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

Part of the debate – in the House of Lords at 4:45 pm on 26th February 2019.

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Photo of Baroness Watkins of Tavistock Baroness Watkins of Tavistock Crossbench 4:45 pm, 26th February 2019

My Lords, I welcome the Minister to her new role, and look forward very much to working with her. I also acknowledge that the Government have gone a very long way in responding to previous amendments in the name of Lady Hollis and myself with regard to the supply of information to the cared-for person and other relevant bodies.

I turn briefly to my Amendment 25A. While I fully appreciate that it is not always practicable for the responsible body to ensure that a copy of the authorisation record is given to the cared-for person and other bodies immediately after authorisation, as outlined, Commons Amendment 25 is not at all specific about the time limits. I believe this means that busy clinical staff may not always feel it necessary to chase up this issue and make time swiftly to explain issues to the cared-for person or the appropriate person. This needs to be done quickly enough in terms of ongoing deprivation of liberty safeguard orders for appeals or challenges to the authorisation to be made, if individuals so require.

Amendment 25A in my name is therefore designed to ensure that records are kept at the commencement of the deprivation of liberty safeguarding order, outlining the reasons why information cannot be given at that time. These records may be brief but should be clear. For example, they could be as brief as saying that the cared-for person is confused and upset, and that to discuss deprivation of liberty safeguarding at this time is not considered to be in the best interests of the person concerned. As a mental health nurse of 40 years’ standing, I can certainly see such situations arising. I am not contending that everything should be done immediately.

The second part of my amendment is designed to ensure that a time limit is applied to reviewing why the authorisation record has not been given to those specified in sub-paragraph (1) within 72 hours, if this has not occurred, and a review of whether the lack of sharing the information was appropriate at the time of the initial deprivation. I am concerned that while “practicable” is understood in law, in very busy situations things can be kicked down the road. My amendment is designed to ensure that even in busy and sometimes very difficult clinical circumstances, the cared-for person’s right to information regarding authorisation arrangements is reviewed shortly after commencement. I suggest that a time limit for review—not necessarily 72 hours—is consistent with human rights legislation and would be good practice.

If the Government are not able to consider putting some kind of time limit within the main body of the Bill then, having pointed out that I am certainly not wedded to 72 hours, I feel that I will need to seek the opinion of the House. The backlog in the current system indicates what could happen under the Bill if we do not have some kind of clear time limit for information.