Mental Capacity (Amendment) Bill [HL]

Baroness Finlay of Llandaff Excerpts

2nd reading (Hansard): House of Lords
Monday 16th July 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I must declare my interest, having chaired the National Mental Capacity Forum for almost three years, and having drawn attention, in March 2015, to the urgency of deprivation of liberty safeguards reform.

The Bill has had a long gestation period. Regarding the Bournewood gap—the history of which was outlined by the Minister and the noble Baroness, Lady Barker—we tried to ensure compliance with Article 5 of the European Convention on Human Rights in relation to those with impaired capacity who are unable to consent to their living and care arrangements. We should have been more vocal about our reservations when that legislation went through in 2008, because it focused on deprivation of liberty and seemed to ignore P’s security and empowerment.

The Cheshire West judgment of 2014 resulted in huge increases year on year in the number of people with impaired capacity identified as being deprived of their liberty in one way or another. Therefore, without the deprivation of liberty safeguards, their arrangements constitute an illegal deprivation. As the Minister said, last year more than 108,000 people were referred for DoLS assessments. Many of them are still waiting and more have joined that list. They are all illegally detained and the time delay for DoLS assessment has lengthened year on year. The bureaucracy of the current system is crippling, with six separate assessments needed, which can leave the person, P, feeling confused and unable to understand what is happening or why they are being asked personal questions by a stranger. The burden on adult social care is overwhelming. It would need around £2 billion injected just to clear the backlog, but that would still not solve the problem. The administrative processes themselves need urgent reform, and the vulnerable need better protection and better access to justice.

A little history is relevant here. The House of Lords post-legislative scrutiny Select Committee report of March 2014, which stated that the DoLS provisions are not fit for purpose, led to the Law Commission review that Tim Spencer-Lane has been leading. This is the widest consultation that the Law Commission has ever undertaken, travelling the length and breadth of the country to take evidence from as many as wanted to offer it, and I was privileged to be able to sit in on some of those sessions. The Law Commission’s consultation and draft Bill have fed directly into the Bill before us, as Tim Spencer-Lane has been working closely with officials. There has been continuity through the system, which I think is not widely known to people.

Chairing the National Mental Capacity Forum, I have asked many in health and social care how many people have had improved care as a result of DoLS. The estimates are usually around 4% and have ranged from around 3% to 8%, so for all this bureaucracy and expense, fewer than one in 20 has clear better outcomes from the current process. A placebo response for an intervention can be expected in about 20% of people. We would not allow a medical or surgical intervention that fared worse than placebo in improving outcomes, so why put people through these burdensome assessments when we have no evidence of benefit?

Around 2 million people with impaired capacity stand to benefit from the Bill. Importantly, when DoLS has improved care, it seems that this has been through a revised care plan. The best interest assessors who are bringing about improvements will need greater powers as independent mental capacity professionals to target prospectively those thought to be at risk and not depend on referrals from providers once a person is in care. Can the Minister explain how these professionals’ greater powers to protect those at risk will work and how this new system will relate to safeguarding and the processes around it?

This focus in the Bill is on the care plan, and it returns to the core principles of the Mental Capacity Act. Whether in hospital or a care home, those overseeing care are directly responsible for the care plan and for ensuring that, compliant with the empowering ethos of the Mental Capacity Act, the arrangements are the least restrictive option. The restrictions must be necessary and proportionate to ensuring that any deprivation of liberty is justifiable for P’s security, while allowing them as much independent and enjoyable living as possible. In developing a care plan, P’s wishes and feelings must be taken into account. P must be supported to take as many of the decisions over care as P is able to, and they must be involved. This builds on the important amendment that the noble Baroness, Lady Barker, introduced into the Mental Capacity Act 2005, establishing the place for an advance statement of wishes. That becomes particularly important for people with fluctuating capacity. Can the Minister provide assurance that this will be stressed in the code of practice whenever a best interest decision is taken, whether by health and social care staff or by a donee of lasting power of attorney for P?

The focus is on liberty protection irrespective of how care is funded, and that is welcome. Liberty protection safeguards are rightly so named and their portability makes sense because the care plan detailing how liberty is protected refers to P. Of course, the care plan must also be dynamic and revised appropriately. Will the Care Quality Commission be responsible for inspecting whether the liberty protection safeguards are dynamic and portable, with a review triggered if circumstances change, particularly for those with learning difficulties and other stable conditions, if an LPS has been signed off in the longer term for three years? In other words: if things change, everything changes.

Those who know P best—the family and those important to P—must be consulted, not sidelined as has happened sometimes with DoLS. Can the Minister confirm that the code of practice will signpost the involvement of expert assessment of those with speech and language difficulties, who are too often labelled as having impaired capacity because they have appeared unable to communicate?

The changes will allow social work staff to concentrate on the most vulnerable, freeing them up to provide person-focused training, so that on a day-to-day basis staff can support P better in making decisions and understand the importance of doing all that they can to involve P in decisions that need to be taken on his or her behalf.

In 2014-15, the year after Cheshire West, the cost to councils rose by more than £98 million, and it has risen further year on year. That backlog now needs £2 billion just to clear it. Will the Government undertake to review, after two years, that futile bureaucracy and duplication has been cut and tangible benefit to P increased?

The code of practice will be important in ensuring that care plans are properly devised and properly reviewed, both regularly and frequently. It will make care providers’ decisions more proportionate, through the emphasis on protecting liberty rather than risk-averse attitudes by providers. Concerns have been voiced about the care home sector’s ability to assess P, yet we rely on these staff day to day. I hope that there will now be mandatory training of all health and social care staff, not just care home staff, in all aspects of the Mental Capacity Act. Mandatory training is long overdue.

I hope that the Minister can assure the House that the code of practice will be developed quickly to address concerns that have been raised about the Bill. One of the most contentious is how liberty is defined, as has already been alluded to. It is important to differentiate disorders that have impaired a person’s liberty—post head injury; post meningitis; the dementias; learning difficulties; delirium, whatever the cause; the list goes on—from actions taken by those responsible for care that deprive P of liberty. Such actions must be justified as being the least restrictive options and designed to allow P’s liberty to be maximised and protected. Given the difficulties with a universally applicable definition, I hope that clarification can be included in the code of practice; that may be safer than trying to come up with something in the Bill.

The term “of unsound mind”, although current legal language—I recognise that it comes from the ECHR—is outdated and stigmatising and may benefit from better wording.

There is a concern that those aged 16 and upwards should be brought into the remit of liberty protection safeguards for consistency, even if they are in education, because transition can be a difficult time for those people and their families.

I hope that concerns about the Bill can be resolved rapidly, because this Bill is urgently needed. I remind the House of the five core principles of the Mental Capacity Act: capacity should be assumed until it can be shown why it is not present; all support must be given for decisions by P; people can make unwise decisions; when capacity is lacking, any decision must be in P’s best interests; and any such decision must be the least restrictive option.

This Bill is an add-on to the Mental Capacity Act; it does not replace it.