Clause 1 - The Principles
Mental Capacity Bill
2:30 pm
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
The hon. Gentleman is right that we will return to that issue. There is a fine balance in the Bill between the rights. He knows that people who care for those who lack capacity often have to do acts in connection with care that can involve restraint and invading freedom of action. I understand that his amendment cuts to the heart of the issue.
Hon. Members will see that I am not talking about a certain prescribed set of rights, such as those set out in the European convention on human rights, but about rights in the most general sense—the entitlement that every human being has and without which they cannot live a fully autonomous life. It is right that those who lack capacity should have those rights as well. That is why I gave the example of the mother who wants to ensure that a son who does not understand the dial in the shower does not burn himself, but who equally wants to ensure a balance between his privacy rights and other things. That is why we come back to the least restrictive manner and the terms in which the clause is couched. I want the rights of those who lack capacity to be respected as much of those of anyone else. I hope that I have covered all the issues that have been raised.
There is one final point to make. The hon. Member for Daventry (Mr. Boswell) asked whether I could speak a little about the principles set out in clause 1 and how they relate to the rest of the Bill. I think that it is worth examining the reason why the principles are set out in the clause. Hon. Members may recall that the draft of the Bill, which was considered by the Joint Committee, did not have principles set out up front. The Joint Committee thought that a statement of the Bill's principles would be particularly useful, and it said in its report:
''We believe that such a statement inserted as an initial point of reference could give valuable guidance to the Courts, as well as helping non-lawyers to weigh up difficult decisions. Evidence given to us indicates this would be welcome to a wide range of those who have to deal with the problems of substitute decision-making in practice. We also believe that such a statement would be valuable in helping to frame the Codes of Practice based on the Bill.''
For that reason, we agreed with the recommendation and set out the principle.
The hon. Gentleman asked me to explain how the principles, particularly the one dealing with the Court of Protection, interact with the rest of the Bill. The principles sit at the heart of the new provisions in the Bill. For example, they make it clear that the starting point is that the person has capacity, and underlining that up front in clause 1(2) means that people will return to it.
Sitting suspended for a Division in the House.
On resuming—