Deprivation of liberty: code of practice

Mental Capacity (Amendment) Bill [Lords] – in the House of Commons at 2:17 pm on 2nd April 2019.

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Photo of Caroline Dinenage Caroline Dinenage Minister of State (Department of Health and Social Care) 2:17 pm, 2nd April 2019

I beg to move,

That this House
does not insist on its amendment 1 to which the Lords has disagreed, and disagrees with Lords amendment 1B proposed in lieu, but proposes amendment (a) to the Bill in lieu of the Lords amendment.

Photo of Lindsay Hoyle Lindsay Hoyle Chair, Panel of Chairs, Deputy Speaker and Chairman of Ways and Means, Chair, Standing Orders Committee, Chair, Panel of Chairs, Chair, Standing Orders Committee

With this it will be convenient to consider the following:

That this House
disagrees with Lords amendment 25A proposed to its amendment 25, but proposes amendments (a) and (b) to its amendment 25 in lieu of the Lords amendment.

Photo of Caroline Dinenage Caroline Dinenage Minister of State (Department of Health and Social Care)

We now have an opportunity to deliver reforms that will provide quicker and fuller access to protections for the 125,000 people who are not currently receiving them. That is 125,000 vulnerable people without the legal protection that they deserve, whose families do not have peace of mind, and whose care providers have no legal cover for supporting them. We now have an opportunity to rectify this situation.

In February, the other place considered the 56 amendments made to the Bill by the House of Commons, the vast majority of which were agreed with. However, the Lords tabled alternatives to two of the Commons amendments, and they are the focus of our discussions.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

The Minister has rightly pointed out that the Bill will provide a great advantage to those who are directly affected. I do not want to be a total patsy for my local authority, but will she explain what the benefit will be for local authorities, which are responsible for trying to protect people’s welfare and safety?

Photo of Caroline Dinenage Caroline Dinenage Minister of State (Department of Health and Social Care)

My hon. Friend makes an incredibly important point. This issue has been a huge burden for local authorities: they have had to carry out multiple deprivation of liberty safeguards often for the same people and often when those people move from one setting to another. That involves a huge amount of bureaucracy and does not offer any better protection for the individuals concerned. The new service will enable local authorities to do this in a much more streamlined and efficient way. It will save them money and, at the same time, offer better protection for the individuals about whom we all care.

Lords amendment 1B was tabled by Baroness Tyler of Enfield to set out the meaning of a deprivation of liberty positively, rather than by using the exclusionary approach set out by the Government. Noble lords are, of course, absolutely right to want to ensure that any definition is understood by people and practitioners. However, a positive definition of a deprivation of liberty is likely to be subject to a legal challenge as article 5 case law evolves, and it would become unfit for purpose incredibly quickly. This is a view not only shared by the Government, but highlighted beautifully in the other place by the esteemed legal experts Lord Mackay and Lord Hope.

Lords amendment 1B does not link the definition of a deprivation of liberty to article 5 of the European convention on human rights, so creating a risk of the definition set out in statute diverging from the convention. This would mean that people who fall outside Parliament’s concept of deprivation of liberty but within the article 5 definition could not have their deprivation of liberty authorised under the Mental Capacity Act 2005. For those people, only the High Court would be available to authorise such a deprivation of liberty, which, in turn, would give rise to excessive delays in accessing vital safeguards.

That is precisely the situation that this piece of legislation looks to address—there are already too many people subject to delays when accessing safeguards, and we cannot introduce a provision that would further risk this.

Given that the Government have these concerns, we cannot agree with the noble lords in their amendment 1B. However, we know that concerns in the other place are reflected by many across the sector and we have taken that on board. We have listened carefully to the views of MPs, peers and other stakeholders and decided not to insist on amendment 1. Instead, I propose that the meaning of a deprivation of liberty will still be as defined under article 5 of the convention, as it is under section 64(5) of the Mental Capacity Act, but there will not be a clarification of the meaning of a deprivation of liberty in the Bill. The Bill will work alongside the rest of the Mental Capacity Act, so it does not impact on the existing definition.

I reassure the House that the Government are still absolutely committed to providing clarification regarding the meaning of a deprivation of liberty for both people and practitioners. We will use the code of practice to lay out in very clear terms and provide details of when a deprivation of liberty is and is not occurring, and this guidance will reflect existing case law. We will set out the meaning of a deprivation of liberty in a positive framing and in a way that is clearer for people and practitioners. We will also include case studies in the code to help bring this to life. Government amendment (a) in lieu of Lords amendment 1B will prescribe that the code of practice must contain guidance on what kind of arrangements amount to a deprivation of liberty.

Photo of Kevin Foster Kevin Foster Conservative, Torbay

I thank the Minister for giving way and I am reassured by what she says. It would not be appropriate, for example, to put case studies on the front of a piece of primary legislation. Will she outline the timescale for bringing that code of practice forward?

Photo of Caroline Dinenage Caroline Dinenage Minister of State (Department of Health and Social Care)

The code of practice is being worked on as we speak. It is very important that we take it forward in partnership with all the key stakeholders and those who are involved at the front end implementing the liberty protection safeguards. Once we are all content that the code of practice is robust and fully covers everything that we want it to it will then be presented to both Houses of Parliament.

This will mean that the definition will be considered regularly. It will remain up to date with evolving case law. It means that we are laying a report of the review before Parliament and that there will be a review within three years of the measure coming into force to ensure that it is working as intended. The review will extend to all the guidance related to the liberty protection safeguards contained in the code of practice and not just the definition. By regularly reviewing the code in this way, we will ensure that there is up-to-date guidance for people and practitioners and this will support the successful operation of the liberty protection safeguard system.

The amendment will ensure that the code clarifies when a deprivation of liberty does or does not apply and provide useful guidance for families, carers and professionals while also ensuring that we do not put a definition in statute that conflicts with article 5 of the convention and I ask the House for its support in this.

I shall briefly turn to Lords amendment 25A, which was tabled in the other place with the admirable aim of ensuring that the authorisation record is provided to the individual and other relevant persons in a timely manner. This followed the Government amendment that clarified the responsible body’s duty to provide information to the person and other relevant persons. Noble lords amended the Bill to specify that a record must be kept if the authorisation record is not provided immediately. If the authorisation record is not provided to the person within 72 hours then a review must be conducted.

The Government agree that it is very important to make sure that the authorisation process record is provided quickly. However, there are some issues with Lords amendment 25A that need to be addressed before it can be put into statute. For example, it does not make a specific person or organisation responsible for recording that an authorisation record has not been provided for completing a review, so the duty cannot be enforced. Government amendment (a) in lieu of Lords Amendment 25A states:

“After authorisation arrangements, the responsible body must, without delay, arrange for a copy of the authorisation record to be given or sent.”

Government amendment (b) in lieu will ensure that if the responsible body has not done this within 72 hours of the arrangements being authorised, it must review and record why this has not happened. Providing information, including in the authorisation record, is so important to ensure that people are able to exercise their rights. The Government have listened and reflected on the concerns of the other place and have brought forward this amendment. I ask that the House supports it.

Finally, I take this opportunity to put on record my thanks to the Members of both Houses. We set out to consult very widely on this piece of legislation and to listen very carefully to the concerns of both Houses. Both Houses have very carefully scrutinised this crucial piece of legislation. I also thank many of the stakeholders who have supported its development. I thank the Bill team, particularly the Bill manager Sharon Egan, and officials across the UK and Welsh Governments who have worked with the team to deliver this reform. I thank, too, the legal team and my private secretary Flora Henderson. It is through a great deal of dedication and hard work that we will be able to rectify a failing system and provide protections to the 125,000 vulnerable people for whom it currently falls well short.

Photo of Barbara Keeley Barbara Keeley Shadow Minister (Mental Health and Social Care)

When we last debated this Bill, I was clear that Labour did not think that the Bill was adequate to become law. The Minister has just expressed her thanks, but we did make it clear that it contained a number of serious flaws and this still remains the case. While improvements have been made in the House of Lords, they do not fix many of the concerns that we still have with this Bill.

The Bill still places more power than it should in the hands of care home managers. From organising assessments to carrying out consultations with the cared-for person, the Bill means that an untrained, or an ineffective, care home manager could end up carrying out the process in a flawed or improper way.

Recently, there was a focus on the scandal of abuse that happened at the Mendip House Care Home in Somerset, with six autistic residents with complex needs. The Safeguarding Adults Review carried out by the Somerset safeguarding board revealed a host of management failures by the National Autistic Society. The registered manager of that particular care home did not address the unprofessional behaviour of a thuggish gang of male staff. This resulted in the following abuse being meted out to the residents of Mendip House: they were “ridden like horses” by staff; forced to crawl on all fours; made to eat raw chillies; and, in one horrific instance, forced to eat food spiked with mustard, which caused the resident to vomit. The resident was then made by a member of staff to drink that vomit.

People living in Mendip House had complex needs and all would have lacked capacity to make certain decisions and all required deprivation of liberty safeguards. The Care Quality Commission had not receive any notifications that DoLS had been authorised. On care planning and recording, the review report on Mendip House states:

“Care plans were very poor with no mental health or Best Interests assessments recorded... DoLS not being followed.... recording poor, plans out of date...”

The Minister has previously said that, through this Bill, the Government

“are ensuring that people’s wishes are always considered and respected, and that people are safe, cared for and looked after.”—[Official Report, 18 December 2018; Vol. 651, c. 757.]

But I have just cited a case where the care home manager neglected both care planning and safeguarding, so what steps will the Minister take to investigate what happened at Mendip House? Will she ensure that such behaviour does not continue under the provisions of this Bill, given that so much power is given to care home managers? Today is World Autism Awareness Day, and we must do more than pay lip service to showing solidarity with autistic people.

A further flaw is that the Bill could restrict access to independent advocates, which is an important safeguard. However, the granting of an independent advocate is not automatic. An overstretched local authority lacking the budget to pay for advocates following years of Government budget cuts could find itself unable to grant an advocate to everyone who needs one.

It is also still the case that the Bill does not give adequate protection to 16 and 17-year-olds who are subject to the liberty protection safeguards. Specifically, it does not grant their parents a right to veto arrangements that they feel are inappropriate. There remains a real danger that these young people will be detained, despite their parents’ objecting to the arrangements. I stress that this is not only an issue for 16 and 17-year-olds, as many young people who have learning disabilities and are going to be subject to this Bill will still be largely reliant on their parents for support and advice. Cases that we discussed in Committee, such as those of Steven Neary and Oliver McGowan, have shown us that parents can find themselves cut out of the process, with their views made secondary to those of clinicians or care staff. That risks real harm to the younger people who lack capacity.

On the crucial issues of care home managers, advocacy and young people—as on many other issues—the Government did not see the value of the amendments that we tabled. I am sure that we will be back here in the future, debating legislation to rectify these flaws in the Bill, but we still have a duty to try to improve the Bill where we can today. I am glad to say that the Government appear to have made some sensible concessions on areas of the Bill that are still to be finalised.

I would like to pay tribute, as the Minister has done, to the people who have worked on the Bill, especially my Labour colleagues who have worked so hard to try to improve this legislation. In particular, I thank my hon. Friends the Members for Dewsbury (Paula Sherriff), for Nottingham North (Alex Norris), for Stockton North (Alex Cunningham), for Stockton South (Dr Williams), for Slough (Mr Dhesi) and for Birmingham, Selly Oak (Steve McCabe) for all their valuable contributions in Committee and on Report. I also thank our wonderful Whip, my hon. Friend Thangam Debbonaire, who is sitting on the Front Bench now. In the House of Lords, I thank Baroness Thornton, Baroness Wheeler, Lord Hunt of Kings Heath and all Labour peers across the House of Lords who have persistently made the case against the Government’s approach to reforming this very complex legislation. They have always had in mind the interests of cared-for people, their families and those who work in the social care sector.

I turn to Lords amendment 1B and the Government’s amendment to it, which contains two elements. The first removes the definition of deprivation of liberty from the Bill. The second is a commitment to regular reviews of this definition, as the Minister has just outlined. It is to be welcomed that the Government have relented and removed their previous definition from the Bill, as that definition pleased nobody and added nothing. The definition of deprivation of liberty is set out in European law. Nothing that we do in this place will change what article 5 determines is a deprivation of liberty; neither the Government’s initial definition nor Lords amendment 1B can determine that something is not a deprivation liberty for the purposes of article 5 of the European convention on human rights. In fact, all this amendment will do is decide who can be subject to a liberty protection safeguard, and thus who receives the safeguards that the scheme provides.

Submissions to the Public Bill Committee from DoLS leads and other practitioners made it clear that they did not feel that a definition was needed on the face of the Bill. Those professionals felt that they already had a sufficient understanding of the relevant case law, and that the definition would be superfluous—so the Government’s definition was not for practitioners. The reason that the Lords pushed for a definition initially was to clear up confusion among lay people as to what constituted a deprivation of liberty, but the Government’s definition was far too complicated to be understood by cared-for people and their families. The Government knew this but would not simplify it further, saying that simplification was for the code of practice.

Given that the initial definition served nobody—professionals felt it was superfluous and that others would not be able to understand it—the only remaining explanation for its usefulness was that it redefined the scope of deprivation of liberty, and thus reduced the burden of applications by removing people from the scope of the LPS. The Government would have had more success if they had paused the Bill and engaged in a detailed consultation on what the definition should have looked like. However, since day one the Government have been determined to drive this Bill through as fast as they can. Ministers have ignored many calls for a pause or to take a more measured approach. Those calls have come not just from Members in this place and the House of Lords, but from over 100 charities and user-led organisations. The Government did not listen. They seemed less concerned with implementing the right reforms, and more with implementing reforms right away. That is never the right way to make or amend law. I am glad that the Government have now changed their approach and removed their initial definition.

I will say a brief word about the definition tabled by Baroness Tyler in the House of Lords. She recognised that her definition was not perfect as she introduced it, but it was clearly a starting point around which a better definition could be constructed. Baroness Tyler’s definition had the major advantage that it was easily understandable to someone without extensive legal experience. In removing it, we have to acknowledge that we are making the Bill less easily understood. As we have heard, the Government’s solution is to ensure that the code of practice contains easily comprehensible guidance on what is and is not a deprivation of liberty. For this solution to be workable, we must ensure that the guidance is written in a way that can be easily understood by a layperson. It is not reasonable to expect cared-for people or their families to wade through strings of double negatives or endless pages of case studies. I hope that the Government will take this on board as they move forward with the promised code of practice for the LPS.

We still have some reservations about Government amendment (a) to Lords amendment 1B. It places far more weight on the code of practice, which means that we are voting not on a firm proposal, but on a promise that details will be forthcoming at a point in the future. I am sure that other Labour Members will agree that that is not the way we should be asked to make decisions. To judge the merits of the Government’s new amendment, we need to see the guidance that they are promising. If the guidance contains all the problems that the Government’s definition did, we will simply have moved the problem out of the Bill and into the code of practice.

When the Bill was in Committee, I was made aware that a set of case studies had been produced, containing guidance on what did and did not constitute deprivation of liberty. The case studies were apparently intended to be a draft section of the final code of practice, but they were not widely circulated and were clearly not a final product. Had the Government laid this document or something similar before the House ahead of today, we would not be considering this amendment blindly, as we are now being asked to do.

The second part of the Government’s amendment is a positive development. We are dealing with an area that is ultimately governed by an evolving body of case law. Indeed, the reason we are here today is that the original Mental Capacity Act was inflexible on this point. The judgment of the Supreme Court in P v. Cheshire West and Chester Council redrew the boundaries of the definition of deprivation of liberty. Significantly, it brought people in domestic settings into the scope of article 5 for the first time, but the Mental Capacity Act contained no provisions for these circumstances. The Act’s code of practice was suddenly out of date, and people were left unsure as to what constituted a deprivation of liberty. This resulted in large numbers of blanket applications, many of which may not have been needed. The combination of those two factors produced a surge in applications, adding to the backlog that we still see today. If the Government in 2014 had updated the code of practice, they may well have helped to avoid care home managers making blanket applications for all their residents, regardless of whether those applications were justified.

Government amendment (a) to Lords amendment 1B, says that regular reviews must be prepared and laid before Parliament, examining the operation of the guidance contained in the code of practice. Obviously, these reviews will only be useful if the codes are then updated. Will the Minister confirm what plans there will be to remedy any future problems with the code of practice? Regular reviews of the code of practice are welcome, and will help to align the code with case law. However, as was the case in Committee, we still have not seen the code of practice. It is all very well the Government saying that they will review it, but we have no idea what they will be reviewing. We are still having to ask to see documents that are fundamental to the operation of the new system, and that is simply not acceptable. Despite those reservations, we will not oppose amendment (a) in lieu of Lords amendment 1B. We recognise that the Government have finally seen sense and have practical steps to allay our concerns.

Lords amendment 25A is much needed, and I am glad that the Government have accepted the principle behind it. When the Bill was in Committee, the Government introduced a requirement for the cared-for person and others to receive a copy of the LPS authorisation record “as soon as practicable” after authorisation has been granted, and I want to give just one example of why it is so important that people know as soon as possible what is happening in cases of deprivation of liberty: the tragic case of Oliver McGowan. The Minister is familiar with the case, and I understand she recently met Oliver’s mother Paula again, as I did last week.

Oliver McGowan, a young man, died because he was given antipsychotic medication to which he reacted badly, despite express warnings about its possible effect on him. What we only found out recently is that the Mental Capacity Act 2005 was not used appropriately in Oliver’s case. The DoLS authorisation for his treatment was applied for after he was given the antipsychotic drug Olanzapine against his express wishes and those of his parents. He suffered an adverse reaction to the drug which led to his death. His family were not aware of the DoLS authorisation at the time, and it was only at the second coroner’s pre-inquest review, a year after Oliver’s death, that his parents found out about it.

The learning disabilities mortality review of Oliver’s death—I am sure that the Minister would agree that it was a flawed process itself—raised concerns about the lack of a best-interest decision meeting taking place when there had been a dispute about Oliver’s treatment. Paula McGowan told me that the 2005 Act

“was not applied during Oliver’s time in Southmead Hospital and we were not listened to.”

That is what Lords amendment 25A is trying to guard against—a situation in which a person is held under a DoLS for weeks without the legal basis for detaining them being explained to their parents or family members. Taken in conjunction with other rights to information contained in the Bill, the amendment will help to ensure that the cared-for person and their family can understand the process to which they are subject.

Lords amendment 25A sets a tangible limit on how long the meaning of “as soon as practicable” can apply in relation to the cared-for person and others receiving a copy of the LPS authorisation. That is important, because overstretched medical and care staff may be undertaking the task, but they may have many priorities competing for their time. In such a situation, it is all too easy to see that what is essentially an administrative step, such as giving a copy of an LPS authorisation record, could be deprioritised and not happen, which is unacceptable.

The authorisation record could be important in enabling the cared-for person and their family members to understand the effect of the LPS. Moreover, it will inevitably form the basis of any appeals against the granting of the LPS. It is hard to imagine an appeal against an authorisation being embarked upon before the cared-for person knows what decision has been made and why. As such, excessive waits for the authorisation record will act as a de facto block to appeals being launched immediately.

Lords amendment 25A sets a firm time limit of 72 hours for the authorisation record to be provided to the cared-for person and others. If that time limit is exceeded, there must be an investigation. The Government’s amendment (b) to amendment 25 in lieu of Lords amendment 25A retains that important mechanism. In practice, it would incentivise professionals to meet their obligations to provide information to cared-for people and their families. We feel that a time limit is the best way to ensure that that is not forgotten.

As I said at the start, we support Lords amendment 25A, and I am glad that the Government have accepted the principle behind it. As such, we will not oppose Government amendments (a) and (b).

Photo of Kevin Foster Kevin Foster Conservative, Torbay

Thank you, Mr Deputy Speaker. It is a particular pleasure to called by you to speak in the Chamber. It is also a pleasure to speak in this debate to reflect briefly on a bit of the background as to why we need this Bill. Some 125,000 people are effectively subjected to this procedure but without the appropriate legal safeguards, so I welcome the fact that both Houses are now looking to support the Bill.

I welcome the Government amendments that have been tabled in lieu of the Lords amendments, and they take on their main thrust and spirit. As I touched on in my intervention on the Minister, it will be interesting to see the timescale for bringing in the code of practice. I accept that it needs to be done properly and be consulted on and that there must be appropriate case studies, but one of the reasons for supporting this Bill is to see that come forward relatively quickly so that there is certainty. Perhaps the Minister will put a letter in the Library that sets out the timescale.

I would not expect to hear a date picked out of the air and stated on the Floor of the House—that would be unreasonable and inappropriate—but it would be useful to get a sense of the timescale, because I assume that we are talking about months, not weeks or years. It would be inappropriate to include specific examples on the face of the Bill, but it right that the amendments look towards the creation of a clear code of practice and review, providing the opportunity for the House to consider any reviews and hold Ministers to account, because this legislation relates to our most basic right: the right to choose where we live and what we do with our time.

I listened carefully to the shadow Minister, who discussed how to regulate care homes and to ensure that standards are applied. I am not suggesting that every consultation should be carried out by someone from the local authority. Indeed, as I said at an earlier stage of the Bill, it may be more appropriate for a carer who knows the person well to carry out part of the consultation rather than having someone turn up from the council. Again, this is about how to ensure that appropriate standards are maintained. I will keep to the amendments, but we could have a longer debate about how to ensure that regulatory standards are where they need to be.

Photo of Barbara Keeley Barbara Keeley Shadow Minister (Mental Health and Social Care) 2:45 pm, 2nd April 2019

In the example I gave, residents who had lived in a care home for a long period had a manager who did not keep their care plans or any documentation, and they suffered terrible abuse. Such things do go on, and I am still concerned that we are giving responsibility to people who are already overstretched and may not be doing or may be unable to do a good job.

Photo of Kevin Foster Kevin Foster Conservative, Torbay

I accept the point. However, the hon. Lady’s example is not just about standards being ignored, because there was a raft of, bluntly, criminal behaviour and abuse. If we were having a longer debate about care homes and the regulatory system, we could look at whether having the Care Quality Commission cover such a wide range of areas is the best way of ensuring that such things do not happen, but Mr Deputy Speaker is always keen for us to stick to the topic of the debate.

The amendments relating to Lords amendment 1B are appropriate and slightly better than the original, and the amendments relating to Lords amendment 25A make eminent sense. It makes sense to record why something has not happened, because if there are concerns about the management of a care home, there should be a duty to record why something was not done, not just to review it. The management could in theory say, “I’ve reviewed it, but I didn’t record what I’ve concluded,” or try to come up with a conclusion later.

Photo of James Morris James Morris Vice-Chair, Conservative Party

On recording things, one issue that arose when we were in Committee related to fluctuating conditions. For example, if somebody were subject to a DoLS, but then medical evidence demonstrated that they could be released from it, that makes it even more important to ensure that records are kept and that there is absolute clarity around the reasons for deprivation of liberty.

Photo of Kevin Foster Kevin Foster Conservative, Torbay

My hon. Friend makes a strong point. We should not just assume that once a DoLS is in place it will be there for life. For some people, it may apply during a particular period of treatment or time, and things will fluctuate for some people if they recover to a point at which a DoLS is no longer appropriate because they are able to make their own decisions. As he says, the appropriate records must be kept to ensure that that is properly reviewed and borne in mind, so that a decision cannot be made that someone should be subject to this forever. There should be a rolling review, to ensure that those in charge of caring for a person and those overseeing the care are satisfied that it is still the appropriate measure, given its impact on the person’s life.

I do not wish to prolong the debate, given that there is consensus across the House, which is welcome. The Bill will be better for having these substitute amendments, inspired by the Lords amendments, and on that basis, I hope the House will endorse them.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Human Rights), Shadow DUP Spokesperson (Health)

It is always a pleasure to follow Kevin Foster, as I do on many occasions. I agree with what he said. First, I thank the Minister for her commitment, for our comprehensive discussions and for making herself available for each and every person who wished to have input into this process, and hopefully the changes that the Government want to see will be passed.

The Government have gone to some lengths to ensure that this Bill replaces and improves existing legislation surrounding the deprivation of liberty as a matter of pressing urgency. The current system is not fit for purpose—many people in this Chamber and outside it feel that—and this legislative change by the Government is what we want to see.

The Bill implements the Law Commission’s recommendations, introducing a new system for people who lack capacity and need to be confined for care and treatment, ensuring that the system protects vulnerable people, is person-centred and includes a strong role for carers and families. I have had a chat with the Minister about this, and the Bill will also ensure that supported people and their families are supported and included throughout the process. That is very positive.

The supported person will be afforded their rights throughout the process by an appropriate person. The appropriate person will normally be a family member. Carers and families will be given a stronger role, with an explicit duty to consult with them and the supported person. As someone who cares, along with my mother and son and others, for my brother Keith, who was in a motorbike accident some 15 years ago, I know the importance of the carer’s role across the whole process.

Photo of Jim Cunningham Jim Cunningham Labour, Coventry South

The hon. Gentleman makes an important point. For far too long, families have been left out of the equation when they should have been involved. There is an argument for looking at carers’ training and their suitability, perhaps through certification, because there have been lots of cases of abuse in the past. It has gone on for years, and we have to pay particular attention to that. The Care Quality Commission should be improved; it does not have the numbers to do the job. I often follow its reports in Coventry, so I have a good idea of its needs. Does he agree that those areas could be looked at?

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Human Rights), Shadow DUP Spokesperson (Health)

I certainly do. The Minister has responded to the concerns of the hon. Gentleman, myself and others in a spirit of generosity, and perhaps this legislative change does that.

I welcome moves taken to make the definition of deprivation of liberty as strong as possible. What the Government have done is clear. It is vital that the definition links back to the European convention on human rights and provides a sturdy basis to protect vulnerable people. That is good news.

Members have referred to the 125,000 people who are currently deprived of their liberty without the necessary protections in place. Through this legislative change—which will not be opposed; a very helpful attitude has been adopted in the House of Lords and on both sides of this House—can the Minister indicate what will be done to reduce the backlog?

The Government have been lobbied and have consulted the Local Government Association, charitable bodies and other interested people and groups. As a result, we have a vital opportunity for long-awaited reform, and the Bill needs to be passed.

Mr Deputy Speaker, I gave you my commitment that this would be a short contribution, and I intend to keep to that. I want to finish with two quick questions to the Minister. Can she explain how the role of an appropriate person will support and protect vulnerable people in the proposed new system? Secondly, will she confirm that the needs of the supported person and their families will be put first?

Photo of Lindsay Hoyle Lindsay Hoyle Chair, Panel of Chairs, Deputy Speaker and Chairman of Ways and Means, Chair, Standing Orders Committee, Chair, Panel of Chairs, Chair, Standing Orders Committee

Just to help, the Minister would need leave to respond to those questions, so the hon. Gentleman is putting pressure on for something that is not available at the moment.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Human Rights), Shadow DUP Spokesperson (Health)

I would never put pressure on the Minister—not in a million years; I know my place. I suggest gently to her that those two things could be looked at.

Photo of Helen Whately Helen Whately Vice-Chair, Conservative Party

It is always a pleasure to follow Jim Shannon, who makes such thoughtful contributions. I will be brief, as we appear to have a large amount of consensus on this piece of legislation.

First, I want to pay tribute to my hon. Friend the Minister for the work she has done on the Bill, her extremely consensual approach to it and the way she has listened to concerns from Members on both sides of the House and consulted stakeholders widely. It has been a real pleasure to work with her on the Bill, and I thank her for that.

This Bill is critical because it concerns some of the most vulnerable people in our society. We have talked about the fact that there are 125,000 people waiting to be processed for deprivation of liberty orders, and the system is not working, but there are 2 million people who have impaired mental capacity in the country, and we need to get the system right for all of them, not just the 125,000 who are being let down by the current system.

It is also important to say that the Bill builds on more than three years of work and the recommendations of the Law Commission. It has been fully scrutinised by the Joint Committee on Human Rights, and the other place has contributed to it, as have members of the Bill Committee. I have received many emails in support of the fact that it introduces a better system, gets rid of the bureaucratic box-ticking exercises in the old system and should be better for both the individuals who are deprived of their liberty and their families.

Photo of Barbara Keeley Barbara Keeley Shadow Minister (Mental Health and Social Care)

The work that was done for three years was on a 15-clause Bill that is not this Bill. We discussed that plenty of times in Committee. I think it only fair to be accurate. This five-clause Bill is not the Bill that was consulted on, and it is not the Bill that had three years of work. It is not correct to claim that it is. We spent a lot of time in Committee trying to put right the things that were missing and taken out of the earlier 15-clause Bill, and it is better to be accurate about that.

Photo of Helen Whately Helen Whately Vice-Chair, Conservative Party

I thank the hon. Lady for her intervention. Broadly, I was attempting to say that a significant amount of work has gone into this. I have heard overwhelmingly from those working in the sector about the importance of doing something about the current situation, because it is not working and cannot be allowed to continue. This is urgent.

It is right that the NHS and social care providers will be given a bigger role in the decision-making process, so that people under their care receive better care and their rights are protected. The fact that we have people outside the system unprotected at the moment clearly cannot be right and cannot continue. During the passage of the Bill, I raised concerns about how it will work for people with fluctuating conditions, and I have been reassured by the Minister that responsible bodies will be required to keep individuals’ circumstances under review. I welcome the fact that there is further detailed guidance on fluctuating conditions in the code of practice.

I turn to the amendments and particularly the debate about the best way to define “deprivation of liberty”. It feels like a sensible conclusion has been reached in order for us to move forward, with a plan to develop the definition further through the code of practice. These things evolve and are extremely complex, and we need a flexible system that meets the needs of our society.

To sum up, the old system is not fit for purpose. The Bill makes important and timely amendments. It is better for individuals and all those around them to ensure that they have appropriate protections for the very serious matter of depriving individuals of liberty.

Question put and agreed to.


That this House
does not insist on its amendment 1 to which the Lords has disagreed, and disagrees with Lords amendment 1B proposed in lieu, but proposes amendment (a) to the Bill in lieu of the Lords amendment.


That this House
disagrees with Lords amendment 25A proposed to its amendment 25, but proposes amendments (a) and (b) to its amendment 25 in lieu of the Lords amendment.—(Jo Churchill.)