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

Debate between Tanmanjeet Singh Dhesi and Alex Cunningham

Tuesday 22nd January 2019 Public Bill Committees

[Mr Dhesi]

That is now a matter of record.

[Alex Cunningham]

The Committee is going to get this example whether it wants it or not. The case went to court, and the judge accepted the evidence and ordered that the cared-for person be returned home and that the sibling be evicted so that the live-in or an overnight carer could be accommodated. The gentleman in question returned home successfully and was later assessed as having regained capacity.

That is the power of an advocate, and it proves the necessity of an advocate in all cases, so I hope that the Minister takes these comments on board and ensures that she helps to enhance the quality of life for vulnerable people by including this amendment in the Bill. It would probably also ensure that she plays an important role in getting people who can be supported in the community the right result for their lives, rather than their being effectively locked up in a place where they do not want to be.

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

Debate between Tanmanjeet Singh Dhesi and Alex Cunningham

Tuesday 22nd January 2019 Public Bill Committees

[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.

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

Debate between Tanmanjeet Singh Dhesi and Alex Cunningham

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.