Extent, commencement and short title

Mental Capacity (Amendment) Bill [Lords] – in a Public Bill Committee at 2:15 pm on 22nd January 2019.

Alert me about debates like this

Photo of Barbara Keeley Barbara Keeley Shadow Minister (Mental Health and Social Care) 2:15 pm, 22nd January 2019

I beg to move amendment 52, in clause 5, page 4, line 16, at end insert—

“(3A) Before the Secretary of State makes any regulations under subsection (3)(b) above, the Secretary of State must publish his or her consideration of the conclusions of the Independent Review of the Mental Health Act relevant to the deprivation of liberty in accordance with the provisions of the Mental Capacity Act 2005, and in particular Schedule AA1 of that Act.”

This amendment ensures that the Government cannot enact the provisions of this Bill until such a date as it has responded to the findings of the Independent Review of the Mental Health Act, specifically the interface between the Mental Health Act and the Mental Capacity Act.

Photo of Mark Pritchard Mark Pritchard Conservative, The Wrekin

With this it will be convenient to discuss the following:

Amendment 53, in clause 5, page 4, line 16, at end insert—

“(3A) Before the Secretary of State makes any regulations under subsection (3)(b) above, the Secretary of State must—

(a) publish a full implementation strategy, outlining how local authorities and other responsible bodies will be resourced to process applications under this Act; and

(b) publish an updated Impact Assessment on the impact of the provisions of this Act.”

This amendment ensures that the Government cannot enact the provisions of this Bill until such a date as it has published an updated impact assessment, and set out an implementation strategy for the new system.

Amendment 54, in clause 5, page 4, line 16, at end insert—

“(3A) The Secretary of State may not make any regulations under subsection (3)(b) above, unless—

(a) the Secretary of State has—

(i) consulted on the Code of Practice,

(ii) published a Code of Practice,

(iii) laid that Code of Practice before Parliament, and

(b) that Code of Practice has been approved by a resolution of each House of Parliament.”

This amendment ensures that the Government cannot enact the provisions of this Bill until such a date as it has published a new Code of Practice, which has been approved in a vote in each House of Parliament.

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

The amendments would impose a condition that the Bill should not be implemented until the Government have responded to the findings of the independent review of the Mental Health Act 1983 and dealt specifically with the interface between that Act and the Mental Capacity Act; published an updated impact assessment; and published a new code of practice approved by a vote in each House of Parliament.

I said on Second Reading that

“reform of the Mental Capacity Act 2005 requires methodical planning”.—[Official Report, 18 December 2018; Vol. 651, c. 732.]

The issues that the Committee has discussed over the past two weeks have far-reaching implications for as many as 2 million people who may lack capacity. I am pleased that the tone of our debate has risen to the magnitude of the issue, but I feel that the difference in the depth of contribution, depending on which side of the debate we are on, has been marked. That is important because the debate has been a discussion of the fundamental rights of some of the most vulnerable people in our society. I thank hon. Friends who have given proper scrutiny to the Bill and its impact on the liberty of very vulnerable people. Cared-for people deserve no less.

The Bill remains deeply flawed in a host of areas. It is very disappointing that the Minister has been so stubborn in rejecting all our amendments out of hand. We entered Committee in a spirit of co-operation, but I feel that that has not been matched by the Government. Our amendments were not a Christmas list of things that would be nice to have; they were the minimum reforms needed to make the Bill fit for purpose. The fact that so many remedial amendments were needed shows that the Bill has been put together in anything but a methodical way. The reality is that the Government are pushing ahead at breakneck speed, contrary to all the warnings from a wide group of concerned stakeholders. That is not a proper way to treat an issue of such importance.

A key concern raised by stakeholders relates to the interface between the Mental Health Act and the Mental Capacity Act. The two are deeply intertwined; indeed, the existing interface is so complex that a senior judge has noted:

“When you write a judgment on them, you feel as if you have been in a washing machine and spin dryer”.

The Acts provide different legal frameworks for treating someone without consent and depriving them of their liberty by detaining or confining them in a hospital or care home. The Mental Capacity Act can be used only when a person lacks capacity to consent to their confinement; where it is used, professionals must use deprivation of liberty safeguards to authorise detention and protect a patient’s rights. At the moment, if someone has capacity and objects to their admission or treatment for a mental disorder, the Mental Health Act must be used because they are being compulsorily detained against their will.

Professor Sir Simon Wessely wrote in his final report that the review’s intention was to take the use of the Mental Health Act

“back to the position that it can only be used for people who are obviously objecting to treatment.”

That is key. The Mental Health Act should not be used simply because someone lacks the capacity to consent to their admission. Troublingly, the review found that the Mental Health Act had been used, at least in some cases, because it is easier to use than DoLS. Furthermore, it found a significant number of cases where the Mental Health Act had been used for patients with dementia because of doubts or disputes as to whether the person was objecting to their admission.

While that cannot be confirmed with the data available, the Care Quality Commission observed an increase in the numbers of people over 65 detained under the Mental Health Act. In one older-adult ward that the CQC visited, the increase was from 15% to 85% of residents between 2013-14 and 2016-17.

The confusion as to which statute to use arises from the issue of whether someone without capacity is objecting to their treatment. It means that either the Mental Health Act or the DoLS can be used, depending on where the decision is being taken, and on the cared-for person. Professor Sir Simon noted that it is unhelpful to have two different options for the patient who cannot consent but who is also not objecting. His review argued:

“The patient is facing a lottery between two different legal positions. Whilst at first it may be attractive to use the MHA because, generally, it is considered to have greater safeguards than the MCA, it is also extending the reach of compulsory powers.”

The review recommended that

“the law should be amended so that only the MCA framework”— specifically the liberty protection safeguards—

“can be used where a person lacks capacity to consent to their admission or treatment for mental disorder and it is clear that they are not objecting.”

We are aware that objection is not always easy to identify—we have had some excellent case study material today around the issue of whether a patient is objecting. An objection can be very difficult to identify, especially in people with cognitive impairments. The Mental Health Act review noted that

“whilst it may be relatively easy to determine whether or not someone is objecting to treatment in a psychiatric hospital, it will not be so easy when the patient is in a general hospital but treatment for a mental disorder is being considered. However... objection is the term that is currently used in both the MHA and MCA, and is a familiar enough concept not just for professionals, but for anyone.”

The review said that that was “the right dividing line” between the Mental Health Act and the Mental Capacity Act. However, it recommended that

“clear guidance will be required as to what objection looks like in practice in both the MHA and MCA...and what practitioners should do where a person who was previously objecting is no longer doing so (and the other way around).”

The Law Society has reinforced that recommendation, pointing out that it is not feasible to expect care home managers to navigate the complex interface between the two pieces of mental health legislation. It is concerned that it would be difficult to reach a conclusion on whether a liberty protection safeguard would be excluded, due to the operation of part 7 of the Bill, for many capable people. We have yet to see any guidance or a full code of practice, which is why we are seeking assurances through this amendment.

More broadly, there seems to be little evidence of any consideration of that interface. That is because the Bill was introduced before the final recommendations of the independent review of the Mental Health Act were published, which happened in December. That is problematic because the Bill replicates the complex interface, which will persist until the Mental Health Act is amended. I am afraid that, given the complex relationship between the two Acts, this is another example of the Government’s careless approach to reform of the legislation.

A whole host of stakeholder organisations—including, most prominently, Liberty— has called for a pause in the Bill process, in order to consider the implications of the Mental Health Act review. The amendment reflects the depth of stakeholder concern and requests that the Bill does not take effect until a response has been given to the Mental Health Act review. The purpose of some form of pause before enactment would be in part to allow time to develop a clear and workable interaction in the Bill, which would need to be understood by those subject to liberty protection safeguards and their families, as well as those who are operating them.

Turning to amendment 53, one concern that stakeholders have raised repeatedly since the Bill completed its passage through the House of Lords is the issue of the Government’s impact assessment. The Government published an impact assessment on the Bill on 29 June 2018, although an equality impact assessment was published only one day before Second Reading in the House of Commons on 18 December.

There are several problems in the overall impact assessment, which sets out a number of cost assumptions for the review of the liberty protection safeguards system. First, many of the calculations appear to be based on those drawn up by the Law Commission and included in its own impact assessment, which accompanied its draft Bill. Of course, the measure we are debating is not that draft Bill. As we have said many times, this is a cut-down version of an earlier Bill.

I will take as one example the total cost of advocacy—a key aspect of the Bill on which we had a good debate this morning. The Government’s impact assessment says advocacy will cost a total of £23.08 million. This appears to be calculated by multiplying the average cost of advocacy per authorisation, £76, by the number of applications in the new system, 304,132. Why has the Government’s impact assessment calculated the average cost of advocacy per authorisation? Under the proposed liberty protection safeguards, many cared-for people will not receive a paid advocate—something on which we urged the Minister to take action this morning.

Would it not be better to calculate the figures according to the actual cost of providing advocacy, based on the total number of advocates that are expected to be used in these cases? Will the Minister say how much that would be? It would surely be a more logical way of calculating this figure and its impact.

Further costs need clarification, including those that depart from the Law Commission’s assertion, such as the cost of administration in the form of desktop reviews. That will cost a total of £47 million and will be borne by local authorities. It is calculated as the number of applications per year under the preferred model—the figure I gave earlier of 304,132 multiplied by the cost of administration of £155.

In calculating that, the Government’s impact assessment took the cost of administration of the current DoLS system from the Law Commission’s impact assessment, but then inexplicably halved the cost to £155 to account for the fact that it would be less intensive than under DoLS at present. Will the Minister explain how the calculation in the impact assessment was arrived at? How have we quantified how much less intensive the system will be? What is the methodology behind that?

Secondly, a number of assertions in the impact assessment are woefully out of date, given the changes made to the Bill in the House of Lords that have made several key cost estimates entirely redundant. For example, the impact assessment assumes no net change in cost to providers of authorisations and administrations. It was assumed that providers would no longer need to complete an existing form of comparable length and complexity to request an assessment or deal with uncertainty and delay as a result of the assessment being provided by an under-resourced system.

The Minister has assured us that in many cases local authorities will carry out authorisations. Why does this not affect the cost of authorisations in the impact assessment? The issue of the resourcing of local authorities has been raised by Labour Members a number of times and is absolutely key.

I could point out further examples of inconsistencies. The cost of approvals by approved mental capacity professionals is assumed to be £10.5 million a year. However, that figure does not take into account the cost of AMCP approvals for cases in independent hospitals in the light of amendments to the Bill made by the Committee. The Government tabled amendments in relation to AMCPs and independent hospitals. Were cost estimates made of this change, and what is the additional cost?

There have been a number of expressions of concern about training. The total cost of doctor and social worker training in the new system is apparently £780,000 or £23 per doctor or social worker. That seems a rather miserly amount. What will the training constitute and how long will it last? The impact assessment calculates the number of doctors and social workers needing training as 10% of the total number of doctors and social workers. How have the Government arrived at that figure?

A key figure is the cost of familiarisation, which is put at £1 million. That is based on care home managers undergoing half a day’s training in this entirely new system. Does the Minister think that is a reasonable cost estimate of the amount of time care home managers need to become literate in a new system of liberty protection safeguards? How was it calculated? Given our debate on the role of the care home manager, how realistic does the Minister think that that figure is? This is absolutely crucial. We have tried by tabling amendments to remove the impact of the role of care home managers. To assume that they will get by with half a day’s training on this new system is very worrying.

These examples show that there are still glaring inconsistencies between the Bill and the existing impact assessment. What is missing entirely—and is important for the Bill overall —is an indication of the cost of reducing the backlog of DoLS applications, which, as I described earlier, has got out of control because of the Government’s decision to starve local authorities that are processing the applications of funding. There are key questions relating to the implementation of the Bill that need to be answered urgently. What calculations have been made by the Department of Health and Social Care about how much it will cost to reduce that backlog? How long will it take to reduce the backlog, and what will happen to cared-for people whose applications have yet to be processed? What guarantees can the Minister give that no one will fall between the cracks of the two systems?

It is precisely because the Government have so far failed to answer those questions in their haste to get the legislation through Parliament that we have felt it necessary to table amendment 53, which requires the Government to publish an impact assessment and an implementation strategy before they can enact the provisions of the Bill. Opposition Members will not take on trust the Government’s assertions that the costs will be lower and the system more efficient. There must be a clear plan of action and a revised estimation of costs for the Bill to have any credibility.

In the same vein, I want to address the subject of amendment 54, which aims to ensure that the Government publish a code of practice. We have heard on many occasions in Committee that the Government will put many finer details about their provisions in a code of practice. If we have heard anything in the Committee, we have heard about the code of practice, which is an important accessory to legislation where non-legal people are using a law directly. No one expects non-legal people to read or necessarily understand a statute, so a code is provided. Such a code follows what is in statute and sets it out in lay terms and at length. However, as I have said previously, statutory codes do not exist without a statute, and the majority of laws do not have a code of practice. I have previously mentioned the 2018 case of an NHS Trust and others (Respondents) v. Y, in the Supreme Court, and it is salutary to raise it again.

Photo of Tanmanjeet Singh Dhesi Tanmanjeet Singh Dhesi Labour, Slough

We have referred to the code of practice, or the Minister has, on several occasions. We have consistently asked for it to be published. Surely the provisions would be nonsensical without it given we are being referred to it in relation to so many of the provisions we are arguing for. If a code of practice does not exist, where does that leave us in this whole scenario?

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

Indeed. It is salutary to use the following quotation again:

“Whatever the weight given to the Code by section 42 of the Mental Capacity Act 2005, it does not create an obligation as a matter of law to apply to court in every case.”

We have wanted to know what is in the code of practice. We think knowing what is in it is important in deciding our position on what is in the Bill. The Government have declined to put too many aspects in the Bill and have instead favoured the code of practice. When legislation and codes of practice exist together, they are drawn up together and published together. That has not happened in this case and it is the wrong approach. We cannot leave crucial details about how a new system of protections would work, including what resources will be given to it, to a code of practice that has not been drawn up yet, but that is what the Government have done.

On the first day of this Committee the Minister said that she would supply Committee Members with a list of what should be contained in the code of practice, and I thank her for doing so last night. Unfortunately, that does not answer many of our concerns. For instance, we raised concerns about the length of authorisations. It is welcome that there will be guidance in the code of practice, but we still do not know what it will say. Similarly, the Minister’s letter says that the code of practice will contain

“guidance on the necessary separation and operation independence from any independent hospital an AMCP is conducting a review in”.

Again, I am glad that there will be guidance, but we still do not know what it will be. Nothing prohibits any of the relationships we are concerned about and have discussed at length: it simply says that some relationships may be prohibited. That is simply not good enough at this stage. As such, the Minister’s letter does not answer the concern of my hon. Friend the Member for Slough. We remain worried that there will not be proper oversight of this code of practice. Without seeing the full code, we cannot be certain that its contents are sufficient or appropriate.

Overall, the Government’s approach of constantly mentioning the code of practice as being the place where whatever is not in the Bill will be plays fast and loose with the rights and liberties of cared-for people. It further reinforces the mess that the Government have made of the Bill by rushing it through Parliament. Had they done the sensible thing and paused the process, they would have had time to draw up a draft code of practice so that we could consider it alongside the Bill, as is commonly the case. They have given reassurances that many of the concerns can be addressed in subsequent regulations and the code of practice, but that is simply unacceptable to those of us on the Opposition Benches. To that end, we have tabled the amendment to ensure that the Bill cannot be enacted until a code of practice has been published and approved by votes in both Houses, rather than just published.

An important principle that I want to discuss briefly is that legislation can begin in the House of Lords where it is deemed to be non-controversial. That was not the case with the Bill. It is not simply a reproduction of the Law Commission’s draft Bill, which was widely consulted on. As the recent media coverage in places such as The Guardian has shown, the Bill is not without controversy. The code of practice should not be passed through a negative resolution procedure in secondary legislation on the grounds that it is non-controversial. The Minister has indicated that the code of practice will have a real vote in both Houses. Let us see whether that will be a meaningful vote.

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North

It is a pleasure to serve under your chairmanship, Mr Pritchard.

On amendment 52, a great deal of concern was expressed in the written evidence submitted to the Committee about how the Bill interacts with the Mental Health Act 1983. In fact, that the Government have not thought that through enough was one of the many reasons why it was felt that they should not be rushing to push the Bill through. They have not made any statements even to claim that everything will be fine. Due to the overlapping nature of the two pieces of legislation, we must take additional precautions to ensure that they work together. To do that, we must know what the Government’s response to the independent review is prior to the provisions coming into force.

It is regrettable that neither this Committee nor the Committee in the Lords took any oral evidence. It is all the more important therefore to get some of the written evidence before the Committee so that everyone is aware of what organisations have been saying. Such organisations as Mencap have added their voices to the concern about the complex interface between the Mental Health Act and the Mental Capacity Act. I will quote from what Mencap said at some length not only because it is worth listening to, but because it is right. It said:

“Sir Simon’s review proposes to redraw the dividing line between when a person should be detained under the MHA and when they might instead fall under the MCA…The proposed dividing line is objection, so that if a person without capacity does not object to admission or treatment they should be placed under the MCA…The proposed new dividing line of objection needs thorough and broad consultation, possible pilot testing, and pre-legislative scrutiny—none of which are possible under the timescales set by Government for this Bill…Given that Sir Simon Wessely’s review has only just been published, there is a strong case for looking at the interplay between this Bill and the recommendations around the MHA. To not do so, risks creating legislation which fits together poorly.”

Does the Minister disagree with Mencap’s assessment and concerns about the interface between the two Acts? Does she accept that much needs to be done before the Bill’s provisions are brought to bear on our vulnerable people?

Photo of James Morris James Morris Vice-Chair, Conservative Party

I have a lot of sympathy with the hon. Gentleman, but will he recognise that one of the central drivers for the Bill is the delay in assessments that has built up over time because of the issue identified in Chester? Obviously there is a timing issue, but does he agree that, ultimately, whatever legislation comes out of the independent review will mark a major change in how we approach the detention of people under the Mental Health Act? There probably will need to be more synergy between the two pieces of legislation, but the timing imperative is driving the need to get this legislation on the statute book.

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North

I think the imperative is the other way around. It is important for us to have the understanding of what the Government are proposing and their attitude to the review, so that we can understand how the legislation will work and how the two Acts will work together.

I believe the Government would be reckless to plough ahead with implementing the provisions in the Bill while that piece of legislation relating to it is still being reviewed. The Challenging Behaviour Foundation has also added its weight to the concern of the interface of the Bill with the Mental Health Act review. Providing written evidence to the Committee, it said:

“The current confusion in the use of Deprivation of Liberty within the MCA and the MHA often means the needs of people with learning disabilities are not being met in a timely and appropriate fashion…The independent review of the MHA has considered this and made recommendations around when a person should be detained under which Act around objection…The Mental Health Act Review makes the recommendation that the Code of Practice for the MHA and for the MCA make clear in what circumstances professionals should consider whether or not someone has capacity to make decisions…We also think that both Codes should make clear who should carry out capacity assessments in these situations. This needs to be explored further and needs to be considered under this Bill to ensure both legislations work together.”

That is very clear evidence from the sector. Perhaps the Minister will share with us her perspective on the interface between the Bill and the Act. There is a theme running through the written evidence submissions that we have received. The conclusion they come to is that the Government are rushing this Bill through.

Photo of Tanmanjeet Singh Dhesi Tanmanjeet Singh Dhesi Labour, Slough

I thank my hon. Friend for raising the concerns of organisations such as Mencap. Does he agree that the likes of Mencap not only enhance our understanding through national policy formation but, as I have learned from my experience as a member of the Gravesend and district Mencap society, they also work on the ground? People such as Linda and Chris Norris and other volunteers, through their work, help their national organisations in policy formation. As parliamentarians we would be very wrong to ignore their recommendations.

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North

I very much commend the work of organisations from the grassroots right through to the national level. The reason I sat down with people from my local authority before the start of this Bill Committee was so that I could understand what was happening at the grassroots. That grassroots work that feeds all the way through the system informs us and it is important that we take account of it.

My hon. Friend the Member for Slough will know that, with the amount of written evidence submitted to the Committee, we could have stood here and made three-hour speeches ensuring that we raised the issues that they wanted raised. Some of us are a little more kindly and will be relatively brief.

This is not a matter to be pushed through with little consideration because the consequences of getting it wrong are significant. I ask the Minister to think carefully, not just about the comments made by hon. Members but about the evidence that has come from the sector. We raise that evidence out of concern that the Government might be making the wrong move. We need to tread carefully and understand the implications.

Amendment 53 seems sensible and proportionate. How can we possibly pass legislation that would have an undue impact on local authorities and other responsible bodies without giving them the resources to carry out the functions required? I have spoken in previous sittings about care home managers and the impact provisions in the Bill would have on them. Not only do I believe that they do not have the adequate skills to carry out assessments. I am also concerned that they have a severe conflict of interest if they are expected to be involved in the assessment of those who reside in their care.

On resources, we know that care homes and local authorities have tight budgets and that costs are rising. If the Government do not publish an updated impact assessment and a strategy for implementing the new system, the cared-for persons will lose out. I asked the Minister during the debate on a previous clause what assessment she had made of the potential cost that will fall on care homes for their extended role in the process. I also asked what data she had received from the sector on costs and whether she would publish it.

I am keen to understand who will pick up those costs. Will it be the person being detained, the CCG, the private hospital or the care home? I did not receive an answer then, so I hope the Minister can tell us now who will be responsible for the new costs in the system. Surely she should publish that assessment so that we can understand the additional financial burden being placed on the sector before the measures of the Bill come into force. As colleagues know—I have said it before—we have received a significant amount of written evidence, and many organisations and individuals share a concern over funding. The Leicestershire County Council DoLS service is concerned that there

“remains a huge potential…that we end up with another underfunded system that prevents responsible bodies from meeting their statutory duties to the detriment of citizens and their rights.”

My hon. Friend the Member for Worsley and Eccles South has gone into the resources and training in some detail. I agree with the Royal College of Nursing, which states:

“All health and care staff should be educated to understand the deprivation of liberty processes and the impact that this Bill will have on the patients they care for…Without adequate education, healthcare professionals cannot make provision for the best interests of the person in care.”

Does the Minister agree? The RCN is at the sharp end. If she agrees, will she ensure that care professionals have the resources to carry out this vital training?

The care sector is under-resourced—I will not repeat what I said last week. All jobs websites show dozens of adverts for care assistant jobs involving long hours and minimum pay. The Minister seems content to make it harder for bodies such as care homes to cope with the pressures. That is before we get onto the subject of local authority funding and pressures which, again, I will not repeat. Surely we must ensure that the provisions are not enacted until a full implementation strategy is published. I would ask the Minister: when are we going to see it?

On amendment 54, much of the detail debated during the Committee will be addressed in the code of practice. We have raised our concerns over and over again. Does the Minister agree that legislators, healthcare staff, assessors and advocates—the list goes on—should be fully informed and aware of the code of practice prior to the revisions in the Bill being implemented to give them a fighting chance to prepare? I am concerned that any code of practice will not be subject to the scrutiny of both Houses to provide other pieces of legislation, particularly as this Government do not have a good track record of welcoming scrutiny from other Members or from outsiders. Perhaps the absence of an oral evidence session demonstrates that. There is concern that the code of practice will contain significant flaws and gaps. This morning, the Minister was not even prepared to talk about it in general terms, and said that we would have to wait for the detail and the views of experts and further consultation. I accept that, but we could still have some sort of comment on the general terms of the code.

Photo of Caroline Dinenage Caroline Dinenage Minister of State (Department of Health and Social Care) 2:45 pm, 22nd January 2019

The hon. Gentleman might be slightly misquoting me. I have spoken in general terms about the code of practice, and have indeed circulated a draft of what will be included in it among hon. Members, as well as what we have committed to including in it as part of the discussions in the House of Lords and during this Committee.

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North

It is never my intention to misrepresent anyone. All I am concerned about is that we should have clear detail as soon as possible in order for us to understand what will happen. It is not just for us to understand—it is also for people outside in the world who have to deal with this on a day-to-day basis. The Minister just answered the question I would have posed at the end, so I will not bother asking it.

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

I thank hon. Members for initiating this discussion. Amendment 52 would delay the introduction of liberty protection safeguards until the Department has fully responded to the report of the independent review into the Mental Health Act.

The hon. Member for Worsley and Eccles South said that I was stubborn. I am sure that a number of people, not least my husband, would agree with that sentiment. I think she would agree that I have committed to looking again. A number of issues have been raised during the Bill’s passage through Committee, not least ensuring that people get information as early as possible—I agree with her on that—and how we can maximise protection for those being cared for in an independent hospital. I am sure she would agree that I would be being equally stubborn if I were to take the amendments on board without giving them careful and due consideration, and without checking the legal ramifications and making sure that we are offering all the protections that we need to. I am sure that the hon. Lady, other Opposition Members and stakeholders will forgive me for making sure that we consider everything thoroughly and properly.

On amendment 52, I welcome Sir Simon Wessely’s landmark report and I am sure that it will very much set the direction for improving the way the Mental Health Act works for thousands of vulnerable people. The Government have already committed to bringing forth mental health legislation when parliamentary time allows, taking that very important report into account. We have already accepted two important recommendations, which will give service users more choice and control, but it will take time for us to consider the rest of the recommendations, of which there are 152. We will respond to the remaining recommendations in due course, but Sir Simon said that the Government would need to consider the “practical implications” of the interface recommendations, and that it would be “problematic” to introduce those recommendations in this Bill.

Hon. Members will be aware that the reforms in the Bill are desperately needed—I cannot repeat often enough that we cannot wait any longer to improve the situation of the backlog of more than 125,000 people who have been deprived of their liberty without authorisation. As much as there are concerns among stakeholders—I have met a number of stakeholders and we will continue to consult them, to take their views on board and to make sure that we work with them at every step of the way when it comes to the code of practice—they also share our concern that 125,000 people have been deprived of their liberty without authorisation, that their loved ones have been deprived of peace of mind and that their care providers have been deprived of legal protection.

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

I have two points to make to the Minister. I remind hon. Members that we have heard examples of authorities—they include mine, that of my hon. Friend the Member for Stockton North and some London boroughs—where there is no backlog and where the local authorities have dedicated enough resource to the situation. Despite the number of DoLS applications increasing since the Cheshire West case, they are dealing with it. Let us not talk in Committee as if it is the same everywhere; it is not. Some local authorities are coping perfectly well with the backlog, and there is no pressure in those local authorities to change to a worse system that will cause a problem.

Secondly, I asked the Minister about the cost of dealing with the backlog, and I hope she will touch on that. She has raised the backlog again and again as a reason for rushing the Bill through. It is not a reason for rushing through a new piece of legislation that is this important. I hope that she will come on to say exactly how the backlog is to be dealt with and what resources will be available to deal with it, because that is an important issue. If the backlog is the reason for doing things this way, how is the backlog going to be dealt with?

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

Yes, of course I will go on to talk about the transition between the two systems and the backlog. I also say gently to the hon. Lady that she and others may be in the fortunate position where their local authorities have got to the stage where they do not have a backlog—in many cases, that is due to a political decision to prioritise it—but I think all those local authorities would recognise that there is duplication and cost in the system that they could do without. They have had to take very tough decisions to prioritise this issue over other things that they could be spending their money on, when money is tight. I do not think the attitude of, “I’m alright, Jack, there’s no backlog in my constituency,” is a very good one, when 125,000 other people are waiting.

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North

I do not have a particular problem with what the Minister is saying—local authorities do want to see reduced costs and to ensure that responsibilities are carried out—but she used the expression I used last week. It was a “political decision” by local authorities such as Stockton to take money from other services and invest them in this matter. Surely local authorities should not have to face that choice. The Government should properly fund our whole social care service, never mind the issues around the Bill.

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

I agree with the hon. Gentleman—the whole of the health and social care system needs funding, and that is where the additional money for the NHS comes in. The Government have given councils access to more than £10 billion over this three-year period. The fact that they are still struggling shows the scale of the problem. We do not want to waste money on duplication when that money could be valuably spent elsewhere. The desire to streamline the system to avoid unnecessary duplication, which drives costs but does not offer any further protection, is what this is all about.

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North

It is has been estimated that the Minister will save about £200 million as a direct result of the changes in the Bill. What will that money be used for?

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

We have to be careful not to conflate our language. There is no intention to save money on the process. We know that if DoLS were implemented correctly all across the country, as they are in the hon. Gentleman’s constituency, the cost would be £2 billion. However, we are not looking to save money here; we are looking to ensure that it is spent more wisely—not on duplication, but in a way that offers people the protections that they need. This is not a cost-saving exercise; it is about ensuring that money is spent wisely and effectively to offer that protection.

Amendment 53 would delay the introduction of liberty protection safeguards until the Department has published an updated impact assessment and implementation strategy. I thank hon. Members for reminding us of those items, which are important for the successful implementation of the Bill. We are in the process of preparing the updated impact assessment to reflect the amendments made in the Lords. We are keen to make the Bill as successful as possible and to listen to the concerns of those in the other place. We will shortly publish the impact of the amendments made there, and the Government have also made changes to the Bill in this House that will require us to update the impact assessment further.

The noble lord, Lord O’Shaughnessy—I am not sure whether I am allowed to name him—has committed to publishing a training strategy before the Act comes into force. With regard to training, we will work closely with the sector, local authorities and NHS organisations on implementation as part of our strategy, and we welcome Members’ contributions. I completely agree with hon. Members that adequate training for health and social care staff is vital. Ahead of the implementation, we will consider the most appropriate way to ensure that everybody is appropriately equipped.

We have considered training costs as part of the updated impact assessment that we will publish shortly. We know that there will be an impact on transitional costs. We will support the sector and we will deliver training through a workforce development model delivered by and in partnership with Skills for Care, as we do for other things.

With regard to the implementation, ahead of day one we will work with local, national and Welsh DoLS networks in partnership with the Local Government Association and the Association of Directors of Adult Social Services to clear the existing backlog of applications. Those who remain in the backlog on day one will have their applications handled under LPS—a streamlined system that minimises duplication. Existing assessments can be used, if appropriate. For example, there may be no need to commission a doctor to do a new mental health assessment. That efficiency will allow local authorities and other responsible bodies to tackle the backlog effectively.

Cared-for persons who have an existing DoLS authorisation on day one will remain under that authorisation until it expires, after which a new application will need to be made under the new system. Those in settings that newly fall under LPS, such as those in the community, who may have an authorisation from the Court of Protection, will remain under that authorisation until it ends. A new application will then need to be made under LPS. We will work closely with responsible bodies and care providers to ensure that the transition period is as smooth as possible, and that vulnerable people are protected.

Amendment 54 would require the code of practice to be approved and published before the introduction of liberty protection safeguards. That statutory guidance is essential. It will outline the details of how the system should operate and will be a valuable tool for practitioners. The Government are required by section 43 of the Mental Capacity Act to consult when preparing the code of practice.

We are already in the first stages of developing the code. We will work with the sector to co-produce it. I am happy to commit to publishing the code of practice before the scheme comes into force. I also commit to laying the code in draft before Parliament, giving both Houses the opportunity to resolve not to approve it, as section 43 of the Mental Capacity Act also requires.

I hope that I have been able to provide reassurance and that the hon. Member is able to withdraw the amendment.

Photo of Mark Pritchard Mark Pritchard Conservative, The Wrekin 3:00 pm, 22nd January 2019

Before I call the shadow Minister, the Minister was perfectly in order to say Lord O’Shaughnessy and the next time she wants to, there is a variety of options for referring to the other place. That is perfectly in order.

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

I only realised recently that we have changed the way that we refer to the House of Lords. We do not have to keep saying “the other place”. We can say the House of Lords and use names.

Photo of Mark Pritchard Mark Pritchard Conservative, The Wrekin

We have modernised, finally.

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

Going back to amendment 52, the process of bringing the Bill forward has been disappointing. It has been rushed and stakeholders feel that their views have not been taken on board. How do we know that that is the case? A letter was published in The Times today under the headline “Mental Capacity Bill Attracts Criticism” from a group of organisations including Liberty, Mind, Alzheimer’s Society, the National Autistic Society, POhWER—to which we have referred a number of times in our debates—the British Institute of Human Rights, Sense, Compassion in Dying, YoungMinds, Learning Disability England, Voluntary Organisations Disability Group and Headway—a very comprehensive list of organisations. They say:

“It is with dismay that we note the lack of improvement within the Mental Capacity (Amendment) Bill. The bill would replace existing deprivation of liberty safeguards with an entirely unfit new system of protection. To avoid the risk of exploitation and abuse it is vital that there are robust safeguards in place.

Alarmingly, the bill proposes to triple the time that people can be deprived of their liberty without review…while not doing enough to guarantee that all patients have access to independent and impartial advocates.”

This is what we have been debating.

The letter continues:

“The bill also creates a worrying conflict of interest for care home managers, giving them a greater role in the assessment process. Many vulnerable people will find it hard to express their concerns to a person providing them with care. The result is a rushed, incomplete and unworkable bill that will replace one dysfunctional system with another”.

That encapsulates everything that we have been trying to say.

Photo of Alex Norris Alex Norris Labour/Co-operative, Nottingham North

My hon. Friend lists a range of the most eminent and significant organisations in the field that we are discussing. They use words such as “dismay”, “rushed” and inadequate. Should that not be a big, flashing red light for hon. Members to say that perhaps this course of action is not the right one to be taking?

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

Absolutely, I agree with my hon. Friend. On Second Reading, I said that the Bill should be paused, while we wait for the Government’s response to the Mental Health Act review. Every time I mention this, there is a groan from the Government Benches. We should not be rushing these complex areas. Even senior judges find the interface between the two pieces of legislation very difficult. We should not be introducing legislation that will be out of date almost immediately.

The impact assessment was produced over six months ago and it is now out of date. We have no idea how much the proposals in the Bill will cost or how much they will help to reduce the backlog of applications. We are being asked to debate and vote on the Bill now, and it is difficult with a six month old, out of date impact assessment. Even in the original impact assessment, it was unclear where some of the costs came from. The Government have not adequately explained the cost of their proposals. In the last sitting, I asked a series of questions about implementation. I would be grateful if the Minister could write to me with responses to those important questions.

We have heard constantly in our debates about how things will be included in the code of practice. On the first day of Committee, the Minister said that she would supply an outline of what it will contain. We only saw that document last night. An outline of what areas will be covered does not give us the full idea of what the code will contain. To some extent, it is better than nothing, but we have no idea of the detail. We cannot be asked to agree to a new system when so much of the detail is yet to be published. We need Parliament to approve the code of practice, rather for it to be taken through in a method that is near impossible to stop. If there are problems with the code of practice, we should be examining the Bill and the code of practice side by side. We will press the amendment to the vote.

Question put, That the amendment be made.

The Committee divided:

Ayes 7, Noes 8.

Division number 25 Mental Capacity (Amendment) Bill [Lords] — Extent, commencement and short title

Aye: 7 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Amendment proposed: 53, in clause 5, page 4, line 16, at end insert—

“(3A) Before the Secretary of State makes any regulations under subsection (3)(b) above, the Secretary of State must—

(a) publish a full implementation strategy, outlining how local authorities and other responsible bodies will be resourced to process applications under this Act; and

(b) publish an updated Impact Assessment on the impact of the provisions of this Act.”—

This amendment ensures that the Government cannot enact the provisions of this Bill until such a date as it has published an updated impact assessment, and set out an implementation strategy for the new system.

Question put, That the amendment be made.

The Committee divided:

Ayes 7, Noes 8.

Division number 26 Mental Capacity (Amendment) Bill [Lords] — Extent, commencement and short title

Aye: 7 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Amendment proposed: 54, in clause 5, page 4, line 16, at end insert—

“(3A) The Secretary of State may not make any regulations under subsection (3)(b) above, unless—

(a) the Secretary of State has—

(i) consulted on the Code of Practice,

(ii) published a Code of Practice,

(iii) laid that Code of Practice before Parliament, and

(b) that Code of Practice has been approved by a resolution of each House of Parliament.”—

This amendment ensures that the Government cannot enact the provisions of this Bill until such a date as it has published a new Code of Practice, which has been approved in a vote in each House of Parliament.

Question put, That the amendment be made.

The Committee divided:

Ayes 7, Noes 8.

Division number 27 Mental Capacity (Amendment) Bill [Lords] — Extent, commencement and short title

Aye: 7 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

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

I beg to move amendment 1, in clause 5, page 4, line 25, leave out subsection (9).

This amendment removes the privilege amendment inserted by the Lords.

Photo of Mark Pritchard Mark Pritchard Conservative, The Wrekin

With this it will be convenient to discuss clause 5 stand part.

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

Parliamentary procedure requires a privilege amendment to be included in a Bill that starts in the House of Lords and has financial implications. It is then removed in the House of Commons as a standard procedure.

Clause 5 sets out the territorial extent of the Bill, which is England and Wales. This clause sets out that clause 4, except subsection 6, and clause 5 come into effect immediately the Bill is passed. The rest of the Bill comes into force on a day nominated by the Secretary of State. Different days may be appointed for different purposes or different areas of the Bill. Clause 5 also gives the Secretary of State a power to make transitional arrangements by regulations. I recommend the clause to the Committee.

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

Government amendment 1 is, of course, entirely uncontroversial. We cannot implement a new system until the Government are authorised to pay for it. I have a question for the Minister, following our conversation about the financial impact of the Bill: in the light of the changes that have been made to the Bill in the past few months, will she give us an estimate of how much expenditure we are being asked to agree?

We will not oppose the amendment, but I feel that members of the Committee should have an idea of what they are agreeing. We definitely need to have the updated impact assessment as soon as possible and certainly before Report stage. It is not acceptable to have an impact assessment that is six months out of date. We want to know how much the new system will cost before the Bill concludes its passage through the House. Only if that happens, will we be confident of the amount of expenditure agreed to.

On clause 5 more generally, I am disappointed that the Minister has opposed all our amendments. In particular, I remain concerned about the code of practice, when it is finally produced. I counsel her against trying to rush it through the House, with little opportunity for Members to provide feedback. We have tried valiantly on this Bill Committee to bring up issues of great importance in the Bill, and they need to be listened to.

The Government have said that the new system will not come into force until the code of practice has been published, so there is no real reason not to agree to have the code of practice approved by each House before the Bill is enacted.

I hope the Minister will reflect carefully on what has been said in our debate on the Bill. As is evidenced by the letter from all those organisations in The Times today, the Bill contains significant flaws. It would not be unreasonable for some of our concerns to be addressed before the Government even try to bring in the new system. With that, we will not oppose clause 5 stand part, but we hope the Minister will use the powers in the clause to ensure that the Government get the system right before they roll it out.

Amendment 1 agreed to.

Clause 5, as amended, ordered to stand part of the Bill.