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

Tanmanjeet Singh Dhesi Excerpts

Tuesday 22nd January 2019 Public Bill Committees

In the same vein, I want to address the subject of amendment 54, which aims to ensure that the Government publish a code of practice. We have heard on many occasions in Committee that the Government will put many finer details about their provisions in a code of practice. If we have heard anything in the Committee, we have heard about the code of practice, which is an important accessory to legislation where non-legal people are using a law directly. No one expects non-legal people to read or necessarily understand a statute, so a code is provided. Such a code follows what is in statute and sets it out in lay terms and at length. However, as I have said previously, statutory codes do not exist without a statute, and the majority of laws do not have a code of practice. I have previously mentioned the 2018 case of an NHS Trust and others (Respondents) v. Y, in the Supreme Court, and it is salutary to raise it again.

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

We have referred to the code of practice, or the Minister has, on several occasions. We have consistently asked for it to be published. Surely the provisions would be nonsensical without it given we are being referred to it in relation to so many of the provisions we are arguing for. If a code of practice does not exist, where does that leave us in this whole scenario?

[Barbara Keeley]

Indeed. It is salutary to use the following quotation again:

“Whatever the weight given to the Code by section 42 of the Mental Capacity Act 2005, it does not create an obligation as a matter of law to apply to court in every case.”

We have wanted to know what is in the code of practice. We think knowing what is in it is important in deciding our position on what is in the Bill. The Government have declined to put too many aspects in the Bill and have instead favoured the code of practice. When legislation and codes of practice exist together, they are drawn up together and published together. That has not happened in this case and it is the wrong approach. We cannot leave crucial details about how a new system of protections would work, including what resources will be given to it, to a code of practice that has not been drawn up yet, but that is what the Government have done.

On the first day of this Committee the Minister said that she would supply Committee Members with a list of what should be contained in the code of practice, and I thank her for doing so last night. Unfortunately, that does not answer many of our concerns. For instance, we raised concerns about the length of authorisations. It is welcome that there will be guidance in the code of practice, but we still do not know what it will say. Similarly, the Minister’s letter says that the code of practice will contain

“guidance on the necessary separation and operation independence from any independent hospital an AMCP is conducting a review in”.

Again, I am glad that there will be guidance, but we still do not know what it will be. Nothing prohibits any of the relationships we are concerned about and have discussed at length: it simply says that some relationships may be prohibited. That is simply not good enough at this stage. As such, the Minister’s letter does not answer the concern of my hon. Friend the Member for Slough. We remain worried that there will not be proper oversight of this code of practice. Without seeing the full code, we cannot be certain that its contents are sufficient or appropriate.

Overall, the Government’s approach of constantly mentioning the code of practice as being the place where whatever is not in the Bill will be plays fast and loose with the rights and liberties of cared-for people. It further reinforces the mess that the Government have made of the Bill by rushing it through Parliament. Had they done the sensible thing and paused the process, they would have had time to draw up a draft code of practice so that we could consider it alongside the Bill, as is commonly the case. They have given reassurances that many of the concerns can be addressed in subsequent regulations and the code of practice, but that is simply unacceptable to those of us on the Opposition Benches. To that end, we have tabled the amendment to ensure that the Bill cannot be enacted until a code of practice has been published and approved by votes in both Houses, rather than just published.

An important principle that I want to discuss briefly is that legislation can begin in the House of Lords where it is deemed to be non-controversial. That was not the case with the Bill. It is not simply a reproduction of the Law Commission’s draft Bill, which was widely consulted on. As the recent media coverage in places such as The Guardian has shown, the Bill is not without controversy. The code of practice should not be passed through a negative resolution procedure in secondary legislation on the grounds that it is non-controversial. The Minister has indicated that the code of practice will have a real vote in both Houses. Let us see whether that will be a meaningful vote.

--- Later in debate ---

[Alex Cunningham]

I think the imperative is the other way around. It is important for us to have the understanding of what the Government are proposing and their attitude to the review, so that we can understand how the legislation will work and how the two Acts will work together.

I believe the Government would be reckless to plough ahead with implementing the provisions in the Bill while that piece of legislation relating to it is still being reviewed. The Challenging Behaviour Foundation has also added its weight to the concern of the interface of the Bill with the Mental Health Act review. Providing written evidence to the Committee, it said:

“The current confusion in the use of Deprivation of Liberty within the MCA and the MHA often means the needs of people with learning disabilities are not being met in a timely and appropriate fashion…The independent review of the MHA has considered this and made recommendations around when a person should be detained under which Act around objection…The Mental Health Act Review makes the recommendation that the Code of Practice for the MHA and for the MCA make clear in what circumstances professionals should consider whether or not someone has capacity to make decisions…We also think that both Codes should make clear who should carry out capacity assessments in these situations. This needs to be explored further and needs to be considered under this Bill to ensure both legislations work together.”

That is very clear evidence from the sector. Perhaps the Minister will share with us her perspective on the interface between the Bill and the Act. There is a theme running through the written evidence submissions that we have received. The conclusion they come to is that the Government are rushing this Bill through.

[Mr Dhesi]

I thank my hon. Friend for raising the concerns of organisations such as Mencap. Does he agree that the likes of Mencap not only enhance our understanding through national policy formation but, as I have learned from my experience as a member of the Gravesend and district Mencap society, they also work on the ground? People such as Linda and Chris Norris and other volunteers, through their work, help their national organisations in policy formation. As parliamentarians we would be very wrong to ignore their recommendations.

[Alex Cunningham]

I very much commend the work of organisations from the grassroots right through to the national level. The reason I sat down with people from my local authority before the start of this Bill Committee was so that I could understand what was happening at the grassroots. That grassroots work that feeds all the way through the system informs us and it is important that we take account of it.

My hon. Friend the Member for Slough will know that, with the amount of written evidence submitted to the Committee, we could have stood here and made three-hour speeches ensuring that we raised the issues that they wanted raised. Some of us are a little more kindly and will be relatively brief.

This is not a matter to be pushed through with little consideration because the consequences of getting it wrong are significant. I ask the Minister to think carefully, not just about the comments made by hon. Members but about the evidence that has come from the sector. We raise that evidence out of concern that the Government might be making the wrong move. We need to tread carefully and understand the implications.

Amendment 53 seems sensible and proportionate. How can we possibly pass legislation that would have an undue impact on local authorities and other responsible bodies without giving them the resources to carry out the functions required? I have spoken in previous sittings about care home managers and the impact provisions in the Bill would have on them. Not only do I believe that they do not have the adequate skills to carry out assessments. I am also concerned that they have a severe conflict of interest if they are expected to be involved in the assessment of those who reside in their care.

--- Later in debate ---

[Alex Norris]

Liberty, Mind, the Alzheimer’s Society, the National Autistic Society, POhWER, Parkinson’s UK, the British Institute of Human Rights, Sense, Compassion in Dying, YoungMinds, Learning Disability England and Headway all say that this is “rushed, incomplete and unworkable”, and that in general they feel the whole exercise is entirely unfit. It is well within the prerogative of the Government of the day to say that they are right and that all those organisations are wrong, but it is, dare I say it, quite a brave thing to do. For the benefit of the Committee, and of everybody else who has taken an interest in these proceedings, it might be worth explaining why the Government feel that they are right and the Bill is fit for purpose, and that the new clause, which very much puts the cherry on top of the Bill, is worth standing part of it.

[Mr Dhesi]

Does my hon. Friend agree that that is an indictment of the whole process, and of the rushed manner in which the Bill has been introduced? To have one organisation from among those 13 eminent organisations come forward in The Times today and use words such as “rushed”, “incomplete”, “unworkable”, “unfit” and “dysfunctional” would be bad enough; to have all 13 do so makes the entire process look like complete folly.

[Alex Norris]

I completely agree. To me it is a big, blinking red light that says that perhaps we need to pause and think again. Nothing typifies that more than new clause 1. It is helpful to have a definition in the Bill, and there is broad support for that. I also have some sympathy for its being exclusionary, rather than put in a positive manner, because we know, irrespective of what ends up in the Bill, that it will end up in court.

This is a hotly contested area of case law. It feels a bit like what it must be like to be an American legislator—we are almost waiting for what we do to be tested in court to see if it is okay. I have no doubt, with things as they are currently comprised, that we will be back. I do not know whether it will be a couple of months down the line or a couple of years, but if we carry on we will certainly be back.

The approach laid out by my hon. Friend the Member for Worsley and Eccles South is sensible and proportionate, and it might give us an opportunity to resolve the issue, by sending the new clause, which has appeared between stages, to the sector and asking, “How do you feel about this?” in order to get some engagement. That would give us more time for the lawyers to do their thing too. That seems quite sensible.

It would also give us a chance to take a breath on the whole Bill, and a little more time to see whether we can resolve some of the issues that we have discussed over the last two weeks. Many of the things we as an Opposition have put forward have had merit; perhaps our approach has not always been perfect, but to find better ways to try to address those things would be good for us all.

I will move on to my second concern. If new clause 1 becomes part of the Bill and the Bill becomes an Act, the smoke will come out of this place and send a clear signal: “We know that DoLS doesn’t work and hasn’t worked for a long time. Here is what is going to come next. Here is what we mean by ‘deprivation of liberty’ and here is what you can expect.” I maintain my anxiety that we will have only solved half of the problem, or one of two problems, because it is entirely possible for a big problem—in this case DoLS, the backlog and people’s experiences of that process—to be multifactorial.

No one has contested the fact that the DoLS system did not work and ought to be replaced, but there is a big, yawning and currently unanswered question of resources. I was concerned to hear the Minister say that they are the result of political decisions. I have been in that chair, as the local adult services lead on my council for three years, wrestling with DoLS. Is it a political decision? Yes, maybe it is, in the sense that we are basically trying to juggle whether to deal with assessing new people on their social care needs, assessing whether the needs of people currently in the social care system have gone up or down or, indeed, areas such as DoLS, all of which carry enormous risk to an individual, a local authority and a community as a whole.

In the sense that it is a political choice, it is like saying, “Your house is on fire; are you going to put out the lounge or the kitchen first?” You would just grab the bucket of water and chuck it at it, frankly. There is no political decision in that, or certainly not one of due prioritisation. Ultimately, if we are going to include this new clause in the Bill to set up the new system and legislation to set the new way, we must have absolute clarity that the finances are going to be met. Otherwise, the system will fail and we will, certainly with new clause 1, have elevated people’s expectations. At the moment people expect to be disappointed, because they know the system does not work. Now we are going to tell them that we have a new system that works, and then it will not. I suspect that is why all those eminent organisations have said that it is where it is.

On this point and on others, I feel that we on the Opposition Benches have made strong arguments about ways of improving the Bill, but it is not just us. It is not just partisan knockabout; it is not political. It is not a case where the Government say one thing so therefore the Opposition oppose. We should look at the organisations that are also saying, with flashing lights, “Please stop and have a think about this.” Otherwise, as I say, we will be back.