Mental Capacity (Amendment) Bill [HL] - Committee (3rd Day)

Part of the debate – in the House of Lords at 8:15 pm on 22nd October 2018.

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Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords) 8:15 pm, 22nd October 2018

My Lords, I am afraid I will take a different view. Amendment 84 is potentially incredibly dangerous in the context of the Bill. I can understand why people with a mental health disorder who know exactly what is likely to happen to them when they relapse and know what treatment they do and do not want can make an informed decision based on their previous experience of their illness and episodes. Here, however, we are asking people to provide advance consent to their liberty being deprived in a situation that they do not know about and have not experienced. The evidence from advance care planning—I have a recent paper from Ontario—showed that people’s knowledge was very poor. There were decision conflicts and when they were re-interviewed later they had re-evaluated their decisions in the light of further information and as things had moved forwards.

The problem is that the cared-for person’s experience of care is based on human interaction. They cannot predict who will be the carer at some point in the future, nor how that interpersonal chemistry will work. I am concerned that there is a real danger that someone could be locked in to having to live with what they said previously. There is a lot of evidence from the world of care planning that people do change their preferences. Indeed, as an illness progresses, they may change them very radically.

I also have a worry that the concept of advance consent could, inadvertently, build in the danger of a disincentive to healthcare or social care professionals to rethink what is happening to someone because the person consented in advance. Yet rehabilitation efforts can greatly alter outcomes and, if they have consented in advance, there may be no incentive to really look at ways to maximise their capacity and support them in more independent ways of living.

We are on the cusp of new technology coming in to help people who need to have some kind of restrictions. I recently went to a fascinating presentation at the Academy of Medical Sciences about using the equivalent of GPS devices to help people who are inclined to wander and to be able to set off an alarm. I think the way things will move forwards is far greater than we can ever envisage and I have a concern that, if we put advance consent into this, we may inadvertently lead to people being far more restricted and far less empowered than all of our arguments so far have tried to encourage.