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Mental Capacity (Amendment) Bill [HL]

Volume 792: debated on Monday 16 July 2018

Second Reading (Continued)

My Lords, the nod has come that we are resuming the Second Reading debate on the Bill before the House. Tea might be the preferred choice of those who are not remaining.

I start by joining other noble Lords in complimenting and congratulating the noble Baroness, Lady Barran, on her most distinguished and illuminating maiden speech. Plainly, she is going to be a great strength in the House.

I spoke in the debate just over three years ago on the Select Committee’s post-legislative scrutiny report on the 2005 Act. I focused principally on the perhaps somewhat surprising decision of the Supreme Court in the Cheshire West case, a decision by a narrow four-to-three majority vote, which came out six days after the Select Committee’s report. It was a decision which gave huge relevance to the issues arising and highlighted an urgent need to legislate afresh.

The critical concept then under question was what amounted to deprivation of liberty. The central question raised was what was required to authorise it. Put simply, Cheshire West hugely increased the number of cases in which people were to be regarded in law as deprived of their liberty, and it left in place the need for two distinct categories of authorisation. One was for people detained in hospitals and care homes who continued, and continue still, to require authorisation under the Schedule A1 procedures known as DoLS, deprivation of liberty safeguards. The other is for those, like the two particular patients under direct consideration in the Cheshire West case itself, detained in community settings whose placements presently require authorisation by the Court of Protection under a Section 16(2)(a) order.

By the time of the March 2015 debate here, the Government had already asked the Law Commission to look into all this. As eventually the Law Commission came to note in its March 2017 report, there were more than 14 times as many applications for DoLS in the year 2015-16 than in the year before Cheshire West two years earlier, 2013-14. As the Joint Committee on Human Rights records in its recent June 2018 report, 70% of the almost 220,000 such applications in the past year were not authorised within the statutory timeframe and, I quote from the report’s summary:

“Consequently, many incapacitated people continue to be deprived of their liberty unlawfully and those responsible for their care, or for obtaining authorisations, are having to work out how best to break the law”.

Indeed, paragraph 32 of the report says that,

“hundreds of thousands of people are being unlawfully detained”.

Your Lordships will of course agree that that is no light matter. There is therefore real urgency in processing the amending legislation before us.

In that context, I touch next on one particular recommendation made by the Joint Committee in paragraph 45 of its report, which has already been alluded to by a number of your Lordships, the recommendation that Parliament should set out a statutory definition of deprivation of liberty that clarifies the Cheshire West test and,

“would extend safeguards only to those who truly need them, whilst respecting the right to personal autonomy of those who are clearly content with their situation, even if they are not capable of verbalising such consent”.

For my part, while certainly not disagreeing with that recommendation, and while recognising that the majority of the court in Cheshire West may well be regarded as having inappropriately and needlessly—by which I mean going substantially further than required by the Strasbourg jurisprudence on Article 5—gone too wide in their categorisation of deprivation of liberty, I would be disinclined to burden and complicate this current proposed amending legislation still further by including within it a statutory definition. Better, I would suggest, to cure the all too obvious existing problems of authorisations as speedily as possible.

As to that, I broadly support the approach in the Bill, which essentially comes to this: first, a proposed replacement Schedule AA1 to authorise deprivation of liberty by new, proportionate and less bureaucratic means; and, secondly, extending the safeguards into domestic settings—in other words, to apply to all those deprived of their liberty irrespective of where they reside, thus including those who were the specific subject of consideration in the Cheshire West case and therefore relieving some of the pressure on the Court of Protection.

I am in no position today to comment helpfully on the various detailed criticisms of the Bill made by several of your Lordships in the debate, nor even to deal with the availability or otherwise of legal aid to which the noble Baroness, Lady Barker, referred. That will be for Committee.

The last matter I want to touch on, although I do not think it could or should directly affect the form in which the Bill should reach the statute book, is what has been called the Mental Health Act interface. In its hugely impressive, very long, 259-page report of March 2017, the Law Commission, in chapter 13, under this heading, pointed out that,

“the non-consensual care and treatment of people with mental health problems is governed largely by two parallel legal schemes – the Mental Health Act and the Mental Capacity Act”,

the former providing for detention based on protection of the patient and the public, irrespective of mental capacity, whereas the Mental Capacity Act applies only to those who lack capacity, and provides for deprivation of liberty based on the person’s best interests. But, as it goes on to say,

“there is considerable overlap between the two regimes, and the relationship can be extremely complex”.

Chapter 13 concludes with Recommendation 39:

“The UK Government and the Welsh Government should review mental health law in England and in Wales with a view to the introduction of a single legislative scheme governing non-consensual care or treatment of both physical and mental disorders, whereby such care or treatment may only be given if the person lacks the capacity to consent”.

Following that report, in October 2017 the Government commissioned an independent review of the Mental Health Act 1983, an Act which I ought perhaps to confess was enacted principally and specifically to deal with an ECHR challenge which, as counsel for the Government, I had lost in Strasbourg the previous year.

As your Lordships know, the present review is being conducted by the most distinguished group. It is chaired by Professor Sir Simon Wessely, and its vice-chairs include our own noble Baroness, Lady Neuberger, and a much admired, now retired High Court Family Division judge, Sir Mark Hedley. Its terms of reference include recommending improvements in relation to rising detention rates.

In its interim report of 1 May this year, the independent review discusses the interface with the Mental Capacity Act. At paragraph 7.3 of the review, it states:

“We agree and support the urgent reform of DoLS to make sure service users receive the most appropriate care for their needs”,

also pointing out that,

“there needs to be an appropriate calibration between resources spent on delivery of care and those spent on safeguards surrounding the delivery of that care”.

The review, having noted the Government’s broad acceptance of the Law Commission’s conclusions, continues:

“The government has also indicated that it awaits our recommendations on the interface issues”,

and observes:

“It is likely that, if only for practical reasons, we will be unlikely to be recommending ‘fusion’ between the MCA and MHA in the short term, but will be considering this as a longer-term option”.

Finally, to return to the Joint Committee report of 29 June, the interface between the two legislative regimes is thoughtfully discussed in paragraphs 70 to 74, and recommendations are made in paragraph 74. The Mental Health Act review will clearly want to note those recommendations and the concerns expressed by the Joint Committee. Clearly, the resolution of the critical interface between the two legislative schemes is a work in progress, and we are likely to have to return to the Mental Capacity Act yet again in probably well over a year’s time.

In the meantime, I would strongly support the amending legislation now before us, although I recognise that it will need to be considered carefully in Committee. I repeat: this Bill is urgently required now to end the lawlessness consequent on Cheshire West.

My Lords, I, too, congratulate the noble Baroness, Lady Barran, on her compassionate and informed maiden speech.

Many organisations working in the field of learning disability, the people who are the focus of my speech today, welcome the reform of the deprivation of liberty safeguards. Both the Joint Committee on Human Rights and the House of Lords post-legislative scrutiny committee, of which I was a member, highlighted major concerns about the implementation of deprivation of liberty safeguards. I am grateful to several organisations for their briefings in advance of today’s debate, including Mencap, the Royal College of Psychiatrists, the Royal College of Speech and Language Therapists and others. I refer to my interests in the register. I speak also as the carer of an adult relative for whom I hold a lasting power of attorney.

Recommendation 37 of the post-legislative scrutiny committee suggested that,

“replacement legislative provisions and associated forms be drafted in clear and simple terms, to ensure they can be understood and applied effectively by professionals, individuals, families and carers”.

Some of the briefings received in the last few days remind us of the complexity of this legislative area and how easy it is to misunderstand it.

Any adult, regardless of any communication or cognitive impairment, has the right to make or be supported to make their own decisions wherever possible. The Mental Capacity Act supports this principle while also providing a legal framework, the DoLS, so that decisions can be made when someone lacks capacity. When the Government introduced those safeguards over 10 years ago, the rules required that they would allow a deprivation of liberty if the chosen restraints or restrictions worked in a person’s best interests. I am grateful to my noble friend Lady Finlay for clarifying that best interests will remain integral to the amended Act. I look forward to confirmation from the Minister that that is indeed the case, as it has been a matter of some concern to the organisations briefing me. That takes us to the heart of what they were intended to do, but implementation of the Mental Capacity Act and the deprivation of liberty safeguards has been poor. The health and care sector does not have the training, awareness and skills to carry it out effectively. It takes a willingness and considerable skill to protect people’s liberty.

The impact assessment before the original safeguards were introduced estimated that 50,000 people may be eligible for them, but that the number of applications would be much lower because not all of those at risk would actually need to be deprived of their liberty to protect it. The assessment also held that numbers would fall after the initial year, as parties became familiar with the safeguards and, crucially, found ways to avoid deprivation of liberty happening. In fact, the opposite has occurred. In 2015-16, 105,000 completed applications were received, of which 73% were granted—86% in London. However, the impact assessment estimated that only 25% of applications submitted would be approved and justifiably deprived of their liberty.

The intention was that the safeguards would drive a change in practice that would seek to avoid deprivation of liberty occurring, but it has not happened. Will these new safeguards do better in preventing people being deprived of their liberty and protecting it, as originally intended? Or will they simply streamline the administrative processes and reduce the financial burden to the state of the authorisation process, while reducing the focus on an individual’s own choices and preferences? These are the fears that are being expressed.

We clearly want more than that. Our goals must be to improve care and treatment for people lacking capacity; to reduce restrictive practice; and to ensure that individuals in vulnerable circumstances, their families and carers have a say in their care. This is absolutely necessary, as people who lack capacity may be dependent on the good will of their carers for some of the most basic rights and freedoms, including, for example, the right to choose and spend time with their friends—rights which we all take for granted. This is an issue I am currently struggling with for the adult relative I mentioned earlier. There is an obvious power imbalance in these relationships. The Law Commission report suggested wider changes to the Mental Capacity Act than envisaged in the Bill, including giving more weight to the individual’s wishes and preferences and the establishment of supported decision-making. However, the Government’s impact assessment states that they have decided not to legislate for this,

“at this point, as we think there are other effective levers to deliver improvement in these areas”.

What are these other effective levers?

A key concern of the post-legislative scrutiny committee was the abject failure of many services to understand how to increase someone’s capacity by, for example, providing them with accessible information; patiently making up for limited educational opportunities by increasing their understanding; assessing their communication skills, as recommended by the Royal College of Speech and Language Therapists in its briefing; and assessing their capacity to make a specific decision on more than one occasion. This is what supported decision-making involves and it takes time. The noble Baroness, Lady Browning, explained how time-consuming this is when it is done well. Alongside the need to give individuals a voice about their own care is the need to give families and carers a voice. The principle of best interests in the Mental Capacity Act had much to say on consulting others involved in the individual’s care. I share the concerns expressed by the noble Baroness, Lady Browning, about the Bournewood gap. Would HL have still been detained today, but legally, and would his carers’ views have still been overridden? In his evidence to the post-legislative scrutiny committee, Mark Neary said that he would not want any other family to have to experience the heartache and trouble he did. Will the role of families and LPAs be strengthened or weakened by this Bill? If strengthened, will the Minister reassure the House by explaining exactly how?

Some practitioners have suggested the introduction of support agreements, which would allow people with learning disabilities to nominate their own supporter or co-decision-maker, thus shifting power back to disabled people and those they rely on to help them make decisions. These would be a bit like lasting powers of attorney, only easier to make and more geared towards supporting the person to make decisions for themselves or jointly making decisions with a trusted person. Co-decision-making is very popular with grass-roots community organisations in Canada, and it is being adopted in Ireland, Australia, Texas, Israel and many other states and countries.

The responsibility for gathering the necessary proposed assessments, identifying whether a person is being deprived of their liberty, determining the person’s capacity, and determining whether the arrangement is necessary and proportionate and who should be consulted—all of this may be left to the same person: the care home manager. This puts a large responsibility on this individual and creates a potential conflict of interest. The person who may be responsible for the deprivation may also be responsible for assessing and gathering information. This hardly seems an appropriate way to balance the power differential, and I would like reassurance on this. Do care home managers currently have the skills to take on this responsibility? The impact assessment suggests that they will need half a day’s “familiarisation” with the new policy. That would not be sufficient.

My third area of concern is the ability to appeal decisions to deprive individuals of their liberty. The new role of an approved mental capacity professional is proposed—an independent, skilled assessor with a role similar to that of approved mental health professionals in the Mental Health Act. The expertise and independence of this role is a welcome addition to the safeguards, but it seems that AMCPs will only be called upon if the individual objects. Who judges if the person is objecting? Even access to an independent review would need to be facilitated through the care home manager, as would access to advocacy. We need to think carefully about this.

Finally, the appeal process will still be through the Court of Protection, but this process has been criticised as more complex and more difficult to access than the tribunal system in the Mental Health Act. The impact assessment suggests that only 0.5% of cases will end up in the Court of Protection. But given that a quarter to a half of patients detained under the Mental Health Act appeal to the tribunal system, can the Minister explain how the Government have arrived at such a low number? The review being chaired by Sir Simon Wessely is due out later this year and, as we have already heard, some proposals are expected to relate to the interface between the Mental Health Act and the Mental Capacity Act. Could the Minister clarify, as other noble Lords have asked him to do, whether the Bill will be further amended when the Wessely review is published or whether the final stages of the Bill will be delayed until we know the content of that review and its recommendations?

This amendment Bill may work out to be cheaper for the state, although there are worries about the increased burden on care providers. The role of your Lordships’ House in Committee will be to ensure that the proposed liberty protection scheme lives up to its name.

My Lords, this Bill should be a lesson to us all. It is designed to correct the disaster created by another piece of legislation, introduced not to address a common problem or by popular demand by a group, but at the instigation of the judiciary, addressing a problem we did not know we had. Unfortunately, it does not solve the problem, and this House’s ability to improve it will merely ameliorate the ongoing disaster.

The DoLS legislation, since its inception, was designed to plug the Bournewood gap, which the Minister described quite clearly. However, as the noble Baroness, Lady Browning, pointed out, because this legislation will no longer have the best interests of the patient at heart, it will do nothing to close better the Bournewood gap. It will leave that gap and will leave exposed the several related cases. Although the bureaucracy of the Bill apparently tries to address it, it does nothing of the sort.

The problem is that we are trying to combat an edifice of poor professional practice—in this I echo what the noble Baroness, Lady Hollins, said. However, rather than improve professional practice by working in the way that families and professional carers work and talk to each other about what should happen to improve the situation of the individual, we have moved away from what health and social care considerations should look like and into a world of legalities. Legislation and regulation can never substitute for good practice. They can provide a framework within which good practice is enacted, but they are no substitute. That is where the DoLS legislation has been such a disaster. I respect that the virtue in this Bill is the intention to make things safer, more competent and more accountable, but theoretical legal advantages have led to a massively intrusive bureaucracy of paper schedules and rules, which this Bill diminishes but does not solve.

For the past three years, as a result of widespread concern about the adverse impact of the deprivation of liberty safeguards on the care and treatment of older people, I have been the convenor of an informal group of members of the Royal College of Psychiatrists Faculty of Old Age Psychiatry. The group was established to liaise with the Law Commission and other organisations to consider issues arising from the draft liberty protection safeguards and the original Law Commission’s draft bill, part of which—but only part—now comes to this House as a new Bill. I think everybody here agrees that the monstrous piece of bureaucratic machinery that is the deprivation of liberty safeguards has caused untold harm and cost a huge amount of money that has been diverted from finite clinical and social care budgets at a time when the country can ill afford it, and when the quality of care in hospitals and residential homes is barely adequate and often downright poor. The money pouring uselessly down the DoLS drain is a disgrace. The detailed problems were well articulated by the Law Commission in chapter 4 of its paper 372, published last year.

The Law Commission, through Tim Spencer-Lane and his colleagues, has done an enormous amount of hard work and consulted widely to produce improved and less bureaucratic procedures. However, it was constrained by its brief to take the judgment in Cheshire West as the starting point, which contained, in my view and that of many others, an unworkable definition of “deprivation of liberty”, which most people find extraordinary. That is my main concern about the Bill before us today.

Before I get on to the definition issues, however, I want to express my surprise and concern that some of the most far-seeing and progressive parts of the draft Bill produced by the Law Commission have been omitted from the Bill before us. As many others have mentioned, we have lost proposals that were either accepted or accepted in principle in the Government’s response to the Law Commission. The first relates to strengthening the place of the individual’s wishes and feelings in Section 4, any notion of which has been abandoned in favour of what is “necessary and proportionate”. These are vague words that may well imply that, in this age of austerity, the person will get care in a way that is convenient for the authorities making the judgment to impose and that does not take account of the individual’s expressed wishes or include a discussion about what they might wish. Although “best interests” is mentioned, when the crunch comes, it will be ignored.

I want to refer here to the description of a person as being of “unsound mind”. If that is old-fashioned now, and clinically irrelevant as a phrase, what will it sound like in 10 years, when it really will be past its prime? It is simply not a phrase that we should be using in the Bill.

Secondly, the proposal to strengthen the safeguards around Section 5 in relation to serious interference in people’s lives has been ditched. Thirdly, the proposal enabling advance consent to be given has been omitted, which was accepted in principle and would have had a real part to play in allowing people to say what arrangements they are happy to accept when it comes to a later stage in their life. Fourthly, regulation-making powers for supported decision-making schemes have been omitted. Again, all of these were thought at the time by the commission to be important steps necessary to strengthen the Mental Capacity Act in how it works across the board. There has been widespread approval of these provisions by families, professionals and lawyers—a unanimity that is quite rare. Can the Minister explain why these good things have been dropped when there was such an initial positive response? It is not as though there will be another chance. There will not be another Mental Capacity Act for some time, probably years, so now is our chance to improve it.

I return now to what is meant by “deprivation of liberty”. The Cheshire West Supreme Court judgment 2014, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, indicated, gave a significantly wider definition than had been previously understood both by public authorities and the lower courts to apply in the health and social care context. I will not repeat the argument of the noble and learned Baroness, Lady Hale— a bird in a gilded cage is still a bird in a cage—but her logic, as always, is totally unassailable. However, it has been applied in cases that the Supreme Court did not have the opportunity to review. Difficulty arises where everyone—patient, family members and professionals—are all either consenting to admission and the care and treatment as proposed or are not objecting, which also applies to patients in their own homes.

Approximately 750,000 people in the UK—I have heard a figure of up to 2 million, but I am talking about people who have definite and serious lack of capacity—lack the capacity to make major decisions, and the vast majority of these patients fall into “willing” or “not objecting” categories when it comes to their care. Two-thirds are living in their own homes. It is hard indeed to see in what way they are deprived of their liberty by being admitted willingly to a hospital, nursing home or hospice or being cared for in their own homes by family or professional carers whom they are happy to receive. Furthermore, when these Supreme Court criteria are applied to patients admitted to general hospitals, hospices and care homes as the Mental Health Act 2007 dictates, a ludicrous situation now arises. Before anything is done for the patients, a bureaucratic procedure is enacted to ensure that their rights are being considered, although in practice, nothing changes as a result. Lots of forms are signed and boxes ticked but little else.

Approximately one-third of older patients admitted to hospitals through A&E departments are suffering from transient confusional states consequent on physical illness, or mild cognitive impairments that intermittently, fluctuatingly or permanently affect their capacity to consent. The vast majority of such individuals—of 16 million annual hospital admissions, an estimated 3 million individual admissions—fall under the current jurisdiction. Because nobody is implementing this Act, they are currently being treated informally in their best interests with clinical staff relying on GMC guidance on decision-making and discussion with family and carers. The intrusion of an artificial safeguarding mechanism between those who did not know they were depriving someone of their liberty and those who did not know they were being deprived is a kind of Alice in Wonderland nightmare and ludicrously expensive to administer. We have in the Bill a system that will still be applied to tens of thousands of people and a pie-in-the-sky, almost delusional, impact assessment of its likely costs if it is implemented as drafted.

The result of the overinclusive definition of deprivation of liberty has resulted in very serious interface problems that other noble Lords have mentioned between the Mental Health Act and the Mental Capacity Act, and the misuse or overuse of Mental Health Act legislation to detain elderly people on general wards to treat them for physical health problems, simply because sectioning someone is easier to hurry through than the DoLS procedures and easier than the proposed liberty protection safeguards. The use of the Mental Health Act usually rules out any subsequent placement in a care home because patients are rejected by the care home system if they have been sectioned, and leads to extra responsibility for Section 117 aftercare funding for the local authority. I can give the Minister a catalogue of cases where the misuse of the Mental Health Act and/or DoLS has resulted in poor care or a decision by relatives to reject a care plan because they do not want their relatives stigmatised by being sectioned.

The interface problem has led to widespread illegality by the misapplication of legislation. The Bill continues this problem and, while I understand the wish to wait for Sir Simon Wessely’s review of the Mental Health Act to be complete, we are rather stuck with a gravely inadequate situation. Inevitably, problems will continue to arise at the interface between these two regimes unless we are serious about sorting them out.

The crucial thing for me is that the criteria for “deprivation of liberty” need to be changed before any new legislation is approved. It is pointless to wait to see what we can put into a code of practice. We cannot legislate on such a serious matter by leaving it to a code of practice; I simply do not think it will work. I do not believe it is reasonable to include admission and/or residence of incapacitated persons in homes and hospitals where there is no objection by the patient, family carers or professional carers, or to include private individuals living by personal choice in their own family homes, supervised by family members or professional carers. It really should apply only to those who express dissent or opposition, or where there is clear disagreement between those responsible for the care. I would like the Minister to explain why, given the report of the Joint Committee on Human Rights that supported the view that I and many others have just expressed—there is a need to revise the criteria—a change in the definition has not been included and whether the Government will consider bringing forward an amendment to address this problem before Committee?

No legislation should be enacted until it is clear that the law will improve the care of individuals subjected to it and genuinely protect them from abuse or unwarranted repressive conditions. We need to reinject some common sense into care relationships. Without better definitions and a serious reduction in the number of individuals being subjected to them, the liberty protection safeguards will continue to create anxiety in staff when there should be none and militate against the decent care that I believe everyone in this House agrees society should provide.

My Lords, this has been an interesting and hugely well-informed Second Reading of the Bill and I join other noble Lords in welcoming the noble Baroness, Lady Barran, to her place. I am sure that she will bring a new and welcome voice to the House on all issues. My noble friend Lady Barker gave us a helpful account—a history lesson, if you like—which put everything into context. It is worth saying to the Minister now that it is absolutely not the case that we all sat around a table and decided what needed to be said. We have come to our views all on our own, and if we are saying much the same things, it is because they need to be said and are true.

I, too, welcome the Bill. It aims to make the process of depriving a vulnerable individual of their liberty simpler and less bureaucratic. Everyone here would agree that society is judged on how it manages its members who are vulnerable and unable to speak for themselves. This Bill makes a fair attempt at this, but it is not the finished article and I would probably give it a C. The points I will make fall into two distinct categories: points concerning the process of the creation of the impact of the Bill once it is enacted, and the second concerning the legislation itself: what should be in it, what should be taken out, and which clauses could be better worded.

The people who will be affected by this Bill are likely to be old, have mental health problems, autism or a learning disability, or have more than one of these conditions. I should refer to my interests as set out in the register. I chair a learning disability trust caring for more than 2,000 people, many of whom in our care lack capacity. I thank all of those who have provided us with briefings, and it is clear that common themes came out of them. One was the issue of finance. There was a feeling that this is going to be an expensive exercise. There will be a need to train assessors in care homes, to which I shall return later, to train advocates and, of course, to train the trainers. All of this will need to be rolled across England and Wales. Will care providers have to fund this, or will one-off training grants be made available? Certainly the system is under so much stress at the moment that it is unlikely to have the slack in budgets for extra training.

Then there is the role of care home managers. For some this might seem fine and a natural extension of their role. For others it may go into completely new territory where they have no experience and no confidence. I am sure that the Minister appreciates that most people with a learning disability no longer live in a care home but with carers in a domestic supported living setting. It would be a very large ask for those carers to assess the mental capacity of the person they support. Most carers are on the national living wage and may not be professionally ready to make such assessments.

Can the Minister clarify where the AMCP—approved mental capacity practitioner—sits in the new system and from where their funding comes? Where liberty protection safeguards are put in place, could an affected individual have an appeal funded? Will legal aid be available? Will the Minister explain why best interests are not included and what has taken their place? At the useful briefing last week, I inquired about consultation. For a Bill of such importance and with such a potentially huge impact, can the Minister clarify what consultation there was with provider organisations in the sector, the LGA, ADASS and the public at large? Over the last few months, many of us have had really interesting conversations with Sir Simon Wessely about his work reviewing the Mental Health Act. We welcome that review, but would it not have made sense to have waited until Sir Simon finished his work and then have a single view of the issue?

The Bill did not start from cold: the House of Lords Select Committee reported in 2014 on its scrutiny of the Mental Capacity Act 2005. Many noble Lords speaking today took part in those committee sittings. There was also the Law Commission’s Mental Capacity and Deprivation of Liberty report of 2017. They both made many fine recommendations and, along with many in the sector, I am surprised that a lot of work will need to be done in the summer to make the Bill finally fit for purpose. Among the areas I will be looking at in Committee is the issue of 16 and 17 year-olds. To include them in the legislation would align with the Mental Capacity Act. Can the Minister tell the House the rationale for not putting this transitional cohort in the Bill?

Article 5(1) of the European Convention on Human Rights uses the phrase “unsound mind”. The same paragraph also talks about vagrants. It was first drafted in 1950, nearly 70 years ago. It is not used professionally now and the profession believes that it has no place in a piece of modernising legislation; it creates unease among individuals, advocates and the sector alike. Article 5(2) calls for a detainee to be informed of the reason they are to be deprived of their liberty. Rather than having to refer elsewhere, how much more straightforward would it be to have this in the Bill? I support my noble friend Lady Barker’s view that any part of the Bill referring to the ECHR should spell out the impacts rather than cross-reference the Brexit debate.

Although not part of the legislation, the code of practice, once enacted, will make the Bill workable. Will the Minister clarify what progress has been made on writing a draft? Can noble Lords have sight of it? If so, when? This is a complex and important piece of legislation; I hope that the Minister is not expecting to complete it with just one day in Committee. We need to produce an A-plus Bill to send to the Commons. It may take more time than the Government want, but all the people affected by the Bill deserve better.

My Lords, I am very pleased to be speaking in this Second Reading debate. Although we might be missing a few of our known experts in this rapidly organised debate, we can anticipate full participation in the next stages of the Bill. The debate thus far has been informed and passionate, as one would have expected.

The maiden speech of the noble Baroness, Lady Barran, was a model of its kind, and I welcome her to the House. She brings great experience. As someone who has been involved for 20 years in this House working on behalf of women and abused women and on domestic violence, I welcome her to our cohort of people across the House who campaign on these issues. I look forward to working with her in due course.

We have had some excellent contributions. Many noble Lords have been asking pertinent questions, starting with the ones from my noble friend Lord Touhig. The noble Baroness, Lady Meacher, was very modest. She has a lots of practical experience dealing with these issues. Just because she was not here when we worked on the original legislation does not mean that she does not have a valuable contribution to make to this. I am also pleased to see the noble Baroness, Lady Murphy, back in her place. I am glad that she managed to fly home from wherever it was to take part.

I thank the Minister and the Bill team for organising the briefing we had last week. It was a packed meeting—and quite hot, it has to be said—and it showed the level of interest that there is in this small Bill. I also thank the many organisations and individuals that have sent us their briefs and their views on the Bill, and which are, at this moment, working to see how it might be best improved—Mencap, the LGA ADSS, Age UK, VoiceAbility, Sense, Alzheimer’s Society, the Royal College of Psychiatrists and the Royal College of Speech and Language Therapists, a doctor from Cardiff University called Lucy Series, who sent me an excellent brief, the National Autistic Society and so on.

This might be a small Bill, but it is one with potentially enormous consequences. It demands proper parliamentary scrutiny and, where necessary, amendments that will make it fit for purpose on its own terms. Anything short of this will be selling short the human rights of many thousands of vulnerable people in our country. As yet, like the noble Baroness, Lady Jolly, I am not confident that the Government have made enough time available for proper consideration of this important piece of legislation. We have experts in these matters in this House. I was witness to and a participant in these discussions—not key to them, as the noble Baroness, Lady Barker, was, but I was here—and I know from those debates how complex a challenge these matters are and that it is an issue that at the same time begs absolute clarity to serve justice for our most vulnerable fellow citizens.

I hope the Minister and the Bill team will know that we will be pressing for more time to be made available and that we will be doing it with all our support. Apart from anything else, the Minister needs to address the suspicion, which I have heard whispered, that the Government are seeking to hurry or bounce this Bill through the Lords in the summer to try to avoid the detailed and essential scrutiny that it deserves and that it would receive here. I am sure that that cannot be the case, but more time would probably dispel that terrible rumour.

As we can see, the Mental Capacity (Amendment) Bill amends the Mental Capacity Act to replace the DoLS framework, which, as noble Lords know, authorises the deprivation of liberty of people who lack the mental capacity to consent to their care arrangements in hospitals, care homes or other settings. Quite rightly, DoLS has been widely criticised as excessively complex and bureaucratic, as highlighted by the noble Baroness, Lady Barran, and by the noble and learned Lord, Lord Brown, in his great speech. I was shocked to learn that 70% are behind time. That speaks for itself. Also it is costly and offers inadequate protection for human rights.

Following the Supreme Court’s ruling on Cheshire West, which offered a broader definition of the deprivation of liberty, there are now some 230,000 applications for the authorisation of DoLS in England and Wales each year—I keep hearing different figures and I am rather confused, but it is an enormous number and there is a huge backlog. Local authorities are unable to keep up with the volume of applications, leaving them, in the words of the Joint Committee on Human Rights,

“having to work out how best to break the law”.

So it is costing a huge amount of public money, that is rising, and it is not doing its job.

So this is undoubtedly a timely piece of legislation; notwithstanding some of the reservations that some noble Lords have about this, I am fairly convinced that this is an urgent matter. The question we have to address here in your Lordships’ House is whether the Bill will do the job it is asked to do.

The Law Commission was asked to review the framework between 2015 and 2017. It consulted widely and came up with the new framework, the liberty protection safeguards, which offer more flexible and less bureaucratic means of authorising deprivation of liberty, channelling resources into situations where there are conflicts or concerns about a person’s care arrangements. It also included proposed amendments to the MCA’s best interest test, highlighted by my noble friend Lord Touhig and the noble Baroness, Lady Murphy, among others, and to promote supported decision-making to bring the MCA closer in line with the requirements of the United Nations Convention on the Rights of Persons with Disabilities.

The Law Commissioner, Nicholas Paines QC, said—and the Minister quoted him—that the deprivation of liberty safeguards are failing those they were set up to protect. He went on to say:

“We’re pleased the government agrees and we stand ready to work with them to implement these reforms as soon as possible”.

I have read the Government’s response to the Law Commission report, and it seems to accept the majority of recommendations contained—it is a 24-page document and I had some time at the weekend. However, the Bill we have before us today, while having the same title as the Law Commission’s proposed scheme, appears to have removed most or some of the important safeguards it proposed, as other noble Lords mentioned. That raises some serious questions, starting with whether the Bill complies with Article 5 of the European Convention on Human Rights and whether it moves the UK further away from compliance with the CRPD, instead of closer towards it. The Bill has major implications for the human rights of hundreds of thousands of people with dementia, learning disabilities, brain injury and mental health problems.

I am disappointed that there is no accompanying equality impact assessment. Paragraphs 16.1 and 16.2 of the impact assessment refer to equality matters. Basically, what they say is that there is no need for an equality impact assessment because,

“the new system will have beneficial impacts for older and disabled people”.

Surely that is a matter for examination, not something one can assume, particularly when we look at Article 5 of the European Convention on Human Rights. It seems to me that, if that is being diluted, it is very important that we have a proper, independent equality impact assessment, so I ask whether that can be supplied.

Noble Lords have raised many other questions during this debate. How does the Bill ensure that the cared-for person and those representing them have access to the information they need to understand and exercise their rights? Do the Government plan to secure the right of the cared-for person to participate in court proceedings concerning their liberty? Should the modern legislation—this was raised by many noble Lords—include outdated and stigmatising concepts such as unsoundness of mind? The noble Baroness, Lady Browning, is completely correct when she says that the Bournewood gap has not been plugged: I absolutely agree with her remarks on that. Why have the Government not taken forward the Law Commission’s proposals to bring the MCA closer in line with the United Nations CRPD? Why have the Government not chosen to require a written record of serious decisions that can be made under Section 5 of the Mental Capacity Act 2005 or introduce stronger procedural safeguards?

Perhaps one of the most significant proposals in the Bill is that care homes assume very significant new responsibilities for the undertaking and co-ordinating of assessments, and provide information about residents who may lack mental capacity to statutory bodies. The very helpful local authority DoLS co-ordinator who has written to several noble Lords says:

“I receive application forms from care homes, train care home staff and give advice about DoLS and MCA issues. Based on these experiences, I have concerns that at present, despite honourable exceptions, care home staff do not routinely have the knowledge and skills to assess mental capacity and consider whether restrictions are proportionate”.

We need to listen to his experience, as the noble Baronesses, Lady Finlay and Lady Hollins, highlighted. We need to ask what the mandatory training is going to be. The noble Baroness, Lady Hollins, is completely right: half a day is not sufficient.

Finally, a major recommendation of the Joint Committee on Human Rights is that there must be a statutory definition of what constitutes a deprivation of liberty in this context, but the Bill does not provide such a definition. The Bill team and the Minister have emphasised their consultation process and the organisations that support the Bill. The noble Baroness, Lady Jolly, referred to these. I am sure that is true. However, my inbox, like that of many noble Lords, is full of briefings which have serious concerns about the Bill. Our job in the coming period is to ensure that those are examined. Some clear themes of concern have been mentioned by noble Lords all the way through the debate. The Minister has two choices: either he can engage with the expertise and work with us all to improve the Bill, or he and the Bill team—I hesitate to use the example of the noble Lord, Lord Callanan—could dig their heels in and resist change to their small and perfectly formed Bill. I would counsel the former path.

My Lords, I thank all noble Lords for an incisive, illuminating, at times technically complex but always wise debate, which has been a credit to the House. I will attempt to answer as many questions as I can. I will not try to cover all of them as we actually would be here all night, but I will have time to explore the major categories of issues. I hope noble Lords will indulge me as I do that.

I welcome my noble friend Lady Barran and congratulate her on a very passionate and moving speech. It is clear that she has already been a force for good in the world and we look forward to her bringing her singular qualities to the stage which she now fills with such great authority. I hope noble Lords also noticed the attendance for the first part of the debate of my honourable friend the Minister for Care, Caroline Dinenage, who obviously takes a close interest in this. She was at the briefing and we are working closely together to try to get the right Bill through this process.

I think the general tone of the debate was that there is a strong desire to reform the DoLS system and to end, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, pointed out, the lawlessness and the highly unsatisfactory current situation. My noble friend Lady Barran brought this to life. The truth is that the current system has overwhelmed local authorities and others. As the noble and learned Lord, Lord Brown, pointed out, Cheshire West has extended the definition to whom this should apply, such that the backlog of cases is now extraordinary. The only consequence of that is a denial of access to justice. The challenge we have in the Bill is to make sure that we do not have access to justice just in theory but that it actually happens, and it cannot happen if more than 100,000 people are getting it in theory but not in practice.

As somebody who was new to this before preparing for the Bill, the situation almost sounds too good to be true. We are going to extend the number of people who have access to safeguards but we are also going to stop the system being overwhelmed and save money. This is achievable because it is about introducing a proportionate system that reflects the needs and wishes of the people whom it is there to protect, rather than having a maximalist approach that in theory applies to everyone but in reality does not and is sometimes random in its application, which is clearly unacceptable.

As many noble Lords have pointed out, the system that we need to create must be patient-led. It needs to have proper oversight and to deliver that access to justice which we have discussed. Clearly, if, as the noble Baroness, Lady Finlay, pointed out, only one in 20 have benefited from the current system, it is highly inefficient. As many noble Lords also pointed out, there is a huge urgency here.

Many noble Lords pointed out the benefits of the new system. I will come to some of the challenges but, ultimately, this is about making sure that caring organisations take a more active role in the assessment of deprivation of liberty. Where they do so and integrate it into their care planning, we will provide a proper system of oversight and support for individuals deprived of their liberty in general but, specifically, for those who object, or whose families who care for them object. That is ultimately what we are trying to do and it is the intention of the Bill.

Several noble Lords, including the noble Baronesses, Lady Jolly, Lady Greengross and Lady Thornton, asked about our consultations to date. There have been very wide consultations but this debate has shown that there is much work to be done over the summer, not just with noble Lords but with stakeholder groups, to ensure that we are not only explaining the consequences of what is proposed—I think there are still some misunderstandings about that—but able to demonstrate the benefits and, critically, learn how we can further improve what is proposed.

I turn to some of the issues raised. Several noble Lords including the noble Lord, Lord Touhig, the noble Baronesses, Lady Barker, Lady Finlay, Lady Greengross and Lady Tyler, the noble and learned Lord, Lord Brown, and the noble Baroness, Lady Murphy, talked about the absence of a statutory definition. I can tell the House that we are aware of that and are listening particularly to the recommendations of the Joint Committee. However, the debate demonstrated some disagreement over the right way forward. There are various options, such as definitions in the Bill or through a code of practice, but we clearly need to get to an answer in order to proceed.

We have talked about wanting a system that has the person’s wishes and best interests at the heart of the process. That was raised by the noble Lord, Lord Touhig, and endorsed by the noble Baronesses, Lady Barker, Lady Finlay, Lady Greengross, Lady Meacher, Lady Browning and Lady Hollins. It is absolutely right for us to be clear that there is no watering down of the interests of the individual concerned through this process. As the noble Baronesses, Lady Barker and Lady Finlay, pointed out, capacities can fluctuate; as the noble Baronesses, Lady Browning and Lady Hollins, pointed out, they can also be varied—strong in one area and weak in another. Any system needs to take account of that and I can tell the House that it is absolutely not our intention to water down the role of a person’s expressed wishes. The best interest test still applies absolutely in the care setting, but the necessary and proportionate test is to account for those cases where a person may wish to do something regarding their liberties which is contrary to their best interests for their individual care. Striking that balance and making sure that there is proper oversight, with proper advice for people who are unable to enunciate their own wishes, is at the core of getting the Bill right.

As noble Lords have also pointed out, getting the Bill right is actually about getting a statutory code of practice right. It is out of date and there is a degree of urgency about improving it. I will return to that in a moment but, in talking about the statutory definition, I will finish on the power of attorney and the role of families. They still have primacy under the Mental Capacity Act, the principles underpinning which still apply. It will not be possible to deprive a person of liberty when the attorney acting on their behalf has stated that their best interests are served otherwise. I want to make that clear but it is something that we will need to explore and explain better. Attorneys will be part of the group that is to be consulted, and the Bill creates an explicit requirement for further consultation with families. Family members can also act as appropriate persons, so I think there is a greater strengthening of the role of those acting on behalf of a person deprived of their liberty in the process of scrutinising that and making sure that it is done appropriately.

If this matter is unclear to some of us who can claim to be fairly well informed on it, clearly, there has been a communication problem. Might I suggest to the noble Lord that it would be enormously helpful—as it has been in similar situations—to have a copy of the Act, as amended by the Bill, for us and interested parties to look at? Believe me, it makes the whole business a great deal clearer and easier to understand.

That is an excellent suggestion. I should be clear: any confusion comes from a failure to communicate on our behalf, rather than there being any suggestion that noble Lords who are extremely expert on this do not understand what is proposed. There is a need to explain better exactly how all this will work in practice.

Obviously, the system depends on the quality and independence of the reviews, assessments and authorisations that take place; that issue was particularly raised by the noble Lord, Lord Touhig, and the noble Baroness, Lady Hollins. There were also questions asked by the noble Baronesses, Lady Tyler, Lady Murphy, Lady Jolly and Lady Thornton, about the capacity of those carrying out assessments in local authority care homes, the NHS and so on to do them properly and in a way compliant with the law. I agree with noble Lords that in the coming weeks we will need to set out much more clearly how that independence support and those assessments will be staffed and provided, making sure that there are sufficient resources and proper training. I am reassured that training in the implications of the Mental Capacity Act is part of medical training, and that there are Health Education England resources for that. Clearly, all that will need to evolve as we go through this process and the Act itself is amended.

The noble Baronesses, Lady Barker, Lady Greengross, Lady Tyler and Lady Murphy, and the noble and learned Lord, Lord Brown, asked about the interaction with mental health legislation and whether we should have delayed publication. The noble Baroness, Lady Tyler, described a tension between the two Acts. We are conscious of the interface—that is the term used—but there is an urgency to reform the system, notwithstanding its interaction with the Mental Health Act. We do not yet have a timescale on completion of the review and any subsequent legislation that might be required. There has been lots of talk about the work to reform—the committee, the Law Commission, the Joint Committee and so on—and we need to get on with this, cognisant all the time that subsequent changes may need to be made once we have the outcome of the Mental Health Act review. It is not in my gift to promise time for legislation in the future but we are cognisant of the need to make sure that our interface works, once we have the review itself completed.

Several noble Lords asked why the Bill does less than the Law Commission. We could spend a lot of time going through that, but I do not propose that we do so at this point. We can achieve non-legislatively several of the Law Commission’s proposals; it is made up of lawyers, so they prefer law but there are other ways of doing things. One of the key issues raised is the Bill’s not applying to 16 and 17 year-olds. There is clearly an important interplay here with the education, health and care plan process, but I have listened to noble Lords on the subject today and shall reflect on whether we can do something about it.

The code of practice was raised by the noble Baronesses, Lady Finlay and Lady Greengross, and my noble friends Lady Barran and Lady Browning. Getting it up and running quickly is critical. Detailed work is going on, and we need to be very specific in it to provide reassurance about how it will work. Unfortunately, I do not have a timetable yet for its production, but I will endeavour to get hold of one. We need to make sure that its implementation is properly resourced. The CQC will continue to inspect its implementation, so there will still be that quality oversight.

A few other issues were raised. Many noble Lords referred to “unsound mind” being an unhelpful and, frankly, out-of-date phrase. I do not disagree. The concern here is the interaction with the jurisprudence and the ECHR itself. If we were to move on that—I make no commitment at this point—we would need to think it through very clearly, but I would like to explore it.

The noble Baronesses, Lady Barker and Lady Jolly, asked about legal aid. I can confirm that it is, and will still be, available on a means-tested basis. The noble Baroness, Lady Meacher, and my noble friend Lady Browning asked about advance consent—an issue that the Law Commission also raised. Again, there is an important distinction to be made here between an advance decision to refuse treatment, which will continue to be respected and is untouched, and advance consent to a future deprivation of liberty. Although that was in the Law Commission report, officials engaged in the process indicated that this did not receive support from families. There was a concern that you could sign yourself up to being deprived of your liberty at some point in the future, so it did not garner support. Perhaps it was the wrong subset or sample of people; nevertheless, we need to consider the best way forward on that.

Finally, the noble Baroness, Lady Thornton, asked about the equality impact assessment. I do not have an answer at this stage about why it was not carried out but I will endeavour to get one.

To conclude, I hope that I have been able to summarise the main issues and topics. Clearly, there are some very big questions that still need to be answered, but I return to the point that my noble friend Lady Browning made, which is that we need to solve the problems this time. We cannot introduce another Bill or piece of legislation that just creates a problem three years down the line. It is not just about the Bournewood gap; it is about making sure that we avoid, and do not create, any other gaps. The words “nightmare” and “disaster” have been used to describe the current system, and that is why we need to act now, but clearly we need to act in such a way that we do not create another problem further down the line.

It has been clear from this debate that there is still much work to be done to provide the right kind of reforms that we all want to see. Looking at the Chief Whip, I am sure that we will have adequate time in Committee to make sure that the Bill is in the best possible shape. We saw a nod of the head from the chief, so that is good. This debate has demonstrated—the noble Baroness, Lady Thornton, said as much—that there is no group of people better qualified to improve this legislation and make sure that we get the right reforms. I look forward to engaging with noble Lords and others throughout the coming months to make sure that we can achieve that and deliver a Bill that provides for people deprived of their liberty the fair and proportionate access to justice that we all want to see.

Bill read a second time and committed to a Committee of the Whole House.