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Mental Capacity Bill

Part of the debate – in the House of Lords at 2:30 pm on 25th January 2005.

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Photo of Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities 2:30 pm, 25th January 2005

We return to principles. In deliberations on the Bill, enduring principles have been sought which can be applied in individual circumstances to achieve outcomes in the best interests of the individual who lacks capacity.

Throughout discussions, many have been conscious that not all human beings start from an equal base point. That is particularly so in relation to medical treatment. Throughout the long gestation of the Bill, I have talked frequently about it with people who have disabilities. Many fears—some of which have been articulated in previous amendments—stem not from any provision in the Bill but from a perception, sometimes from experience, of being treated in a way which is disadvantageous—having assumptions made about the value and quality of a person's life simply because of a disability.

For that reason many of us have sought a guarantee that the principles of the Bill will apply equally to people whatever their capacity and, crucially, their status, whether or not they lack capacity—age, disability and their distinctions as human beings.

The purpose underlying the amendment is to ensure that the principles of non-discrimination apply throughout the Bill. I mentioned this matter at Second Reading and I was grateful to the noble Baroness for the letter she wrote to me in reply. There is concern that there are some forms of disability which would not fall within the Bill; for example, people who have mental health conditions which are not permanent or not of a sufficiently long duration for them to be regarded as having a disability, and, therefore, come within the auspices of anti-disability discrimination legislation. That is a major concern. Throughout the Bill there are a number of places where, although they have sought to address temporary or episodic incapacity, it should be an important principle that we ensure there is a direct relationship between the two.

Secondly, I should explain why the amendment takes this form. Its purpose is to state at the front of the Bill a principle of equal consideration. In another and parallel universe, the Committee considering the Mental Health Bill had an interesting discussion with a Minister last week, on the same subject of principles at the front of that Bill, about the need for principles to be enduring. My contention is that the amendment's principles of non-discrimination on those grounds should continue.

The Minister set out at some length, in the letter she sent me after Second Reading, her reason for not being well disposed to such an amendment, saying that there was a read-across from the Disability Discrimination Act and the Disability Discrimination Bill, which is currently working its way through Parliament. I agree that there is a strong read-across. But I do not accept her argument that,

"the place for anti-discrimination provisions is in specific anti-discrimination legislation, where there is a proper framework supporting the measures and a proper enforcement mechanism", because I believe that anti-discriminatory principles run through all sorts of applications and different areas of policy. There is a strong case for restating those principles within specific pieces of legislation.

The noble Baroness should accept from statements made in earlier debates that I believe passionately in the freedoms and the dignity that this Bill will give to individuals, but people who have disabilities do not currently believe themselves to be at an equal level with the rest of us. They should be, but they are not.

When the Joint Committee considered this matter, we read an article in the Guardian by Jane Campbell—one of those newspaper articles that make such a profound impact on you that you cannot forget it. She has severe disabilities and talked about her experience of going into hospital and willing herself not to sleep for the duration of her stay, lest any decision be made about her, her life and her treatment that would have been adverse to her. That was a particular and powerfully articulated experience of one person. I believe that she spoke for many disabled people and their experience and expectations of the Health Service.

So, it is not otiose or wrong to replicate anti-discriminatory principles in the Bill, which will apply them in relation to people who have mental incapacity. That would be a good way to proceed. As I said at Second Reading, this is, in some ways, landmark legislation. It is viewed by people who lack capacity now as something of a "Bill of rights" for them. I do not believe that it would in any way undermine any part of the Bill by having an explicit assumption of equal consideration right at the front of it. I warmly recommend that the Minister accepts my arguments. I beg to move.