Baroness O'Loan (CB)

I will revert to the Bill and come back to the noble and learned Lord in due course. If I am wrong, I apologise. The noble and learned Lord has committed, in your Lordship’s House, to build special protection for those currently or recently subject to a deprivation of liberty order, as raised by the noble Lord, Lord Markham, but the detail has not emerged. What will the specific protections be? Will there be an outright ban for those, for example, under DOLs or in prison? In Committee on 16 December, the noble and learned Lord said that, where somebody has made an application that a person’s liberty be taken away because they are seriously mentally ill or lack capacity, or a person has actually been deprived of their liberty, special provision should be made. I know the noble and learned Lord has said he will make provision, but time is passing and we still have no indication what that provision must be. Previously, on behalf of the Government, the Minister noted that denying those under DOLs access to assisted dying might later be interpreted by a court as a breach of ECHR obligations. I would like to ask the Minister what the Government’s view is as to the minimum protection that must be offered to those deprived of liberty and susceptible to suicidal ideation if the Bill is to be compliant with the Government’s obligations under the Human Rights Act and the ECHR. The presumption of capacity in the Bill may result in the acceptance of unwise decisions by those who will have forgotten about them the very next day. We know that clinicians and practitioners want clarity and certainty; they do not want to be left repeatedly in situations in which they must exercise their discretion. All the professional bodies have told us that. The risk of litigation, or intervention by a regulator or the police, would inevitably exercise the minds of those who act professionally. Without clear rules, the system cannot work; things will fall apart. The Bill provides for a period of reflection once a decision is made to allow someone carefully to consider the choice involved, weighing all the information again and thinking over this life or death choice. The noble and learned Lord and the Chief Medical Officer have claimed that the MCA requires a higher threshold for life and death decisions. Legal experts, including Alex Ruck Keene KC, confirm that the Act contains no such stipulation; it does not provide a higher threshold.