Mental Health Bill [HL]

I am grateful to the noble Baroness for giving us some of the background and for setting out the reasons why we are debating this issue. I urge noble Lords to take themselves back to those fabulous days when we debated at enormous length an important piece of legislation which I was very proud to take through your Lordships’ House and pay tribute to the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, for the work they did in helping us to do that as effectively as we did. Other noble Lords know the part they played in this regard and I want to pay particular tribute to Lord Carter for the work that he did. Without him I am sure we would not have ended up with such an important piece of legislation. I am very sorry the noble Lord, Lord Rix, is not with us. I know he is in hospital and doing well. I am sure noble Lords will join me in wishing him well and hoping he will be with us soon, certainly for Report stage, as I need to hear his voice in this debate. We are in the Mental Capacity Act. The reason we are taking these clauses in the Mental Health Act is because, as noble Lords will recall, we were trying to find a solution that drew a consensus that dealt with the particular case, as the noble Baroness has said, of the Bournewood Hospital which kept someone described as an informal patient in hospital against the wishes of his carers. The European Court of Human Rights found that there had been a deprivation of his liberty in contravention of Article 5(1) and Article 5(4) of the European Convention on Human Rights. As a consequence the Government has moved to seek to address this problem in the most appropriate way. Adults have the right to make their own decisions; in some cases they are not able to do so. The Mental Capacity Act set out some critically important principles about the issues to do with capacity and what we should do if a person lacks the capacity to take the decision themselves. We recognise that some people who lack capacity to consent—and I will return to this—need to be deprived of liberty but are not detained under the Mental Health Act. Additional safeguards are needed to protect the human rights of these people. They must be protected from arbitrary detention and given speedy access to the court. This is not about taking new powers to detain people. It is about giving safeguards to the most vulnerable in care homes and hospitals who need to have their liberty curtailed and considered and who, in some cases, need to be deprived of aspects of their liberty in order to keep them safe and protected and to provide the highest quality care. That is a fundamental issue which we need to address. The noble Baroness, Lady Barker, rightly says that we have not tried to define it, but I want to say what I believe she is looking for in terms of what the European Court of Human Rights has identified in judgments in cases to date as contributing to the deprivation of liberty. Briefly, they are: restraint was used, including sedation, to admit a person who is resisting; professionals exercised complete and effective control over care and movement for a significant period; professionals exercised control over assessments, treatments, contacts and residence; the person would be prevented from leaving if they made a meaningful attempt to do so; a request by carers for the person to be discharged from their care was refused; the person was unable to maintain social contacts because of restrictions placed on access to other people; and the person lost autonomy because they were under continuous supervision and control. I hope that that sets out some of the areas, but we have determined that ultimately this is for the courts to decide. I have made it clear that this is not about punishment and not about a deprivation in the wrong context. Looking at who should pay should be in the context of the well established principle of means testing, from which the Government have no intention of moving away. I know that noble Lords from other parties take a different view and we can debate at length the resources in the health service and the Government as a whole. Means testing has been a long-established principle. Therefore I do not have the sympathy for the amendment which the noble Baroness would have wished me to have. Hand in hand with it, there is a suggestion that the deprivation of liberty is negative; somehow being perceived as taking away from someone something that they would prefer to have. The whole basis of the Bournewood principle is that people are deprived of their liberty because they need to be made safe and secure and given high-quality care. I see no reason therefore to suggest that the means-testing element should be disapplied. If one accepts—and I do—the principle of means testing in these cases, it is in order to provide high-quality care. The principles behind the Bournewood provisions are precisely that. Furthermore, I do not accept the care plan approach, although I understand why the noble Baroness is raising it. Indeed, I had the privilege of meeting stakeholders this morning when we talked around this issue. While it is important to ensure that the highest quality care plan approach is taken by those working with individuals who lack capacity, I do not think you would necessarily get that or get to the point of saying, ““We won’t deprive them of their liberty because if we do we have to pay””. That is not the right way to approach this issue. I accept that the underlying issue is to ensure that the decisions and the approach to the deprivation of liberty should be made only where it is in the right and proper interest of the individual and the best interests assessor will have the responsibility for so doing. But it would be wrong to take the approach that says, ““If you’ve got to pay for it, perhaps it is an incentive not to do it””. It is precisely in order to support and care for such people that we wish to do it. I do not accept that as a principle and therefore would reject the amendment and hope that the noble Baroness will withdraw it. However, I understand the issues underlying it and hope that within the code of practice we can ensure that the highest quality care is always provided in order to support people who lack capacity and who for reasons of good high quality care need to have a deprivation of liberty to some degree or other. I hope that on that basis the noble Baroness will withdraw her amendment.