Mental Capacity (Amendment) Bill [Lords] — House of Commons, 2019-02-12
Topic: Civil Rights
Norman Peter Lamb (Liberal Democrats, Centre to centre-left): I want to speak primarily in support of the amendments in the name of the shadow Minister, the hon. Member for Worsley and Eccles South (Barbara Keeley), and others. However, I want to comment right at the start—I realise this is not the decision of the Minister—about the time we have to debate a Bill that deals with fundamental human rights. I just think it is absolutely outrageous, and we should place on the record our total opposition to the way in which, wholly inappropriately, it has been rushed through I should also say that I completely understand the need for reform. I said that on Second Reading, and I acknowledge the Minister’s sincerity on that. I recognise that we breach the human rights of the people who are on a long waiting list for anything to happen to them, but that is no justification for getting it wrong at this stage. Surely we must not weaken the protections for very vulnerable people, yet the organisations that have followed this process all the way through are very clear that that is precisely what we will do I just think this is extraordinary: the Government have commissioned a review of the Mental Health Act, and although we have not had the formal response yet, I expect that much of what the review calls for will be supported by the Government, yet the review moves in a diametrically opposite direction to this Bill. The review talks about "rebalancing the system" and about "a real shift in the balance of power between the patient and the professional" The review also talks about "a right to advocacy based on an opt-out approach." That is what the amendments in the name of the shadow Minister seek. This will not, as the Minister implied, force advocacy on anyone; this is about having it as the default option. The Law Commission has called for a right to advocacy as an opt-out approach, yet the Government are resisting it. Why are they resisting it? This reduces the rights and protections of vulnerable people, and for that reason it seems to me that it is unacceptable On Second Reading, I said that I would not oppose the Bill at that stage, and I said: "Our assessment will be at the end of the process: is it workable? Does it genuinely respect and safeguard individuals’ human rights? Does it result in very vulnerable people being better protected than they are under the existing…flawed system?" At that time, I asked the Minister to meet all of us, including interest groups, before going into the Committee stage. I said on Second Reading: "Do not rush headlong into the Committee stage."—[Official Report, 18 December 2018; Vol. 651, c. 744.] Yet, within a fortnight, we were in Committee, which is exactly what I had urged her not to do Then we come to the views of the sector. I mentioned earlier that over 100 organisations, including care providers, disabled people’s organisations and charities, have written to the Minister. They make it clear that reform should not be at the cost of the human rights of people who rely on essential social services. I want to deal, specifically and finally, with the conflict of interest issue. They say in that letter to the Minister that "serious conflicts of interest will be placed upon care managers who will be in control of key information about assessments and review processes." The Law Society—surely we should take its concerns seriously—says of care home managers that "any task or role they undertake must be completely conflict free", and that they should not be arranging or carrying out critical assessments. Care home managers should not be responsible for consultation with the cared-for person. It describes the current process—it is not a past but a current concern about the Bill, as amended—as "deeply flawed". It says: "It is not difficult to envisage a vulnerable person being uncomfortable or reluctant to give an honest answer when questioned by the care home manager on their willingness to stay"— in that care home— "or their ‘happiness’ in the current placement." The Law Society’s concern is also about the capacity of care home managers to undertake this work, given that the whole system is under massive pressure. Bluntly, the quality of care home managers is such—many of them are really good, but some of them are not, frankly, good enough—that we cannot rely on them to undertake this vital work, which goes to the protection of the civil liberties of vulnerable people.