Mental Capacity (Amendment) Bill [HL] — House of Lords, 2019-02-26
Topic: Social Welfare
Margaret Eileen Joyce Wheeler (Labour, Centre-left): My Lords, the amendment on this very important matter in the name of the noble Baroness, Lady Watkins, is fully supported on these Benches. The Minister knows the strength of feeling of support in the House to ensure that the cared-for person, or their carer, relative, friend or other person advocating on their behalf, is fully informed about their rights at the start of the LPS authorisation process. The amendment, carried by a substantial majority, was very clear on this issue. That information should be provided up front to families as a matter of course—information not only about the process, but importantly, their rights to advocacy and to challenge—in an accessible format that they can understand. The provision in Amendment 25 of a statutory duty for information to be provided "as soon as practicable" does not ensure that this essential up-front requirement for information is met. One of the excellent briefings on this matter from Mencap states: "Families’ carers have consistently fed back to us that the lack of information up-front meant that they didn’t know what was happening, that it was a process done to them and their loved one, and that set in motion misunderstandings, mistrust and instances of an appeal which could have been avoided had information been provided and explained at the beginning" Mencap’s concern is that the "as soon as practicable" provision could mean a system working on the timescales of the responsible body, rather than of the individual body and the families. That is our concern, too Amendment 25A addresses these concerns and ensures that the loophole in the Government’s amendment is addressed by requiring a record of the decision and justification to be kept where it has not been practicable to provide that up-front information about the decision to commence authorising arrangements under subsection (1). It also provides a necessary timeframe. We have heard that the noble Baroness, Lady Watkins, is not wedded to 72 hours, but it is important to have a timeframe within which, if a copy of the authorisation record has not been provided, there must be a review of whether the lack of information provision was appropriate. The requirement would provide the necessary safeguard for the cared-for person, and the hard- pressed staff, by facilitating routine record keeping and accountability for the decisions made. The noble Baroness pointed out some very explicit examples of the type of record that needs to be kept; it would not be onerous We are in a strange position, which we are slowly getting used to, of having the ex-Minister reassuring the House from the Government Benches that everything he promised has been delivered—before the Minister speaks. Amendment 25A highlights a significant loophole that needs to be addressed and I hope that the Government will accept it. We accept that the Government’s intention is to provide the information needed, and as soon as possible, but the amendment is necessary to reassure that "as soon as practicable" is not as open-ended as it can so often turn out to be.