know best must be an exception. It is not always the case that the authorities know best. At times, I have a tremendous caseload of parents coming to talk to me about issues affecting their children and how they feel excluded.

I put it to the Minister, if a child affected in a particular case was one whom she knew personally, one whose parents she has had contact with, would she be content for them not to have every possible access to information or not to be consulted at every stage? I remind her that a child is being deprived of liberty—this is an opportunity to lock a child up, basically. We need to understand and empathise with parents in their desire to be consulted in the decision-making process, and I believe that the amendment would go a long way to ensuring that that actually happened.

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[Dr Williams]

The hon. Gentleman is right: it is a significant intervention that may well require not only a person with significant skills, knowledge and experience, but a series of different assessments over time to make the judgment.

[Mr Dhesi]

As the hon. Member for Halesowen and Rowley Regis just pointed out, a medical practitioner who can diagnose whether somebody has fluctuating capacity may be unavailable, in which case we should definitely not disregard the Law Commission’s advice. Otherwise, we open ourselves to legal challenge and other things. In the long run that would be to the detriment of not only the cared-for person but the system itself in terms of extra costs and distress.

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[Alex Norris]

It is a pleasure to follow my hon. Friends the Members for Dewsbury and for Stockton South, who made compelling arguments that I hope to add to a little.

On fluctuation, by definition we are talking about some of the most challenged individuals in society. As a result, their medication needs could be significant, and the nature of their challenges can change over time. It is not only conceivable but probable that those individuals’ needs may vary. Therefore, the protections we need to give them may have to be slightly flexible.

Behind the Cheshire West case and the television documentaries that make us all throw our hands up in the air and think, “Goodness me, how awful”, is the idea that none of us thinks that someone whose liberty needs to be taken away for their own protection should ever be put away and forgotten about. None of us wants that at all. That is in keeping with the theme of wiring into the Bill the understanding that we are talking about human beings, and that things change and their conditions change, as they do with us all. Therefore, we may need to change the way they are looked after and supported.

I reflect on the point the hon. Member for Halesowen and Rowley Regis put so well; on Tuesday I was wringing my hands about my past anxieties about the lack of assessing capacity. I then put my name to an amendment that asks for greater specialism among those assessors as people who could pick up something that, as the hon. Gentleman said, was not trivial. I understand his view but do not completely share it. We want to include in the Bill the possibility that an individual’s needs may fluctuate—not how those needs will fluctuate. It would not necessarily mean that all the assessors have to have the ability to make that judgment. If the assessment says, “There is a reasonable chance that this individual’s needs may fluctuate,” that puts a “So what?” test on the responsible body, which may say, “Okay. We may therefore need to call in someone who has that specialism at an appropriate moment.” That could be covered in the code of practice. I do not think that test puts an unreasonable or unnecessary burden on the assessing capacity, which is finite.

I support the point that my hon. Friend the Member for Dewsbury made. Most of this discussion has been framed around the idea that some people are deprived of their liberty because they are deemed not to have the capacity to look after themselves, but because their needs fluctuate, that may not have needed to happen. As my hon. Friend said, there is another cohort of people who are assessed not to have fallen into a deprivation situation, but that might not be safe for them either. It is important that we bring that into the discussion. This is not just about people who are deprived of their liberty when that may not need to be the case; it is also about people who, the vast majority of the time, are not in those circumstances, but in a conceivable situation relating to their personal health challenges, may need to be deprived of their liberty. That is a really important point.

Amendments 31 and 33 get to the nub of what we have been talking about for the past two and a half sittings. What are we trying to do with assessment? If the Bill tilts towards moving assessment away from local authority-hosted social work into care settings, with the people who are around the individual the most and have great familiarity with them, the Opposition have expressed some discomfort about that. Nobody is arguing for perfunctory or tick-box assessments—hon. Members on both sides of the Committee have been clear about that. With amendment 33, we want to put on the face of the Bill a requirement that the people who carry out assessments have the right qualifications—I hope that will apply to pre-authorisation assessments, too—so we have the confidence to say to people, after this Bill has wended its way through Parliament, that we have not created a system that has moved away from skilled assessment, which is expensive, finite and a challenge in this country, towards unskilled assessment because it is easier or cheaper. Nobody wants that; I certainly do not. By putting that on the face of the Bill, we can give comfort to the people who observe our proceedings and those who will engage with us during the Bill’s progress that we are not seeking to do that.

[Mr Dhesi]

My hon. Friend is making a very powerful case. As a former trustee of Alzheimer’s & Dementia Support Services, which dealt with people with very serious vulnerabilities, I can attest to the fact that amendments 31 and 33 are entirely sensible and should be incorporated in the Bill. Not having a registered medical practitioner undertaking these assessments, especially when we are dealing with very vulnerable individuals, would be detrimental to the entire process.

[Alex Norris]

I appreciate that intervention. One of my favourite things about being in this place—certainly in Bill Committees, out of the white heat of the Chamber—is that we learn a lot that we did not know about people’s knowledge and expertise, whether it is personal experience, professional experience or experience from their spare time. It helps us all. That contribution adds to the debate, and I greatly appreciate it.

These amendments will help to give confidence that what we are all trying to achieve here will be achieved in the Bill. I would expect it to be enhanced by the code of practice, but in law and in statute, in the Bill, we in this place will have made a clear commitment about what sort of legislation we want. In that spirit, I commend the amendments to the Committee.