Contribution
My Lord, this is an enormous group of 80 amendments and 16 clause stand part notices, some of which I have tabled. I recognise that the majority of the amendments are about establishing a judge and court-led process, about which I have added various amendments. Separately, there are important issues. I am particularly impressed by Amendment 116, about deleting Clause 3 and not using the Mental Capacity Act 2005 but replacing it with the new proposals. My noble friend Lady Berridge has already asked some questions on that, but the reason I bring it up at this point is that I want to speak particularly to Amendment 426, which would introduce court proceedings.
I was particularly struck by proposed subsection (6), which refers to it being
“beyond reasonable doubt that … the applicant has capacity”.
It does not directly refer to the new amendment, but I am considering some of the debates that we have had, which I do not want to repeat. The key point that is that the Mental Capacity Act is used every day by health professionals, but on balance of probabilities not on beyond reasonable doubt. This is why I support the approach of the noble Lord, Lord Carlile, in bringing forward—reintroducing, in effect—the process that was in the Bill when it started in the Commons where more than half of MPs voted for it. When the judge role was removed when it came to Third Reading, fewer than half of MPs voted for it. There was a substantial reduction in support. Although I accept that there was still a majority, it was down to 23.
I am conscious that what is not in the amendment proposed by the noble Lord, Lord Carlile, is whether the court proceedings should be held in public. I tabled Amendment 426A because it is my understanding that it is not the usual practice of the family court at whatever level to sit in public. I think this is an important element that needs to be considered. Indeed, it is what is proposed for the panels that are considered elsewhere. I have gone further in my Amendments 426B, in particular, which is more of a probing amendment, and 426C. One thing that the late Sir James Munby said about why he did not think this should be done by High Court judges is that it was not clear whether this was just rubber-stamping or whether the judge was being used to make a determination, a decision, about some of the things.
Going back to Amendment 120, the structure that the noble Lord, Lord Carlile, has put together is about inserting a requirement for reports to be provided that would help the judge to make that decision. It is important that we do not end up, as happens, in effect, with a lot of tribunals around the country, making decisions on the papers. This is a life-or-death decision. I appreciate what the noble Baroness, Lady Hayter of Kentish Town, said about when, but it is actually about how somebody dies, about a medical professional not just withdrawing treatment, as we mentioned on some other issues, including the Bland case, and which happens regularly now, but supplying lethal drugs to help somebody take their own life. It is different in that regard, which is why I am attracted to the proposals that were originally in the Bill, which would be reintroduced by the amendment proposed by the noble Lord, Lord Carlile.
I am conscious that not everybody may be fit to attend physically, but I think that that connection between the person who is asked to make the determination about whether somebody has capacity and whether there has not been coercion of whatever kind is important, and that is why I have put forward these probing amendments for us to consider. Ultimately, we are trying to work out how we make this element safer. What was said on Report in the Commons is that the general approach is now safer than a judge-led process. I am not convinced by that. I do not need to repeat the arguments that others have made, but I respect the role of judges in making these decisions, particularly in the family court.