Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-11-27
Topic: Health
Claire Tyler (Liberal Democrats, Centre to centre-left): My Lords, I shall speak to Amendments 142 and 144. My substantive Amendment 142 requires that the code of practice to the Mental Capacity Act and the government response to the independent review of the Mental Health Act must be laid before Parliament before the provisions of the Bill come into force. I shall focus on the latter, as we have already heard from the noble Lord, Lord Hunt, about the code of practice The independent review of the Mental Health Act is due to report its final recommendations on 12 December. I know this because last week I attended a helpful briefing given by Sir Simon Wessely to interested parliamentarians, in which he outlined his broad findings. However, until that review is published, we cannot know how its recommendations will impact precisely on this Bill. We know that the Mental Capacity Act and the Mental Health Act are the only two pieces of legislation that allow a deprivation of liberty for the purposes of care and treatment and that, as such, there will inevitably be cross-over between the two. I thank the Minister for confirming in Committee that these documents would be produced before the Bill is enacted. However, I am concerned that the Bill could have completed its parliamentary passage by the time the Government respond to the independent review. Therefore this important debate is taking place in a vacuum of information on how people with severe mental illnesses could be affected by the proposed LPS Sir Simon Wessely has indicated that his review will not consider the full fusion of the Mental Capacity Act and the Mental Health Act, which some people were advocating a while back, but there are none the less many outstanding questions on the interaction of the Bill with the Mental Health Act and, frankly, until it has reported they are impossible to answer Under the Mental Health Act, there is no capacity test and the capacity-based principles of the Mental Capacity Act do not apply to mental health care or treatment provided under the Mental Health Act. People without capacity are nevertheless detained and treated under the Mental Health Act. We know there has been a dramatic rise in recent years in the number of those aged over 65 being treated under the Mental Health Act. Indeed, the Care Quality Commission has highlighted that both the broadening of the definition of deprivation of liberty in the light of the Cheshire West judgment and the associated overburdening of DoLS, which is what we are talking about, are likely to have played a role in this As a result, there are still crucial questions about how the independent review of the Mental Health Act will address people who lack capacity and what the implications may be for those who fall under the LPS regime depending on where the dividing line between the two Acts is drawn. It is an incredibly complex picture Let me say a couple of words finally to highlight and paint a picture of that complexity. It is not possible for a person to be subject to the LPS when they are already detained under the Mental Health Act, even if they lack capacity. However, it is possible for people who are in hospital to be subject to the LPS if they are not detained. The LPS was not primarily designed for people with severe mental illness whose conditions are likely to fluctuate, improve or be contested more frequently than, for example, dementia. While I have focused on the needs of those with severe mental illness under the LPS, many of the same points apply in the opposite direction I could go on but I will not. I hope these illustrations of how the Mental Capacity Act is applied to mental health patients, and the Mental Health Act to people without capacity, in these two overlapping legislative frameworks have shown the necessity for this amendment so that the two can be finally considered together, a point which I and many other noble Lords have raised consistently since Second Reading.