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

James Morris Excerpts

Thursday 17th January 2019 Public Bill Committees

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to see you again in the Chair, Mr Austin.

It is important to reflect at this point that the purpose of this legislation is to take an existing cumbersome system and to try to make one that works, but of course we are putting a new focus on 16 and 17-year-olds while we do that. So it is important that we have good consideration about how we can do it in the safest way, and in the way that best reflects the needs of the individual and of their family in general.

We will all be aware that social media can skew our view of these things, but the very high-profile cases on social media of young people who are in the settings that we are talking about today, and just how difficult that is for the parents and those young people themselves, mean that we should take every step we can to make what is an exceptionally difficult situation as best as it can be for those parents.

This issue came up in one of our previous discussions—it was raised by the hon. Member for Halesowen and Rowley Regis—when we were talking about access for parents as a matter of course, which I think we will come back to when we consider a later amendment. The idea was discussed that we would not want to put something in the Bill that would give access to a child to someone who was not supposed to be given access at that point.

I reflected on that point, because it is obviously very important, but I do not think that it actually applies in this situation. I was using, as an analogous case, the idea of a parent’s right to have input into their children’s education. If that parent is subject to a non-molestation order, that right falls away, so I do not think that there is anything that we would put in this Bill that would supersede that.

In a similar vein, my hon. Friend the Member for Stockton North used the phrase “with capacity”, regarding the parents being involved. Again, therefore, nothing that we are doing here would supersede the fact that if that parent was not able—

[James Morris (Halesowen and Rowley Regis) (Con)]

The hon. Gentleman is making some serious points, but I just want to probe one of them. If we are seeking to protect the best interests of a child, there may frequently be circumstances in which those best interests are not necessarily served by having parental involvement, because of the complexity of a particular case or the psychiatric condition of a particular child, and somehow that needs to be reflected.

--- Later in debate ---

[Dr Williams]

It is a pleasure to serve under your chairmanship, Mr Austin, for the first time. I will add a few words on fluctuating capacity to those of my hon. Friend. Everyone in the room knows that mental capacity can fluctuate. In this case, we are talking about the capacity to decide whether someone consents to deprivation of their liberty.

[James Morris]

This group of amendments raises some important issues. I want to probe one point: from a diagnostic point of view, establishing whether somebody has a fluctuating capacity is not a trivial issue. That may mean either that the type of professional who can make that diagnosis is unavailable, or that a different process to establish whether there is a fluctuating capacity issue is required. My point is that the intervention into the process that the amendments would require is not trivial.

[Dr Williams]

The hon. Gentleman is right: it is a significant intervention that may well require not only a person with significant skills, knowledge and experience, but a series of different assessments over time to make the judgment.