Mental Capacity (Amendment) Bill [HL] — House of Lords, 2019-04-24
Topic: Health
Elizabeth Barker (Liberal Democrats, Centre to centre-left): My Lords, it has been a privilege to work again on a subject that we have now worked on several times in this House, from the original pre-legislative scrutiny and original legislation through to the post-legislative report on the implementation of the previous Bill. Apart from anything else, it shows the excellent results that can be achieved from the process that we put into scrutinising legislation and scrutinising its subsequent implementation. In light of all of that, I will say that I take a slightly different view from the noble Baroness, Lady Murphy. I think that we have done a very good job. The problem is that the legislation that came to us was fundamentally flawed, and we could not change that. But we changed the legislation where we could, and those changes will make it better The noble Baroness hit on two fundamental issues that are problematic. The first is the nature and scope of the Cheshire West ruling and the second is the lack of understanding of the original DoLS legislation. When it was introduced, the training for professionals—all sorts of different professionals—was lacking. Much of what has happened since has meant that we have fallen into a system that is deeply bureaucratic. A number of professionals are scared to exercise their professional judgment. Consequently, a whole bureaucracy has grown up around DoLS which, had it been introduced in the right way, would not have happened. Therefore, the noble Baroness was right to say that the Law Commission was trying to deal with that issue and could not. I have no doubt that what we have in front of us will not solve the problem. I doubt very much whether it will deal with the backlog of cases, about which people are rightly exercised My question is one that we were all concerned about—the resourcing for this. One of the first things that we did when we met the Bill team was to query the resourcing—half a day’s training for some doctors and no need for training for people in care homes. Much of that has got lost as we have gone deeper into the wording of the Bill. Will the Minister talk about the resourcing of training and the implementation of the code of practice? I have no doubt that, in due course, there will be further test cases that will shine a light on the deficiencies of this legislation and we will come back to dealing with the fundamental issue: how do we ensure that someone whose liberty is going to be deprived by an agency of the state can be enabled to understand their rights, and their carers enabled to understand their rights, in order that they and the professionals who work with them can ensure that everything is put in place to minimise the deprivation of liberty? If we had done that properly in the first place, we would not be dealing with the deficient legislation that we are now The noble Baroness, Lady Murphy, is right that we have not dealt with it, but I take some hope from a lot of the stramash, to use a Scottish word, that we have been through and the attention that has been paid to all of this by the department, by people in the sector and by the lawyers themselves. This is not the greatest job we have ever done, but what we should do today is put a marker down for the evidence that needs to be collated and gathered for the time in the future when we will, inevitably, return to this subject.