Mental Capacity (Amendment) Bill [Lords]

Tanmanjeet Singh Dhesi Excerpts

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

[The Secretary of State for Health and Social Care (Matt Hancock)]

I beg to move, That the Bill be now read a Second time.

Every Member of this House will agree that we have a duty of care to the most vulnerable in our society, and that everybody deserves to be treated with dignity and respect, no matter what their physical or mental condition. I hope that the House will also agree that liberty is a fundamental right, and that no decision on the deprivation of liberty can ever be taken lightly. Such decisions can be taken only to protect society or individuals. There are currently 2 million people in this country who have impaired mental capacity. Care homes and hospitals often have to take decisions to restrict people’s movements in order to protect them. That could involve preventing elderly people with dementia from moving, or stopping vulnerable people getting access to things that they could use to self-harm. The present deprivation of liberty safeguards are meant to ensure that people who lack the capacity to make decisions for themselves are not deprived of their liberty unfairly or unnecessarily, but the current system is broken and needs to change.

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

What assurances can the Secretary of State give us that local authorities will be given sufficient resources to allow them to process all deprivation of liberty cases?

[Matt Hancock]

The resource question is an important one, and so too is the process. The question of resources and the question of what the process is go hand in hand. There has been an increase in the amount of resources given to local authorities to enable them to deliver in this area, but the question will undoubtedly arise again as we run up to the spending review.

--- Later in debate ---

[Barbara Keeley (Worsley and Eccles South) (Lab)]

I beg to move an amendment, to leave out from “That” to the end of the Question and add:

“this House declines to give a Second Reading to the Mental Capacity (Amendment) Bill, notwithstanding the need for reform to the current system of mental capacity assessments and while acknowledging the improvements made to the Bill by the House of Lords, because the Bill underwent no pre-legislative scrutiny, it does not put the interests of the cared-for person at the heart of the Bill, it enshrines a conflict of interest in relation to independent providers of health and care services, it fails to provide measures to reduce the substantial backlog of Deprivation of Liberty Safeguards Assessments and it fails to recognise explicitly the interface with the Mental Health Act when determining which legislation should be used to authorise care or treatment arrangements.”

The issue before the House today is one of fundamental importance to us all: the individual liberty of vulnerable people. Today, we are being asked under which conditions it is right to deprive vulnerable people of that liberty when they need care and treatment and cannot give their consent, and what protections should be in place when their liberty is taken away.

The proposals in the Bill to replace deprivation of liberty safeguards have the scope to affect the rights of a large portion of the 2 million people in the UK thought to lack capacity to make their own decisions. Among them are people with dementia, learning disabilities, autism and brain injuries. Whether to deprive some of the most vulnerable people in this country of their liberty should be an issue that we treat with the utmost respect, thought and care. However, I am afraid the Government’s approach to this immensely important issue has shown few of those qualities.

The reform of the Mental Capacity Act 2005 requires methodical planning, but the truth is that the Bill has been rushed through without proper scrutiny, despite the best efforts of many people who are concerned about its contents and have been working to change it for the better. The fact that the Bill has less than two hours for Second Reading and was brought forward with just two sitting days’ notice speaks volumes of the speed that the Government are adopting in respect of the Bill, and will raise further concerns among those who care about these matters.

The process of reforming the 2005 Act began when the Law Commission produced a draft framework for new liberty protection safeguards to replace the existing deprivation of liberty safeguards. That came after two years of painstaking work and wide consultation ended last year. The Government accepted the commission’s proposals at the time they were produced, but the Bill that was introduced to the House of Lords has diverged substantially from the original recommendations— an issue on which the Secretary of State answered a question earlier. At the outset of the process, the draft Bill published by the Government was subject to no prelegislative scrutiny whatsoever, meaning that important stakeholders were not consulted about its contents.

During the Bill’s passage through the House of Lords, my colleagues and I heard many concerns about it from interested stakeholders, from charities representing people with dementia, learning disabilities and autistic people through to directors of adult social services, organisations representing social workers, and social work professionals involved with the current system. They have been unanimous in their agreement that the Bill is deeply flawed, that there has not been adequate time for consultation, and that the proposals in the Bill could cause more problems than they solve.

The Secretary of State quoted a smattering of organisations; let me read him this list: the Relatives & Residents Association, Mencap, the National Autistic Society, Mind, Rethink, the Alzheimer’s Society, VoiceAbility, Disability Rights UK, POhWER, the British Institute of Human Rights, Sense, Liberty, Learning Disability England and Inclusion London have all called for the Bill to be paused so that further consultation can take place. But as we can see today, that call has not been heeded.

[Mr Dhesi]

Does my hon. Friend agree that, given that Sir Simon Wessely’s review has only just been published, the Government should consider pausing the Bill to look into the interplay between it and the recommendations on the Mental Health Act? Otherwise, we risk creating legislation that fits together very poorly.