Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-11-27
Topic: Civil Rights
James O’Shaughnessy (Conservative, Centre-right): My Lords, I come to the critically important issue of IMCAs—independent mental capacity advocates. These amendments relate to the appointment of such people. Representation and support, whether from an IMCA or an "appropriate person", is an important safeguard and is vital to ensuring that a cared-for person’s human rights are protected throughout the process when they are deprived of liberty Many people will be best supported by an appropriate person. This will tend to be a family member or someone who is close to the person. They will often know them, and their wishes and feelings, and are in the best position to provide that person with support and representation. They must, of course, be willing to undertake such a role. However, we know that others will not be in this position and will benefit from having an IMCA to provide that support and representation. For those people, it is vital that they can access an IMCA without impediment and these amendments address this Amendments 112 and 113 remove the requirement for care home managers to notify a responsible body whether or not an IMCA should be appointed. Amendments 116 and 118 mean that appointment of IMCAs in care home cases is not contingent on notification from the care home. In Committee, I committed to review whether the Bill could make clearer that the care home manager should not act as a gatekeeper to an IMCA appointment. I have done this and these amendments achieve that goal. The responsibility for appointing an IMCA will therefore clearly lie with the responsible body and must be considered from the point that the arrangements are proposed. The responsible body can take into account any evidence in deciding whether an IMCA should be appointed, including a request from the person themselves, a family member or other interested person Amendments 122 and 124 in effect introduce a presumption that an IMCA should be appointed if there is no appropriate person, with a very limited exception when having an IMCA would not be in the person’s best interests. Noble Lords and others have raised concerns that the Bill as currently drafted introduces a test that could act as a block on IMCA appointment. The Joint Committee on Human Rights also expressed concern about this issue. Our intent is to ensure that people are properly protected, and we see the role of the IMCA and the appropriate person as essential to the integrity of the system in advocating for and supporting cared-for people and their rights We have been pleased to listen to stakeholders and to noble Lords and have amended the Bill accordingly to make sure that, when no appropriate person is in place, an IMCA is appointed unless that is not in the person’s best interests. Circumstances where it would not be in a person’s best interests to have an IMCA would be very rare, as we have discussed, but that might be the case if, for example, a person’s past and present wishes and feelings clearly indicated that they did not want one. We will use the code of practice to outline when these very unusual exceptions would apply Turning to the other amendments in this group, Amendment 117, tabled by the noble Baronesses, Lady Finlay and Lady Jolly, would have the same effect as government Amendment 116. In the light of that, I hope they will feel that that deals with the issue they were concerned about. All the other amendments in this group update the Bill to reflect our proposed changes to the IMCA role I hope that our amendments have addressed the perfectly understandable concerns of noble Lords on this topic. I am very grateful for their input to making sure that we have been able to move forward on this issue. I beg to move.