Deprivation of liberty: authorisation of steps necessary for life-sustaining treatment or vital act

Mental Capacity (Amendment) Bill [Lords] – in a Public Bill Committee on 22nd January 2019.

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Amendment proposed (this day): 17, in clause 2,  page 3, line 4, at end insert—

“(10) Where this section is relied on to deprive a cared-for person of his liberty, the person relying on this section must—

(a) inform the cared-for person and any person with an interest in the cared-for person’s welfare of that fact;

(b) keep a written record of the reasons for relying on this section;

(c) supply a copy of the written record of reasons to the cared-for person and any person with an interest in the cared-for person’s welfare within 24 hours of the deprivation of liberty commencing; and

(d) if any of the following apply, make an application to the Court of Protection immediately—

(i) the cared-for person objects to being deprived of his liberty;

(ii) a person with an interest in the welfare of the cared-for person objects to the cared-for person being deprived of his liberty; or

(iii) the donee of a lasting power of attorney or a court-appointed deputy objects to the cared-for person being deprived of his liberty.”—(Barbara Keeley.)

Question again proposed, That the amendment be made.

Photo of Mark Pritchard Mark Pritchard Conservative, The Wrekin

Good afternoon, everybody. I call the shadow Minister to resume her speech.

Photo of Barbara Keeley Barbara Keeley Shadow Minister (Mental Health and Social Care)

As I said, emergency authorisations do not come with the same protections that are built into standard authorisations. Those safeguards include advocacy, independent reviews and independent assessments.

This amendment is designed to add some safeguards to the emergency authorisation process. They would kick in after the authorisation has been granted, and outline how and when it should be escalated. In particular, it would make it absolutely clear when an application to the court should be made.

Given that there is no provision for advocacy under emergency authorisations, this responsibility is falling on whoever makes emergency authorisations. The provisions mean that we are not reliant on family members, who may be under enormous stress, to make the referral. That said, we will be pushing this amendment to a Division.

Question put, That the amendment be made.

The Committee divided:

Ayes 7, Noes 8.

Division number 23 Mental Capacity (Amendment) Bill [Lords] — Deprivation of liberty: authorisation of steps necessary for life-sustaining treatment or vital act

Aye: 7 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Photo of Caroline Dinenage Caroline Dinenage Minister of State (Department of Health and Social Care)

It is a pleasure to serve under your chairmanship once again, Mr Pritchard. Clause 2 relates to the authorisation of steps necessary for life-sustaining treatment or vital acts. This clause is incredibly important. It allows care givers, in limited situations, to deprive someone of their liberty for a short period of time prior to an authorisation being made or in an emergency. This can be done only to provide a person with life-sustaining treatment or to prevent serious deterioration in their condition.

The clause replaces the urgent authorisations that exist under the current deprivation of liberty safeguards system. Urgent authorisations last for up to 14 days in a situation where the need to deprive someone of liberty is urgent. However, providers are left without legal cover when the authorisation runs out and, due to the backlog, the council has not completed the necessary assessments.

We of course want to ensure that there is adequate oversight and that the measure will not be misused to push through unjust deprivations of liberty. Records will need to be kept and provided after the event. The regulators—which, in England, we expect to be the Care Quality Commission and, in Wales, to be Healthcare Inspectorate Wales and Care Inspectorate Wales—can use this to monitor whether adequate care is being given. With that in mind, I recommend that clause 2 stand part of the Bill.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.