Clause 5 - Acts in connection with care or treatment
Mental Capacity Bill
2:30 pm
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
Surprisingly, although it would seem more radical to excise a paragraph, as we propose under amendment No. 16, amendment No. 17 is the more radical and substantive.
It has been brought to my attention that the Liberal Democrat benches are unmanned this afternoon. Committee members will be aware that that happens from time to time due to constituency obligations, particularly on Thursdays. I intend to say nothing derogatory about that, because it is perfectly reasonable and happens occasionally, although it is regrettable. I assure the Committee that I have no wish to assume the mantle of the Liberal Democrat spokesman. I have enough difficulties as it is with my side of the argument. However, there may be occasions when, in order to facilitate the argument, it is sensible for one of us to step in and move a Liberal Democrat amendment so that we do not lose the point. I say that because the word ''interest'' has been
mentioned a number of times, and the research that I have done does not indicate that my amendments, which come later in the group, are contingent or dependent on a Liberal Democrat lead. We shall see how it goes. I say that not by way of advance decision, but advance health warning.
I do not propose to say anything in particular about the Liberal Democrat amendments—because I have not thought about them much—but I shall say something about mine. Amendment No. 16 would exclude clause 5(1)(a). There are two duties on D in relation to P. We should remember that the situation in question involves what might be termed a common carer, not a person who is taking a decision in a medical or professional capacity. It is the kind of position that we might hold in relation to our loved ones or others we may be required to help—for example, in an emergency—in which we may need a degree of legal protection. One benefit of the Bill is that it offers for the first time a coherent legal protection for innocent people who are acting on behalf of others.
The Bill is structured with two obligations. First, there is the advance one, which I am nominally, for probing purposes, seeking to remove, whereby a person should be taking reasonable steps to establish whether P lacks capacity in relation to the matter in question when the act is taking place—remembering that the decision is not quite the same as an act. The Minister may like to comment on that . In such a case, I think that a decision is instantaneous, but that may not be so. It may be conditional, but when it actually takes place it is instantaneous. In the second obligation, D must reasonably believe that P lacks capacity and that it will be in P's best interests to carry out the act. I reassure the Committee that I have no intention of returning to the ''best interests'' issue now.
For the purpose of amendment No. 16, the question is: what are the reasonable steps that D would have to take beforehand? The Minister will no doubt want to tell us that that is ultimately for the courts to determine and one could have regard to the code. Well founded suggestions from another quarter say that it is important that people who are not experts are given adequate information about the code and what it is reasonable for them to know. The Minister will remind us that reasonableness is fairly well and objectively founded in law, and it should be clear enough to somebody doing something that they have legal cover for doing it.
That brings me to the purpose of amendment No. 17, which was specifically about what happens if that is not done—if the carer, or person responsible for the care of the person who is arguably without capacity acts carelessly or is acting in a way that might eventually lead to some civil, or even criminal, proceeding.
The Minister will know—I make this point to begin with, and I hope it reassures him, too—that the new negligence offence in clause 42 will not fall in relation to clause 5. Someone criminally negligent will continue to be so. However, I was concerned about the nature
of what I think the lawyers would call the tort—the Minister will correct me if I am wrong—in respect of the offence between the carer and the person without capacity. Is acting without consent in itself something that could be the subject of civil litigation?
Failure to take reasonable steps to ascertain whether the person had mental capacity is contingent upon any harm done by the failure to do that. That is precisely the sort of thing that judges get excited about when they suggest punitive damages because somebody's procedure has been at fault. Even assuming that mental capacity or the lack of it has been established, I am concerned about the position in respect of failure to consult the person involved and to have regard to their feelings and the other duties set out in clause 4. As a subset of that question, I am concerned about whether an advance decision made when the person had capacity is complied with.
The last thing I want to do is signal to the Committee a wish to create a spider's web of litigation that enfolds genuine carers. I am just anxious to tease out of the Minister what the duties are on a carer—they are set out to some extent—and what sort of litigation could arise or would not be excluded by the way the duties are set out. Clearly, there is no justification for a person to neglect somebody in their care, and as I understand it that would now be subject to a criminal proceeding under clause 42—I see that the right hon. Member for Rother Valley (Mr. Barron), who is a member of the General Medical Council, is nodding. That is not the issue with regard to this clause; I think that that is taken as read and that we would not want to argue about it. Nor do we want to encourage litigation involving persons who lacked capacity at one time so that the first thing they do when they have recovered—from a period of unconsciousness, for example—is sue their carers.
However, the Committee needs to spend a moment or two making clear the questions at issue. Were wrong acts done that damaged the person, perhaps they did have capacity but the carer assumed that they did not? Are acting without consent, or failing to take reasonable steps to ascertain the wishes of the person, or failing to establish whether they have capacity separate heads of damages? Even if those things are established, do they separately constitute a failure to consider the person's feelings in the matter?
We are trying to establish an understanding of best practice. Sadly, there will be cases in which this kind of question will be taken to court—by a vengeful relative, perhaps, or for perfectly reasonable reasons, or even for test reasons when somebody feels it is right to have a point explained or brought up in court without regard to the amount of damages. I am unclear about what is at stake, what is the nature of the relationship between the two obligations, and what in principle is sueable in the event of non-compliance. I am anxious to get clarification from the Minister on that. This is not a signal to create difficulties; it is just a signal to try to get the Minister to anticipate them.