Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I beg to move amendment No. 98, in

clause 6, page 4, line 6, after second 'is', insert

'at that time and in relation to the circumstances of that time'.

Mr James Cran (Beverley & Holderness, Conservative)

With this it will be convenient to discuss the following amendments: No. 166, in

clause 11, page 6, line 22, after second 'is', insert

'at that time and in relation to the circumstances of that time'.

No. 106, in

clause 20, page 12, line 23, after 'act', insert

'at that time and in relation to the circumstances of that time'.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

Perhaps I may again stand in for the absent Liberal Democrats and move the amendment. In this case, it is easier to divine the motives of those who tabled the proposal, which seem to me entirely admirable. We are moving to the limitations on section 5 acts. They seem inherently reasonable, which is why we do not propose to amend them heavily, although I have some small queries of my own.

The amendment tabled by Liberal Democrat Members is entirely congruent with the Bill's approach. It involves whether there is functionality for the individual person, so that acts done on their behalf because they do not have mental capacity should be relevant to the time and the circumstances, rather than being covered by a general dispensation that says, for example, ''You, the carer, may do what you like for the person because they lack mental capacity,'' or, ''You need never consider whether they might have mental capacity.'' That is important where restraint or any degree of coercion are concerned, which is, as I construe it, more or less the substance of clause 6. That is something none of us likes. We would not choose to be in a position where it was necessary to cut across somebody, because it might indeed intrude on their feelings. It has to be done appropriately and only in those conditions.

As I understand these amendments, they simply put down markers to say that any act should be proportionate and circumstance specific, and there should not be a general understanding that the carer may intervene to restrain somebody or restrict their liberty. That is an admirable objective. Perhaps the Minister will respond.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I understand, of course, that hon. Members are concerned to ensure that restraint of people who lack mental capacity is considered carefully. By ''restraint'' we mean both the use of force and the restriction of liberty or movement; it should not be employed lightly. The Government take the matter seriously.

Under the Bill, restraint is permitted only if it is necessary to prevent harm to the person, the act itself is in the person's best interests, and, I emphasise, the restraint used is proportionate to the likelihood and seriousness of the harm. That is a restatement of the common law rules, but putting them in clear and comprehensible statutory form will help everyone to understand them and be clear about what they have to do. The hon. Member for Daventry wants to ensure that restraint may be justified only in relation to a very tight set of circumstances. I understand his concern, and I hope I can reassure him that the Bill's provisions are already situation specific. I shall explain how.

Capacity is defined by whether, at the material time, the person is unable to make a decision. Clauses 11 and 20, together with clause 5, provide a defence in relation to a particular act only when all the relevant conditions have been satisfied. They do not provide an ongoing defence for a person using restraint. However, it makes sense for people to have that power in certain circumstances. If a person with dementia is likely to wander out of a house, it makes sense for her carer, attorney or deputy to be able to shut the door to protect her from harm each evening without having recourse to formal procedures.

If there is any doubt about the use of restraint, the act may be challenged as not being in the person's best interests, either through existing dispute resolution mechanisms or by making a complaint to the public guardian. In the case of deputies, the court may decide to amend or indeed revoke the deputy's authority. Clause 22(3) provides that a court may revoke a lasting power of attorney if the attorney is not acting in the person's best interests.

I hope I have reassured hon. Members that the Bill's provisions for restraint are already adequately situation specific. Neither the clauses on attorneys nor those on deputies provide an ongoing authority to use restraint. I hope the hon. Member for Daventry withdraws the amendment.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I am entirely satisfied with that explanation. No doubt those who tabled the amendment will wish to study the record on the matter but, ad interim, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I beg to move amendment No. 18, in

clause 6, page 4, line 12, after 'restricts', insert 'or threatens to restrict'.

Mr James Cran (Beverley & Holderness, Conservative)

With this it will be convenient to discuss the following amendments: No. 19, in

clause 11, page 6, line 28, after 'restricts', insert 'or threatens to restrict'.

No. 20, in

clause 20, page 12, line 29, after 'restrict', insert 'or threatens to restrict'.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I tabled these amendments myself, and they are in the same spirit as those that have just been discussed. We seek the Minister's clarification, and want to assure ourselves and satisfy the Committee that the safeguards are adequate, because we are talking about restraints on a person. They need to be

proportionate, act specific and implemented reasonably.

The three identical amendments are about restricting liberty of movement. The issue came to my attention when I first read the Bill. I noticed that under subsection (4)(a), someone who uses restraint is described as one who

''uses, or threatens to use, force to secure the doing of an act which P resists''.

Paragraph (b) mentions restricting ''liberty of movement''. Threatening to restrict liberty of movement is not specified. That may be because common law has not got there or because I am making an inappropriate analogy, but I would like the Minister to explain why it is not specified and whether it might be.

In the real world, it would be quite possible for someone who has become exasperated—not necessarily someone malicious—to say, ''And if you insist on doing that, I'll take away your Zimmer frame and you won't be able to use it and get around the room; your liberty will be restricted.'' That is not by itself a restriction of liberty, because it is a threat. None the less, it is an aggressive act towards the person, even if it is perhaps understandable in difficult circumstances. However, such threats should not be condoned without an explanation. Will the Minister speak on that concern?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I understand the hon. Gentleman's worries. Sometimes, threats can be very unpleasant and frightening to those who lack capacity—as frightening as the use of restraint. Unfortunately, the amendment would be unworkable for legal reasons. Even though it is a tort in law to threaten to use force, threatening to restrict the liberty of someone with or without capacity is not a civil wrong that our law recognises. The threat to restrict liberty of movement would not count as an unlawful act of restraint for which a person needed special authorisation under clauses 5, 6, 11 or 20.

For example, a carer might tell someone with learning disabilities that they will make him stay in his chair until he has finished his dinner. That might be unpleasant, but it is not an unlawful action, so the amendment would have no effect. That does not mean that in those circumstances we would not seek to ensure that the appropriate guidelines were issued in the code of practice, in addition to the appropriate information on support in circumstances of bullying. Such situations are not desirable.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I am grateful to the Minister for his elucidation. I am sadder, wiser and slightly concerned that the situation that has been described might arise, although I daresay it would not be appropriate to establish in the Bill a new legal precedent of the kind we are discussing. He has helpfully given me a way out, however, which will enable me to seek the Committee's leave to withdraw the amendment.

It might not be a tort and it might not be possible to put it in the way that I did, but I firmly hope that my suggestion will be in the draft code. I have not had a

chance to go through the code today to check whether it is. Acts that, as the Minister perceptively said, constitute bullying, even if they do not amount to a formal tort in respect of a person, are absolutely unacceptable. Possibly, they could be addressed in other ways, although that may require a degree of legal ingenuity.

I presume that if bullying were to become endemic in a particular case, it might eventually amount to a criminal act of negligence, but I do not know. I note some interest among those on the Labour Benches and the Minister might care to reflect on the matter. We all understand that such a situation is not what anybody wants from this Bill. I am sure that he does not want it, nor would he condone it happening. If we found a way of making it clear that it is offside, other than the idea I floated, I would be happy. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I beg to move amendment No. 21, in

clause 6, page 4, line 20, after 'act', insert

'or causing any act to be carried out'.

We are rattling through, and so we should. I pause on this point, however, to ask who is doing the act that is referred to. Somebody might have an agent to do an act for them in relation to a person that they were not doing themselves. That might be entirely sensible. For example, a nurse might be in my household when it was necessary to restrain somebody. I am not qualified as a nurse and I might regard it as sensible for them to carry out the restraint; I might not trust myself to do it appropriately.

Equally, I am concerned that somebody might be malicious, or might have some temporarily malicious motive, and might seek to avoid committing a tort on a person by trying to get a third party to do it on their behalf. Alternatively, there might be a joint act, where two people are involved in a restraint operation. I wonder whether the Minister will take us through that little set of circumstances. I assume that the matter is about not just who physically lays hands on a person, but someone commanding or requiring that to happen. I wonder whether he will explain how that works.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I take the hon. Gentleman to clause 6(6), which is included to ensure that despite the prohibition on clause 5 acts in clause 6(5), life-sustaining treatment, or acts necessary to prevent a serious deterioration in the condition of a person who lacks capacity, can safely be given without fear of liability if there is an issue that needs to be resolved by the Court of Protection. That is probably where the medical staff take a different view of best interests from an attorney or a deputy.

The protection offered by clause 5 is aimed at those who do acts in connection with care and treatment. We have already discussed that. Clause 5 provides a defence to the doing of an act that might be unlawful .

The protection offered by clause 6(6) is necessary because of the prohibition on doing a clause 5 act that conflicts with the decision of an attorney or deputy, as set out under clause 6(5). It is unlikely, for example, that an instruction to a member of staff to do an act

could itself amount to an act to which clause 5 would apply. Therefore, the prohibition on clause 5 acts in clause 6(5) would not apply. Even if such an instruction could amount to a clause 5 act, it would be covered by clause 6(5) in any event, because it would be an ''act'' in its own right. For that reason, we think it is caught by clause 6(5). I hope the hon. Gentleman will withdraw his amendment.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

That was a most eloquent explanation, which allayed one of my fears at the expense of creating another. I appreciate that we cannot proceed backwards through the Bill, but the logic of what the Minister has said is that there could be a problem with clause 5 acts. If such acts were commissioned by somebody, the commissioner would not be protected, even if, as I understand from what the Minister has said, the person who carried it out might be.

That would not be an extraordinary situation. Leaving aside the context of a threat to life, as set out in clause 6, about which the Minister has spoken, somebody might say, ''Will you do this for me?'' or, ''It's my day off. Could you do the care act?'' Someone might instruct a person to do something, and might not carry out the act themselves. It should be clear that, assuming that the act is decent and done in good faith, neither the person who commissioned the act nor the person who carried it out should be subject to an action in tort. Perhaps we cannot resolve the issue, and I am not sure that we should jog back and debate it extensively—but does the Minister understand what I am concerned about?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I am not sure that the commissioner would necessarily be committing a tort. The issue relates partly to the debate that we had a little earlier, and may be illustrated in the letter that I undertook to send to the hon. Gentleman.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I slipped up and did not table an amendment about this issue, but will the Minister consider subsection (7)? It states:

'' 'Life-sustaining treatment' means treatment which in the view of a person providing health care for P is necessary to sustain life.''

My difficulty with that is in the reference to ''a person''. As the Minister has said, there will often be a large number of people in a team providing health care for a person, certainly when that person is suffering from a life-threatening condition. Is the Minister saying in effect that the view of a single person in such a team would constitute an absolution from the provisions of subsection (5), or is he saying that the team would have to come to a collective decision? That is a potential difficulty, which the Minister might like to consider.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

May I consider it?

Question put and agreed to.

Clause 6 ordered to stand part of the Bill.