Mental Capacity (Amendment) Bill [Lords]

Part of the debate – in the House of Commons at 6:06 pm on 18th December 2018.

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Photo of Norman Lamb Norman Lamb Chair, Science and Technology Committee (Commons) 6:06 pm, 18th December 2018

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, 11 December 2018;
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.