Mental Health Bill [HL]

As the noble Baroness, Lady Barker, said, we debated many of these issues at great length. In preparing for this group of amendments, I went back to the original Act—the noble Baroness may be surprised to learn that I had forgotten bits of it. I listened with great interest to the noble Baroness, Lady Murphy, who has great experience on these issues. Let me try to set out the position as I see it from the Mental Capacity Act side, as opposed to the Mental Health Act side. My clear view is that a deprivation of liberty authorisation should concern only deprivation of liberty and should not authorise any course of treatment. The provision of treatment to a person being deprived of their liberty should be in accordance with the arrangements and safeguards contained in the Mental Capacity Act as it currently stands. Section 5 of the Mental Capacity Act requires that any act carried out in connection with the care and treatment of a person who lacks capacity must—I repeat, must—be in the best interests of that person. In addition, Section 6 of that Act places safeguarding limitations on the use of Section 5 when the act in question is intended to restrain the person who lacks capacity. There is no justification for adapting these provisions in respect of people who are deprived of their liberty. The requirements of the Mental Capacity Act governing decision-making when a person is unable to consent are robust, practical and were subjected to intensive scrutiny in your Lordships’ House. Where serious medical treatment is proposed, there will be a need, in accordance with the best interests provisions of the Act, to consult anyone named by the person, or engaged in caring for them, or interested in their welfare. Also, any donee of lasting power of attorney or deputy appointed by the court would have to be consulted. If there was nobody of that nature whom it would be appropriate to consult, an independent mental capacity advocate would need to be appointed to represent the person’s interests. I believe that the requirements in the Mental Capacity Act regarding decision-making will achieve what we intend, which is to lead to greater involvement in decision-making by the person concerned—that is a critical part of the Act—ensure that what is decided genuinely is in the person’s best interests and that, as far as it can be, the decision made is similar to that which the person themselves would have made if they were able to. The additions to the Mental Capacity Act that are the subject of our scrutiny today will provide new safeguards to the human rights of people who lack capacity and are deprived of their liberty. I am sure that decision-making about serious medical treatment for these people should be handled in the same way as for any other person who does not have the capacity to consent. I resist the amendment because I firmly believe that within the Mental Capacity Act we have tackled the issues that lie at the heart of what the noble Baroness seeks. Effectively, the amendment would mean that a doctor not involved in the person’s care would need to certify in writing that that person was not capable of understanding the treatment proposed and certify that the treatment was in the person’s best interests, when the ““best interests”” provisions of the Mental Capacity Act would already apply. The doctor would have to consult with two persons professionally concerned with the person’s medical treatment—which would be a little heavy handed in the context of existing provisions in the Mental Capacity Act. At the end of the day, I am not sure that we achieve more than what we have already achieved with the Mental Capacity Act, which provides suitable safeguards in Sections 5 and 6, and achieves what the noble Baroness is seeking. I hope that she will reflect on that and, of course, we can have further discussions on this issue. I believe that we are achieving the best for people and that we should not make distinctions in the way that amendment proposes.