Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-11-21
Topic: Law and Crime
Elizabeth Barker (Liberal Democrats, Centre to centre-left): My Lords, I have good news for the Minister. After all these weeks, I have finally accepted his argument that the best-interests principle in the Mental Capacity Act remains and applies to all decisions made under the Bill. I now agree with him that it is therefore not helpful to reiterate the term "best interests", as we suggested in previous amendments at a previous stage. The even happier news is that the noble Lord, Lord Hunt of Kings Heath, agrees with me on that However, I am afraid that peace and harmony may not have broken out completely. Noble Lords will recall from previous debates that we have argued that the requirement that an arrangement be "necessary and proportionate" seems to be a weakening of the protections for an individual, sitting as it does with no direct connection back to those earlier best interests. We all agree that deprivation of liberty is a very important matter, and the law needs to be in compliance with Article 5. That is why we think the Bill contains a deficiency, because lawful detention is not considered directly in relation to best interests. Therefore, through these amendments, which relate both to the authorisation and the determination, we have attempted to reiterate the current wording of the DoLS legislation regarding a determination being necessary and proportionate in relation to harm to the person. In other sets of amendments and at previous times, we have had discussions about whether decisions are taken on the basis of harm to the person whose liberty is being deprived, or of harm to others. We have tabled this amendment to make it clear that it is harm to the person, and that the proportionality relates to the potential harm to that person if they are not deprived of their liberty Much of today’s discussion about deprivations of liberty in domestic settings originates in the failure of many professionals, in making judgments, to remember the part of the safeguards which states that deprivations of liberty must be the "least restrictive option". It is not wrong to deprive somebody of their liberty, but it must be the least restrictive option to avoid harm to that person. We have therefore concluded—again, in discussion with stakeholders—that this amendment to the Bill would lead to greater clarity I can hear the words "code of practice" coming to the fore. One point on which we have never had an agreement is reliance on the code of practice. Very few pieces of legislation have a code of practice, and in health there are only two: this Act and the Mental Health Act. Anything which resides in a code of practice rests upon statute in order to be lawful. When there are arguments about whether a deprivation of liberty is lawful, those arguing the case, particularly judges, do not go to the code of practice but to the statute. What is contained in the statute may be minimal, as this is; we are simply talking about a sentence which says that that action must be "necessary and proportionate" with regard to the harm to that person. A code of practice can go on for pages and pages and include numerous examples, as it should, so that practitioners know where they are. But it does not and never will carry the legal force which comes from the wording in the Act.