Mental Capacity (Amendment) Bill [Lords]

Debate between Alex Cunningham and Dan Poulter

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons & Ways and Means resolution: House of Commons
Tuesday 18th December 2018 Commons Chamber

[Alex Cunningham]

That is not something that has previously come to my attention, but I am sure the organisation would very much like to look at that possibility.

Following on from that, there must be a suitably qualified person carrying out the assessments and they must also be independent. A skilled approved mental capacity professional should be involved before a person is placed in an institution, not just when there is an objection or a trigger. There needs to be further clarity on the role of independent mental capacity advocates. Considering that the Bill in its current draft would allow responsible bodies to detain someone without renewal for up to three years, leaving people deprived of their liberty for inappropriate lengths of time, it is essential that there is genuine independence when it comes to such an assessment.

[Dr Poulter]

The hon. Gentleman is making some very good points. I am sure he is aware that, for a section 2 or section 3 admission to be approved under the Mental Health Act, there needs to be a second-opinion doctor—it is good practice for that doctor to be independent—and a social worker to ensure that the section admission takes place. It therefore seems extraordinary to me that, in a similar situation where there is an issue of capacity to be decided, there is not the safeguard of a second opinion, given that the decision may last for three years.

[Alex Cunningham]

I would certainly bow to the expertise of the good doctor and acknowledge exactly what the hon. Gentleman says. These second opinions and safeguards are absolutely essential, and I do not see such cover in the Bill at the moment.

Another concern I want to highlight is the lack of consultation and clarity about extending the scheme to 16 and 17-years-olds, and the risk that the new scheme will make it easier for authorities to remove young people from the care of their families, despite the family objecting. The Government must go back and give careful thought and consideration to the risk that 16 and 17-year-olds could see their liberty restricted inappropriately.

This issue has already been mentioned, but I too am concerned about the fact that there is no real acknowledgement of the interface between the Mental Capacity Act and the Mental Health Act, although the Secretary of State said it would be considered. I am no expert in this area, but does the Minister not agree that, as the Wessely review on the Mental Health Act has only just been published, the Government should pause the Bill to look at its recommendations properly, rather than risk creating legislation that does not fit together? Professionals must be able to understand the differences in regime and to clearly decide which is most appropriate.

We are dealing with changes to the law that any of our relatives, or even ourselves, could be subjected to in the future. We cannot just bounce this through the Commons and potentially hand substandard powers to a group of people who could rule the roost over an older person, a middle-aged person or a teenager, with nothing at all that their families could do about it.

There are plenty of people out there who are experts in this field; they could have been consulted and heard if there had been pre-legislative scrutiny of the Bill. I have some questions and concerns that have been raised by some of the organisations out there. From Inclusion London: does the Minister agree that the Bill makes it clear that deprivation of liberty cannot be used as a way to deliver care in the cheapest way possible? From the Royal College of Psychiatrists: can the Minister confirm that the Bill will not prevent psychiatrists from being called away from frontline services? From Mencap: what reassurances can the Minister give that all conflict of interest is removed from the Bill? There is plenty in there. From the Law Society: will the Government consider the interaction between the Bill and the Mental Health Act, as set out in their recently published review? Will they take the time to do that properly?

There are many other questions from many other organisations, and I hope that we have real time to address them if the Bill gets into Committee. I gather that the programme motion suggests that the Bill should come back towards the end of January, and there will not be a lot of time in January to consider the real issues. I just hope that the Minister will listen to that point.