Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Lord Touhig

Report: 2nd sitting (Hansard): House of Lords
Tuesday 27th November 2018 Lords Chamber

[Lord Touhig (Lab)]

My Lords, at Second Reading I said that there was much to be concerned about in this Bill and that I really hoped the Government would be in listening mode. For the most part, the Government have listened and have made improvements, thanks to the willingness of the Minister and Bill team to listen and to the hard work and commitment of noble Lords on all sides of the House, who have pursued improvements with all the energy they could command.

Government Amendments 41 and 96, requiring a care home manager to provide a written statement to the responsible body to authorise and renew arrangements, seem pretty obvious. Most of us would think that it is common sense to provide a statement in writing, but my late mother would often lament that I would find that, in life, sense is not that common. We certainly welcome these amendments.

The same applies to Amendments 47 and 59, which will ensure that the determination that arrangements are necessary and proportionate is to be made in an assessment, and that a record of this assessment must accompany the statement from the care home manager to the responsible body before an order to authorise arrangements is made. This is also most welcome. On this side, we certainly welcome these amendments.

[Baroness Barker]

My Lords, I also welcome these amendments and want to make a brief observation. Since the summer, like many other noble Lords, I have spent a great deal of time talking to practitioners and stakeholders. If one were to try to thoroughly amend and improve the DoLS and LPS systems, you would start not with the role of the care home manager but with the paperwork and the bureaucracy. Before the code of practice is written, the Government would do well to spend some considerable time talking to local authorities and practitioners about paperwork and communication, because that is perhaps the biggest cause of the backlog of people who have yet to have a proper assessment.

I hope that the Minister will take on board what noble Lords have said on this matter. It is not a commitment to the current way of doing things; rather, although noble Lords are committed to ensuring that people are sufficiently informed, we are not averse to changing and modernising the systems to make them work more efficiently.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Lord Touhig

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Baroness Barker]

My Lords, I have tabled one amendment in this group, Amendment 75. I do not wish to rehearse the arguments we had on the previous group but I want to put one question to the Minister. Why in paragraphs 36 and 37 do we suddenly see the term “relevant person” being introduced? It is quite confusing and I shall need to go back and look at Hansard. I do not want to make a wrong accusation, but I think there is confusion about the terms “relevant person” and “appropriate person”, when in fact they are two completely different things. My understanding is that a “relevant person” is either the responsible body or a care home manager, so why do we not talk about that? If that is what is meant, let us be up-front about it.

Amendment 75 asks why the appropriate person as we know them under the Mental Capacity Act has to have capacity to consent to being supported by an IMCA if the purpose is not just to put another hurdle in the way to make sure that these people—let us bear in mind that they do not have a right to be given information under this Bill—have to make a request of the care manager or the care home manager. The noble Baroness, Lady Thornton, is right to say that the Minister has talked about care home managers and care managers; they are different, but all of them have a potential vested interest in making sure that someone does not have access to an IMCA. That, I think, would be a gross dereliction.

[Lord Touhig (Lab)]

My Lords, these amendments go some way to ensuring that a cared-for person is not left without an independent mental capacity advocate or the support of an appropriate person. Much of the Bill as it stands represents what I think is a real assault on human rights. For heaven’s sake, we should be listening to the contributions of the noble Baronesses, Lady Hollins, Lady Barker and Lady Finlay, and that of my noble friend Lord Hunt. He has shared with me the email from the carers of HL and it is very powerful. My father was a miner and he would have said, “This is the experience from the coalface”. We can take this as an important contribution to understanding the difficulties that families face when they have to deal with the issues we are discussing.

Amendment 66 would give a local authority discretion to appoint an appropriate person or an independent mental capacity advocate without notification from a care home. Mencap and others have argued most powerfully that this amendment would minimise the risk of conflict of interest. That is important, as we have seen in other debates. It would mean that a care home arrangement could be more easily challenged and subject to scrutiny. Is not challenging and scrutinising what we do every day in this House? We challenge and scrutinise legislation brought forward by the Government; that is our role. Why would we deny that opportunity to the vulnerable people we are talking about in this Bill?

As it stands, the process for deciding whether to appoint an appropriate person or advocate requires a series of capacity assessments and best interest decisions made by the responsible body or the care home manager, even though both convention and domestic law have made it clear that there is no place for best interests in Article 5 appeal rights. Unless we effect change, this Bill will pass into law and we will see a cared-for person without the appropriate support of either an independent mental capacity advocate or an appropriate person—and that at a most crucial time in their life. That cannot be right. Amendments 76 and 77 are important if we are to ensure that the appropriate person gets the support they need for the role they have undertaken. We have had several long and important debates during the passage of the Bill. These amendments are reasonable and surely the Government must now start to listen.

Care Bill [HL]

Debate between Baroness Barker and Lord Touhig

Tuesday 9th July 2013 Lords Chamber

[Baroness Barker]

My Lords, I declare an interest in that I work with a number of charities involved in the provision of information and advice about health and social care.

When I read this policy, it seemed to me that it reflected the practice of giving information and advice as it has been done for the past 20 years. I am not sure that that model of information and advice-giving is sustainable. It has depended largely on local bodies, many of which are in the voluntary sector and extremely professional in their services, but which provide a lot of generic, low-level advice. I do not think that that is sustainable—I was going to say in the longer term but, given the way that local authority budgets are going to have to decrease by a third by 2015, I do not think that this is sustainable in the short term either.

In future, there will increasingly be a move towards providing information digitally. New organisations and new social enterprises, such as IncomeMAX, are already heading down that path, and a number of local authorities are increasingly turning much of their provision over to that way of doing things. That is fine for people who are very well informed and who can access information in that format. What I cannot see is a sustainable funding model for the sort of high-level, complex financial advice that the noble Lord, Lord Lipsey, was talking about. This is necessary when people need to be enabled to go through the process of making decisions about, let us face it, the biggest asset that they have, which is their home. We are talking about something on an altogether different level.

We should also note that the system that we have had until now in terms of the provision of advice about social care was predicated on there being different eligibility criteria throughout the country. That is not going to be the case in future.

Like many noble Lords, over the past three or four years since Andrew Dilnot first appeared on our horizons, I have attended many seminars and lectures where people have tried to work their way around this problem. Two things strike me as being important. First, we cannot lay all the obligations on local authorities alone. At least in part, the NHS has to realise that it has to fund information and advice as part of the overall health and well-being package. I freely admit that I have yet to come across people in the NHS who truly understand the basic importance to health of information and advice. One of the first things that the department and the Government could do is to work on how we explain to commissioners in the health service why the outputs of information and advice services are important to them.

Secondly, we already know—the noble Baroness, Lady Greengross, and I know very well—that if you ask a group of older people who have assets what is the number one thing that they want, they say that they want independent financial advice. They do not believe that the people who sell them products are independent. They are right not to do so. That is a problem for the providers of those products. The only way of getting around this that might work is if, in future, some of those products have an element of money within them that is somehow passed into a pooled fund of money that comes from the private and statutory sectors and which can be put towards the provision of independent advice. That is not a worked-out idea, but it contains within it something of the ideas that the noble Baroness, Lady Greengross, mentioned, which are the key points in all of this. She is right that there is a need for regulated advice. I am not quite sure at which point a person needs that. Is that regulated advice something that they need before they come to a decision about which financial product to choose? The law that governs the regulations that exist at the moment usually comes into play when somebody decides to buy a particular product, so there is a real problem about when people have access to the right type of advice. The noble Baroness is on absolutely the right track. Somehow, in all of this, we need to arrive at a point at which resources are spent by people with the right knowledge and the right degree of independence to enable them to come to the right decisions.

[Lord Touhig]

My Lords, I rise to support Amendment 88G in the name of the noble Baronesses, Lady Browning and Lady Barker, and myself. It introduces a new clause which would ensure that there is a duty to provide independent advocacy.

The right to advocacy is essential to enable people who find it hardest to communicate to exercise their rights; who find it difficult sometimes to represent their interests, and therefore obtain the services that they need. I spent just over 15 years serving in the other place and, throughout that time, I remember many people coming to my surgery who wanted advice and help. In many instances, they also wanted an advocate—someone who would put their case strongly and make sure that their voice was heard.

Reference has already been made to the Autism and Ageing Commission whose report was published today. It was chaired by the noble Baroness, Lady Greengross. I sat on that commission and it brought home to me again the importance of advocacy. I recall a lady called Clare Beswick, whose brother is autistic and has learning difficulties. She said:

“A best interest decision was made that Paul should live closer to me in the south east … I had to go to extraordinary lengths to enable Paul’s needs to be met … without my support, advocacy and intervention, I believe Paul would never have had the opportunity to be moved to be near us”.

That is the importance of an advocate.

I declare an interest as a vice-president of the National Autistic Society. The society’s survey in 2012 found that 66% of respondents over the age of 50 had not had their needs assessed since they were 18. Independent advocacy could make a real difference to these people by helping them to access an assessment and ensure that it is fair and accurate in relation to their needs. Of course, from the point of view of autism, advocates must have training in the condition so that they can interpret questions effectively and help individuals who have difficulties communicating.

People with autism do not self-present. Autism is about a lack of the communication skills that we in this Chamber take for granted. If the Government were to take on board this new clause, I can simply say to the noble Earl that it would represent a major leap forward for people who need strong advocate support.

Marriage (Same Sex Couples) Bill

Debate between Baroness Barker and Lord Touhig

Monday 8th July 2013 Lords Chamber

[Baroness Barker]

My Lords, I want to draw to the attention of the House something which has not been mentioned so far in all these debates. I listened with great care when the noble Baroness, Lady Cumberlege, introduced the amendment. She drew the attention of the House to subsection (7) of the amendment:

“Nothing in subsection (6) shall affect the duty of a relevant registrar to carry out any other duties and responsibilities of his employment”.

Registrars do not just officiate at weddings. They register births and deaths. If this amendment were passed, it would mean that for a generation we would continue to have acting as registrars people who could not bring themselves to extend the full respect and dignity to same-sex relationships that they do to others.

It may be the case that it is wrong to ask them to perform what is, in the end, not a religious ceremony in any way but a public ceremony. However, to me it is utterly intolerable that a gay person going to register the death of their partner in life should have to do so in the presence of somebody who cannot bring themselves to extend the respect to them that they would to anybody else.

[Lord Touhig]

My Lords, I had not expected to speak in this debate, although I have listened throughout. My mind goes back to 1967, when a dear friend of mine—and a friend for more than 40 years afterwards—introduced a Bill in the other House to decriminalise same-sex acts. Leo Abse was denounced and vilified, he had human excrement pushed through his letterbox, and it was an intolerable time for him and his family.

I have too much respect and affection for Leo Abse to presume to say what his view would be today. I rather think he would support this Bill, but I know one thing. When he announced his retirement and spoke to a meeting of the Pontypool Constituency Labour Party, he said: “I have only one bit of advice for my successor. Tolerate everyone, tolerate everything, but do not tolerate the intolerant”. As I have witnessed this debate today, I have sensed a degree of intolerance. Wherever we stand on this issue, it is right and important that the majority tolerates the minority. I hope the House will recognise that as we bring this debate to a conclusion.