Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Jolly and Baroness Stedman-Scott

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

[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.