Mental Health Bill [HL]

My Lords, I shall have another go at convincing the noble Baroness that the provisions already contain the safeguards that she, reasonably, seeks in her amendment. I know that the noble Baroness does not mean this, but ““deprivation of liberty”” concerns only that and is not about authorising any course of treatment. I know that she would agree with me on that. The provision of treatment take us right back into the Mental Capacity Act itself. The provision of treatment to a person deprived of their liberty hasto be in accordance with the arrangements and safeguards in that legislation. There is no justification to adapt those for people deprived of their liberty. Decision-making about serious medical treatment for these people should be handled as with a group of people who do not have the capacity to consent, not differently. Where the primary reason for deprivation of liberty is to allow treatment to take place, the benefits of being treated would be considered as part of the best-interests assessment. We have to do the best-interests assessment to determine that they can be deprived of their liberty. If serious medical treatment is the reason for depriving someone of their liberty, the best-interests assessor would have to consider that as part of their assessment. This is in addition to, and does not replace, the requirement to comply with the rest of the Mental Capacity Act. The requirements in the Mental Capacity Act governing decision-making when a person is not able to consent are robust and practical. We had a lot of scrutiny on this during the passage of the Mental Capacity Act. Where serious medical treatment is proposed, there will be a need, in accordance with the ““best interests”” provision in the Act, to consult anyone named by the person, engaged in caring for them or interested in their welfare. Any donee of lasting power of attorney or deputy appointed by the court would have to be consulted. If there is nobody of that nature whom it would be appropriate to consult, an independent mental capacity advocate would be appointed to represent the person’s interests. Any of these people have the right to seek a second medical opinion regarding serious medical treatment, in the same way that a person could have done had they had capacity. The noble Baroness asked whether the IMCAs would do that. I went to the IMCA pilot schemes to see whether it was happening. I can confirm, having looked at it, that IMCAs obtain second opinions where they consider it necessary. The practice that is already under way demonstrates that, where they believe it is appropriate, they do. In addition, you can make an application to the Court of Protection if there is a dispute that the proposed treatment would be in the person’s best interests. The requirements in the Mental Capacity Act lead to greater involvement in decision-making by the person concerned, ensure that what is decided is genuinely in the person’s best interests and that, as far as it can be, the decision made is similar to the one the person would have made if they had had capacity. We have the capacity for second opinions to be obtained by all the people I have mentioned. With the safeguards in the Act, you can only act in the best interests of the person concerned. If the deprivation of liberty were for the purpose of serious medical treatment, then the best-interests assessor would have to determine that it was in the best interests. If all else fails, the Court of Protection can intervene where people believe that serious medical treatment is not in their best interests. I think that my package of safeguards meets what is of genuine concern to the noble Baroness. I hope that she will be able to withdraw her amendment.