Mental Capacity (Amendment) Bill [HL]

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 5th September 2018 Lords Chamber

Committee (1st Day) (Continued)

20:40

Amendment 9

Moved by

[Baroness Barker]

9: Schedule 1, page 10, line 8, at end insert “to safeguard the well-being, wishes and feelings of the cared-for person.”

[Baroness Barker (LD)]

My Lords, we return to the topic that we were discussing before the break: the conditions that have to be met for authorisation of deprivation of liberty arrangements. During the dinner break, I reflected on what the Minister said in response to the previous Amendments 7 and 8, which were in similar territory. I understand entirely what he said about the best interests test being in the Mental Capacity Act and that being the first stage of assessment. However, on the secondary assessment for arrangements for either care and treatment or deprivation of liberty, the Minister seemed to suggest that there was a possibility of conflict between those two things or a misunderstanding of them. I will go back over some of that territory again; that may irritate the Minister, but it has been clear all afternoon that one of the main purposes that these proceedings in your Lordships’ House may serve is to enable people outside in the lobby groups, who, like us, have not been able to see a clear read-across from this Bill back to the original legislation, now to do so.

Amendments 9, 10 and 30 seek to reiterate or reintroduce concepts which will be very familiar to all those who took part in the deliberations during the passage of the Mental Capacity Act. Under that legislation, it was always to be made clear to a person who was possibly going to be subject to a deprivation of liberty, and to anybody involved in that decision-making, that the well-being, wishes and feelings of that person had to be taken into account, that any decision would be the least intrusive as possible, and that the arrangements being made for the person were the least restrictive, particularly with regard to where somebody should reside. That is for many people, particularly older people, perhaps one of the most contentious decisions. It is often one of the subjects on which there can be conflicting views between families and individuals or between professionals and individuals.

I have said before and—given that the one thing that has stuck out in the Bill is the enhanced role for care commissioners and, particularly, home care managers—I do not think it is unreasonable to go back again and satisfy ourselves that, when the authorisation of arrangements happens, these key parts of the Mental Capacity Act will again form part of the assessment. I hope, when we come to further amendments down the line, that they will be part of the record of decision-making. I do not make any apology for raising these amendments. I am sure the Minister will bat them back, but if he will do so with a deal of explanation then I think we will have served a purpose. I beg to move.

20:45

[Baroness Hollins (CB)]

My Lords, Amendment 29 seeks to ensure that the views of those consulted are taken into account in determining whether the arrangements are necessary and proportionate and, importantly, that particular weight is placed on the wishes and feelings of the cared-for person. I declare an interest as I also have a family member who is directly affected by the matters we are debating today; indeed, much of my Recess was spent trying to sort out his care needs taking into account his views.

While the Bill includes a duty to consult, I and many in the sector are concerned that, as currently drafted, the Bill does not adequately weight things towards the cared-for person’s wishes—the person who, of course, should be at the centre of all this. This also reflects the Law Commission’s advice about giving more weight to an individual’s own wishes and preferences regardless of whether they have been judged to have decision-making capacity—this is quite important. In a fairly recent case, Wye Valley NHS Trust v Mr B, the judge concluded:

“that an incapacitated person’s wishes and feelings should be assumed to be determinative of his best interests unless there is good reason to depart from the assumption”.

Earlier, the noble Baroness, Lady Browning, spoke importantly about the difficulties sometimes of communicating with and listening properly to people who have communication disabilities. I accept entirely that conversation with people who lack, or may lack, capacity can be challenging and requires additional communication skills, training and understanding. It is crucial that we get this right, because the consequences are significant and will lead directly to improvements or deteriorations in people’s health and independence.

It is often the case that the family are the most skilled at communicating with their loved ones and are, therefore, the ones most likely to understand their feelings and wishes. This may in some circumstances be communicated with subtlety and nuance. I declare another interest here as I chair the charitable community interest company Beyond Words. The wordless health and social stories that we create facilitate discussions and support decisions, but the discussions they facilitate are about people’s wishes and understanding; they support decisions that at the outset might appear too difficult or challenging.

Anything that enhances the understanding of the person—and of the carer, social worker or health provider—about what the person is thinking and might want takes time and skill. Sometimes people need special tools to help them. Effective engagement by support workers and carers with each individual can improve their understanding about the type of support the person requires and I hope will lead to less restrictive interventions being provided.

On this whole issue of who sits with, communicates with and listens to the person, I think many working in the care sector assume it will be an expert who comes in, yet the experts do not see that as being part of their job either. So there is a gap, where often nobody is actually doing the listening or communicating, because everybody assumes that it is somebody else’s job.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have added my name to the amendment tabled by the noble Baroness, Lady Hollins. As she eloquently said, the puzzle relates to paragraph 17 of new Schedule AA1 on consultation, which references those who must be consulted. The aim of the consultation is,

“to try to ascertain the cared-for person’s wishes or feelings in relation to the arrangements”,

but the paragraph does not specify that the cared-for person must be consulted. The Minister might just refer me to Section 4 of the Mental Capacity Act and say that it is covered there, but so are the provisions in sub-paragraphs (a) to (e) in paragraph 17(2)—they are all listed in the best interests test. Therefore, the puzzle is why the Government have decided that there should be no attempt, at least in statute, to seek the cared-for person’s wishes and feelings. We are already concerned that these measures are not focused on the interests of the cared-for person; they are about streamlining bureaucracy and saving money, and this rather lends to that suspicion. I hope that the Minister will be able to agree to the noble Baroness’s amendment, because it is a very important symbol of what this is really all about.

[Baroness Thornton (Lab)]

My Lords, this group of amendments tests the proportionate nature of the decisions being taken. Amendment 29 would put the views of the cared-for person at the centre of the assessment and ensure that adequate weight was given to their wishes and feelings. I have not been able to find in the Bill where that is expressed, and that is shocking and surprising. We have to see a clear statutory duty to consult the cared-for person, and the scope of that consultation must include their past wishes, feelings, values and beliefs. I invite the Minister to tell me whether he believes that the Bill as it stands achieves that, because I cannot see that it does. If this amendment is not agreed to, the Minister and the Bill team must think about how they can best make sure that the Bill reflects the need for consultation with the cared-for person.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)]

I thank noble Lords for tabling their amendments and for contributing to a debate that has continued the discussion that we had before dinner. It again gets to the heart of why we are here, which is to make sure that when people need to be deprived of their liberty, it is in their best interests to do so and that the restrictions are proportionate and necessary and so on.

I agree with the spirit of the amendments. It is important that we intend to, and do, safeguard the well-being, wishes and feelings of the cared-for person. Dealing with the first set of amendments, I take this opportunity to reassure noble Lords that the changes being sought are already required by law in several ways.

First, the European Court of Human Rights has made it clear that a decision on whether arrangements are necessary and proportionate must include consideration of the cared-for person’s wishes and feelings about the arrangements. It should also be noted that, as the noble Lord, Lord Hunt, pointed out, wishes and feelings are already a part of the first-stage best interests decision-making under Section 4 of the Mental Capacity Act and I can confirm, as I have done already, that the Bill does not change this. Furthermore, wishes and feelings will also be considered as part of the “necessary and proportionate” test, and the code of practice will provide further detail about how that will work in practice.

Going even further, as has been referenced by several noble Lords, we have created in this Bill a specific requirement to ascertain a person’s wishes and feelings in relation to the proposed arrangements through the duty to consult with anyone with an interest in the cared-for person’s welfare—first and foremost the person themselves, as well as their family, carers, friends, advocates, interlocutors or anybody with a substantive interest in their care. I believe that there is substantial legal protection, force and direction to make sure that the person’s wishes and feelings are considered first and foremost in any of these kinds of arrangements. As this debate has demonstrated, there are clearly lingering concerns that that is not the case, because of the existing framework, notwithstanding the enhancements through the duty to consult that we are introducing. However, I am eager to make sure that it is well understood, and to work with noble Lords so we can make clear that those responsibilities already exist, both in statute and—

[Lord Hunt of Kings Heath]

I understand the Minister’s argument, were it not for the fact that the amendment, in paragraph 17(2)(a) to (d), just copies what is already in the best interests clause. I would argue that, if we are going to copy four of those, why do we not copy the issue about the cared-for person being listened to? The Minister is arguing different points from amendment to amendment on this.

[Lord O'Shaughnessy]

We try to be consistent, but it is not always possible. The noble Lord makes a good point; it is something that I would like to explore further.

Turning to the matter of considering less intrusive arrangements, again this is incredibly important. Case law establishes that the test of whether the arrangements are necessary and proportionate must also include consideration of whether less intrusive arrangements are available and have been fully explored. As we discussed in the last debate, it is already a principle under the Mental Capacity Act. The code of practice will provide further detail about how that will work in practice.

This has been a useful debate, continuing, in some ways, the previous debate on best interests. As we have all agreed, it is important that the person’s wishes and feelings are at the centre of arrangements being proposed. That is certainly our intention through the liberty protection safeguards scheme that we seek to introduce. I want to continue working with noble Lords over the coming weeks to make sure that there is clarity that that is the case. I hope that on that basis, the noble Baroness will be prepared to withdraw her amendment.

[Baroness Barker]

I thank the Minister for that reply. We started with the mental capacity legislation, which is explicit in having the person at the centre of everything that happens. Yet we know from several reviews that have been conducted, including the review by the Select Committee, that the implementation of that legislation has been very patchy. To then be faced with a piece of legislation in which consultation with the person is not on the face of the Bill seems to be moving a long way from that original principle.

I have let the Minister talk about the code of practice repeatedly and I have not mentioned it so far, given that we have other amendments to debate. However, we found out with the Mental Capacity Act that reliance on the code of practice was one of the reasons why the Act was not implemented as well as it should have been. We will come on to that in far more detail, but there are some things that are so fundamental to the operation of this that we should know by now that leaving them to the code of practice is not acceptable. We can talk about implementation within the code of practice, but there are some things that need to be on the face of the Bill. For me, we really have hit that. If we are not even going to attempt to consult people, that for me is a red line, so I am pleased that the Minister has agreed to talk to us about that.

The points made by the noble Baroness, Lady Hollins, about the weighting of the wishes and feelings are also important. Those wishes do not sit on an equivalent level with the views of everybody else. They should be pre-eminent.

21:00

[Lord O'Shaughnessy]

I take the points that the noble Baroness is making. Obviously we will discuss this further. But it is important to reflect on the new duty to consult. It is not a duty to consult everybody but the person, so it is not fair to say that there has not been an earnest attempt in the Bill to make sure that the person is fully consulted in the necessary and proportionate test, even if the noble Baroness does not like the precise way that that has been done. It is important to set that out.

[Baroness Thornton]

It is a spectacular omission not to mention the very person whose liberty is being restricted. I ask the Minister and the Bill team to remind themselves of Articles 5 and 8 of the UNCRPD, which mandate such consultations.

[Baroness Hollins]

This needs emphasis because of the culture of care that we have in this country. There is still such a paternalistic attitude towards the person, that not to emphasise it is to miss the point.

[Baroness Barker]

I thank noble Lords for their support. We will need to return to this and I am glad that the Minister has taken that point.

Another reason for tabling the other amendments to ensure that arrangements are the least intrusive and least restrictive option is that, as we will debate on later amendments, the Bill is somewhat deficient in the extent to which it requires that people should be given information on which to base the consultation.

I make no apologies for raising this again at this time. It is something that I hope we will discuss between now and later stages of the Bill. I hope that the Minister can understand the reasons for the concerns that lay behind the amendment. Having said that, at this point, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Amendment 10 not moved.

Amendment 11

Moved by

[Baroness Hollins]

11: Schedule 1, page 10, line 10, leave out “, other than care home arrangements,”

[Baroness Hollins]

My Lords, Amendments 11, 12 and 13 deal with a perceived conflict of interest pointed out by numerous charities and care providers with regard to the role that care home managers are intended to play under the Bill. As drafted, the Bill places a new duty on care home managers to carry out the assessments and consultation prior to authorisation. My amendments would ensure that the duty for carrying out assessments resides with the responsible authority, with a retained duty to involve care home managers in carrying out those assessments.

I raise a puzzle that I have. I have been trying hard to get my head around some of the possible unintended consequences of the way in which we think about care homes and care home managers and the relationship between the different kinds of care and support that are provided. Some services, with great encouragement from local authorities, have been trying to convert their residential care homes into supported living houses. That has been the trend. Often, these new supported living houses are located on the same site as the remaining residential care homes or in the same area but with the same organisation running them and the same chief executive. Sometimes, the registered care home manager is not only the care home manager for the residential side but is also the manager for the supported living homes. They are located on the same site, close together and within the same organisation within the same management structure, but the organisation will have two different systems for authorising the provisions of the Act, which will be very confusing for it.

I wonder whether there might be a perverse incentive for adult social care to reverse its previously encouraged trend towards supported living, to reduce its administrative burden and to register more care homes. This seems to be a backwards step when, in times of personalisation, we want to move more people to settings that are not registered care homes, but are more supported and likely to take note of their personal wishes, if that is not too much of a conundrum. It is one of the real puzzles I have been struggling with over the Bill.

The whole ethos of DoLS was that those making the decisions about deprivation of liberty were independent of those providing care to the person, and that independent assessment is an important safeguard. More specifically, the new arrangements raise concerns that a number of stakeholders have pointed to. For example, it can be easier to care for someone by placing more restrictions on their freedom. It is harder to support them in the least restrictive way possible and to maximise their choice and freedom. We know that health and social care professionals are naturally risk-averse and, if there are some possible risks, they will often choose the perceived safer, albeit more restrictive, option over increasing liberty.

I believe the vision, which is great, is to integrate decisions about liberty protection safeguards and deprivation of liberty into care planning. This means that, at the point of making decisions about placement, decisions about restrictions are also considered, with a view to seeking the least restrictive option. This makes sense, but I do not see how this can happen if the care home is making the determination. It is already a done deal that the cared-for person is going to be in that care home. Their care manager will be looking at the arrangements within the care home. They are unlikely to say that the person would be better off and able to have more freedom in a different setting—for example, a supported living setting. There is a bit of a conflict of interest here.

Currently, the care provider feeds into the DoLS assessment, sharing their expertise as a provider. That is a different role and skill set from making decisions about necessity and proportionality. Consulting with relevant people is a different role from being one of those consulted. The assessments are complex and this new role is being placed on care managers who, by definition, have a different skill set. The sector is trying to deliver care for people who, in many cases, have complex needs and require intensive support to live as independently as possible. I am interested to know what conversations the Minister and officials have had with those upon whom this new duty would fall, as I suspect they will have raised many similar concerns.

Perhaps it is worth reflecting on the judgment by Lady Hale in the Cheshire West case. In speaking about the extreme vulnerability of the people concerned, she said:

“They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the deprivation-of-liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us”.


I wonder whether this paperwork exercise for non-objecting people is what she envisaged as an independent check. In his response, I would appreciate the Minister’s view on whether he sees a conflict of interest here and whether he agrees that the assessment should be carried out by someone independent of the care home, and who that should be. I wonder if we need to make more use of service brokers to do the care planning, listen to the person’s wishes and ensure that the decisions made lead to an effective care plan. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I have added my name to that of the noble Baroness. She has succinctly put forward the case for the removal of care home managers from this important position, and at this point, I am very supportive of that. While we debated this issue earlier, I want to come back to a point raised then. The argument was put that we ought not to worry because the local authority remains the body that approves authorisations; it will provide independent scrutiny and oversight. I have already referred to the fact that the impact assessment treats this essentially and mainly as a desktop exercise, but my advice from Professor Lucy Series of Cardiff University is that unless care home managers themselves indicate that an AMCP referral is required, all the responsible body will be able to make the decision on is the information supplied by those care home managers. She states that that is a very weak independent safeguard, and indeed it is when care managers have a financial interest in these decisions. That is why this arrangement simply cannot be allowed to stand.

The other thing I would point out to noble Lords is the evidence I received on Monday from ADASS, the association of Directors of Adult Social Services. Like everyone else, it supports the overall thrust of the Bill—there is no question about that—but it has some concerns relating chiefly to the expectation that care home managers will be responsible for the assessments required to authorise the deprivation of a person’s liberty. It says that it is in discussions with the Care Quality Commission and the Care Provider Alliance, which both have similar concerns. That answers the point raised by noble Lords about where the CQC stands in relation to this. I am not surprised that the CQC has concerns because of the very difficult challenges it faces in the care sector generally. One has to think carefully about whether adding to its responsibilities is the right course of action.

ADASS has stated:

“Whilst registered care providers have previously been required to assess individuals, to determine that they can meet the person’s needs and to undertake care planning, they have not been required to assess to protect people’s liberty. Planning Care and assessing whether deprivation of liberty is in a person’s best interest when they are unable to decide for themselves are very different things. ADASS therefore believe this to be a new activity, requiring new skills and resources. We have real concerns relating to a) care home capacity, b) care home staff competence, c) perverse incentives and potential conflicts of interest, d) additional cost (for training and additional capacity) and e) whether and how such costs will be resourced”.


Noble Lords who know those at ADASS will know that they do not make such statements without very good evidence. The noble Baroness is proposing in her amendment to take out the reference to care managers, and my assumption is that the role of assessing will be restored to the local authority, which of course was in the Law Commission’s original plan. From what I have heard, surely we have to stick to what the Law Commission proposed.

21:15

[Baroness Finlay of Llandaff (CB)]

My Lords, I have listened to the debate and have ended up feeling slightly puzzled. If we are looking at how we improve the quality of life of “P”, what they experience day to day in how they are looked after is what influences that quality of life—in other words, how well the care plan is planned and executed. It cannot be just about the planning phase but about how well it is executed and how that execution of the care plan is monitored, day to day and week by week. In a care home, the person ultimately responsible for care plans has to be the manager because you must have a vertical structure, even though the plans may well be written by staff at a different level. If a person is in supported living, someone will be responsible for overseeing the care and provision in that supported living arrangement by dint of it being supported. Therefore, that must also be planned for and it will not be a care home manager but somebody else overseeing their care.

I can see that there is enormous concern over care homes. We all know that there are some excellent care homes and we have all, sadly, encountered care homes that are not excellent, where one would have concerns about their ability. If we are trying to drive up a person’s experience and quality of life, and make sure that what is done is necessary—because there is no other way of managing them—there need to be restrictions proportionate to the problems that they pose. I add here that we must consult and make every effort to listen to the person. We have that in another set of amendments later.

It may be that our grouping of amendments at this stage is not right because there is so much that interweaves between them. The worry is that if we then say that the people on the ground and the care plan are not the main part of the assessment, we go back to somebody basically helicoptering in, doing an assessment, seeing how they are and going again and leaving approval—that may be for a year—without any pressure to constantly review. Later amendments seek to put pressure on to review whenever the situation changes—to make it a more dynamic situation that really reflects that people deteriorate. Fortunately, some sometimes improve but most of the time you are faced with deterioration.

The other problem is that local authorities are, we know, incredibly short of finance. We know that they already cannot cope with the burden of assessments that they are being asked to carry out. I cannot see how asking them to take back the role and possibly do three assessments rather than six will tackle the problem of the number of people needing to be assessed and thought about being far greater and not matching—I think it never will match—the resources available.

It is easy to say that we need more people to do this but realistically the number of trained and experienced people is just not there. We have to find another way forward. There is a tension because whoever does the assessment may have a conflict of interest, whether about funding the care or receiving the income from the care. Somehow we need a system that improves the quality of life of the person and is subject to scrutiny more often than just on the occasions that the assessment is done initially or when it is reviewed after a fixed time.

I wonder whether a group of us needs to go away, sit down and really try to work this through with worked examples. I should declare that at one of the meetings I had in Wales we used worked examples in different settings. When we started to work through it for supported living arrangements—that was the table I was on—it became easier to see how it could work and how the triggers could work. I am not saying it was a perfect solution. I think the intention of these amendments is superb but I worry that they might not solve the problem.

[Baroness Tyler of Enfield (LD)]

My Lords, I was not going to intervene on this group of amendments but I have listened carefully to all the points that have been put and they have all been absolutely excellent. There is a tension here, as the noble Baroness, Lady Finlay, just said. My main reaction, particularly when I read the letter from ADASS—I shall not read it out again; I have it in front of me—was of real concern. As the noble Lord, Lord Hunt, said, they are not the sort of people who say these things lightly. They do not scaremonger. They do not exaggerate. They make very carefully calculated judgments, as you would expect of people at that level. I read the letter with great concern.

I was equally concerned when I read the briefing, as mentioned earlier, from the Relatives & Residents Association. One phrase really resonated with me, about the association’s great concern that too often we were asking care managers to be judge and jury about decisions in which they were involved. That is how it was expressed. The noble Baroness, Lady Finlay, made some excellent points. We have to find a way through. It would be genuinely helpful if, as in her proposition, there was time to think about those who will be most involved, as they must be, in care planning for these very vulnerable people, and a sufficiently independent element in arrangements so that people feel that care home managers are no longer judge and jury. I do not think we are there yet. I cannot articulate it at the moment but we must work together to secure a slightly different way forward.

[Baroness Barran (Con)]

I echo the appreciation of the noble Baroness, Lady Tyler, of the explanation of the noble Baroness, Lady Finlay, of the choices we face between the care home manager, who in the best cases will know “P” well, and the local authority assessor, who, as was said, might be parachuted in. It underlines the need for the now-familiar new paragraph 17(2) to be well thought-through and implemented. It is clear that the Bill’s intention is for this to be one of the critical safeguards of how this all works in practice, along with the scrutiny role of the responsible authority, which we will no doubt cover in detail.

Amendment 11 in the name of the noble Baroness, Lady Hollins, raises an important point about supported housing and care homes. It raised in my mind a slightly different question, which may have occurred to other noble Lords: do we need more clarity in the Bill on how it applies in domestic settings? For example, when someone who is normally cared for at home is in a care home for a short stay, perhaps because their carer is in hospital, what is the position in the home once the protection of liberty safeguards have been authorised? I wonder whether my noble friend could consider whether there is a need to clarify exactly the role of the safeguards in domestic settings and how they interface with the Care Act and other bits of legislation that would apply in such cases.

[Lord Touhig (Lab)]

My Lords, I am very pleased to follow the noble Baroness. I think she made her maiden speech at Second Reading; it was an important contribution. She has sat through this debate and made a few important points. We certainly welcome her and look forward to further remarks from her as we proceed with our considerations.

I support the amendment in the name of the noble Baroness, Lady Hollins, addressing as it does concerns expressed by me and other noble Lords at Second Reading. The Bill provides a different route of authorisation for a deprivation of liberty when a cared-for person lives in a care home. In this circumstance, it places a new duty on care home managers to carry out the assessments and consultation prior to authorisation. I echo the noble Baroness’s concerns that this creates a conflict of interest. We have already considered some of these aspects earlier but none of us needs make any apology for coming back to it because it is so very important. Care home managers will have an important insight into an individual’s needs and they should be included as a source of information, but a responsibility to carry out the assessment requires more than simply providing information. It is a different skill set from their expertise as a provider.

Furthermore, care home managers are not independent and although they are not responsible for granting the overall authorisation, the contents of those assessments will be key to local authorities’ overall determination. This is particularly important where there are concerns about weaknesses in the pre-authorisation review outlined in Clause 18. That clause does not, as drafted, secure the independence of the person carrying out the review. It does not ensure that a rigorous review is carried out. As it stands, it risks the pre-authorisation review. The overwhelming majority of care home managers would undertake their duties honestly and assiduously.

However, we have to face facts. This Bill, as drafted, leaves the door open for a dishonest assessment, and we have to speak plainly about it. That should concern this Committee as we are debating the system of legally depriving some of the most vulnerable people of our society of their liberty—nothing can be important than that. Furthermore, it is unclear what assessment the Government have made of the burden this would place on the care home managers. This will account for more of their time, which is scarce in any event. It will also add new complexities to their role; perhaps the Minister might want to further tell us how the Government envisage a proper training programme and what resources will go alongside it to allow them to perform these new duties.

The concerns I have outlined are widely held. They have been expressed not just by me but also by a number of charities. It should be noted that the amendment before us has the support of the National Autistic Society, of which I am a vice-president, Age UK, the Alzheimer’s Society, the British Institute of Human Rights, Liberty, Mind, Rethink Mental Illness, the Royal Mencap Society, Sense, and VoiceAbility —we could go on. They have also been expressed by the Law Society. Those concerns are also held by professionals.

A survey carried out on the Government’s proposals by Community Care and Edge Training & Consultancy asked professionals whether they agree with the proposals that care home managers would carry out assessments. An overwhelming majority—86%—disagreed. My goodness, we could have those votes in some elections. It is certainly a very powerful message. That question also provoked the highest number of written comments and these are relevant to our debate. One said: “This is the most obvious concern with the new proposals: there is a direct conflict of interest with the provider”. Another said: “Where is the independent viewpoint?” A third said: “This process will be a waste of time at all levels if the initial process is not completed thoroughly”.

It is right that we subject this aspect of the Bill to thorough scrutiny. It was not part of the draft Bill produced by the Law Commission and therefore has not been spoken about and debated at length, as have other aspects. It has gathered significant criticism too, and we should be prepared to listen to that criticism. Therefore, the noble Baroness’s amendment strikes a very sensible balance. It ensures the independence of the assessment process, it alleviates some concerns about the independence of the pre-authorisation review, and it also secures the important role of care professionals in providing vital insight into the individual’s needs. I echo the noble Baroness’s requests for the Minister to give us his views on the conflict of interest that arises from this clause, and whether we may instead consider ensuring that any assessment is carried out by someone independent of the care home. This is a very important matter which we will be coming back to a lot, I am sure.

[Lord O'Shaughnessy]

My Lords, I am grateful to the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt, for tabling these amendments and to all noble Lords who have given us the opportunity to explore what is obviously emerging as a critical part of the proposals in the Bill. As noble Lords have said, the amendments would remove the inclusion of care home arrangements from the Bill—that is, the duty of care home managers to arrange the various assessments—and instead substitute a duty on the responsible body to carry out those assessments while involving the care home manager in such cases.

In 2014, this House found that the DoLS process was bureaucratic and overly complex and that is what we are trying to address. We are trying to create a streamlined system that does not—the noble Lord, Lord Touhig, is right to warn that it should not—open the door to dishonest assessment, but rather make sure that everybody gets an appropriate assessment of whether their deprivation of liberty safeguards is in their interests, necessary, proportionate and so on. That is what we are seeking to do. I want to spend a bit of time going into this issue because I think there is a misunderstanding about what is proposed by the Bill.

Under the arrangements in the Bill, in care home cases, the care home manager would be responsible for arranging the assessments for the responsible body—not necessarily carrying out, but arranging; I will come to who carries them out in a moment. This would ensure that existing assessments and assessors who know the person best can be used where appropriate. Noble Lords have asked who will be carrying out these assessments. I will explain that in a moment.

21:30

Under DoLS, as we have been reminded, care homes already play a role in arranging assessments. They identify deprivation of liberty. They notify the relevant local authority. They need to explain the care capacity assessment restrictions and follow least restrictive practice. A best interests assessor then visits and carries out assessments. It is worth noting that in that process, where the best interests assessors are looking at the assessments that have been organised by care home managers, only a very small proportion of those reviews bring about a change in the care of that person. Notwithstanding some of the slightly negative comments that have been made about the capacity of care home managers to organise, not necessarily to carry out, these kinds of assessments, we are confident that, by and large, care homes are getting this process right.

Under the system of safeguards that we are proposing, care home managers will have a duty to arrange the assessments, but in many cases this will be carried out at the care assessment stage—that is critical to early planning—and often by social workers. These will form the basis of assessments carried out by the responsible body. The liberty protection safeguards do not require assessments to be carried out by the care home manager. This may not be the case for some self-funders, but these assessments would still be performed by people with appropriate expertise and knowledge, as required by binding case law.

Who would that be? This is the critical point, which was referred to at the beginning of today’s proceedings by my noble friend Lady Browning. For medical assessments, it would be medical experts, including family GPs, psychiatrists and others—we will come on to discuss that. Capacity assessments would be carried out by nurses, social workers and speech therapists. The necessary and proportionate test would be carried out by exactly the kind of people I have listed, or other suitably experienced and knowledgeable healthcare staff. The point I am trying to make is that the people who are carrying out these assessments may have been commissioned by the care home manager but in the vast majority of cases will not be the care home manager; rather, they will be people with the appropriate skills, knowledge and professional expertise to carry those out properly.

Subsequently, the role of the responsible body will be to ensure the necessary oversight of the system. Of course, the responsible body will be responsible for authorising every single assessment and scrutinising the applications before authorising them. In answer to the noble Lord, Lord Hunt, if there is any reason for an AMCP—an approved mental capacity professional —to believe that there is cause for further investigation, it is not true that only care home managers can give the signal that there ought to be some further investigation. The Bill allows for families, appropriate persons and advocates to be able to raise those kinds of flags outside of, or augmenting, the range of assessments that care home managers organise.

I apologise for dwelling on this at length, but it is important to describe exactly what is proposed. It is not the case, as perhaps might be imagined, that a group of people with official, desk-based jobs will be carrying out the kinds of assessments for which they are not prepared. They will be done by people with suitable expertise. Having said that, it is also important to reflect on the fact that, notwithstanding some of the adverts that the noble Lord, Lord Touhig, read out earlier, there are CQC standards in place for care home managers. They have to pass the fit and proper test. It includes necessary qualifications, competent skills and experience to manage the regulated activity. Registered managers and providers have to provide services which meet fundamental standards as set out in regulations, including those which relate to DoLS or, as we propose, the liberty protection safeguards. I think it has been important—and I hope it has been helpful—to set out exactly what is envisaged.

The noble Baroness, Lady Finlay, makes a good point. We perhaps need to describe better what some of these processes would look like. That is something that the code will do, but it might be an exercise for us to carry out in a couple of weeks so that we can describe better than it has been done—because there is a misunderstanding—how it will work in practice. The risk is otherwise that we just load it all back on the local authority and we would be back where we started, with the assessments in theory being carried out but in practice not being done. That is the role of the care home manager.

Quickly moving on, of course we want sufficient oversight of care home applications. Every application will be considered by a responsible body, including with a pre-authorisation review by somebody completely independent from the care home, and an authorisation can be given only by a responsible body. That is different from what happens in the NHS, which is able to do both assessment and authorisation, albeit it is different bits of an NHS provider. Independence in the system will also be maintained by ensuring that cared-for persons have access to support and representation. There is referral to an AMCP where there is an objection, as the noble Baroness, Lady Finlay, pointed out, and regular reviews as well.

The role of the CQC is to ensure compliance. That is its job in the care home sector. It will continue to do so. It will inspect compliance with the amended Act and take enforcement action where necessary. If it hears through its inspections that somebody is being unlawfully deprived of liberty, there is a range of actions it can take in relation to the care home manager. It is not the case that any dishonest assessments, should they arise—and of course, we are at pains to make sure that they do not—would not result in regulatory action.

I apologise for talking at some length on this topic, but it is clearly a very important one to explore. We need to pursue this route because it does two things: it gets consideration of the deprivation of liberty earlier in care planning and gives a more proportionate system. I also understand that we need to do more work to explain how the system we are proposing secures against conflicts of interest and provides independent oversight and expert input at every step along the way.

[Baroness Hollins]

I asked about the difference between care homes and supported living and just that conflict.

[Lord O’Shaughnessy]

I will briefly come to that. In supported living arrangements, the local authority, the CCG or the local health board would arrange the assessments. It would automatically be that body, as opposed to the supported living provider. I hope that will provide the reassurance the noble Baroness is looking for. It would be the commissioning body in that case.

[Baroness Hollins]

It may be that a lot of the thinking has been done around elderly people and people with dementia as opposed to people with learning disabilities. In the learning disability world, there has been such encouragement towards supported living that they are often within the same organisation, even within the same setting. It seems very strange that you would have a manager who ends up being responsible for a care home, where they have the responsibility, and for supported living, where somebody else has the responsibility.

[Lord O’Shaughnessy]

I am grateful to the noble Baroness for clarifying that. I will seek to understand the implications of the Bill for those cases, and I will make sure that I write to her and all noble Lords with an explanation of what is envisaged.

[Baroness Finlay of Llandaff]

I hope the Minister will forgive me because we are now on an incredibly important part of the Bill. If we can get together and work through it, I wonder whether we need to look at a way that a specific person from the local authority—I gather that it happens in some parts of England and Wales but not everywhere—has a link to different care settings and gets to know them well. We are talking about the people we know about, but the people who are most vulnerable are those we do not know about, who have not been notified into the system. If that person knows a place and the quality of the care there, they may be inclined to have a lighter touch there than on places where there has perhaps been a turnover of staff, a change of management, and so on. They may feel that they want to do some face-to-face assessments to verify the quality of the care being provided—not in the CQC role, but in terms of the care delivered to the person who has impaired capacity.

I put that out there now because I am sure that this debate is being watched and monitored. It might be interesting to see whether we get any feedback on some of the points we have raised during the debate, because so many people have expressed concern and want to know what we are saying.

[Lord O’Shaughnessy]

I shall give just a brief response to that. It is a good idea. The Government think that the proposals for care homes, how they will carry out commission-needs assessments and the process for reviewing and authorising where necessary are a critical part of creating a more proportionate system that does what it says it will do, rather than the current system, which says it will do a whole bunch of things and then does not actually do them. That is where we want to get to.

I am being robust, as it were, in defence of the model. I want to explain—I think noble Lords are enthusiastic about this—how this will work in practice with the kinds of people who are most likely to be in the most difficult situations, so there is a clear understanding of the safeguards that exist to prevent conflicts of interest, provide independent oversight, make sure there is advocacy to support, and so on. It is clearly the case that there is not yet that understanding, and we need it to proceed.

[Baroness Barker]

I thank the Minister for his explanation, which has been very helpful. Over the next few weeks, while he is seeking to give further clarification, I wonder whether it would be possible to explain this. One of the Government’s arguments is that the consideration of deprivation or the safeguarding of liberty should come much earlier in the care planning process. Most care is commissioned, most of it by local authorities. Can the Minister explain—perhaps not now at this late hour—how the commissioning of services will change to reflect the new system?

[Lord O’Shaughnessy]

There is a useful flowchart that exemplifies it and brings it to life. I will make sure that it is shared. I agree that we need to find ways of bringing it to life, and that is something we can do outside this Chamber.

[Baroness Hollins]

My Lords, I am most grateful to the Minister for his reassurance that the care home manager’s responsibility is only to arrange the assessments. The Mental Capacity Act is so important that we have to be sure that we do not make it worse. It is a good Act, and the main problem identified in the Post-legislative Scrutiny Committee was that it was not well understood. It is emerging that the stakeholders are not understanding what is intended. We should be trying to make it easier to understand and operate, not more complicated.

The noble Lord spoke of trying to legislate for a streamlined process. I am rather worried about legislating for some of these matters, and I am beginning to think that some aspects need to be in regulations rather than in the Bill, just to make things as simple as possible, but also amendable without having to come back to primary legislation. I beg leave to withdraw my amendment.

Amendment 11 withdrawn.

Amendments 12 and 13 not moved.

21:45

Amendment 14

Moved by

[Baroness Finlay of Llandaff]

14: Schedule 1, page 10, line 35, at end insert—
“(aa) the information provided by the care home appears to be consistent with either the assessments under paragraph 15 or the care and support plan held by the responsible body,”

[Baroness Finlay of Llandaff]

My Lords, this is really integrally linked. I have been trying to look at what would send a red flag, an alert, to an authorising body that this assessment needed to be looked into in detail and gone through with a degree of rigour—possibly with more time being able to be spent on it than can be spent currently—and that, in commissioning care, the local authority will have a care and support plan that defines what it is commissioning. It should have done a needs assessment and should commission against that and what it expects to be provided. What comes back on those assessments should mirror that care and support plan. What I have tried to do with this amendment is to highlight that, if there is not an almost identikit fit, that should not be given a margin of error but should trigger the need to visit that person and to look in detail at the care plan and its delivery. That might be the first sign that all is not well.

It may be that someone from the local authority visits and finds that the care and support plan, as commissioned, has been altered slightly because the person’s needs or ability to undertake activity have changed. It may be, in the best of circumstances, that something has been put in place that has enhanced the person’s ability to express themselves. I would use the example of music, where it has been found that by providing people’s favourite playlists, some people with really severe dementia are almost “unlocked” by the music—they are able to move in time to the music and their mobility and communication are better. Some people who have been unable to speak, even for years, recover some phrases and then, from that, begin to communicate verbally as well. And of course, we all know of people who appear to not be able to communicate but will then sing along to their favourite song, with all the words coming back again.

The purpose of the amendment is to say that, if there is not a close fit, that should be enough for the local authority to say that it is going to look at that in detail. That was the motivation behind my amendment. I beg to move.

[Lord Touhig]

This is a very small but very important amendment. Having spent 27 years in newspapers and publishing, I constantly came across issues and stories where people were having all sorts of difficulties, public services failed and systems failed because of lack of information. Certainly from my time as a councillor, as an MP and as a Minister, I passionately believe that we must be open and transparent and must share information. That is key to this part of the Bill, and we certainly strongly support the points made by the noble Baroness.

I do not intend to detain the House more than that, other than to say that the noble Baroness, Lady Finlay, may not be aware that, when I was a Wales Office Minister and she was a new Member of this House, she terrified my officials. They would come in and say, “Minister, it’s that Baroness Finlay again; she wants information on so and so”. She is pursuing her quest for information even today, which I think is very important and valuable. We strongly support her efforts in this area.

[Lord O'Shaughnessy]

I am grateful to the noble Baroness for tabling this amendment and to the noble Lord, Lord Touhig, for endorsing it. I will not detain the House other than to say that, clearly, the intention to make sure that there is not a discrepancy and, where there is, that there is a flag, is one that we share. We need to be alert to any issues of concern that would warrant further investigation, or indeed referral to an AMCP.

This is something that I think best sits within the code of practice, and I can confirm and commit that instructions along these lines will form part of the code of practice, as well as many other examples of where an authorising body should be seeing signs of concern. I am grateful for the opportunity to confirm that, and I hope that reassures everyone.

[Baroness Finlay of Llandaff]

I am grateful to the Minister and to the noble Lord, Lord Touhig, for his remarks in support—including his humorous ones. On the basis of that, I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

House resumed.

House adjourned at 9.51 pm.