Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-11-21
Topic: Law and Crime
Molly Christine Meacher (Crossbench, Unknown): My Lords, my noble friend Lady Murphy, who added her name to this amendment, apologises because she unfortunately cannot be here as she is not in the country Like other noble Lords, I thank the Minister for really listening to the serious points that have been made by noble Lords across the House and for taking things forward substantially since we started this work The two issues that I want to raise are, first, that it may be unhelpful to include within the LPS system cases where there may be a deprivation of liberty in a domestic setting and, secondly, that it may be helpful to all concerned if the Bill makes it clear as far as possible—and I know this is difficult—where the boundary lies between the Mental Health Act and the Mental Capacity Act. I will discuss these issues in turn. Their only common feature is that they concern two groups of people whose deprivation of liberty issues might best be dealt with outside this Bill Turning to the question of people in domestic settings, we should probably start with the Supreme Court’s judgment in P v Cheshire West and Chester Council, which has been referred to many times, which set the acid test of when a deprivation of liberty is occurring. Importantly, it lowered the threshold so that deprivations of liberty can also occur in domestic settings. This is absolutely right. It is perfectly possible to envisage cases where abusive relatives may be depriving a family member of their liberty in an inappropriate, disproportionate and even cruel way. A system to deal with such situations is absolutely necessary—I am not questioning that for one minute—and that system must ultimately have a process involving access to a court to determine disputes. The question is what system is appropriate for such cases and how far it can go to try to avoid references to court wherever possible, because these things can be very distressing for relatives and others involved Your Lordships will be aware that some informal carers consider the LPS system to be too expensive and an intrusion on family life. My noble friend Lady Murphy and I are—I was going to say "inclined" to agree with them, but we actually very much agree with them. Which system would provide a proportionate and effective protection of the liberty of people in domestic settings is what this amendment is all about The British Association of Social Workers, which represents the best interest assessors and others involved in deprivation of liberty cases at present, proposes that a new statutory definition could exclude home situations and domestic arrangements from a deprivation of liberty, thus removing the current expensive practice whereby the Court of Protection has to authorise these to make them lawful. In this scenario, the safeguarding provisions of the Care Act 2014 would be drawn on to protect people’s liberty within domestic settings We hope that between the Lords and Commons stages of the Bill—I do not think anything can be done before Third Reading—the Government will consult on this question and come up with very clear amendments to this Bill and to the Care Act 2014 regulations in order to establish a proportionate and effective system to deal with liberty issues in domestic settings. Both will be necessary I will give an example to clarify the real importance of proportionality. Under the safeguarding procedures, an 85 year-old caring for her 89 year-old husband with severe dementia, who feels she can manage only if her husband stays in one room, will have a stream of people calling to assess the needs and potential risks which might be involved. Nine different people may be coming to the house—the poor woman does not know who they are or what they are there for. In our view, she should not have to deal with yet more bureaucracy if it can possibly be avoided. It can be avoided if the safe- guarding professionals are able to assess the deprivation of liberty issue alongside—and within the same visit as—the other assessments. The Government will need to consider the definition of "domestic setting" and to determine whether this includes supervised living arrangements, which, of course, are not care homes. Again, that is a matter on which we need to defer to the Government to work out between the two Chambers I turn now to the dividing line between the Mental Health Act and the Mental Capacity Act, as amended by this Bill. Unlike DoLS, which are always based on the best interests of the individual, LPS may result in a person being deprived of their liberty, primarily where there is a risk of harm to others. In such cases, the best interests of the others who may be harmed must be taken fully into account, even at the risk of limiting the liberty, and indeed the best interests, of the individual who may cause the harm—one wants however to avoid that as far as possible. The two groups who come to mind are those with Lewy body dementia, and a small number of people suffering from autism. Sub-paragraph (1B) of our amendment would result in such cases being assessed under the Mental Health Act apart from in exceptional circumstances—I was persuaded that that was an important sub-paragraph to include within any amendment. These assessments would be done by people with experience of assessing risk resulting from disorders of the mind. They would be well equipped to assess deprivations of liberty and their necessity in these particular cases In my discussions with Sir Simon Wessely, who is leading the Mental Health Act review, and quite separately in a meeting with two of Sir Simon’s colleagues on the review, I came away clear that it would be helpful to flag up the need for further work on this issue. The Law Commission had proposed that, "risk of harm to others", should be an additional possible reason for detention under their "necessary and proportionate" test, and this was explicitly written into their draft Bill. Interestingly, the Government omitted the relevant text from their Bill Recently, the Government said in passing that "risk to others" will be a basis for detention, but this will be set out in the code of practice. I hope the Minister will agree that this really is unsatisfactory, unless the code of practice sets out that detention on grounds of risk to others will not be dealt with in this Bill. One could probably do that in the code of practice, but not the opposite. Is that in fact what the Government have in mind This is the issue where the outcome of the Mental Health Act review could relate directly to this Bill. The review reports on 12 December, and no doubt the Government will know the conclusions some days before that. I urge the Minister to try to ensure that work is done to produce an amendment to this Bill, clarifying the position of these relatively small groups of people who might best be assessed under the Mental Health Act rather than under this legislation The issue of stigma was raised earlier, but even the Royal Family are trying to address stigma with regard to mental illness. One should not put groups of people under the wrong legislation as a method of dealing with stigma, as it will not deal with it As the Minister made clear in our meeting, the best interests test is clearly set out in the Mental Capacity Act, and that carries forward into the Bill. That is absolutely right and important, but this is the most powerful argument for excluding "risk to others" as a criterion for deprivation of liberty under the Bill. These two situations—deprivation of liberty issues in domestic settings and deprivation of liberty due to a risk to others—require an appropriate judicial body for determining challenges to authorisations of deprivation of liberty. The judicial body needs to be accessible to enable participation in the proceedings of the person concerned, the speedy and efficient determination of cases, and the desirability of including medical expertise within the panel deciding the cases, when that is necessary—but not when it is not, which is important I hope that the Government will consider widening the scope of mental health tribunals to include a limited number of mental capacity cases as discussed here. The tribunals could be named mental health and capacity tribunals. In many cases, the judge of such a tribunal could determine the case on the papers without the involvement of the full tribunal. Sir Simon made the point to me that we do not have sufficient psychiatrists in this country, and we do not want a great backlog to build up simply because there are not the people to do the job. He seems to think that we have an abundance of judges—that would have to be checked; I do not know about that. These two important issues have not been given adequate attention. I beg to move.