Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-11-21
Topic: Civil Rights
James O’Shaughnessy (Conservative, Centre-right): My Lords, as we move on to this group of amendments, which deals with the extension of liberty protection safeguards to 16 and 17 year-olds, I thank all noble Lords for reminding us from Second Reading onwards of the absence of this provision when compared with the Law Commission’s report. Of course, we had accepted in principle that we wanted to move on this issue, but we needed to resolve some complexities about how it should apply. We have now done so and have brought forward amendments. I am grateful to all noble Lords, stakeholders and others who have contributed to this process Let me just outline in more detail what these specific amendments cover. Amendment 5 extends the liberty protection safeguards system to 16 and 17 year-olds Amendments 20 and 22 take into account the different legislative arrangements already in place for cared-for people aged 16 to 17. This group of young people are likely to have either an education, health and care plan—an EHCP—in England, or an individual development plan—an IDP—or statement of special educational needs in Wales. Amendment 21 provides that, for those cared for in the community, the same local authority that maintains their plan will act as the responsible body for liberty protection safeguards. If the person has neither of these plans, the responsible body will be the local authority that is providing accommodation for the person, or otherwise named in a care order; in any other cases, it will be the local authority for the area in which the arrangements for that young person are mainly undertaken. This provision aims to provide continuity for the person and to make the process less burdensome for them and their family. The local authority in these cases will know them best and have more knowledge of their circumstances and so will therefore be able to make sure that the arrangements are the most appropriate Those aged between 18 and 25 and in the scope of LPS may also have an education, health and care plan or an individual development plan. Amendment 19 clarifies the responsible local authority for this group. Amendments 7 and 18 state that the responsible body for those aged 18 to 25 should be the same local authority that maintains the education, health and care plan or individual development plan. This will provide clarity and consistency in their arrangements too Amendment 22 has the effect of clarifying who the responsible local authority is if none of the other specific provisions applies for those aged 16 and 17. Those 16 and 17 year-olds who are cared for mainly in hospital settings will have the same responsible body as those who are 18 or over, which is the NHS trust, local health board or CCG Amendment 23 defines education, health and care plans and individual development plans Amendment 134 makes provision in Wales for the transition to the new system, to support children and young people with special educational needs or additional learning needs. We are continuing to consider, in conjunction with the Welsh Government, whether all the cohorts in Wales are captured under the current amendments. If there is a need to do so, we will come forward with new amendments in the other place in order to capture other cohorts, if they are identified Although liberty protection safeguard authorisation records will be stand-alone documents, we have listened to advice from noble Lords and will make it clear in the code of practice that information in the LPS authorisation that is relevant to meeting a young person’s special educational needs or additional learning needs should be included in their EHC plan or IDP—sorry for the acronyms Over recent months, we have worked together across government and with stakeholders to develop these amendments so that the new system complements and strengthens existing safeguards for 16 and 17 year-olds who lack capacity and who must be deprived of their liberty for care and treatment purposes. I hope that these government amendments address the concerns raised by noble Lords. I thank them again for raising them and for contributing to the development of these amendments. I beg to move.