Mental Capacity (Amendment) Bill [Lords]

I should inform the House that neither Lords amendment in the message engages financial privilege. I remind the House that the motions relating to the Lords amendments in the message will be certified as relating exclusively to England and Wales. If the House divides on either of these motions, a double majority will be required for the motion to be passed.

New Clause

Deprivation of liberty: code of practice

I beg to move,

That this House does not insist on its amendment 1 to which the Lords has disagreed, and disagrees with Lords amendment 1B proposed in lieu, but proposes amendment (a) to the Bill in lieu of the Lords amendment.

With this it will be convenient to consider the following:

That this House disagrees with Lords amendment 25A proposed to its amendment 25, but proposes amendments (a) and (b) to its amendment 25 in lieu of the Lords amendment.

We now have an opportunity to deliver reforms that will provide quicker and fuller access to protections for the 125,000 people who are not currently receiving them. That is 125,000 vulnerable people without the legal protection that they deserve, whose families do not have peace of mind, and whose care providers have no legal cover for supporting them. We now have an opportunity to rectify this situation.

In February, the other place considered the 56 amendments made to the Bill by the House of Commons, the vast majority of which were agreed with. However, the Lords tabled alternatives to two of the Commons amendments, and they are the focus of our discussions.

The Minister has rightly pointed out that the Bill will provide a great advantage to those who are directly affected. I do not want to be a total patsy for my local authority, but will she explain what the benefit will be for local authorities, which are responsible for trying to protect people’s welfare and safety?

My hon. Friend makes an incredibly important point. This issue has been a huge burden for local authorities: they have had to carry out multiple deprivation of liberty safeguards often for the same people and often when those people move from one setting to another. That involves a huge amount of bureaucracy and does not offer any better protection for the individuals concerned. The new service will enable local authorities to do this in a much more streamlined and efficient way. It will save them money and, at the same time, offer better protection for the individuals about whom we all care.

Lords amendment 1B was tabled by Baroness Tyler of Enfield to set out the meaning of a deprivation of liberty positively, rather than by using the exclusionary approach set out by the Government. Noble lords are, of course, absolutely right to want to ensure that any definition is understood by people and practitioners. However, a positive definition of a deprivation of liberty is likely to be subject to a legal challenge as article 5 case law evolves, and it would become unfit for purpose incredibly quickly. This is a view not only shared by the Government, but highlighted beautifully in the other place by the esteemed legal experts Lord Mackay and Lord Hope.

Lords amendment 1B does not link the definition of a deprivation of liberty to article 5 of the European convention on human rights, so creating a risk of the definition set out in statute diverging from the convention. This would mean that people who fall outside Parliament’s concept of deprivation of liberty but within the article 5 definition could not have their deprivation of liberty authorised under the Mental Capacity Act 2005. For those people, only the High Court would be available to authorise such a deprivation of liberty, which, in turn, would give rise to excessive delays in accessing vital safeguards.

That is precisely the situation that this piece of legislation looks to address—there are already too many people subject to delays when accessing safeguards, and we cannot introduce a provision that would further risk this.

I thank the Minister for giving way and I am reassured by what she says. It would not be appropriate, for example, to put case studies on the front of a piece of primary legislation. Will she outline the timescale for bringing that code of practice forward?

The code of practice is being worked on as we speak. It is very important that we take it forward in partnership with all the key stakeholders and those who are involved at the front end implementing the liberty protection safeguards. Once we are all content that the code of practice is robust and fully covers everything that we want it to it will then be presented to both Houses of Parliament.

This will mean that the definition will be considered regularly. It will remain up to date with evolving case law. It means that we are laying a report of the review before Parliament and that there will be a review within three years of the measure coming into force to ensure that it is working as intended. The review will extend to all the guidance related to the liberty protection safeguards contained in the code of practice and not just the definition. By regularly reviewing the code in this way, we will ensure that there is up-to-date guidance for people and practitioners and this will support the successful operation of the liberty protection safeguard system.

The amendment will ensure that the code clarifies when a deprivation of liberty does or does not apply and provide useful guidance for families, carers and professionals while also ensuring that we do not put a definition in statute that conflicts with article 5 of the convention and I ask the House for its support in this.

I shall briefly turn to Lords amendment 25A, which was tabled in the other place with the admirable aim of ensuring that the authorisation record is provided to the individual and other relevant persons in a timely manner. This followed the Government amendment that clarified the responsible body’s duty to provide information to the person and other relevant persons. Noble lords amended the Bill to specify that a record must be kept if the authorisation record is not provided immediately. If the authorisation record is not provided to the person within 72 hours then a review must be conducted.

When we last debated this Bill, I was clear that Labour did not think that the Bill was adequate to become law. The Minister has just expressed her thanks, but we did make it clear that it contained a number of serious flaws and this still remains the case. While improvements have been made in the House of Lords, they do not fix many of the concerns that we still have with this Bill.

The Bill still places more power than it should in the hands of care home managers. From organising assessments to carrying out consultations with the cared-for person, the Bill means that an untrained, or an ineffective, care home manager could end up carrying out the process in a flawed or improper way.

Recently, there was a focus on the scandal of abuse that happened at the Mendip House Care Home in Somerset, with six autistic residents with complex needs. The Safeguarding Adults Review carried out by the Somerset safeguarding board revealed a host of management failures by the National Autistic Society. The registered manager of that particular care home did not address the unprofessional behaviour of a thuggish gang of male staff. This resulted in the following abuse being meted out to the residents of Mendip House: they were “ridden like horses” by staff; forced to crawl on all fours; made to eat raw chillies; and, in one horrific instance, forced to eat food spiked with mustard, which caused the resident to vomit. The resident was then made by a member of staff to drink that vomit.

People living in Mendip House had complex needs and all would have lacked capacity to make certain decisions and all required deprivation of liberty safeguards. The Care Quality Commission had not receive any notifications that DoLS had been authorised. On care planning and recording, the review report on Mendip House states:

“Care plans were very poor with no mental health or Best Interests assessments recorded... DoLS not being followed.... recording poor, plans out of date...”

A further flaw is that the Bill could restrict access to independent advocates, which is an important safeguard. However, the granting of an independent advocate is not automatic. An overstretched local authority lacking the budget to pay for advocates following years of Government budget cuts could find itself unable to grant an advocate to everyone who needs one.

It is also still the case that the Bill does not give adequate protection to 16 and 17-year-olds who are subject to the liberty protection safeguards. Specifically, it does not grant their parents a right to veto arrangements that they feel are inappropriate. There remains a real danger that these young people will be detained, despite their parents’ objecting to the arrangements. I stress that this is not only an issue for 16 and 17-year-olds, as many young people who have learning disabilities and are going to be subject to this Bill will still be largely reliant on their parents for support and advice. Cases that we discussed in Committee, such as those of Steven Neary and Oliver McGowan, have shown us that parents can find themselves cut out of the process, with their views made secondary to those of clinicians or care staff. That risks real harm to the younger people who lack capacity.

On the crucial issues of care home managers, advocacy and young people—as on many other issues—the Government did not see the value of the amendments that we tabled. I am sure that we will be back here in the future, debating legislation to rectify these flaws in the Bill, but we still have a duty to try to improve the Bill where we can today. I am glad to say that the Government appear to have made some sensible concessions on areas of the Bill that are still to be finalised.

I would like to pay tribute, as the Minister has done, to the people who have worked on the Bill, especially my Labour colleagues who have worked so hard to try to improve this legislation. In particular, I thank my hon. Friends the Members for Dewsbury (Paula Sherriff), for Nottingham North (Alex Norris), for Stockton North (Alex Cunningham), for Stockton South (Dr Williams), for Slough (Mr Dhesi) and for Birmingham, Selly Oak (Steve McCabe) for all their valuable contributions in Committee and on Report. I also thank our wonderful Whip, my hon. Friend the Member for Bristol West (Thangam Debbonaire), who is sitting on the Front Bench now. In the House of Lords, I thank Baroness Thornton, Baroness Wheeler, Lord Hunt of Kings Heath and all Labour peers across the House of Lords who have persistently made the case against the Government’s approach to reforming this very complex legislation. They have always had in mind the interests of cared-for people, their families and those who work in the social care sector.

I turn to Lords amendment 1B and the Government’s amendment to it, which contains two elements. The first removes the definition of deprivation of liberty from the Bill. The second is a commitment to regular reviews of this definition, as the Minister has just outlined. It is to be welcomed that the Government have relented and removed their previous definition from the Bill, as that definition pleased nobody and added nothing. The definition of deprivation of liberty is set out in European law. Nothing that we do in this place will change what article 5 determines is a deprivation of liberty; neither the Government’s initial definition nor Lords amendment 1B can determine that something is not a deprivation liberty for the purposes of article 5 of the European convention on human rights. In fact, all this amendment will do is decide who can be subject to a liberty protection safeguard, and thus who receives the safeguards that the scheme provides.

Submissions to the Public Bill Committee from DoLS leads and other practitioners made it clear that they did not feel that a definition was needed on the face of the Bill. Those professionals felt that they already had a sufficient understanding of the relevant case law, and that the definition would be superfluous—so the Government’s definition was not for practitioners. The reason that the Lords pushed for a definition initially was to clear up confusion among lay people as to what constituted a deprivation of liberty, but the Government’s definition was far too complicated to be understood by cared-for people and their families. The Government knew this but would not simplify it further, saying that simplification was for the code of practice.