Mental Capacity (Amendment) Bill [HL] - Commons Amendments

Part of the debate – in the House of Lords at 3:22 pm on 26th February 2019.

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Photo of Baroness Blackwood of North Oxford Baroness Blackwood of North Oxford The Parliamentary Under-Secretary for Health and Social Care 3:22 pm, 26th February 2019

My Lords, this Bill will ensure that vulnerable people are afforded protections should they be deprived of their liberty. It will increase access to protections for the 125,000 people who are potentially being deprived of their liberty without an authorisation in place. The Government have, in the other place, made a number of changes which we will consider today.

Amendment 1 was tabled by the Government to provide statutory clarification in relation to the meaning of a deprivation of liberty for the purposes of the Mental Capacity Act. This proposed new clause anchors the meaning of deprivation of liberty to Article 5 of the European Convention on Human Rights. My predecessor and noble friend Lord O’Shaughnessy committed to bring forward statutory clarification in order to provide clarity to people and professionals. The clause delivers this by setting out non-exhaustive bounds of the concept of deprivation of liberty—that is, circumstances which do not constitute a deprivation of liberty. This is a matter that I have discussed with a number of your Lordships.

It sets out that a person is not deprived of their liberty if they are free permanently or temporarily to leave the place they are in and would not be subject to continuous supervision if they were enabled to leave if they expressed a wish to do so. A person will also not be deprived of liberty if arrangements are put in place to give medical treatment for physical illness or injury and these are the same as would be put in place for anyone receiving this treatment.

These boundaries to the concept of deprivation of liberty are drawn mainly from existing case law decided by our highest courts. We have taken this approach because it allows case law to evolve and helps ensure the definition remains valid as it does so. It is also very difficult for any positive definition to adequately address the range of cases that may be a deprivation of liberty, particularly while retaining the ability to reflect evolving case law. This clause will be accompanied by statutory guidance, which will be scrutinised by both Houses. We are currently working with stakeholders to compile case studies to illustrate when a deprivation of liberty occurs or does not occur under this definition, so that it will be more usable by practitioners and individuals.

Amendment 1B, tabled by the noble Baroness, Lady Tyler, provides an alternative definition of deprivation of liberty. It specifies that a person is deprived of their liberty if they are confined in a space,

“for more than a negligible period of time … have not given valid consent and the arrangements are due to an action of a person or body responsible to the state”.

Concerns about this amendment have been raised with me. It speaks directly to Article 5 of the ECHR, and we all agree on the importance of Article 5 in protecting liberty. It is vital to make sure that this is done right. If Parliament defines that concept, it must be clear how our statutory definition of deprivation of liberty relates to the ECHR definition. Our amendment clearly articulates the relationship between Parliament’s definition and the ECHR’s. Getting this wrong would mean further delays for thousands of people who were previously receiving protections. It does this in new subsection (1) by stating that deprivation of liberty has the Article 5 meaning, “and, accordingly”, that there is no deprivation of liberty in the circumstances in the remaining subsections. Thus it is clearly stated that what is not a deprivation of liberty is the same under the Act as under the convention: there is no difference between the two.

Amendment 1B does not do that. The clause defines a deprivation of liberty only for the purposes of the Act itself. It does not link it to Article 5 of the convention. This would risk Parliament’s concept of deprivation of liberty diverging from the convention. It is not appropriate to have two divergent concepts of deprivation of liberty, one set by Parliament and another set by the ECHR. The difference between the two would risk creating confusion and uncertainty. It would also mean that people who fall outside Parliament’s concept of deprivation of liberty but within the Article 5 definition could not have their circumstances considered within the Mental Capacity Act and would have to take their case to the High Court, causing delays. That would not be acceptable. Too many people are already being failed by the current system because of delays. We cannot create a situation that creates further delay, confusion or uncertainty.

Amendment 1B would create a narrow concept of deprivation of liberty. Proposed new subsections (2) and (3) provide cumulative requirements for a deprivation of liberty. If any one of those requirements is absent, the situation falls outside the Act’s concept of deprivation of liberty. One of the requirements is in subsection (3)(b): that the person is,

“subject to continuous supervision and control”.

On this definition, if a person is subject to a level of supervision or control that is less than continuous, they are outside the Act.

For example, a person may be locked in to their care home, unable to leave, regularly medicated and with little liberty. However, the level of supervision might be less than continuous. For example, they may be given just an hour a day to walk unsupervised in a confined garden. Under Amendment 1B, that person may not be considered to have their liberty deprived and would fall outside the Act’s protective framework. I am sure we all recognise that such a restriction as a deprivation of liberty, but the clause would not afford that person protections. Therefore, under the Government’s more limited draft, a person would not fall under liberty protection safeguards merely because there is some period of the day when their supervision is not “continuous”. Rather, it would be only where this was coupled with the person being free to leave temporarily.

This illustrates clearly the problem with trying to provide a list of matters which, together, constitute a deprivation of liberty, or a positive definition. Noble Lords will know that the concept of deprivation of liberty is both complex and fact-sensitive, and needs to apply across varying situations. Indeed, I know that there was a lot of debate on the subject before I came to this House. If a list of requirements is used, such as with Amendment 1B and its proposed new subsections (2) and (3), the real risk is that the list does not capture what is and is not a deprivation of liberty across the widely varying situations that might arise. This then risks leading to the definition not being compatible with Article 5. That is one of the reasons why we opted against having an exhaustive definition of all deprivations of liberty in all settings. Rather, our clause seeks to put into legislation and clarify key features of the concept of deprivation of liberty while minimising the risk of incompatibility with the convention.

I am further concerned by proposed new subsection (2)(b), through which a person falls outside the scheme if they have “given valid consent”. The meaning of this seems to us unclear. This subsection could plausibly be interpreted as providing that people lacking capacity can consent to their confinement, creating a category of people who consent to their deprivation of liberty but lack capacity to make that decision. If that is what the clause intends, it should say so. If it is not, it is unclear what the clause seeks to achieve. A major concern is that the clause does not define “valid consent”, which could lead to uncertainty in implementation. It is essential that any inclusion of that would have to be very clear about what it means.

We are also concerned that the definition in Amendment 1B is narrower than the Article 5 concept of what is imputable to the state, and would mean that cases relating to people being deprived of liberty by non-state actors would fall outside of the system and, instead, fall to the courts, which of course is something that we are trying to avoid. Subsection (4) of the Government’s new clause is a reference to the Court of Appeal’s decision in the case of Ferreira, with which I am sure noble Lords will be familiar. Amendment 1B contains no equivalent subsection and I am concerned that this of itself could create difficulties. Amendment 1B purports to be an exhaustive definition of when a person is considered to be deprived of their liberty for the purposes of the Mental Capacity Act. Without an exception for the sort of situation covered by the case of Ferreira, it is unclear whether Ferreira would continue to apply. This confusion could result in more LPS applications being required where, under the existing law, or under the Government’s proposed amendment, LPSs would not apply.

This amendment, if passed, could risk us having a longer backlog and, in turn, more delay, uncertainty and confusion, as well as our not having a workable system through this legislation. It would mean that people would have to continue to access safeguards through the courts. In addition, we believe that the clause would diverge from ECHR case law on what constitutes a deprivation of liberty. I am sure that noble Lords take these issues extremely seriously; our discussions have shown that they do.

I understand that the noble Baroness and charities such as Age UK are concerned about ensuring that the meaning of deprivation of liberty is understood by families and carers, as well as by those who work in the sector. I agree that this is important but do not think that it can be done through the Bill alone; that is why we are working with the sector to produce a statutory code. I understand concerns that this single code may not go far enough to help families and carers understand the definition, and I would be happy to consider whether a further code or supporting material aimed at these groups might be beneficial. Case studies will be provided to illustrate when a deprivation of liberty occurs and when the provision of care, support and treatment does not meet that threshold.

I assure noble Lords that the government amendment is the result of many months of careful work, in which I know many noble Lords have been involved. We have worked closely with lawyers across government to ensure that this clause reflects existing case law as much as possible, and can provide clarification of the current position while preserving Article 5 rights. The government amendment is clear and precise, which is essential when putting these rights into legislation: that is, turning them into legal rights. It is not something we have done lightly; similarly, changes cannot be made lightly. I understand that the noble Baroness wishes to ensure that the definition can be communicated by people and professionals but, as I outlined a moment ago, it is not appropriate for this to be done through the Bill alone. On this basis, I respectfully ask that the noble Baroness withdraws her amendment and I hope that noble Lords will be content to accept the amendments from the House of Commons. I beg to move.