Mental Capacity (Amendment) Bill [HL]

Baroness Barker Excerpts

Report: 1st sitting: House of Lords
Wednesday 21st November 2018 Lords Chamber

[Lord O’Shaughnessy]

I will come to that. I am using that technical point to illustrate that there are concerns with the amendments as laid. We recognise the importance of this issue and the strength of feeling on it in the House. As I have said, I see merit in the argument for having this defined in statute, and I am sympathetic to that point of view. I can therefore give noble Lords some assurance, and confirm today not only that we are working on this matter, but that we intend to bring forward an amendment in the Commons to give effect to a definition. We want to work with all noble Lords and other stakeholders, and of course the JCHR, to ensure that we can table an effective amendment that achieves our shared aims and gains the level of consensus that we all want to achieve, and that we shall be able to lay it and have it agreed during the Commons stages of the Bill. I hope that in providing that commitment, I have been able to reassure noble Lords of the strength of our intentions. We absolutely want to do this, and we want to get it right. I still think it will take a bit more time, but I know that, working together, we can achieve that.

[Baroness Barker (LD)]

I thank the Minister very much for his response to the amendments tabled by my noble friend Lady Tyler and the noble and learned Lord, Lord Woolf. I acknowledge that he has listened to the arguments made in this House over the past few weeks. I understand why he cannot make a commitment to come back within the timescale of the Bill in this House. This is an important matter, and many different people have a great deal of expertise, practical knowledge, legal knowledge and so on, to put into the process of coming up with a definition, which will be extremely difficult.

Would the Minister therefore be so good as to write to noble Lords as soon as he can, setting out the timetable of the work the department intends to undertake and the people they intend to involve in discussions, which I hope will include practitioners, stakeholders and academics, medical experts and so on, as well as Members of your Lordships’ House who have reviewed the operation of the current law and found it deficient? Could he do that as soon as possible so that, when we come to consideration of Commons amendments when the Bill comes back to this place, we will be able to give this subject the attention it merits rather than the rather perfunctory consideration that we usually have to give to arguments that come back to us within a very technical parliamentary framework?

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[Lord Hunt of Kings Heath]

My Lords, I realise that in the last group I mentioned general medical practitioners. I ought to inform the House of my forthcoming appointment to the General Medical Council.

We have had a lot to read in the last few days, and are clearly going to have to take a lot of this on trust, but the thrust of the amendments is welcome, and I am grateful to the Minister for tabling them. As he said, they strengthen the role of local authorities and give them a clear remit to intervene where they feel that, for one reason or another, the care home manager cannot discharge the responsibilities given in relation to the authorisation application appropriately.

In the letter that the Minister sent to a number of noble Lords, he set out factors that might be considered by the local authority as a responsible body. These would be:

“Whether the person has a care plan with the responsible body … local intelligence about a local provider of care homes”,


which would suggest that the responsible body takes over the process;

“insight from local commissioners or concerns about performance … sustained absence of a registered manager”—

or presumably when the turnover of managers is high, as it can be; and—

“an increase in concerns raised by residents, their carers or families … a new service or category of care provision, and/or … provision of poor or incomplete statements”.

To me that sounds very comprehensive and welcome.

What arises from this is that the responsible body will have to make a considerable judgment and, to make it, will need a very clear understanding of the care homes in its area. Could the Minister say a little about how he thinks that local authorities might be supported in that role? Clearly, they now have a major role which they have found it hard to discharge, for reasons that have been discussed. It is important they are able to do this in a consistent way.

The Minister mentioned the code of practice. It is a statutory code of practice, which I think means that it must be followed unless the local body has very good reason not to do so. It would be interesting to know what plans the department has for checking with the local authorities—not in a heavy-handed way—how well it is going after time and implementation, and seeing whether there is consistency across the country as a whole.

[Baroness Barker]

My Lords, I too welcome the Government’s change of mind. They started with a very different understanding from ours of the current roles of care home managers, local authorities, best-interests assessors and DoLS assessors. I think we still have a difference of opinion about how life works in practice, but these amendments show a considerable movement, if not complete agreement on that part, and therefore we welcome them. I feel it is right to remind the Minister that when the Select Committee of your Lordships’ House did the post-legislative scrutiny on the Mental Capacity Act and its workings five years after its implementation, there was an overwhelming lack of information and data both in local authorities and throughout the health service. I rather think that we have been perhaps unnecessarily preoccupied in this Bill with who carries out a particular function rather than looking at the way those functions could possibly be streamlined and better audited.

I do not think that the work of a local authority best-interests assessor or a DoLS lead, however they may be termed under the new scheme, is actually going to change that much, but I welcome the attempt here to meet us half way, and I thank the Minister for that. Well, perhaps it is more than half way in terms of our assessment that what was being asked of care home managers was beyond their capacity to deliver. Big questions still need to be asked about their role in the overall scheme. If we had not spent quite so much time on this, we might have been able to look more closely at greater efficiencies in terms of reporting and so on. For the moment, however, I welcome these amendments.

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Moved by

[Baroness Barker]

16: Schedule 1, page 8, line 10, at end insert—
“(aa) if the arrangements are carried out in an independent hospital, the designated NHS trust;”

[Baroness Barker]

My Lords, following our previous discussion, we turn to an area that has not received sufficient attention because we were so focused on care homes and care home managers. My Amendment 16 addresses the position of independent hospitals. I think independent hospitals in Wales might in part be addressed in Amendment 16A, tabled by the noble Baroness, Lady Thornton, and grouped with my amendment.

In the process of talking to stakeholders over the past few weeks, it became clear that many of the concerns that we have expressed over conflicts of interest for care homes also apply to independent hospitals, and therefore it seemed to us important to state in the Bill that where a person is deprived of their liberty and is in an independent hospital, the CCG or the local health board is the responsible body as, as we have discussed in great depth and tortuous detail over the past few weeks, is the parallel case for care homes and local authorities.

It is unfortunate that we missed this and have not discussed it as much as we should have. People deprived of their liberty in independent hospitals perhaps have the worst of both worlds. They do not have the protection of the Mental Health Act and they are perhaps less likely to come to the attention of an external body, such as a local authority, because their care is unlikely to have been through the care planning process. Therefore, they could be at a greater point of vulnerability. They may also be more likely to be deprived of their liberty because the deprivation may be something to do with medication. That is why I tabled this amendment, so that we could perhaps return to this at Third Reading. It is important that the Government make clear their intention that there should be clarity about the position of people held in these establishments, and that they do so swiftly and in sufficient detail. I beg to move.

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[Lord O’Shaughnessy]

Absolutely—I would be more than happy to do so. I have tried to demonstrate our intention to deal with the issue, but we remain open-minded about the best way to do it. We have concerns with the amendments as laid—we were trying, if anything, to turbo-boost the approach. I recognise that the noble Baroness is concerned about an overfamiliarity between individuals, which she is trying to make sure that we avoid. There may be other concerns with the model that we are considering. I am more than happy to take that offline, and that would be a very fruitful discussion.

[Baroness Barker]

I am grateful to the Minister for his response, which I will need to think about long and hard. One thing that noble Lords will have to take into consideration is whether an AMCP would have the power to refer a case to the Court of Protection if they felt it necessary. That would be a big factor. I listened very carefully to the Minister, who used the term “hospital manager”. He will know that it has a particular meaning in the Mental Health Act. I have no crystal ball, and neither do other noble Lords, but were the role of the hospital manager in the Mental Health Act to be something on which the forthcoming review sought to make a decision, then would this not be another case for our looking in detail at the synchronisation between this legislation and the Mental Health Act? I welcome the Minister’s response. There is a bit more work to do, and considerable constructive welcome for continued work. With that assurance, I beg leave to withdraw.

Amendment 16 withdrawn.

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Moved by

[Baroness Barker]

27: Schedule 1, page 10, line 8, after “necessary” insert “to prevent harm to the cared-for person”

[Baroness Barker]

My Lords, I have good news for the Minister. After all these weeks, I have finally accepted his argument that the best-interests principle in the Mental Capacity Act remains and applies to all decisions made under the Bill. I now agree with him that it is therefore not helpful to reiterate the term “best interests”, as we suggested in previous amendments at a previous stage. The even happier news is that the noble Lord, Lord Hunt of Kings Heath, agrees with me on that.

However, I am afraid that peace and harmony may not have broken out completely. Noble Lords will recall from previous debates that we have argued that the requirement that an arrangement be “necessary and proportionate” seems to be a weakening of the protections for an individual, sitting as it does with no direct connection back to those earlier best interests. We all agree that deprivation of liberty is a very important matter, and the law needs to be in compliance with Article 5. That is why we think the Bill contains a deficiency, because lawful detention is not considered directly in relation to best interests. Therefore, through these amendments, which relate both to the authorisation and the determination, we have attempted to reiterate the current wording of the DoLS legislation regarding a determination being necessary and proportionate in relation to harm to the person. In other sets of amendments and at previous times, we have had discussions about whether decisions are taken on the basis of harm to the person whose liberty is being deprived, or of harm to others. We have tabled this amendment to make it clear that it is harm to the person, and that the proportionality relates to the potential harm to that person if they are not deprived of their liberty.

Much of today’s discussion about deprivations of liberty in domestic settings originates in the failure of many professionals, in making judgments, to remember the part of the safeguards which states that deprivations of liberty must be the “least restrictive option”. It is not wrong to deprive somebody of their liberty, but it must be the least restrictive option to avoid harm to that person. We have therefore concluded—again, in discussion with stakeholders—that this amendment to the Bill would lead to greater clarity.

I can hear the words “code of practice” coming to the fore. One point on which we have never had an agreement is reliance on the code of practice. Very few pieces of legislation have a code of practice, and in health there are only two: this Act and the Mental Health Act. Anything which resides in a code of practice rests upon statute in order to be lawful. When there are arguments about whether a deprivation of liberty is lawful, those arguing the case, particularly judges, do not go to the code of practice but to the statute. What is contained in the statute may be minimal, as this is; we are simply talking about a sentence which says that that action must be “necessary and proportionate” with regard to the harm to that person. A code of practice can go on for pages and pages and include numerous examples, as it should, so that practitioners know where they are. But it does not and never will carry the legal force which comes from the wording in the Act.

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[Lord O'Shaughnessy]

As the noble Baroness knows, I am all for harmony and agreement.

I thank the noble Baronesses for laying these amendments, and I accept the point made by the noble Baroness, Lady Barker, about her gracious acceptance of the role of the best-interests test. I recognise that she has some serious concerns about this legislation, which I take seriously. I have been determined to work closely with her, and I am grateful for her reciprocation in that process as we have moved ahead.

These amendments seek to specify that the necessary and proportionate assessment must be undertaken by reference to whether an authorisation is needed explicitly to prevent harm to the person. We know that an assessment of whether the arrangements are necessary and proportionate is key to ensuring that liberty protection safeguards will afford people their protections and human rights, and is a requirement of the European Convention on Human Rights. There are many factors which would need to be considered in the necessary and proportionate assessment, including the wishes and feelings of the person, whether any less restrictive measures can be put in place and the risk of harm. That is the issue that is the subject of these amendments.

Importantly, these amendments raise the issue of considering risk of harm to the cared-for person during the assessment by including that expressly and explicitly in the Bill. However, my concern is that that may be at the cost of other factors that ought to be properly considered during the assessment process. If these amendments are passed, one of the factors which may not be properly considered in the assessment process is the risk of harm to others, which the Law Commission said should be explicitly considered within a necessary and proportionate assessment, as well as risk to self. There are cases currently under the DoLS system where the risk of harm to others is an important factor in the justification for deprivation of liberty, such as a person with Lewy body dementia who may need restrictions in order to prevent harm to people in the community.

Furthermore, ensuring that no harm could come to a person is in some cases intertwined with ensuring that no harm comes to others. For example, there could be a retaliatory attack as a result of harm caused by a person to someone else. These amendments would mean that by focusing solely on harm to self in the Bill, it could be more difficult for assessors to make those balanced decisions. I therefore have some concerns about the amendments tabled by noble Baroness, as they could perpetuate the current confusion surrounding cases that involve some degree of harm to others. They could also lead to an increased use of the Mental Health Act, since the liberty protection safeguards might be interpreted as being ruled out in all harm-to-others cases. We would not want to see the Act used in this way.

Therefore, in the spirit of consensus and moving forward, I have carefully considered whether the Bill should be amended—or whether the Government could support such amendments—to explicitly set out inclusion of the risk of harm to the person. I am afraid I am going to disappoint noble Lords by saying that it would be better set out in the code of practice. I emphasise that we have considered the issue in detail, and we believe that the code of practice has sufficient force. On that basis—although I know that she will not do so—I encourage the noble Baroness to withdraw her amendment.

[Baroness Barker]

I thank the Minister for his reply. The problem that I have is that it leaves the guidelines for decisions to deprive people of their liberty because of harm to others in a code of practice, not the legislation. I do not believe that that is the right place in which to make that law. I absolutely accept that it is sometimes necessary to make a decision about a deprivation of liberty, and that part of that decision-making might be about the risk the person poses to others. However, that should not be determined in legislation fashioned on a set of principles and practices that are about harm to self, which is what the Mental Capacity Act is all about. A substantial judgment that will impact on people’s lives is buried away in a place where it is very unlikely ever to rise sufficiently up the scale of legal concerns or ever to be tested in court. That is my problem; that is what I think is wrong. It is therefore important that we in this House make a statement now to the Government about the importance of this issue, so I would like to test the opinion of the House.

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Moved by

[Baroness Barker]

28: Schedule 1, page 10, line 8, at end insert “in relation to the likelihood and seriousness of harm to the cared-for person”