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

Part of the debate – in the House of Lords at 9:45 pm on 22nd October 2018.

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Photo of Baroness Tyler of Enfield Baroness Tyler of Enfield Liberal Democrat 9:45 pm, 22nd October 2018

My Lords, I have two amendments in this group and my name is attached to four others. It is a little unfortunate that we are coming to this important group of amendments, which affect the Bill as a whole—there are some very important implementation issues—quite so late in the day when the appetite for debate is understandably somewhat limited.

My Amendment 88 seeks to do two things. It seeks, first, to enhance scrutiny of regulations in Parliament and, secondly, to ensure proper consultation if the Government seek to amend regulations later on down the line. According to the Explanatory Notes, as drafted the regulations are subject to the negative procedure, except where the Secretary of State wishes to change primary legislation, in which case the affirmative procedure applies. My amendment proposes a different approach, whereby the positive procedure applies in both cases. That would mean that, should the Government wish to amend regulations, such a change would automatically trigger scrutiny in both Houses. Why do I think this is important? Fundamentally, depriving someone of their liberty is a very major and fundamental action which warrants strong safeguards and scrutiny. I think it is absolutely vital that we closely monitor the implementation of this legislation and debate any proposed changes that the Government may wish to introduce.

The second part of my amendment—which I think is equally important—means that, before laying a regulation, the Government must consult with stakeholders on its potential impact. Again, given that this legislation concerns extremely vulnerable people, it is absolutely vital that we get it right—that is both primary legislation and the detail of any regulations. One of the threads throughout our debate in Committee, both today and in our two previous sessions, has been that, while the Law Commission consulted widely on its draft Bill, the Government’s Bill, which we are now discussing—and which is very different in a number of important aspects—was introduced with very little consultation with those who work in the sector. It is absolutely vital that we hear from mental health practitioners, legal professionals, charities and those representing vulnerable people.

Amendment 87F is a probing amendment and it is to highlight the current unsatisfactory situation, which I gather is causing real concern to clinicians in relation to when they are obliged to complete court reports requested by the Court of Protection. This issue was drawn to my attention by the Royal College of Psychiatrists and I draw the House’s attention to my interests in the register. Currently, Section 49 of the Mental Capacity Act 2005 authorises courts to,

“require a local authority, or an NHS body”,

to prepare a report on such matters,

“as the court may direct”— generally, the relevant person’s mental health or mental capacity.

I understand that drafting such a report requires a senior clinician to review previous reports, examine the patient, talk to family members or carers and carry out necessary tests. Notably, it often relates to a patient who has never been under the care of that clinician or even the hospital trust employing them. I have been told that the average time required to complete such a report—although it varies—would be around 10 hours, which does not include the extra time required if the clinician is required to attend court in person to give evidence.

The nub with the concern here, which has been raised by many clinicians, is that an unknown quantity of clinician time is being taken away from front-line patient care. As there is no national data, as I understand, on this, it is unclear how much. Again, as I understand it, CCGs and NHS trusts are not being paid for or equipped for their staff to be required to spend their time in such a way, and the very short timeframe often set by the court can lead to very considerable disruption of clinical priorities and patient appointments being changed at the very last minute.

I emphasise that I have no problems with the Court of Protection needing reports and expert advice—it is just that the system for getting it does not seem right to me, with the NHS being required to provide these reports in such a way. Frankly, there is cost shunting on to the NHS, but it is also having no regard for the impact on wider patient care. The Minister has said that he will be talking to the MoJ about a number of things. It would be very helpful to hear how the MoJ thinks this system could be better managed so it does not have such a deleterious effect on wider patient care. The purpose of this amendment is to get the Minister to explain and outline the Government’s thinking in this area.

Finally, Amendments 86 and 93 require two very crucial documents to be laid before Parliament before the provisions of the Act can come into force: the code of practice and the Government response to the Independent Review of the Mental Health Act. It is really where we started off this evening—certainly where I started off was looking at the interaction of those two pieces of legislation.

The one point I will make is that whatever recommendations the Mental Health Act review ends up making, it is clear that as long as we have separate legislation to govern mental illness and mental capacity, we absolutely must consider the interaction between those two frameworks. In terms of implementation, the early introduction of the Bill prevents the review from making suggestions that touch on the scope of the LPSs we are discussing. Therefore, it is crucial that the Government respond to the review’s recommendations before the LPSs that we are talking about at the moment can come into force.