Clause 20 - Restrictions on deputies
Mental Capacity Bill
4:00 pm
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I beg to move amendment No. 35, in
clause 20, page 11, line 37, at end insert
'except in case of urgent necessity'.
We now move on to restrictions on deputies. As the Minister will appreciate, we are shifting to the personal care and welfare side of things. Nevertheless, this is all part of the complex matter of ensuring that the safeguards are watertight.
Clause 20(2) refers back to clause 16(5) and clause 17:
''Nothing in section 16(5) or 17 permits a deputy to be given power—
(a) to prohibit a named person from having contact with P''.
That is my primary concern, although I suspect from the way that the amendment is drafted that it would also embrace subsection (2)(b).
I am worried about whether there is a real-world problem in relation to an urgent situation. We are moving from what has been essentially a doctrine of necessity, where people have been able to do whatever was necessary, to a codification of the law. That, rightly, has to set limits as well as give powers.
I understand that it is not appropriate in normal circumstances for a deputy to have the power to prohibit a named person from having contact. That could be a serious and distressing issue if, for example, the person was a loved sibling or spouse who might have given rise to difficulties, or whom the deputy might have judged had done so. I agree that, ultimately, it would be improper for the Court of Protection to take that decision. However, circumstances could arise in which it would be
necessary for a deputy—although not necessarily a deputy; it could be somebody who is a carer under clause 5—to exclude access to a particular person. Someone could have had a seizure of some kind, or in the extreme case have gone mad, or have become violent or distressed. Therefore, it might be necessary—to protect the person without mental capacity—for someone to be excluded, even if in normal circumstances it would be perfectly reasonable for them to have access.
I do not know whether there is still some overriding safeguard in clause 5 or in some residual doctrine of necessity that will enable the deputy to protect the person without capacity in those circumstances. The Minister must say whether there is such a safeguard. I envisage that that would be in exceptional cases, but that is exactly what we are trying to do: ensure that there are no exceptional circumstances in which the deputy has to sit back with folded hands and allow something to happen that would probably be very distressing, and possibly even dangerous, for the person without capacity. That is a small point, but equally it is an important safeguard to achieve.