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

Part of the debate – in the House of Lords at 3:45 pm on 26th February 2019.

Alert me about debates like this

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Health) 3:45 pm, 26th February 2019

My Lords, it is a matter of great regret that we have reached this point in the Bill and are still debating the definition of deprivation of liberty. We should have been able to resolve this over the last six months, and we should not be having this discussion. We should have agreed it. The reason we have not agreed it, to put one point of criticism, is stated in the letter from the Joint Committee on Human Rights:

“It is regrettable that there was no time for adequate consultation on the proposed definition”.

I think that is exactly right.

We are where we are, and what we have is a disagreement between our very eminent lawyers—the noble and learned Lords, Lord Hope and Lord Mackay—and those of us who have been looking at and considering the Bill since July last year.

The Government have not given enough weight to the letter that the Minister received from the Joint Committee on Human Rights and the issues it raised about the definition that the Government have put in the Bill. If these issues are taken seriously, as the noble and learned Lord, Lord Mackay, has said, there will be challenges. If it is true that this definition will result in differential treatment between physical and mental conditions, that will be challenged. That is an obvious one that will be challenged, because our laws on equality between physical and mental conditions are quite clear.

We on these Benches will be supporting the noble Baroness, Lady Tyler, in her amendment. It provides a definition for practitioners and families of the cared-for person; it takes account of Clause 5; it allows for guidance and information for practitioners to make a real-world determination; it is positive; and it best captures the comments of the noble and learned Baroness, Lady Hale, in the Cheshire West case that the person concerned,

“was under continuous supervision and control and was not free to leave”.

We do not yet have a satisfactory definition in the Bill. One reason we will be supporting this amendment is that we would like the Government to have another go. We would like to see them take seriously the Joint Committee on Human Rights, for the safety of this Bill, so we will support the amendment.