Clause 5 - Acts in connection with care or treatment
Mental Capacity Bill
2:45 pm
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
Amendment No. 16, tabled by the hon. Member for Daventry, proposes that subsection (1)(a) be removed. The effect would be to remove the requirement for the person who does an act in connection with care and treatment to take reasonable steps to establish whether the person lacks capacity in relation to the matter in question before doing it.
The hon. Gentleman explained the amendment, but I must resist it. It is undesirable, and I shall explain why. He may be aware that paragraph (a) was inserted into the Bill in response to concerns expressed by the Joint Committee, which thought that the clause as originally drafted gave the impression that people had a general authority to intervene and make decisions on behalf of those who lacked capacity. The paragraph therefore emphasised the Bill's ethos of empowerment and personal autonomy, and the key obligation of all carers to support and maximise the decision-making capacity of the person who lacks capacity.
The purpose of the paragraph is to underline the fact that people who make decisions on behalf of those who lack capacity must take reasonable steps to determine the latter's lack of capacity in relation to the matter in question. We have discussed those reasonable steps under the best interests clause. The amendment is undesirable in policy terms, for those reasons.
The hon. Gentleman linked his argument to amendment No. 17, which is the mainstay of his amendments. It is important to stress that the first part of the amendment is unnecessary and would have no legal effect because of provisions in the Bill. The clause provides a defence against liability, not an authority to act. If the person acting does not follow the steps set out in the clause, he may already be civilly or criminally liable to the incapacitated person for the act done, if the act would be unlawful without his consent.
The hon. Gentleman asked for what the provision provided a defence. There is a whole range of defences. He talked about intentional torts, and he was right about that. Assault, battery, false imprisonment, confidentiality and trespass are all matters in respect of which people who cared for those lacking capacity were at the mercy of the common law without knowing any detail. A person may need to invade someone's privacy; they may need to go into the shower to turn a person's water off, or undress an adult son. All those day-to-day circumstances involving people who care for those who lack capacity are for the first time encompassed in a defence under the clause. I hope that that gets to the nub of the hon. Gentleman's point.
The clause applies to actions, not decisions. It is because it applies to actions that certain acts could, in other circumstances, be unlawful. The clause is designed to provide a defence for the people who
make those caring decisions about acts that happen every day.