[Relevant Documents: Seventh Report of the Joint Committee on Human Rights, The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards, HC 890, HL Paper 161. Twelfth Report of the Joint Committee on Human Rights, Legislative Scrutiny: Mental Capacity (Amendment) Bill, HC 1662, HL Paper 208.]
I beg to move, That the Bill be now read a Second time.
Every Member of this House will agree that we have a duty of care to the most vulnerable in our society, and that everybody deserves to be treated with dignity and respect, no matter what their physical or mental condition. I hope that the House will also agree that liberty is a fundamental right, and that no decision on the deprivation of liberty can ever be taken lightly. Such decisions can be taken only to protect society or individuals. There are currently 2 million people in this country who have impaired mental capacity. Care homes and hospitals often have to take decisions to restrict people’s movements in order to protect them. That could involve preventing elderly people with dementia from moving, or stopping vulnerable people getting access to things that they could use to self-harm. The present deprivation of liberty safeguards are meant to ensure that people who lack the capacity to make decisions for themselves are not deprived of their liberty unfairly or unnecessarily, but the current system is broken and needs to change.
The resource question is an important one, and so too is the process. The question of resources and the question of what the process is go hand in hand. There has been an increase in the amount of resources given to local authorities to enable them to deliver in this area, but the question will undoubtedly arise again as we run up to the spending review.
Yes, I have. This is an incredibly important point. The deprivation of people’s liberty in a police cell when there is a lack of mental capacity—or, in certain circumstances, when there is a serious mental illness—happens far too often. The purpose of police cells is to detain criminals. Providing a system in which such people do not have to be held in police cells is absolutely critical and part of our plan.
I want to make a little bit of progress.
For many reasons, the current system is broken. Too many people do not have the protections they need because of a bureaucratic backlog. There are currently more than 125,000 people waiting to be processed, and nearly 50,000 people have been waiting for over a year.
I thank the Secretary of State for giving way. I share his view on the extent to which the current system is broken. He will be aware that the Bill came under substantial criticism in the House of Lords, and that substantial improvements were made to it there. There is a recognition, however, that there is still a long way to go. Will he commit to working with the Opposition parties and to meeting us and interested parties beyond Parliament to ensure that by the end of this process we have an agreed Bill that will actually improve people’s safety?
Yes, absolutely I will. I know that the right hon. Gentleman met the Minister for Care, my hon. Friend Caroline Dinenage, yesterday to discuss this question. Of course this ought to be a collaborative process. Improvements were made to the Bill in the other place—I shall talk about those in a moment—but we recognise that further improvements could still be made. Ultimately, there is a careful balance to be struck between the need to protect people who do not have the full mental capacity to take care of themselves and the need to ensure that we do not deprive people of their liberty unnecessarily. That is a careful balance, and we should take this forward on the basis of open discussion and deliberation, rather than of a party political ding-dong.
The Secretary of State is clearly right about the system being broken, and one aspect of that is the shockingly low rate of appeals under deprivation of liberty orders, which currently stands at about 1%. Although the case law has become clearer, in most situations there is a positive obligation on advocates to progress cases to court where somebody is objecting to their deprivation of liberty, either directly or even through their behaviour. In contrast, 47% of detention decisions under the Mental Health Act 1983 are appealed. The Bill’s impact assessment predicts that the number of appeals will halve under the new procedure. Given the amendments that were made to the Bill in the Lords, does the Secretary of State think that the Government should now review that figure?
All such considerations should be taken into account and looked at in Committee. We made changes to that area in the Lords, and we are determined to reach the right balance, but I take the hon. Gentleman’s important point seriously. Like anyone who has read the Bill, he will know that it makes a significant improvement in this area. Rather than cases being immediately passed on to the courts, there is a process in place both before the deprivation of liberty where that is possible, which is a big improvement, and then later on when the deprivation is questioned. I accept the thrust of the hon. Gentleman’s intervention, but the Bill makes significant progress, and if he has suggestions for how the details may be nuanced still further, we are all ears because this is very much a collaborative process.
I am surprised that this Bill and the reforms to the Mental Health Act are not being considered at the same time. As I understand it, this Bill would allow clinicians and managers to detain somebody for up to three years without a renewal decision, which is much longer than is recommended for community treatment orders by the Wessely review. If both reforms are implemented, patients detained under the Mental Health Act could have the security of a shorter review period than those detained under this Bill. Will the Secretary of State tell me whether that is the Government’s intention or simply a mistake?
The hon. Lady is not quite right about the three-year period, because there are review points, meaning that it involves a twice-possible one-year extension, so she is not quite right about the relationship between that and what happens under the Mental Health Act. However, she makes an important point about the links between the Mental Capacity Act 2005, this Mental Capacity (Amendment) Bill and the mental health Bill that we propose to bring forward.
We considered putting the two Bills together, but we did not do that for two reasons. First, it would simply be a big Bill that included two separate regimes, and we would not want the full Mental Health Act powers to be applied across the board, and I think there is a broad consensus behind that. Secondly, the view of Sir Simon Wessely, who ran the review into the Mental Health Act, is that we need to get on with this while taking the time to get the Mental Health Act update right. Combining the two was seriously considered, and I considered it again when I became Health and Social Care Secretary and asked for further advice, but we came to this conclusion, which I hope the hon. Lady will support.
I do not disagree with Sir Simon Wessely’s conclusions about that, but the review does contain suggestions that could be transferred into this Bill. For example, the use of tribunals instead of the Court of Protection in some cases would make them a lot simpler, cheaper and better for the person involved.
The right hon. Gentleman is quite right. To start to deal with the serious number of cases that we need to make progress with, the interface between this Bill—hopefully on the statute by then—and the Mental Health Act provisions will be considered as we develop the draft mental health Bill. The truth is that the current system causes unnecessary suffering, and the case for reform could not be more urgent. That is why we are bringing forward this Bill now. Age UK, the UK’s largest charity working with older people, says we have a crisis in the current system that is
“leaving many older people with no protection at all…
If we lose this opportunity we’re unlikely to get another one in this Parliament and it is profoundly unfair on the older people and their families…to have to wait any longer…doing nothing is not an option.”
I have had some discussions on that subject, and I am happy for the hon. Lady to take up that point in more detail either directly with me or with the Minister for Care, or in Committee, because there are significant interlinkages between the two areas.
The Bill builds on the extensive work and recommendations of the Law Commission. It has been fully scrutinised by the Joint Committee on Human Rights and then improved by the other place, as has been discussed. I am grateful for all that work. Ultimately, it is about striking a balance between liberty and protection.
We built the Bill on the basis of the Law Commission report, but we have put some differences into the Bill. For instance, we think the principle of prioritising people over process is important, and we have strengthened that compared with the Law Commission’s recommendations. The Law Commission improves the law but does not make policy decisions. On top of the Law Commission’s work, which is incredibly helpful, we have made further policy decisions to ensure that people are put more foursquare at the heart of the process. It is true that the Bill and the Law Commission’s recommendations are not exactly aligned, but I would strongly defend our further improvements.
I have the privilege of chairing the all-party parliamentary group on speech and language difficulties. The Royal College of Speech and Language Therapists is concerned about the conflation of mental capacity with speech and language difficulties. It is important we have provision so that people with speech and language difficulties are appropriately assessed and are not banged up because they are thought to be dangerous. There should be enough training in light of the fact that 60% of people in the criminal justice system have speech and language difficulties.
The hon. Gentleman is absolutely right about the importance of getting highly trained social workers to make these judgments and about the importance of making sure such training is provided for and embedded in the Bill. He speaks powerfully, and I agree with how he puts it.
The Bill introduces a new liberty protection safeguards system, and it makes the authorisation simpler and more straightforward. It removes some bureaucracy and duplication, and it makes the system easier to navigate for individuals and their family. People will get their rights protections sooner, there will be greater independence when decisions are taken to restrict liberty, and the NHS and social care providers will be given a bigger role in the decision-making process so that people under their care receive the right care and their rights will be protected. It will introduce an explicit duty to consult the person being cared for and to consider their wishes and feelings.
An appropriate person will have greater involvement in any decision to restrict liberty, so their role is essentially to speak for those whose liberty is potentially being restricted. We have framed this in terms of an “appropriate person” because in large part this will be a family member or a carer, but that cannot always be the case.
It could easily be a carer, yes. Some people have no family and in others cases the family are not the appropriate people to be the spokesperson for those who are mentally incapacitated. The appropriate person—the families and carers—will have greater powers to intervene or to object. Crucially, where there is no family or an appropriate person to advocate for the individual, the person has the right to an independent mental capacity advocate. So in all cases there should be a person whose role in the system is to advocate on behalf of the person whose liberty is being restricted.
Does the Secretary of State accept that that access to an advocate should not be necessarily subject to a best interest test, as is being proposed, but should be a right?
Order. Perhaps I will have to set it out differently. What I am trying to say is that we have 11 Members to speak and we could try to give them some time. Important as this and giving way all the time is, it is very important that we hear from other people.
Noted. Returning to the point made in the intervention, of course if there is an objection, there is a right in this case. So there is an escalation process in the event of an objection.
Before I end, I want briefly to deal with the Opposition’s reasoned amendment, because I hope we are able to show in this debate that all the points they raise have been considered. I hope the House will not mind my taking a moment to address each one briefly. First, they make the claim that somehow the Bill has been rushed through and insufficient pre-legislative scrutiny has been carried out. The Bill follows the Law Commission spending three years developing the new model, consulting extensively. The Joint Committee on Human Rights then conducted an inquiry and pre-legislative scrutiny. The Local Government Association, Age UK and Sir Simon Wessely have all backed the new legislation now. The LGA says:
“The Bill provides a vital opportunity for long-awaited reform” and it needs to be passed. So we need to get this Bill on the statute book, because every extra delay risks depriving someone of their liberty and their right to freedom unnecessarily, and I do not want to see that happen.
Secondly, the amendment claims that the Bill
“enshrines a conflict of interest in relation to independent providers of health and care services”.
Again, that is not the case. Every authorisation must be reviewed by somebody who does not deliver day-to-day care and treatment for the person in question. We plan to go further by tabling Government amendments that will require authorisations in independent hospitals to be reviewed by an external approved mental capacity professional. Finally, the reasoned amendment claims that it is concerned about clearing the backlog in the current system. Well, so are we, and that is what this Bill does. Anyone concerned about the backlog and the current system should back the Bill with enthusiasm.
The claims that this Bill does not put the interests of the cared for person first or address the interface with the Mental Health Act have been addressed already. The very reason we need this legislation is so that we can put their interests first, because they cannot afford to wait for the recommendations of the Mental Health Act review to come into effect, in a Bill that will inevitably take time to develop, because of the need to do this on a consultative and broad basis. While welcoming the probing, I very much hope that the Opposition and every Member of this House will support this Bill, because it strikes a careful balance between liberty and protection. It offers vulnerable people a brighter and better future. We have listened to concerns and we continue to be open to ideas. We have sought to amend and improve the Bill as it has progressed through the other place, and we will make further amendments in this House. I therefore hope that this opportunity to change the system for the better is one that the House recognises. I also hope it will recognise that doing nothing is not an option. That is why I am proud to commend the Bill to the House.
I beg to move an amendment, to leave out from “That” to the end of the Question and add:
“this House declines to give a Second Reading to the Mental Capacity (Amendment) Bill, notwithstanding the need for reform to the current system of mental capacity assessments and while acknowledging the improvements made to the Bill by the House of Lords, because the Bill underwent no pre-legislative scrutiny, it does not put the interests of the cared-for person at the heart of the Bill, it enshrines a conflict of interest in relation to independent providers of health and care services, it fails to provide measures to reduce the substantial backlog of Deprivation of Liberty Safeguards Assessments and it fails to recognise explicitly the interface with the Mental Health Act when determining which legislation should be used to authorise care or treatment arrangements.”
The issue before the House today is one of fundamental importance to us all: the individual liberty of vulnerable people. Today, we are being asked under which conditions it is right to deprive vulnerable people of that liberty when they need care and treatment and cannot give their consent, and what protections should be in place when their liberty is taken away.
The proposals in the Bill to replace deprivation of liberty safeguards have the scope to affect the rights of a large portion of the 2 million people in the UK thought to lack capacity to make their own decisions. Among them are people with dementia, learning disabilities, autism and brain injuries. Whether to deprive some of the most vulnerable people in this country of their liberty should be an issue that we treat with the utmost respect, thought and care. However, I am afraid the Government’s approach to this immensely important issue has shown few of those qualities.
The reform of the Mental Capacity Act 2005 requires methodical planning, but the truth is that the Bill has been rushed through without proper scrutiny, despite the best efforts of many people who are concerned about its contents and have been working to change it for the better. The fact that the Bill has less than two hours for Second Reading and was brought forward with just two sitting days’ notice speaks volumes of the speed that the Government are adopting in respect of the Bill, and will raise further concerns among those who care about these matters.
The process of reforming the 2005 Act began when the Law Commission produced a draft framework for new liberty protection safeguards to replace the existing deprivation of liberty safeguards. That came after two years of painstaking work and wide consultation ended last year. The Government accepted the commission’s proposals at the time they were produced, but the Bill that was introduced to the House of Lords has diverged substantially from the original recommendations— an issue on which the Secretary of State answered a question earlier. At the outset of the process, the draft Bill published by the Government was subject to no prelegislative scrutiny whatsoever, meaning that important stakeholders were not consulted about its contents.
During the Bill’s passage through the House of Lords, my colleagues and I heard many concerns about it from interested stakeholders, from charities representing people with dementia, learning disabilities and autistic people through to directors of adult social services, organisations representing social workers, and social work professionals involved with the current system. They have been unanimous in their agreement that the Bill is deeply flawed, that there has not been adequate time for consultation, and that the proposals in the Bill could cause more problems than they solve.
The Secretary of State quoted a smattering of organisations; let me read him this list: the Relatives & Residents Association, Mencap, the National Autistic Society, Mind, Rethink, the Alzheimer’s Society, VoiceAbility, Disability Rights UK, POhWER, the British Institute of Human Rights, Sense, Liberty, Learning Disability England and Inclusion London have all called for the Bill to be paused so that further consultation can take place. But as we can see today, that call has not been heeded.
Does my hon. Friend agree that, given that Sir Simon Wessely’s review has only just been published, the Government should consider pausing the Bill to look into the interplay between it and the recommendations on the Mental Health Act? Otherwise, we risk creating legislation that fits together very poorly.
Absolutely, we do, and that is a real concern. The Opposition’s concern is that we do not want to end up with a flawed piece of legislation replacing another flawed piece of legislation, and then to have to change it again.
It is worth noting that until yesterday the Government had not even published an equality impact assessment, more than five months after the draft Bill was first presented. Before that, the Government’s only published impact assessment was concerned solely with the cost savings that the new system would bring. That initial impact assessment is now woefully out of date, given the number of amendments made to the Bill in the House of Lords—I understand that more than 300 amendment were tabled. I pay tribute to the work of many peers in the House of Lords, including my colleagues on the Labour Front Bench, who worked to try to improve the Bill, despite the hurdles placed in front of them by the Government. Nevertheless, fundamental problems with the Bill remain that simply cannot be rectified by amendments.
We cannot support the Bill in its current form because, quite simply, it proposes to replace one deeply flawed system with another. I will come onto the flaws in the Bill in due course, but, first, I wish to address the need for substantial reform of the Mental Capacity Act, which we accept. We recognise that the deprivation of liberty safeguards system is deeply complex and bureaucratic, as the Law Commission identified in its report last year. Concerns about the deprivation of liberty safeguards predated even the Law Commission’s report, and we know that a House of Lords Committee declared the DoLS not fit for purpose in 2014.
The scope of DoLS is too narrow, applying only in care homes and hospitals. Authorisations outside care homes and hospitals have to be done through the Court of Protection, which is costly and cumbersome. It is clear, as we have already heard in this debate, that the explosion in the number of DoLS applications after the Cheshire West judgment left the system struggling to cope. The latest figures, as the Secretary of State has said, show a backlog of 125,000 applications. That, of course, leaves the person subject to the application potentially unlawfully deprived of their liberty. If the Government want to resolve that backlog, as they profess to, then the way to do it is to provide local authorities with the resources they need to process all the applications they receive. The Government should not be trying to hide their failure to fund local government behind a streamlined process that does not protect vulnerable people.
Although the deprivation of liberty safeguards need reform, and I agree that they do, the Bill deals with none of the challenges that have been outlined and creates some new problems that cannot be solved simply with further amendments. I am afraid we feel that the Government cannot be relied on to make the necessary changes during the remaining legislative stages given the resistance that they showed to making important changes in the House of Lords. On the contrary, the transformative spirit of the Law Commission’s draft Bill has been squashed, and the measures that would place the best interests of the cared-for person at the heart of the new system have been reduced.
The Government should have enacted the Law Commission’s proposals in full through the 15-clause Bill that was drafted, but instead we have this five-clause Bill. Why did they not simply bring forward the Law Commission’s proposals? The inescapable conclusion that we have come to from reading the Bill is that the Government are more interested in cost saving than in the best interests of cared-for people. This is a crucial point, because there can be disastrous consequences when the best interests of cared-for people are not taken into consideration.
I say this in a spirit of co-operation on such an important issue. The Labour party amendment is to decline to give the Bill a Second Reading. Instead of trying to change the Bill and bring in some of the Law Commission’s recommendations, why, with nearly 200,000 people waiting to have a DoLS assessment, have the Opposition proposed an amendment to reject the Bill out of hand?
That is a question that the hon. Lady needs to put to her own party. What has happened up to this point is that the Government have been asked repeatedly to pause, to carry out more consultation, and to consider redrafting the Bill. There is a list of 40 organisations that have asked for a pause and a redrafting of the Bill. This is a familiar situation from health and social care legislation—it has happened before in this House. The Government could have considered a pause, and the Minister for Care, Caroline Dinenage, knows that I have discussed that with her. The whole question really falls back on the Government.
My hon. Friend refers to what happened in 2012 with the Health and Social Care Bill. We had to have a pause halfway through its parliamentary stages because it had not been thought through properly. I worry that we might end up having the same thing happen again if the Government do not take heed of what the shadow Minister is so clearly setting out.
I thank my hon. Friend for saying that, and it is the case.
Let me give an example. Just last week, the BBC’s “Victoria Derbyshire” programme exposed the horrific case of Rachel Johnston, a woman with learning disabilities who died after having an operation to remove all of her teeth. Rachel had a long-standing and extensive dental problem, but, clearly, could not consent to the dental work. Rather than doing the surgery in several treatments, the dentist opted to remove all her teeth in one operation, using the Mental Capacity Act to authorise the use of a general anaesthetic because he deemed it to be in her best interest. After being discharged, Rachel bled profusely from her gums, developed breathing difficulties and later died. How on earth can that treatment have been in her best interest? That case shows a need for greater safeguards, not fewer safeguards. We should not allow medical professionals to make decisions without considering the best interests or wishes of people who lack the capacity to consent to treatment.
I recognise that, as the Secretary of State mentioned, the Government conceded in the House of Lords that the cared-for person must be consulted, but there are still worrying aspects of the Bill that undermine that principle. We should ensure that individuals have access to an independent advocate. That is a vital safeguard that allows people to challenge authorisations, and it should be the default. The manner in which the independent mental capacity advocates can and should be appointed remains ill-defined and even contradictory.
The Minister in the House of Lords, Lord O’Shaughnessy, seems to have dismissed concerns raised about the application of a best interest test before the appointment of an advocate. The role of an advocate is essential to allowing individuals to access appeals and review their rights. Access to support from advocates should not depend on best interest tests, and the provisions in the Bill are far weaker than those proposed by the Law Commission. Yet despite that being pointed out in the debate in the House of Lords, the Minister there seemed unwilling to listen to advice, merely saying that it would work “in practice”. That is simply not good enough. These factors amount to a severe undermining of the concept of the individual’s best interests, which should be at the heart of the Bill but is sorely lacking.
I will now address the backlog of deprivation of liberty safeguard applications, because at the outset the Government presented the Bill as a cost-effective way of reducing it. On Second Reading in the House of Lords, the Minister claimed that the Bill would relieve
“local authorities of the…legal liability burden of more than £408 million by removing the backlog of…applications.”—[Official Report, House of Lords,
Vol. 792, c. 1060.]
But he made no mention of how that would happen. Our conclusion is that by attempting to place the onus for assessments on care home managers, the Bill would remove the responsibility from cash-strapped local authorities.
The Government initially tried to pass responsibility for assessments on to care home managers, and that was clearly intended as a cost-cutting measure. That was amended in the House of Lords, but care home managers will still decide whether an assessment needs to take place and will also identify whether the person being cared for objects to a liberty protection safeguard for their own care and treatment. The British Association of Social Workers has said that this presents a potential conflict of interest for care homes, as they need to maintain occupancy and may not readily identify an objection by the cared-for person.
The BASW has a further concern about the grounds on which the responsible body would decide whether it or the care home manager would make the necessary arrangements for an LPS authorisation. There is a significant risk of a two-tier system, whereby local authorities under financial or waiting list pressures would default to care home managers completing the new duties, and other local authorities under less strain would do the assessments themselves. I think we have enough of a postcode lottery in care without adding to it through the Bill.
Care England, which represents the network of care providers, says:
“There is a lack of clarity about the role of the Care Home Manager...the separation of roles between care homes and community care provision seems designed to increase rather than reduce confusion and complexity.”
Indeed, the body is so concerned by this Bill that is has also said:
“This ill-considered Bill risks storing up a range of problems of a kind that we do not want and should be slowed or returned for redrafting.”
There remains a further dangerous conflict of interest at the heart of the Bill because of the role that independent hospitals are given in the assessment process. Despite debate in the House of Lords regarding the role of independent hospitals, under the Bill they would still be allowed to appoint their own approved mental capacity professionals. That would allow independent hospitals the responsibility to authorise deprivation of liberty for people in that same hospital for the assessment and treatment of mental disorders. That is plainly wrong.
The Minister says no, but Lord O’Shaughnessy in the House of Lords would not consider amendments tabled by two parties to deal with that issue. It is plainly wrong and represents a very clear conflict of interest.
Moreover, the Bill currently allows for the deprivation of someone’s liberty to be authorised for up to three years without review after two initial periods of 12 months, as the Secretary of State said earlier. It cannot be right to have that period of three years without renewal. The Bill is reducing the protections afforded by the current DoLS system, which operates a maximum period of 12 months before renewal.
The hon. Lady is outlining, with some good reason, the fact that there may be fewer safeguards and fewer opportunities for people to review or appeal under this Bill than when someone is sectioned under the Mental Health Act. She has a point about the need to look into that point, and to look more broadly at how this Bill sits alongside the Mental Health Act, given Simon Wessely’s review. Does she agree that a pause would be helpful to consider the interface of those pieces of legislation?
Very much so. I will come on to that shortly, but I will not leave the point about independent hospitals, because it is important.
We know only too well from media reports, and the Secretary of State does too, of the torrid situation in independent hospitals that detain people with autism and learning disabilities under the Mental Health Act, and the measures in this Bill could have disastrous and far-reaching consequences. I have raised at the Dispatch Box on several occasions the appalling treatment of people with autism and learning disabilities in assessment and treatment units. I have described the situation as amounting to a national scandal, and I believe that it is still so. As many as 20% of people in these units have been there for more than 10 years. The average stay is five and a half years. The average cost of a placement in an assessment and treatment unit for people with a learning disability is £3,500 a week, but the costs can be as high as £13,000 a week or more.
As the journalist Ian Birrell has exposed in The Mail on Sunday, private sector companies are making enormous profits from admitting people to those units and keeping them there for long periods. Two giant US healthcare companies, a global private equity group, a Guernsey-based hedge fund, two British firms and a major charity are among the beneficiaries of what campaigners have seen as patients being seen as cash cows to be milked by a flawed system at the expense of taxpayers. According to a written answer I obtained from the Department of Health and Social Care, in the past year alone the NHS has paid out over £100 million to private companies for these placements. Shamefully, the Government cannot reveal how much they have spent since they came to power, because they claim that they did not record the expenditure before 2017. It cannot be right that the Bill potentially gives private companies the power to lock up vulnerable people for years at a time to feed a lucrative and expanding private health sector.
I would like to draw attention to one more issue that the Bill does not address—we have already discussed it—and that cannot be papered over by amendments. The Government commissioned Professor Sir Simon Wessely to lead a review of the Mental Health Act, which is of course long overdue for reform. However, as Dr Poulter said, there is clearly a complex interface between the Mental Capacity Act and the Mental Health Act. Professor Sir Simon Wessely has made the point that there is now a worrying trend of people, particularly with dementia, being detained under the Mental Health Act when their deprivation of liberty should be dealt with under the Mental Capacity Act. His review recommended imposing a new line of objection to determine who should be treated under which legislation, but, as the hon. Gentleman said, there has been no engagement with these recommendations, which were finalised as this Bill was going through the House of Lords.
In our view, the Government must commit to a review of the interface between the two Acts, with full consultation, which has, to date, been sorely lacking. It is one thing to say that Sir Simon had a conversation with the Secretary of State about this, but that is not full consultation. The consultation must look at both hospital and community settings and provide clear and accessible rights of appeal.
Of course the interface between the Mental Capacity Act and the Mental Health Act will be considered, but Sir Simon himself favours bringing forth the Mental Capacity Act renewal now and then dealing with the Mental Health Act later. As with all of the hon. Lady’s other considerations, that has been taken into account, and this is the best way forward.
Well, clearly we do not agree.
The reform of the Mental Capacity Act began as an attempt in good faith to reform a flawed piece of legislation that fails to protect the human rights of some of the most vulnerable people in this country, but it now threatens to infringe those rights further through this Bill. We simply cannot afford to rush an issue of this magnitude where individual liberties and human rights are at stake. Indeed, the Minister in the House of Lords himself admitted:
“We cannot introduce another Bill or piece of legislation that just creates a problem three years down the line.”—[Official Report, House of Lords,
Vol. 792, c. 1110.]
But that is exactly what this Government are trying to do today. We will fail some of the most vulnerable people in society if we allow the creation of flawed legislation that needs to be replaced in just a few years. We must get this right. That is why the Government must pause the Bill, and why I urge hon. Members to vote for our reasoned amendment and ensure that Ministers get the message loud and clear.
It is an honour to speak in this Second Reading debate on a subject of real importance to some of my most vulnerable constituents across north Northumberland. I want to focus on one cohort of those for whom the Bill is important: those in care homes.
I first became aware that the deprivation of liberty safeguard system was not fit for purpose as a new parliamentary candidate some years ago, while visiting the excellent care homes across my rural constituency—the small, family-run care homes based in sparsely populated areas that elderly constituents have made their home, some by choice, many placed there by Northumberland County Council and some whose family could no longer care for them at home.
One of the first issues raised with me on those visits—even then, when the deprivation of liberty system had just been put in place for those who were unable to consent any more—was that the system was proving burdensome and not family or vulnerable person-centric, and that our local authority had become rapidly overwhelmed by the unnecessary layers of bureaucracy, with six separate assessments clogging up the system but failing to ensure protection and reassurance.
The care home managers in my wonderful small and otherwise person-centric care homes were drowning in paperwork and new requirements but could not get the answers they needed quickly from county hall or doctors. It seemed to all those whose careers—indeed, vocations—it is to run care homes that the bureaucracy was simply adding complexity without positive value or outcomes. Much of the work was simply going over the same ground already covered by local authority officials when the decision to place vulnerable elderly constituents into the care home had been made originally.
Busy managers felt they were simply going round in circles, but they were especially concerned by the distress that the system was causing their residents—not only those to whom the deprivation of liberty assessment related, but others with greater capacity who had to watch their co-residents’ anxiety increase and were concerned that when they became that frail, all that would happen to them too.
This Bill is a welcome piece of legislation to provide important safeguarding for our most vulnerable elderly and young adults with severe learning disabilities or autism, to ensure that the system functions better and to reassure us all. Whether it is members of our family or our constituents, we need to have confidence that where restrictions are deemed necessary by the carer of a vulnerable person, the checks in place are streamlined and effective. Good Government policy delivers on its aims. The original 2005 Act failed to do that.
It is encouraging that the Bill will strengthen the protections and rights of vulnerable adults who lack mental capacity and have their liberty deprived. It will introduce a simpler process that involves families more and gives swift access to assessments, which is really important and has been a problem. It will be less burdensome on people, carers, families and local authorities, and it will allow the NHS, rather than local authorities, to make decisions about their patients, allowing a more efficient and clearly accountable process—something that many GPs have raised with me consistently over the years.
The Bill will consider restrictions of people’s liberties as part of their overall care package, which should be a self-evident truth but has not been under the historical legislation, and it will get rid of repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment. We have few ambulances in north Northumberland, and this has been a huge burden for the paramedics who have to deal with these difficult and complex cases. There is enormous frustration, because there is a sense that people are not getting patient-centric care, which is what everybody looking after them wants to achieve. These proposals go a long way towards creating a system that can be trusted by our constituents, and I look forward to working with the Minister to ensure that the Bill reaches the statute book quickly.
First, I declare my interest as chair of the all-party group on social work. This very Bill was the subject of our most recent meeting, when we heard from those working in this sector. These are no doubt some of the most important issues we could be debating and legislating on, and judging by the attendance at the all-party group meeting, it could not be more important to the policy makers and professionals in the field. This legislation governs the rights of individuals and the people who can deprive them of one of their most basic fundamental rights—freedom.
Some of the people attending the all-party group felt the Bill had made some progress with the amendments in the House of Lords, but it is fair to say that the Bill is simply not yet good enough. I really think that the Government need to pause, think again about the implications of the plans that Ministers are putting before us today, listen to the countless charities, other organisations and professionals that work with the legislation every day and then come back with a Bill that is fit for purpose.
This cannot and must not be a basic political argument between the Government and the Opposition; it is a debate between law makers and the people, some of whom at a particular time in their life can be subject to some of the most restrictive legislation we have. It saddens me that this could be another Government measure to cut the costs of associated assessments under the current Act.
There is a wealth of briefing material, from organisations as diverse as the Law Society and the Royal College of Nursing, outlining concerns that need to be discussed and addressed through the legislation. There are serious issues with potential conflicts of interest, but I think the Minister knows that. Imagine a scenario in which a care home manager is making a decision on someone’s life but has a financial interest in making a judgment either way. The Royal College of Nursing shares my concerns on this. Care home managers may feel under pressure in their workplace, meaning that they may make decisions that are not always in the best interests of the person they are caring for. There should not be any vested interest—only an interest in the wellbeing and freedom of the person concerned. Issues have already been raised about private hospitals. A private hospital could authorise deprivation of liberty, knowing that it would benefit financially from that. I know that the vast majority of people are honest and work in the best interests of those they care for, but such judgments should be made by a genuinely independent person.
My hon. Friend Geraint Davies mentioned the Royal College of Speech and Language Therapists. There is a real and genuine risk that people may be wrongly deemed to lack mental capacity because any communication needs they have are not properly recognised. Nothing short of full staff training on communication needs—for everyone in the system—would be satisfactory as a measure to ensure that people are being assessed correctly and that any additional needs are addressed.
The hon. Gentleman is making a very sound point. Given the importance of communication and of being able to assess people correctly, does he agree that it may be beneficial to add speech and language therapists to the list of approved mental capacity professionals, which would benefit some of the people being assessed?
That is not something that has previously come to my attention, but I am sure the organisation would very much like to look at that possibility.
Following on from that, there must be a suitably qualified person carrying out the assessments and they must also be independent. A skilled approved mental capacity professional should be involved before a person is placed in an institution, not just when there is an objection or a trigger. There needs to be further clarity on the role of independent mental capacity advocates. Considering that the Bill in its current draft would allow responsible bodies to detain someone without renewal for up to three years, leaving people deprived of their liberty for inappropriate lengths of time, it is essential that there is genuine independence when it comes to such an assessment.
The hon. Gentleman is making some very good points. I am sure he is aware that, for a section 2 or section 3 admission to be approved under the Mental Health Act, there needs to be a second-opinion doctor—it is good practice for that doctor to be independent—and a social worker to ensure that the section admission takes place. It therefore seems extraordinary to me that, in a similar situation where there is an issue of capacity to be decided, there is not the safeguard of a second opinion, given that the decision may last for three years.
I would certainly bow to the expertise of the good doctor and acknowledge exactly what the hon. Gentleman says. These second opinions and safeguards are absolutely essential, and I do not see such cover in the Bill at the moment.
Another concern I want to highlight is the lack of consultation and clarity about extending the scheme to 16 and 17-years-olds, and the risk that the new scheme will make it easier for authorities to remove young people from the care of their families, despite the family objecting. The Government must go back and give careful thought and consideration to the risk that 16 and 17-year-olds could see their liberty restricted inappropriately.
This issue has already been mentioned, but I too am concerned about the fact that there is no real acknowledgement of the interface between the Mental Capacity Act and the Mental Health Act, although the Secretary of State said it would be considered. I am no expert in this area, but does the Minister not agree that, as the Wessely review on the Mental Health Act has only just been published, the Government should pause the Bill to look at its recommendations properly, rather than risk creating legislation that does not fit together? Professionals must be able to understand the differences in regime and to clearly decide which is most appropriate.
We are dealing with changes to the law that any of our relatives, or even ourselves, could be subjected to in the future. We cannot just bounce this through the Commons and potentially hand substandard powers to a group of people who could rule the roost over an older person, a middle-aged person or a teenager, with nothing at all that their families could do about it.
There are plenty of people out there who are experts in this field; they could have been consulted and heard if there had been pre-legislative scrutiny of the Bill. I have some questions and concerns that have been raised by some of the organisations out there. From Inclusion London: does the Minister agree that the Bill makes it clear that deprivation of liberty cannot be used as a way to deliver care in the cheapest way possible? From the Royal College of Psychiatrists: can the Minister confirm that the Bill will not prevent psychiatrists from being called away from frontline services? From Mencap: what reassurances can the Minister give that all conflict of interest is removed from the Bill? There is plenty in there. From the Law Society: will the Government consider the interaction between the Bill and the Mental Health Act, as set out in their recently published review? Will they take the time to do that properly?
There are many other questions from many other organisations, and I hope that we have real time to address them if the Bill gets into Committee. I gather that the programme motion suggests that the Bill should come back towards the end of January, and there will not be a lot of time in January to consider the real issues. I just hope that the Minister will listen to that point.
Let me start by welcoming the Second Reading of the Bill and by declaring an interest as a registered nurse who has used the current legislation in clinical practice. I therefore welcome the provisions in the Bill, which amend and reform the current legislation.
The Mental Capacity Act 2005 was a groundbreaking piece of legislation, which, for the first time, provided safeguards not just for those without capacity, to enable decisions to be made about their care, but for healthcare professionals, families and friends who were having to make the most difficult decisions in the most difficult circumstances.
In terms of the deprivation of liberty aspects of the legislation, there is no doubt that, after 10 years, reform is urgently needed. The DoL system has become too cumbersome and too bureaucratic, and it is not responsive enough to patients’ changing needs. I therefore fully support the Law Commission’s report last year, which recommended that DoL be repealed and replaced. The Bill delivers those reforms.
There was a huge amount of debate in the House of Lords, and many amendments were tabled. The Government were in listening mode and accepted many of those amendments. Therefore, it is disappointing to see the Opposition amendment before us today, which simply states that we should decline to give the Bill a Second Reading. There will be plenty of opportunities in Committee and on Report for Members to lay down amendments about the concerns they have. This is such a serious issue, and there is such a backlog of cases; we are talking about the most vulnerable people in our society, and to leave them waiting for assessment or languishing with a DoL system in place that is clearly not working—we have a huge body of evidence that shows that—is irresponsible. If Opposition Members have concerns—many of them have raised genuine concerns today—I urge them to table amendments to address them, and not simply to reject Second Reading out of hand.
At the Lord’s Committee stage, concerns were raised, and the Bill has been amended accordingly. There are four measures, in particular, that I welcome. First, the scope of the Bill was extended to 16 and 17-year-olds. That is a welcome move, which will ensure that they are covered by the new legislation. In addition, I welcome the fact that family and friends will be able to trigger a review if there is an objection. That possibility does not exist in the current legislation. I also welcome the fact that the person we are discussing will be part of the consultation. Although they cannot make an informed choice, because they lack capacity, it is important to continue that dialogue with them, because they are the most important people in the whole process. I welcome the introduction of safeguards in relation to conflicts of interest and care home providers undertaking assessments. That was recognised as a genuine concern and the Bill has been amended as a result.
I still have a concern about independent hospitals. It would have been helpful if Opposition Members had tabled an amendment to reflect that concern. We want to ensure that the proposed legislation covers patients who move between various sectors—independent hospitals, care homes or NHS hospitals—in all scenarios. There is a feeling that there is a gap that still needs to be bridged and perhaps that could be considered in Committee.
I want to make a final point, Madam Deputy Speaker, on what I know is not the responsibility of UK Government Ministers. I sit on the Northern Ireland Affairs Committee. Only last week, the Committee heard evidence from mental health professionals about people who lack capacity in Northern Ireland. There is actually no legislation in Northern Ireland, compared to the rest of the UK, on mental capacity. While there is no Northern Ireland Assembly and no Northern Ireland health Minister, that will remain the case. It is a huge concern that while UK Ministers are amending current legislation to make it more adaptable and responsive to patients’ needs, vulnerable patients in Northern Ireland have no legislation to cover them. There are healthcare professionals working in Northern Ireland who do not have safeguards to protect them. I urge Ministers to have discussions with the Northern Ireland Office and Northern Ireland Ministers to see whether something can be done until the Northern Ireland Assembly is up and running.
As a healthcare professional who has used the existing legislation, I am encouraged by the changes proposed in the Bill. I welcome the reform of the legislation to protect the most vulnerable, to protect healthcare workers in that setting, and to protect family and friends. I welcome further debate in Committee.
I want to start by reinforcing the point that the Bill deals with an issue of profound importance: the deprivation of a citizen’s liberty and the circumstances in which that can be done. That is why it is so vital that the measures are properly and closely examined and scrutinised. This is particularly important when dealing with people who potentially cannot object to the deprivation of their liberty. There is a real need for robust safeguards to be in place to ensure the least restrictive care possible in all cases and to restrict liberty only if that is genuinely in the best interests of that individual.
The system that the Bill seeks to reform is clearly not fit for purpose. The Joint Committee on Human Rights reached that clear conclusion. After the Cheshire West ruling, which actually happened during the period when I was a Minister, we have seen the development of a massive backlog, in particular because of the broadening of the definition of what constitutes the deprivation of liberty. It is therefore imperative that we sort that out. If we think about it, here and now we are routinely flouting people’s human rights. All those people on the backlog waiting list are being deprived of their liberty without proper authorisation. That is intolerable and it is why I resist the idea that we should just stop this process and leave in place the current wholly imperfect system.
When we think about reform, it is vital that we replace a flawed bureaucratic system with an effective robust system with proper safeguards, not another flawed system. It is very important to recognise what turned up in the House of Lords. My colleague Baroness Barker commented:
“This is one of the worst pieces of legislation ever brought before this House.”—[Official Report, House of Lords,
Vol. 794, c. 1247.]
That was the view of many peers when the Bill first appeared in the House. I pay tribute to peers on all sides. I know my Liberal Democrat team did an incredible amount of work, but they worked with Labour colleagues and, I should say, the Minister Lord O'Shaughnessy. He collaborated with peers on all sides to improve the proposed legislation.
I am grateful to the shadow Minister for her intervention, because I was just coming on to the comments that Baroness Barker added on Third Reading. She said that although it had become better legislation, it was still
“highly deficient, but not as bad as it was.”—[Official Report, House of Lords,
Vol. 794, c. 1247.]
That, Minister, is not a ringing endorsement of this legislation. That is why it is critically important that the Government do what they say they will and collaborate to improve it, because improvements are absolutely necessary. Our assessment will be at the end of the process: is it workable? Does it genuinely respect and safeguard individuals’ human rights? Does it result in very vulnerable people being better protected than they are under the existing, highly flawed system? On those tests will we decide whether to support the Bill on Third Reading.
My plea to the Minister is, as we have discussed, to meet us well before the Committee stage. Do not rush headlong into the Committee stage. I am alarmed that we are talking about that happening at the end of January, given what else is going on then. Be in no doubt that if we do not sort out the flaws that still exist, I will work with others across the House to make sure that the Bill is defeated on Third Reading, because the stakes are so important.
I want to end by highlighting some of the key issues that need to be sorted out. First, many viewed the impact assessment that was presented to the House of Lords as based on fantasy, even before all the amendments were made there. I understand that it is being updated, but it is really important that it is a credible and robust document and, critically, that, along with the impact assessment, the new system is properly resourced. If it is not properly resourced, people’s human rights will continue to be flouted.
Secondly, there needs to be a published equality impact assessment. There has not been one yet. That is not acceptable. The Government need to get on and publish anything that they have produced. If they have not done the work on it, they need to get on and do that.
Thirdly, there are continuing concerns about really important conflicts of interest of independent hospitals and care home managers, who will still carry out consultations. Independent hospitals, as I understand it, are still able to authorise the deprivation of liberty within the hospital. When financial interests are at stake, there will be those who behave badly and who are prepared to act to keep a bed filled to earn the money from that individual—the “cash cow”, as the shadow Minister suggested. That is why robust safeguards are absolutely critical.
Fourthly, we need a clear definition of the “deprivation of liberty”, and the Minister has indicated that that will be forthcoming.
Fifthly, there are the renewal periods. I understand—the Minister made this point to me yesterday—that we do not want a tick-box exercise when it is clear and obvious to everyone that the arrangements are in that person’s interest, but there is something very concerning about our moving in the opposite direction to what Simon Wessely’s review said should happen with regard to the Mental Health Act 1983, where we would see improved safeguards. Here, however, we are talking about a longer period between reviews and renewals, and that seems to me to be a real concern.
Sixthly, there is the interface with the Mental Health Act—please get this right, because if we legislate and repent later, it will be too late and people will lose out as a result. My final comment is: listen to us, talk to us and talk to the interest groups to make sure that we get this right.
It is a pleasure to follow Norman Lamb, who has such expertise in this area and brought such valuable content to this debate as well as a valuable tone, which was very good to hear. I want to say a few things, first, in support of the Bill. As the right hon. Gentleman said, it is very important that we take a moment to reflect on the significance of getting this right.
Depriving someone of their liberty is a very significant act. Liberty is a fundamental right and freedom. We must take it seriously, and we must get this right. It is clear that the current system is not working. The fact that between 100,000 and 200,000 people are waiting because of an applications backlog is clearly unacceptable and cannot continue, given the consequences for individuals who have been deprived of the safeguards to which they are entitled, and the impact on their families and on care homes in which they may be residing.
Earlier today I had a chance to speak about this matter to the Minister and some of her officials. Is it the hon. Lady’s understanding that the issue of human rights has been included in legislation that has been endorsed by Age UK, the Law Commission and Simon Wessely? If that is the case, the action that the Minister and the Government are taking this year is right, because it brings everyone together and ensures that there is legislation that everyone in the House can support.
The hon. Gentleman has made a good point about the support for the Bill. Some Opposition Members have suggested that there is not much support for it, but it is, in fact, widely supported. Yes, there are concerns, with which I shall deal shortly, but, as the hon. Gentleman has said, there is widespread support for improvements in the current system. Those improvements include simplification—less bureaucracy and fewer administrative burdens—and the critically important representation of individuals through the independent mental capacity advocates, which will give them a voice. The frequency of assessments will become more appropriate; as my hon. Friend Anne-Marie Trevelyan said earlier, timings can be inappropriate and excessively burdensome. There is a better choice of language: the Bill removes the term “unsound mind”, which is very stigmatising and completely unnecessary. I am also pleased that the Government have listened to the concerns expressed by some of my constituents about, for instance, potential conflicts of interests for care home owners when a financial interest may be involved.
However, I have three outstanding concerns. First, there is the question of how the amended Act will work for people with severe mental illnesses. The Bill clearly focuses on those who lack capacity because of, for instance, dementia, learning difficulties, autism or brain injuries, but, if I understand it correctly, it could be applied to people with severe mental illnesses. Figures suggest that the current Act is applied to a significant number of people in such circumstances. We know that such illnesses—bipolar disorders, for example—are likely to fluctuate, and that as a result people’s capacity may also fluctuate. That could cause them to be detained and deprived of their liberty when, in fact, they have regained capacity. The Minister in the Lords, Lord O’ Shaughnessy, gave a commitment that that would be addressed in the code of practice, but may I press this Minister to ensure that there are sufficient safeguards in the Bill?
Does the hon. Lady agree that, given the cohort that could be covered by both pieces of legislation, it is particularly important that the approach be consistent?
I completely agree, and that relates to my second concern, which others have mentioned and which relates to the interaction between the Bill and the 2005 Act. In his review, Sir Simon Wessely suggested that there should be a new dividing line between the two. I hope the Minister will explain how that will work.
My third concern is whether the Bill will address a situation that I suspect many of us have encountered, when elderly people are locked into their homes. When I have been knocking on doors, I have sometimes been told, “Do not knock on that door, because the lady there has been locked in by her family, and she becomes very distressed and upset if someone rings the doorbell because she cannot answer the door and she does not understand why.” This is clearly a completely inhumane way to treat people, but it is happening. People are being detained at home without appropriate safeguards for their safety as much as anything, so I ask the Minister to say whether the Bill can address this problem, or are there any other steps we might take to deal with the issue of people being inappropriately locked in at home and deprived of their liberty?
I appreciate the spirit in which this Bill has been presented to this House, and the willingness of the Government to listen, as they have already shown as the Bill has been going through the Lords. I have listened to Opposition Members, but think there is widespread support for the Bill among interest groups and experts. I look forward to the Government continuing to listen and improve the Bill so that we have a better system sooner rather than later.
We judge a civilised society by how it treats its most vulnerable citizens, so getting this legislation right is vital. My hon. Friend Alex Cunningham said, “There by the grace of God go we all,” and I agree: we could all find ourselves or family members involved in this. Norman Lamb raised the issue of the Cheshire West case, which demonstrates that we do need change because we have got people whose human rights are being denied at the moment. It is not the case, therefore, that we can just do this at our leisure.
Is the Bill flawed? Yes, in its current state it is, but change needs to happen among the voluntary sector and others and we need to put some principles behind this, and one of them must be putting the person at the centre of the legislation. We should also only use these measures where there are no alternatives; they should not be used as a recourse of first resort or for financial or convenience reasons.
The review of the Mental Health Act 1983 introduced the least restriction principle and that should be written into this Bill. It is also key to ensure that individuals and families not only know their rights, but have access to them. Also, the length of detention should be kept to a minimum, and certainly kept under regular review. The care plans of individuals must be kept up to date with the individual’s situation, too. The access of individuals and families to independent medical advocates must be a central part of this Bill as well, and if people do not have family or relatives an independent advocate should be appointed to them automatically. The possibility of conflicts of interest has been raised and I am not yet happy that this Bill addresses that. There are issues that need to be looked at. Referring to the Mental Health Act again, having second opinions is important; we must tighten that up in this Bill.
A lot of this could be covered in the code of practice. The Government have not yet produced that, and it needs to be produced before the Bill goes any further. It would also be important for it to be incorporated into the Bill.
Reference has been made to the interface with the review of the Mental Health Act. I have read it and know Simon Wessely, and he is clear in that report that he does not want this legislation held up, and he does not think that fusing the two Acts would be a way forward. He makes a suggestion on how to use the two Acts: for objection we use the Mental Health Act, and for not having capacity we use this mental capacity Act. He also deals with the issue of cases that cover both, offering some ideas around tribunals and judges and court protection. I would also like the Minister to address the issue around 16 and 17-year-olds and how this interplays with the Children Act 1989 which gives certain rights to parents.
The right hon. Member for North Norfolk said that the situation needed to change, because people are now being detained who are not having their human rights observed. I have to say that I agree with him, and that is why I cannot support the reasoned amendment. Throwing the Bill out at this stage would be a huge mistake. I plead with the Minister to look at a number of things. The delaying of the Committee stage that the right hon. Gentleman mentioned would be important, and I believe that we should extend the sittings of the Committee if we need to. We ought to take as much time as possible in Committee. With good will, we can get there.
Is the Bill perfect? No, it is not, and I am not happy with it as it is outlined, but we can get some changes into it. I know that the Minister is an advocate for the sector and that she is passionate about doing the right thing, and it is not beyond the wit of man or woman to get to where we should be. To throw the Bill out at this stage would be a mistake, because my fear is that it would not come back, owing to a lack of legislative time. That would mean that the legal crisis would continue. Also we would be missing an opportunity to change the legislation. We can make the necessary changes if the good will is there.
I speak as a member of the Joint Committee on Human Rights. We looked at this whole issue generally in our report in June, and we looked more specifically at the Bill in October, so I declare that interest. Article 5 of the European convention on human rights sets out the right to liberty and security. It says that no one shall be deprived of their liberty
“save…in accordance with a procedure determined by law”.
That essential safeguard applies to all those who are deprived of their liberty, not just people in the criminal justice system, and so it should. The previous system involved the deprivation of liberty safeguards, which were criticised by the House of Lords Committee on the Mental Capacity Act 2005. The Committee found that
“far from being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned.”
So reform is most definitely needed.
The only guidance that the Mental Capacity Act 2005 gives to the courts is that
“references to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the Human Rights Convention.”
The Supreme Court, as has been mentioned, has defined deprivation of liberty in an “acid test” that covers all those who are under “continuous supervision and control” and “not free to leave”, regardless of their condition or contentment. It was logical of the Supreme Court to do that, but it has none the less meant that hundreds of thousands of people who were not previously considered as being deprived of their liberty may now be so considered, and 125,630 people have been unlawfully deprived of their liberty between 2017 and 2018.
Just as importantly, this definition causes real anguish to many people and their families. We heard evidence from parents whose children are now considered to be deprived of liberty, despite being content and cared for in their own home by devoted family members. I shall give the House a couple of examples. Mark Neary told us that his son Stephen was
“very much king of his castle in his own place. He requires 24/7 support, which is either me or a member of the support team. It was decided last week that Stephen is being deprived of his liberty in his own home on the basis that, first, he is not free to leave, because you need support workers to go with him when he goes to the shop or goes swimming, and secondly, that he is under constant supervision.”
Graham Enderby told us that we had
“gone so overboard after this judgment it is ridiculous”.
Keeping to the current definition will mean that any system of authorisation would have to be either extraordinarily expensive or minimal. As we said in our second report on this issue,
“a scheme which applies too widely will be so light touch as to reduce protection for those who truly need it.”
For those reasons, the Committee recommended that Parliament use this opportunity to give the courts guidance about an article 5-compliant definition of liberty that will ensure that the safeguards are focused on those who need them. We noted two possible ways in which that might be tackled. The first was to focus on whether the deprivation of liberty was the result of an underlying condition, or whether it was caused by continuous supervision and control. The alternative was to revisit the whole notion of valid consent. Those who lack mental capacity cannot, by definition, give legal consent, but as we have heard, in practice it is possible in many cases to tell whether a person is content with his or her support.
We were disappointed, when the Bill was introduced, that the Government had not tackled that issue. We were also disappointed that the scheme that was initially proposed did not have sufficient safeguards for people who were going to be the subject of the new liberty protection scheme. However, I am pleased to see that the Government have listened, and that during the Bill’s passage through the House of Lords it has been amended to make it explicit that there is a duty to consult the cared-for person about their care arrangements. There were many other amendments that I do not have time to go into now. I am also pleased that the Government have now undertaken to bring forward an article 5-compliant definition of liberty, and we look forward that extremely important step.
Some concerns remain, however. We must consider whether people should be able to give advance consent to care arrangements. I understand the Government’s position is that advance consent could date from many years before care was put in place, that people may “give up” their human rights in long-stay settings, and that people could feel pressurised into making advance consent arrangements when they did not wish to do so. We understand those concerns, but they can be mitigated with sufficient safeguards to enhance the personal autonomy of cared-for persons. I also remain concerned that the right to advocacy is not robust enough. The provision of advocacy is essential for ensuring that cared-for persons can exercise their right to challenge authorisations, and article 5 guarantees everyone the right to challenge their deprivation of liberty before a court. I am pleased that amendments strengthening the right to advocacy were made in the Lords, but they may not go far enough.
This important Bill needs careful and thorough consideration, so I fully support the recommendation that Bill’s Committee stage be extended.
I speak as the chair of the all-party parliamentary group on speech and language difficulties, so my primary concern is that people will have their freedom taken away simply because they cannot be understood rather than due to a mental capacity problem. The Minister will know that this is a big problem, with something like 10% of children entering school having a speech or language difficulty. Some 60% of young people in the criminal justice system have a speech or language difficulty, and yet speech and language therapy reduces reoffending from 39% to 26%, so it is a cost-effective intervention at that stage and would be even more cost-effective beforehand. Some 81% of children with emotional and behavioural disorders have unidentified language difficulties. Left untreated, 33% of children with speech and language difficulties develop a mental illness, and half of them commit crimes.
In other words, it is important to identify and provide support for people in such situations because, as we have already heard, it can cost £13,000 a week to keep someone incarcerated, but that may be happening simply because they have not been properly understood and have not received the support they needed. There is therefore a financial and moral onus on us to identify and provide therapy to reduce and reverse the development of mental health problems linked to speech and language difficulties.
The situation at the moment—it will be the same under the Bill—is that assessors often will not and do not recognise speech and language difficulties or cannot differentiate between them, and they often do not know how to support the client and communicate their needs.
I support all the hon. Gentleman’s comments. He is making a strong case. Does he believe that staff training on communication ought to be included in the Bill, and that speech therapists should be included in the list of approved mental capacity professionals?
I was going to make precisely that point. The Royal College of Speech and Language Therapists has said that the list of professionals should include such therapists and that all professionals carrying out assessments should have speech and language training so that they can identify the issues that they currently do not identify and provide clients with support. I ask the Minister to consider the Mental Capacity Act (Northern Ireland) 2016, which requires that support must be provided for communication.
When people are deprived of their liberty, that comes through their lack of capacity to consent, which is questionable if there has been no proper assessment of speech and language difficulties. The person may have a mental disorder, and the action that is taken must be necessary and proportionate. If they object, a review is carried out, but there is no requirement that a speech and language therapist should be involved in the review, which is another change that needs to be made.
The central point is that speech and language problems do not mean a problem with mental capacity, but they are commonly misread as such, which obviously costs the public sector a fortune and costs thousands of people their liberty. As has already been asked, I ask the Minister to look carefully at these issues over a longer timeframe, because we are in danger of rushing this through under the heat and smoke of Brexit, and everything else, and we risk denying the liberty of people whose liberty should not be denied and costing the public sector a fortune when that money would be better invested in preventive treatment such as early intervention for speech and language problems.
I will be brief, as I am aware that others wish to speak.
The privilege we have as a Parliament is to defend liberty, so any action we take to seek to deprive a person of their liberty should always be weighed against their best interest. I was not greatly aware of the deprivation of liberty safeguards until the Bill was tabled and I received lots of representations from constituents who work in the social work sector. They are concerned that, although the Bill may be well meaning, it does not necessarily have at its heart protections for the best interests of the people to whom it might apply. I have always listened when a doctor tells me something is not right and I am unwell, and we should listen when a social worker tells us that the Bill’s provisions for depriving a person of their liberty fall short of their expectations.
My hon. Friend Barbara Keeley made two excellent points. First, if we are to take away a person’s liberty, there has to be no possibility that the process could be abused for whatever purpose. I fear that, in some of the arrangements for moving away from a local authority-based system to a responsible body, the potential exists, however small that potential may be, for an unscrupulous person who is not necessarily working in the best interest of an individual to exercise that power simply to maintain a business model in their own facility or care home. Such cases may be few and far between, but we have seen many situations across the country where one or two individuals have taken advantage of people in vulnerable situations, and I am not convinced that the Bill, as currently written, goes far enough to provide safeguards. [Interruption.] The Minister shakes her head, and it would be wonderful if she could address that in her summing up.
I am sorry, but I cannot give way.
My other area of concern is the independence of advocates. I am fortunate to have a family who can speak up if a relative were ever in such a situation, but there are countless people across the country who do not have somebody who can stand up for their best interest and represent what might be right for them. The Bill contains no provision properly to strengthen the independent advocacy rights and make them robust so that everybody who might be subject to the liberty protection safeguards is able to be represented and have their views considered, which is important. [Interruption.] The Minister is nodding, and I would welcome it if she could offer some sort of guidance and further clarity on how the Bill will deliver that. From where I sit, from what I have read and from the evidence given to me by social workers, there are several holes in the Bill that do not stand up to scrutiny.
I suspect the Bill will get its Second Reading, and I hope several of those holes will be identified and considered in Committee. At the moment, my fear is that the Bill is well intentioned but simply does not bear scrutiny. There is therefore a potential for exploitative people to take advantage of vulnerable people and, as a Parliament, we must make sure to address that.
It is a pleasure to follow my hon. Friend Gareth Snell, who spoke with characteristic concern for his constituents and characteristic courtesy. I am grateful to him.
In the brief time available, I will argue why it is inappropriate for the Government to be rushing this Bill through Parliament. There are three reasons: the potential for an under-scrutinised Bill to have unintended consequences; the Bill’s lack of clarity on responsibility and resourcing; and the lack of calibration between this Bill and the much more carefully thought through and inclusive approach of the recent review of the Mental Health Act. As I detail those objections, I will refer to the specific concerns mentioned to me by my constituents.
I am well aware, as is everyone who has spoken on this Bill, that the current system is not functioning appropriately, but there has been a need for change since at least 2014. The question is whether we have had sufficient time to consider whether these measures are the appropriate ones, and I would argue that we have not. We had a discussion about the equalities impact assessment just now. I saw that a webpage was produced just yesterday with an equalities impact assessment allegedly produced in December—presumably giving the impression that it was produced yesterday. It refers to the independent review of the Mental Health Act being sure to report at the end of this year, but it has already reported. This is a dog’s dinner, and we cannot have it in relation to such a significant piece of legislation. We know about all the amendments made in the other place, which we have discussed. In that context, the time allocated to this Bill is just insufficient.
Even in this debate, we have seen the lack of clarity. The Secretary of State, who is no longer in his place, seemed to be unaware of expert calls for advocates being available to all, not just those objecting. He also did not agree with a comment made by a colleague who said that the new approach would potentially allow the deprivation of liberty for three years. However, the equalities impact assessment I just referred to, albeit that it is a flawed one, says that the Bill provides that authorisations could last up to three years where appropriate—after two initial authorisations of up to one year—compared with a maximum of one year under the existing DoLS system. The Government seem to be rushing this new approach in because of the existing backlog of DoLS cases dating from 2014, but it is not clear to me that the new measures will deal with that.
The Secretary of State said earlier that there would be a larger role for healthcare providers, but that seems to contradict what was stated in the other place. I am confused, and I think others are too, and that ambiguity is leading to the significant concerns expressed by many stakeholders about the potential for a conflict of interest. He said he would deal with that by tabling amendments in Committee, but in my experience we have not always seen that collaborative approach in Committee from the Government. I hope we will see a change, but presumably others can understand why there might be concerns about that.
It is unclear how local authorities and clinical commissioning groups will be able to perform their role expeditiously under these measures in the current financial climate. No fewer than 38% of assessments under DoLS in Oxfordshire required more than a year to be performed, according to the latest statistics. That is not just because of the regime; it is also because of funding constraints. Oxfordshire County Council has just announced that it will be cutting its contribution to mental healthcare funding. It has one of the lowest levels of mental health funding in its budget compared with other healthcare funding. Just as with lengthening waiting lists for accessing mental health provision, if we do not deal with this resource issue we will only hit the brick wall of inadequate funding.
Lastly, I wish to say that that review of the Mental Health Act involved thousands of service users from the off. In fact, it had someone who had been sectioned as a vice-chair. We have not had that level of inclusion in respect of this Bill.
Coming here tonight, I thought that this was in origin a well-intentioned but flawed Bill, but after listening to the Secretary of State I am not sure we are discussing the same legislation. It is hard to believe that in a free society such as ours, probably more than 125,000 people are currently denied their lawful liberty because of failings in the system. We need to improve the situation, not make it worse.
As with much of this Government’s legislation, the Bill seems to be more about reducing costs than protecting and promoting the rights of vulnerable people. As we have heard, the impact assessment was produced before a raft of Government amendments were made, so there is now a clear argument for producing an updated assessment before we proceed. The attempts to transfer some of the responsibilities set out in the Bill just do not make sense. I am not sure it is wise to transfer any responsibilities for things such as liberty to bodies such as CCGs. They are already very stretched and prone to questionable judgments on delivering equality and fairness in the NHS.
There are real doubts about the protections in the Bill. Access to legal aid is a Catch-22 if a person qualifies for it only after they have been deprived of their liberty. How can that be fair? There is also concern about the length of detentions and authorisations. Sir Simon Wessely recommended that initial detention should be reduced to three months, with a three-month renewal and six-month periods thereafter. Under the Bill, despite what the Secretary of State claims, a person can be subject to an order for three years.
The Bill does not put the interests of the cared-for person at its heart. The existing arrangements explicitly state that deprivation of liberty may be granted only where it is in the best interests of the cared-for person. The Government should make clear on the face of the Bill that depriving a person of their liberty must be in their best interests, and should come only after the consideration of less restrictive options.
Proposals must ensure the right of a person to object to and challenge arrangements if they so wish, and that they have appropriate support and representation to do so. Access to an approved mental capacity professional is currently available only in limited circumstances. That is wrong: access should be made available in all cases. Scrutiny for pre-authorisation reviews should be extended to all situations in which a person might be considered vulnerable.
All cared-for people in private hospitals should have an independent mental capacity advocate appointed, and all authorisations must be carried out with approved mental capacity professional oversight. Independent oversight is essential in all cases, as cared-for people may not be able to object in the formal sense. Appropriate advocacy must therefore be available. The Royal College of Psychiatrists rightly draws attention to its concern that no one should have their liberty denied because of a mental disorder without first being seen by a qualified doctor.
It is essential that these matters are dealt with properly, which is why there are real concerns about the role of the care home manager. It is wrong that they should make the decision on independent representation. As drafted, the Bill makes the care home manager responsible for carrying out the consultation with the cared-for person, when the main purpose of that consultation is to ascertain that person’s wishes. Nor can it be right that the choice of assessor should lie with the care home. There is an obvious conflict of interest if independent health and care providers are responsible for both providing a service and deciding on that service’s suitability. The Bill allows for managers of independent hospitals to authorise deprivation of liberty when care is being delivered in their hospital. That is plain wrong.
I thank all right hon. and hon. Members who have participated in this important debate. There have been many worthwhile and thoughtful contributions from all parts of the House, including from my right hon. Friend Mr Jones, Norman Lamb, Anne-Marie Trevelyan, my hon. Friend Alex Cunningham, Jeremy Lefroy, my hon. Friends the Members for Swansea West (Geraint Davies) and for Stoke-on-Trent Central (Gareth Snell), Maria Caulfield, and my hon. Friends the Members for Oxford East (Anneliese Dodds) and for Birmingham, Selly Oak (Steve McCabe).
The Bill was supposed to be a welcome proposal to simplify a complicated system, but what is before us is equally problematic and will not fix the fundamental challenges that it was supposed to fix. That point was eloquently articulated by my hon. Friend the Member for Stockton North. Put simply, the Bill has been rushed from start to finish. It has not received the meticulous and careful planning that befits legislation about the human rights of the most vulnerable people in our society.
The Government have shifted the goalposts. First, they agreed with the recommendations of the Law Commission’s draft Bill, but the Bill before us has only five clauses, compared with the Law Commission’s 15 clauses. The Law Commission consulted widely with stakeholders over a two-year period, but the Government did not consult those stakeholders even once before developing their much-changed Bill. Do they think they know better than the Law Commission, which spent years developing its draft legislation? I know from my own discussions with those stakeholders the serious concerns about how the Bill has proceeded. Surely the Government should have started consulting them at an early stage rather than proceeding at what Mencap, the National Autistic Society and many others have called “a breakneck speed”.
There are other examples of the Government acting hastily. There has still been no code of practice, and no definition of “deprivation of liberty”, on which much of this whole debate hinges. As we have heard, the Bill’s equality impact assessment was published only yesterday—that is not good enough—and despite what the Government say, it was not simply an update of a previous impact assessment in the House of Lords. That impact assessment, which is now completely out of date, discussed only the savings that the new system would make for the taxpayer. This process has been bungled to the point that Baroness Barker called the Bill the worst piece of legislation ever to have come before the House of Lords. It was clearly designed with one thing in mind: to save money on dealing with the backlog of DoLS applications.
We accept that the backlog that has arisen since the Cheshire West judgment, which widened the scope for what constitutes a deprivation of liberty, needs dealing with. That could be done through properly resourcing local authorities to deal with the problem, as my hon. Friend Barbara Keeley pointed out earlier. We know that the Government initially intended to solve the problem by foisting this responsibility on care home managers. Leaving aside the massive pressure that this would add to already overstretched care home managers and the worryingly high vacancy rate of care home managers, this would have created a dangerous conflict of interest. Thankfully that was amended in the House of Lords, but an equally dangerous conflict of interest remains in the role that has been given to independent hospitals. It simply cannot be right that this House legislates to give independent hospitals, so many of which are detaining people for years on end under the Mental Health Act, a similar ability under the Mental Capacity Act. It is totally unacceptable to enable them to determine whether appointing an independent mental capacity advocate is in someone’s best interest. It could create the very conditions that my hon. Friend described so harrowingly earlier. We could see even more Bethanys, and that would be a truly horrifying prospect for this House.
It is only down to the tenacity of the noble Lords, including my colleagues on the Labour Benches in the other place, that vital concessions to address some serious problems with this Bill. However, this Bill still falls far short of what is required. This debate has discussed the concept of an individual’s best interest, which should be at the heart of this Bill. If that were the case, the Government would have implemented the Law Commission’s recommendations in full. There are still several areas where the Government have diverged fatally from the Law Commission’s recommendations.
This Bill did not adopt the Law Commission’s recommendation that independent mental capacity advocacy should be available on an opt-out basis and not dependent on a best interest test. There are still worrying shortcomings in the arrangements for approved mental capacity professionals, and there has been no consideration of the interface between the Mental Capacity Act and the Mental Health Act, which has recently been the subject of review by Sir Simon Wessely. Sir Simon made important recommendations about the overlap between those Acts. Dr Poulter suggested a pause to consider that interface, and I concur with him on that.
This Bill is simply not fit for purpose. We cannot and must not rush legislation that deals with fundamental human rights. The Government must pause and take stock of the concerns that are being raised by so many voices urging them to revise these disastrous proposals. Some excellent suggestions have been made in this debate this afternoon. It is time to stop and think again.
Our liberty is one of the most fundamental of our human rights. Depriving people of that liberty is something that must be done with the greatest of care and with respect for individuals, and not as a tick-box bureaucratic process—a one-size fits all—that leaves vulnerable people without protections and in an unspeakable backlog. That is what we are facing today.
I thank all hon. Members for their contributions today. I will aim to cover all the questions that have been raised and will write to anybody whose points I do not get to. I start by stressing from the outset that liberty protection safeguards are not about detainment, but about appropriate arrangements being in place for the purposes of care and treatment.
We have heard it argued that the Bill has been rushed through. The Law Commission looked at this issue for three years, and the Joint Committee on Human Rights has looked at it. The Department of Health and Social Care has spoken endlessly to stakeholders. We are determined to get this right, but we continue to consult people across both Houses in order to do so.
Let me address the issue of three-year authorisations. This was a Law Commission recommendation, and the provision is geared towards people like my grandmother who live with dementia—people with long-term progressive conditions from which they are unlikely to recover. Their families tell us that they are part of an unnecessary and intrusive measure that they have to repeat every single year, when there is essentially no way that their loved one’s condition will improve. It is in such scenarios that the Bill allows the flexibility to deliver tailored protections that best support the individual depending on their needs.
The three-year renewal can be used only after two one-year renewals. Furthermore, the responsible body is required to specify a continuous programme of reviews if a person’s circumstances will change. That will address the issue of fluctuating conditions that was raised by my hon. Friend Helen Whately. We will also set out further details of fluctuating conditions in our code of practice.
Mr Jones talked about the code of practice, which will be a statutory document. It will be co-produced in consultation with the sector, the Local Government Association, the Association of Directors of Adult Services and the third sector, and it will be laid before both Houses. It will not be in the body of the Bill, because the problem at the moment is that there is a one-size-fits-all process in legislation, but people will have to pay regard to this statutory document.
The right hon. Gentleman also mentioned 16 and 17-year-olds. We have given very careful thought to how to include 16 and 17-year-olds and to how the Bill will interact with other legislation including the Children Act 1989, and we are very comfortable that it works alongside existing legislation. It is also a Law Commission recommendation to bring the provisions in line with the Mental Health Act, as he will be aware.[This section has been corrected on
Under the Bill, every authorisation must be reviewed by somebody who does not deliver the day-to-day care and treatment of the person. That is how we will avoid a conflict of interest for care home managers and independent providers. We want to drive a culture where independent hospitals are considering appropriate arrangements and where there are less restrictive alternatives available. This was also one of the Law Commission’s recommendations. However, we need to ensure that there are sufficient safeguards, which is why, in addition to introducing the consultation duties and the role for appropriate persons or independent mental capacity advocates, we will be tabling an amendment to ensure that every individual in an independent hospital setting will be assigned an approved mental capacity professional to complete the pre-authorisation review. That is regardless of whether the individual or their family object to the deprivation of liberty.
Geraint Davies talked about speech and language. It is vital that communication needs are considered where relevant, and we would expect that a speech and language therapist will be consulted in order to establish the individual’s wishes and feelings. It is really important that those wishes and feelings are very much at the centre of the process.
Members have spoken about the interface with the Mental Health Act. We have broadly recreated the current interface with that Act. The Mental Health Act review did make recommendations on that interface, but Sir Simon Wessely himself said that the Government need to consider the implications of the interface as part of the consideration of that Act. He said that the reform of DoLS cannot wait when there are 48,000 people waiting more than a year for protections to which they are entitled.
If the Opposition’s amendment succeeded, we would be stuck in a broken system with a bureaucratic backlog, in which 125,000 people are waiting for protections. Professor Simon Wessely said that this Bill strikes
“a better balance between the importance of care planning and the provision of (all too often) perfunctory and box-ticking procedural safeguards around that care.”
That makes it clear that action must be taken.
Through this Bill, we are ensuring that people’s wishes are always considered and respected, and that people are safe, cared for and looked after. We are talking about changing a system that is currently not fit for purpose. We have attempted to be collaborative at every stage of the Bill so far. We are driven by a relentless desire to make it as strong and effective as possible and worthy of the vulnerable people we are seeking to protect. We want their loved ones and healthcare professionals to have faith in it, and we will never swerve from our commitment to what is necessary, proportionate and in the best interests of the individual. We commit to working with individuals across this House to make sure that this Bill is in the very best possible shape.
Question put, That the amendment be made.
The House divided:
Ayes 229, Noes 304.