Mental Capacity (Amendment) Bill [HL] — House of Lords, 2019-04-24
Topic: Civil Rights
Nicola Blackwood (Conservative, Centre-right): My Lords, today we have an opportunity to pass legislation which will reform a broken and bureaucratic DoLS system which is leaving thousands without safeguards and bring forward a new system which will deliver protections to those who are not currently receiving them. Before I talk about amendments from the other place, I take the opportunity to thank noble Lords for the contributions they have made throughout this process. The noble Baronesses, Lady Thornton and Lady Jolly, have provided important scrutiny from the Opposition and Liberal Democrat Front Benches. The noble Baroness, Lady Finlay, has brought great insight from her role as chair of the National Mental Capacity Forum. The noble Baronesses, Lady Tyler and Lady Murphy, have brought the important issue of clarifying the meaning of a deprivation of liberty to the fore, and the noble Baronesses, Lady Hollins and Lady Watkins, have done excellent work to highlight the importance of providing a person with information about their authorisation and relevant rights The Bill has dealt with a number of legal issues and to this end our discussion has benefited from contributions from the noble and learned Lords, Lord Brown, Lord Hope and Lord Woolf, and my noble and learned friend Lord Mackay. Our debates have also benefited from contributions from my noble friends Lady Browning and Lady Barran, the noble Baronesses, Lady Meacher and Lady Barker, and the noble Lords, Lord Hunt, Lord Touhig and Lord Cashman. Finally, I thank my noble friend Lady Stedman-Scott for her excellent support and to my predecessor and noble friend Lord O’Shaughnessy, who marshalled the Bill through its earlier stages most ably, of course. Through the work of noble Lords, the Bill has been improved to address potential conflicts of interest in the new system and to ensure that protections for those in independent hospitals are now strengthened. After the work of the noble Baroness, Lady Finlay, and others in highlighting this, we have clarified the ability of families and care staff to whistleblow. The Bill has also benefited from the hard work of many outside this Chamber and from the careful scrutiny of the Joint Committee on Human Rights Today, we turn to the Commons amendments, which were tabled as alternatives to the amendments put forward by this House. The Government listened carefully to the concerns of noble Lords and reflected these in our amendments. Amendment 1C prescribes that the code of practice must contain guidance on what kinds of arrangements amount to a deprivation of liberty. There is also a duty to review any parts of the code that give guidance to persons exercising functions under the liberty protection safeguards and to lay a report of the review before Parliament, initially after three years of the subsection coming into force and then every five years after the date on which a report is laid before Parliament The meaning of a deprivation of liberty will remain as defined under Article 5 of the European Convention on Human Rights, as it is under Section 64(5) of the Mental Capacity Act. I know that noble Lords and other stakeholders had hoped that we could provide further clarification on the meaning of a deprivation of liberty in statute; we have had many debates about that. The Government had hoped to do so as well. We agreed with the Joint Committee on Human Rights that a definition could help bring greater certainty to people and professionals; to this end, we explored providing a statutory clarification over several months, working with colleagues across government and across the sector However, we established that the only way we could do this was to take an exclusionary approach and define a deprivation of liberty as having the same meaning as in Article 5 of the convention, then setting out what does not constitute a deprivation of liberty. This House made it clear that it was uncomfortable with an exclusionary approach to defining a deprivation of liberty. The Government have listened carefully to the views of Peers, MPs and other stakeholders, and decided not to insist on our original amendment. However, the Government were not able to accept the amendment tabled by the noble Baroness, Lady Tyler. It risked falling out of line with case law and would mean having two different definitions in place, which would bring confusion to a sector that needs clarity I assure noble Lords that the Government are still committed to providing clarification regarding the meaning of a deprivation of liberty for both people and practitioners. Amendment 1C makes it clear that the code of practice must lay out in clear terms, and provide detail of, when a deprivation of liberty is and is not occurring; this guidance will reflect existing case law, including the Ferreira decision, which addresses the provision of life-sustaining treatment. We will set out the meaning of a deprivation of liberty in a positive framing and in a way that is clear for people and practitioners. We will also include case studies in the code to help illustrate this The amendment also brings in a duty to review any parts of the code that give guidance to anyone exercising functions under LPS. This includes laying a report of the review before Parliament. As I said, initially, there must be a review within three years of the subsection coming into force to ensure that it is working as intended. Following that, there must be a review every five years after the date on which a report is laid before Parliament. This will mean that the meaning of a deprivation of liberty will be considered regularly and remain up to date with evolving case law. The review will not be limited to the definition but will include all the guidance relating to the liberty protection safeguards contained in the code of practice. By regularly reviewing the code in this way, we will ensure that there is up-to-date guidance for people and practitioners, which will support the successful operation of the liberty protection safeguards system Amendments 25B and 25C state that after authorising arrangements, the responsible body must, without delay, arrange for a copy of the authorisation record to be given or sent. If the responsible body has not done this within 72 hours of the arrangements being authorised, it must review and record why not. The Government recognise the importance of providing people with information. We amended the Bill in the other place to clarify that people should be informed of their rights under the liberty protection safeguards process and provided with a copy of their authorisation record Building on this, the noble Baroness, Lady Watkins, tabled an amendment in this place specifying that a record must be kept if the authorisation record is not provided immediately, and that if the authorisation record is not provided to the person within 72 hours, a review must be conducted. The Government agree that it is important to make sure that the authorisation record is provided quickly; however, there were some issues with Amendment 25A, which we have addressed in our amendments. For example, we have made it clear in our amendments that the new duty falls on the responsible body. This is important as it means that the duty to arrange for the authorisation record to be provided to the person and their representatives can now be enforced The government amendments reflect the aims of the Lords amendment. Noble Lords will notice a small difference in that we do not require it to be recorded if an authorisation record has not been provided immediately. The reason for this is simple: our priority is ensuring that the person and their representatives receive the authorisation record. If there is an opportunity for the responsible body to send the authorisation record within 72 hours, they should be doing so rather than recording why they have not sent it. Providing information, including the authorisation record, is important to ensure that people are able to exercise their rights. Noble Lords have made clear their view that there should be a contingency provision to ensure that the responsible body makes arrangements in a timely manner to provide the authorisation record. The Government have listened and this amendment reflects that By passing these final amendments today we will bring to a close the parliamentary stages of the Bill. When the Government introduced it last year we committed to reforming the process so that it is less burdensome for people, carers, families and local authorities. That is what the Bill will deliver. On Royal Assent, the Bill will become an Act and will introduce a new targeted and streamlined system that will allow people to access protections quicker. This is vital when have more than 125,000 people in the backlog not receiving protections and over 45,000 people who have been waiting for more than a year. I ask the House for its support and I thank all Members who have helped to deliver the Bill we have today. I beg to move.