Mental Capacity (Amendment) Bill [HL]

Baroness Finlay of Llandaff Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 15th October 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I have Amendments 47 and 50 in this group. They are concerned with the point at which court proceedings are triggered. It is appropriate that there is an ability to appeal, but it is also important that courts are not inundated and that disputes are resolved outside court as much as possible. Going to court should be the last port of call, but it should be accessible and should occur only when other interventions such as mediation have failed.

Sadly, sometimes cases need to go to court, which is why I have worded an amendment to allow the AMCP to consider going to court as part of their role. However, the AMCP must also be able to verify information and meet independently with the primary source—that is, the cared-ford person. That might mean setting up a meeting well away from other people who have previously been involved so that they can form their own view on whether there are other avenues that might be pursued before resorting to the court.

[Baroness Hollins (CB)]

I have added my name to Amendment 49 in the name of the noble Baroness, Lady Barker. My concern is that a failure to meet the person directly might lead to a desk-based review, which would not enable the necessary scrutiny of the appropriateness of the care arrangements.

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Moved by

[Baroness Finlay of Llandaff]

32: Schedule 1, page 12, line 19, leave out “Consultation” and insert “Duty to ascertain wishes and feelings of the cared-for person
(A1) The main purpose of the consultation required under this paragraph is to try to ascertain the cared-for person’s wishes or feelings in relation to the arrangements and the likely impact of the arrangements on the cared-for person’s wellbeing.”

[Baroness Finlay of Llandaff]

My Lords, this group of amendments takes us to the heart of the duty to ascertain the wishes and feelings of the cared-for person. For that reason, I am most grateful to the noble Lord, Lord Hunt of Kings Heath, for adding his name to my amendment, which would rename this part of the Bill, changing a consultation to a duty, and move up this paragraph from lower down:

“The main purpose of the consultation required under this paragraph is to try to ascertain the cared-for person’s wishes or feelings”.


That must be paramount. If we do not make arrangements that fit with and respect the known wishes and feelings of a person—or we make arrangements that cut across the feelings of others and cannot justify them very carefully—we will have failed completely in what we are trying to do. We should be empowering people to live as they want to live as much as possible while accepting that we need some restrictions in place.

That is why this group of amendments would also move the cared-for person to the top of the list of people to be consulted and make it clear that the professional responsible for the care plan needs to undertake the consultation. That will then inform what is happening and how the care is to be organised on a day-to-day basis and in the longer term, as well as ascertain whether the restrictions that may be put in place are necessary and proportionate in the light of knowing the cared-for person’s wishes and feelings.

It is important to remember that people do not object only actively. They may signal objection by becoming more withdrawn or less active. They may start eating less or there may be changes in toileting and so on—all of which can signal that someone is unhappy. All these changes should be considered in thinking about whether somebody is objecting in the broadest sense to whatever has been provided for them. They may well signal that their wishes and feelings are not being adequately respected. I beg to move.

[Baroness Hollins]

My Lords, I welcome the amendment tabled by the noble Baroness, Lady Finlay, which seeks to ensure the wishes and feelings of the person are at the heart of decision-making. My Amendment 33 follows this principle by adding the cared-for person to the list of people with whom the assessor is required to engage before arrangements can be authorised.

Self-advocacy groups and charities supporting people with learning disabilities and their families have shared their concerns that the Bill does not require sufficient regard to be paid to their views in particular. I will quote some views expressed by Learning Disability England, a membership organisation:

“Disabled people and their families are especially worried that there is no requirement to consider the person’s own wishes. That is how the institutions were … We do not want to go back to the days of the institutions … There is a risk that we take away people’s independence and give power to people that may not be doing a good job”.


Consulting with people who lack capacity can be challenging and requires quite advanced communication skills. It is crucial that we get this right as the consequences are significant and lead to other improvements or deteriorations in people’s health and independence. I declare an interest here as chair of the Books Beyond Words community interest company, which develops resources and pictures to help doctors, nurses, care staff and others to communicate more effectively with people with learning disabilities and others who find pictures easier than words and to support decisions which, at their outset, appear too difficult or challenging.

Amendment 35 is designed to oblige those carrying out the assessment to explore less restrictive alternatives thoroughly. This would need to take into account the cared-for person’s family and others who know them well and have an interest in their welfare, who are likely to have important information and expertise to share about the person’s needs and what good support, which maximises their freedom, might look like.

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[Baroness Stedman-Scott]

I thank all noble Lords for their important contributions to these amendments. I agree completely with the noble Baroness, Lady Finlay, about the importance of ascertaining the cared-for person’s wishes and feelings when consulting as part of the liberty protection safeguards processes. Sometimes it is more important to listen to what is not said or expressed over and above that which is said. Watching people’s behaviour and demeanour can tell us a lot about how they are feeling. The noble Baroness, Lady Watkins, gave us a good example of somebody who lost their parents and was terribly distraught about it, although what was causing him most angst was being able to see his sister only for short periods because of the distance travelled. We must make sure, in taking through this Bill, that we do everything we can to read those signs and that people are empowered to make the best decisions.

On care home managers completing the consultation and how we ensure that alternatives are considered, I can say to the noble Lord, Lord Hunt, that a wide range of people are consulted. Previous consultations conducted by professionals often relied on things that were not meaningful or in the best interest of the individual. We want the least restrictive as a principle—a requirement of Article 5 in case law—that must be considered and will be set out in the code of practice. The code of practice will be very important.

I say to the noble Baroness, Lady Barker, that the care home manager would consider whether a decision was appropriate and the decision would be reviewed by the responsible body. Any family member, IMCA or appropriate person could challenge a decision not to consult the cared-for person. The Government are committed to making sure that the consultation around the cared-for individual is at the heart of everything. We must move heaven and earth to make sure that we understand exactly what they want and that the consultation is respectful in every way.

The Bill already outlines that the main purpose of the consultation is to ascertain the cared-for person’s wishes and feelings. This is to ensure that the liberty protection safeguards are consistent with the focus of the rest of the Mental Capacity Act, which places the wishes and feelings of the person, even if they lack capacity, at the heart of the process.

The noble Baroness is also right to highlight the importance of considering the impact of the arrangements on the person’s well-being. Similarly, we are also clear that we expect the impact of the arrangements on the person to be addressed when undertaking consultation. However, the purpose of the consultation would be to consider the impact from the person’s point of view. This is crucial to how the Mental Capacity Act works.

The concept of well-being is not mentioned in the Mental Capacity Act. It is a legal concept which has particular meaning under the Care Act and the Social Services and Well-being (Wales) Act. We are concerned that it would cause confusion if this concept were inserted into the liberty protection safeguards.

However, the liberty protection safeguards will be in place to support living and will be positive for a person’s well-being. The accompanying code of practice will outline how the model works within wider care provision, including the Care Act, which has duties in relation to promoting well-being.

The amendment in the name of the noble Baronesses, Lady Hollins and Lady Finlay, explicitly requires that the cared-for person be consulted. Noble Lords raised this issue on our previous day in Committee and I know that there is enthusiasm for this proposal, as it is felt that it will more clearly place the person at the centre of the determination of their wishes and feelings.

The Government have also heard very clearly that noble Lords felt that the person themselves must be consulted. Again, I agree. If we are to secure the improvements that we want, it is essential that the person and their voice, wishes and feelings about any proposed arrangements are placed at the heart of this model. We will make sure that the Bill reflects this. I am grateful for the expert views of noble Lords in helping to improve the Bill to put this beyond doubt.

I agree with the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt, that it is important for those deciding whether an authorisation for deprivation of liberty should be given to consider whether any less restrictive options are available. Considering less restrictive alternatives is also an important aspect of the wider Mental Capacity Act. For example, the fifth principle of the Act requires decision-makers to have regard to less restrictive options. Nothing in the Bill changes this. The code of practice will set out how the liberty protection safeguards will work within the wider framework of the Mental Capacity Act and the care landscapes more widely.

Respectfully, therefore, I maintain that there is no need to add the words suggested by the amendments because they already form an integral part of the assessment process. We have made clear that the main purpose of the consultation duty is to ascertain the person’s wishes and feelings in relation to the authorisation, and this can include the person’s views about acceptable levels of restrictions.

For example, a person might wish to receive care in a care home where they have freedom to spend time in the community rather than in a care home where there is less freedom to do this. This might be because the conditions are less restrictive. This is an essential part of the liberty protection safeguards and is delivered through the assessment process. The noble Lord, Lord Touhig, made a very valid point when he asked whether we would want this for us. We must make sure that we treat people and respect them in the way we would like to be treated and respected ourselves.

I hope I have been able to provide a satisfactory explanation, but if there are outstanding concerns, I am happy to discuss them further. I trust that the noble Baroness will be able to withdraw her amendment.

[Baroness Finlay of Llandaff]

My Lords, I must admit that during the Minister’s very positive response, my hopes were up that she was going to accept the amendment and the change of title of this paragraph in the new Schedule. The reason I say that is that words matter: they set the tone. It would be very useful to be able to discuss this further so that we might take out the word “Consultation”, which has connotations of medical consultations and other things, and that we might state on the face of the Bill as a heading that there is a, “Duty to ascertain the wishes and feelings of the cared-for person”.

The noble Baroness, Lady Hollins, reminded us of the importance of wishes and feelings and that we should not slip back in time to old-fashioned, awful institutional care. The well-being Act in Wales was behind some of the wording as well, and the reason for moving that part of the Bill higher up.

The noble Baroness, Lady Barker, asked some very valid questions. Best-interest decision-making should be a process, not a one-off, and for that process to happen, it is very important that the person is consulted because their previously expressed wishes and feelings might no longer be their wishes and feelings now that they are in a different situation, but they might need help expressing those wishes and feelings as they are now. That process should also include their beliefs and values, some of which they might still hold on to and some of which they might have abandoned over time. There are other factors that the person might be likely to consider if they were able to consider them: their current views and past views might be expressed by others who know them well and care about them.

I hope that we can pursue the discussion further, but, at the moment, although I will withdraw the amendment, I would like to reserve the right to come back to this on Report, because unless we get wishes and feelings up there, in bold type as a heading, we might well find that, inadvertently, we fail the very people for whom we are arguing. I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

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[Baroness Thornton]

My Lords—

[Baroness Finlay of Llandaff]

My Lords—

[Baroness Thornton]

You go ahead of me.

[Baroness Finlay of Llandaff]

I beg your pardon; I have an amendment in this group as well. Oh dear, I seem to have spattered them in every group.

I have a real concern that triggering a review that is based on whether or not the person is thought to be objecting is far too narrow, and that anyone who has concerns about that person should be able to trigger a review independently—whether that is family, friends or somebody working in the place where the cared-for person is supposed to be being cared for.

I have an interest, or at least an experience, to declare: some years ago I was asked to help the police look at a care home where they had serious and justified concerns. The alert had come from somebody working at an extremely junior grade within the care home, not from anybody senior or from a professional. Following that, I was asked to review the case notes in detail. The people concerned all had severely impaired capacity and, often, an inability to express themselves—but, by meticulously looking at the case notes, one could see trends, and when I mapped them against the staff off-duty rota the trends became clearer.

I am very concerned that, if we leave this just as it is written, we will not allow the very people who have contact, possibly on a day-to-day basis, to put up a red flag about what may be happening in one person’s life. It may be that nine out of 10 people in an institution are very happy, but if one of them is not and one member of staff has got to know them and sees subtle changes in their behaviour, that member of staff must be empowered, with the cover of anonymity, to trigger an independent review, because that may be the only way to protect the cared-for person.

I put in my amendment that a review should be triggered if,

“the rationale … is based on the risk to others”.

The concept of “risk to others” is quite difficult to justify being in this Bill rather than in the Mental Health Act as the sole rationale for using the Bill, so I think that it becomes an exceptional circumstance that warrants that type of review. Similarly, if the restrictions are on contact with named persons, I worry that there could be a bias from the staff towards the named person. When somebody is very upset, they may appear to be an aggressive or angry visiting relative and may be a bit more difficult to handle—but actually it may be that that is simply the way that they are expressing their anxiety and their emotions towards the person who is now deteriorating and want to do their best for them. I worry about excluding a close relative without great justification; it should not be undertaken lightly.

[Baroness Barker]

When the Minister responds, will she confirm the point made to us by a number of stakeholders that harm to others, rather than harm to self, which is the basis of decision-making in best interests, is included in the Bill—because it is not explicitly ruled out and it was in the Law Commission’s proposals. If that is the case, that is a very significant change. The number of people included may well differ solely for that reason.

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Moved by

[Baroness Finlay of Llandaff]

50B: Schedule 1, page 13, line 42, at end insert—
“(aa) any arrangements that are not authorised or are authorised subject to conditions,”

[Baroness Finlay of Llandaff]

This group of amendments relates to the authorisation record. I have added an additional criteria in Amendment 50B because there may be arrangements put in place after an initial authorisation has begun—or that were subject to conditions—and parts of the authorisation may need early review. Amendment 62A is designed to ensure consistency—the care home manager will not do the assessments but will arrange them. Amendment 58B relates to renewal; if part of an authorisation no longer has effect it must be reassessed from scratch, not simply renewed. Amendment 58C requires that original evidence is submitted, not a second-hand report. It would allow the responsible body to see the authentic assessment rather than an interpretation of any original material.

[Baroness Barker]

My Lords, I am afraid that I think some of the amendments standing in my name have been wrongly grouped. I am sorry; I have been busy this afternoon going through everything else and I am now a bit stuck regarding the procedure and what I should do. I will speak to them, although I am rather reluctant to start this group.

[Baroness Barker]

But am I right in thinking that if I do not speak to my amendments today, they will automatically fall?

[Baroness Finlay of Llandaff]

It might be of assistance if I intervene here. If the noble Baroness is referring to amendments in the group beginning with Amendment 58A, I understand that if she does not speak to them now, they can be dealt with in the next group.

[Lord O'Shaughnessy]

I am no expert in parliamentary procedure but my understanding is that, as they come after the amendment we are considering now and indeed the one that we would consider next, they can be retabled.

[Lord O'Shaughnessy]

I am grateful to the noble Baroness, Lady Finlay, for initiating this discussion. Clearly the purpose of her amendments is to make sure that an authorisation cannot be renewed if it wholly or in part ceases to have effect. In some cases, an authorisation will not be renewed if in part it is no longer valid, but there might be other cases where minor changes to the restrictions are needed and that should not prevent an authorisation being renewed. We want to provide further detail in the code of practice and I would appreciate the opportunity to work on that with her.

The noble Baroness has also tabled amendments outlining that authorisation records should detail when arrangements are not authorised or if they are authorised with conditions, and that in care home cases responsible bodies should consider other relevant information, as well as information provided by the care home manager. I can tell her that in some cases if arrangements are not authorised, it might be useful to include them in the authorisation record. However, given the debate that we had on the previous grouping about the general trend towards the inclusion of data or information within records that are then made available to patients, their families and so on, I want to reflect on whether they should always be included and I will come back to that on Report.

The Bill allows the responsible bodies to consider information other than that provided by the care home manager, and further detail on the circumstances and kinds of information will be provided in the code of practice. On that basis, I hope that the noble Baroness is reassured and will feel able to withdraw her amendment.

[Baroness Finlay of Llandaff]

I am most grateful to the Minister for that clarification. I agree that some parts of this would be better in the code of practice than in the Bill, particularly because they might need modification as experience develops. If they are in primary legislation, we are effectively stuck with them for a time, whereas otherwise they can be altered. Therefore, I beg leave to withdraw the amendment.

Amendment 50B withdrawn.