Mental Capacity (Amendment) Bill [ Lords ] (Sixth sitting)
Debate between Baroness Keeley and Alex Norris(5 years, 9 months ago)
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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.
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.
Mental Capacity (Amendment) Bill [ Lords ] (Fourth sitting)
Debate between Baroness Keeley and Alex Norris(5 years, 9 months ago)
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Barbara Keeley
I beg to move amendment 34, in schedule 1, page 15, line 34, at end insert—
“(3A) Where the person consulted under sub-paragraph (2) has parental responsibility for the cared-for person, the consultation shall seek to ascertain that person’s wishes and feelings in relation to the arrangements.”
This amendment introduces a requirement to consult parents about their child’s care arrangements.
The amendment follows on from amendment 30 on parental consent and amendment 38 on approved mental capacity professional reviews for 16 and 17-year-olds. It would provide an additional and equally important tool to ensure that 16 and 17-year-olds, who will now be subject to the Mental Capacity Act 2005, are afforded the proper safeguards.
I have previously welcomed the inclusion of 16 and 17-year-olds in the Bill, as it is important that they do not fall through the cracks in the system. Their inclusion provides consistency with the remainder of the Mental Capacity Act, which makes no distinction between 16 and 17-year-olds and people older than them, but the Bill does not go as far as was recommended by the Law Commission, which wanted the Government to carry out a full review of mental capacity law as it relates to children and young people. I hope the Government are still considering that recommendation. The current system leaves children under 16 in an uncertain legal position as there is no provision for them to be subject to mental capacity legislation, so I hope a review is forthcoming.
The amendment focuses on the consultation process that must be carried out before an authorisation is either granted or renewed. That is one of the most important processes that will be carried out under the liberty protection safeguards, as it will ensure that the cared-for person and others who are interested in their welfare have a say. Since we will not cover consultation in great detail in future, I will briefly outline why the process is of such importance in the context of the amendment.
In this area, the Bill goes considerably further than the existing deprivation of liberty safeguards system. It is welcome that we are moving on from a situation where consultation is optional to one where it is mandatory. That is a crucial part of understanding whether the arrangements are in a person’s best interests, particularly in cases where a person has communication issues—we explored that this morning. Those with an interest in a person’s welfare may be the best placed to comment on their wishes and feelings. That is a broad group, which is why the phrase “people with an interest in the cared-for person’s welfare” is so vital. It covers family members, but goes further where it needs to. It could include anyone, from fellow members of a church congregation to a neighbour who keeps an eye out for the cared-for person. The consultations are not optional; the Bill contains provision that those people must be consulted. Unfortunately, how the results of the consultation should be integrated with other assessments is not mentioned. I suspect that, again, that will appear in the much-fêted code of practice when it is finally published.
I hope it will become clear that the results of the consultation should be given appropriate weight in considering whether arrangements are necessary and proportionate. In most cases, that will be sufficient, but the views of some of the groups to be consulted that are mentioned, and one crucial group that is not specifically mentioned, should be given greater weight. This amendment refers specifically to 16 and 17-year-olds, and there is a group with a specific legally grounded interest in their welfare: the individuals who have parental responsibility for the cared-for person. We want to ensure that people with parental responsibility have their different role recognised. Amendment 30 on parental objection was one way that could be achieved; amendment 34 is another.
In the Mental Capacity Act 2005 there are a number of provisions, as part of the best interest requirements, that would be integrated into the consultation process. I will quote from those briefly. Section 4(6) of the Act requires an assessment to be made on
“the person’s past and present wishes and feelings…the beliefs and values that would be likely to influence his decision if he had capacity, and…the other factors that he would be likely to consider if he were able to do so.”
Those are not necessarily things that would be obvious to just anyone interested in a cared-for person’s welfare. In particular, beliefs and values are often deeply personal. To ensure those are properly captured, we must ensure that those people who know the cared-for person best are not only consulted but given a meaningful say on the arrangements.
When the Bill was published, the requirement was that anybody with an interest in the cared-for person’s welfare must be consulted, but as I said, it went no further than that and did not specify what the consultation would seek to do. Because the Bill extends to 16 and 17-year-olds, that provision is now clearly deficient. Parents have a greater stake in their children’s welfare than others, but more than that, parents can give a greater insight into the beliefs, values, wishes and feelings of their children than those who have other relationships. Legislation such as the Children Act 1983 recognises that fact and provides parents with a far greater say over what their children do than is normally given to other family members. In particular, existing legislation creates a presumption that a person with parental responsibility has a significant say over where a child or young person lives. We are talking about an age group that requires parental permission to get married or even to get a tattoo. It is clear that the parents of 16 and 17-year-olds have rights and responsibilities that vastly outstrip those found in other relationships. The amendment would reflect that importance.
This is a distinct issue from the one raised in amendment 30 on the role of parental consent in authorising arrangements. We have touched on that before. Inevitably, there will be cases where parents do not wish to withhold their consent completely, but none the less have reservations or suggestions that should be taken on board, particularly in the case of 16 or 17-year-olds, who may sometimes display challenging behaviour. In those circumstances, parents may not wish to veto arrangements completely, as that may leave them without the support they need.
We are taking about situations where parents may find themselves pitted against professionals. We all know the feeling of being told by a doctor that something is in our best interests; mostly, we do not challenge those assertions, but that does not mean that professionals are infallible. In cases of such importance, where we are dealing with people’s fundamental human rights, it is important that we test such presumptions.
I have spoken previously about the case of Bethany, who was held inappropriately in St Andrews independent hospital. Despite the difficulties, in some ways Bethany is fortunate that her father is able to stand up for her and argue against what professionals are telling him is in her best interests. Steven Neary, whose case I also mentioned, was also fortunate that his father worked tirelessly to have him moved from the unit in which he was being held so inappropriately.
There is another deeply tragic case, illustrating the difficulties parents have in challenging professionals’ determination of what is in a patient’s best interest—that of Oliver McGowan. I know the Minister met Oliver’s mother Paula following her successful petition for a debate on the treatment of people with autism and learning disability. Oliver was autistic, but had a full life expectancy. He had previously had adverse reactions to the type of antipsychotic medication that eventually killed him, yet despite his parents’ raising concerns, the clinician treating him continued to administer that medication and Oliver died. That tragic case highlights what parents can be up against.
The unfortunate reality is that parents such as Bethany’s dad and Steven Neary’s father, who have been able to challenge decisions affecting their children, are notable for being the exception, not the rule. There are any number of parents of children in this situation who have been told so often by professionals that the arrangements are in their children’s best interests that they find it hard to persist in challenging that over months and years. It is particularly hard for parents who do not have the resources, time or confidence to draw public attention to their case. Other parents need to be proactively supported to comment on the proposed arrangements.
To summarise my argument, some parents will not feel confident enough to try to overrule professionals who are telling them that certain arrangements are in their child’s best interest. That does not mean we should not pay particular attention to their views on whether the arrangements are proportionate or on whether there may be less restrictive options available.
One point that must be considered is where parents would prefer that their child continue to live in the family home. I spoke earlier about the importance of never depriving somebody of their liberty unless that is the only option, but the unfortunate reality is that local authorities face severe funding pressures, and professionals sometimes tend toward ensuring physical safety at the cost of all else. That can lead to parents who may want to keep their child at home being told that the only way to keep the child safe is to move them elsewhere. Giving their views particular weight at the consultation stages is one way to ensure that arrangements are not authorised when a less restrictive option is desirable.
The amendment provides a dedicated outlet for parents to give their views. It reflects the greater role that parents and those with parental responsibilities play in caring for their children. The purpose is to strengthen the role that parents can play throughout the process of authorising a deprivation of liberty. Our amendment 30 would have required them to give their approval to any arrangements, but there is a final reason to specify that those with parental responsibility must have their views considered. I discussed at length earlier some cases where care homes restricted contact between a cared-for person and their family. That can be done for no reason, with only spurious grounds given. The cases I raised earlier all related to an older cared-for person, but the same provisions are sometimes put in place for younger people, with parents restricted from seeing their own children. However widespread that practice may be, it is another instance where a single case of a parent being denied a say on their child’s care for no good reason would be too many. I hope amendment 34 makes it clear that the responsible body, or whoever else is organising the consultation, cannot simply sideline those with parental responsibilities. The amendment is about ensuring that the parental voice is heard throughout the process and can shape the form that arrangements may take.
We are talking about a cohort of young people with immensely complex needs. They need the people who know them best to be not only informed, but actively consulted on the arrangements they will be subject to. By doing that, we can ensure that when 16 or 17-year-olds are subject to the liberty protection safeguards, it is done in their best interests.
Alex Norris (Nottingham North) (Lab/Co-op)
It is a pleasure to serve under your chairship, Mr Pritchard. This morning we talked a lot about the role of parents in these circumstances, so I will not rehearse all those arguments again. We tested the view of the Committee on the principle that there would be a parental override, and the decision of the Committee was that that was not appropriate. Amendment 34 is perhaps a step back from that, but would still give parents a very important place and role in exceptionally difficult decisions. I hope it might find a little more traction with colleagues.
Alex Norris
Unless I am missing something, the Bill states that
“the Approved Mental Capacity Professional must…meet with the cared-for person, if it appears to the Approved Mental Capacity Professional to be appropriate and practicable to do so”.
The word “if” does not imply to me that the exception should apply only in an extraordinarily small minority of cases.
Barbara Keeley
As we have discussed, the AMCP is likely to be engaged only in high-risk cases anyway, so we are not proposing something burdensome. The meeting need only be a few minutes long; I am not suggesting that it has to be exhaustive. It needs to confirm that the condition of the cared-for person matches what is in the application. In a case involving deprivation of liberty, I think family members would welcome someone saying, “I am only here to check that the facts bear out what I am reviewing.” It would be a further safeguard for people in high-risk cases.
We should reject anything that would undermine the ACMP’s ability to make a full and thorough assessment of every case. We wish to press the amendment to a vote.
Question put, That the amendment be made.
Mental Capacity (Amendment) Bill [ Lords ] (First sitting)
Debate between Baroness Keeley and Alex Norris(5 years, 9 months ago)
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Alex Norris (Nottingham North) (Lab/Co-op)
It is a pleasure to serve under your chairmanship for the first time, Mr Austin. It always feels a bit risky to speak before one’s Front Benchers. Let us hope that I do not re-write Labour party policy and cause it to have to be unwritten two minutes later.
This is a really serious issue, as has been said. It is exceptionally impactful for individuals and the health and social care system. The Minister rightly notes the backlog that has built up in the 10 years since the DoLS regulations were put in, that it has been five years since the critical Cheshire West judgment, and that the system is cumbersome. It is right for us to look at that.
As played out on Second Reading, we have significant concerns that this legislation is rushed. We will frequently come back to the point on the code of practice, because it feels as though we are dealing with half the information. We are putting significant arrangements into law, knowing that we will be relying on another code of practice. I am glad to hear of the legal basis for that code of practice, but would like to see it alongside the Bill. Otherwise, how do we know whether these arrangements are really suitable? We do not know what the counterpart arrangements in the code of practice would be. I certainly have fears that the process is rushed, that the arrangements are a little bare, and that we are expecting to fill them out with the code of practice, which we will not get to see during these proceedings, so there is a risk that we will not achieve what we are trying to.
I remember the Cheshire West judgment well. When I looked it up last night, I could not believe that it happened in 2014, five years ago. I was the lead member for adult social care and health on my local authority, Nottingham City Council. I got one of those concerned calls from the director of adult social services that one gets periodically, saying, “We have a problem. Oh, goodness me!” We reacted, as I suspect every other upper-tier local authority did, by saying, “There is a legal risk, which has been tested in case law, that for this case load, we, the local authority, have not been complying with our responsibilities in law, which is very serious.”
Again, we did what I suspect everybody did, which was to traffic-light the case load—to sort it into red, amber and green—to indicate which cases we thought matched most closely the circumstances of the judgment and therefore where the risk was greatest, where there was less risk, and where we thought there was probably no relation. We matched our assessment capacity against that, so that we could get on with ensuring that we were complying with the law, as we would be expected to do.
Assessment capacity is not an infinite resource. It is not a matter of putting in an extra bit of money and gaining more assessors. Assessment capacity across social care and social work in general is increasingly stretched. Local government has been an exceptionally difficult place to work for eight years, so that was a really challenging exercise.
It has been some time since I led that brief in Nottingham and was in local government, but there were certainly times when I felt that the traffic light system was no longer a way of trying to remove an initial risk; it had become the way in which local authorities would have to operate with stretched resources. They would ask, “Where are we most at risk of challenge? Where are we least at risk of challenge? That is how we will match up our resources.” That is not a satisfactory way to operate. Today and in future weeks, it behoves us to ensure that whatever arrangements we come up with go past that and ensure that we operate in the best interests of the individual. That is all we are concerned about, and why I still have concerns.
I am sure we will come back to the subject of impact assessments in future sittings. The impact assessment is very clear about what it would take to develop a series of people who could make the assessments, but there is no sense of who will resource those individuals, whether we have enough of them, how we might find them and how we will grow them for 10 years’ time.
Alex Norris
I am sure Hansard will correct that and make me seem a lot more articulate, which is one of the real perks of this place. Already, we have heard a lot about the interpretation of what is appropriate. I worry that if we accept only what is in the Bill and Government amendments, the Bill will be very much open to interpretation in the moment by a third party who, presumably, is busy and has other responsibilities. Our amendments develop the situation further.
I heard what the Minister said about the perils of putting in a long list that risks failing to be exhaustive, but I would say, “Let’s develop that list a little.” Amendment 37 is clear about our wanting to make sure that areas with the highest risk—those that would have been the flashing reds I talked about earlier—are definitely and in all cases covered, without that being open to interpretation under the Bill. I think that is important.
Amendment 38 extends and tidies up arrangements for 16 and 17-year-olds, and brings in a new category of person—young people—for whom there is lots of risk. It is prudent to make sure that all such cases are covered. Amendment 39 broadens that trigger of objection, so that when a third-party interpretation is made in a care setting, it is a lot clearer what constitutes an objection, and what might just be the individual not enjoying their day. Again, that is wise and gives us a great deal of security. I will finish on that point. This is important legislation, but it is important that we know the full story, which means having the code of practice. If we mean something, we should state it in the Bill, and not wait for interpretation later.
Barbara Keeley
It was not clear to me that you wanted me to speak to my group of amendments, Mr Austin, but I understand that now. Some Committee members have not been on a Bill Committee before, and I have not been on one for about two and a half years, so you might have to bear with us. In speaking to amendment 38, I want to mention an important principle that my hon. Friend the Member for Nottingham North touched on, which was introduced in the House of Lords: the extension of the liberty protection safeguards to 16 and 17-year-olds, and their right to a pre-authorisation review by an approved mental capacity professional.
Extension of the liberty protection safeguards was added in the House of Lords. The Government ought to be congratulated for this addition, as there was a large and glaring inconsistency within the Mental Capacity Act. This was timely recognition that 16 and 17-year-olds are vulnerable to slipping through the gaps the Bill would create for them if they were not included. The Mental Capacity Act applies to people aged 16-plus, but the Bill originally excluded those below 18 from the liberty protection safeguards, leaving an important gap in the legislation.
The Law Commission conducted a detailed consultation on this and concluded that most respondents to the consultation supported the proposal to include 16 and 17-year-olds in the new scheme. In its words, most organisations
“argued this would provide consistency with the rest of the Mental Capacity Act, and that in many cases the use of the Mental Health Act and section 25 of the Children Act would be inappropriate.”
The two recommendations from the commission’s report were that
“The liberty protection safeguard should apply to people aged 16 and above”—
this would give effect to their inclusion in the commission’s draft Bill—and that
“The Government should consider reviewing mental capacity law relating to all children, with a view to statutory codification.”
As was noted during Committee in the House of Lords, extending the Bill to cover 16 and 17-year-olds will empower some of the most vulnerable young people and ensure that they can access adequate help. However, the liberty protection safeguards do not completely fill the gap regarding the deprivation of liberty of people under 18. The extension comes with some problems, but these are soluble.
Under existing legislation, deprivation of liberty must be authorised either by a court, most likely the Court of Protection, exercising powers under the Mental Capacity Act 2005—
Mental Capacity (Amendment) Bill [ Lords ] (Second sitting)
Debate between Baroness Keeley and Alex Norris(5 years, 9 months ago)
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Barbara Keeley
I cannot see anything other than that self-funders would end up paying it. Self-funders might not just end up paying it for themselves; they might be paying it for everybody else who is in the care home, which is actually what they do—there is a certain transfer.
I want to make myself perfectly clear. Care home managers should not be involved in the authorisation of deprivations of liberty or the consultations around that. It is unlikely that they would able to do it and, as far as I can ascertain, they do not want to do it. Given that, the best route is surely to move responsibility back to local authorities, which have considerable expertise in this area.
We also propose to remove care home managers from the process of renewing an authorisation through amendments 27 to 29. If anything, that is more critical. At authorisation stage there are some safeguards in place, but to renew an authorisation, all that a care home manager would have to do is carry out a consultation and then certify that they feel the authorisation conditions continue to be met.
I have covered our concerns about the consultation process, so will not go over them again. I cannot see how it can be appropriate, however, for an authorisation to be renewed without anyone outside the care home being involved. The Bill proposes that renewals could last for three years—longer than the initial authorisation—and we have our separate concerns about that. At the renewal stage, however, there is no independent review. There is no medical assessment by a person not connected to the care home. There is no independent consideration of whether the arrangements are suitable.
I understand the Government’s argument, which was made in the House of Lords, that they do not want the renewal process to be stressful for the cared-for person where there is little prospect of anything changing, but that is not an excuse to remove vital safeguards. The most vital of those is that the decision is made by somebody with no vested interest in maintaining the arrangements. Only by doing that can we begin to make sure that the streamlined renewal process does not result in people being wrongfully deprived of their liberty.
Before I make my concluding comments on these amendments, I want to give Members another example of how things can go wrong in care homes. I recently heard from someone who was admitted to a care home after a spell in hospital. She was admitted to hospital after knocking herself out in a fall in her garden and being rescued by ambulance. A social worker had arranged her admission to the care home, which the person thought would be for a few weeks.
The care home was privately run and was
“full of elderly men and women from varied backgrounds. There were writers and businessmen and women, carpenters and vicars but they were all suffering from various degrees of dementia. I met only one resident who wanted to be there and she had been there for about 15 years and had chosen to go there after her husband had died. Most of the people there were women. Most of them were put there by their children and their houses had been sold to pay for their care or, if not, their children or their local council paid the enormous bills.
The home was a miserable place, the food was worse than school dinners and there were no events or outings organised at all. Each day had a routine of getting up, breakfast, sitting in chairs silently looking at the ceiling or knitting scarves, toilets, lunch, sitting, early tea and all in bed by 9 pm. There was no stimulation or crafts to do.”
The woman soon realised that it was difficult for her to get out, because she was given IQ tests and declared to have Korsakoff syndrome. This can happen, I understand, after a head injury. She said:
“The home wasn’t interested in the residents’ wellbeing or recovery. It suited them to have sedated residents sitting doing nothing all day. Their interest was making money. They owned a number of homes in the area. The guests were allowed visitors in the afternoon, but many didn’t have visits at all. I continued to spend all of my days by myself, but read and researched lots of things, and insisted every day that I wanted to see someone about being released. I was told that they could release me if someone came to pick me up and took responsibility for me in their home.”
She started to do exercises designed to improve memory and got in touch with the local council. Someone from social services visited and arranged for a specialist doctor to conduct an IQ test, on which she got very high results. The social worker wrote to the home and to her, and used the deprivation of liberty regulations to secure her release.
The woman left this miserable care home some six months after being admitted there to live in a new house, which she had bought. She contacted me because she was grateful for the safeguards that enabled her to leave that place, which she saw as
“merely a depository for elderly unwanted family members.”
She told me that
“these commercial business homes are terrible institutions created to make money.”
We are asking that people like this person, if they are going to be deprived of their liberty, always have their rights guaranteed by an independent public body, rather than the organisation responsible for providing their care.
What is contained within the Bill is not a solution to a problem. There is near unanimity among stakeholders that it would be better if this role were never carried out by a care home manager. Our amendments would mean that care home managers are not given another task that they have neither the time nor skills to carry out. They would ensure that cared-for people and their families feel confident in speaking out when they disagree with the arrangements. They would ensure that people authorising deprivation of liberty are the people best qualified to do so: the well-trained professionals currently employed by local authorities for this very purpose.
More importantly, our amendments would remove one of the conflicts of interest that the Bill seems to seek to enshrine. They would ensure that nobody is deprived of their liberty in a care home on the say-so of the manager of that same care home, which is making profit from that deprivation of liberty. This is a matter of principle. Private companies should not be given responsibility for denying people their basic rights. It is right and proper that this responsibility should always lie with a public authority that is subject to democratic control. Amendments 20 to 29 achieve that and I hope that the Government will accept them.
Alex Norris (Nottingham North) (Lab/Co-op)
Thank you, Chair: I know you have put in a double shift as Chair today. I think that might help us get to the root of why this room is so warm. We are trying to echo the micro-climate in Dudley, which I believe is quite tropical at this time of year. It is a pleasure to follow my hon. Friend the Member for Worsley and Eccles South.
This set of amendments follows on from amendment 19. When we were discussing amendment 19, the Minister said that she would take under active consideration the issue around independent hospitals; I am very glad about that. I hope that perhaps she will take these amendments in the same spirit, as they extend the same principle.
At the beginning, prompted by my hon. Friend the Member for Birmingham, Selly Oak, the Minister said she felt that independent hospitals would be a particular focus, because the revelations that we have seen on television showed that there is risk there. I suspect that the same risks are built into the care home sector, too, because the preconditions are similar—for example, a financial vested interest, a lack of outside scrutiny and an unhealthy power balance between those who run such schemes and those who are resident there.
The vast majority of the time, the leadership in such facilities is excellent and is geared towards supporting the individual. However, where that is not the case, those preconditions build up that risk. As I say, what we have talked about in relation to independent hospitals also applies here. We need to address a fundamental question. We have said that we believe that the DoLS system does not work, that the backlog is not tolerable, and that we ought to move to more effective arrangements. That view is very broadly shared, but I do not think that anyone would wish, in reaching a system that is more sustainable for the public purse and better for the individual, to downgrade the assessors from qualified social workers with specific qualifications in the area to others—in this case, care home managers. That is not a good way of saving money or getting things done more quickly, and the best way to make that clear is by finishing the process that began in the Lords, as my hon. Friend the Member for Worsley and Eccles South noted, and completely removing the relevant references from the Bill.
There are a couple of reasons why that is necessary. First, finances in care homes are marginal. We might sometimes blanch at the cost, but we know that they can go to the wall quite quickly. As a result, there are subconscious commercial pressures that could colour a judgment, shifting it away from the best interests of the individual and towards the best interests of the care home in general. That, of course, is not what we seek to do.
It cuts both ways. We have spoken about independent hospitals having a perverse incentive either to hold on to an individual when it is not appropriate or to provide a much more comprehensive service than is necessary, but it can cut the other way, too. I am not aware of the picture across the country, but in Nottingham the most complex care packages in a residential setting are hotly sought after and we do not have a mass market for them; the market for more general needs care in my city is quite mature and sustainable, but that is not the case for higher-end care. A different perverse incentive could therefore arise for a care home if there are individuals for whom starting the assessment process or conducting periodic reviews is more trouble than it is worth. Whatever path we take in the rest of the Bill, the issue will continue to be tested in case law, and I do not know of many care homes that would gladly take on the responsibility of being on the other side of it.
As well as perverse incentives either to keep people or to ensure that they do not stay, there is a second point, as my hon. Friend the Member for Worsley and Eccles South said: are care homes really the right responsible body? I did not know—I am disappointed that I missed it in my research—about the £20 training for care home managers in a really important subject. Of course that is not sufficient; I cannot imagine that it could cover anything beyond filling out a form in a legally compliant way. It instantly pushes us towards a tick-box approach, which nobody wants—an approach that is about clearing the necessary barriers to legal compliance, rather than working around the individual’s needs and being person-centred.
As my hon. Friend said, there is a double risk. Some local authorities will identify the risk straightaway; others will not. Those that are feeling particularly hard-pressed will say, “It is our legal responsibility to ensure that somebody does this, but it does not have to be us.” With public sector cuts as they are, there is a series of perverse cost incentives throughout the health and social care system that result in individuals being pushed from one organisation to another; this will be one such incentive. Other local authorities—we have heard some good examples—will say, “Hang on a minute: this is far too important for that,” but portfolio holders and directors of adult social services are under incredible pressure.