Mental Incapacity Law Reform (Hansard, 25 April 2002)

§ Lord Ashley of Stoke
asked Her Majesty's Government:
Why the proposals by the Lord Chancellor's Department on mental incapacity law reform have not been followed by legislation.

§ The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)
M y Lords, the Government remain committed to reforming this important area of law. When parliamentary time allows, we will legislate to improve and clarify the decision-making process for those who are unable to make decisions for themselves or who cannot communicate their decisions. In advance of securing parliamentary time, the Government are taking forward a number of initiatives which will benefit people today and pave the way for the introduction of more radical changes in the future.

§ Lord Ashley of Stoke
My Lords, I thank my noble friend for that reply. However, is she aware that I am disappointed that the noble and learned Lord the Lord Chancellor himself did not reply to this Question? He has made some important statements about the law relating to these exceptionally vulnerable people. He has said, for example, that the law as it stands is "confusing and fragmented". He has also said that the law "fails to offer adequate protection". Those are very strong words, especially from a Lord Chancellor. He made those statements in 1997. Since then, he has failed to bring forward legislation to protect the very people who require more protection than anyone.
Is my noble friend aware that this is by no means a simple issue? However, it is simply unacceptable for the Government to fob off these very vulnerable people with White Papers, Green Papers, a few pamphlets and vague assurances about future legislation at some unspecified date. What they need is comprehensive legislative protection, and they need it now.

§ Baroness Scotland of Asthal
My Lords, I say straight away that I am disappointed at my noble friend's disappointment. But notwithstanding the fact 363 that I cannot in any way stand in the shoes of my noble and learned friend the Lord Chancellor, I shall attempt to give my noble friend satisfaction. I reassure him that the Lord Chancellor's determination in this regard has in no way waned. He continues to have a strong interest in bringing forward legislation. However, my noble friend will know that, as with every government, there is always competition in terms of legislative time. I am sure that the strong words urged by my noble friend will greatly assist the Lord Chancellor when he sallies forth in that battle.

§ Lord Pearson of Rannoch
My Lords, is the Minister aware that the Lord Chancellor's Department's paper, Making Decisions, and in particular its leaflet No. 5, produced in the absence of legislation, do not appear to make any provision for people with a mental handicap or people with the more severe learning disabilities? When the Government come to legislate, will they undertake to give priority to the views of the families of these unfortunate people, who know them best, and not to less competent social workers, independent advocates and so on, as envisaged in those documents in so far as they cover people with learning difficulties?

§ Baroness Scotland of Asthal
My Lords, of course those issues are of great importance. However, improvements have been made by means of all those who care for the vulnerable working in unison. That involves taking fully into account the views of the families concerned but also those of advocates, lawyers, social workers or others who assist in the process. We shall get the right solutions only if we find a way forward that is based on all those who are involved in the process working in unison.

§ Lord Rix
My Lords, can the Minister confirm that a working party is to be set up to make proposals for legislation and is to include such parties as Mencap and Age Concern? Will the Minister ensure that when the working party finally meets it always considers the difference between mental illness and learning disability and also the difference between those who have a temporary inability to make decisions and those who have probably a lifelong inability to make decisions?

§ Baroness Scotland of Asthal
My Lords, the differences that the noble Lord highlights are important. I certainly reassure him that those participating in the consultative process will be able to make those distinctions which will be reflected in the deliberations that they undertake.

§ Lord Goodhart
My Lords, does the noble Baroness agree that it is particularly urgent to legislate to reverse the decision of the House of Lords in the Bournewood case? Does she agree that it is wrong that people lacking capacity can be informally detained in hospitals under Section 131 of the Mental Health Act without their carers having the opportunity to challenge the decision of the doctors?

§ Baroness Scotland of Asthal
My Lords, I am not able to say that we shall take steps to reverse the decision of the Judicial Committee of the House of Lords. Of course we shall consider intensely the consequences of that decision and will in due course come to an informed judgment as to how we go forward.

§ Lord Ackner
My Lords, does the Minister accept that there exists in the present law a considerable lacuna in regard to protection of those with vulnerability from abuse of various kinds; namely, sexual, medical, emotional and other such abuses? Does she further accept that the only way to deal with that is to have a comprehensive Act similar to the Adults with Incapacity (Scotland) Act 2000 which has nearly 100 sections and half a dozen schedules?

§ Baroness Scotland of Asthal
My Lords, we shall of course take into account what the noble and learned Lord says. He will know that a decision was taken that it is inappropriate at this stage to take that matter into consideration when deciding on the legislation. However, those discussions may need to go further. I shall certainly ensure that those who deal with this matter take into account what the noble and learned Lord has just said.

Noble Lords
Next Question!

§ Lord Lester of Herne Hill
My Lords—

§ The Minister for Trade (Baroness Symons of Vernham Dean)
My Lords, in fairness to those interested in the final Question we should move on.