Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-09-05
Topic: Law and Crime
Dorothea Glenys Thornton (Labour, Centre-left): My Lords, I will speak to Amendment 20, which is in my name on the Order Paper and has been grouped with the amendment in the name of the noble Baroness, Lady Finlay During the briefing we had with the Bill team and the Ministers, my notes tell me that the first clause is a key change to the new regime, and that it is concerned with the portability of deprivation of liberty. I understand that the noble Baroness’s amendment makes sure that Section 4B—on the deprivation of liberty necessary for life-sustaining treatment or vital act—and Schedule AA1 are compatible with the provisions set out in the rest of the Bill and that they do not conflict with a valid decision to refuse care or treatment. The noble Baroness raises some important and substantial issues right at the beginning of the Bill and raises issues of conflicts which will need to be resolved Amendment 20 in my name comes from paragraph 15 of proposed new Schedule AA1 in the Law Commission’s draft Bill, quoting it exactly. It prevents the responsible body authorising arrangements for the cared-for person to reside in, or receive care or treatment somewhere, if those arrangements conflict with a valid decision by a donee of a lasting power of attorney or of a deputy appointed by the Court of Protection. As I say, the wording is exactly the same as that in the Law Commission draft Bill Under deprivation of liberty, a deputy and attorney may object to any deprivation of liberty and effectively block it, pending an application to the Court of Protection. I can see no obvious reason for excluding this from the Bill. The Government claim that it is already in the main provisions under the original Act—in Section 6(6) —but this is only the case where the basis for the deprivation of liberty is in "best interests". If the basis for DOL is risk to others, that would not necessarily be the case, and so for the avoidance of doubt it is important to include this clause. If we do not, the risk of litigation on this point is probably quite high Deputies and donees should be able to refuse a deprivation of liberty, so this amendment seeks to ensure that the views of those donees and deputies, who have been appointed by the cared-for person to make the decisions in their best interests—as was eloquently outlined by the noble Baroness, Lady Finlay—are given appropriate weight with regard to where the cared-for person resides for care and treatment I am pleased to say that this amendment and what the noble Baroness, Lady Finlay, said, enjoys widespread support from the organisations who have found the time, even under the pressure we have all been under, to say that they support this. They include Mencap, VoiceAbility, Mind, the National Autistic Society, Liberty, Age UK, Sense and many others. The amendment looks at the clash or overlap between the different regimes that govern this area of law. I must ask why the Government did not adopt the Law Commission formulation. The Minister should be aware that I will return to that theme throughout Committee, because the Government seem to have cherry picked the Law Commission report, and some of the most important safeguards of liberty seem to have been omitted or watered down by the Bill.