Mental Capacity (Amendment) Bill [ Lords ] (Fifth sitting)
(5 years, 11 months ago)
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The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Chair
Welcome back, everyone. Can we all make sure our phones are on silent?
Schedule 1
Schedule to be inserted as Schedule AA1 to the Mental Capacity Act 2005
Amendment proposed: 27, in schedule 1, page 18, line 31, leave out paragraph 30(b).—(Barbara Keeley.)
This amendment makes provision for the responsible body to take on all functions relating to renewal of deprivation of liberty in cases relating to care homes.
Question put, That the amendment be made.
Barbara Keeley (Worsley and Eccles South) (Lab)
I beg to move amendment 45, in schedule 1, page 19, line 34, at end insert—
“(2) In varying an authorisation, the responsible body may also consider—
(a) whether the cared-for person’s capacity is likely to fluctuate, and
(b) whether any restrictions imposed are necessary to prevent harm to the cared-for person and proportionate to the likelihood of that harm, and are likely to continue to be necessary for the duration of the authorisation.”
This amendment enhances safeguards around the variation of conditions by the responsible body. It indicates that the responsible body should consider whether the person’s capacity may fluctuate, and whether the restrictions which are proposed should be in place for the duration of the authorisation.
It is a pleasure to speak under your chairmanship again, Mr Austin. At least we do not have a boiling hot room to contend with.
The amendment deals with the way fluctuating conditions are addressed under the liberty protection safeguards system. The concept of fluctuating capacity is not expressly addressed or provided for in the Mental Capacity Act 2005, including the deprivation of liberty safeguards. The Mental Capacity Act code of practice recognises the steps that should be taken to support a person with fluctuating capacity to take their own decisions—choosing the time of day at which they are most alert, for instance. However, it does not indicate what should happen where an assessment is required of a person’s ability to make decisions on an ongoing basis about a particular matter. As such, the Law Commission did not consult on fluctuating capacity. However, when it launched its consultation, it received a large number of submissions on the topic.
It is clear that individuals with fluctuating capacity represent a major challenge under the current system. That is unsurprising, as capacity to consent is not a black and white issue. Everyone has varying capacity from day to day and from issue to issue. It is not reasonable to categorise people as entirely having or lacking capacity in all cases. My hon. Friend the Member for Dewsbury gave an example of how that can go wrong in practice.
Our amendment 32 would have required an assessment to be made of whether a cared-for person’s capacity was likely to fluctuate. That would have laid the ground for our amendment 45, which would allow the responsible body to take account of fluctuating conditions in varying an authorisation.
Under the current system, a deprivation of liberty safeguard must be terminated if a person regains the capacity to consent; the Mental Capacity Act makes no mention of what should happen if a person is likely to regain capacity only for a short period. That is not changed in the Bill. Under paragraph 26 of new schedule AA1, the authorisation will end if
“the responsible body believes or ought reasonably to suspect that any of the authorisation conditions are not met.”
That includes the person regaining capacity for any length of time.
There are two ways the issue can be dealt with. The first is that a new authorisation will have to be sought every time someone regains and then loses capacity, but that would dramatically increase the number of applications made. It would place more pressure on approved mental capacity professionals and on the cared-for person, who would be undergoing regular identical assessments. I understand that one aim of the Bill, as we have discussed, is to reduce the backlog of applications for deprivation of liberty. Requiring regular repeated applications for the same individual would not help to achieve that.
The second outcome is that the liberty protection safeguards will not be used properly. For example, in the case of older people with dementia whose condition fluctuates, such assessment might need to be hourly. It would simply not be practical to reapply for an authorisation every time they lost the capacity to consent. A person cannot give advance consent to be deprived of their liberty, so either they will be inappropriately deprived of their liberty through a blanket application or they will not receive the safeguards in the system because no application will ever be made. I reiterate that it does not matter, under the current system, whether a person is perfectly happy with arrangements when they have capacity. The moment that they no longer have capacity to consent, that consent is invalid. They cannot consent to any future arrangements.
Both outcomes leave responsible bodies potentially liable for breaching people’s rights under article 5 of the European convention on human rights. The Law Commission report states:
“it is not acceptable for the legislative framework simply to ignore fluctuating capacity. That exposes health and social care professionals and those authorising a deprivation of liberty to significant legal risk. It is therefore vital that the Liberty Protection Safeguards provide for fluctuating capacity expressly.”
However, the Bill the Government have brought forward makes no provision for fluctuating capacity. Our amendment is aimed at addressing that.
Amendment 45 would allow the responsible body to consider whether the arrangements it is authorising need to be in place for the entire duration of the authorisation it is granting. That would allow authorisations to be granted with specific provision for the arrangements to be suspended while a person has regained capacity. We will return later to what deprivation of liberty means, but that is relevant here. It may be that while someone has capacity, they are free to come and go as they please, with no supervision. But when they do not have capacity, they must be accompanied at all times for their own safety. There is no need for arrangements to require that they be accompanied at all times, regardless of their capacity. Instead, it should depend on their condition on a given day.
This comes back to the amendment moved by my hon. Friend the Member for Birmingham, Selly Oak. In it, he called for arrangements to be authorised only if there were no less restrictive alternatives available. If care providers treat capacity as something that, once lost, remains lost, people will inevitably be subject to unnecessarily restrictive arrangements—not all the time, but for the periods when they have regained capacity. That approach also fails to recognise that people’s capacity can vary without crossing the legal line in the sand. There will be days when someone with dementia can, with a certain amount of support, make the decision that they want to go out for coffee with an old friend, but it may be that, because they cannot make such a decision normally, there is no provision in the arrangements for them to go out. I am sure that the Minister would agree that we do not want over-zealous care managers, concerned about the danger of litigation, to end up unduly restricting a person’s liberty purely because they are treating capacity as a constant. Instead, we must establish a system that recognises the way capacity changes and what that can mean for the cared-for person, and that system should be described in the Bill.
The current system deals with fluctuating capacity through the code of practice. I will be concerned if the Minister says in her response that the Government mean that to continue to be the case. The Law Commission was clear, in its assessment of this legislation, that the code of practice was simply not an appropriate place to deal with this issue. I remind the Minister of the Law Commission’s comment that
“it is not acceptable for the legislative framework simply to ignore fluctuating capacity.”
Bringing individuals with fluctuating conditions within the scope of the Bill would not require them to be deprived of their liberty when that was not appropriate. An authorisation is not an order or injunction to detain the person, and professional discretion should of course be exercised—for example, as to when to take or not take steps to ensure that the person is not allowed to leave, or to bring about their return if they do leave.
Will the Minister cast her mind back to 14 March 2018, the day she published the Government’s response to the Law Commission review of the Mental Capacity Act 2005? On page 6 of the response, she accepted the Law Commission’s recommendations about fluctuating capacity. I should like her to clarify why she accepted them if she had no intention of taking on board the commission’s advice that they be contained in the statutory framework.
The amendment would require a consultation to be carried out before arrangements can be varied to account for fluctuating conditions. In some cases, where capacity fluctuates for short periods, that would be an onerous requirement, but it would also mean arrangements could not be made more restrictive when that might not be appropriate. The amendment does not go as far as the Law Commission wanted to on this topic, so it could be seen as a compromise.
In its draft Bill, the Law Commission set out provision for people to consent in advance of being deprived of their liberty. That would have meant that a cohort of people with degenerative conditions, who foresaw the requirement to deprive them of their liberty, would be removed from the system altogether. The Law Commission also said that
“the giving of consent should generally be regarded as an ongoing state of mind which is required in order for a confinement not to amount to a deprivation of liberty. There will be some who will lack capacity to give such consent for such a substantial proportion of the period covered by the proposed authorisation, and regain it for such brief periods, that it is right to regard them as, overall, lacking capacity to give or withhold consent to the arrangements.”
That is in line with the provisions in the current code of practice. It would codify them in statute, ensuring that the group in question would be adequately covered by the liberty protection safeguards. I do not understand why the Government have not yet taken those suggestions on board. They would ensure that people whose conditions fluctuate are properly dealt with by the new liberty protection safeguards, and close up one of the most glaring holes in the current Act. It seems clear that detaining someone while they have capacity would, at the moment, be a breach of the Act. We need real amendments to the Bill to make sense of the system, rather than yet more promises about a code of practice that we have not yet seen. I acknowledge that the Minister has sent us a list of its contents—but that is not the code of practice.
The Minister for Care (Caroline Dinenage)
It is a great pleasure, once again, to serve under your chairmanship, Mr Austin.
I thank hon. Members for raising an important point. We agree that the likelihood of fluctuating capacity should be addressed by the mental capacity assessment. We also expect fluctuating capacity to be considered when the responsible body is deciding to give an authorisation and setting the length of authorisation and frequency of reviews.
I think I set out in my comments on amendment 32 that I am tempted by some of the hon. Lady’s suggestions. However, they do not quite encapsulate the “What then?” of the issue: fluctuating capacity should be considered, but what then? That is why I have concerns. Fluctuating capacity is a complex, fact-specific matter that deserves in-depth, detailed guidance. That is why we will include details of it in the code of practice. We consider that a much better way, allowing examples and real guidance to be set out. That will include the issue of where a person with fluctuating capacity meets or does not meet the authorisation condition of lacking capacity to consent to the arrangements, and whether the authorisation continues in force or ceases to have effect.
The backdrop to the matter is the fact that courts have been considering whether decision makers can take a long-term view in some cases of fluctuating capacity. We expect a judgment from the Court of Appeal soon, in the case of Royal Borough of Greenwich v. CDM. Hopefully, that will give legal guidance on how decision makers should deal with fluctuating capacity. That, of course, will be reflected in the code.
With those assurances in mind, I hope the hon. Lady will feel able to withdraw the amendment.
Barbara Keeley
The Minister says she is tempted by the amendment. It is about time, because she accepted the recommendations when she accepted the Law Commission’s report, and I have even read out the date when she did that. The Law Commission was clear in saying that fluctuating capacity is not something that can be dealt with adequately in the code of practice.
Despite the Minister’s having said that she would accept the recommendations, the Government have made no attempt to deal with fluctuating conditions on the face of the Bill. There is a real danger that breaches of the Act will be encouraged because responsible bodies and care practitioners have no proper avenue to pursue if a cared-for person has a fluctuating condition. It is open to the Minister to move an amendment on Report, but we will be putting our amendment to a vote this morning.
Question put, That the amendment be made.
Barbara Keeley
I beg to move amendment 46, in schedule 1, page 21, line 42, leave out sub-paragraphs (1) and (2), and insert—
“39 (1) The responsible body must take all reasonable steps to appoint an IMCA to represent and support the cared-for person if—
(a) sub-paragraph (2) provides that an IMCA should be appointed, and
(b) sub-paragraph (6) does not apply.
(2) An IMCA should be appointed if—
(a) the cared-for person makes a request to the supervisory body to instruct an IMCA;
(b) there is no appropriate person to represent and support the cared-for person;
(c) the cared-for person is 16 or 17 years old;
(d) there is an appropriate person to support and represent the cared-for person in relation to this Schedule and they make a request to the supervisory body to instruct an IMCA; or
(e) there is reason to believe that the appropriate person would be unwilling or unable to assist the person in understanding or exercising the relevant rights under this Schedule without the support of an IMCA.
(3) A person is not an appropriate person to represent and support the cared-for person unless the responsible body is satisfied that the person—
(a) is a suitable person to represent and support the cared-for person;
(b) consents to representing and supporting the cared-for person;
(c) will maintain contact with the cared-for person;
(d) will represent and support the cared-for person in matters relating to or connected with this Schedule; and
(e) is not engaged in providing care or treatment for the cared for person in a professional capacity.
(4) A person is not an appropriate person if there is reason to believe that the cared-for person does not wish, or would not wish, to be supported and represented by the proposed appropriate person.
(5) The ‘relevant rights’ under this Schedule include—
(a) rights to request a review by an Approved Mental Capacity Professional;
(b) rights to request a review under paragraph 35;
(c) rights to information about the authorisation, assessments and its effects;
(d) rights to apply to the Court of Protection under s21ZA.
(6) An IMCA should not be appointed if—
(a) there is reason to believe that the cared-for person does not wish to be supported by an IMCA; and
(b) there is reason to believe that the cared-for person does not wish to exercise rights to apply to the Court of Protection under s21ZA.
(7) The responsible body must keep under review whether an appropriate person is undertaking their functions. If the responsible body finds that the appropriate person no longer fulfils the required functions, the responsible body must appoint another appropriate person or IMCA.”
This amendment would amend the requirements for an IMCA to be appointed, so that advocacy is the default position. It also makes provision for appropriate persons to be appointed subject to certain conditions relating to how they discharge their role.
Throughout the proceedings on the Bill, we have talked about the rights of the cared-for person and the protection that must be put in place to prevent inappropriate deprivation of liberty. In reality, many people who have suffered under the Mental Capacity Act will not be able to act on those rights. Instead, they require support and assistance from somebody else. Without that support, there is a real chance that somebody will be deprived of their rights, simply because they do not know what their rights are or how to enact them.
Before we discuss the amendment in depth, I will give the Committee some examples of why advocacy is so important to a person subject to the Act. The first is the case of Mrs L, a 67-year-old woman with Korsakoff syndrome who was placed in a care home on a temporary basis following a hospital stay as this was the only place she could receive appropriate support in the short term. A decision was needed as to whether Mrs L was to remain at the current care home long term or whether efforts would be made to return her home. There was a possibility that Mrs L could return to her own home if her legs improved sufficiently. She seemed happy to be at the current care home, but she kept asking when she could go home. Professionals were inclined to recommend that Mrs L was kept in the care home in the long term.
Mrs L was given the support of an independent mental capacity advocate at this point. The IMCA worked to understand what was the least restrictive option available to support Mrs L. As part of that, the IMCA requested an reassessment of Mrs L’s capacity to make decisions on the matter, as she was clearly expressing a preference to return home. Without the intervention of an IMCA before a deprivation of liberty authorisation was applied for, Mrs L may have been kept in the care home against her wishes.
James Morris (Halesowen and Rowley Regis) (Con)
The hon. Lady is laying out an interesting case. I wanted to ask a quick question about the amendment. Proposed sub-paragraph (2)(e) states that
“there is reason to believe that the appropriate person would be unwilling”
and proposed sub-paragraph (7) states:
“The responsible body must keep under review”.
I wonder how she envisages that process working in practice. What would the review process be that the responsible body would undertake to determine whether they thought an appropriate person was capable of undertaking their functions? It sounds a bit like a procedure where somebody has power of attorney, which then has to be frequently reviewed. How does she envisage that process working?
Barbara Keeley
Obviously, it is an extensive amendment. There are two issues, and I will go on in a moment to talk about how important it is to keep in contact with the cared-for person. It is clear to anybody who knows anything about care homes, or independent hospitals in particular, that some people end up without visitors and without having contact with anybody. The Bill allows renewal periods of three years. We can envisage a situation, given the examples I have given, where a cared-for person is hundreds of miles away from their family. In the example I gave of Sam, the family were not in contact due to the distance of travel.
With regard to review, a responsible body would keep an eye on the situation of a person who never receives any visits or contact. In those situations, it really is up to the care home, the independent hospital or the hospital. Those are the most vulnerable people. The amendment says that it should be a person’s right and the default to have an advocate. It is a matter of how to get the mechanism working towards that. The idea of a review is that the responsible body should be looking out for people who have had no contact with anybody else.
My next example is a powerful one. It was supplied by POhWER, an organisation that provides advocates to people who do not have anyone else to support them. POhWER’s advocate had been visiting an older lady in her care home for a few months. He described his work with her as follows:
“This was supposed to be a two-monthly visit but I felt monthly visits were more appropriate. I carried out mainly unannounced visits due to some of my concerns…
She had been living within the home for over a year. When speaking to the client, she wasn’t really aware where she was living and either referred to it as a temporary placement or a hospital. She didn’t state any unhappiness within the placement, but visually there appeared to be some neglect. There was inconsistency in the way she was described by staff and her documentation was also unclear…
After a few visits I noted her clothes were not appropriate for her skin condition. I was significantly alarmed by her swollen weeping legs and tight trousers that were wet from the fluid. I raised this with the managers immediately. She was then dressed in appropriate clothes. They spoke about the client having choice about what she wants to wear. I explained issues with her statement and the difference between choice and best interests for someone who lacks capacity and for someone who is not aware of the risk.
I asked them to identify this in various care plans, but there was nothing suitable in place…
My following visit saw some changes and this was now reflected in paperwork, but when speaking to the nurse in charge she wasn’t aware of the protocol in place. The client was in a better condition than in my previous visits which was comforting to see. Again I fed back to management about the communication in the team being unclear and was assured by the care home management this would be addressed.
I carried out another unannounced visit and saw my client in a nightie with blood stains. I had seen her legs which looked in extremely poor condition. I asked staff and management how her skin on her legs was and was informed there were no issues and they were following the protocols in place.
My client’s legs were weeping and covered in blood stains. I reported this to the managers of the home. This was also highlighted in my email and reported to the supervisory body and I was advised to contact the safeguarding team.
All my details and findings were reported to the safeguarding team and to the quality standards team. Since the involvement of the safeguarding team my client no longer resides at the home, has changed accommodation and is enjoying living there.”
The only reason the advocate was able to pick up on the poor treatment being received by the cared-for person in that case was because they visited her several times over the course of several months. Had they been involved solely with the authorisation process but then not visited until a scheduled review or renewal, which, as I mentioned earlier, might be three years later, it seems unlikely that the multitude of errors documented would have been seen. Ultimately, that would have led to the cared-for person receiving a much lower standard of care. That is why we want to see an appropriate person or advocate who will keep in touch with the cared-for person, and support to do that should be provided if it is needed.
Paragraph 39(5), which is proposed by the amendment, outlines some of the rights that the IMCA or the appropriate person should support the cared-for person to understand and exercise. I hope that the code of practice sets out in more detail the way in which IMCAs or appropriate persons should carry out their role, but we feel that the rights outlined in proposed sub-paragraph (5) are the most important for the cared-for person to understand. They include the ability to trigger an independent review of the application or authorisation, and I believe that they should be in the Bill. We have not seen the code—we have seen a list of what is going to be in the code—and we have not seen the guidance that will be issued to IMCAs. In the absence of those, we want to ensure that certain key rights are protected in the legislation.
Mr Tanmanjeet Singh Dhesi (Slough) (Lab)
It is a pleasure to serve under your chairmanship, Mr Austin.
I rise to support my hon. Friend the Member for Worsley and Eccles South and to state that advocates are extremely important. They should be provided by default, with cared-for persons having the right to decline such representation if they wish. To illustrate my point, I will refer to a case study from POhWER, an organisation that provides advocacy support. Its advocate supported a cared-for person to go to court and stopped the local authority’s attempts to sell his home. Thankfully, the client then returned home.
The disconcerting scenario is as follows. The POhWER advocate, or the relevant person’s paid representative, visited a client in a care home where he was able to state that he did not want to be there, and wanted to go back to his own home. A discussion took place about requesting a review, accessing the court or liaising with a social worker. There were no conditions attached to the DoLS, but there was a lot of evidence and many statements confirming that the client did not want to be in the care home.
The cared-for person asked his advocate to have a chat with the social worker initially. The advocate contacted them to discover that although the client had not been in the placement for a long period, the local authority had placed his home on the market with the intention of funding his placement with the proceeds. That is an absolutely ridiculous scenario. It could happen to anyone here: unbeknown to us, the local authority could, without advocacy support, place our house on the market to fund a care placement with the proceeds of its sale. The client had no knowledge of this and there was no evidence at all that he had been consulted. He was very upset and wished to access court.
The court process determined that the cared-for person had substantial personal funds and a home that could easily be adapted for any mobility issues, with numerous bedrooms for live-in staff, whom he could afford to pay for himself. Thankfully, the judge ruled that he was to return home, in line with his wishes, given that he would have chosen that for himself if he had had full capacity to do so. Before the client moved back home, the new social worker who was appointed involved him in selecting the carers, who would live with him on rotation, and he had trial visits including some overnights. The return home was successful and the DoLS ended.
I hope that that example illustrates to the Minister and to Committee members that, without advocate intervention, the cared-for person’s home would have been sold without his knowledge, and his wishes and feelings would have been completely discarded and ignored. That is why it is very important that advocacy should be there by default.
Dr Paul Williams (Stockton South) (Lab)
It is a pleasure to serve under your chairmanship again, Mr Austin.
Like other hon. Members, I would like to share some cases to do with the issue of appropriate advocacy. Briefly, I will describe a simple intervention by an advocate who challenged assumptions made by care home staff and improved the quality of life of a person living with dementia. A relevant person’s paid representative was appointed for a woman who, it was reported, had been financially abused by her child following her diagnosis of dementia. She had been placed in a care home by the local authority because of safeguarding concerns.
Visits from the RPPR identified that the woman appeared to be happier now that she was not subject to the conduct and behaviour of her child. However, she had none of her own clothes, photographs or personal artefacts with her. When she was asked about that, she said that that made her feel sad. The RPPR made representations and said that if she had those possessions, she might be happier. Contact was made with her child. The intervention resulted in her child bringing items of clothing and photographs to the care home and also having some supervised contact with her mother. The woman told the representative that she was happy for that to continue.
The care home staff had initially provided information that the woman was content and did not need anything further, but the difference in her demeanour when she was wearing her own clothing and surrounded by personal artefacts was remarkable. She even wrote a note to her advocate, thanking her for supporting her and helping to get her child back in her life. Later on, her child wished to take her out of the care home, but the RPPR listened to the woman, who said she wanted to stay where she was, and supported her to make the decision to remain where she felt safe and comfortable.
That case illustrates why appropriate advocacy must be available to all who need it. The new legislation must ensure the right of the person to object to and challenge arrangements if they wish and to have the support and representation to do so. Support from an IMCA should not depend on a person’s best interests, as defined by other people. It should be a right that everyone is able to access an advocate, and people can then choose to opt out. That would improve the Bill by offering clarity to the cared-for person and the responsible body. I am happy to support the amendment.
Steve McCabe (Birmingham, Selly Oak) (Lab)
I, too, want to support amendment 46. I would like to draw on a case study that has been provided by the organisation POhWER, which concerns an arranged marriage. I wish to draw the Committee’s attention to it because this occurs in the Birmingham area with remarkable frequency.
The case concerns a young woman who, for the purposes of the debate, I will call Layla. The authorities were contacted by her sister and advised that she was about to be taken to the airport and flown overseas for an arranged marriage. Her sister was extremely concerned that Layla did not understand what was happening and did not have the capacity to consent to sexual relations—many similar cases have been reported in the press. Having been alerted, the authorities decided on this occasion to step in, and Layla was given an emergency placement with a deprivation of liberty order while the matter was properly investigated. Following that, POhWER arranged for an advocate to be made available.
As the shadow Minister said, this is about the level of contact, because details are sometimes revealed during subsequent visits or after some time. During the advocate’s initial visit things seemed fairly straightforward, and the young woman did not express anxiety about being detained at the care home. She did not say she was unhappy, and there was no reason to suppose there was any great problem. During subsequent visits, however, it became clear that she was very bored and isolated, largely because most of the other residents were elderly, and although she was safe, she was in quite an inappropriate place.
The other day I spoke to a friend in Birmingham who works at a care home, and she told me a remarkably similar story. Because of the pressure on places and funding, it is not always possible for people—particularly if placed as a result of an emergency situation—to be given an ideal placement. It is therefore common for people to find themselves in a place that is safe, but that most of us might regard as not that appropriate in terms of its potential to allow them to improve or develop.
On this occasion, the advocate made representations to social services about the young woman’s ability to access a college place. Again, that request was initially ignored—throughout the Bill, we have spoken about the pressure on various authorities and the danger that if someone subject to a detention order is regarded as being in a safe place, attention will switch to the next emergency or crisis. By pursuing advocacy, we will ensure that we do not stop at that point and that we continue thinking about what is best for the person involved and what will improve their chances.
The advocate continued to make representations, and eventually the conditions of the DoL order were changed to require the young woman to be able to access a college place. As a consequence, she made phenomenally rapid progress and learned to read and write. She became better able to comment on what had happened with her family and to understand the nature of the arrangements under the DoL order. The end point of this was that, at a subsequent assessment and review, she was judged to have sufficient capacity to live independently by herself with minimal support, and she went on to gain paid employment.
Alex Cunningham (Stockton North) (Lab)
It is a pleasure to see you in the Chair again, Mr Austin.
As I reflect on what my hon. Friend the Member for Birmingham, Selly Oak was saying, I recollect that we were getting stories some years ago about people—possibly like that young person—who were suffering the fate that could have befallen her. In some cases, their only crime—the only thing they had ever done wrong—was to get pregnant; they were locked away in what, in those days, were called “mental institutions” because they got pregnant. We heard story after story, not so many years ago, of people coming out of those places having lived 30 or 40 years there, when there had been no mental capacity issues or anything like that at all—just something way back in their past. If people in that situation had had an advocate, we might never have had that situation or heard those stories of people being deprived of their liberty, particularly unlawfully, for decades.
To illustrate the case for this amendment—if my hon. Friend’s story does not do so—I want to use real-life examples provided by the advocacy provider POhWER, to which I am grateful. Imagine someone is in a care home; their same-sex partner of more than 30 years has passed away, but the care home staff have denied them the right to look at photographs of their partner, because the relationship they enjoyed over all those years went against God’s will. The staff are depriving that person of their liberty, unauthorised. The person is experiencing homophobia, and they are distressed, as they are not allowed to look at photographs of the person they spent their life loving. In time, however, they get an advocate; their distress is clear to the advocate, yet they smile and laugh when, at last, they are handed a photograph of their late partner. Situations such as that have happened, and are still happening.
Another case in the same care home centred on a cared-for person being prevented from attending the local mosque, because the care home manager, for some bizarre reason, felt the weekly visit from a Christian priest was sufficient to meet everyone’s religious needs. Having seen them operate in hospitals and all manner of places, I know that good priests, rabbis, imams or other religious leaders visiting care homes or hospitals do not discriminate; they will speak to anyone and spend time with them. They do that because their faith is driven by compassion and care, and they have a genuine desire to minister to people regardless of their faith, or even if they do not have a faith at all. However, that is no reason for a person to be denied the right to attend the building that serves them in their faith, but that, too, happened in this care home.
A one-size-fits-all arrangement across the wide range of services provided in a care home is not sufficient, and it certainly does not work with faith and sexuality. The people in those examples were helped in their respective plights, thanks to an advocate—someone who could help to put matters right, who ensured those people had what they needed and who, perhaps more importantly, had the capacity, skills and knowledge to point out the rights of the person in care and to make the point that the actions I described are discriminatory and could be unlawful.
Last week, the Minister rightly spoke in praise of care home managers, and I have made it clear that I believe the vast majority do a good job and are genuine carers. But they too are ingrained; they are stuck in the day-to-day running of their care home, and we cannot expect them to function as an assessor, an advocate or anybody independent whom a cared-for person needs. Even if they did have that responsibility, that would have failed to protect the two people in the two examples I gave.
The default position in the Bill should be that every person gets an advocate unless they actively refuse one after they have been given one. As I and others said earlier, it should be an opt-out rather than an opt-in—my hon. Friends have covered that in some detail. It is much better for a person to decide that they do not want an advocate than for them to be unfairly treated because they did not have anybody to speak up for them.
I agree with Mencap, which argued:
“The new scheme must ensure the right of the person to object to and challenge arrangements if they wish, and have the support and representation to do so”.
If the person in the case I spoke about at the start of this speech had had the support and representation to challenge arrangements, she may not have been so distressed because she was denied access to photographs of her partner. She may have had a better emotional quality of life and, leading from that, probably a healthier physical life as well. Instead, she was let down by care home staff, and her rights to express her sexuality were denied. She was denied her liberty.
Age UK has also backed this amendment, saying:
“Support from Independent Mental Capacity Advocates should not depend on a person’s ‘best interests’ as it is currently drafted in the Bill. Instead everyone should be able to access an advocate and a person who chooses not be represented can then opt out.”
James Morris
Obviously, everyone would agree that having advocates is a good idea, but I want to press the hon. Gentleman on the point about the circumstances where there might be a need for a best interest test before an advocate is appointed. Does he accept that the number may be limited, but there may be circumstances in which the particular condition of an individual—the nature of their condition—might mean that their having an advocate might not be appropriate?
Alex Cunningham
I understand the hon. Gentleman’s point. Unfortunately, we have to cover everybody with an amendment such as this, otherwise we end up with exclusions left, right and centre. We cannot afford to have exclusions. If an advocate is in place, there is no additional problem associated with that. At least the person has some chance of representation.
Steve McCabe
I think the Minister covered the point made by the hon. Member for Halesowen and Rowley Regis when she cited the small number of situations she thought could be distressing or problematic—I presume that is what the hon. Gentleman was thinking about. That is exactly the sort of thing that the code of practice is supposed to cover. Is that not exactly what we would expect? On the one hand, the Bill clearly legislates in broad terms for what is and is not acceptable, and on the other hand, the code of practice gives the back-up information for professionals, so that they can recognise the sort of situation to which the hon. Gentleman refers.
Alex Cunningham
That is most certainly the case. I go back to my Second Reading speech. This is about the individual. This is about one of the most serious things we can do as a nation to somebody—take away their liberty. We should do anything and everything we can do to ensure that they have every single piece of support before that decision is taken, effectively, to lock them up. I agree with my hon. Friend.
I was quoting Age UK, which believes that everybody should have access to an advocate and that a person who chooses not be represented can then opt out. The quote continues:
“This will greatly improve the Bill and give clarity to the cared for person and the responsible body.”
Mencap believes, as I do, that independent advocacy is vital to help vulnerable people to understand and exercise their rights under the law. We have had several examples of that this morning.
Rethink Mental Illness is also on board with the amendment. I appeal to the Minister to provide an opt-out approach, which would greatly improve this Bill, as others have said, and give clarity to service users and providers.
I mentioned care home managers, but the risk of independent hospitals being responsible for assessments is another concern about the Bill, and as we said the other day, we hope the Minister will ramp up the assurances in this area. I have another real-life example for her. A man was held in hospital for almost a year—with no advocate for 10 months. He was angry because he wanted to go back to his two-bedroom home, but the local authority wanted him to move into accommodation with 24-hour support and to not return home. The reason given was that the brother had moved into the spare room at the cared-for person’s home and there had to be a spare room for any overnight carer, should the man return home.
What did the advocate find out by talking to the cared-for person? They found that, when he had been living at home, he had been sleeping in a chair in the lounge while his brother had his room and his carer had the spare bed. Then he had fallen and not been found for two days, as a succession of carers had failed to attend. The cared-for person’s statements were not taken into account by the social worker involved. If they had been, the process might have been very different. The man needed an advocate from day one.
The case eventually went to court, and the judge accepted evidence from the advocate and ordered the cared-for person to be returned home—[Interruption.] Bless you!
Alex Cunningham
The Committee is going to get this example whether it wants it or not. The case went to court, and the judge accepted the evidence and ordered that the cared-for person be returned home and that the sibling be evicted so that the live-in or an overnight carer could be accommodated. The gentleman in question returned home successfully and was later assessed as having regained capacity.
That is the power of an advocate, and it proves the necessity of an advocate in all cases, so I hope that the Minister takes these comments on board and ensures that she helps to enhance the quality of life for vulnerable people by including this amendment in the Bill. It would probably also ensure that she plays an important role in getting people who can be supported in the community the right result for their lives, rather than their being effectively locked up in a place where they do not want to be.
Alex Norris (Nottingham North) (Lab/Co-op)
It is a pleasure to follow so many colleagues making so many eloquent points about just how important advocacy is. I think that all of us in this room recognise that. An individual up against powerful organisations, across all sectors, is in a very uneven power relationship. If we then add in perhaps a lack of knowledge of how systems and services work, they might need support. Certainly, when they do not have capacity either, there is a clear need for some sort of support.
Sometimes we might read, whether in our postbags or online, that we in this place do not get it on an issue. On this issue, we definitely get it, because every day all of us at some point are battling the local council, the health service or the Home Office—that feels like a regular one—in advocating, as Members of Parliament, for people who do not know the system the way we do. They might look at something and think, in a natural justice way, “Hey, this isn’t right” or “I’m not happy about this,” and we provide extra support and learned knowledge to try to help them through that.
We do get it, and I hope that we can layer that into this very important legislation. We know the sensitivities of the individuals we are talking about. The whole purpose of the Bill, of our being here for the third day and of the time in the Chamber as well, is to take a system that, at the moment, does not work in terms of system capacity and has in the past created outcomes for people that we would not wish for ourselves, our loved ones or anybody, and to try to get something that does work and is robust. Fundamentally, we would always want to know that, as a result of what is decided by Parliament in this legislation, people living in Nottingham, Bristol or Birmingham, with relatively similar circumstances, would have similar outcomes, irrespective of the fact that the person in Nottingham had an adult child who was very active or even a DoLS specialist and the person in Bristol had no one. We would want, irrespective of those circumstances, that those people got consistent outcomes, because that is what a fair system means.
If we take away advocacy as a default, we get into the fundamental question of whether families, including active families, would even know to know that they could have an advocate. If the quality of the engagement with the responsible authorities is not good, for whatever reason—that has sometimes happened in the past—would the family know that they could ask for an advocate, or that there might have been a best interest assessment and a judgment that, given that the family were around, advocacy was not necessary?
Caroline Dinenage
We are, largely, starting on the same page. We all agree that advocacy is of the utmost importance for the cared-for person. The Bill is clear that everyone has a right to an advocate, whether an appropriate person, an IMCA or, in some cases, both. The Bill sets out clearly that, if no appropriate person is available or able to represent and support a person, the responsible body must take all reasonable steps to appoint an IMCA, if the person has capacity and requests an IMCA and wherever a person lacks capacity, unless in very rare cases it is not in their best interest, as my hon. Friend the Member for Halesowen and Rowley Regis mentioned.
I thank hon. Members for recognising in the amendment the wishes of the cared-for person as a condition for appointment, as we would not wish to force advocacy on anyone. The Bill already allows an appropriate person to request the support of an IMCA. However, I am concerned about the way in which that best interest has been discussed today. Best interest is the standard that governs decision making under the MCA. I am concerned that the Opposition are disregarding that in relation to IMCAs. I apologise if I have misinterpreted what hon. Members have said. The core aspect of best interest is the person’s wishes and feelings. That has to be the primary consideration when it comes to rights and IMCAs.
Barbara Keeley
Given that the Minister has just expressed her view on how we are presenting our views on best interest, I hope I can summarise the examples that we have given and the view that we are putting forward that it is a subjective judgment. There is a difference with a cared-for person being allowed to have an advocate, as a default arrangement, unless they do not want that, as in some of the cases we have mentioned. The best interest test is at best a subjective judgment. There are many examples where somebody’s best interests have been ignored. That is why we have given many cases; those cases illustrate how incorrectly this test can be applied and how wrong it can go.
Caroline Dinenage
I thank the hon. Lady for that clarification. I am really grateful for all the interesting case studies and examples set out today. They show the incredible variety of cases, experiences and issues that the Bill needs to encompass, and the challenges of getting it 100% right. That is why we have to be incredibly careful with carte blanche.
We think it would only be in very rare cases that it would not be in the person’s best interest to have an IMCA or appropriate person representing them. Of course, the default is that they would. If the appropriate person is not fulfilling their duties, there should be an alternative appropriate person in place, or an IMCA should be appointed by the responsible body.
There is a presumption in a case where a person lacks capacity. They have the right to request an advocate, if they have capacity, and that best interest test is to avoid overriding their wishes and feelings in cases where they do not. Families of those who lack capacity have told us that they often feel left out of the process. Allowing them to act as appropriate persons enables them to be involved and provide support. I am sure hon. Members agree that that is a good thing.
The role of appropriate person is an important way of involving those who are close to a person, but is not necessarily a matter of either/or. An appropriate person can request support from an IMCA if they wish, and that will include access to challenge in court. We are expanding rights to IMCAs. Currently they are available only to people in hospitals and care homes. The liberty protection safeguard would expand that to those in the community and supported living.
We have set out the fundamental requirements of who can act as an appropriate person and the code of practice will give further detail. I know there were concerns that an IMCA would make a one-off visit and, once everything was settled, they would never be seen again, but it is clear that an IMCA must keep up ongoing contact outside of review times to ensure that the person’s rights continue to be protected and respected.
Barbara Keeley
The Minister said that that is clear. How is it clear? It is not clear anywhere in the Bill that there have to be constant visits. Where is that provision in the Bill?
Caroline Dinenage
It is clear in our minds, and it will be clear in the code of practice that hon. Members can approve.
Alex Cunningham
Will the Minister indicate what the code of practice will say in that respect?
Caroline Dinenage
I cannot give the exact wording because, as I have said, we are engaging with stakeholders and we wish to get the provision exactly right. If I were to provide the wording it would be just the opinion of a politician, and we will all agree that we need the voices of experts, and that the views of those with lived experience of having to support people should be taken into consideration.
Caroline Dinenage
I will in a moment, but I also wish to consider those parts of the amendment with which I fundamentally disagree, as that is important. The amendment would require all 16 and 17-year-olds to have an IMCA as well as an appropriate person. I feel strongly that automatically appointing an IMCA for a 16 or 17-year-old would risk freezing out parents from providing representation and support, and parents are often best placed to take such a role.
The hon. Member for Worsley and Eccles South often talks about the desperately distressing case of Bethany and countless others, where parents’ wishes and concerns are not listened to or heeded. We have been clear about giving families a strong role in this model, and we do not want to risk that. As with an appropriate person, a parent or family can request the support of an IMCA, or for their role to be performed by an IMCA.
Barbara Keeley
I am surprised that the Minster seems to be referring to an advocate as someone who will get in the way of the parents. When I have met parents—I have met Bethany’s father—a great deal of advocacy is going on. Stakeholders in the Bill help with the provision of advocates—indeed, they themselves provide advocacy and legal support. I know for a fact that Bethany’s father would not have got very far because, as the Minister knows, an injunction against him by his local council tried to prevent him from even speaking about his daughter’s case. People need professional support—parents need it, as do other carers—and I hope the Minister will not categorise the support of an advocate as somehow “getting in the way”. The professionals who make decisions have to be challenged, not advocates who are there to support people and their parents.
Caroline Dinenage
The hon. Lady slightly misrepresents what I am trying to say. Of course we have seen numerous examples of how important advocacy can be—it can literally make the difference between people living a happy life that suits their needs, or being kept in a place where they feel unhappy and that does not fulfil those needs. I agree that people should be able to access advocacy, that advocates should be able to work alongside parents, and that if parents feel that they cannot take on such a role, advocates should do that work instead of parents. I also feel, however, that if parents feel that they want to do this on their own and not take on additional advice they should not be forced to, and that is probably the fundamental difference between the Government and Opposition positions. People should be allowed to make decisions for themselves if they wish, and they should not continually be forced to take advice if they do not want to.
We want to make this model person-centric—that is key—and base it on the needs of individuals. By mandating the conditions for IMCA appointments in primary legislation we would once again be prescribing a one-size-fits-all approach that does not consider someone’s individual circumstances, or the wishes and feelings of those involved and their family and loved ones. I hope hon. Members agree and will withdraw the amendment.
Barbara Keeley
The Minister seemed to imply—I think she used similar words—that appointing an IMCA will be the default, but that is not the case in the Bill. The Bill states that an IMCA should be appointed if the responsible body is satisfied that being represented and supported by an IMCA is in the cared-for person’s best interests. There is a best interest test there, which will potentially get in the way. With the wrong sort of process going through in independent hospitals, it will be subject to that best interest test. That is how people can end up ignored, festering in situations where they do not want to be.
Caroline Dinenage
I am struggling with this, because the hon. Lady is giving the impression that best interest should not be taken into consideration. “Best interest” is basically code for the wishes and feelings of the individual. Is she honestly saying that because a person may be lacking capacity their wishes and feelings should be totally ignored, and they should be given what everyone else thinks is best for them?
Barbara Keeley
The Minister knows that that is not an accurate interpretation of what I am saying. We spent a fair amount of time talking about independent hospitals, which are still a massive worry and concern. There is still great concern about the potential role of care home managers, because of the conflict of interest in the case of both independent hospitals and care home managers. There are too many actors in this process who could get in the way and be the people deciding whether a best interest test is met.
Were the best interest assessors the people who are used to this and have been doing this job in local authorities, I would be more comfortable. The Government are trying to give power over the process to care home managers and independent hospitals as responsible bodies, and we disagree with that profoundly, because of the cases that I have brought to the Minister’s attention. I think she and the Government are wrong to put faith in bodies where there is a conflict of interest. That is why I feel so strongly about this.
Steve McCabe
I was going to put a similar point to my hon. Friend. The danger in the Minister’s assertion is that she puts all her faith in the official position, in the position of the responsible authorities. As we have already discussed in the Committee, because of the pressures on those people, they may have other interests and other demands on their attention. If we want to represent properly the best interest of the person and make sure that they are at the centre of the process, we need a balancing mechanism, to ensure that all the issues that the authorities will take into account will be balanced against the best wishes of the person. That is why there is an argument for independent advocacy being set aside from the interest of the responsible organisations.
Barbara Keeley
That is very much the case. To summarise the debate, on the Labour Benches we have given some very powerful examples of the value of advocacy. I have been very impressed by the selection of cases and I thank my hon. Friends for their speeches.
Advocacy is one of the most important safeguards in a mental capacity Bill. It is—perhaps we do not like to use the word these days—a final backstop against improper deprivation of liberty. Our amendment makes it clear that the provision of advocacy must be the default position and I do not resile from that being the right thing to do. There are a few limited exceptions, but the provision of an advocate should go ahead, so that cared-for people are able fully to enact their rights. Without that support they will not be able fully to enact their rights.
We have heard powerful examples about getting people out of inappropriate settings and preventing someone’s home being sold when they did not want it to be sold, so that they could return to it. We should not underestimate—Labour Members do not underestimate—how vital advocates are. I know it is a wide-ranging amendment, but it seeks to improve the Bill in a number of ways, primarily guaranteeing an advocate for anybody who wants one.
Question put, That the amendment be made.
Caroline Dinenage
I beg to move amendment 11, in schedule 1, page 24, line 3, at end insert “in a hospital”.
This is to provide that only arrangements to enable medical treatment for mental disorder in a hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded from being authorised under the new Schedule AA1.
Caroline Dinenage
Amendments 11 and 12 are technical and tidy up the provisions in part 7 of new schedule AA1 to the Mental Health Act 1983 that set out the interface with that Act. They provide that liberty protection safeguards cannot be used to recall to a hospital a person who is subject to the Mental Health Act and is residing outside a hospital. If someone is subject to a community power under the Mental Health Act and needs to be recalled to a hospital, that should be done through the Mental Health Act. That is already the case under the current DoLS system, and the amendments ensure that the Bill replicates that. The Bill is already clear that an order made under the liberty protection safeguards cannot conflict with an order made under the community provisions of the Mental Health Act, so if someone is required to reside at a place under a community treatment order, they cannot be required to live somewhere else under the liberty protection safeguards.
Amendment 13 ensures that that principle also applies to other legislation with a similar effect to the community powers of the Mental Health Act. That means that if someone is required to reside in a particular place under equivalent enactments that extend to England and Wales, they cannot be required to be placed somewhere else under liberty protection safeguards. The amendments effectively ensure that liberty protection safeguards are not used inappropriately to complete functions that should be completed using the Mental Health Act, and clarify what we all know: that a person cannot be required to be in two places at once. I hope the Committee supports the amendments.
Barbara Keeley
I understand that the amendments are designed to address the interface between the Mental Capacity Act and the Mental Health Act, and to keep that interface exactly the same as it is now. I think this is the point to say that this is not the course we wanted the Bill to take. Amendment 52, tabled in my name and to be discussed later, would delay the implementation of the Bill until the Government have given proper thought to how that interface ought to work. We will not oppose amendments 11 to 13, because I can see that they are intended as technical, drafting amendments and we will treat them as such, but I think this is a missed opportunity.
There is a considerable grey area between the Mental Capacity Act and the Mental Health Act, and in his recent review, Sir Simon Wessely made some valuable recommendations on how that divide could be clarified. At this stage, the Government have not tabled amendments to enact those recommendations, but through these amendments they will instead maintain a deficient set of arrangements. I fall back on what I have said before: I call on the Government to pause the Bill until they have given proper consideration to the interface between the two Acts and can produce a Bill that will not require near-immediate amendment and generate a lot of court cases, as we think this Bill will do.
Amendment 11 agreed to.
Amendments made: 12, in schedule 1, page 24, line 10, at end insert “in a hospital.”
This is to provide that only arrangements to enable medical treatment for mental disorder in a hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded from being authorised under the new Schedule AA1.
Amendment 13, in schedule 1, page 27, line 16, at end insert—
“(g) anything which has the same effect as something within any of paragraphs (a) to (f), under another England and Wales enactment.”—(Caroline Dinenage.)
If arrangements conflict with requirements, conditions or directions imposed or given under certain provisions of the Mental Health Act 1983 those arrangements cannot be authorised under the new Schedule AA1 of the Mental Capacity Act 2005. This amendment provides that arrangements which conflict with requirements, conditions or directions arising from an England and Wales enactment having the same effect as the provisions of the Mental Health Act listed in paragraph 54 also cannot be authorised under the new Schedule AA1.
Schedule 1, as amended, agreed to.
Clause 2
Deprivation of liberty: authorisation of steps necessary for life-sustaining treatment or vital act
Barbara Keeley
I beg to move amendment 16, in clause 2, page 2, line 12, at end insert—
“for a maximum period of 14 days”.
This amendment will limit the duration of an emergency authorisation to 14 days.
This amendment and the next to be debated deal with the proposed system for emergency authorisations of deprivation of liberty. In most cases, emergency authorisations should not be needed. An authorisation can be made up to 28 days before the arrangements are due to come into force, and with proper care planning that should mean that liberty protection safeguards are applied for and enacted before someone is deprived of their liberty. That is also the case under the current system, in which applications can be made 28 days in advance—indeed, it is expected that applications will be made before arrangements need to come into force, if at all possible. None the less, data from NHS Digital shows that last year more applications were made for urgent authorisations than for standard ones, which suggests that care homes and hospitals are either unable or unwilling to apply for a deprivation of liberty safeguard until the point at which such deprivation must occur immediately.
I know that the Minister will want all applications to be made and decided in advance, to ensure that people receive the proper protection but, as one DoLS lead said to me recently, simply wanting it will not make it happen. Under the new liberty protection safeguards, there will be no system for urgent applications. Either a standard application will have to be made or the person will be held under an emergency authorisation. That is worrying, given that emergency authorisations come with far fewer safeguards than full authorisations. Amendments 16 and 17, therefore, aim to strengthen the safeguards applied to emergency authorisations, to prevent their misuse.
Amendment 16 would limit the time during which an emergency authorisation can be in place. I do not think that anyone on the Committee would be sad to see the end of urgent authorisations, and I am sure that the Minister agrees that it was unacceptable that care providers were able to self-certify that deprivation of liberty was both acceptable and required. We must do everything in our power to prevent a repetition of that, so I am glad that urgent authorisations have been taken out of the Bill. However, as in all our work on the Bill, we must ensure that we do not implement a flawed process purely because what came before was worse. We should strive to create a genuinely better system.
The Law Commission shares the view that the system of urgent safeguards no longer works, which is why it proposed the change to emergency authorisations. Although that still allows a degree of self-certification, it requires a far higher bar to be cleared. No longer will an organisation be able to self-certify a deprivation of liberty purely because it believes it is urgently needed; instead, the power will be available only when doing otherwise would have a fatal impact on the cared-for person. There will of course be occasions when that is necessary—scenarios that could not have been foreseen—and in such cases it is important that people are not denied treatment because of the legal requirements, but it does not mean that we should ignore the vital safeguards that people must be entitled to.
The principle is clear: deprivation of liberty should normally be authorised through the proper processes, as set out in schedule 1. The only exception is where there is no way to get the relevant permission in time to deliver life-saving treatment. To ensure that the power is used for only the shortest possible periods, the amendment would put a time limit on it. Under the current deprivation of liberty safeguards, an urgent authorisation can last for seven days and can be renewed for a further seven; at the end of that 14-day period, the only way to continue to deprive someone of their liberty is to apply for, and be granted, a standard authorisation. That provides an important check. It means that a care provider can deprive someone of their liberty for a maximum of 14 days without the involvement of external assessors.
Under the Government’s proposals in the Bill, there is no such check. Instead, an emergency authorisation can run indefinitely, subject to two checks. The first check is that the arrangements are still needed to provide life-sustaining treatment. In the case of someone who requires a respirator or drip-fed medication, that could easily carry on beyond a few days—it could last for years. The second check is that a further decision is being sought from either the courts or the responsible body. However, a recent study by Cardiff University found that appeals under section 21A of the Mental Capacity Act 2005 took a median of five months to be heard. Even if cases relating to emergency authorisations are heard quickly, we are still likely to be talking about months, rather than days, before a case is decided.
One of the Law Commission’s reservations about imposing a time limit on emergency authorisations was the concern that responsible bodies might not always be able to arrange assessments quickly enough. There is a simple solution to that, which does not water down people’s rights. If we want responsible bodies to be able to deliver the scheme, or indeed any other scheme, we need to resource them properly. If they have the resources and staff they need, there is no reason why we cannot ask them to complete assessments in a timely manner.
Alex Cunningham
I find it incomprehensible that any emergency authorisation would need to last longer than 14 days. An emergency is just that: it is a serious, unexpected and often dangerous situation requiring immediate attention. That is my online dictionary definition. Once that emergency has been dealt with and the dangerous situation averted, the normal approach should then be adopted. Why on earth would the authorities need to detain a person for many weeks on end without carrying out that full assessment under the law? I suspect the Minister agrees that emergency authorisations would not need to be in place for very long, so everything would be fine and there would be no risk to the person involved. Sadly, nothing in this Bill nails that down. I hope she will have no problem providing us with a guarantee, or supporting this amendment—the real guarantee—to limit that duration of emergency authorisation to 14 days.
We must always take every opportunity to make sure that every precaution is there to ensure that those under emergency authorisations have safeguards and protections. We have been talking about it for days on end. Those authorisations are to be in place so that a person cannot face an indefinite order against them. Not just those of us on the Opposition Benches think that. No fewer than 200 people from my constituency have either commented on this Bill or have signed a petition through 38 Degrees calling for the kind of safeguards in the Bill for which we have been arguing. They are worried about the further erosion of an individual’s rights by the clause if it is not amended.
At every point in this Bill I have posed myself this same question: what does it mean to younger people—the 16 and 17-year-olds—who are captured by it? As I read it, a young person could be detained under these emergency powers. We have talked about insufficient safeguards for young people and parents under the Bill. Who knows how long it could be before they are fully assessed, even when the views of their parents or others were taken into consideration?
According to the Law Society, the Bill
“gives wide-ranging powers for depriving a person’s liberty through emergency authorisations for unlimited periods of time where a ‘vital act’ is deemed necessary. We believe this is unlawful.”
What action will the Minister take to ensure that such actions are not unlawful, as suggested by the Law Society? Although she said that the risks being taken in the care of vulnerable people are simply not there, she needs to convince us or support the amendment. The Law Society goes on to support the amendment in its evidence submission, saying that a
“time limit of 14 days is essential to prevent abuse in accordance with case law”.
Members have spoken at length and given full examples of how the Bill and proposed amendments could play out or have played out in the real world. It is also vital that we take note and address the issues that may arise outside this place in regards to any legislation introduced by us. Imagine the danger we could be unwillingly putting vulnerable people in if we do not pass the 14-day authorisation limit. A person under such an authorisation could be left for months and denied their freedom with no one having carried out a full assessment, perhaps because it is in the best interests of the person that has assessed them or not assessed them—a care home manager or an independent hospital director. Whatever it is, we have a duty of care over those deprived of their liberty under the measures. The Bill falls short of ensuring that we properly protect and safeguard them.
We have debated authorisation renewals. This measure falls into a similar category in that we should provide adequate checks to ensure that people are not needlessly deprived of their liberty for any unnecessary time. I am not convinced we are there yet. Within those 14 days there is an expectation that an adequate, comprehensive assessment will be carried out to determine whether the cared-for person meets the authorisation conditions. If it is more than 14 days, who is going to tell us when it will happen?
Steve McCabe
I do not know whether I am being a bit paranoid about this, but is there a danger that this could become the easy get-out clause? It will be a bit complicated to get all the parties together and carry out a proper assessment, but it will not be as difficult to get someone to say, “Ah—there’s an emergency.” That way, they have dealt with the paperwork in one fell swoop and they have the person where they want them. If there are no safeguards, it will become the clause that will bypass the rest of the legislation, because this is where people will go when they do not want to put in the work or they feel too hard pressed to do it.
Alex Cunningham
I share my hon. Friend’s paranoia. I do not understand why we would put any barriers at all in the way of people’s having a proper assessment within a reasonable time. Detaining someone for 14 days is effectively locking them up for 14 days. It means depriving them of their liberty and there may be no real necessity. An assessment, as quickly as possible, is essential.
Of course, if we allow those authorisations to go on for longer than 14 days or any other reasonable timeframe, we are putting people at risk of abuse, as the Law Society has said. I say to the Minister that we must put vulnerable people first. We must always put the individual first. We must have the safeguards in place, because to do anything else is to risk their liberty, and that is a risk I am not prepared to take. I hope she accepts the amendment.
Caroline Dinenage
Clause 2 allows caregivers, in limited situations, to deprive someone of their liberty for a short period of time prior to an authorisation being in place or in an emergency. That can be done only to provide the person with life-sustaining treatment or to prevent a serious deterioration in their condition. The clause enables a care home to place restrictions on the person for their own protection ahead of an authorisation being approved. That interim legal cover will be decision-specific and it will be targeted to life-sustaining treatment and care or to a vital act. Once those acts are completed, the conditions no longer apply and legal cover for depriving someone of their liberty ends.
In that way, the clause replicates clause 4B of the Mental Health Act 2005, already in DoLS. The emergency authorisation system applies in exactly the same way when a court application being made relates to a deprivation of liberty. There is no evidence at this time that it would lead to any lengthy deprivation of liberty, and the provision of the Bill builds on an existing and well-understood provision. The previous system also included an urgent authorisation. That has gone because it was used too often and its time limit was ineffectual.
Under the Bill, the legal cover is provided simply for as long as the life-sustaining care is needed and no longer. It is therefore a limited power and a better safeguard. An emergency is defined as a situation where there is an urgent need to act and it is not “reasonably practicable” to make an application under the liberty protection safeguards to the Court of Protection or under part 2 of the Mental Health Act. It was carefully considered by the Law Commission, which looked at the inclusion of a time limit and decided against it. We agree with its conclusion that a time limit could encourage care providers to aim for the time allowed rather than to adhere to best practice for that case and that person, which is certainly what we have seen in some urgent cases.
Given the seriousness of depriving someone of their liberty, it should be limited to the shortest possible timescale and should reflect the huge range of causes that it can be required to cover. The amendment would create a blunt, one-size-fits-all approach, rather than allowing us to reflect the different approaches called for.
Steve McCabe
The Minister cites the Law Commission, but is it not the case that the Law Society recommended this very type of safeguard?
Caroline Dinenage
I do not know about the Law Society. The Law Commission was tasked with reviewing the measure—it took three years to do so. The commission took evidence from across the sector and we have used its recommendations as the basis for this provision.
Barbara Keeley
It is interesting that the Minister is being so selective about which of the Law Commission’s recommendations she is accepting. I challenged her earlier about a recommendation that she had accepted at the time it was made and which has not been taken further in the Bill. This is a five-clause Bill, which Opposition Members have had to battle our way through. It is not the fifteen-clause draft Bill that the Law Commission brought forward, which had been consulted on. It is rather rich of the Minister at this point, when it suits her, to be quoting the Law Commission’s recommendations and adopting them when she has not accepted them on many other occasions, including the one on which I moved an amendment this morning.
Caroline Dinenage
The reason for that is quite simple. The Law Commission’s draft Bill had a whole lot more scope and took into it things that we have not been able to look at as part of this particular revision of DoLS, on which we want to focus. We are painfully aware of the fact that 125,000 people are still in a backlog, waiting for DoLS. They do not have the protections that they need; the families do not have the reassurance; and the people caring for them do not have the protection of the law. That is why, necessarily, this had to be a very narrow Bill. Where possible, though, we have taken the words of the Law Commission to its very heart.
Barbara Keeley
I am astonished that the Minister thought it was okay not very long ago this morning to not accept a Law Commission recommendation and then, in her very next speech, put forward such a recommendation as the main reason for turning down an amendment. There is an astonishing lack of logic.
Opposition Members believe that it cannot be right that emergency authorisations have no time limit. There is a concern that it could become easy to drop into using the provision given that there is no time limit on it. We can see how, given how systems are designed, people can get into going to the easiest place. If it is the easiest place to deprive someone of their liberty, that situation can become dangerous.
By failing to include a time limit, the Bill fails to incentivise local authorities and the courts to hear emergency authorisation cases promptly. There is no time pressure on them—they can take as long as they like. Applications can already take too long to process and, without a hard end date, they could drag on for weeks or months. The emergency authorisations contain far fewer safeguards than full authorisations, and as such Opposition Members believe that they should be used only sparingly and for brief periods.
Question put, That the amendment be made.
Barbara Keeley
I beg to move amendment 17, in clause 2, page 3, line 4, at end insert—
“(10) Where this section is relied on to deprive a cared-for person of his liberty, the person relying on this section must—
(a) inform the cared-for person and any person with an interest in the cared-for person’s welfare of that fact;
(b) keep a written record of the reasons for relying on this section;
(c) supply a copy of the written record of reasons to the cared-for person and any person with an interest in the cared-for person’s welfare within 24 hours of the deprivation of liberty commencing; and
(d) if any of the following apply, make an application to the Court of Protection immediately—
(i) the cared-for person objects to being deprived of his liberty;
(ii) a person with an interest in the welfare of the cared-for person objects to the cared-for person being deprived of his liberty; or
(iii) the donee of a lasting power of attorney or a court-appointed deputy objects to the cared-for person being deprived of his liberty.”
This amendment will ensure that information is shared with the cared-for person and any person of interest in the cared for person’s welfare and sets out when an application to the Court of Protection must be made immediately.
Amendment 17 builds on the comments I made in relation to amendment 16. Throughout the two amendments, our concern has been that people subject to emergency authorisations do not currently have the same protections as others who are detained under the liberty protection safeguards. We recognise that there might be a need in certain rare cases to circumvent full assessment for a short period, but it is not acceptable that the Bill provides almost no surety against the system being misused, as we discussed in the debate on amendment 16. That amendment dealt with the length of time for which an emergency authorisation could be in force. Amendment 17, on the other hand, deals with the rights of a person who is subject to an emergency authorisation. Our aim is to ensure that a person’s rights to information and appeal are not watered down because they are subject to an emergency authorisation.
Caroline Dinenage
The ability to deprive someone of their liberty for a short period of time prior to an authorisation being in place or in an emergency is an important part of this model, as we have discussed. That can be done only to provide the person with life-sustaining treatment or to prevent a serious deterioration in their condition.
I spoke on amendment 16 about how this provision is limited to emergency and life-sustaining treatment or a vital act, and to the time limit that is legally enforced. We agree that the provision of information to the cared-for person and those who care for them is extremely important to help them understand the process and exercise their rights. I have committed in respect of other clauses to look again at information and how quickly and early it is disseminated and distributed. I agree in principle with the information part of the amendment.
My only reservation is that, given the nature of the situation, medical professionals have to work urgently in a short period of time, so the amendment might not be practical in practice. However, I agree 100% with the hon. Member for Worsley and Eccles South that information needs to be given out and that people need to understand what is happening to them and their loved ones, so I will commit to look again at this matter.
We agree, and I confirm that, when people are deprived of their liberty, records will need to be kept and those will need to be available after the event. We will outline the details in the statutory code of practice, including how that information should be shared with others.
The amendment outlines circumstances when objections to deprivation of liberty for the provision of life-saving or sustaining treatment should be referred immediately to the Court of Protection. Under the Bill, all people in those cases will have the ability to challenge emergency authorisations in the Court of Protection via section 16 of the Mental Capacity Act, and it is unnecessary for that to be made explicit again in the Bill. The applications will also operate alongside a full authorisation made under new schedule AA1 where appropriate and, of course, there will be full recourse to the court to challenge those authorisations too. For that reason, the Government cannot support the amendment.
Barbara Keeley
I am disappointed that the Minister will not accept the amendment because I have given her a very powerful example of why she should. I had not understood, until I engaged with Paula McGowan recently, how defective the processes were. I know that the Minister has been engaged in that case, so I ask her to think about how it adds to the burden of grief and bereavement for the parents that the processes that should have protected a young person such as Oliver were not engaged properly.
The point about information is important; the McGowans were not informed of their rights or listened to. There was no best interest meeting for Oliver. Had that happened, his parents could have pointed out the danger of the anti-psychotic medication. The Minister has just said that medical and care professionals are busy. That is the problem, is it not? That is how these cases happen—in the busyness of urgent care. The warnings about the medication were just ignored. That is why we very much need information to be given.
Mental Capacity (Amendment) Bill [ Lords ] (Sixth sitting)
(5 years, 11 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 7 - Question accordingly agreed to.
Barbara Keeley (Worsley and Eccles South) (Lab)
As I said, emergency authorisations do not come with the same protections that are built into standard authorisations. Those safeguards include advocacy, independent reviews and independent assessments.
This amendment is designed to add some safeguards to the emergency authorisation process. They would kick in after the authorisation has been granted, and outline how and when it should be escalated. In particular, it would make it absolutely clear when an application to the court should be made.
Given that there is no provision for advocacy under emergency authorisations, this responsibility is falling on whoever makes emergency authorisations. The provisions mean that we are not reliant on family members, who may be under enormous stress, to make the referral. That said, we will be pushing this amendment to a Division.
Question put, That the amendment be made.
The Minister for Care (Caroline Dinenage)
It is a pleasure to serve under your chairmanship once again, Mr Pritchard. Clause 2 relates to the authorisation of steps necessary for life-sustaining treatment or vital acts. This clause is incredibly important. It allows care givers, in limited situations, to deprive someone of their liberty for a short period of time prior to an authorisation being made or in an emergency. This can be done only to provide a person with life-sustaining treatment or to prevent serious deterioration in their condition.
The clause replaces the urgent authorisations that exist under the current deprivation of liberty safeguards system. Urgent authorisations last for up to 14 days in a situation where the need to deprive someone of liberty is urgent. However, providers are left without legal cover when the authorisation runs out and, due to the backlog, the council has not completed the necessary assessments.
We of course want to ensure that there is adequate oversight and that the measure will not be misused to push through unjust deprivations of liberty. Records will need to be kept and provided after the event. The regulators—which, in England, we expect to be the Care Quality Commission and, in Wales, to be Healthcare Inspectorate Wales and Care Inspectorate Wales—can use this to monitor whether adequate care is being given. With that in mind, I recommend that clause 2 stand part of the Bill.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Powers of the court to determine questions
Barbara Keeley
I beg to move amendment 18, in clause 3, page 3, line 14, leave out
“whether Schedule AA1 applies to the arrangements”
and insert
“any issue in relation to the application of Schedule AA1”.
This amendment seeks to clarify that all relevant issues pertaining to Schedule AA1 can be addressed by the Court of Protection, for example whether an IMCA should be appointed or an AMCP involved.
It is a pleasure to serve under your chairmanship in this part of the Committee, Mr Pritchard. Amendment 18 may appear to be minor, but it could have significant consequences for the proposed system of liberty protection safeguards. The Bill removes the section of the Mental Capacity Act 2005 that deals with court appeals for deprivation of liberty, and clause 3 proposes a new section in its place.
The Government have made few substantive changes to the power of the Court of Protection. We believe that this is a missed opportunity. The Law Commission said in its report:
“significant reforms should be made to the Court of Protection to ensure that it works for the people who apply to it.”
The fact that the Government have refused to consider this as part of the Bill is another sign, I am sorry to say, that this Bill is being rushed through. Rather than considering this issue in the round, they are simply seeking to reproduce the current deficient system. The people who are subject to the Mental Capacity Act deserve better, so when the Minister replies, can she reassure us that the Law Commission’s comments are being taken on board and that a full review of the Court of Protection will be forthcoming?
At the moment, the Bill gives the Court of Protection a limited set of powers. It can determine whether the liberty protection safeguards apply to the case; it can determine the length of authorisation; it can rule on the arrangements the authorisation relates to; and it can determine whether the authorisation conditions are met. So that hon. Members are clear on that final point, let me remind them what the authorisation conditions are. Paragraph 12 of schedule 1 reads:
“The authorisation conditions are that—
(a) the cared-for person lacks the capacity to consent to the arrangements,
(b) the cared-for person has a mental disorder, and
(c) the arrangements are necessary to prevent harm to the cared-for person and proportionate in relation to the likelihood and seriousness”
of that harm. When the court is asked to rule on whether a liberty protection safeguard should have been granted, those are the only things that it can determine.
The court cannot determine whether a cared-for person should have been given access to an independent mental capacity advocate—we had a very full debate this morning about the role of advocates. It cannot determine whether the case should have been reviewed by an approved mental capacity professional. It cannot determine whether any of the assessors had a conflict of interest that should have precluded them from carrying out an assessment. It cannot determine whether the consultation has been properly carried out. It cannot determine whether the person was given the information that they should have been given. In short, it cannot determine whether any of the safeguards that we have discussed in this Committee were properly applied.
In some cases, the process will be every bit as important as the outcome, and I remind hon. Members of a case I mentioned previously. Ethel, an 85-year-old woman living in a care home, wanted to leave the care home and return to her own home. She was subject to a deprivation of liberty safeguard. With the help of an advocate, she appealed her case to the Court of Protection. Although the court ultimately ruled that Ethel should remain in the care home, the advocate found during the appeal process that the conditions placed on her authorisation had not been read and were not being applied until the Court of Protection made sure those conditions were attached to the authorisation. If the process is carried out improperly, it may be that less restrictive options for the person’s care are not considered. It may be that a strong objection from a close family member, which could have altered the decisions made, is not expressed.
These concerns are widely shared. The Law Society has supported this amendment, as has a wide range of stakeholders, including Mind and Learning Disability England. It is my hope that the Government did not intend to exclude all the vital areas that I have just discussed, but I simply cannot understand why we would not want to give the Court of Protection the widest possible remit in this case. The court is intended to be the final safeguard against deprivation of liberty being used incorrectly or inappropriately, and if we restrict the issues that it can rule on, we blunt its effectiveness. The Opposition do not want to hear, a year or two down the line, of cases in which the responsible body has clearly not followed the correct process but the courts find themselves unable to do anything about it. Our amendment is designed to avoid such a situation ever arising, and I hope the Government will accept it.
Caroline Dinenage
I understand that hon. Members want the Court of Protection to consider matters such as whether an IMCA is appointed or an AMCP is involved. That would mean that the court was considering procedural matters regarding the liberty protection safeguards process. The hon. Member for Worsley and Eccles South has asked me about the review of the role of the Court of Protection; she will be aware that the Ministry of Justice is currently reviewing courts in the round, and that review will of course include the regionalisation of the Court of Protection. However, the Bill is clear that the pre-authorisation review must be completed by an approved mental capacity professional in cases in which an objection has been raised. That provides a clear route for arrangements to be considered if that is something the person wishes to happen.
Government amendment 9 is clear that, in independent hospital cases, an approved mental capacity professional must complete that review—that is a duty—and if an independent hospital as a responsible body fails to do that, it would be in clear breach of its responsibilities and could be subject to legal challenge.
With regard to IMCA appointments, the Bill introduces an effective presumption that an IMCA will be appointed by the responsible body if there is not an appropriate person in place, which ensures access to representation. With that in mind, I hope that I have provided reassurances that the system will be robust regarding IMCA appointments and access to AMCPs. I therefore hope that hon. Members are willing to withdraw the amendment.
Barbara Keeley
As I said, the amendment seeks to clarify the role of the Court of Protection. It broadens the narrow set of responsibilities in the Bill, giving the court the explicit right to rule on any matter relating to the new liberty protection safeguards. It ensures that the process, as well as the outcome, of authorisations is covered by the court.
Question put, That the amendment be made.
Caroline Dinenage
Clause 3 sets out that the Court of Protection can hear challenges in relation to liberty protection safeguard authorisations. The court already considers challenges under the current system, and the Law Commission recommended that it continue to do so under liberty protection safeguards, pending the outcome of a Government review.
In designing the new system, we put safeguards in place to ensure that arrangements would be considered fairly and independently. We know that most people want to avoid courts and tribunals if possible, so it is important that they can access protections without needing to go to the Court of Protection. However, it is also important to us that people who want to challenge their authorisations in court are able to do so, which is why the right to non-means-tested legal aid will be maintained under the liberty protection safeguards system. Cost will not be a barrier to a person’s ability to access the court.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Consequential provision etc
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Government amendments 14 and 15.
That Schedule 2 be the Second schedule to the Bill.
Caroline Dinenage
With your leave, Mr Pritchard, I will speak about amendments 14 and 15 before moving on to the clause stand part debate.
The amendments amend section 36 of the Mental Capacity Act 2005 to ensure that regulations about the functions of independent mental capacity advocates can make provision for advocates appointed under the LPS to support the new role of appropriate person. Amendment 14 also amends sections 38 and 39 of the 2005 Act.
Broadly, the provisions require an IMCA to be appointed when an NHS body or local authority proposes to accommodate a person in a hospital, care home or long-stay residential accommodation and there is no one else to consult about what would be in that person’s best interest. The amendments continue the position under DoLS, so that the duties to appoint an IMCA in sections 38 and 39 will not apply if one has already been appointed under the LPS in relation to the same accommodation. That is to avoid a person having two IMCAs carrying out similar roles. Amendments 14 and 15 also make consequential amendments that reflect the change from the deprivation of liberty safeguards to the liberty protection safeguards.
Clause 4 gives the Secretary of State and Welsh Ministers a regulation-making power to make provision that is consequential to the Bill, including changes to existing legislation. The power will be used to make any necessary consequential changes as a result of the LPS coming into force—for example, to update references to schedule A1, which contains the existing deprivation of liberty safeguards, to references to schedule AA1, where the liberty protection safeguards will be set out.
Finally, clause 4 will introduce schedule 2, which will make minor and consequential amendments that update other legislation to reflect the change from deprivation of liberty safeguards to liberty protection safeguards. I commend the clause and the schedule to the Committee.
Barbara Keeley
Government amendments 14 and 15 will alter the power to make regulations under the Mental Capacity Act 2005. It is fair to call them drafting amendments to fill an obvious gap in the Bill that would have left the Government with no way to instruct an independent mental capacity advocate in how to represent an appropriate person. It is a sufficiently large omission for me to wonder how the Government failed to notice it earlier, but I understand that things are missed when a job is being rushed, as the Bill certainly is. However, I am glad to see that the Government are remedying the situation. We support the amendments.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Schedule 2
Minor and consequential amendments
Amendments made: 14, in schedule 2, page 28, line 22, at end insert—
“3A (1) Section 36 (functions of independent mental capacity advocates) is amended as follows.
(2) In subsection (2)(a) leave out “(“P”) so that P” and insert “or support so that that person”.
(3) In subsection (2)(c) leave out “P’s wishes and feelings” and insert “the wishes and
feelings of the person the advocate has been instructed to represent (“P”)”.
(4) After subsection (2)(d) insert—
“(da) in the case of an advocate instructed to support an appropriate person where paragraph 40 of Schedule AA1 applies, supporting that person to ascertain—
(i) what the wishes and feelings of the cared-for person who that appropriate person represents and supports would be likely to be and the beliefs and values that would be likely to influence the cared-for person;
(ii) what alternative courses of action are available in relation to the cared-for person who that appropriate person represents and supports;”.
3B (1) Section 38 (provision of accommodation by NHS body) is amended as follows.
(2) For subsection (2A) substitute—
“(2A) And this section does not apply if—
(a) an independent mental capacity advocate is appointed under paragraph 39 of Schedule AA1 to represent and support P, and
(b) the arrangements which are authorised or proposed under Schedule AA1 in respect of P include arrangements for P to be accommodated in the hospital or care home referred to in this section.”
(3) In subsection (3), in the opening words, after “arrangements” insert “mentioned in subsection (1)”.
(4) Omit subsection (10).
3C (1) Section 39 (provision of accommodation by local authority) is amended as follows.
(2) For subsection (3A) substitute—
“(3A) And this section does not apply if—
(a) an independent mental capacity advocate is appointed under paragraph 39 of Schedule AA1 to represent and support P, and
(b) the arrangements which are authorised or proposed under Schedule AA1 in respect of P include arrangements for P to be accommodated in the residential accommodation referred to in this section.”
(3) In subsection (4), in the opening words, after “arrangements” insert “mentioned in subsection (1)”.
(4) Omit subsection (7).”
This amends the regulation making power in section 36 of the Mental Capacity Act 2005 to ensure that equivalent provision can be made for advocates who support a cared-for person’s “appropriate person” as for other advocates. It also makes other changes to that Act consequential on amendments made by Schedules 1 and 2 to the Bill.
Amendment 15, in schedule 2, page 28, line 23, at end insert—
“4A In section 40 (exceptions)—
(a) in subsection (1), for “, 39(4) or (5), 39A(3), 39C(3) or 39D(2)” substitute “or 39(4) or (5)”;
(b) omit subsection (2).”—(Caroline Dinenage.)
This amendment is consequential on the amendments made to the Mental Capacity Act 2005 by Schedules 1 and 2 to the Bill
Schedule 2, as amended, agreed to.
Clause 5
Extent, commencement and short title
Barbara Keeley
I beg to move amendment 52, in clause 5, page 4, line 16, at end insert—
“(3A) Before the Secretary of State makes any regulations under subsection (3)(b) above, the Secretary of State must publish his or her consideration of the conclusions of the Independent Review of the Mental Health Act relevant to the deprivation of liberty in accordance with the provisions of the Mental Capacity Act 2005, and in particular Schedule AA1 of that Act.”
This amendment ensures that the Government cannot enact the provisions of this Bill until such a date as it has responded to the findings of the Independent Review of the Mental Health Act, specifically the interface between the Mental Health Act and the Mental Capacity Act.
The Chair
With this it will be convenient to discuss the following:
Amendment 53, in clause 5, page 4, line 16, at end insert—
“(3A) Before the Secretary of State makes any regulations under subsection (3)(b) above, the Secretary of State must—
(a) publish a full implementation strategy, outlining how local authorities and other responsible bodies will be resourced to process applications under this Act; and
(b) publish an updated Impact Assessment on the impact of the provisions of this Act.”
This amendment ensures that the Government cannot enact the provisions of this Bill until such a date as it has published an updated impact assessment, and set out an implementation strategy for the new system.
Amendment 54, in clause 5, page 4, line 16, at end insert—
“(3A) The Secretary of State may not make any regulations under subsection (3)(b) above, unless—
(a) the Secretary of State has—
(i) consulted on the Code of Practice,
(ii) published a Code of Practice,
(iii) laid that Code of Practice before Parliament, and
(b) that Code of Practice has been approved by a resolution of each House of Parliament.”
This amendment ensures that the Government cannot enact the provisions of this Bill until such a date as it has published a new Code of Practice, which has been approved in a vote in each House of Parliament.
Barbara Keeley
The amendments would impose a condition that the Bill should not be implemented until the Government have responded to the findings of the independent review of the Mental Health Act 1983 and dealt specifically with the interface between that Act and the Mental Capacity Act; published an updated impact assessment; and published a new code of practice approved by a vote in each House of Parliament.
I said on Second Reading that
“reform of the Mental Capacity Act 2005 requires methodical planning”.—[Official Report, 18 December 2018; Vol. 651, c. 732.]
The issues that the Committee has discussed over the past two weeks have far-reaching implications for as many as 2 million people who may lack capacity. I am pleased that the tone of our debate has risen to the magnitude of the issue, but I feel that the difference in the depth of contribution, depending on which side of the debate we are on, has been marked. That is important because the debate has been a discussion of the fundamental rights of some of the most vulnerable people in our society. I thank hon. Friends who have given proper scrutiny to the Bill and its impact on the liberty of very vulnerable people. Cared-for people deserve no less.
The Bill remains deeply flawed in a host of areas. It is very disappointing that the Minister has been so stubborn in rejecting all our amendments out of hand. We entered Committee in a spirit of co-operation, but I feel that that has not been matched by the Government. Our amendments were not a Christmas list of things that would be nice to have; they were the minimum reforms needed to make the Bill fit for purpose. The fact that so many remedial amendments were needed shows that the Bill has been put together in anything but a methodical way. The reality is that the Government are pushing ahead at breakneck speed, contrary to all the warnings from a wide group of concerned stakeholders. That is not a proper way to treat an issue of such importance.
A key concern raised by stakeholders relates to the interface between the Mental Health Act and the Mental Capacity Act. The two are deeply intertwined; indeed, the existing interface is so complex that a senior judge has noted:
“When you write a judgment on them, you feel as if you have been in a washing machine and spin dryer”.
The Acts provide different legal frameworks for treating someone without consent and depriving them of their liberty by detaining or confining them in a hospital or care home. The Mental Capacity Act can be used only when a person lacks capacity to consent to their confinement; where it is used, professionals must use deprivation of liberty safeguards to authorise detention and protect a patient’s rights. At the moment, if someone has capacity and objects to their admission or treatment for a mental disorder, the Mental Health Act must be used because they are being compulsorily detained against their will.
Professor Sir Simon Wessely wrote in his final report that the review’s intention was to take the use of the Mental Health Act
“back to the position that it can only be used for people who are obviously objecting to treatment.”
That is key. The Mental Health Act should not be used simply because someone lacks the capacity to consent to their admission. Troublingly, the review found that the Mental Health Act had been used, at least in some cases, because it is easier to use than DoLS. Furthermore, it found a significant number of cases where the Mental Health Act had been used for patients with dementia because of doubts or disputes as to whether the person was objecting to their admission.
While that cannot be confirmed with the data available, the Care Quality Commission observed an increase in the numbers of people over 65 detained under the Mental Health Act. In one older-adult ward that the CQC visited, the increase was from 15% to 85% of residents between 2013-14 and 2016-17.
The confusion as to which statute to use arises from the issue of whether someone without capacity is objecting to their treatment. It means that either the Mental Health Act or the DoLS can be used, depending on where the decision is being taken, and on the cared-for person. Professor Sir Simon noted that it is unhelpful to have two different options for the patient who cannot consent but who is also not objecting. His review argued:
“The patient is facing a lottery between two different legal positions. Whilst at first it may be attractive to use the MHA because, generally, it is considered to have greater safeguards than the MCA, it is also extending the reach of compulsory powers.”
The review recommended that
“the law should be amended so that only the MCA framework”—
specifically the liberty protection safeguards—
“can be used where a person lacks capacity to consent to their admission or treatment for mental disorder and it is clear that they are not objecting.”
We are aware that objection is not always easy to identify—we have had some excellent case study material today around the issue of whether a patient is objecting. An objection can be very difficult to identify, especially in people with cognitive impairments. The Mental Health Act review noted that
“whilst it may be relatively easy to determine whether or not someone is objecting to treatment in a psychiatric hospital, it will not be so easy when the patient is in a general hospital but treatment for a mental disorder is being considered. However... objection is the term that is currently used in both the MHA and MCA, and is a familiar enough concept not just for professionals, but for anyone.”
The review said that that was “the right dividing line” between the Mental Health Act and the Mental Capacity Act. However, it recommended that
“clear guidance will be required as to what objection looks like in practice in both the MHA and MCA...and what practitioners should do where a person who was previously objecting is no longer doing so (and the other way around).”
The Law Society has reinforced that recommendation, pointing out that it is not feasible to expect care home managers to navigate the complex interface between the two pieces of mental health legislation. It is concerned that it would be difficult to reach a conclusion on whether a liberty protection safeguard would be excluded, due to the operation of part 7 of the Bill, for many capable people. We have yet to see any guidance or a full code of practice, which is why we are seeking assurances through this amendment.
More broadly, there seems to be little evidence of any consideration of that interface. That is because the Bill was introduced before the final recommendations of the independent review of the Mental Health Act were published, which happened in December. That is problematic because the Bill replicates the complex interface, which will persist until the Mental Health Act is amended. I am afraid that, given the complex relationship between the two Acts, this is another example of the Government’s careless approach to reform of the legislation.
A whole host of stakeholder organisations—including, most prominently, Liberty—has called for a pause in the Bill process, in order to consider the implications of the Mental Health Act review. The amendment reflects the depth of stakeholder concern and requests that the Bill does not take effect until a response has been given to the Mental Health Act review. The purpose of some form of pause before enactment would be in part to allow time to develop a clear and workable interaction in the Bill, which would need to be understood by those subject to liberty protection safeguards and their families, as well as those who are operating them.
Turning to amendment 53, one concern that stakeholders have raised repeatedly since the Bill completed its passage through the House of Lords is the issue of the Government’s impact assessment. The Government published an impact assessment on the Bill on 29 June 2018, although an equality impact assessment was published only one day before Second Reading in the House of Commons on 18 December.
There are several problems in the overall impact assessment, which sets out a number of cost assumptions for the review of the liberty protection safeguards system. First, many of the calculations appear to be based on those drawn up by the Law Commission and included in its own impact assessment, which accompanied its draft Bill. Of course, the measure we are debating is not that draft Bill. As we have said many times, this is a cut-down version of an earlier Bill.
I will take as one example the total cost of advocacy—a key aspect of the Bill on which we had a good debate this morning. The Government’s impact assessment says advocacy will cost a total of £23.08 million. This appears to be calculated by multiplying the average cost of advocacy per authorisation, £76, by the number of applications in the new system, 304,132. Why has the Government’s impact assessment calculated the average cost of advocacy per authorisation? Under the proposed liberty protection safeguards, many cared-for people will not receive a paid advocate—something on which we urged the Minister to take action this morning.
Would it not be better to calculate the figures according to the actual cost of providing advocacy, based on the total number of advocates that are expected to be used in these cases? Will the Minister say how much that would be? It would surely be a more logical way of calculating this figure and its impact.
Further costs need clarification, including those that depart from the Law Commission’s assertion, such as the cost of administration in the form of desktop reviews. That will cost a total of £47 million and will be borne by local authorities. It is calculated as the number of applications per year under the preferred model—the figure I gave earlier of 304,132 multiplied by the cost of administration of £155.
In calculating that, the Government’s impact assessment took the cost of administration of the current DoLS system from the Law Commission’s impact assessment, but then inexplicably halved the cost to £155 to account for the fact that it would be less intensive than under DoLS at present. Will the Minister explain how the calculation in the impact assessment was arrived at? How have we quantified how much less intensive the system will be? What is the methodology behind that?
Secondly, a number of assertions in the impact assessment are woefully out of date, given the changes made to the Bill in the House of Lords that have made several key cost estimates entirely redundant. For example, the impact assessment assumes no net change in cost to providers of authorisations and administrations. It was assumed that providers would no longer need to complete an existing form of comparable length and complexity to request an assessment or deal with uncertainty and delay as a result of the assessment being provided by an under-resourced system.
The Minister has assured us that in many cases local authorities will carry out authorisations. Why does this not affect the cost of authorisations in the impact assessment? The issue of the resourcing of local authorities has been raised by Labour Members a number of times and is absolutely key.
I could point out further examples of inconsistencies. The cost of approvals by approved mental capacity professionals is assumed to be £10.5 million a year. However, that figure does not take into account the cost of AMCP approvals for cases in independent hospitals in the light of amendments to the Bill made by the Committee. The Government tabled amendments in relation to AMCPs and independent hospitals. Were cost estimates made of this change, and what is the additional cost?
There have been a number of expressions of concern about training. The total cost of doctor and social worker training in the new system is apparently £780,000 or £23 per doctor or social worker. That seems a rather miserly amount. What will the training constitute and how long will it last? The impact assessment calculates the number of doctors and social workers needing training as 10% of the total number of doctors and social workers. How have the Government arrived at that figure?
A key figure is the cost of familiarisation, which is put at £1 million. That is based on care home managers undergoing half a day’s training in this entirely new system. Does the Minister think that is a reasonable cost estimate of the amount of time care home managers need to become literate in a new system of liberty protection safeguards? How was it calculated? Given our debate on the role of the care home manager, how realistic does the Minister think that that figure is? This is absolutely crucial. We have tried by tabling amendments to remove the impact of the role of care home managers. To assume that they will get by with half a day’s training on this new system is very worrying.
Mr Tanmanjeet Singh Dhesi (Slough) (Lab)
We have referred to the code of practice, or the Minister has, on several occasions. We have consistently asked for it to be published. Surely the provisions would be nonsensical without it given we are being referred to it in relation to so many of the provisions we are arguing for. If a code of practice does not exist, where does that leave us in this whole scenario?
Barbara Keeley
Indeed. It is salutary to use the following quotation again:
“Whatever the weight given to the Code by section 42 of the Mental Capacity Act 2005, it does not create an obligation as a matter of law to apply to court in every case.”
We have wanted to know what is in the code of practice. We think knowing what is in it is important in deciding our position on what is in the Bill. The Government have declined to put too many aspects in the Bill and have instead favoured the code of practice. When legislation and codes of practice exist together, they are drawn up together and published together. That has not happened in this case and it is the wrong approach. We cannot leave crucial details about how a new system of protections would work, including what resources will be given to it, to a code of practice that has not been drawn up yet, but that is what the Government have done.
On the first day of this Committee the Minister said that she would supply Committee Members with a list of what should be contained in the code of practice, and I thank her for doing so last night. Unfortunately, that does not answer many of our concerns. For instance, we raised concerns about the length of authorisations. It is welcome that there will be guidance in the code of practice, but we still do not know what it will say. Similarly, the Minister’s letter says that the code of practice will contain
“guidance on the necessary separation and operation independence from any independent hospital an AMCP is conducting a review in”.
Again, I am glad that there will be guidance, but we still do not know what it will be. Nothing prohibits any of the relationships we are concerned about and have discussed at length: it simply says that some relationships may be prohibited. That is simply not good enough at this stage. As such, the Minister’s letter does not answer the concern of my hon. Friend the Member for Slough. We remain worried that there will not be proper oversight of this code of practice. Without seeing the full code, we cannot be certain that its contents are sufficient or appropriate.
Overall, the Government’s approach of constantly mentioning the code of practice as being the place where whatever is not in the Bill will be plays fast and loose with the rights and liberties of cared-for people. It further reinforces the mess that the Government have made of the Bill by rushing it through Parliament. Had they done the sensible thing and paused the process, they would have had time to draw up a draft code of practice so that we could consider it alongside the Bill, as is commonly the case. They have given reassurances that many of the concerns can be addressed in subsequent regulations and the code of practice, but that is simply unacceptable to those of us on the Opposition Benches. To that end, we have tabled the amendment to ensure that the Bill cannot be enacted until a code of practice has been published and approved by votes in both Houses, rather than just published.
An important principle that I want to discuss briefly is that legislation can begin in the House of Lords where it is deemed to be non-controversial. That was not the case with the Bill. It is not simply a reproduction of the Law Commission’s draft Bill, which was widely consulted on. As the recent media coverage in places such as The Guardian has shown, the Bill is not without controversy. The code of practice should not be passed through a negative resolution procedure in secondary legislation on the grounds that it is non-controversial. The Minister has indicated that the code of practice will have a real vote in both Houses. Let us see whether that will be a meaningful vote.
Alex Cunningham (Stockton North) (Lab)
It is a pleasure to serve under your chairmanship, Mr Pritchard.
On amendment 52, a great deal of concern was expressed in the written evidence submitted to the Committee about how the Bill interacts with the Mental Health Act 1983. In fact, that the Government have not thought that through enough was one of the many reasons why it was felt that they should not be rushing to push the Bill through. They have not made any statements even to claim that everything will be fine. Due to the overlapping nature of the two pieces of legislation, we must take additional precautions to ensure that they work together. To do that, we must know what the Government’s response to the independent review is prior to the provisions coming into force.
It is regrettable that neither this Committee nor the Committee in the Lords took any oral evidence. It is all the more important therefore to get some of the written evidence before the Committee so that everyone is aware of what organisations have been saying. Such organisations as Mencap have added their voices to the concern about the complex interface between the Mental Health Act and the Mental Capacity Act. I will quote from what Mencap said at some length not only because it is worth listening to, but because it is right. It said:
“Sir Simon’s review proposes to redraw the dividing line between when a person should be detained under the MHA and when they might instead fall under the MCA…The proposed dividing line is objection, so that if a person without capacity does not object to admission or treatment they should be placed under the MCA…The proposed new dividing line of objection needs thorough and broad consultation, possible pilot testing, and pre-legislative scrutiny—none of which are possible under the timescales set by Government for this Bill…Given that Sir Simon Wessely’s review has only just been published, there is a strong case for looking at the interplay between this Bill and the recommendations around the MHA. To not do so, risks creating legislation which fits together poorly.”
Does the Minister disagree with Mencap’s assessment and concerns about the interface between the two Acts? Does she accept that much needs to be done before the Bill’s provisions are brought to bear on our vulnerable people?
James Morris (Halesowen and Rowley Regis) (Con)
I have a lot of sympathy with the hon. Gentleman, but will he recognise that one of the central drivers for the Bill is the delay in assessments that has built up over time because of the issue identified in Chester? Obviously there is a timing issue, but does he agree that, ultimately, whatever legislation comes out of the independent review will mark a major change in how we approach the detention of people under the Mental Health Act? There probably will need to be more synergy between the two pieces of legislation, but the timing imperative is driving the need to get this legislation on the statute book.
Alex Cunningham
I think the imperative is the other way around. It is important for us to have the understanding of what the Government are proposing and their attitude to the review, so that we can understand how the legislation will work and how the two Acts will work together.
I believe the Government would be reckless to plough ahead with implementing the provisions in the Bill while that piece of legislation relating to it is still being reviewed. The Challenging Behaviour Foundation has also added its weight to the concern of the interface of the Bill with the Mental Health Act review. Providing written evidence to the Committee, it said:
“The current confusion in the use of Deprivation of Liberty within the MCA and the MHA often means the needs of people with learning disabilities are not being met in a timely and appropriate fashion…The independent review of the MHA has considered this and made recommendations around when a person should be detained under which Act around objection…The Mental Health Act Review makes the recommendation that the Code of Practice for the MHA and for the MCA make clear in what circumstances professionals should consider whether or not someone has capacity to make decisions…We also think that both Codes should make clear who should carry out capacity assessments in these situations. This needs to be explored further and needs to be considered under this Bill to ensure both legislations work together.”
That is very clear evidence from the sector. Perhaps the Minister will share with us her perspective on the interface between the Bill and the Act. There is a theme running through the written evidence submissions that we have received. The conclusion they come to is that the Government are rushing this Bill through.
Mr Dhesi
I thank my hon. Friend for raising the concerns of organisations such as Mencap. Does he agree that the likes of Mencap not only enhance our understanding through national policy formation but, as I have learned from my experience as a member of the Gravesend and district Mencap society, they also work on the ground? People such as Linda and Chris Norris and other volunteers, through their work, help their national organisations in policy formation. As parliamentarians we would be very wrong to ignore their recommendations.
Alex Cunningham
I very much commend the work of organisations from the grassroots right through to the national level. The reason I sat down with people from my local authority before the start of this Bill Committee was so that I could understand what was happening at the grassroots. That grassroots work that feeds all the way through the system informs us and it is important that we take account of it.
My hon. Friend the Member for Slough will know that, with the amount of written evidence submitted to the Committee, we could have stood here and made three-hour speeches ensuring that we raised the issues that they wanted raised. Some of us are a little more kindly and will be relatively brief.
This is not a matter to be pushed through with little consideration because the consequences of getting it wrong are significant. I ask the Minister to think carefully, not just about the comments made by hon. Members but about the evidence that has come from the sector. We raise that evidence out of concern that the Government might be making the wrong move. We need to tread carefully and understand the implications.
Amendment 53 seems sensible and proportionate. How can we possibly pass legislation that would have an undue impact on local authorities and other responsible bodies without giving them the resources to carry out the functions required? I have spoken in previous sittings about care home managers and the impact provisions in the Bill would have on them. Not only do I believe that they do not have the adequate skills to carry out assessments. I am also concerned that they have a severe conflict of interest if they are expected to be involved in the assessment of those who reside in their care.
Caroline Dinenage
The hon. Gentleman might be slightly misquoting me. I have spoken in general terms about the code of practice, and have indeed circulated a draft of what will be included in it among hon. Members, as well as what we have committed to including in it as part of the discussions in the House of Lords and during this Committee.
Alex Cunningham
It is never my intention to misrepresent anyone. All I am concerned about is that we should have clear detail as soon as possible in order for us to understand what will happen. It is not just for us to understand—it is also for people outside in the world who have to deal with this on a day-to-day basis. The Minister just answered the question I would have posed at the end, so I will not bother asking it.
Caroline Dinenage
I thank hon. Members for initiating this discussion. Amendment 52 would delay the introduction of liberty protection safeguards until the Department has fully responded to the report of the independent review into the Mental Health Act.
The hon. Member for Worsley and Eccles South said that I was stubborn. I am sure that a number of people, not least my husband, would agree with that sentiment. I think she would agree that I have committed to looking again. A number of issues have been raised during the Bill’s passage through Committee, not least ensuring that people get information as early as possible—I agree with her on that—and how we can maximise protection for those being cared for in an independent hospital. I am sure she would agree that I would be being equally stubborn if I were to take the amendments on board without giving them careful and due consideration, and without checking the legal ramifications and making sure that we are offering all the protections that we need to. I am sure that the hon. Lady, other Opposition Members and stakeholders will forgive me for making sure that we consider everything thoroughly and properly.
On amendment 52, I welcome Sir Simon Wessely’s landmark report and I am sure that it will very much set the direction for improving the way the Mental Health Act works for thousands of vulnerable people. The Government have already committed to bringing forth mental health legislation when parliamentary time allows, taking that very important report into account. We have already accepted two important recommendations, which will give service users more choice and control, but it will take time for us to consider the rest of the recommendations, of which there are 152. We will respond to the remaining recommendations in due course, but Sir Simon said that the Government would need to consider the “practical implications” of the interface recommendations, and that it would be “problematic” to introduce those recommendations in this Bill.
Hon. Members will be aware that the reforms in the Bill are desperately needed—I cannot repeat often enough that we cannot wait any longer to improve the situation of the backlog of more than 125,000 people who have been deprived of their liberty without authorisation. As much as there are concerns among stakeholders—I have met a number of stakeholders and we will continue to consult them, to take their views on board and to make sure that we work with them at every step of the way when it comes to the code of practice—they also share our concern that 125,000 people have been deprived of their liberty without authorisation, that their loved ones have been deprived of peace of mind and that their care providers have been deprived of legal protection.
Barbara Keeley
I have two points to make to the Minister. I remind hon. Members that we have heard examples of authorities—they include mine, that of my hon. Friend the Member for Stockton North and some London boroughs—where there is no backlog and where the local authorities have dedicated enough resource to the situation. Despite the number of DoLS applications increasing since the Cheshire West case, they are dealing with it. Let us not talk in Committee as if it is the same everywhere; it is not. Some local authorities are coping perfectly well with the backlog, and there is no pressure in those local authorities to change to a worse system that will cause a problem.
Secondly, I asked the Minister about the cost of dealing with the backlog, and I hope she will touch on that. She has raised the backlog again and again as a reason for rushing the Bill through. It is not a reason for rushing through a new piece of legislation that is this important. I hope that she will come on to say exactly how the backlog is to be dealt with and what resources will be available to deal with it, because that is an important issue. If the backlog is the reason for doing things this way, how is the backlog going to be dealt with?
Caroline Dinenage
Yes, of course I will go on to talk about the transition between the two systems and the backlog. I also say gently to the hon. Lady that she and others may be in the fortunate position where their local authorities have got to the stage where they do not have a backlog—in many cases, that is due to a political decision to prioritise it—but I think all those local authorities would recognise that there is duplication and cost in the system that they could do without. They have had to take very tough decisions to prioritise this issue over other things that they could be spending their money on, when money is tight. I do not think the attitude of, “I’m alright, Jack, there’s no backlog in my constituency,” is a very good one, when 125,000 other people are waiting.
Alex Cunningham
I do not have a particular problem with what the Minister is saying—local authorities do want to see reduced costs and to ensure that responsibilities are carried out—but she used the expression I used last week. It was a “political decision” by local authorities such as Stockton to take money from other services and invest them in this matter. Surely local authorities should not have to face that choice. The Government should properly fund our whole social care service, never mind the issues around the Bill.
Caroline Dinenage
I agree with the hon. Gentleman—the whole of the health and social care system needs funding, and that is where the additional money for the NHS comes in. The Government have given councils access to more than £10 billion over this three-year period. The fact that they are still struggling shows the scale of the problem. We do not want to waste money on duplication when that money could be valuably spent elsewhere. The desire to streamline the system to avoid unnecessary duplication, which drives costs but does not offer any further protection, is what this is all about.
Alex Cunningham
It is has been estimated that the Minister will save about £200 million as a direct result of the changes in the Bill. What will that money be used for?
Caroline Dinenage
We have to be careful not to conflate our language. There is no intention to save money on the process. We know that if DoLS were implemented correctly all across the country, as they are in the hon. Gentleman’s constituency, the cost would be £2 billion. However, we are not looking to save money here; we are looking to ensure that it is spent more wisely—not on duplication, but in a way that offers people the protections that they need. This is not a cost-saving exercise; it is about ensuring that money is spent wisely and effectively to offer that protection.
Amendment 53 would delay the introduction of liberty protection safeguards until the Department has published an updated impact assessment and implementation strategy. I thank hon. Members for reminding us of those items, which are important for the successful implementation of the Bill. We are in the process of preparing the updated impact assessment to reflect the amendments made in the Lords. We are keen to make the Bill as successful as possible and to listen to the concerns of those in the other place. We will shortly publish the impact of the amendments made there, and the Government have also made changes to the Bill in this House that will require us to update the impact assessment further.
The noble lord, Lord O’Shaughnessy—I am not sure whether I am allowed to name him—has committed to publishing a training strategy before the Act comes into force. With regard to training, we will work closely with the sector, local authorities and NHS organisations on implementation as part of our strategy, and we welcome Members’ contributions. I completely agree with hon. Members that adequate training for health and social care staff is vital. Ahead of the implementation, we will consider the most appropriate way to ensure that everybody is appropriately equipped.
We have considered training costs as part of the updated impact assessment that we will publish shortly. We know that there will be an impact on transitional costs. We will support the sector and we will deliver training through a workforce development model delivered by and in partnership with Skills for Care, as we do for other things.
With regard to the implementation, ahead of day one we will work with local, national and Welsh DoLS networks in partnership with the Local Government Association and the Association of Directors of Adult Social Services to clear the existing backlog of applications. Those who remain in the backlog on day one will have their applications handled under LPS—a streamlined system that minimises duplication. Existing assessments can be used, if appropriate. For example, there may be no need to commission a doctor to do a new mental health assessment. That efficiency will allow local authorities and other responsible bodies to tackle the backlog effectively.
Cared-for persons who have an existing DoLS authorisation on day one will remain under that authorisation until it expires, after which a new application will need to be made under the new system. Those in settings that newly fall under LPS, such as those in the community, who may have an authorisation from the Court of Protection, will remain under that authorisation until it ends. A new application will then need to be made under LPS. We will work closely with responsible bodies and care providers to ensure that the transition period is as smooth as possible, and that vulnerable people are protected.
Amendment 54 would require the code of practice to be approved and published before the introduction of liberty protection safeguards. That statutory guidance is essential. It will outline the details of how the system should operate and will be a valuable tool for practitioners. The Government are required by section 43 of the Mental Capacity Act to consult when preparing the code of practice.
We are already in the first stages of developing the code. We will work with the sector to co-produce it. I am happy to commit to publishing the code of practice before the scheme comes into force. I also commit to laying the code in draft before Parliament, giving both Houses the opportunity to resolve not to approve it, as section 43 of the Mental Capacity Act also requires.
I hope that I have been able to provide reassurance and that the hon. Member is able to withdraw the amendment.
The Chair
Before I call the shadow Minister, the Minister was perfectly in order to say Lord O’Shaughnessy and the next time she wants to, there is a variety of options for referring to the other place. That is perfectly in order.
Barbara Keeley
I only realised recently that we have changed the way that we refer to the House of Lords. We do not have to keep saying “the other place”. We can say the House of Lords and use names.
Barbara Keeley
Going back to amendment 52, the process of bringing the Bill forward has been disappointing. It has been rushed and stakeholders feel that their views have not been taken on board. How do we know that that is the case? A letter was published in The Times today under the headline “Mental Capacity Bill Attracts Criticism” from a group of organisations including Liberty, Mind, Alzheimer’s Society, the National Autistic Society, POhWER—to which we have referred a number of times in our debates—the British Institute of Human Rights, Sense, Compassion in Dying, YoungMinds, Learning Disability England, Voluntary Organisations Disability Group and Headway—a very comprehensive list of organisations. They say:
“It is with dismay that we note the lack of improvement within the Mental Capacity (Amendment) Bill. The bill would replace existing deprivation of liberty safeguards with an entirely unfit new system of protection. To avoid the risk of exploitation and abuse it is vital that there are robust safeguards in place.
Alarmingly, the bill proposes to triple the time that people can be deprived of their liberty without review…while not doing enough to guarantee that all patients have access to independent and impartial advocates.”
This is what we have been debating.
The letter continues:
“The bill also creates a worrying conflict of interest for care home managers, giving them a greater role in the assessment process. Many vulnerable people will find it hard to express their concerns to a person providing them with care. The result is a rushed, incomplete and unworkable bill that will replace one dysfunctional system with another”.
That encapsulates everything that we have been trying to say.
Alex Norris (Nottingham North) (Lab/Co-op)
My hon. Friend lists a range of the most eminent and significant organisations in the field that we are discussing. They use words such as “dismay”, “rushed” and inadequate. Should that not be a big, flashing red light for hon. Members to say that perhaps this course of action is not the right one to be taking?
Barbara Keeley
Absolutely, I agree with my hon. Friend. On Second Reading, I said that the Bill should be paused, while we wait for the Government’s response to the Mental Health Act review. Every time I mention this, there is a groan from the Government Benches. We should not be rushing these complex areas. Even senior judges find the interface between the two pieces of legislation very difficult. We should not be introducing legislation that will be out of date almost immediately.
The impact assessment was produced over six months ago and it is now out of date. We have no idea how much the proposals in the Bill will cost or how much they will help to reduce the backlog of applications. We are being asked to debate and vote on the Bill now, and it is difficult with a six month old, out of date impact assessment. Even in the original impact assessment, it was unclear where some of the costs came from. The Government have not adequately explained the cost of their proposals. In the last sitting, I asked a series of questions about implementation. I would be grateful if the Minister could write to me with responses to those important questions.
We have heard constantly in our debates about how things will be included in the code of practice. On the first day of Committee, the Minister said that she would supply an outline of what it will contain. We only saw that document last night. An outline of what areas will be covered does not give us the full idea of what the code will contain. To some extent, it is better than nothing, but we have no idea of the detail. We cannot be asked to agree to a new system when so much of the detail is yet to be published. We need Parliament to approve the code of practice, rather than it being taken through by a method that is near impossible to stop. If there are problems with the code of practice, we should be examining the Bill and the code of practice side by side. We will press the amendment to the vote.
Question put, That the amendment be made.
Caroline Dinenage
I beg to move amendment 1, in clause 5, page 4, line 25, leave out subsection (9).
This amendment removes the privilege amendment inserted by the Lords.
Caroline Dinenage
Parliamentary procedure requires a privilege amendment to be included in a Bill that starts in the House of Lords and has financial implications. It is then removed in the House of Commons as a standard procedure.
Clause 5 sets out the territorial extent of the Bill, which is England and Wales. This clause sets out that clause 4, except subsection 6, and clause 5 come into effect immediately on the Bill being passed. The rest of the Bill comes into force on a day nominated by the Secretary of State. Different days may be appointed for different purposes or different areas of the Bill. Clause 5 also gives the Secretary of State a power to make transitional arrangements by regulations. I recommend the clause to the Committee.
Barbara Keeley
Government amendment 1 is, of course, entirely uncontroversial. We cannot implement a new system until the Government are authorised to pay for it. I have a question for the Minister, following our conversation about the financial impact of the Bill: in the light of the changes that have been made to the Bill in the past few months, will she give us an estimate of how much expenditure we are being asked to agree?
We will not oppose the amendment, but I feel that members of the Committee should have an idea of what they are agreeing. We definitely need to have the updated impact assessment as soon as possible and certainly before Report stage. It is not acceptable to have an impact assessment that is six months out of date. We want to know how much the new system will cost before the Bill concludes its passage through the House. Only if that happens will we be confident of the amount of expenditure agreed to.
On clause 5 more generally, I am disappointed that the Minister has opposed all our amendments. In particular, I remain concerned about the code of practice, when it is finally produced. I counsel her against trying to rush it through the House, with little opportunity for Members to provide feedback. We have tried valiantly on this Bill Committee to bring up issues of great importance in the Bill, and they need to be listened to.
The Government have said that the new system will not come into force until the code of practice has been published, so there is no real reason not to agree to have the code of practice approved by each House before the Bill is enacted.
I hope the Minister will reflect carefully on what has been said in our debate on the Bill. As is evidenced by the letter from all those organisations in The Times today, the Bill contains significant flaws. It would not be unreasonable for some of our concerns to be addressed before the Government even try to bring in the new system. With that, we will not oppose clause 5 stand part, but we hope the Minister will use the powers in the clause to ensure that the Government get the system right before they roll it out.
Amendment 1 agreed to.
Clause 5, as amended, ordered to stand part of the Bill.
New Clause 1
Meaning of deprivation of liberty
“(1) After section 4 of the Mental Capacity Act 2005 insert—
‘4ZA Meaning of deprivation of liberty
(1) In this Act, references to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the Human Rights Convention and, accordingly, a person is not deprived of liberty in any of the circumstances described in subsections (2) to (4).
(2) A person is not deprived of liberty in a particular place if the person is free to leave that place permanently.
(3) A person is not deprived of liberty in a particular place if—
(a) the person is not subject to continuous supervision, and
(b) the person is free to leave the place temporarily (even if subject to supervision while outside that place).
(4) A person is not deprived of liberty if—
(a) the arrangements alleged to give rise to the deprivation of liberty are put in place in order to give medical treatment for a physical illness or injury, and
(b) the same (or materially the same) arrangements would be put in place for any person receiving that treatment.
(5) A person is free to leave a particular place for the purposes of subsections (2) and (3) even if the person is unable to leave that place provided that if the person expressed a wish to leave the person would be enabled to do so.’
(2) In section 64(5) of that Act (interpretation) for the words from ‘same’ to the end substitute ‘meaning given by section 4ZA.’”—(Caroline Dinenage.)
This New Clause provides the meaning of “deprivation of liberty” for the purposes of the Mental Capacity Act 2005.
Brought up, and read the First time.
Caroline Dinenage
I beg to move, That the clause be read a Second time.
The new clause provides statutory clarification in relation to the meaning of deprivation of liberty for the purposes of the Mental Capacity Act. The Mental Capacity Act defines a deprivation of liberty by reference to article 5 of the European convention on human rights. The proposed new clause adopts the same fundamental approach, by anchoring the meaning of deprivation of liberty to article 5.
As Committee members will be aware, the 2014 Supreme Court Cheshire West case changed what was commonly thought of as a deprivation of liberty, resulting in an eighteenfold increase in people entering the DoLS system, and applications are still growing year on year. That resulted in a significant rise in resource use for local authorities and the care sector, resulting in a backlog of over 125,000 people waiting for their applications to be authorised, as I have mentioned on numerous occasions during our debates.
The Law Commission was against a definition of a deprivation of liberty, but noble peers, stakeholders and the Joint Committee on Human Rights have all called for a definition to be included in the Bill, to bring proportionality to this situation and ensure that liberty protection safeguards are appropriately applied. The new clause does that by bringing clarity to prescribing circumstances, or exceptions, that are not a deprivation of liberty. If a person meets the conditions in one of its subsections, they are not being deprived of their liberty and so do not fall under the liberty protection safeguards. These subsections are drawn from case law.
The Department has decided not to include a full definition of a deprivation of liberty because primary legislation needs to be extremely clear and precise, and case law is constantly evolving. That makes it difficult to draft a definition that will remain sufficiently precise, given that the definition may change as case law develops. For that reason, we must be extremely wary of the unintended consequences of including a full definition in relation to such a complex matter. By taking this exclusionary approach, we will enable the definition to remain valid as new cases come forward, as there should be sufficient flexibility within the clause for case law to develop in parallel.
An important point to make Committee members aware of is that the clause would be accompanied by detailed statutory guidance and case studies within the code of practice. Here we would set out scenarios as workable examples of the subsections, to assist practitioners as they determine whether someone is being deprived of their liberty. I would like to assure colleagues that these supporting materials will give the detail and depth required for those in the sector, and local authorities, to identify a deprivation of liberty. We are working with stakeholders already to gather these scenarios in a wide range of settings, including care homes, private domestic settings and supported living. The clause would apply to 16 and 17-year-olds, as the rest of the Bill does, but we recognise that the circumstances of this vulnerable group of people can be different, and that will also be reflected in the guidance.
The inclusion of a clause in relation to consent has been carefully considered, but one has not been included. That is for several reasons. First, to give valid consent, an individual would need capacity, as set out by the Mental Capacity Act. If they have capacity and are consenting to the arrangements, then that automatically cannot be a deprivation of liberty. Secondly, there is not enough in case law to support the validity of de facto consent—that is, consent given by someone without capacity—and I am concerned that it would not be compatible with the Human Rights Act 1998. Above all, we must protect the rights of cared-for people.
The new clause will clarify issues post Cheshire West, it will determine when the LPS should and should not apply, and it will support those planning care in considering the least restrictive options to enable greater freedom for those in their care.
Barbara Keeley
Over the last few sessions, we have talked at great length about when it is appropriate to deprive somebody of their liberty and how can we prevent this being done inappropriately. We have talked about the safeguards that could be put in place to protect the cared-for person. I regret to say that, as we speak now, the Bill contains fewer and weaker safeguards than the Opposition would have liked.
However, we are not quite finished yet. We have one substantial amendment left to discuss. There is one question that anyone watching these proceedings will no doubt have been asking themselves: what precisely do we mean when we talk about depriving somebody of their liberty? In practice, what does that legal term mean? As the Minister said, the term itself comes from the European convention on human rights. Article 5 says:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases in accordance with a procedure prescribed by law”.
One of those cases is that of
“the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.”
It is the provision relating to “persons of unsound mind” that we are discussing in this Bill. I am glad to say that the Bill itself no longer uses the somewhat stigmatising phrase “unsound mind” and instead talks of having a “mental disorder”. That may not be to the letter of article 5, but it is preferable.
As always with the European convention, the terms used do not give us an immediate definition of what counts as deprivation of liberty. That task is frequently left to the courts. In 2014 the Supreme Court ruling in the case of Cheshire West and Chester Council v. P drew a far broader definition of deprivation of liberty than had previously applied. We have referred to that case on a number of occasions during the Committee. This broadening led to the number of applications for deprivation of liberty safeguards increasing by a factor of 17, rising from around 13,000 in 2013-14 to over 225,000 in 2017-18. That is a major reason for the backlog of applications discussed in this Committee.
Cheshire West and Chester Council v. P set out an acid test that should be followed when deciding if somebody is deprived of their liberty. Unfortunately, that acid test is not as clearcut as might have been desired. In her judgment, Lady Hale referred to “complete supervision and control” and the person being “not free to leave”. For Lord Neuberger, the crucial conditions were
“continuous supervision and control and lack of freedom to leave”,
as well as the
“area and period of confinement”.
Lord Kerr went further, and focused on the duration for which a person is restricted.
When the Government set out their plans to reform the deprivation of liberty safeguards, there were calls for them to include a statutory definition of deprivation of liberty. As the Minister said, there were many calls in the House of Lords. A definition would provide practitioners and cared-for people with greater surety as to whether deprivation of liberty was taking place.
I am glad the Government have listened in this one case, but there are issues with the definition we have, and some matters on which I hope the Minister can provide us with clarity. There are two strands of objection to the Government’s proposed definition, both of which have been strongly put to me by stakeholders.
The first major objection is that it is not clear how the proposed definition would interact with case law. The Minister has referred to this, but we need to be clearer. Not only is there the case of Cheshire West and Chester Council v. P, but there are a number of judgments handed down by the European Court of Human Rights. My question to the Minister is, is this deliberate or accidental? If it is deliberate, why does she feel that a brief definition—on which there has not been wide consultation—is better placed to define deprivation of liberty than an extensive body of case law? We had a meeting with stakeholders, and half the people in the room had not seen the definition at that point—it had not been circulated. If the change is accidental, then I look forward to hearing how the Government will rectify the situation.
One of the immediately apparent issues in the definition is proposed new subsection (3)(b). This holds that a person is not deprived of their liberty if
“the person is free to leave the place temporarily”.
In the case of Cheshire West, MIG, MEG and P frequently left their accommodation to go on outings with support, yet the Supreme Court held that they were still deprived of their liberty. Given this, will the Minister confirm whether her definition does not properly describe the case law, or is she seeking to overrule the Supreme Court through this new clause?
It is not just the Supreme Court that has disagreed with this principle. One of the landmark cases heard by the European Court of Human Rights in relation to mental capacity is Stanev v. Bulgaria. Mr Stanev was a man with learning disabilities who lived in an isolated care home in rural Bulgaria. He was permitted to go on trips and outings on his own. However, to do so he had to ask permission from the care home where he was resident. When he tried to leave for longer than was expected, the care home took steps to force him to return. The European Court of Human Rights was clear that that amounted to a deprivation of his liberty.
Other cases have been raised in evidence to this Committee that show how temporary outings from a setting do not mean that someone has not been deprived of their liberty. In both DD v. Lithuania and K v. Poland, the individuals were allowed outside the residential establishment, but only with permission, and under the control and supervision, of the management of the facility.
It is clear that both the Supreme Court of the United Kingdom and the European Court of Human Rights feel that being able to leave temporarily is not a guarantee that somebody is not deprived of their liberty. Yet the Government are proposing the opposite. I cannot understand how they think this definition will withstand challenge in the courts.
I also raise a concern about the phrase “continuous supervision”, as used in proposed new subsection (3)(a). In Cheshire West and Chester Council v. P, both Lady Hale and Lord Neuberger referred to continuous supervision and control. That is a crucial difference.
I hope the Minister can provide clarity. Is her amendment failing to describe adequately the case law, or is it seeking to overrule the judgment handed down by the Supreme Court? That would create a number of issues. The first, and most serious, is that the new liberty protection safeguards will fail to protect all the people who need them. An ambiguous definition of deprivation of liberty risks seeing people excluded when they should not be.
The second issue is more mundane. If I can see a number of tensions between case law and the Government proposal, I am sure there will be numerous lawyers who specialise in this topic who will have done the same. That will result in further costly litigation in future. I am sure the Government did not intend to create a hefty legal bill for responsible bodies, but I am afraid that may well be what the Bill does.
It has been suggested to me that one reason the definition is so tightly drawn is to reduce the number of people who are subject to the liberty protection safeguards. I feel sure that was not the Minister’s intention, but when a statutory definition seeks to define deprivation of liberty more tightly than the courts do, she will understand that people draw their own conclusions.
We must be careful that we do not resolve the issue in front of us by sweeping it under the carpet. Reducing the backlog should not be achieved by redefining which groups of people are covered. That runs the risk of people who need the protections of a liberty protection safeguard being denied them.
The second major objection to this definition is that it is not sufficiently clear as to be useful. I have seen examples that I think illustrate that particularly well, and I will share some of them now. I should stress that, although they are based on real cases and on the views of care home managers on how they interact with the proposed definition, some details have been changed to protect the cared-for people. I would like to thank Care England—the representative body for care homes—for assisting with the preparation of these examples.
The first case is that of Jimmy, who lives with an alcohol-related dementia in a specialist care home that allows no access to alcohol. He was admitted having had an extremely squalid lifestyle and was found to have advanced cirrhosis of the liver. If he drinks alcohol, it will kill him very rapidly and unpleasantly. He lacks capacity to consent to remain and was admitted from hospital after treatment for a broken hip, which he could not explain.
Jimmy has been in the care home for five years, successfully abstinent, except for one episode when he was permitted to go out alone. When he goes out, it is with staff, so he cannot drink. He says he “quite likes” the care home and the food and that the staff are kind, but he is obsessed with living alone in a flat in the community, and is open about the fact that that is only so he could drink.
The local authority is clear that it could not fund the necessary staffing to prevent him from drinking in the community and provide the help he needs with daily living. So is Jimmy deprived of liberty? It would certainly seem so. He wants to move somewhere else, but that request has been denied. It might be in his best interests to remain, but it is not his preference. Under the Government’s amendment, he would not be seen as deprived of his liberty. He is not subject to continuous supervision while in the care home, and he is able to go on outings with supervision. Either of those would exclude him from the Government’s proposed definition.
In reality, this case is based on that of DM in 2017. DM was enabled by article 5 to challenge the authorisation of a deprivation of liberty safeguard. The case went to court, where a judge eventually ruled that the least worst option was for him to stay in the care home for the duration of the authorisation. Both the judge in DM’s case and the Official Solicitor were clear that DM was deprived of his liberty. Which is to take precedence—the Government’s definition or previous decisions of the courts, as in this case? If we pass this definition, will DM suddenly cease to be deprived of his liberty?
A second case is that of Sara, who is 21 and has a learning disability. She was moved from her family home to a care home following a safeguarding alert caused by bruising that was thought to be the result of physical abuse by a family member, but evidence swiftly emerged that she had been seen to punch herself when arguing with another young person on an outing. The local authority refused to return her to the family home, stating that she was settled in the care home and showed no signs of wanting to return. Her parents visit her and take her out with her siblings. Within the care home she has privacy in her bedroom, so she is not regarded as being under continuous supervision. Sara has no verbal communication, but carers and others noted that when her visitors were leaving she would take her clothes off their hangers, put them in a bag and then drag the bag to the door while holding the hand of the visitor.
According to the Government’s proposal, Sara is not deprived of her liberty; she is not subject to continuous supervision and she is allowed to go on outings. Furthermore, the local authority says that she is happy in the care home and has not expressed any desire to leave. On this basis, the local authority says, there is no deprivation of liberty. It is clear that if Sara wanted to move, she would be enabled to. Because Sara is not seen as being deprived of her liberty under the proposed definition, she and her parents would be powerless to enable her to access the rights that article 5 would give her.
In that case, the disproportionate response to the original bruising, which had in fact been satisfactorily explained, and the nature of Sara’s objection to being forced to live away from her home being non-verbal were only noted as part of the investigation by the Court of Protection. This happened only when Sara’s representative challenged a deprivation of liberty safeguard authorisation on her behalf. If she was not recognised as being deprived of her liberty, this could not happen. The court was appalled that her unhappiness and wish to be at home were not recognised.
The purpose of any definition is to provide absolute clarity to practitioners and, perhaps more importantly, cared-for people and their families. It exists to tell people when they are deprived of their liberty and thus have certain rights that can be engaged. As such, it is of little use if people cannot use it to make such a determination. At the moment, the definition does not serve this purpose. Had P read this definition, they would almost certainly have concluded that they were not deprived of their liberty, and their case would never have gone to court.
I know that the Government have said that their code of practice will contain far more detail on how this definition will be applied. Once again, the Minister is asking us to accept assurances that everything will be fine, when we have no evidence to suggest that this will be the case. A detailed code of practice would not in and of itself prevent this definition from being ruled incompatible with the European convention on human rights. The law is what it says, and a code of practice exists only to provide guidance on its interpretation.
I hope that I have explained why we have deep reservations about the definition that the Government have put forward. We have not tabled any amendments that seek to alter the Government’s proposed definition of deprivation of liberty, but let me be clear that that is not because we feel that it is fit for purpose. This is an issue of immense importance and complexity and should be treated as such. The reality is that the Government have done no such thing. Their definition was introduced late on and stakeholders had very little time to make their views known.
This is a fundamental pillar of our human rights system. A definition that attempts to distil and seemingly alter a huge body of case law is not a straightforward insertion and it cannot be rushed through. If we get this wrong, we will be letting down tens of thousands, if not hundreds of thousands, of people who are deprived of their liberty and need access to the safeguards of the LPS system.
Our view on what should happen now is clear. The Government should withdraw their new clause, put their proposed definition out to a wide public consultation and listen to what experts have to say. Once they have done that and produced a definition that carries broad support, they should introduce it on Report. If they remain determined to rush the Bill through, they should introduce it at a later date. If they do not do so, they risk creating a legal mess.
On Second Reading I said that nobody wants to create a Bill that requires amendment some months or years down the line. This new clause would do just that. It is pitted against decisions of the Supreme Court and the European Court of Human Rights.
Caroline Dinenage
Is the hon. Lady suggesting that there should not be a definition?
Barbara Keeley
No, I welcomed the fact that the Government were trying to put in a definition, but this definition is not fit for purpose. The problem is that, as with everything else in the Bill, it was rushed. At the meeting I had with stakeholders not very many weeks ago, almost everyone in the room had fears about it. Many of them had not even seen it. The process has been wrong.
I made it clear to the Minister what I think the Government should do. They should withdraw new clause 1 and not put it to a vote. They should put the definition out to consultation, and not introduce it again until those involved with the definition are happy with it. Then we can be clear. Pitting a Government decision against decisions of the Supreme Court and the European Court of Human Rights is not wise; it is a knotty problem. I am not a lawyer myself, but I have listened enough to people who are experts in this area to know that it is a problem.
Perhaps I can encapsulate the problem in one final question to the Minister. On the front of the Bill the Secretary of State certifies that he feels it is compatible with the European convention on human rights. Given some of the points that I have just raised about the definition, is the Minister confident that the Bill would still be compatible if we agreed to the new clause?
Alex Norris
Liberty, Mind, the Alzheimer’s Society, the National Autistic Society, POhWER, Parkinson’s UK, the British Institute of Human Rights, Sense, Compassion in Dying, YoungMinds, Learning Disability England and Headway all say that this is “rushed, incomplete and unworkable”, and that in general they feel the whole exercise is entirely unfit. It is well within the prerogative of the Government of the day to say that they are right and that all those organisations are wrong, but it is, dare I say it, quite a brave thing to do. For the benefit of the Committee, and of everybody else who has taken an interest in these proceedings, it might be worth explaining why the Government feel that they are right and the Bill is fit for purpose, and that the new clause, which very much puts the cherry on top of the Bill, is worth standing part of it.
Mr Dhesi
Does my hon. Friend agree that that is an indictment of the whole process, and of the rushed manner in which the Bill has been introduced? To have one organisation from among those 13 eminent organisations come forward in The Times today and use words such as “rushed”, “incomplete”, “unworkable”, “unfit” and “dysfunctional” would be bad enough; to have all 13 do so makes the entire process look like complete folly.
Alex Norris
I completely agree. To me it is a big, blinking red light that says that perhaps we need to pause and think again. Nothing typifies that more than new clause 1. It is helpful to have a definition in the Bill, and there is broad support for that. I also have some sympathy for its being exclusionary, rather than put in a positive manner, because we know, irrespective of what ends up in the Bill, that it will end up in court.
This is a hotly contested area of case law. It feels a bit like what it must be like to be an American legislator—we are almost waiting for what we do to be tested in court to see if it is okay. I have no doubt, with things as they are currently comprised, that we will be back. I do not know whether it will be a couple of months down the line or a couple of years, but if we carry on we will certainly be back.
The approach laid out by my hon. Friend the Member for Worsley and Eccles South is sensible and proportionate, and it might give us an opportunity to resolve the issue, by sending the new clause, which has appeared between stages, to the sector and asking, “How do you feel about this?” in order to get some engagement. That would give us more time for the lawyers to do their thing too. That seems quite sensible.
It would also give us a chance to take a breath on the whole Bill, and a little more time to see whether we can resolve some of the issues that we have discussed over the last two weeks. Many of the things we as an Opposition have put forward have had merit; perhaps our approach has not always been perfect, but to find better ways to try to address those things would be good for us all.
I will move on to my second concern. If new clause 1 becomes part of the Bill and the Bill becomes an Act, the smoke will come out of this place and send a clear signal: “We know that DoLS doesn’t work and hasn’t worked for a long time. Here is what is going to come next. Here is what we mean by ‘deprivation of liberty’ and here is what you can expect.” I maintain my anxiety that we will have only solved half of the problem, or one of two problems, because it is entirely possible for a big problem—in this case DoLS, the backlog and people’s experiences of that process—to be multifactorial.
No one has contested the fact that the DoLS system did not work and ought to be replaced, but there is a big, yawning and currently unanswered question of resources. I was concerned to hear the Minister say that they are the result of political decisions. I have been in that chair, as the local adult services lead on my council for three years, wrestling with DoLS. Is it a political decision? Yes, maybe it is, in the sense that we are basically trying to juggle whether to deal with assessing new people on their social care needs, assessing whether the needs of people currently in the social care system have gone up or down or, indeed, areas such as DoLS, all of which carry enormous risk to an individual, a local authority and a community as a whole.
In the sense that it is a political choice, it is like saying, “Your house is on fire; are you going to put out the lounge or the kitchen first?” You would just grab the bucket of water and chuck it at it, frankly. There is no political decision in that, or certainly not one of due prioritisation. Ultimately, if we are going to include this new clause in the Bill to set up the new system and legislation to set the new way, we must have absolute clarity that the finances are going to be met. Otherwise, the system will fail and we will, certainly with new clause 1, have elevated people’s expectations. At the moment people expect to be disappointed, because they know the system does not work. Now we are going to tell them that we have a new system that works, and then it will not. I suspect that is why all those eminent organisations have said that it is where it is.
On this point and on others, I feel that we on the Opposition Benches have made strong arguments about ways of improving the Bill, but it is not just us. It is not just partisan knockabout; it is not political. It is not a case where the Government say one thing so therefore the Opposition oppose. We should look at the organisations that are also saying, with flashing lights, “Please stop and have a think about this.” Otherwise, as I say, we will be back.
Caroline Dinenage
I think it would be helpful if I began by setting out how we got to where we are, for the sake of clarity, although I know that many hon. Members know this. The case of MIG and MEG and P widened the understanding of the scope of deprivation of liberty safeguards with the Supreme Court decision that:
“A gilded cage is still a cage”.
Even though the cared-for person was happy in their situation, it was still a deprivation of liberty and required a safeguard. The acid test set out by Baroness Hale in Cheshire West had two limbs: first, is the person subject to continuous supervision and control, and secondly, is the person free to leave? We can see that test running through this clause. We cannot directly challenge or go against Cheshire West, as it is the Supreme Court’s articulation of article 5, and our Bill must be compliant with the European convention on human rights. That is why deprivation of liberty continues to be defined by reference to article 5 of the ECHR.
We are confident that the exceptions in subsections (2) to (4) represent existing case law. The clause defines deprivation of liberty in that way, and the subsections are consistent with and drawn from existing case law—for example, as I have detailed, subsections (2) and (3) are based on the Cheshire West acid test. It is unlikely that there will be a mismatch between our clause and the High Court’s view; it may be that the clause is subject to litigation in future, but we are confident that the Government’s approach of providing for situations that would not constitute a deprivation of liberty will give sufficient flexibility for the meaning of the clause to develop alongside case law as that evolves.
Much of the discussion has emphasised how incredibly complex a legal matter this is; the clause must be drafted incredibly carefully to ensure that it is legally compliant. We have worked with other Government Departments such as the Ministry of Justice to develop the clause. We listened to stakeholders and peers during the progress of the Bill through the House of Lords to understand their requirements for a definition and drafted the new clause in a way that would achieve what they wanted legally. Since drafting it, we have shared it with stakeholders to explore its impact. We are consulting a wide variety of organisations to gather case studies, which we will use in the statutory guidance.
Steve McCabe (Birmingham, Selly Oak) (Lab)
I wonder whether the Minister can explain how, if there was consultation with stakeholders, my hon. Friend the Member for Worsley and Eccles South has that impressive list of organisations with such grave reservations. That suggests the consultation was a bit inadequate.
Caroline Dinenage
The decision to put the definition in the Bill was made in the House of Lords. We had to work carefully on the definition. That information has been shared with stakeholders only in the past couple of weeks. The definition is where we have been working most latterly.
Stakeholders have agreed to work with us and to bring forward case studies that we can put in the statutory guidance that will make it very clear how the Bill will work in every instance and for all the different types of vulnerable people we have discussed. That is what we need to provide clarity. Those case studies will demonstrate how the exceptions will apply in different settings and scenarios, provide clarity, and aid practitioners in identifying when one of the exceptions applies. We are working with stakeholders to co-produce that guidance to ensure that it is clear, unambiguous and of real help to those who use it. It would not be appropriate to include that kind of detail in primary legislation. As I have tried to articulate, the new clause needs to be precise and to fit with evolving case law.
Barbara Keeley
I constantly get the feeling when I listen to the Minister that she is describing a happy situation that, unfortunately, the evidence suggests does not exist. The notion that she is co-producing the definition with stakeholders is not what stakeholders say. My hon. Friend the Member for Nottingham North and I read out the list of organisations that object to the Bill and the severe comments they have made about it. If the Minister were in fact co-producing parts of the Bill and the definition with stakeholders, they would not be writing to The Times describing the Bill in that way.
Caroline Dinenage
We are talking about the definition. I am not saying we have co-produced it with stakeholders, but we have given a copy of it to stakeholders, asked for their feedback and asked them to supply case studies. Some have welcomed it and see it as absolutely necessary to provide the clarity we are looking for.
The Law Commission report shows that overly cautious application of DoLS is unnecessary, but we want an effective system with access to safeguards, as required by article 5 rights. The hon. Lady raised a number of case studies, including Stanev v. Bulgaria, in which Mr Stanev needed permission to leave. We will make it very clear in the code that a person is not free to leave if they require approval or permission. That is also clarified in subsection (5) of proposed new section 4ZA of the Mental Capacity Act.
We intend to set out in the statutory guidance, by reference to case studies, how that should be interpreted. For example, we understand that in care homes, cared-for people are often left unsupervised for many hours of the day yet may still be regarded as being deprived of their liberty. We do not intend to exclude those people without discretion. We will set out in the guidance the circumstances in which someone should be regarded as not being under constant supervision, such as how frequently they are checked and the monitoring that is present. We are also conscious that “continuous supervision” means different things in different settings, and I welcome the contribution of my hon. Friends towards that.
There is also a sliding scale of situations we expect to be excluded by subsection (3)(b) of proposed new section 4ZA. We will expand on that in the guidance in consultation with stakeholders. For example, the place must be one to which the person has a wish to go rather than one solely of staff’s choosing. It is worth pointing out that both limbs of subsection (3) must be met for a person to be excluded by it. For example, if a person is not continually supervised in a care home but is not free to leave temporarily, the subsection does not apply.
Although we aim to bring clarity, we recognise that every case is different. I hope I have articulated that this will be a person-centric system. We do not want a one-size-fits-all approach, which is the problem with the system that we have now. That approach is no longer fit for purpose for such a vastly different and vulnerable group of individuals. With that in mind, I ask that new clause 1 stand part.
Barbara Keeley
I gave some good examples of cases where the Government’s definition clashes with case law, which is why I think it will run into problems very soon. It is still the Opposition’s view that the Government should withdraw the new clause. As we said, they should put the proposed definition out to wide public consultation—passing it round a few individual stakeholders is not the way to do it—and listen to what experts say. Once they have done that and produced a definition that carries broad support, which they do not have at the moment, they should introduce it on Report, which needs time. If the Government are thinking of rushing to Report stage while so much is left in an unsatisfactory and poor situation—if they remain determined to hurry the Bill through—it should be introduced at a later date. The Opposition’s view is that the Government risk creating a legal mess should they not do that.
Question put, That the clause be read a Second time.
Barbara Keeley
May I thank you, Mr Pritchard, and Mr Austin? In our first sitting, we not only had a horrible sauna of a room, but a number of us had not sat on a Bill Committee or, in my case, had not done so recently. There has been excellent chairing, supported very ably by the Clerk who we have had working with us. Everyone has done a wonderful job. The Hansard Reporters always do a wonderful job of making sense of what we churn out, and we have kept the Doorkeepers busy with many votes.
I said at the outset that we would proceed in the spirit of co-operation, which I think we have. The Opposition have treated this subject with respect for the required depth of scrutiny. It is only a short Bill and we have scrutinised it well, which is nothing less than cared-for people, who will be affected by it, deserve.
Given that they have worked very hard, I offer my sincere thanks to my hon. Friends, who have contributed so thoughtfully and carefully to this important debate. My hon. Friend the Member for Birmingham, Selly Oak has been assiduous at getting to the heart of the Bill. My hon. Friend the Member for Stockton North brought his critical eye—he tells us it comes from being a journalist—to this very complex Bill, and he explored the issues with great humanity.
My hon. Friend the Member for Nottingham North brought to our proceedings his immense knowledge of DoLS from his time as a councillor, and his other insights have been very useful. My hon. Friend the Member for Stockton South, who is not in his place at the moment, brought valuable insights from the perspective of a medical practitioner—that is always useful to have, as medical practitioners will have a role in the proposed system. My hon. Friend the Member for Slough made a number of interventions and gave a very good speech this morning, holding the Government to account in his debut on a Bill Committee. Our hard-working and wonderful Whip, my hon. Friend the Member for Bristol West, worked with the Government Whip to ensure that proceedings ran smoothly. My hon. Friend the Member for Dewsbury made some excellent contributions in her first appearance on a Bill Committee.
I thank the many stakeholders and practitioners who have written to us to express their concerns about the Bill, and who have worked with us. I also thank everybody who submitted evidence to the Committee—it must have been a real rush for people to get that evidence in. They are too many to name, but I will mention a few. Lucy Series has done sterling work in unpicking the legal ramifications of the Bill. POhWER and VoiceAbility provided many of the excellent case studies that have been used to demonstrate the importance of advocacy in caring and to highlight some of the issues facing the Government’s proposed definition of deprivation of liberty, which we just discussed.
I hope the Government will reflect on what we have discussed. Many areas of the Bill are still deficient, and the concerns of stakeholders have not been addressed. We will continue to work in a constructive spirit in order to build a system that protects the liberties of all cared-for people in our country.
The Chair
Before I put the Question, I thank the hon. Lady for her thanks. It is always wise to thank the Government and Opposition Whips. I had not noticed that it was the first time on a Committee for so many colleagues. It has been an absolute delight, because everybody has conducted the business so professionally. I put on record my thanks to my co-Chairman, the hon. Member for Dudley North—Dudley is a marvellous place and very close to my constituency—and to Adam, who has done a sterling job as the Clerk, keeping us on the straight and narrow. I join the hon. Lady in thanking the Doorkeepers, who do a great job—particularly opening the windows in the sauna that we had for a few days. I thank the Hansard Reporters and officials for their excellent work. Lastly, I thank all of you for being so well behaved. You are the best Bill Committee that I have served on, and I thank you very much indeed.
Question put and agreed to.
Bill, as amended, accordingly to be reported.