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

Tanmanjeet Singh Dhesi Excerpts

Tuesday 15th January 2019 Public Bill Committees

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

Does my hon. Friend agree that, with regard to 16 and 17-year-olds, we need to ensure there is provision for parents or guardians to object to care arrangements? If that has an impact on their child’s deprivation of liberty, that is not an acceptable situation.

[Barbara Keeley]

I agree with my hon. Friend, and we will talk specifically about that later.

The Court of Protection exercises powers under the Mental Capacity Act 2005, under section 25 of the Children Act 1989 or its inherent jurisdiction, or under the Mental Health Act 1983, should that young person require in-patient treatment. The limited protection safeguards created by this Bill introduce a new administrative process as an alternative means of authorising a young person’s deprivation of liberty, and that is why we have to be careful.

In one sense, having this alternative means of authorising a deprivation of liberty of a young person is desirable, in that it may address some problems associated with the cost of making an application to the courts under the pieces of legislation I just referenced. The liberty protection safeguards might also act as an appropriate and proportionate bulwark in cases where care arrangements are not contentious, due to the type of care that is provided, the level of restrictions imposed and the consensus on the suitability of arrangements. For instance, if the placement meets with the young person’s approval and has been made with the agreement of the young person’s parent—a point that my hon. Friend the Member for Slough raised—in relatively straightforward cases, the extension of liberty protection safeguards might act as a convenient and straightforward mechanism.

--- Later in debate ---

[Steve McCabe]

It is a pleasure to serve under your chairmanship, Mr Austin. I want to make a brief contribution, particularly on amendment 37.

If I may say so, the Minister was rather dismissive in her contribution. It has become evident in the past hour that the real challenge for the Bill will be to provide an affordable and worthwhile set of arrangements that guarantees that people who genuinely need care and protection get it, but that protects individuals’ liberties at the same time. We do not want to end up putting the wider establishment’s interests first and the individual’s second.

The Minister said that she was anxious not to put too much in the Bill, because that might expose it to challenges about what had been left out. Conversely, the Government cannot put too little in the Bill and ask us to rely on a non-existent code of practice. As legislators scrutinising legislation that will have a massive impact on the liberty and human rights of some of the most vulnerable people in our society, we need to ensure that the Bill is fit for purpose; I notice that Sense, an organisation with a lot of experience of many people who will fall within the Bill’s remit, takes the view that it is not. We need to be certain that we have the balance right, rather than tipping it in favour of the authorities or institutions—the people with power, effectively—against the interests of vulnerable people.

I know that the Minister’s intention is to streamline the process, but if she succeeds in streamlining it by flouting the legitimate liberties of some of our most vulnerable people, it seems to me that she is exposing the system to some risk. Disability Rights UK fears that one of the Bill’s dangers is that it

“takes the rights of disabled people backwards.”

[Mr Dhesi]

My hon. Friend is making very powerful points. Does he agree that there needs to be greater democratic accountability and responsibility? If a clinical commissioning group or local health board decides that a cared-for individual should be looked after in an independent hospital, it should be the responsible body. It is important that we have that accountability and responsibility in the whole process.

[Steve McCabe]

Yes, I agree.

I happily accept that every member of this Committee is committed to trying to do the right thing by very vulnerable people—there is no doubt about that. However, it is easy to rush such a Bill, particularly at a time when the Government are a bit distracted by other matters. The argument may seem simple on the surface: “Oh, we have a bit of a backlog, but let’s not concentrate on how it developed—maybe it was resource-driven. Let’s focus on the fact that we have a backlog and find a way of streamlining things to get that down.” When taking that approach, it is easy to gradually step away from the essential safeguards.

Sometimes these things take time. I do not want there to be unnecessary repeat authorisations. The Minister mentioned that to me recently and I accept that it is just pointless bureaucracy, but it is possible to try too hard to limit it. One of the reasons why protections and safeguards are built in is to stop us from trampling over people. It was a long time ago now, but I should confess that in my dim and distant past I was once a social worker, and I know what happens when people are under pressure. The case load of an average social worker these days is unbelievable compared to 30 or 40 years ago, and they are under enormous pressure to get things done with insufficient resources.