My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
I do not look like either my noble friend Lord Rix or my noble friend Lord Adebowale, but I understand that it is in order for any noble Lord to move an amendment that has been tabled. This amendment concerns authorisations under the Bournewood proposals.
One of the problems that, I think, we all have with Bournewood is that we do not know how many people are going to be subject to them. We have had several guesstimates of how many there might be and the characteristics of patients that will make them subject to an authorisation. So far as I can see, it could be any number of people, anything from 3,000 or 4,000 up to 400,000 depending on the characteristics of the individuals concerned.
It is possible that, on many occasions, there will be no need for the period of authorisation to last for longer than a few weeks. That is my hope—I see that the Minister is nodding, so I am hopeful that that is correct—but I can also see that there may well be a rather larger number than we think of people, particularly the elderly with dementia, who will need a longer authorisation period. Some elderly people regularly go "sundowning", which is what we call it when they wander around inside a residential care home trying to get out, looking to go home, back to work or, as one of my patients used to say, "I've got to get out to get me husband's tea". They constantly rattle the door. It is a very common scenario.
Many such people will be subject to the Bournewood provisions when people understand the benefits that they could have for their overall care and security for staff. So there could be occasions when the period will extend beyond a year and possibly go up to two or two and a half years. The amendment would offer the same kind of protection in terms of assessment and the period of authorisation as is provided under the treatment clauses in Section 3 of the Mental Health Act. It is to give an equivalent protection in the time period for an assessment before the renewal of an authorisation. I beg to move.
In the absence of the noble Lords, Lord Rix and Lord Adebowale, I wish to speak to the amendment for three reasons. First, we began to discuss the Bournewood provisions two weeks ago. Since then, at the end of last week, there has been a court case in which there was a finding against Surrey County Council that may turn out to be very important. I am sure that the Minister will decline my invitation to pass an opinion on it, but I think that there is already fairly widespread agreement that it amounts to a significant change in the definition of "deprivation of liberty". In view of that judgment, will the Minister's department consider issuing new guidance on the matter of deprivation of liberty? If so, it is entirely valid that we should discuss the amendment moved by the noble Baroness.
Secondly, how did the department come to its figure of one year? How long is the average stay in a residential home of someone who is likely to come under the provisions? I accept that people who are likely to be deprived of their liberty in residential homes often have significantly different characteristics from those detained under the Mental Health Act in that many of them have Alzheimer's and many of them are very frail.
I hesitate to say this in the presence of someone as eminent as the noble Baroness, Lady Murphy, but it is not unknown—in fact it is fairly frequent—for older people's cognitive abilities to be impaired for simple physical reasons. They may get infections, for example, and become confused, but these are only temporary states of confusion and can change. In that circumstance, a maximum period of a year, which could easily become a default if there were not the resources to go round, is too long. In replying to these points, can the Minister give an assurance that people who are likely to be in a temporary state of incapacity are not being unduly detained for long periods?
I support the amendment. The Minister will know that there are many opportunities for review of an authorisation. It can be instigated by a carer, a care home or a hospital where a change in someone's situation is noticed, and that, I take it, is why an automatic review at 12 months is considered by the Government to be a kind of long-stop measure that will affect relatively few people.
I note the kind of examples that have been quoted, particularly the one just mentioned by the noble Baroness, Lady Barker, but there will also be cases where an individual or their carer may not have the confidence or the knowledge of the system to feel able to instigate a review of their authorisation, and for those people as well 12 months seems far too long to wait for a review of their situation, if one presupposes that it is not in the best interests of the person concerned to be deprived of liberty.
My understanding is that the Government justify the length of authorisation on two grounds. First, they have said that the automatic review at six months would be over-burdensome on services that are already stretched. Secondly, they say that authorisations would generally be for shorter periods and that therefore the provision would affect relatively few people. As I have just said, the automatic review at 12 months is just a long stop to prevent indefinite detention.
If I have got the Government's position right, their two arguments are mutually exclusive. If it is true that relatively few people would be affected, reducing the maximum length of an authorisation could not be over-burdensome. I hope that the Minister will agree to look again at this modification.
I am extremely pleased to hear that. I hope he is therefore able to make his speech tomorrow night, as I have to replace him if he is not. I fear he will not, though. We wish him well in any event, and I am grateful to the noble Baroness.
Important issues have been raised. The noble Baroness began with her concern about the number of people who may be deprived of their liberty. I do not have to remind the Committee of the importance of the Mental Capacity Act 2005 or of these provisions. Noble Lords know well the provisions' history and that the purpose of the Act is to make sure that we enhance the quality of care and support for individuals. Included in that is a recognition that, in certain circumstances, what we have described as "deprivation of liberty" may be appropriate in order to keep them safe, enhance their care and look after them effectively and properly. It is on that basis that we have to address these provisions.
Regarding the numbers, we have talked to psychiatrists who care for people with learning disabilities or dementia and to lawyers who are working in the field. We think that there would be about 1,000 to 5,000 authorisation cases each year. In the first year, we estimate, about 21,000 people will be assessed and about 5,000-plus authorisations will follow from that. That is an estimate by economists in the Department of Health, and it is based on the number of people who lack capacity and who need special protection. We have also looked at figures in one local authority to see how many of their clients may need an assessment.
We hope and expect that, as more homes and hospitals become familiar with the meaning of "deprivation of liberty" and how to avoid it, the annual number of assessments will fall to about 5,000 by 2014-15, which will lead to about 1,250 authorisations. As I indicated, those are estimates based on information that we have, but I hope that they give noble Lords an indication of the kind of figures that, we think, we are describing. I accept, however, that we are moving into a field where those estimates, good as they may be, will none the less need to be tested. Those are the assumptions that have been made.
I do not have the information on that, but I will either get it or write to the noble Baroness. She is right: I have assumed for the purposes of this exercise that the Department of Health has looked at a number of local authorities and chosen one that, it thinks, is a representative area. I take on board the point that she raises about the difference in the type of care, numbers and so on, based on different populations, if nothing else. That is where we start from.
The noble Baroness, Lady Barker, asked three questions. She knows that I cannot talk about the current court case, as it is sub judice. However, it highlights the need for us to be doing what we are doing here and what we are proposing to add to the Mental Capacity Act. The Bournewood provisions will give clarity about what may lawfully be done to protect a vulnerable person who is not able to make decisions about their care. I believe strongly that this is needed by service users' families and those who are providing and commissioning care. I cannot speak about the case, as it is still before the courts and we should not prejudge the outcome. However, we have always anticipated that the code of practice would be revised and reviewed in the light of case law. If there is anything to learn from the judgment, we will look at it. The noble Baroness was right to raise the issue.
I have been told that the local authority in question is Hampshire. The noble Baroness may consult her colleagues and come back to me if she feels that it is unrepresentative; I can think of a particular colleague whom she might consult.
Hampshire is a large county with established residential and nursing care provision. It also has quite a number of very old older people, so I am happy to accept that it is a good authority to use.
I am grateful to the noble Baroness for that endorsement. I hope that she recognises that it is an appropriate basis on which to operate, with all the caveats that I have mentioned.
The noble Baroness asked about the magic number of one year. It is not really a magic number. As the noble Earl, Lord Howe, and the noble Baronesses, Lady Murphy and Lady Barker, have said, it is our anticipation that, for many people, any form of deprivation of liberty, either because of infection, as the noble Baroness, Lady Barker, indicated, or because of other circumstances, will be for a short period of time. We have built in effective safeguards to trigger a review of that decision at appropriate points by the individual, those representing them or the care home. It is important that, as we train and deliver the process, people understand that that is what they should do. A lot of this is not necessarily in the Bill but in the good practice that will follow from it.
A year seemed appropriate to us; it is a well known length of time, it is defined and it is clear. It is also a recognition that we are not looking to reassess too frequently people whose condition is ongoing but are trying to deal with them appropriately.
A number of organisations have raised concerns that it will be a case of, "When in doubt, go for 12 months because 12 months is the maximum period available". As I have indicated, a lot of that depends on the training, the code of practice and the approach that people take. I do not anticipate that we will see that happen except where absolutely necessary. Best interests assessors are critical to that process; their role is to ensure that that is done only where appropriate.
The noble Baroness referred to a default period of a year covering people in a temporary state of confusion. That is categorically not what we anticipate. It is important to approach this from that point of view.
The noble Earl, Lord Howe, raised an issue that runs through a number of the amendments before us regarding family members' knowledge of the system. I hope that we will return to that theme when debating later groups of amendments and discuss how we make sure that those representing the individual, whether family members or others, can understand and get the information that they need to support the person appropriately.
I think that we have the balance right. A maximum period of one year feels right to me. It is on the condition that this is not a default position and should be used only where appropriate. We anticipate seeing many cases where people's deprivation of liberty will be for substantially shorter periods. As I have indicated, a lot of this depends on the code of practice, guidance and training that we offer. We intend to make sure that it is crystal clear. I hope that, on that basis, the noble Baroness will feel able to withdraw the amendment.
The amendment would ensure that a relevant person's representative was appointed in time for them to contribute to the assessments as opposed to what appear to be the Government's proposals for the appointment to be made after an authorisation is granted. The reasoning behind our amendment is that the representative should be appointed when assessments are commissioned, particularly before the best interests assessment is carried out, so that the representative can inform the authorisation process. A person's representative is likely to be a family member, a friend or someone who knows the person well, who will be in a good position to advise on a patient's wishes and feelings and especially on their best interests.
The Government's proposals in briefing documents and the Explanatory Notes state that the representative will be appointed only after an authorisation has been made. On the face of it, that seems at odds with paragraph 125 of Schedule 6, which states that information or submissions from a person's representative or IMCA advocate must be taken into account during assessments, when doing so would obviously be impossible if a representative cannot be appointed at that stage. A separate paragraph in Schedule 6, paragraph 49(6), deals with future assessments after an authorisation has already occurred, with all the necessary assessments. That also states that information from the representative should be taken into account, so it would be valuable to hear from the Government why a representative should be involved in future assessments for authorisations but not the first one.
The original Bournewood case is often quite instructive. It is not clear at what point in the authorisation process the person who is being deprived of liberty would be enabled to object through their advocate or representative. In the Bournewood case, would HL's carers, as representatives, have been able to express his objection and ensure that his objection was accepted? That is quite a telling test. The amendment links to the wider issue of the role of family members and the representatives of people in the Bournewood gap. It would be valuable to hear of any further steps that the Government would be willing to take to strengthen the role of representatives in the process. I beg to move.
I gather that available in the Printed Paper Office are the draft regulations relevant to the appointment of the relevant person's representatives as well as draft regulations for the eligibility and selection of the deprivation of liberty assessors and a statement of intent regarding the other deprivation of liberty regulation-making powers. I draw that to your Lordships' attention not because it will affect the quality of debate in the Chamber this evening but because it would be useful if noble Lords could reflect on what we propose in the draft regulations and let me know if there are issues that they wish to raise.
The noble Earl raises an important point, and I am checking to ensure that the Bill is correctly drafted. We have sought to say that the crucial person at the beginning of the assessment process should be the best interests assessor, who is appointed with the specific function of ascertaining what is in the best interests of the individual concerned and, in so doing, to take into account a range of views, especially from family and friends.
The noble Earl will know that there can be conflicting and different views, and views from a distance if I may describe them as such, but those will be taken into account. Part of what we are asking them to do is to reflect on whether, having talked with family and friends, they wish to recommend somebody as the person's representative. In many cases, certainly in the case of family members I have spoken to, it may be very obvious who the person ought to be. In other cases it might not be. It is a very important role. On the first assessment the best interests assessor would consider that and recommend an individual, if there were such a person; then they would take over the role to act on behalf of the individual.
The noble Earl mentioned the thread that runs through a number of these amendments: ensuring that those invited to take on this role receive the highest quality information. Some stakeholder organisations are concerned that professional independent mental capacity advocates are very used to the system and to undertaking an advocacy role but that family members might find it new and difficult. One of the challenges that I need to look at is how we ensure that we level up the playing field and ensure that representatives, who may be family members or friends, can access high quality information and support to enable them to act effectively on behalf of someone beyond their natural desire to do so, having been chosen or decided to undertake that role because of their affection for and commitment to the individual concerned.
Paragraph 125 of the Bill applies to the initial assessments and the review assessments. There would be a representative at the review assessments because, once that person is appointed, he will play a key role in those assessments. Paragraph 49(6) applies where there is consideration of an existing assessment at review or renewal of an authorisation. Again, a representative would be in place. The Bill's drafting recognises that an individual would be in place at the relevant time.
We have tried to ensure that the best interests assessor plays a critical role at the beginning and is appointed specifically to do that, and that the representative follows on from that process—the best interests assessor playing a key role identifying who that might be—and continues it. We think that is about the right balance, not least because family or friends could hold different views. An independent best interests assessor with the requisite skills is best placed to consider effectively deprivation of liberty; then the representative takes over from there. I hope that I have answered the noble Earl's point and have at least given him pause for thought. I hope that he will withdraw the amendment.
I thank the Minister for explaining the Government's position. Of course I take note of it. I am particularly grateful for the elucidation that the Minister offered on the Bill's drafting. Clearly, I shall need to consider what she has said, which I shall do before the next stage. In the mean time, I beg leave to withdraw the amendment.
At this hour I do not wish to rerun many of the debates that we have just had on the previous amendment moved by the noble Earl. However, as the noble Baroness will be aware, this group comprises probing amendments on the role of the Bournewood case.
I wish to make a point which, the noble Baroness will not be surprised to hear, has been raised by the Making Decisions Alliance and the Mental Health Alliance. On the previous amendment the noble Baroness talked about there being an advocate independent of family members. We understand that. Anybody who discussed the Mental Capacity Act will know only too well that what is determined as being in the best interests of a person who lacks capacity sometimes coincides with the wishes of their family members but sometimes does not.
However, the point that I wish to draw out with these amendments is that it is important that somebody is present who is independent also of the authority making the authorisation. That point was perhaps not reflected in the previous discussion. We are talking about people who are being deprived of their liberty—it is a unique deprivation of liberty given the financial questions which surround it. Whether or not a patient is befriended, it is particularly important that they have access to that independent advocate throughout. That is principally what the amendments are about. I beg to move.
I am grateful to the noble Baroness. The amendments take us back to our previous discussion about the ability of those representing the individual to access the quality of information and advocacy support that I indicated we need to think about, not in the context of the Bill but to level up the playing field more generally.
We recognise the importance of the role that independent mental capacity advocates will play and the critical nature of family members or carers. They can be independent of the care home or the hospital where the individual is being looked after. We do not want to appoint where there is clearly somebody who is able to act in support of the individual. We do not want family members or carers to feel that their role and function is being usurped by professionals. However fantastic those professionals might be, families may find that difficult. One of the features of the Mental Capacity Bill before it became an Act was the number of representations that we received from family organisations concerned that in what we were doing we should not forget them, be they the parents of young people who had long-term learning disabilities or those who cared for elderly people and wished to play a key part in their lives.
We have been quite careful to try to differentiate between those who clearly have somebody who can act on their behalf with the right support, and who will look after the best interests and the needs of the individual very carefully from a position of being their friend or loved one—bearing in mind everything that I have said previously about making sure that they know how to do that effectively—and those who might need independent support because they are not in that position. We should not mix them up in a way that would prevent family members acting in the best interests of those individuals.
That is the right and appropriate way forward. We want to make sure that those representatives are told how to ask for reviews and how to go to the Court of Protection if they felt it necessary, and that support and advice are available to them. We consider that, once we have the person's representative in place, we do not need the independent mental capacity advocate, whose role should cease because the representative has taken over that function as appropriate. They should be invited and enabled to do so with the right kind of support.
We believe that we have got the balance right between independent professional advice and support in particular cases and at particular moments, and enabling family members, with the right level of support, to act on behalf of their loved ones. When the noble Baroness reflects on the matter, she will perhaps see that we have sought to get that balance right. However, as I indicated, I accept that it is very important to ensure that the representatives can act in an individual's best interests because they have the information and support that they need.
I thank the Minister for her full reply. I will have to go away and consider it, because we are talking about a unique situation in which the interests of the care home or authority, the family members and the individual are involved. I am not clear about exactly by whom and by what process it is established that a decision is in the best interests of the person when that may be inconsistent with one or two of the other interests. I will study with great care what the Minister said, but perhaps I may ask her similarly to consider my point again. If she can offer further clarification, perhaps in writing, I would very much appreciate it. I beg leave to withdraw the amendment.
moved Amendment No. 67:
Schedule 6 , page 109, line 29, at end insert—
"Duty to provide a second opinion for serious medical treatment
(1) This paragraph applies to a person (P) who is deprived of liberty in accordance with this schedule if an NHS body is proposing to provide, or secure the provision of, serious medical treatment within section 37(6) to him.
(2) P shall not be given the treatment unless a registered medical practitioner (other than the medical practitioner in charge of the care of the patient) has certified in writing that the patient is not capable of understanding the nature purpose and likely effects of that treatment but that it is in the best interests of the patient in accordance with this Act that the treatment be given.
(3) Before giving a certificate under sub-paragraph (2), the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner."
This is a much more straightforward amendment, ensuring that vulnerable patients lacking capacity are not given serious medical treatment without a second medical opinion on its necessity. Where serious medical treatment is contemplated for a person lacking capacity to consent who qualifies for additional safeguards, Section 37 of the Mental Capacity Act 2005 imposes a duty on the responsible NHS body to ensure that support and representation for that person is sought from an IMCA. Examples of the sort of treatment that might be considered serious include ECT, therapeutic sterilisation and withholding of artificial nutrition and hydration.
A significant percentage of those covered by these proposals are patients who would meet the criteria for detention under the Mental Health Act, but for their compliance with the treatment proposed for them, or, indeed, because some may be unaware of their treatment being administered to them. Many others will be receiving medication and treatment for either or both mental and physical conditions. Under the Mental Health Act, there is a statutory second medical opinion procedure for medication beyond three months and ECT. The same safeguards should be replicated here.
I shall assume that the Minister will understand the motivation behind this, because we debated it at considerable length during the passage of the Mental Capacity Act. Where serious medical treatment is to be, and perhaps sometimes needs to be, carried out upon a person who cannot, because of a lack of capacity, consent, we need the highest possible standards and safeguards. I beg to move.
I support this amendment. There is a tendency to think of these proposals as another imminent job creation scheme for doctors. That is exactly how people addressed the second-opinion appointed doctor issue in 1983; it was not welcomed by many. In fact, however, it has been a tremendous safeguard in the Mental Health Act, and has led to senior doctors, who were previously godlike, understanding that they must think long and hard about the best interests of the patient when they are providing care for someone without capacity, as in this case, or who is resisting treatment.
It has led to a tremendously different culture and feel in how we support those with mental health problems. In spite of the amendment requiring resources, which I do not deny, it would give equivalent safeguards and support good practice already in effect in many institutions caring for those with profound learning disabilities and dementia. It would be a positive move.
As the noble Baroness, Lady Barker, said, we debated many of these issues at great length. In preparing for this group of amendments, I went back to the original Act—the noble Baroness may be surprised to learn that I had forgotten bits of it. I listened with great interest to the noble Baroness, Lady Murphy, who has great experience on these issues.
Let me try to set out the position as I see it from the Mental Capacity Act side, as opposed to the Mental Health Act side. My clear view is that a deprivation of liberty authorisation should concern only deprivation of liberty and should not authorise any course of treatment. The provision of treatment to a person being deprived of their liberty should be in accordance with the arrangements and safeguards contained in the Mental Capacity Act as it currently stands.
Section 5 of the Mental Capacity Act requires that any act carried out in connection with the care and treatment of a person who lacks capacity must—I repeat, must—be in the best interests of that person. In addition, Section 6 of that Act places safeguarding limitations on the use of Section 5 when the act in question is intended to restrain the person who lacks capacity. There is no justification for adapting these provisions in respect of people who are deprived of their liberty.
The requirements of the Mental Capacity Act governing decision-making when a person is unable to consent are robust, practical and were subjected to intensive scrutiny in your Lordships' House. Where serious medical treatment is proposed, there will be a need, in accordance with the best interests provisions of the Act, to consult anyone named by the person, or engaged in caring for them, or interested in their welfare. Also, any donee of lasting power of attorney or deputy appointed by the court would have to be consulted. If there was nobody of that nature whom it would be appropriate to consult, an independent mental capacity advocate would need to be appointed to represent the person's interests.
I believe that the requirements in the Mental Capacity Act regarding decision-making will achieve what we intend, which is to lead to greater involvement in decision-making by the person concerned—that is a critical part of the Act—ensure that what is decided genuinely is in the person's best interests and that, as far as it can be, the decision made is similar to that which the person themselves would have made if they were able to.
The additions to the Mental Capacity Act that are the subject of our scrutiny today will provide new safeguards to the human rights of people who lack capacity and are deprived of their liberty. I am sure that decision-making about serious medical treatment for these people should be handled in the same way as for any other person who does not have the capacity to consent.
I resist the amendment because I firmly believe that within the Mental Capacity Act we have tackled the issues that lie at the heart of what the noble Baroness seeks. Effectively, the amendment would mean that a doctor not involved in the person's care would need to certify in writing that that person was not capable of understanding the treatment proposed and certify that the treatment was in the person's best interests, when the "best interests" provisions of the Mental Capacity Act would already apply. The doctor would have to consult with two persons professionally concerned with the person's medical treatment—which would be a little heavy handed in the context of existing provisions in the Mental Capacity Act.
At the end of the day, I am not sure that we achieve more than what we have already achieved with the Mental Capacity Act, which provides suitable safeguards in Sections 5 and 6, and achieves what the noble Baroness is seeking. I hope that she will reflect on that and, of course, we can have further discussions on this issue. I believe that we are achieving the best for people and that we should not make distinctions in the way that amendment proposes.
I thank the noble Baroness for her answer. I am not wholly convinced by it for two key reasons. First, we are talking about serious medical treatment and it would stretch belief somewhat to think that an independent medical capacity advocate would have sufficient medical knowledge in such cases to make a judgment. They may be able to make judgments on whether such a treatment might be likely to be consistent with a person's past and present express wishes and feelings, but that sort of decision is of a separate order.
The other basis on which I disagree with the noble Baroness is that we are talking about people who are being deprived of their liberty and for whom there would be lesser safeguards than they would have if they were detained under the Mental Health Act. Therefore, I am not wholly convinced by her argument, on the basis either of equivalence or on the capacity of the people who will be making that decision.
I understand what the Minister says about the intent of the Mental Capacity Act, but I am not convinced that it is sufficiently robust to deal with very serious medical issues—issues on which carers and family members may well wish to be consulted. It seems to me that stretching that consultation to people such as independent mental capacity advocates, rather than to those with medical qualifications, is not a sufficient safeguard for people who are deprived of their liberty.
Nevertheless, I heard what the Minister said. I will take the matter away and perhaps she will reflect on my statements, too, and maybe we can discuss this further at a different time. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 6 agreed to.
Schedule 7 [Mental Capacity Act 2005: new Schedule 1A]:
[Amendment No. 68 not moved.]
Schedule 7 agreed to.
Schedule 8 [Amendments relating to new section 4A of, & Schedule A1 to, Mental Capacity Act 2005]:
[Amendments Nos. 69 to 71 not moved.]
Schedule 8 agreed to.
Clause 39 agreed to.
moved Amendment No. 71A:
After Clause 39, insert the following new Clause—
"Amendment to section 40 of Mental Capacity Act 2005
In section 40 of the Mental Capacity Act 2005 (exceptions), in paragraph (c), after "P" insert "other than a deputy who has been appointed by the Court for the property and affairs of P in a professional capacity"."
Noble Lords will be relieved to know that this amendment has absolutely nothing whatever to do with Bournewood. It represents an example of plain opportunism on my part, because it relates to a piece of unfinished business, or business that was missed, from the Mental Capacity Act, and this legislation's passage through the House provides a very convenient vehicle to which to attach it.
The aim of the amendment is to ensure that relevant bodies are required to appoint an independent mental capacity advocate where a court-appointed deputy has been appointed to manage only the property and financial affairs of an individual because there are no suitable family members to act as lay deputies. The essence of the matter is to clarify that, where a deputy acts in a professional capacity purely for financial matters, he or she does not go on to take decisions about a person's welfare. Love accountants as I do, I do not necessarily believe that they are the people to whom one would turn, if one had capacity, to make decisions about one's welfare.
This is a serious point. In these days when finance and the financing of people's care is such a complex matter, accountants are appointed. Where there may be potential conflicts of interest, it is extremely important that people who cannot make their own financial decisions are not forced to rely on someone who does not have the necessary qualifications to represent that part of their needs.
This is a necessary measure to ensure that people who lack capacity have full protection, particularly for their welfare rights, and it is a matter that the Law Society may thank us for clarifying. I beg to move.
I am very grateful for this piece of opportunism from the noble Baroness, Lady Barker, and from the infamous Pauline—I shall put her on the record in Hansard. I reassure your Lordships that deputies who have been appointed in a professional capacity purely for the purposes of property and affairs would not, under the Mental Capacity Act, have the authority of the court to take decisions which lie outside the scope of "property and affairs". These deputies will not have the authority to help or represent a person where decisions are being considered concerning serious medical treatment, care moves or adult protection. Therefore, if no other family or friends are able to support and represent the person without capacity in making decisions on these issues, the person will be entitled to an independent mental capacity advocate.
We have put this explicitly in the code of practice. Officials are in discussion with the Public Guardian Office about providing clear guidance in the form of a handbook for deputies, as well as a newsletter that is sent to all receivers who will become the new property and finance deputies when the Act is implemented. I am also considering whether I need to go further to clarify the issue differently. Perhaps the noble Baroness will not mind if I take it away and return to it at a later stage to ensure that we have captured the point, but there is nothing between us on this issue.
I thank the noble Baroness for that reply. I hope that in her consideration she will take into account the fact that there may be family members who are involved in care but who do not feel that they have the expertise to manage financial matters. Complex financial matters may be in the hands of a professional, or even a solicitor, yet they still may be involved. We must make absolutely sure that they are not put out of the picture by professionals. I look forward to further clarification and I beg leave to withdraw the amendment.
moved Amendment No. 72:
Before Clause 40 , insert the following new Clause—
"Code of practice: duty
After section 118 of the 1983 Act, insert—
"118A Code of practice: duty
(1) It is the duty of a person to have regard to the code if he is acting in relation to a patient and is doing so in a professional capacity.
(2) If it appears to a court or tribunal conducting any criminal or civil proceedings that either—
(a) a provision in the code, or (b) a failure to comply with the code, is relevant to a question arising in the proceedings, the provision or failure must be taken into account in deciding the question.""
My Lords, we return to a matter which I imagine first attracted the attention of the House when the 1983 Act made its passage through Parliament. It certainly attracted the attention of your Lordships as long ago as
The Minister will not be surprised to learn that the amendment before us seeks to impose a legal duty on Mental Health Act professionals to comply with the code of practice of the Mental Health Act 1983, except where it is not possible to do so in the particular circumstances of a case. A familiar argument in Parliament—one that has been made many times—is exactly what is the status of a code of practice that attaches to legislation.
I say at the outset of the debate that there is a flaw in the drafting of the amendment, which means that in any case we will need to return to the matter. None the less, it represents an opportunity to discuss an important matter.
The draft code of practice, lengthy and substantial though it is, says on page 7 of its introduction:
"The Act does not impose a legal duty to comply with the code, but the people to whom it is addressed should not depart from the guidance contained within it without cogent reasons".
Therein lies the problem. That does not give the code of practice statutory force and it leaves the reasons for departures from it too widely drawn.
The Minister will know that codes of practice receive higher status as a result of two things. First, they are issued under Section 7 of the Local Authority Social Services Act 1970. It is always stated at the front of a code of practice issued under that Act that it is. Secondly, primary legislation includes a clear statement about the status of the code of practice; such as, for example, Section 42 of the Mental Capacity Act. However, the code of practice for the Mental Health Act 1983 was not issued under LASA 1970, as it is fondly known, nor does it have an explicit statement about the status of the code of practice. It has been clarified to an extent by case law, but there is conflicting case law about this code of practice. Earlier in Committee, in relation to mental health review tribunals, we discussed the work of practitioners and the things to which they will refer. We argued that they largely make reference to what is in the legislation. The code of practice is necessarily extensive because it rightly contains a great many matters of practice that may change over time, and one would not wish to have to amend primary legislation to reflect those changes.
However, there is a significant problem, and it is not just the standard problem of what is in the code of practice and what is in primary legislation. It is that the code of practice is radically different from the legislation. It is founded on a set of guiding principles that are reflected throughout it, but the legislation is not. There are a great many details in the code of practice that offer safeguards to patients, but they are not in the legislation. There is such a discrepancy between the two documents that if one were a patient or a practitioner, it would be difficult to know where one stood and what one's rights were. The departure from the code of practice as it is set out is far too wide. The noble Lord will correct me if I am wrong, but I think that there does not even have to be a written record of the reasons why a practitioner departed from the code of practice. This is the most important debate about what happens to people as a result of the legislation, and it is a matter we should discuss at considerable length. I hope that we will have more than our routine discussion on matters of this sort. I beg to move.
As the noble Baroness, Lady Barker, observed, we have reached one of the most significant amendments in the Committee's proceedings. I endorse and agree with all she said. I shall re-emphasise a couple of points. A great deal hangs on the code of practice in what we have been debating. If we are to know or be confident that the human rights of patients are to be safeguarded by clinicians and other professionals in the correct and conscientious way that we all believe in and if patients and their carers are to know and be confident about the manner in which they can expect to be treated under the law, the code occupies centre stage in our view of how the provisions of the Bill will play out.
The problem with the code is that it is semi-detached from the primary legislation. That semi-detachment allows too great a scope for clinicians to depart from it in ways of their own choosing. The Minister may say, correctly, that there is helpful case law in this area, which has established that the current code is more than mere advice and that the people to whom it is addressed must have regard to it. However, we have heard from the Minister throughout the Committee proceedings when resisting the amendments that the code of practice rather than the Bill is the right place for certain issues—sometimes very significant issues—to be covered. If that is so, and if so much rests on the effective operation of the code, we need surely to look at ways to make explicit reference in the Bill to the code's standing and importance. As it is, the code relating to the 1983 Act is not specifically referred to in the legislation; nor is it issued under Section 7 of the Local Authority Social Services Act. As the noble Baroness rightly said, either of those things would have given it so-called higher status.
It is interesting that in the Munjaz case of 2003-05 the Court of Appeal and the House of Lords came to different conclusions about the code's status. That fact speaks volumes about the confusion that exists. So, without an amendment of the kind proposed, there will be no benchmark against which a patient can reliably measure the standard of care he receives under the Act. Hospitals will not necessarily act consistently with each other and we will find rules and policy being formulated in individual trusts in different ways. I hope that the Minister will be receptive to the amendment, or, if not to the amendment, then at least to the purpose of it.
This has been a short though very interesting debate. As both the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, have suggested, it is appropriate that we end our deliberations in Committee coming back to much the same debate that has taken place. I want to come on to this question of the balance between what should be in the Act of Parliament and what should be in the code.
I do not recognise the term "semi-detached" in terms of the relation between the code and the legislation. I pay tribute to those responsible for the 1983 legislation. I would argue that the very construct of that legislation allows for some flexibility in terms of what is in the code of practice so that instead of continually coming back to amend primary legislation—we know how infrequent is the passage of mental health legislation—you have a code of practice which can be changed from time to time, but which is consistent and underpinned by the legislation. So I do not see it as being semi-detached. I see it as an endorsement of the way the legislation has been framed.
I fully accept that we have had this debate. Noble Lords from all around the Chamber have sought to ensure, because of their genuine concerns about service provision, particularly in the circumstances of mental health legislation, that the services provided in the NHS are up to the standard that we and they all wish to see. I can see the temptation to amend legislation to try to ensure that that happens. Noble Lords know that I do not agree with that approach. I think that the Bill is essentially about legal processes for compulsory powers; it is not about service provision. I think that there is a genuine problem of seeking to give patients rights to certain health services that are not given to other patients of the health service.
We have a duty under the NHS Act 1977, which requires the Secretary of State in England to continue the promotion of a comprehensive health service designed to secure improvement in the physical and mental health of the people and the prevention, diagnosis and treatment of illness, with a duty to provide or secure the effective provision of services in accordance with that Act. I ask noble Lords to consider the implications of simply taking mental health services or perhaps, on another day, palliative care or cancer services. You cannot, in my judgment, use legislation to determine the actual services to be provided throughout the NHS. Due to that and the importance of, as I have said, underpinning the legislation, we have the code of practice.
Although noble Lords have referred to what they describe as uncertainty in case law—and there may be disagreements between the Appeal Court and the High Court—I think that we have to have regard to the decision of the judicial committee in the Munjaz case in 2005. It said that it was not sufficient to "have regard to" the code in the sense of being able to deviate from it as a person sees fit. Rather, the people to whom it is addressed must follow its guidance except where they have a cogent reason to depart from it. It went on to say:
"Such a departure may either be in relation to an individual patient or by way of policy, whichever is appropriate and justified in the circumstances".
Perhaps I should spell that out a little bit further. The court held that the code does not have the binding effect that a statutory provision or a statutory instrument would have. The code is guidance not instruction. However, the court went on to hold that the,
"guidance in the code should be given great weight. Although it is not instruction, the code is much more than mere advice, which addressees are free to follow or not as they choose".
In other words, it is more than something to which those to whom it is addressed must "have regard to".
The court went on to find that the code contains guidance that should be considered with great care and should be followed unless, as I have already said, there are cogent reasons for not doing so. This sets a high standard which is not easily satisfied. The reasons must be spelt out clearly, logically and convincingly in the court. The court, in reviewing any departures from the code, should scrutinise the reasons given for the departure with the intensity required by the importance and sensitivity of the subject matter.
The court went on to set out the sort of circumstances that could provide cogent reasons for not following the guidance in the code. These included a determination by the High Court that a particular aspect of the code was not legally accurate; that a requirement of the code had been made redundant by subsequent case law legislation; that legal advice had cast a significant doubt on the legal correctness of the guidance; that following the guidance would have involved breaching the patient's rights under the ECHR; or that a judgment was made that a particular aspect of the guidance should not be followed for a safety or another cogent reason relating to the care and treatment of patients. This was the situation in the Munjaz case. The advice that I have received is that this judgment upholds and establishes what noble Lords would want the status of the code to be.
The code exists as guidance. It therefore, as I have already said, has the advantage of being more flexible and easier to update and revise. But it has considerable force, and anyone who breaches the code may be challenged to prove to a court that they have good grounds for doing so and that those grounds are defined. For those reasons, I am simply not persuaded that any further advantage is to be gained by changing the words of the Act. We must also be clear about the law of unintended consequences and the actual position of individual professionals and their ability to use their clinical judgment.
I should say to the noble Earl, Lord Howe—this is not a particularly political point—that there has been a debate in the past couple of weeks about the whole question of central direction to the NHS and the discretion of local people and clinicians. I think we all agree that we want to give as much discretion as possible within certain appropriate parameters. In relation to the health service generally, that might be about standards and regulation. In relation to mental health legislation and the issues that we have been debating, we believe that the code of practice sets a very strong framework that is backed up by the judgment of the Judicial Committee of the House of Lords. It must, however, allow some professional discretion to interpret the statutory provision because those professionals are responsible for detaining and treating patients. I urge noble Lords to think of the consequences of shifting that balance any further.
As the noble and learned Lord, Lord Bingham, said in the judgment to which I have already referred, that would have a "strong centralising effect". Such a change would also limit the ability of practitioners to develop policies for a particular group of patients that depart from the code. People may well have good reason to depart from the guidance in the code, and there may well be cases in which it is better to do so as a matter of policy. I well understand that this is not an easy issue, but I do believe that the 1983 legislation and the code, as informed by case law, have stood the test of time. We will return to this matter at a later stage, but I hope that noble Lords will think that I have judged it very carefully. There is a very strong argument for retaining the current relationship between the Act and the code of practice.
While noble Lords consider whether they wish to intervene any further and before the noble Baroness responds, I wonder if I may read into Hansard a correction to a reply that I gave to the noble Baroness, Lady Murphy, on Amendment No. 21 on
"The Mental Capacity Act provides that these advance decisions do not apply where the person is subject to Part 4 of the Mental Health Act, nor the new Part 4(A) provided for in the Bill. That is because the Mental Health Act provides for circumstances in which a patient with a mental disorder can be treated without consent in order to protect themselves or others".—[Hansard, 15/1/07; col. 528.]
I am afraid that that was not entirely accurate. Section 28 of the Mental Capacity Act does not allow anything in that Act to provide consent where a patient is subject to Part 4 of the Mental Health Act, and by virtue of Clause 28(5) of the amending Bill in respect of Part 4(A). For example, an attorney cannot consent on behalf of the patient, so a patient who lacks capacity must be treated as if they do not consent. Section 28 of the Mental Capacity Act does not apply to refusals of consent. Therefore, that Act can apply where a refusal is involved. This means that, where a patient has made a valid advance decision refusing treatment, he is treated as refusing consent. This makes no difference to decisions where a patient lacks capacity, as he must also be treated as not consenting.
I apologise to noble Lords for springing this on them at a very late hour. I will of course write to the noble Baroness and other noble Lords, but it was felt important that this was read into Hansard in Committee.
I am sorry to hear that. I have signed an awful lot of letters. I will ensure that all of them are circulated to all Members of the Committee who have taken part in our debates. I am sorry if that has not worked out so far.
I thank the noble Earl for his intervention. Different Ministers employ different practices with letters. It takes some time to get used to that. For myself and, I think, the noble Earl, it is always helpful to see all the letters that have gone to individual Members.
In my defence, I think that it is four and a half years since I took a Bill through your Lordships' House, so the Committee will have to forgive my learning process here.
That just goes to show that practice varies.
I thank noble Lords who have taken part in this debate. It is extremely important. I apologise for detaining the Chamber at this hour, but we must debate the matter.
I listened with great care to what the Minister said. I think that he accused us of using the word semi-detached. I am not sure that that is a phrase that I would use. The important point that noble Lords were trying to convey is that by bringing forward a Bill which, by their own admission, is short and does not deal with a great deal of detail, the Government have chosen to leave substantial and important matters to the code of practice. Perhaps the Minister will concede that when a Bill is based not on principles but a code of practice in it, there is at the very least room for conflicting views on implementation.
I also hope that the Minister will accept that noble Lords on this side of the Chamber in no way want to compromise the flexibility open to practitioners. That is why one of our suggestions is that there should be some flexibility—that is, that some parts of the code should be stated to have statutory force but others may not. There are precedents for that. The code of practice under Section 3 of the Disability Discrimination Act does precisely that.
At the end of four and a half days of debate, I thank the Minister for making a clear statement that the Bill essentially sets out the legal processes for compulsion, not for services. That is why the code of practice is so important. It is different from other codes of practice attached to other legislation, because it deals with human rights concerns: matters such as seclusion and restraint. The Joint Committee on Human Rights has called for the code of practice to have statutory force for that reason. The Minister talked about there being frequent changes to the code of practice. My information is that the code of practice has in fact been changed only once.
Just to correct that, I was referring to the fact that we have flexibility within the primary legislation to allow us to make changes. I think that the noble Baroness is right about the number of times that that has happened, but that does not mean to say that future changes cannot be made. I was simply seeking to point out that the people who drafted the 1983 Act got it right by providing the framework that allows us more flexibility than if we had to change primary legislation.
Given that the code of practice deals with matters such as seclusion and restraint and that the right of departure from the code applies to categories of patients—such as those in Ashworth, for example, when considering the period of review of their cases—we are dealing with matters of great importance. The Minister quoted at length from the Munjaz case, but I want to point out to noble Lords that the judgment of the Judicial Committee of your Lordships' House was by three to two. I could quote from the dissenting speech of the noble and learned Lord, Lord Steyn, who said of the majority view that it was,
"a lowering of the protection offered by the law to mentally disordered patients and a set-back for a modern and just mental health law".
With respect, the law is clear and the judgment has been made. It may be by three to two, but that is the decision of the highest court in the land. There can be no doubt about it.
Indeed, but the point we on this side of the Committee are seeking to make is that the scope which it gives to individual hospitals to depart from the code in their policies is so wide that it does not offer sufficient protection to patients. That is why we think that the judgment in the Court of Appeal offered better protection and safeguards to patients, and why there ought to be a clearer statement about the status of the code of practice, or the status of parts of it. The Minister spoke of shifting the balance of protection. The Bill as it amends the 1983 Act shifts the balance away from patients and undermines their safeguards, many of which are set out in the code of practice.
The Minister began his response by suggesting that noble Lords on this side of the Committee were wrong to seek to offer rights and protections to one group of patients over another. I go back to the beginning of our debates, to the very first amendment we considered in Committee. This is the only form of healthcare which can be given to people under compulsion. It is the only form of healthcare that they cannot refuse and which can be given in detention outside the judicial system. That is qualitatively different, and it is a difference we have reflected all the way through the four and a half days of our debate. That is why I believe the arguments put forward by the noble Lord are less than convincing.
Clearly this is not a matter on which we will arrive at a decision tonight, but I ask the Minister to reflect on what we have said about the need for flexibility, on the fact that some parts of the code could be given statutory force, and in particular on what has been said about seclusion and restraint. Those matters are especially important in terms of human rights. I am not going to convince the Minister now, but we have had a helpful exchange of views. This has not been the usual practice in the way we talk about such matters; it is of a higher order and of greater importance than that. I hope that he will consider this further before the next stage.
Of course we will debate the code again on Report, and I will reflect on this debate. I hope that the noble Baroness, too, will reflect on some of the comments I have made about what I think is very clear about the status of the code, particularly the benefit of the degree of flexibility given to individual clinicians. My worry is that if we were to go down the route suggested, it would be quite damaging to individual clinicians in the exercise of their responsibilities.
One point I should have made in my original response is that it will be important for us to look at the wording in the code as it applies on page 7. From my initial reading, I think it needs to better reflect the judgment we have been talking about. I shall be happy to take that matter away also.
We are consulting on the draft and whether it could be made more explicit about the impact of the 2005 judgment on individual professionals. We are also looking at how we can ensure that practitioners and patients are as aware as possible of the code and its status. I hope that will help.
I thank the Minister; that was helpful. We will go away and give due consideration to each other's views but I believe it is unlikely that we will reach agreement on this matter. The noble Lord referred to giving notice to practitioners; I am seeking to ensure that there is adequate protection for patients and that they understand their rights. We come at this matter from completely different points of view. However, the hour is late and I beg leave to withdraw the amendment.