Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-11-21
Topic: Civil Rights
James O’Shaughnessy (Conservative, Centre-right): My Lords, the amendments in this group have been tabled to remove the references to "unsound mind" from the Bill. As was made very clear in discussions at Second Reading, in Committee and outside this House, we all agree that the expression "unsound mind" is outdated and, as the noble Baroness, Lady Murphy, reminded the House, it is not clinically relevant. Noble Lords have made it clear that they want to change this language and that it should not be used in the Bill It is worth remembering that "unsound mind" is the language used in Article 5 of the ECHR. It was included in the Law Commission’s draft Bill and we brought it over to our Bill because we were concerned about creating a gap in which some people who were entitled to Article 5 safeguards would not have access to the liberty protection safeguards and would have to have their arrangements authorised in the Court of Protection. The Government took the view that it would be unfair to deny people access to the protections provided by the liberty protection safeguards, particularly as we know court processes can be cumbersome for them and their family. However, noble Lords and the Joint Committee on Human Rights recommended that further thought be given to replacing "unsound mind" with a medically and legally appropriate term and this is what we have done The Government have reflected on the debate in this House, particularly the expert legal insight provided by the noble and learned Lord, Lord Woolf—who is not in his place at the moment—whom I thank. Having done this, we are comfortable that we can use alternative language that is unlikely to create a significant gap. If people do fall out of this definition, they will still have recourse to the Court of Protection to authorise deprivations of liberty, although we expect the number of these cases to be very few. To achieve this, Amendment 6 removes the reference to "unsound mind" from the arrangements to which the liberty protection safe- guards apply and replaces it with "mental disorder". Amendment 12 provides that "mental disorder" has the same meaning as under Section 1(2) of the Mental Health Act which is, "any disorder or disability of the mind" This is also consistent with the approach under the current DoLS system and is therefore well understood by practitioners We considered other approaches, such as using the definition of a lack of capacity in Section 2 of the Mental Capacity Act, which refers to an, "impairment of, or a disturbance in the functioning of, the mind or brain" However, we concluded that this definition was too broad for the purposes of Article 5(1)(e), which permits the deprivation of liberty only on the basis of unsound mind. For example, the Section 2 definition could mean that people who are unconscious or have a brain injury, without psychiatric symptoms, might be able to be deprived of their liberty under the liberty protection safeguards scheme Amendment 12 removes the definition of "unsound mind" from the Bill. The noble Baronesses, Lady Thornton and Lady Jolly, have tabled Amendments 25 and 50, which instead use the phrase, "has disorder or disability of the mind" These words are also taken from the definition in the Mental Health Act and I believe the amendments are intended to have the same effect as the Government’s. Now that the Government have moved on this, I hope they will feel that to be the case. Finally, Amendments 14, 26, 51, 131, 132 and 133 update other parts of the Bill to reflect the removal of "unsound mind" and the substitution of "mental disorder" I end by thanking noble Lords for the robust debate on this issue. I have very much had my mind changed on this and give reassurance that people will not fall through the gap. We have got to a good position, which provides the kind of protection that we want while also getting rid of a phrase with connotations that none of us is happy with. On that basis, I beg to move.