Mental Capacity (Amendment) Bill [HL]

Baroness Jolly Excerpts

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

[Baroness Finlay of Llandaff]

My Lords, I do not want to detain the Committee by revisiting too much of our debate on day 2, when the Minister stated that the local authority would decide for itself how to organise and manage how AMCPs will operate. My concern is that they must be trained to a uniformly high standard. Such training should include assessment in all the key domains of responsibility. They should be registered as an AMCP and subject to revalidation over time. These people will, potentially, hold an enormous amount of power over somebody who is vulnerable.

I am also concerned that, unless those professional standards are in place, we will have a problem with quality control. In the event of a concern being raised about an AMCP, it is important that they are formally registered with the local authority. I also raise the question of how they will be indemnified and who will be responsible for their appraisal and supervision. They must have honorary contracts with adjacent local authorities to enable them to act, because some local authorities have relatively confined geographical areas. Given that these should be professionals, they should be listed with their professional body as having specialised training and skills. Another reason for this is my worry that, if they are going to function in hospitals, and unless they have a formal honorary contract from the local authority and are registered, we may end up with a two-tier system between local authorities and hospitals. I am not sure how that is going to work.

Amendment 61A seeks to expand the range of people who can train to become an AMCP. I declare an interest as president of the Chartered Society of Physiotherapy; I was at its annual conference at the weekend. I did not add physiotherapists to the list when I wrote the amendment, because I had not had a chance to consult them. However, it was evident, from many inspirational presentations, that physiotherapists working in head injury, acute trauma and stroke units, and in mental health services, can often be key to rehabilitation and restore people dramatically to a degree of independence that others had not envisaged. They felt very strongly that they did not want to be excluded; they have a lot to offer and are keen to train up, which seems very sensible.

I have also come across a few—not many—doctors who have retired from their main clinical practice but remain on the medical register, still work in some capacity or another, and, in later life, have developed an interest in people with impaired capacity. They have years of experience behind them, particularly in old-age psychiatry and so on, and would like to train as an AMCP. The criteria on which to select people should be their motivation, personal skills and background experience. We should not judge them by their original clinical degree qualification, because that is arbitrary. It does not mean that just because you are a nurse, a clinical psychologist or a social worker you would be perfectly fitted to this role; nor does it follow that because you are a speech and language therapist or a physiotherapist or whatever, you would not be suitable to take on this role and these responsibilities.

I therefore hope that the Minister might be able to expand a little, or perhaps not even discuss it here but think again, on how we will ensure that the people who carry this responsibility are trained to a uniformly high standard, are properly indemnified, can be identified, are able to function properly and can be held to account for the way in which they take decisions and advise. I beg to move.

[Baroness Jolly (LD)]

I would like to add a few more points on training. An awful lot of people in an awful lot of new roles will require training to get whatever system that we are going to end up with up and running at pace. Which organisation will be responsible for setting up the programmes for ensuring the delivery of good-quality training? Who has the responsibility to ensure that nothing is implemented until all the appropriate professionals have received their training? There is nothing worse than determining a date to fire the gun if you discover that all the people who are going to run the system are not yet trained. Can the Minister confirm that all this will start with plenty of time before the rollout of this new system? We expect that training should be effective and ongoing. Who will assess the trainers? What is the process for ensuring quality and a national standard? We may well be able to twist something that currently exists and make it work, but I do not have that knowledge. Can he also confirm that, as part of this training, the rights of the individual will be reinforced? Will the training clarify the role that each of these professionals within this new system is going to have in ensuring that an individual’s rights are observed and respected?

[Lord Hunt of Kings Heath (Lab)]

My Lords, I want to follow up the remarks of the noble Baroness, Lady Finlay, by referring to the recent CQC annual report, which had a section on the implementation and practice in relation to DoLS. The report laid out a number of key concerns about care home and hospital providers that are actually using DoLS at the moment in relation to the Act itself. There is a huge variation in practice and this variation is commonly linked with a basic lack of understanding of the law, which is complex and difficult to understand. The report says that the result is that there are unnecessarily restrictive practices that can result in the loss of freedom and, in some cases, the loss of people’s human rights. The problems are reinforced by limited staffing levels, a lack of time to complete applications and inadequate staff training.

I am aware, of course, that the intention of this Bill is to streamline some of those procedures, although I think that, because the safeguards have been drastically reduced, we might be landing ourselves in future problems once the courts begin to hear some of the cases that will arise. The point is that it is quite clear that, at the moment, effective training is not taking place among many of the organisations involved in the operation of DoLS. The risk is that the same will happen in relation to the new legislation. We need some guarantees that there are going to be resources and a concerted training programme to ensure that we mitigate that impact.

--- Later in debate ---

[Baroness Barker]

My Lords, I want to make a couple of quick points. The noble Baroness, Lady Murphy, is of course right that the whole issue of DoLS and the community is known to be a problem. However, the examples she gave seem to me to be examples of people not understanding the DoLS legislation and applying it wrongly, rather than the legislation necessarily being wrong. It is always important to make the case for the rights of families to reject undue intrusion, but I want to share with her the case of a young man with whom a learning disability organisation was working. The organisation achieved great results and he did really well. Prior to his involvement with the organisation, he would sit all day in a part of the living room that had been bricked off by his parents, with his own chair, his own television and being fed through a hatch. That was in a domestic setting. I need not tell the noble Baroness that we need to be quite careful when drawing up legislation.

It is a great shame that we have been presented yet again with a piece of legislation that came out of nowhere when we could have had a proper consultation. The people who are out working in the field at the moment having to administer DoLS understand many of the problems. They know that issues that arose partially from the application of the Cheshire West ruling and the High Court judgment have caused a problem. But amending a really bad Bill is not the way to deal with this problem.

[Baroness Jolly (LD)]

I want to make a couple of points, but I first draw the attention of noble Lords to my interests in the register relating to learning disability. It is interesting how to read this amendment. I looked at it and thought about individuals in domestic settings, and the charity that I chair does just that. We put four or five individuals into a domestic setting. A proportion of them will have a DoLS. If noble Lords go into the house, it looks just like an ordinary home. Each resident pays rent and would consider it very much their home. Carers offer 24-hour support and locks are well and truly in evidence. Over the weekend, I asked our director of operations what proportion of the people we support were subject to DoLS, and she said thousands. It is just the norm.

I understand that the noble Baroness’s intention was to take this into a family setting where there is mum, dad and a child who may well be an adult—certainly, we see parents in their 80s caring for their children with a learning disability who may be in their late 50s or late 60s, and the parents are at their wits’ end. All that fits with this amendment so, whatever its merits, the wording needs to change but it is certainly worth pursuing.

[Lord O'Shaughnessy]

I am grateful to the noble Baronesses for leading this debate. Obviously, the bulk of the debate focused on Amendment 87C, which would exclude people residing in domestic settings, and we have discussed the merits of that approach. The noble Baroness, Lady Meacher, gave a thorough exploration of alternatives to the LPS system in a domestic setting. The noble Baroness, Lady Murphy, gave a passionate defence of the role of families in caring, which was perhaps accentuated by the noble Baroness, Lady Wilkins, talking about the need to avoid overzealous application of any new provision of deprivation of liberty safeguards. My noble friend Lady Barran talked particularly about the group of people who lack a care plan and their interaction with the care system if they go temporarily into a care home. For me, all that brought home that we have further work to do on the appropriate system that applies in a domestic setting, to put it shortly.

It was helpful that the noble Baroness, Lady Barker, told us the story about the vulnerable person. We all agree that something needs to happen in that case to check the actions of the family or help the family to do better. They may just not know what to do or be at their wits’ end—who knows? We can imagine how easy it is to fall into those situations not out of intention but out of pressure and circumstance. That debate highlighted how important it is to get that right. I absolutely want to avoid intrusion where it is not necessary, but equally we need to ensure that those people deprived of their liberty receive the proper protections due to them under Article 5 of the ECHR. This is an issue that clearly needs more work. The amendment was not designed to perfect the solution but rather to start the conversation, and it is absolutely one that we will take through with noble Lords.

I turn briefly to Amendment 83B, moved by the noble Baroness, Lady Thornton, which seeks to introduce a legal presumption that a person should give evidence in all Court of Protection proceedings. Obviously I agree with her about the importance of this issue. She called it a reasonable point and I think it more than reasonable. It is essential that in any court proceedings a person’s rights are protected and that the cared-for person has the opportunity to give evidence to the court in any case concerning the deprivation of liberty. I am happy to be able to confirm that this is already reflected in the Court of Protection rules. The court’s overriding objective under the rules is to deal with cases justly and at proportionate cost. They expressly include ensuring that the person’s interests and position are properly considered and that the parties are on an equal footing. A new set of rules was introduced less than a year ago. They include changes to ensure that a person is able to participate in proceedings. Specifically, rule 1.2 requires the court to consider in every case how best to secure the cared-for person’s participation. It sets out a range of options including the cared-for person addressing the court directly, indirectly or with support from a representative, a litigation friend or an accredited legal representative. I hope that that provides the noble Baroness with the clarification that she was looking for and that she will feel able to withdraw her amendment.

--- Later in debate ---

Moved by

[Baroness Jolly]

86: After Clause 3, insert the following new Clause—
“Requirements before commencement
(1) Before all provisions of this Act other than those which come into force on its passing can come into force, the requirements under subsection (2) must be met. (2) The requirements are as follows—(a) the Secretary of State must publish an updated code of practice giving guidance for decisions made under the Mental Capacity Act 2005, including the provisions of the Mental Capacity Act 2005 that are amended by this Act; and(b) the Secretary of State must publish a response to the Independent Review of the Mental Health Act, chaired by Professor Sir Simon Wessely.(3) The Secretary of State must lay a copy of the publications required by subsection (2) before both Houses of Parliament.”

[Baroness Jolly]

My Lords, I shall speak also to Amendments 87, 93 and 94 and address the amendments tabled in the name of my noble friend Lady Tyler and the noble Lord, Lord Touhig. Amendments 93 and 94 are simply enabling provisions.

Amendments 86 and 87 would require that, before the implementation date of this legislation, the Secretary of State should lay before both Houses of Parliament a copy of the updated code of practice giving guidance as well as a response to the review of the Mental Health Act that Sir Simon Wessely is carrying out. We have been half guessing in our discussions what might or might not be in it.

The Bill is not particularly easy to read and it is certainly not a guide for practice, and the ensuing Act will not be easy to read either—unlike the Care Act. The code of practice is absolutely critical to take professionals through what the legislation will entail and what they will have to implement in their practice. To that end, I have a little list. I wonder whether the Minister can indicate or confirm whether these issues will be covered in the code: the basis for detention and when the “necessary and proportionate” test applies; the role of IMCAs and appropriate persons; the professional qualifications and training of those undertaking pre-authorisation reviews; when an AMCP referral should be made; and obligations to provide information to the person and their family about the authorisation. The Minister may not have the answers on his person or from the Dispatch Box right now, but perhaps he could write to me and make that clear.

To make this happen, we would need subsection (2)(a) of the new clause proposed by Amendment 86 and a year’s wait. Many noble Lords have spoken both on and off and in Committee about the Mental Health Act. In our previous debate, the noble Baroness, Lady Meacher, referred to the work of Sir Simon in reviewing that Act along with the Act we are trying to amend now. Between them, the two Acts define, among other things, the care and rights of the most vulnerable—those with mental health conditions and those lacking capacity—who are unable to make decisions about their care. Sometimes, but not always, there may be an overlap. It would not be prudent for the Bill to end its passage through Parliament without us learning the findings of the Wessely review and determining whether it is necessary to amend the Bill further—hence the need for subsection (2)(b) of the new clause proposed by Amendment 86. Earlier today, the Minister spoke about pushing ahead. I understand the need for urgency, but I fear that if we pass the Bill in haste, we may end up repenting or regretting at leisure. That is just me being slightly cautious.

Amendment 87 calls for the Secretary of State to,

“lay a copy of the report before both Houses”.

He or she—who knows who it will be by then—is being asked to look at how the Act is working and whether they are confident that there is an improvement in the process surrounding the deprivation of liberty. We have all discussed this issue; the Minister will have detected the Committee’s concern about this area of the Bill. Basically, I am calling for the Secretary of State to report back on the impact of the Act and ensure that the code is well and truly in place before we start to use the Act in earnest.

I added my name in support of my noble friend Lady Tyler’s amendment, which seeks to ensure that regulations are scrutinised and debated in both Houses. It would also ensure that consultation takes place outside Parliament, which is critical. It is fine for us to debate these issues here—clearly, some people have more experience and understanding than others—but I get many letters from not just individuals who are, or would be, affected by the Bill but the sector, saying, “Keep the Government’s feet to the fire. Make sure we get the very best Bill we can”. I do not doubt at all the Minister’s intention to achieve that end, but the devil is in the detail and there is a lot of it. We must make sure that we get this right through primary legislation. As I said, there is much expertise but we all welcome the opportunity to look at the detail of regulations, both accompanying primary legislation and in any future proposed changes.

Under DoLS, a number of important things were set out in regulations, particularly: who best interests assessors were and how they were to discharge their duties; the timeframe for carrying out assessments; the type of information that would need to be collected; and details of how disputes might be resolved. As my noble friend Lady Tyler will highlight, this is not just about ensuring that regulations are debated; it is about how those in the sector—families and vulnerable people themselves, I would suggest—are consulted and involved in getting the detail right in both initial regulations and any subsequent changes down the line.

To bring this matter into sharper focus, I wonder if the Minister might be able to confirm what he thinks might go into regulation? I hope he would also confirm that regulations laid accompanying this Bill, and any amendments down the line, are subject to the fullest scrutiny both in this House and in the sector. This will mean a decent time gap will have to be found between the laying of the regulations and the debates in both Houses.

I welcome Amendment 92, in the name of the noble Lord, Lord Touhig, which would see another two independent reports commissioned by the Government. They would be laid within two and four years of implementation, to provide a valuable update as to how implementation was proceeding and highlight areas for improvement. We will need to monitor the implementation of the Act, however it may end up, really closely. We are dealing with the most vulnerable in our society.

These amendments are based on the PIP independent reviews, which have proven successful in highlighting problems. While I am sure many in this House would agree that there are still things to improve in terms of personal independence payments, the oversight provided by the independent reviews has been invaluable in terms of recommending important changes aiding implementation. There are many important issues to review: best interests decisions—ensuring that they are just that, and not based on commercial or other considerations; a monitor of advocacy offered and its uptake; the involvement of P—the cared-for person—and not just professionals, but also those who care for P, and the families of P. I am happy to support those particular amendments, and beg to move.

[Lord Hunt of Kings Heath]

My Lords, I have three amendments, starting with Amendment 87A. It sets out a number of requirements before the Act can come into force, embracing a set of independent reports that I would like to see commissioned by the Secretary of State. They address work on the rewording of the expression “unsound mind”; the availability of independent advocacy; appeals on behalf of cared-for persons; the availability of legal aid and support for cared-for persons participating in court proceedings; and short and long-term costs for implementing provision bills for local authorities, the courts and the health service. I recognise some of these points have already been discussed, on the second day of Committee in particular, and the Government are bringing forward amendments so the Bill reflects the need to consult the cared-for person. The Minister also agreed to look further at the expression “unsound mind”, which many believe is stigmatising and outdated language.

I hope the Government might just go further. This amendment is based on the report of the Joint Committee on Human Rights and reflects some of the issues it would like to see covered in legislation. I will not comment in detail, but I want to come back to the role of the Court of Protection. We discussed this on the second day of our proceedings, and I think the Committee was informed by the view that recourse to the Court of Protection should be avoided wherever possible, because of the stresses and strains involved and the cost. I am certainly conscious that we do not want to create a situation where mental capacity professionals defer their responsibility to the court, and individuals have to undergo court procedures unnecessarily.

According to Dr Lucy Series of the School of Law and Politics at Cardiff University, while the cost and stress of applications to the Court of Protection is undeniable, research by Cardiff has shown that the Government have taken the decision not to reform the Court of Protection, which would make it less costly, less stressful and more like the tribunal approach that many noble Lords would like to see. It is instead being managed by, essentially, restricting access to justice. A week ago, the noble Baroness, Lady Stedman-Scott, said that,

“if a person wants to challenge their authorisation in the Court of Protection they have the right to do so”.—[Official Report, 15/10/18; col. 371.]

However, the practicalities are that people may experience extreme difficulty initiating a court action without assistance, as will their families. The evidence on this matter was very clear to the House of Lords Select Committee on the Mental Capacity Act and the Law Commission. I hope that the Government will consider it.

--- Later in debate ---

[Lord O'Shaughnessy]

My Lords, I am grateful to all noble Lords who have tabled amendments in this group. We have had a wide-ranging debate on areas where they would like to see various enactments, changes, reports and so on, before commencement and following implementation. I will attempt to deal with them thematically.

Amendment 86 requires that before commencement the Government must publish the code of practice and our response to the Mental Health Act review. Amendments 93 and 94 update Clause 5 to reflect this. I am happy to confirm that the Government will have published both of these before the new system commences.

Amendment 87 requires that the effectiveness of the Act is reviewed and a report laid in Parliament within a year of the Bill coming into force. As the noble Lord, Lord Touhig, just pointed out, Amendment 92 requires the Secretary of State to commission two independent reports on the operation of the new liberty protection safeguards scheme two and four years after the new system comes into force. Again, I am happy to assure noble Lords that the Government routinely conduct post-legislative scrutiny for all new Acts. The relevant guide says that within three to five years of Royal Assent the Government will be required to submit a memorandum to the relevant departmental select committee with a preliminary assessment of how the Act has worked in practice. I am happy to confirm that the Bill will receive such scrutiny and the Health Select Committee will be informed.

Amendment 87A, in the name of the noble Lord, Lord Hunt of Kings Heath, details requirements regarding a number of topics. As he pointed out, a number of these have already been addressed in our debates, including unsound mind, issues around advance consent, the availability of non-means-tested legal aid, and others. We have had a debate on the rules and guidance around IMCAs, which we are clearly going to take forward. He focused on tribunals. The Government are reviewing the courts and tribunals system but that review has not concluded. We are not proposing to change the position on the Court of Protection hearing challenges to liberty protection safeguards in the Bill precisely because there is not yet an opinion or a policy change from the Government with regard to a proposed new system. He also asked about the cost implications, which are outlined in our impact assessment, as he will know.

The noble Lord’s second amendment, Amendment 87B, seeks to make the CQC the regulator for the liberty protection safeguards. The Bill allows for bodies to be prescribed to report and monitor the scheme and it is absolutely our intention that the CQC takes on this role in England. It clearly has an important role in oversight of the new system, although we are concerned that his amendment would introduce additional layers of regulation. It should also be pointed out that the CQC is an England-only organisation; in Wales, the overseeing regulators are expected to be Healthcare Inspectorate Wales and Care Inspectorate Wales, which will both take on this role.

Amendment 87D was tabled by my noble friend Lady Barran and the noble Baroness, Lady Finlay. It would require responsible bodies to consider criteria to be published by the Secretary of State around best interests and the least restrictive option before authorisations are approved under the liberty protection safeguards. These are of course absolutely key principles of the Mental Capacity Act, and responsible bodies will have to consider them as part of any authorisation. As I have set out in previous debates, these factors already form part of the necessary and proportionate assessments, as well as other factors such as considering the wishes and feelings of the person. We will explain in the code how this assessment should be carried out and the factors that assessors should have regard to. I am grateful to my noble friend for some suggestions in that regard and I have just confirmed that the code would be published before commencement of the new scheme.

Amendment 87F, in the name of the noble Baroness, Lady Tyler, would remove the power of the Court of Protection to call for reports from local authorities and NHS bodies in cases relating to a cared-for person under the schedule. We think it is important, as I am sure she does, that the Court of Protection has access to such information but I heard the story that she told about an undue burden. I am certainly happy to commit to her that I will speak to colleagues in the Ministry of Justice to see whether there is any way that this process can be improved without removing the ability of the court to access the information it needs to make proper determinations.

Amendment 92A, in the name of the noble Lord, Lord Hunt, seeks to ensure that the liberty protection safeguards do not apply to any existing or pending DoLS authorisations. I can confirm that existing DoLS authorisations can continue until they are due for renewal or review. Clearly, depending on the final outcome of the Bill, the frequency with which those are renewed or reviewed will mean that there will be a steady stream of DoLS authorisations coming under the liberty protection safeguards in future, for those that are rolled over. Careful work will clearly need to be done with the sector to ensure that a tsunami of new authorisations does not happen but allowing for authorisations to continue under the previous system, until they can reach review or renewal, should go some way toward mitigating that risk.

Finally, Amendment 88, tabled by the noble Baroness, Lady Tyler, states that regulations should be subject to the affirmative parliamentary procedure and a consultation requirement. We have of course asked the Delegated Powers and Regulatory Reform Committee for its opinion on the regulation-making powers within the Bill and it has accepted that the negative procedure provides appropriate parliamentary oversight. As the Committee knows, we go against the DPRRC’s recommendations at our peril.

I apologise for detaining the Committee for six or seven minutes but I wanted to be thorough. I hope that I have been able to give the reassurances that noble Lords were looking for about the safeguards that we will put in place before commencement and the reviews of effectiveness to ensure that the system is working as intended. I hope that noble Lords will feel able to withdraw or not move their amendments.

[Baroness Jolly]

I thank the Minister and others who have spoken on this group. We all want to ensure that the new mental capacity Act—presumably of 2019—works and that the Department of Health and Social Care monitors its implementation. I know that we on these Benches look forward to working with the Minister and others between now and Report to ensure that the Bill is actually fit for purpose. I gently suggest that a longer time gap than is usual between Committee and Report might be needed. I guess that those conversations might need to be held with the usual channels but, in the meantime, I beg leave to withdraw my amendment.

Amendment 86 withdrawn.

Personal Social Care: Funding

Baroness Jolly Excerpts

Tuesday 16th October 2018 Lords Chamber

[Lord O'Shaughnessy]

I shall have to disappoint the noble Baroness: the proposals will be set out in the Green Paper and I will not give a sneak preview today.

[Baroness Jolly (LD)]

My Lords, Scotland has been giving over-65s free personal care for years now and is now running a feasibility study on extending it to under-65s. This is not the action of a Government who are unconvinced of the benefits. Will the Government consider running a trial in a defined English health community—say, the Manchester community or perhaps even Cornwall—to determine whether the benefits can be replicated south of the border; and, if not, why not?

[Lord O'Shaughnessy]

I am not sure that a trial is required; what is needed is a systematic change in the way we do things for everybody. I am interested to hear what the noble Baroness says about the under-65s. One thing I can tell the House is that the Green Paper we will publish this year will deal with adults of not only retirement age but working age. Those were two separate streams that were working in parallel, but they will be contained within the same Green Paper.

Mental Capacity (Amendment) Bill [HL]

Baroness Jolly Excerpts

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

Moved by

[Baroness Jolly]

31: Schedule 1, page 12, line 18, at end insert—
“(3) Where any interested party objects to the determination that arrangements are necessary and proportionate, an Approved Mental Capacity Professional (AMCP) must be engaged and the AMCP may, where they deem it necessary, refer disputes to the court.”

[Baroness Jolly (LD)]

My Lords, a cared-for person has rights, and it is the duty of all those dealing with that person to understand those rights and to ensure that they are respected and recognised. I am certain that the rights of a cared-for person should be at the heart of liberty protection safeguards. One way to ensure this is to provide an automatic referral pathway to an AMCP in those cases of dispute, objection or disagreement that cannot easily be resolved. We know that a group of cases referred to court has been pivotal in ensuring that people’s rights are upheld in the field of mental capacity. These cases provide AMCPs with the authority to refer to the court. If this authority is on the face of the Bill, it will provide an added level of reassurance that the interests and wishes of the cared-for person will be fully considered.

Cared-for people are found in many different settings in this context—in hospitals, care homes and, indeed, their own home—whether they are supported by friends and family or by a care provider. I believe that this amendment will have particular relevance in cases involving potential deprivations of liberty within the cared-for person’s own home. Although the Minister’s letter addressed after Second Reading stated that all applicants will be subject to an independent review before authorisation, the Bill as it currently stands does not reflect this—nor the ability of the AMCP to refer to the court any issues that have evaded amicable resolution. I wonder whether the Minister will look at this when he sums up, and bring back some government amendments on Report to resolve these omissions.

[Baroness Barker (LD)]

My Lords, some amendments in this group are in my name. The purpose of putting these amendments down is to enable a debate about the extent to which the Bill relies on family members to take responsibility for escalating up and—as it seemed to us when we started to read the Bill—challenging care home providers, as well as challenging any deprivation of liberty. We know from the experience of Mark Neary that he relied heavily on provisions of the Mental Capacity Act—particularly covering review procedures—to equip him with what he needed to challenge what was being done to his son. It seemed to us that, because of the way the Bill was written, there was a greater expectation that it would fall to relatives to bring matters before the court, which is not easy to do.

We realise that going to court is an expensive and time-consuming business. We do not want to refer cases to court where there is no need to do so—we want to rationalise—but in our view this part of the Bill is inadequately written. It does not contain sufficient safeguards, and therefore we wanted a debate on these matters to probe exactly what support family members will have where there is a need to challenge decisions made under LPS.

--- Later in debate ---

[Baroness Stedman-Scott]

We will ensure that guidance regarding the rare circumstances where it is not practical or appropriate is included in the code of practice. The amendment tabled by the noble Baronesses, Lady Barker and Lady Hollins, and the noble Lord, Lord Hunt of Kings Heath, requires the person who completes the pre-authorisation review, where they are not an approved mental capacity professional, to meet with the cared-for person regardless of whether it is appropriate or practical.

We appreciate that there may be circumstances where it is appropriate for the reviewer to meet the person, and the Bill does not prevent this happening. Indeed, in some cases it would be our expectation that this would happen, and further detail on this will be provided in the code of practice. However, in many cases the circumstances will be straightforward. For example, where someone consented to be in a care home but subsequently lost capacity, a meeting with the cared-for person would not challenge the outcome and it would not be proportionate to require that person to undergo the process again. The Bill provides that, prior to an application being authorised, it must first be reviewed by somebody who is not involved in the day-to-day care and treatment of the cared-for person. Where this is not an AMCP, the person who completes this review must review the information and determine whether it is reasonable for the responsible body to conclude that the authorisation conditions are met.

DoLS leads in local authorities have told us that they are already giving a great deal of thought to what they will need to see to be satisfied that the conditions are met for a liberty protection safeguards authorisation. We would do well to wait and see what the detail of that is. We will set out further guidance on this matter in the code of practice, but it is not right to require on the face of the Bill the reviewer to meet the cared-for person in every case. The Bill carefully balances the requirements necessary for authorisations across all the people involved: the cared-for person, their carers and their families, along with the healthcare workforce.

I now have a piece of paper, so I can tell the noble Baroness, Lady Thornton, that, yes, it is automatic for the AMCP to meet the person. The AMCP makes the decision on whether it is or is not appropriate or proportionate, which I believe I said earlier. Also, the noble Baroness, Lady Jolly, has made sure that we understand that what is important in this are the rights of the individual. Those are at the heart of what we are doing. She was particularly concerned about people in care homes. The system that we are bringing forward and trying to fine-tune will certainly make sure that they are given the due consideration they need. I will not repeat the points that have been made about going to court, which incurs all manner of personal and fiscal costs as well as bureaucratic costs. An appeal to the court on these things should be a last resort, because I agree completely with the noble Baroness, Lady Meacher, that such action would mean that there has been a failure in the system, which is something that we are desperately trying to avoid.

I hope that I have answered all the questions, but I know that noble Lords will tell me if I have not. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Jolly]

I thank the Minister for her response. We have had a short but interesting debate and I expect that many of us are keen to talk to the noble Baroness, Lady Meacher, because we are all quite interested in the conversation that she has just had with Sir Simon Wessely. I understand that there is no desire on his part to combine both Bills, although I feel that there should be some learning for this Bill from his deliberations. However, I will read Hansard carefully and reconsider the matter before Report.

Amendment 31 withdrawn.

Mental Capacity (Amendment) Bill [HL]

Baroness Jolly Excerpts

Monday 15th October 2018 Lords Chamber

Moved by

[Baroness Jolly]

26: Schedule 1, page 12, line 9, at end insert—
“(4) If the arrangements are care home arrangements, the assessment must be carried out by an individual who has attended and passed the accredited training authorised by the local authority under section (Training for care home managers).”

[Baroness Jolly (LD)]

My Lords, this group is all about training the professionals referred to in the Bill for the new world. I completely support the amendments from my noble friend Lady Barker and those of the noble Baroness, Lady Hollins. They fit well together. As a group of amendments they cover many training bases. Under the Bill, care home managers will be required to undertake assessments currently conducted by the responsible body, such as the local authority, the NHS or the CCG. While some care home managers and staff will possess a significant knowledge of procedures, the fact that they will now be required to carry out an assessment of whether somebody’s liberty is being lawfully deprived and is in the person’s best interests will require a much deeper level of qualification and understanding.

At present there are no fewer than six assessments for a DoLS application: age assessments, no refusals assessments, mental capacity assessments, mental health assessments, eligibility assessment and best interests assessments. For care home managers to be able to conduct these assessments to replace the DoLS scheme, they will need the appropriate qualification. In considering what is requisite to become best interests assessors, social workers must complete specific and complex training in addition to their university education. We wish to avoid the inadvertent authorisation of care and treatment arrangements that do not comply with the Mental Capacity Act, so training must include in-depth consideration of that Act and be of a depth that reflects the existing training of best interests assessors.

Other professional training has its roots in secondary legislation in the same way as outlined in the amendment, so we believe it is totally appropriate that training for care home managers in this regard should follow the same pattern. However the Bill ends up, training will be required. I would welcome an indication from the Minister about current plans for training individuals referred to in the Bill. I beg to move.

[Baroness Meacher (CB)]

My Lords, I support Amendment 91, to which I have added my name. There is concern out in the field that care home managers will not be in a position to identify who will undertake the assessments under the Bill. It is not clear what training will be required for assessors. In his earlier comments, the Minister alluded to best interests assessors becoming the assessors under the Bill, but can he confirm exactly who will be undertaking the assessments? Only then can we be clear about what training they need.

The Minister also seemed to give the House an assurance that care home managers would not undertake pre-authorisation reviews. Again, could he confirm that and explain exactly who will undertake the pre-authorisation reviews? Again, the training of these people will depend absolutely on what their role is.

The 2008 regulations define who can undertake assessments. An assessor must be a qualified social worker, psychologist, nurse or occupational therapist. Also specified is precisely what training and testing the deprivation of liberty assessors have to undergo. Even though they are professionals and are required to have two years of experience in their profession, the deprivation of liberty training is also very precise. We need to know the extent to which the professionalism of the present system will be replicated.

The aim of the Bill is to streamline the process for authorising the deprivation of liberty. Any streamlining has to be thoroughly welcomed. I mentioned one idea of the British Association of Social Workers for streamlining. It has another interesting idea: that some streamlining could be achieved if the existing practice frameworks for care assessments and the Mental Capacity Act assessments were combined. The result would be that a trained professional undertook the deprivation of liberty assessments in the course of their other assessment work rather than having separate people. It would require revision of the codes of practice for the Mental Capacity Act and the Care Act, but it could be a useful way forward. Can the Minister explain whether this option has been considered? If not, would he be willing be to meet the British Association of Social Workers, and possibly me, to explore whether it has merit?

At present, we are clear neither about the roles of different people—assessors and pre-authorisation reviewers—nor about what their training might and should be. I would be grateful if the Minister could clarify some of these things.

--- Later in debate ---

[Baroness Jolly]

My Lords, I want to reflect on training and the cost of training. What is really interesting is where it is put on the balance sheet. If training is seen as a cost to an organisation, people will complain and feel that it is not necessarily money well spent. If training is seen as an investment, however, and is treated as such—certainly for local authorities—it would be a really good investment if it avoided court cases leading to very high legal bills. If training could be seen as an investment rather than a cost, while the problems will not go away, people might learn to think about things differently.

[Baroness Finlay of Llandaff]

My Lords, unless training becomes mandatory on some level, the problem is that we will always train those who are willing to be trained while not reaching those who perhaps need to be trained more. If we could make training a little bit like fire training or manual handling, with very short bursts of realistic training, it might be much more effective. Over the years I have seen very costly, ineffective training and very low-cost extremely effective training. Often the most effective training includes a realistic assessment because assessment drives learning. I strongly support the comments made by my noble friend Lady Hollins because case-based training involving the people themselves has a huge emotional impact and therefore embeds change in the behaviours and attitudes to the person on the receiving end. On a slightly optimistic note, I am rather hoping that within Wales, we might manage to get an agreement that all doctors at every grade need at least a minimum awareness of the Mental Capacity Act and that we might then be able to build on that. I keep my fingers crossed.

The other point that we have to be careful of when we talk about training is that this is not about broadcasting information that might sound quite legalistic and frightening. One of the most important skills is listening, and listening skills have often failed in these cases, such as the ones referred to already in which the relatives were not listened to early on. They were not believed early on, the cared-for people were not adequately listened to and things spiralled down. Some of that lack of listening is just a result of poor communication skills training. I am not sure that we have to be overspecialised, but we need to raise the skills of everybody across the board. It needs to be embedded in revalidation—you might train somebody now, but in five years’ time there will be drift. The training, therefore—particularly if people are being trained to take on specific responsibilities—needs to be refreshed over time to ensure that it remains authentic.

--- Later in debate ---

[Baroness Jolly]

My Lords, I thank all the speakers who took part in this debate and I thank the Minister for such a comprehensive and positive response. Taking all that into consideration, I beg leave to withdraw my amendment.

Amendment 26 withdrawn.

Mental Capacity (Amendment) Bill [HL]

Baroness Jolly Excerpts

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

Moved by

[Baroness Jolly]

15: Schedule 1, page 11, line 1, leave out “in accordance with paragraphs 18 to 20” and insert “by an Approved Mental Capacity Professional”

[Baroness Jolly (LD)]

My Lords, I again refer noble Lords to my interests in the register. I am revisiting an area that we covered at Second Reading. Many of the issues we have been discussing, as we have just discovered, weave in and out of my comments, but this is about the appropriateness of the care home manager to carry out pre-authorisation reviews.

I should make it clear, given previous comments, that I recognise that DoLS needs replacing and that, in finding that replacement model, professionalism and expertise are important. This is not a personal, solo crusade—I do not fail to understand what a manger of a care home does and I recognise their professionalism in doing it. However, the noble Baroness, Lady Thornton, had it spot on when—it seems like hours ago—she used the description that they had used to her around the concerns about their capability and capacity.

Many of us have been supportive of this Bill, with briefings from and meetings with household-name charities, providers, royal colleges, academics, lawyers and interest groups. The two amendments in my name were drafted by a charity whose reputation for policy on older people is respected and admired—Age UK. It has several concerns about areas of the Bill and would welcome a meeting with the Minister to discuss them.

The cared for person’s interests are central to the Care Act, and I am delighted that the Government will bring forward amendments which will allow the voice of the cared-for person to be heard in this process, including 16 and 17 year-olds, and will do away with the term “unsound mind”. I join with all noble Lords in that.

At Second Reading, conflicts of interest were debated and we agreed that the cared for person’s interests must come first. However, this could be at odds with the care manager’s duty to keep their care home viable. Vulnerable people are at the heart of the Bill and how they are reviewed at a critical point in their care—the pre-authorisation review—sets the tone of the professionalism within their care. These reviews should be carried out by a trained professional—an AMCP—but, as currently drafted, only those objecting to the proposed arrangements will be provided with an AMCP. Generally, care home managers have not received professional training other than in running a care home—as the Minister mentioned, they may well have had that kind of training—and if they have, I would have no objection whatever to them carrying out the review.

However, many AMCPs have a first degree—possibly a masters—and professional training, with regular supervision and refreshers, and, whether they are social workers, mental health nurses, OTs or clinical psychologists, all will have the professional ethos and expertise instilled into them in their daily working. It is what they do. The proposed half-day familiarisation course does not really measure up.

This amendment will also protect the care home manager from accusations of conflict of interests or vested interests. It was a manager who made that point to me. I had not thought of it because I was looking at the issue from the point of view of managers considering their care home to be a business that needs to operate at 99% capacity for it to be effective. Managers have said that they would welcome an amendment similar to this one because it would give them some sort of cover. Perhaps I may remind the Minister that, in mental health legislation, an assessment made in a private setting must be carried out by an independent assessor. This amendment does not break new ground or indeed set a precedent.

While we are on the issue of finance, the noble Baroness, Lady Finlay, repeated a concern expressed in the sector about the costs of assessments and reviews being added to the bills of self-funders, which might be seen as a licence to print money. We know already that some care homes are charging £250 for a referral, but an assessment is a much more complicated piece of work and might well cost £1,000. People in the sector are concerned about this. Fee levels are not regulated, so I wonder whether the Minister could take the issue away and look at it. I welcome his willingness to listen and I look forward to his response. I beg to move.

[Baroness Meacher]

My Lords, I applaud the noble Baroness, Lady Jolly, for tabling this amendment and I will add a few comments to those she has made. In my view, all pre-authorisation reviews should be undertaken by a professional who really understands the assessment of capacity. I accept that the amendment goes further than the Law Commission recommended, but it is not clear that the commission envisaged care home managers undertaking or being responsible for assessments and pre-authorisation reviews.

The whole point is that too often it is just assumed by everyone that somebody with limited capacity does not have a view or that they are content. Also, the person may not even have adequate information on which to base a view or make a comment. They may therefore not feel able to make an objection. It is not reasonable to expect care home managers to know about all the alternative and possibly less restrictive options available; why would they? As the noble Baroness, Lady Thornton, argued, the care home manager has a job to do in keeping costs down and filling beds.

It is not a criticism of care home managers to suggest that independent scrutiny is essential in all cases to ensure that those imperatives do not lead to an understandable failure to focus on the needs of the individual. Again, we should not expect care home managers to put the interests of the individual ahead of their business imperatives. I understand that many care homes close because they cannot cover their costs. They are desperate to fill their beds, and that is going to take priority. We just have to respect that that is simply how life is.

In the letter from the department to noble Lords dated 24 July following Second Reading, the Minister said that the local authority would undertake the authorisation itself, thus providing independent scrutiny and oversight. I think that the Minister will recognise, however, that if no concerns are raised during the pre-authorisation review, the local authority will be in a very poor position to question the conclusion of the care home manager. The noble Baroness, Lady Barker, suggested that there might be a form of to and fro between the local authority and the care home manager, but I am not sure how meaningful that can be when all the work and the pre-authorisation review has been done. Given that, I would have thought that the local authority would just not be able to get at it.

Another concern is that it is in the gift of the care home manager to identify whether a person would benefit from advocacy. It seems that most of these people will, but the current proposals are unclear about who will pay for the advocate. I would be grateful if the Minister could clarify that issue.

--- Later in debate ---

[Lord O’Shaughnessy]

My Lords, I thank all noble Lords who have tabled amendments in this group. I am grateful for what has again been a high-quality and well-informed debate.

I want to deal with the main issue raised by the noble Baroness, Lady Jolly, at the beginning of her comments, which is the subject of the amendment in the names of the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton. The amendment would clarify in the Bill that a pre-authorisation review cannot be completed by a care home manager, who would be excluded from such a role. I am happy to assure all noble Lords that the role of care home managers in the new system is to provide the statement to the responsible body and, where necessary, to arrange assessments—as we have discussed. Their role is not to authorise arrangements. It would not be appropriate for care home managers to complete pre-authorisation reviews. I assure the Committee that we will make sure that the Bill reflects this. I hope that is at least one brick in the road towards defining the proper role for care home managers. In these amendments we are discussing the degree of independence and making sure that we minimise conflicts of interest.

A later amendment in the name of the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, specifies that the person who completes a pre-authorisation review should also be qualified as a medical practitioner, nurse, social worker, speech therapist, occupational therapist or other profession as may be specified in regulations. I assure noble Lords that we would expect people from those professions to take on this role. That will be specified in the code of practice.

There is also a specific requirement that the pre-authorisation review be completed by somebody not involved in the day-to-day care of the person or delivering treatment to them. That is another safeguard.

Amendments in the names of the noble Baronesses, Lady Jolly, Lady Thornton, Lady Murphy, Lady Barker and Lady Finlay, would make sure that smaller NHS bodies sought external people to carry out reviews. I understand the motivation behind them, but I am concerned that they would introduce complexity and lead to delays. The issue is resolvable within the system proposed because of the independence and quality of AMCPs, or approved mental capacity professionals—referred to the by noble Baronesses, Lady Murphy and Lady Finlay. They will consider all applications to authorise a deprivation of liberty where it is reasonable to believe that the person objects to proposed arrangements, or in other complex cases. Reflecting on a point made by the noble Baroness, Lady Thornton, we may need to provide more detail and studies of the kind of cases that we are talking about or envisaging, where an AMCP would be involved in the review. I take very seriously the point made by the noble Baroness, Lady Thornton, about the consequence of that, given that the responsible body will have the legal duty to ensure that it is carried out properly. I find that reassuring because it will not be a tick-box exercise: it will need to make sure that the assessments have been carried out properly. That was one of the questions put by the noble Baroness, Lady Meacher, when she asked about the access of the responsible body to such assessments. It will mean that that body will probably err on the side of caution, but it will also mean that we will have a more proportionate system than we do now. That is to be welcomed. Those AMCPs, as has been pointed out, could be salaried professionals within a local authority; they might even be close to commissioners, but their role will be independent, just as best-interests assessors are independent, and they will be responsible to their own professional bodies. That is something in the system on which we can rely.

The noble Baroness, Lady Meacher, and other noble Lords mentioned advocacy, and I know that we will be turning to that later. It is important to state—not only as I did at the beginning of the first group about making sure that the person involved is properly consulted—that they have the right to request a review, that they have access to representation from an independent mental capacity advocate or another appropriate person, and that ultimately those responsible for their welfare and care can challenge the authorisation in the Court of Protection.

I know that there are a couple of outstanding issues. The noble Baroness, Lady Jolly, asked if we could look at fee levels and that is certainly something that I will look at. The noble Baroness, Lady Meacher, asked how IMCAs are paid for. That is currently allowed for in the Mental Capacity Act and that is not changed by this Bill, but I will write to her to clarify that.

I hope that this response—particularly about the role that care home managers will not play in preauthorisation reviews—provides reassurance that we are conscious of the need to provide that independence in the system to reduce, and indeed remove, conflicts of interest and perceptions of conflict of interest wherever possible. As ever, as has been the theme of today, I continue to want to work with all noble Lords to ensure that we determine that the system, which still has great merit, is able to respond both to the needs of the people who are being cared for and to any concerns on behalf of those people from their families and stakeholders that there are conflicts of interest. I believe that the pieces of the puzzle are coming together, but I am conscious that we need to continue working together to complete it. On that basis, I hope the noble Baroness will feel able to withdraw her amendment. I look forward to further discussions on this topic to make sure that we are able to introduce as much independence as possible into the system.

[Baroness Jolly]

I thank the Minister for his remarks. The only point I would like to make at this stage is about the use of the code. The code offers something that might not be permanent, whereas anything that goes into legislation is permanent, so I would just be wary of that. I will study Hansard carefully, but for the moment I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

NHS: Dangerous Waste and Body Parts Disposal

Baroness Jolly Excerpts

Wednesday 10th October 2018 Lords Chamber

[Lord O'Shaughnessy]

I can say to the noble Baroness that the NHS contracts out very large numbers of services of all kinds, and indeed has contracted out this kind of service for around 30 years. What we have here is not a market failure but a company that has broken the law, and which is therefore being pursued by the regulatory system that we have in place. That is about making sure that the Environment Agency, in this case—because it is about environmental health—is monitoring, issuing notices and raising issues as they come up, which is precisely what it has done here. But I agree with the noble Baroness that certainly there are lessons to be learned about monitoring, and we are absolutely looking at that as a consequence of this incident.

However, it is very important to state two points. No risk to public health has been established, because of the secure circumstances under which the waste—albeit way too much of it—was being kept, and there was no interruption to the provision of services, so there was no risk to patients or to hospital operations. On providing information at the earliest opportunity, we have done exactly that. As I said, no public health risk has been established, and we came to Parliament on the first day it came back, once the termination notice had been in place with a part suspension.

[Baroness Jolly (LD)]

My Lords, it is clear that this situation has gone on for some considerable time unnoticed, and it also appears that the incinerator network is not able to cope with the volume of waste generated. Will the Minister confirm that the incinerators are single use? When was the contract with HES last reviewed, and how frequent were inspections of sites? What is the timetable for being able to resume a sustainable service across all of England, and might this include new incinerators?

NHS: Staffing

Baroness Jolly Excerpts

Wednesday 10th October 2018 Lords Chamber

[Lord O'Shaughnessy]

I hope the noble Lord will forgive me: I do not know the specific details about psychiatrists. I know that we need to recruit more doctors, which is why there has been an increase in the number of medical training places. There are in fact around 12,000 more doctors in the NHS today than in 2010. We do have a challenge in mental health, which is to recruit not just doctors but nurses and other assistants to make sure that we can deal with the mental health cases that are sadly not being dealt with in a timely manner at the moment.

[Baroness Jolly (LD)]

My Lords, staffing shortages predate Brexit and are across all disciplines and professions. Will the Government consider looking north of the border for a solution to nursing shortages? Scotland has decided to increase the student bursary for nurses, whereas English nurses in training now get no bursary at all. Might an investment in England help attract people to the career of nursing, rather than sending the message to student nurses that they are not valued as much as those in Scotland?

[Lord O'Shaughnessy]

It is absolutely not the case that they are not valued as much as in Scotland. This country has completely different higher education funding arrangements from those in Scotland. We are taking multiple routes to increase the number of nursing staff in the NHS, including increased funding for clinical places, the nursing apprenticeship route, more retention and bringing nurses back into the profession. We are determined to increase nursing numbers.

In Vitro Fertilisation: 40th Anniversary

Baroness Jolly Excerpts

Thursday 13th September 2018 Lords Chamber

[Baroness Jolly (LD)]

My Lords, I know it is customary when we begin to wind up to say, “This has been an excellent debate”, but this debate really has been. It has been excellent simply because we have all the expertise here among us—I certainly do not include myself in that at all. The tone was set by the contribution of the noble Baroness, Lady Deech, raising the outstanding issues of genetics regulation and new science. All this of course comes from her role as chair of the HFEA. She raised many more issues and it might be worth trying to tease some of them out, and perhaps have more detailed debates. We have all been painting with quite a broad brush today and some of the issues need a slightly more detailed camel-hair brush.

The noble and learned Lord, Lord Mackay of Clashfern, was there to ensure that the law was fit for purpose, and 300,000 children are really grateful that that happened. He spoke about the ground-breaking legislation but also the importance of his neutrality; I thought that was a really interesting history lesson. My noble friend Lady Barker spoke of surrogacy and reminded us all that families just do not look the same any more. The noble Baroness, Lady Boycott, painted—as a feminist—a lovely technicolour picture of offshore bank accounts, conception and contraception. I can remember being newly married as a young woman when all this was happening. It was quite amazing compared with what our mothers had had to go through; it seemed we could have choice every which way we looked.

I remember as well the sense of excitement and wonder at the arrival of Louise Brown, the world’s first test-tube baby. There were photographs of a beaming Steptoe and Edwards on the front pages, and clunky graphics by way of explanation. My noble friend Lady Barker and the noble Baroness, Lady Boycott, both mentioned Jean Purdy and I am going to talk about her too. The helpful Library briefing tells us that she was part of it at the first. A nurse by profession, Jean Purdy was the one who actually made what Steptoe and Edwards needed and wanted to do: she actually made it happen. She was not an add-on but absolutely part of the team, and seen by both of them as part of it. She was the one who saw the fertilised egg which was to become Louise Brown dividing to make cells. I cannot imagine how exciting that must have seemed at that time.

However, I do not recollect seeing Jean Purdy in any press coverage at the time. It appears, again, that she was wiped out of history by Oldham when a plaque was put up in 1982, and again by Bourn Hall—the centre which she, Steptoe and Edwards founded to deal with the huge call for IVF after Louise. To give credit where it was due, Edwards tried to remedy this and wrote letters to all the people concerned but he was not listened to. I sometimes get the feeling that some things never change.

There is absolutely no doubt that on the ethics of this birth, opinion was not restrained. Many, including religious leaders, wondered out loud whether we should be playing God. In response, the Government very sensibly appointed the eminently qualified academic Mary Warnock, later to become a Member of this House, to head up the Committee of Inquiry into Human Fertilisation and Embryology. Her report gave rise to the 1990 Act and its successors, which today still govern human fertility treatment and experimentation using human embryos. Its effect has been to require licensing for procedures such as in vitro fertilisation and to ban research using human embryos more than 14 days old. It has been really interesting to listen to the noble and learned Lord, Lord Mackay, explain where the 14 days came from, the need to balance faith and credibility and all the issues that were going on at the time.

Dame Suzi Leather—a name that I had forgotten about for a long time—former chair of the HFEA, noted that,

“perhaps the greatest achievement of the Warnock committee is that it managed to get an ethical consensus that people understood as well as shared”.

That is quite interesting. The report is worth a read—it is not hugely long—and if you look at who was sitting on her committee, you can see exactly what she meant. They included the usual: academics, medics and scientists, lawyers, the vice-president of the UK Immigrants Advisory Service, social workers, a theologian, the chair of a health authority, an expert in adoption and fostering and a former student counsellor of Cambridge University students. Evidence-givers were just as diverse. Again, they were the usual sort of suspects: churches and faith bodies, scientists, lawyers, health bodies, health practitioners, organisations dealing with fertility, gay rights organisations and, the one that really made me chuckle, Garter—the College of Arms gave evidence. I thought that was really interesting. Those of us who have been to talk to Garter will probably have a quiet smile at that thought.

Baroness Warnock said in her report, and in the letter that she wrote to the noble Lord, Lord Fowler, now the Lord Speaker:

“Despite the way in which members have worked together, there remain nonetheless certain differences between us; indeed, it would have been surprising if, on such sensitive issues, we had been united. These differences, presented in three formal expressions of dissent have, significantly, focused on the very subjects, surrogacy and research on human embryos, which, to judge from the evidence, arouse the greatest public anxiety. Thus even in our disagreement we have reflected the range of views within society. It is not possible that a report like this should be equally well received in all quarters, given some of the controversial issues we have had to consider. There is bound to be criticism that we have gone too far, or not far enough. However, we have sought to provide on the one hand a reasoned discussion of the issues which we hope will contribute to a high standard of public debate on matters which are of deep concern to the public, and on the other a coherent set of proposals for how public policy, rather than the individual conscience, should respond to a range of developments which many people will not wish to participate in, but which others find entirely acceptable. We have tried in short, to give due consideration both to public and to private morality”.


She writes well.

In 1985 the immediate response was to set up a licensing authority as an interim measure prior to the legislation, which was the Human Fertilisation and Embryology Act 1990. This happened when many of us were young and could readily identify with the importance and significance of these measures. Some 33 years later we have gene editing in research; mitochondrial donation; same-sex and unmarried couples treated just as married couples—as legal parents; the outlawing of sex selection; the removal of anonymity; and still more research continuing in hospitals, research establishments and universities. British scientists are nearly always at the cutting edge of this research. Here I agree with the points that were made by my noble friend Lady Barker and the noble Baroness, Lady Deech, about the critical importance of a strong regulatory framework and parliamentary scrutiny. However, the moral issues have not gone away. We dispute the difference between storing sperm for 55 years yet eggs for only 10. Is this an issue of equality or science? Then, there is the question of overdue legislation. Could the Minister tell us when and where this might be considered, and by whom?

Previous research has mainly focused on the economic issues that can affect assisted reproductive technology usage, such as a country’s wealth and health insurance costs. However, in 2017 scientists from the Oxford University department of sociology and Nuffield College assessed for the first time the relative importance of the role that economic, demographic and cultural normative factors play in the process. The study compares the prevalence of ART usage across 35 European countries since 2010—the number of ART cycles per million women of reproductive age, defined as 15 to 44 years. The findings reveal that although economic factors and national wealth are important, it is not merely affordability that determines ART use. ART treatments were more widely used in countries where it was considered culturally and morally acceptable to do so. For example, the Czech Republic, which ranks 51st in a poll of the world’s wealthiest countries, reported nearly 10,500 cycles per million women, a usage level almost identical to the comparatively wealthier Denmark. By contrast, high-income nations such as Italy and the UK reported only around 5,000 cycles per million, half the rate of the Czech Republic. I am not sure what that tells us, but it is interesting that it is not just about the ability to pay.

We cannot have this debate without discussing the availability of IVF on the NHS, an issue already raised by the noble Baroness, Lady Boycott, and the noble and right reverend Lord, Lord Harries of Pentregarth. The 211 CCGs in England should be offering three cycles to women who meet the criteria based on evidence. In 2013, 24% of CCGs met that recommendation; now, it is nearer 12%—halving in five years. That is one in eight CCGs. I know that choices are difficult for a commissioner, but the consequences can be heartbreaking for a couple wanting a family. CCGs in Bury, Heywood, Middleton and Rochdale, Oldham and Tameside and Glossop all offer three cycles, as per guidance. I like to think that Oldham is aware of its history in making that decision. CCGs in Cambridge, Croydon and Basildon do not offer IVF at all.

Are the local health and well-being boards involved? Could the Minister clarify what public engagement and consultation goes on when making those difficult commissioning decisions? What support or counselling is given to couples, many of whom may be grief stricken or distraught? Is IVF only possible for affluent couples? Is a baby something that all families should consider as a right and therefore available on the NHS? These are questions that, hitherto, we have been sufficiently wealthy as a nation not to need to answer, but we do now.

Perhaps, then, the 40th anniversary of Louise Brown, the first test-tube baby, should be an opportunity to consider these questions again.

Mental Capacity (Amendment) Bill [HL]

Baroness Jolly Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Baroness Jolly (LD)]

My Lords, I will resist the temptation to rerun Second Reading, but I thank all the organisations which have provided us with informative briefings as well as all the individuals, academics and carers who have done so—you all know who you are.

This rather ugly Gorgon of a Bill matters. It matters to those who are vulnerable and will unknowingly place their future in its hands. It matters to diligent professionals from both the NHS and care services. They do not know it, but it matters to the general population, too—many will become carers one day.

I wish someone had had the courage to tear it up and write a Bill that was clear, compassionate and contemporary—but they did not. Because we care we will spend the next few days in Committee and beyond, trying to make it fit for purpose. The noble Lord, Lord Hunt of Kings Heath, has given us the briefing around which we shape this debate on Clause 1 stand part and for which I thank the Relatives & Residents Association. It covers the role of the care manager, the centrality of the cared-for person and their views, best interests and advanced wishes; an understanding of what deprivation of liberty is, access to information and, indeed, cost.

It is worth mentioning that there are amendments from all over the House that cover each of these areas. Like others, I am concerned about the role of the care manager as assessor. Over the last few years I have met many kind, efficient care managers, both professionally and in my role as a carer. As professionals, they run hotel services, ensure that care needs are met and rosters are filled and deal with people who lack capacity with compassion. But experts in mental capacity they are not and I am concerned that they are given such a key role in this Bill. As chair of a not-for-profit organisation that cares for people with learning disabilities in residential settings, I know how hard it is to do this on the money that local authorities give us.

An efficient home is a full home. The person who determines whether someone should enter that setting or go somewhere else should, under no circumstances, be the manager. The conflicts of interest, no matter what checks and balances are in place, will always be there and that is the same for the private sector, not-for-profit and even, where it still exists—and I believe it does in parts—the public sector. Training and awareness should minimise this but we must be on our guard.

Everyone accepts that the 2005 Act has become not really fit for purpose and that this is a patching exercise. Everyone accepts that DoLS has run its course. Many believe that what we are trying to amend is drafted to save costs and that goes back to the briefing that this debate is based on—people live longer, care costs increase and these processes are not cheap. Can the Minister confirm that these amendments are all drafted to be the most effective way to deliver a better service and not as a cost-cutting exercise?

The noble Lord, Lord Hunt of Kings Heath, mentioned consultation, which is something that we on these Benches are concerned about. My understanding is that consultation did go on but it was with individuals grouped together—they were like focus groups of care home managers, social workers and so on. There was no consultation of the organisations, the umbrella bodies. I phoned many organisations before putting my thoughts together and tabling my amendments. All of them came back to say that they are going to see the department this week or next week but that they have not spoken yet. I think that is disappointing.

Much as there might be a temptation to scupper this Bill by supporting Clause 1 stand part, I know that it is for now the only alternative. I will do that in the hope that the Minister tells his right honourable friend the Secretary of State for Health and Social Care that it is barely good enough and that future patching of legislation is not acceptable. The people we are discussing really deserve better.

[Baroness Murphy]

My Lords, I support the noble Lord, Lord Hunt, in his endeavour to raise this important issue about care homes. I know we will return to it. This is a very good example of where I had not really thought about the twin-track approach to raising the safeguarding issue. I understand completely how this came about as an attempt to try to improve on the monstrous bureaucracy of DoLS. This is a very good example of that, to which I think the noble Baroness, Lady Jolly, alluded. We have a monstrous Bill at the moment. I remember discussions at the Law Commission with the Royal College of Psychiatrists as to how we might make it more streamlined and reduce costs, which in my view is pretty crucial if we are to target the right people. That led to the production of a process to involve care home managers which, on the face of it, looked as though it would cut bureaucracy.

--- Later in debate ---

I was told that I could not put a new principle into the Mental Capacity Act—that this was not the Bill to do it—so I am going to leave it at that point and just say that I tabled this amendment and it was slipped into this group. I am not expecting anybody to support it, but I hope that I will gather some support for restricting the criteria for the definition of a deprivation of liberty, in order that we can make the Bill fully workable and manageable for the people who really need it. In a perfect world, it would not be necessary. If we had loads of money, and thousands of assessors, legal experts and social workers involved, we might do it. Under our current and likely future resources, we cannot do it, so we should do the best we can with the resources we have and concentrate them on trying to improve the care of people who really need it. I beg to move.

[Baroness Jolly]

My Lords, there is always a risk in your Lordships’ House when an amateur follows a professional. I feel that I have a bit of a starter-for-10 moment as well, because both the noble Baroness, Lady Murphy, and I tabled similar amendments, Amendments 4 and 5, to achieve the same sort of aim. I could take noble Lords through my arguments, which again are similar to hers, but time is of the essence, so it might be worth putting both of them before the Minister to ask whether the Government would consider bringing back an amendment that would put a clear definition of deprivation of liberty in the Bill. There has been a lot of pressure from various parts of the sector for this to happen. At the moment, only case law gives an indication of deprivation of liberty, so to have something in the Bill would be helpful.

[Baroness Finlay of Llandaff]

My Lords, I have an amendment in this group that does not sit terribly well with the first two—but so be it. I will be brief. These attempts to define a deprivation of liberty are nobly submitted, but I worry about potential unintended consequences from the wording. I will not go through them in detail, but I hope that the Minister will assure us that this is something we can take away and look at. One difficulty is that one person’s imprisonment—a deprivation of liberty—might not be a deprivation of liberty to another, so this may be very personal in some aspects.

On Amendment 81 in relation to a “vital act”, I hope that the noble Baroness, Lady Murphy, will take reassurance from me—I do not know whether the Minister will agree with this or not—that anything done must be in a person’s best interest. Part of that is that it is a benefit and not a burden—or it may be a burden, but the benefits outweigh the burden. That has to be a fundamental principle in clinical decision-making.

The reason I tabled Amendment 82, which relates to an urgent authorisation, is that, looking through, I was concerned about unintended consequences from the way the legislation was written. I could see two, possibly—but they may be misplaced anxieties. First, in a true emergency situation, as a consultant in emergency medicine said to me, you just get on and do what you have to do. You do not go and look at paperwork. So, in an emergency situation, you may have to restrict somebody’s liberty to do what you have to do, which is in their best interest. You do not do something that is not in their best interest—and the last thing we want to do is impose any more bureaucracy or paperwork.

So I suggest that, possibly in the code of practice and not in the Bill, it should be clear that an urgent authorisation is an authorisation to begin longer-term care, but in an acute situation, in a clinical decision, nobody would expect people to even begin this process until we get to about 48 hours. I say that because a clinical decisions unit will normally have people staying in it for under 24 hours, as they may even on an acute medical ward, before being moved to a longer-term in-patient unit where their longer-term care may be assessed. Of course, we have people who have a transiently impaired capacity because of illness and the treatment of that will restore their capacity, such as the diabetic whose diabetes is out of control through either hyperglycaemia or hypoglycaemia, and things such as hypocalcaemia as well. None of those should be included.

The concern at the other end was that an urgent authorisation could be used for example to take a confused person with advanced dementia where care at home had completely collapsed. Possibly their main carer at home had suddenly been admitted to hospital. They would then have to be moved into a nursing home placement at great speed, but that may not be what they want and they cannot consent to it. They would have to be moved to that place, be in a placement and be assessed there. There needs to be some time limit so that this cannot linger on for months or years, with somebody saying, “Oh, well, they are here under an urgent authorisation”, rather than a longer-term authorisation. That is why I tabled the amendment. I accept that it is not perfect, but I hope it is something we can look at. It may be that the code of practice can clarify those issues.

Mental Capacity (Amendment) Bill [HL]

Baroness Jolly Excerpts

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

[Baroness Jolly (LD)]

My Lords, this has been an interesting and hugely well-informed Second Reading of the Bill and I join other noble Lords in welcoming the noble Baroness, Lady Barran, to her place. I am sure that she will bring a new and welcome voice to the House on all issues. My noble friend Lady Barker gave us a helpful account—a history lesson, if you like—which put everything into context. It is worth saying to the Minister now that it is absolutely not the case that we all sat around a table and decided what needed to be said. We have come to our views all on our own, and if we are saying much the same things, it is because they need to be said and are true.

I, too, welcome the Bill. It aims to make the process of depriving a vulnerable individual of their liberty simpler and less bureaucratic. Everyone here would agree that society is judged on how it manages its members who are vulnerable and unable to speak for themselves. This Bill makes a fair attempt at this, but it is not the finished article and I would probably give it a C. The points I will make fall into two distinct categories: points concerning the process of the creation of the impact of the Bill once it is enacted, and the second concerning the legislation itself: what should be in it, what should be taken out, and which clauses could be better worded.

The people who will be affected by this Bill are likely to be old, have mental health problems, autism or a learning disability, or have more than one of these conditions. I should refer to my interests as set out in the register. I chair a learning disability trust caring for more than 2,000 people, many of whom in our care lack capacity. I thank all of those who have provided us with briefings, and it is clear that common themes came out of them. One was the issue of finance. There was a feeling that this is going to be an expensive exercise. There will be a need to train assessors in care homes, to which I shall return later, to train advocates and, of course, to train the trainers. All of this will need to be rolled across England and Wales. Will care providers have to fund this, or will one-off training grants be made available? Certainly the system is under so much stress at the moment that it is unlikely to have the slack in budgets for extra training.

Then there is the role of care home managers. For some this might seem fine and a natural extension of their role. For others it may go into completely new territory where they have no experience and no confidence. I am sure that the Minister appreciates that most people with a learning disability no longer live in a care home but with carers in a domestic supported living setting. It would be a very large ask for those carers to assess the mental capacity of the person they support. Most carers are on the national living wage and may not be professionally ready to make such assessments.

Can the Minister clarify where the AMCP—approved mental capacity practitioner—sits in the new system and from where their funding comes? Where liberty protection safeguards are put in place, could an affected individual have an appeal funded? Will legal aid be available? Will the Minister explain why best interests are not included and what has taken their place? At the useful briefing last week, I inquired about consultation. For a Bill of such importance and with such a potentially huge impact, can the Minister clarify what consultation there was with provider organisations in the sector, the LGA, ADASS and the public at large? Over the last few months, many of us have had really interesting conversations with Sir Simon Wessely about his work reviewing the Mental Health Act. We welcome that review, but would it not have made sense to have waited until Sir Simon finished his work and then have a single view of the issue?

The Bill did not start from cold: the House of Lords Select Committee reported in 2014 on its scrutiny of the Mental Capacity Act 2005. Many noble Lords speaking today took part in those committee sittings. There was also the Law Commission’s Mental Capacity and Deprivation of Liberty report of 2017. They both made many fine recommendations and, along with many in the sector, I am surprised that a lot of work will need to be done in the summer to make the Bill finally fit for purpose. Among the areas I will be looking at in Committee is the issue of 16 and 17 year-olds. To include them in the legislation would align with the Mental Capacity Act. Can the Minister tell the House the rationale for not putting this transitional cohort in the Bill?

Article 5(1) of the European Convention on Human Rights uses the phrase “unsound mind”. The same paragraph also talks about vagrants. It was first drafted in 1950, nearly 70 years ago. It is not used professionally now and the profession believes that it has no place in a piece of modernising legislation; it creates unease among individuals, advocates and the sector alike. Article 5(2) calls for a detainee to be informed of the reason they are to be deprived of their liberty. Rather than having to refer elsewhere, how much more straightforward would it be to have this in the Bill? I support my noble friend Lady Barker’s view that any part of the Bill referring to the ECHR should spell out the impacts rather than cross-reference the Brexit debate.

Although not part of the legislation, the code of practice, once enacted, will make the Bill workable. Will the Minister clarify what progress has been made on writing a draft? Can noble Lords have sight of it? If so, when? This is a complex and important piece of legislation; I hope that the Minister is not expecting to complete it with just one day in Committee. We need to produce an A-plus Bill to send to the Commons. It may take more time than the Government want, but all the people affected by the Bill deserve better.