Mental Capacity (Amendment) Bill [Lords]

Tanmanjeet Singh Dhesi Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 12th February 2019 Commons Chamber

[Madam Deputy Speaker (Dame Eleanor Laing)]

It will be obvious that three people have indicated they wish to take part. I am sure that they will all limit their remarks not to a very small amount, but if they could be limited to six or seven minutes then everyone will get a chance to put their view.

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

It is a pleasure to follow the hon. Member for Torbay (Kevin Foster).

It is my firm belief that the Bill is deeply flawed. Even with the concessions Ministers have made, and the forensic scrutiny and dogged determination of my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley) and her Opposition Front-Bench team, as well as those in the other place, the Bill will do very little to help the crisis in our mental health services. Even at this late stage, I would add my name to those of my many colleagues and a plethora of stakeholder organisations urging Ministers to delay the Bill to allow proper deliberation and discussion. Why do I say that?

First, we cannot debate the Bill without a clear sense of the issues at stake. We are talking about the state’s right to remove liberty from a citizen without trial or the judgment of their peers. That goes to the very heart of habeas corpus and our most fundamental human rights. It concerns the very liberties that this Parliament has stood for centuries to defend. When Parliament has played fast and loose with our right to be free from arbitrary imprisonment, the consequences have brought shame upon us, so we must always think very carefully before passing laws that remove a person’s liberty, no matter how compelling we consider the reasons.

Secondly, we must never forget the history of the treatment of people with mental illness in this country. We have a sorry and shameful history of incarcerating people with mental illness, autism, dementia and other conditions. Often the incarceration was unnecessary and cruel, and motivated by malice not medicine. Women in particular could be locked up for so-called “hysteria” when husbands wanted them out of the way. We must tread very carefully.

Thirdly, there is the question of scrutiny of the Bill. We must act only after the deepest of thought and most widespread discussion and consultation. Unfortunately, the Bill has not been subject to the widest consultation and the deepest discussion. The discussion and suggestions that we made in Committee seem to have been largely ignored by the Government. We might have expected Ministers to have learned the lessons from the Health and Social Care Act 2012, which was imposed without consultation and then had to be delayed after its flaws were exposed. It then cost us hundreds of millions of pounds for an unnecessary raft of reckless reforms.

The Bill has been rushed and the consultation with stakeholders has been incomplete. You do not have to take my word for it, Madam Deputy Speaker. Just consider the remarkable open letter issued on Friday 8 February by so many of the organisations closest to the issue: the Voluntary Organisations Disability Group, Disability Rights UK, Foundation for People with Learning Disabilities, Action on Elder Abuse, Dementia Friends, Sense, the National Autistic Society, Royal Society for Blind Children and Mencap, just to mention a few—a very few—of the more than 100 local and national organisations across England and Wales who wrote to the Care Minister and the Parliamentary Under-Secretary of State, Baroness Blackwood.

What did this huge coalition of caring organisations come together to say? They raised “serious concerns” and “significant objections”. They called the Department for Health and Social Care’s consultation “piecemeal”. They talked about “serious conflicts of interest”. They highlighted the facts that impact assessments have been late and limited in coverage, and that there is a lack of clarity about how the system will be regulated with independent oversight. They concluded:

“We believe that the reforms in their current guise pose a threat to the human rights of those requiring the greatest support in life.”

A threat to human rights is a serious charge. When so many organisations are making it, surely Minsters must listen and not just plough on regardless?

There is a saying in the disability rights movement: no decisions about us without us. When I served as a trustee of the Alzheimer’s & Dementia Support Services and as a Mencap Society committee member, that was a principle we held dear, yet those in their place on the Treasury Bench are not listening. To be clear with the House, we have a serious problem that needs fixing. We have vulnerable people waiting for months, families at the end of their tethers and mental health and care professionals feeling frustrated, and that is why the system is broken.

--- Later in debate ---

[Jim McMahon (Oldham West and Royton) (Lab/Co-op)]

I congratulate my hon. Friend on a fantastic, very heartfelt and experienced speech. Does he share my concern that the foundations on which this is being laid—primarily on local government—are very weak, with an £8 million funding gap? The Government have not faced up to that crisis yet.

[Mr Dhesi]

I thank my hon. Friend and I fully agree with him. The cuts to local government have been devastating and the Bill will merely exacerbate the situation.

Finally, we have come a long way in our understanding of mental illness, dementia and neurodiversity. I note with pride that a new group was founded this weekend—the Labour neurodiversity group—to build on the success of our party’s neurodiversity manifesto. We wish the group all the very best. We have made great strides in tackling stigma and prejudice, thanks to the efforts of people such as my right hon. Friend the Member for North Durham (Mr Jones) and my hon. Friend the Member for Liverpool, Wavertree (Luciana Berger), who deserve nothing but praise.

We are learning all the time and our laws must reflect our enlightened attitudes and the latest thinking, not the outdated views of previous eras. I am happy to associate myself with the Labour amendments being discussed this afternoon. If there is one I would highlight, it is the proposed amendment that guarantees a vulnerable person the right to an advocate. In too many cases, they have no one to speak up strongly on their behalf, to articulate their wishes and to champion their best interests. It is surely right that such a person should always be available.

As a member of the Bill Committee, I know that we made some progress in improving the Bill, but I remain unconvinced that it will be enough to rescue this piece of legislation and to provide a fair, workable system that ensures the best possible care for hundreds of thousands of people and guarantees their human rights. Many hon. Members have highlighted the 2017 Law Commission review.

[Fiona Bruce]

The hon. Gentleman keeps talking about human rights, but what answer does he have for the fact that up to 125,000 people are currently being unlawfully deprived of their liberty, in breach of article 5 of the European convention on human rights? That is the problem that the Bill seeks to rectify.

[Mr Dhesi]

I thank the hon. Lady for her intervention, but in terms of human rights, this issue is being raised not just by me, but by more than 100 pre-eminent organisations in the field. The only way to solve that is through funding—that is the only way in which we can lay this matter to rest. The hon. Lady highlighted the 2017 Law Commission review of the deprivation of liberty safeguards, which stated that the current regime is

“in crisis and needs to be overhauled.”

I agree. There is a crisis and the current system cannot cope, but surely the answer is not to replace bad laws with yet more bad laws, and that is what we are in danger of doing.

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

I will be brief. My hon. Friend the Member for Rhondda (Chris Bryant) has tabled an excellent amendment, which I support. We know that the system is broken. What we are doing is replacing it with an even worse system. Just to acknowledge how broken the system is, the Alzheimer’s Society’s national dementia helpline receives over 100 calls a month about the Mental Capacity Act, which is clearly confusing and complicated for people with dementia, as well as for their families and carers. However, as we have heard, so many different disability organisations and a whole range of charities, as well as the Law Commission, are saying that this Bill is not fit for purpose.

I particularly support the amendments tabled by my hon. Friend the Member for Rhondda. The Greater Manchester Neuro Alliance, which I have supported for several years now, has several concerns, particularly about a person who presents inconsistently and has a cognitive impairment, mental health problems or is simply vulnerable and does not accept or appreciate their illnesses and the limitations. One member of the alliance from Oldham told me:

“My son has been deemed as having capacity because he can answer questions yes or no but he can’t be left alone or allowed to go out unsupported, he doesn’t take his medication and doesn’t have the ability to plan or manage anything including lifesaving treatment every three weeks”.

Such examples are not addressed in the Bill.

I will move swiftly on, Madam Deputy Speaker. I share the concern that my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley) has expressed so clearly about care home managers and the conflict of interest in the Bill. It is a minefield and needs to be addressed. She made that point clearly.

Amendment 48, tabled by my hon. Friend the Member for Stockton North (Alex Cunningham), would rightly prevent cared-for people from being charged for the assessments required by the system, potentially providing a financial incentive to do the mental capacity assessments. Without the amendment, we cannot be sure that people will not be charged more for their care solely because they require liberty protection safeguards to be granted. If the Minister does not accept the amendment, I would like to know why. On advocacy, we need to ensure that the “best interests” test is changed to place more weight on a person’s wishes.

There are several other issues with the Bill. It has not had a sufficient airing. It has not been consulted on greatly, but I will hand over to my hon. Friend the Member for Stockton North.