Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-09-05
Topic: Civil Rights
James O’Shaughnessy (Conservative, Centre-right): I do hate to disappoint. I thank the noble Baronesses for introducing this point. We discussed it at Second Reading and I have huge sympathy with the concerns about this kind of language. Frankly, it is not the kind of language that we use. As the noble Baroness, Lady Murphy, pointed out, she has not diagnosed anyone as being of unsound mind for decades. It is a throwback and we are in the process of destigmatising mental health issues, as the noble Lord, Lord Cashman, pointed out. That is an endeavour that we are engaged in earnestly together. However, it is important to distinguish between the operational language used in care and the language used in the courts, and I want to discuss that This is not just about semantics; it is about terms that have established legal precedent and a jurisprudence based on their interpretation. It is worth discussing the consequences of deviating from a term that is in current use because of its role and the fact that the phrase is used in the European Convention on Human Rights. As the noble Baroness, Lady Tyler, pointed out, the term has not changed since the 1950s and the creation of the ECHR, and it has subsequently been used by the Strasbourg court. There is a risk, and it is worth recognising, even if it is one that noble Lords might be prepared to contemplate. The risk is that a different expression such as the one proposed by the noble Baroness, Lady Tyler—it is a perfectly reasonable starter for 10, as I think she called it—could create a gap for some people who need access to liberty protection safeguards but do not meet the criteria of having a disorder or disability of mind, although they would have met the criteria of unsound mind It is important to note that the Law Commission used this language. We have been accused of deviating from the Law Commission Bill but it used this language and we have copied it to ensure that the liberty protection safeguards are compliant with the ECHR and that there is no gap with people not being covered. This could include people with learning disabilities, brain disorders or disorders of consciousness. In essence, the problem here is not this Bill. In a way, the Bill has a problem because of the language that has not been changed since its creation in the ECHR Therefore, although I agree with the sentiment behind the amendment, new terminology would risk creating a gap for people between the ECHR and this proposed law, and we are all concerned to avoid such gaps. Any gap would require people to have recourse, instead, to the Court of Protection. Therefore, it is not the case that people would have no recourse; they would have recourse to the Court of Protection, but we know that the people being cared for and their families and carers can find that an intimidating and difficult process It is also important to note that the Court of Appeal has indicated that some people with certain forms of learning disability might not be considered mentally disordered under the definition put forward by the noble Baroness but would still be considered of unsound mind for the purposes of the convention. That is another reason why there is a risk of a gap. For example, there is a particular risk that some individuals with brain injuries, or certain disorders of consciousness, might fall within the gap At Second Reading I did say, earnestly, absolutely and honestly, that I wanted to take this away and consider it, because of the frankly unsatisfactory nature of the term when it comes to modern practice. We have also listened to the contributions of a range of stakeholders—a number of people are of course very interested in this, and not just in this House—and to the contributions of the Joint Committee on Human Rights to see whether it is possible to use better language. I know this is not something the House will welcome, but I have concluded that, although the term is regrettable, there is a risk in using alternative language of creating a gap. Between those who would be captured under the definition suggested by the noble Baroness, Lady Tyler—or, indeed, potentially any other definition—and those currently captured under the terminology "of unsound mind"—