Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-10-15
Topic: Civil Rights
James O’Shaughnessy (Conservative, Centre-right): I shall do my best. I thank the noble Baroness, Lady Finlay, for continuing to make sure that we grapple with the most difficult questions, as the noble Baronesses, Lady Murphy, Lady Barker and Lady Thornton, have enjoined us to do. It must be right that we at least give it a go while recognising that this is a challenging topic The amendments of the noble Baroness, Lady Finlay, are about restricting liberty protection safeguards to certain circumstances where physical restrictions are imposed, and outline the liberty in which the feelings of the cared-for person should be protected. Her intent was not to provide that definition but to provide a platform for us to have a discussion about the definition. We have been strongly encouraged by the Joint Committee on Human Rights to do so and, as I said in our previous discussion on this topic, we are considering the Joint Committee’s findings very closely I sense, and have sensed throughout, that there is a desire among noble Lords to provide such a statutory definition within the Bill. Obviously there are huge benefits for doing so. It would provide clarity; the noble Baroness, Lady Murphy, mentioned avoiding a postcode lottery; and families, professionals and the people themselves would benefit. There are compelling arguments for it. At the same time, we are weighing it against the safeguards that cared-for people need and ensuring that we comply with our obligations under the ECHR We obviously have not got there yet—no one is suggesting that we have—but I want to use this spirit of determination and problem solving to see whether we can get to that point—hopefully by Report. It is a topic for a longer discussion, which does not need to be in this Chamber, but we have to recognise that there is not a consensus among stakeholders. That is a challenge. We need to consider whether we can bring the entire disparate community along with us, otherwise we will have a problem and not solve the challenges we are dealing with I will commit to all noble Lords to see whether we can get to that point. There is a hierarchy about the ways in which we can achieve it—in the Bill, through regulation or through a statutory code of practice—but at the very least we should make a determined endeavour to do it. So I am happy to give that commitment. As noble Lords would expect, the Government have been working hard on this. We would like to share our thinking with noble Lords and start to build that consensus in the House and beyond to see whether we can get to that point. I hope that will give noble Lords the reassurances they are looking for On the substance of the amendment of the noble Baroness, Lady Murphy, that depriving a person of their liberty in emergency and interim cases should benefit the person and that that deprivation, life-saving treatment or doing a vital act cannot be done without depriving a person of their liberty, the Bill already states that steps depriving a person of their liberty must be necessary in order to give life-sustaining treatment, and the Mental Capacity Act requires that such steps must be in a person’s best interests. So that reassurance is there.