Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-11-27
Topic: Civil Rights
Judith Anne Jolly (Liberal Democrats, Centre to centre-left): My Lords, I too support Amendments 29 and 86 and others in this group It is essential that the cared-for person and their appropriate person and/or advocate are provided with information about the reasons for the cared-for person’s detention and their rights to review and also to challenge. It is a fundamental human right under Article 5 of the ECHR. Both the Mental Health Act and the DoLS contain clear obligations to take steps to help the person understand their situation and their rights; and the DoLS set out a clear statutory list of those entitled to copies of the authorisation and the assessment Despite this, the Bill is silent on these rights to information. The Minister has suggested that the person could request the information by making a subject access request under the GDPR. I agree with the Joint Committee on Human Rights, which does not accept this as an adequate substitute. This misunderstands the obligation, which is a right to be informed, not a right to request information. It is highly unrealistic to expect a person subject to the LPS to think that they would know to make this request and be able to do so Meanwhile, the person’s family would have no obvious rights to this information unless, of course, they held a lasting power of attorney or deputyship, and most will not. At the moment, requests for personal data are managed through the MCA code’s guidance, with data being disclosed only if it is in the best interests of the person. In practice, families, and even advocates, are often shut out of decision-making and consultations about the person, and can experience obstruction in trying to access vital information like this. The Bill should be compatible with the ECHR, not on promises of what might possibly be in the code—as my noble friend Lady Barker has just stated The Minister has confirmed that the code of practice is statutory and that it must be followed unless there is good reason not to do so. However, this is not the main problem. In some places the code is being asked to effectively establish rights and duties instead of explaining or elaborating on them. Duties to provide information about the authorisation and clear-cut rights to obtain copies of the authorisation documentation are an important example. A code cannot be used to achieve this I remind the House of a recent example in which the MCA code of practice said that certain very serious decisions—such as withdrawal of artificial nutrition or hydration—could be taken only by the court of protection. Peers were reassured in Parliament that that was the case and shown a draft copy of the code of practice, which stated it clearly. However, the Supreme Court ruled this year that that was not the case in law and that the MCA code of practice not only misstated the legal situation but could not establish a duty where none had existed. Consequently, if there is a need for a hard-edged duty or right, that needs to be put into legislation, not in the code I therefore urge the Minister that in this Bill we must have the provisions to provide the person with information about their situation and their rights, and also clear statutory entitlements to copies of the relevant documentation for those supporting and representing them.