| Mental Capacity Bill
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Mrs. Browning: My hon. Friend mentioned the Bournewood gap, which the Joint Committee recommended that the Government seek to close. At that point, however, as the Committee will be aware, we had not heard the European Court judgment on Bournewood, which emerged on 5 October. It may be helpful for him to know that I intend to table a series of amendments to clause 28 to address the Bournewood situation. Column Number: 122 Mr. Boswell: I am grateful to my hon. Friend for relieving me of that burden to some extent. I hope that she will table those amendments, because it is right that the Committee should discuss them. I hastily add that they should be discussed at that point, subject to the ruling of the Chair, because that would be a better time to do so. As sometimes happens with my amendments, I have a reservation about the drafting of amendment No. 177. It does not take into account circumstances in which admission to a mental hospital, or a mental treatment regime, would be required urgently and could not have gone through social services, so they could not have ruled on it, one way or another. I am not sure whether the amendment is drafted to be comprehensive, but there is an issue there: the action would be ruled out if consent were withheld, but if consent had not been determined would it or would it not be ruled out until it had been withheld? There is, perhaps, a technical issue there. A number of us, whether or not we are expert in this area, are conscious that there is a difficulty at different ends of the spectrum. If a person has capacity and may seek treatment, it is open to them to make decisions. On the other hand, if a person is—to use my shorthand term, which is probably wrong—''sectioned'' or detained for the safety of others as much as for their own that is a comparatively definite situation under the Mental Health Act 1983, although not an easy one. There are safeguards for that process under existing mental health legislation, as well as under the draft Mental Health Bill. However, there are questions about the safeguards that exist when a person is on a course of treatment and is not able or permitted to leave it, but is not formally detained. This is an important issue; it is about the deprivation of liberty. It would be useful if the Committee were to start addressing it now, and if the Minister were to give us an interim response to the amendments that have been tabled, in anticipation of having another go at it when we discuss later amendments. Mr. Lammy: I have no doubt that the amendments were tabled in the context of the Bournewood judgment, as the hon. Gentleman said. That case addressed the question of whether Mr. L's detention in hospital contravened his human rights under the European convention on human rights; hence the reference to that convention in amendment No. 139. I entirely understand the hon. Gentleman's concern to ensure that the Mental Health Act 1983 is always used when appropriate and that the Mental Capacity Bill takes on board the lessons from the recent European Court of Human Rights judgment in the Bournewood case. I understand the concerns of hon. Members, particularly those who have campaigned on this case for some time now. We are seriously examining the implications of that judgment, but they will understand that as the judgment was so recent—it was made on 5 October—and as this is a highly complex area, it is too early for us to reach firm conclusions as to whether it has any impact, particularly on the Bill. Column Number: 123 Mrs. Browning: I do not want to get into the Bournewood case now, as I intend to table further amendments and I hope that we can deal more extensively with it under clause 28. However, I will repeat for the benefit of the Minister and the Committee something that I said to him privately this morning. Several Committee members also sit on the Committee scrutinising the Mental Health Bill, which started to take evidence yesterday. There was a clearly expressed concern on the part not just of the Committee but of witnesses that the Bournewood case will have to be dealt with either in this Bill or in the Mental Health Bill when it comes out of draft. There seems to be a lot of concern that it might fall down the gap, because this Committee might not address it, and instead leave it for the later mental health legislation. That concern creates all sorts of difficulties. I know the Minister's Department is working hard on the judgment, because it is recent, but we need guidance as to whether the matter will be accommodated in the Mental Capacity Bill, or whether the Department intends it to be addressed under the mental health legislation. Mr. Lammy: There is no likelihood of its falling down a gap, because it is a Strasbourg decision, so we have an obligation to ensure that we are in compliance with it. The consideration is continuing. The hon. Lady is right to say that the Mental Health Bill is currently receiving scrutiny, and we shall ensure that if we need to take steps they will be taken as speedily as possible. The amendment also raises points connected with the European convention on human rights. I think that the hon. Member for Daventry knows what I am going to say, and if he would like me to put it on the record, I will. Section 6 of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way incompatible with a convention right. Section 3 of the Act provides that, so far as is possible, primary legislation—wherever enacted—must be read and given effect to in a way compatible with the convention rights, including, obviously, article 5. As is required, I have made a statement under section 19(1)(a) of the Human Rights Act 1998 that the Bill is compatible with the convention rights. It follows that nothing in the Bill can authorise actions contrary to any part of the European convention on human rights. All members of the Committee will understand that the Bill is empowering, and very much in the spirit of more general human rights. Amendment No. 177 would require the national health service body concerned to request a social services authority to give formal consideration to the use of the Mental Health Act 1983, and for it to confirm that it was not necessary, before the provisions of the Mental Capacity Bill could be used. I am, of course, sympathetic to the aims of the amendment, but the introduction of an independent consultee already provides for the concern about patients who have no relatives or friends, and the need for consultation. Column Number: 124 Mr. Clarke: Given the views of the hon. Member for Daventry on drafting, I am prompted to ask about suggested new subsection (4A), which specifies that
Does that reflect the role of social services in such matters? Mr. Lammy: It definitely affects social services, because such matters would be covered under the Mental Health Act 1983—I hope that that is helpful to my right hon. Friend. Social services operate very much in proximity to that Act. As I was saying, in creating the role of an independent consultee and in laying the duty for social services or the NHS to have that independent consultee, we have provided support for vulnerable people who would fall within that category, although clearly some vulnerable people will be outside that category, too. I ask the hon. Member for Daventry, bearing those points in mind, to withdraw the amendment for now and consider later whether the Government's response meets his aims. Mr. Boswell: I am grateful to the Minister. He has more or less conceded that we have not received a full response. It is probably not reasonable to expect one at this stage, and it will probably be better to wait. Subject to the sort of discussions that we had about best interests that involved representations from interested parties, and having heard about the subsequent tranche of amendments promised by my hon. Friend the Member for Tiverton and Honiton, and being ready to listen to representations from all parts of the Committee, we will be content with such a process. I must emphasise that we cannot allow the issue to go unaddressed between the two Bills—a point that the Minister has already conceded. An early strategic decision will have to be taken about which Bill will deal with the matter, and obviously, discussions will continue between hon. Members and interested parties. Many people are already beginning to work on such matters. I have supplied material to the Minister privately, because it will help to inform the debate. Rather than commit ourselves at this stage, it is better to stand back and say, as the Minister has, that we recognise that there is a problem. We do not want to rush to a conclusion, but we cannot put it off indefinitely because there is an obligation to respond both to the Strasbourg judgment and to the real problem in the real world, which will have to be tackled. With those comments, I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Question proposed, That the clause stand part of the Bill.
4 pmMrs. Curtis-Thomas: The Minister has not really addressed my earlier question relating to the clause, so I will repeat it, and hope for an answer this time. Will D be provided with adequate information from the Column Number: 125 relevant authorities to make an informed decision for P?Mr. Lammy: Yes. Question put and agreed to. Clause 5 ordered to stand part of the Bill.
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