Clause 6 - Section 5 acts: limitations
Mental Capacity Bill
4:00 pm
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.