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It has led to a tremendously different culture and feel in how we support those with mental health problems. In spite of the amendment requiring resources, which I do not deny, it would give equivalent safeguards and support good practice already in effect in many institutions caring for those with profound learning disabilities and dementia. It would be a positive move.
Baroness Ashton of Upholland: 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.
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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
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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.
Baroness Barker: I thank the noble Baroness for her answer. I am not wholly convinced by it for two key reasons. First, we are talking about serious medical treatment and it would stretch belief somewhat to think that an independent medical capacity advocate would have sufficient medical knowledge in such cases to make a judgment. They may be able to make judgments on whether such a treatment might be likely to be consistent with a person’s past and present express wishes and feelings, but that sort of decision is of a separate order.
The other basis on which I disagree with the noble Baroness is that we are talking about people who are being deprived of their liberty and for whom there would be lesser safeguards than they would have if they were detained under the Mental Health Act. Therefore, I am not wholly convinced by her argument, on the basis either of equivalence or on the capacity of the people who will be making that decision.
I understand what the Minister says about the intent of the Mental Capacity Act, but I am not convinced that it is sufficiently robust to deal with very serious medical issues—issues on which carers and family members may well wish to be consulted. It seems to me that stretching that consultation to people such as independent mental capacity advocates, rather than to those with medical qualifications, is not a sufficient safeguard for people who are deprived of their liberty.
Nevertheless, I heard what the Minister said. I will take the matter away and perhaps she will reflect on my statements, too, and maybe we can discuss this further at a different time. Therefore, I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
Schedule 7 [Mental Capacity Act 2005: new Schedule 1A]:
Schedule 8 [Amendments relating to new section 4A of, & Schedule A1 to, Mental Capacity Act 2005]:
[Amendments Nos. 69 to 71 not moved.]
Baroness Barker moved Amendment No. 71A:
In section 40 of the Mental Capacity Act 2005 (exceptions), in paragraph (c), after “P” insert “other than a deputy who has been appointed by the Court for the property and affairs of P in a professional capacity”.”
The noble Baroness said: Noble Lords will be relieved to know that this amendment has absolutely nothing whatever to do with Bournewood. It represents an example of plain opportunism on my part, because it relates to a piece of unfinished business, or business that was missed, from the Mental Capacity Act, and this legislation’s passage through the House provides a very convenient vehicle to which to attach it.
The aim of the amendment is to ensure that relevant bodies are required to appoint an independent mental capacity advocate where a court-appointed deputy has been appointed to manage only the property and financial affairs of an individual because there are no suitable family members to act as lay deputies. The essence of the matter is to clarify that, where a deputy acts in a professional capacity purely for financial matters, he or she does not go on to take decisions about a person’s welfare. Love accountants as I do, I do not necessarily believe that they are the people to whom one would turn, if one had capacity, to make decisions about one’s welfare.
This is a serious point. In these days when finance and the financing of people’s care is such a complex matter, accountants are appointed. Where there may be potential conflicts of interest, it is extremely important that people who cannot make their own financial decisions are not forced to rely on someone who does not have the necessary qualifications to represent that part of their needs.
This is a necessary measure to ensure that people who lack capacity have full protection, particularly for their welfare rights, and it is a matter that the Law Society may thank us for clarifying. I beg to move.
Baroness Ashton of Upholland: I am very grateful for this piece of opportunism from the noble Baroness, Lady Barker, and from the infamous Pauline—I shall put her on the record in Hansard. I reassure your Lordships that deputies who have been appointed in a professional capacity purely for the purposes of property and affairs would not, under the
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We have put this explicitly in the code of practice. Officials are in discussion with the Public Guardian Office about providing clear guidance in the form of a handbook for deputies, as well as a newsletter that is sent to all receivers who will become the new property and finance deputies when the Act is implemented. I am also considering whether I need to go further to clarify the issue differently. Perhaps the noble Baroness will not mind if I take it away and return to it at a later stage to ensure that we have captured the point, but there is nothing between us on this issue.
Baroness Barker: I thank the noble Baroness for that reply. I hope that in her consideration she will take into account the fact that there may be family members who are involved in care but who do not feel that they have the expertise to manage financial matters. Complex financial matters may be in the hands of a professional, or even a solicitor, yet they still may be involved. We must make absolutely sure that they are not put out of the picture by professionals. I look forward to further clarification and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Barker moved Amendment No. 72:
(1) It is the duty of a person to have regard to the code if he is acting in relation to a patient and is doing so in a professional capacity.
The noble Baroness said: My Lords, we return to a matter which I imagine first attracted the attention of the House when the 1983 Act made its passage through Parliament. It certainly attracted the attention of your Lordships as long ago as 15 January 1986, when the House discussed codes of practice and legislation in a debate led by the noble Lord, Lord Campbell of Alloway, who I am sorry is not in his place. Contributors such as Lord Denning discussed the status of codes of practice in legislation. Codes of practice in the 1983 Act was one to which they turned their attention.
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The Minister will not be surprised to learn that the amendment before us seeks to impose a legal duty on Mental Health Act professionals to comply with the code of practice of the Mental Health Act 1983, except where it is not possible to do so in the particular circumstances of a case. A familiar argument in Parliament—one that has been made many times—is exactly what is the status of a code of practice that attaches to legislation.
I say at the outset of the debate that there is a flaw in the drafting of the amendment, which means that in any case we will need to return to the matter. None the less, it represents an opportunity to discuss an important matter.
The draft code of practice, lengthy and substantial though it is, says on page 7 of its introduction:
“The Act does not impose a legal duty to comply with the code, but the people to whom it is addressed should not depart from the guidance contained within it without cogent reasons”.
Therein lies the problem. That does not give the code of practice statutory force and it leaves the reasons for departures from it too widely drawn.
The Minister will know that codes of practice receive higher status as a result of two things. First, they are issued under Section 7 of the Local Authority Social Services Act 1970. It is always stated at the front of a code of practice issued under that Act that it is. Secondly, primary legislation includes a clear statement about the status of the code of practice; such as, for example, Section 42 of the Mental Capacity Act. However, the code of practice for the Mental Health Act 1983 was not issued under LASA 1970, as it is fondly known, nor does it have an explicit statement about the status of the code of practice. It has been clarified to an extent by case law, but there is conflicting case law about this code of practice. Earlier in Committee, in relation to mental health review tribunals, we discussed the work of practitioners and the things to which they will refer. We argued that they largely make reference to what is in the legislation. The code of practice is necessarily extensive because it rightly contains a great many matters of practice that may change over time, and one would not wish to have to amend primary legislation to reflect those changes.
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However, there is a significant problem, and it is not just the standard problem of what is in the code of practice and what is in primary legislation. It is that the code of practice is radically different from the legislation. It is founded on a set of guiding principles that are reflected throughout it, but the legislation is not. There are a great many details in the code of practice that offer safeguards to patients, but they are not in the legislation. There is such a discrepancy between the two documents that if one were a patient or a practitioner, it would be difficult to know where one stood and what one’s rights were. The departure from the code of practice as it is set out is far too wide. The noble Lord will correct me if I am wrong, but I think that there does not even have to be a written record of the reasons why a practitioner departed from the code of practice. This is the most
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Earl Howe: As the noble Baroness, Lady Barker, observed, we have reached one of the most significant amendments in the Committee’s proceedings. I endorse and agree with all she said. I shall re-emphasise a couple of points. A great deal hangs on the code of practice in what we have been debating. If we are to know or be confident that the human rights of patients are to be safeguarded by clinicians and other professionals in the correct and conscientious way that we all believe in and if patients and their carers are to know and be confident about the manner in which they can expect to be treated under the law, the code occupies centre stage in our view of how the provisions of the Bill will play out.
The problem with the code is that it is semi-detached from the primary legislation. That semi-detachment allows too great a scope for clinicians to depart from it in ways of their own choosing. The Minister may say, correctly, that there is helpful case law in this area, which has established that the current code is more than mere advice and that the people to whom it is addressed must have regard to it. However, we have heard from the Minister throughout the Committee proceedings when resisting the amendments that the code of practice rather than the Bill is the right place for certain issues—sometimes very significant issues—to be covered. If that is so, and if so much rests on the effective operation of the code, we need surely to look at ways to make explicit reference in the Bill to the code’s standing and importance. As it is, the code relating to the 1983 Act is not specifically referred to in the legislation; nor is it issued under Section 7 of the Local Authority Social Services Act. As the noble Baroness rightly said, either of those things would have given it so-called higher status.
It is interesting that in the Munjaz case of 2003-05 the Court of Appeal and the House of Lords came to different conclusions about the code's status. That fact speaks volumes about the confusion that exists. So, without an amendment of the kind proposed, there will be no benchmark against which a patient can reliably measure the standard of care he receives under the Act. Hospitals will not necessarily act consistently with each other and we will find rules and policy being formulated in individual trusts in different ways. I hope that the Minister will be receptive to the amendment, or, if not to the amendment, then at least to the purpose of it.
Baroness Murphy: I rise to add my voice in support of the amendment and that of the noble Lord, Lord Rix, who cannot be here. It is something that he feels strongly about. We have said time and again how important the code of practice is. This would be an opportunity to strengthen it further.
Lord Hunt of Kings Heath: This has been a short though very interesting debate. As both the noble Baroness, Lady Barker, and the noble Earl, Lord
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I do not recognise the term “semi-detached” in terms of the relation between the code and the legislation. I pay tribute to those responsible for the 1983 legislation. I would argue that the very construct of that legislation allows for some flexibility in terms of what is in the code of practice so that instead of continually coming back to amend primary legislation—we know how infrequent is the passage of mental health legislation—you have a code of practice which can be changed from time to time, but which is consistent and underpinned by the legislation. So I do not see it as being semi-detached. I see it as an endorsement of the way the legislation has been framed.
I fully accept that we have had this debate. Noble Lords from all around the Chamber have sought to ensure, because of their genuine concerns about service provision, particularly in the circumstances of mental health legislation, that the services provided in the NHS are up to the standard that we and they all wish to see. I can see the temptation to amend legislation to try to ensure that that happens. Noble Lords know that I do not agree with that approach. I think that the Bill is essentially about legal processes for compulsory powers; it is not about service provision. I think that there is a genuine problem of seeking to give patients rights to certain health services that are not given to other patients of the health service.
We have a duty under the NHS Act 1977, which requires the Secretary of State in England to continue the promotion of a comprehensive health service designed to secure improvement in the physical and mental health of the people and the prevention, diagnosis and treatment of illness, with a duty to provide or secure the effective provision of services in accordance with that Act. I ask noble Lords to consider the implications of simply taking mental health services or perhaps, on another day, palliative care or cancer services. You cannot, in my judgment, use legislation to determine the actual services to be provided throughout the NHS. Due to that and the importance of, as I have said, underpinning the legislation, we have the code of practice.
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