Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Thornton and Baroness Meacher

Tuesday 26th February 2019 Lords Chamber

[Baroness Thornton]

My Lords, I shall speak briefly to Amendment 41A, but first I congratulate the Minister on moving such an enormous group with such coherence. She deserves at least a drink of water, if not a cup of tea. I tabled this small and modest amendment for the sake of completeness. During the passage of the Bill, the noble Lord, Lord O’Shaughnessy, gave us undertakings and assured us that issues to do with independent hospitals would be addressed in the Commons. I congratulate the Government on the fact that indeed they have been. In November, the noble Lord said:

“The Government believe that independent hospitals would benefit from AMCP involvement, and therefore our intention is to bring forward an amendment, or amendments, as required, in the Commons to deal with this issue and make sure that there is such a role for the AMCP in all deprivation of liberty cases”.—[Official Report, 21/11/18; col. 279.]


In some ways the Minister has already partly addressed my concern, which is about the fact that in many independent hospitals most of the patients will be there because of the local authority or the CCG. So the clarification that I am seeking is on whether independence is truly protected when an AMCP is appointed under those circumstances. This amendment seeks to clarify that. The Minister has gone some way towards clarifying that, but I think I need to press her a little on whether that is the case. I declare an interest as a member of a CCG that commissions many of these services. When we are looking at commissioning an independent hospital, should we be the body that also takes the decision about the appointment of an AMCP?

[Baroness Meacher (CB)]

I shall speak very briefly. I welcome very much Amendments 13 and 22 in particular in relation to independent hospitals. In Committee, a number of us raised that issue and were very concerned that independent hospitals, which are often hundreds of miles away from a person’s home, could act as the responsible body and make crucial decisions where perhaps they have a commercial interest in keeping that person on their premises.

With the permission of the current Minister, I will applaud the noble Lord, Lord O’Shaughnessy, because I feel I know that he played a key role in making sure that these amendments found their way into the Bill. The stipulation that the local authority shall be the responsible body is important. Although I understand what the noble Baroness, Lady Thornton, is saying, it seems to be a huge step forward to take the responsible body away from the independent hospital. I would like to feel that local authorities—the professionals dealing with the assessment of such cases—would have a real interest in making sure that those people returned home, if at all possible, as soon as possible. That is what all this should be about.

The other matter I will raise briefly is that of people in domestic settings, where deprivation of liberty is at stake. At our recent meeting with the Bill team we were assured that such cases would be dealt with under this new piece of legislation in the course of the normal care planning process, rather than requiring a reference to the Court of Protection. When an elderly person is caring for a demented husband or wife, the last thing they need is some bureaucratic requirement. This seemed very important, and I was delighted when the Bill team gave us an assurance that this, too, was being dealt with.

There is nothing in the Commons amendments on this, but I wonder whether the Minister could give the House an assurance that it will indeed be the case that people in domestic settings will be dealt with within the local authority planning process, and will not require a reference to the Court of Protection.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Thornton and Baroness Meacher

Report: 1st sitting: House of Lords
Wednesday 21st November 2018 Lords Chamber

[Baroness Meacher (CB)]

My Lords, my noble friend Lady Murphy, who added her name to this amendment, apologises because she unfortunately cannot be here as she is not in the country.

Like other noble Lords, I thank the Minister for really listening to the serious points that have been made by noble Lords across the House and for taking things forward substantially since we started this work.

The two issues that I want to raise are, first, that it may be unhelpful to include within the LPS system cases where there may be a deprivation of liberty in a domestic setting and, secondly, that it may be helpful to all concerned if the Bill makes it clear as far as possible—and I know this is difficult—where the boundary lies between the Mental Health Act and the Mental Capacity Act. I will discuss these issues in turn. Their only common feature is that they concern two groups of people whose deprivation of liberty issues might best be dealt with outside this Bill.

Turning to the question of people in domestic settings, we should probably start with the Supreme Court’s judgment in P v Cheshire West and Chester Council, which has been referred to many times, which set the acid test of when a deprivation of liberty is occurring. Importantly, it lowered the threshold so that deprivations of liberty can also occur in domestic settings. This is absolutely right. It is perfectly possible to envisage cases where abusive relatives may be depriving a family member of their liberty in an inappropriate, disproportionate and even cruel way. A system to deal with such situations is absolutely necessary—I am not questioning that for one minute—and that system must ultimately have a process involving access to a court to determine disputes. The question is what system is appropriate for such cases and how far it can go to try to avoid references to court wherever possible, because these things can be very distressing for relatives and others involved.

Your Lordships will be aware that some informal carers consider the LPS system to be too expensive and an intrusion on family life. My noble friend Lady Murphy and I are—I was going to say “inclined” to agree with them, but we actually very much agree with them. Which system would provide a proportionate and effective protection of the liberty of people in domestic settings is what this amendment is all about.

The British Association of Social Workers, which represents the best interest assessors and others involved in deprivation of liberty cases at present, proposes that a new statutory definition could exclude home situations and domestic arrangements from a deprivation of liberty, thus removing the current expensive practice whereby the Court of Protection has to authorise these to make them lawful. In this scenario, the safeguarding provisions of the Care Act 2014 would be drawn on to protect people’s liberty within domestic settings.

We hope that between the Lords and Commons stages of the Bill—I do not think anything can be done before Third Reading—the Government will consult on this question and come up with very clear amendments to this Bill and to the Care Act 2014 regulations in order to establish a proportionate and effective system to deal with liberty issues in domestic settings. Both will be necessary.

I will give an example to clarify the real importance of proportionality. Under the safeguarding procedures, an 85 year-old caring for her 89 year-old husband with severe dementia, who feels she can manage only if her husband stays in one room, will have a stream of people calling to assess the needs and potential risks which might be involved. Nine different people may be coming to the house—the poor woman does not know who they are or what they are there for. In our view, she should not have to deal with yet more bureaucracy if it can possibly be avoided. It can be avoided if the safe- guarding professionals are able to assess the deprivation of liberty issue alongside—and within the same visit as—the other assessments. The Government will need to consider the definition of “domestic setting” and to determine whether this includes supervised living arrangements, which, of course, are not care homes. Again, that is a matter on which we need to defer to the Government to work out between the two Chambers.

I turn now to the dividing line between the Mental Health Act and the Mental Capacity Act, as amended by this Bill. Unlike DoLS, which are always based on the best interests of the individual, LPS may result in a person being deprived of their liberty, primarily where there is a risk of harm to others. In such cases, the best interests of the others who may be harmed must be taken fully into account, even at the risk of limiting the liberty, and indeed the best interests, of the individual who may cause the harm—one wants however to avoid that as far as possible. The two groups who come to mind are those with Lewy body dementia, and a small number of people suffering from autism. Sub-paragraph (1B) of our amendment would result in such cases being assessed under the Mental Health Act apart from in exceptional circumstances—I was persuaded that that was an important sub-paragraph to include within any amendment. These assessments would be done by people with experience of assessing risk resulting from disorders of the mind. They would be well equipped to assess deprivations of liberty and their necessity in these particular cases.

In my discussions with Sir Simon Wessely, who is leading the Mental Health Act review, and quite separately in a meeting with two of Sir Simon’s colleagues on the review, I came away clear that it would be helpful to flag up the need for further work on this issue. The Law Commission had proposed that,

“risk of harm to others”,

should be an additional possible reason for detention under their “necessary and proportionate” test, and this was explicitly written into their draft Bill. Interestingly, the Government omitted the relevant text from their Bill.

Recently, the Government said in passing that “risk to others” will be a basis for detention, but this will be set out in the code of practice. I hope the Minister will agree that this really is unsatisfactory, unless the code of practice sets out that detention on grounds of risk to others will not be dealt with in this Bill. One could probably do that in the code of practice, but not the opposite. Is that in fact what the Government have in mind?

This is the issue where the outcome of the Mental Health Act review could relate directly to this Bill. The review reports on 12 December, and no doubt the Government will know the conclusions some days before that. I urge the Minister to try to ensure that work is done to produce an amendment to this Bill, clarifying the position of these relatively small groups of people who might best be assessed under the Mental Health Act rather than under this legislation.

The issue of stigma was raised earlier, but even the Royal Family are trying to address stigma with regard to mental illness. One should not put groups of people under the wrong legislation as a method of dealing with stigma, as it will not deal with it.

As the Minister made clear in our meeting, the best interests test is clearly set out in the Mental Capacity Act, and that carries forward into the Bill. That is absolutely right and important, but this is the most powerful argument for excluding “risk to others” as a criterion for deprivation of liberty under the Bill. These two situations—deprivation of liberty issues in domestic settings and deprivation of liberty due to a risk to others—require an appropriate judicial body for determining challenges to authorisations of deprivation of liberty. The judicial body needs to be accessible to enable participation in the proceedings of the person concerned, the speedy and efficient determination of cases, and the desirability of including medical expertise within the panel deciding the cases, when that is necessary—but not when it is not, which is important.

I hope that the Government will consider widening the scope of mental health tribunals to include a limited number of mental capacity cases as discussed here. The tribunals could be named mental health and capacity tribunals. In many cases, the judge of such a tribunal could determine the case on the papers without the involvement of the full tribunal. Sir Simon made the point to me that we do not have sufficient psychiatrists in this country, and we do not want a great backlog to build up simply because there are not the people to do the job. He seems to think that we have an abundance of judges—that would have to be checked; I do not know about that. These two important issues have not been given adequate attention. I beg to move.

[Baroness Thornton]

My Lords, we on these Benches recognise that the noble Baronesses, Lady Meacher and Lady Murphy, have been persistent in raising these issues throughout the course of the Bill. They are absolutely right that these issues have to be addressed and that they are not covered adequately; the briefings we have had suggest that they are not. The reason that possibly we have not been able to develop enough of a head of steam on this is that we have been focusing on other issues in the Bill, which we will come to. The Minister may not be able to resolve this immediately, but I hope that he will recognise its importance and bring forward a solution.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Thornton and Baroness Meacher

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

[Baroness Thornton]

The Minister will be familiar with this amendment because it stems from Inclusion London, which drafted it. I know that it has written to him about it. It is run and controlled by disabled people, is very concerned about the Bill and wants this issue discussed.

The amendment concerns ensuring the effective participation of P in the Court of Protection proceedings. It gives P the presumed right to give evidence and sets out a number of ways in which that might happen. The organisation has copied me in to a letter to the Minister. It writes that one of the key challenges to date has been securing P’s meaningful participation in Court of Protection proceedings, something acknowledged in the 2018 Joint Committee on Human Rights report, The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards. Participation is an important issue for a number of reasons, including that it is more likely to place the person at the centre of the decision-making process and may change the outcome of the case. Research suggests that P rarely participates in or gives evidence in proceedings. In the light of the Government’s emphasis on providing protection for people who may lack capacity, it is asking us to consider the amendment.

This seems a reasonable point, and I shall be interested to hear what the Minister has to say in response. I beg to move.

[Baroness Meacher]

I will speak to Amendment 87C and apologise to the Committee for being unable to remain in the Chamber earlier—I had two commitments that I had to fulfil. I emphasise that it is a probing amendment; it will certainly need rewriting at Report if we bring something back. I thank Godfred Boahen of BASW, whose briefing was an enormous help in preparing my remarks.

Our aim is to stimulate a debate about the processes to deal with deprivation of liberty issues which arise in domestic settings. There is a case for enhancing the assessment processes in those situations. As it stands, the Bill makes no mention of people in domestic settings where deprivation of liberty is at issue. It is not clear—to me, anyway—what the Government have in mind and I hope that the Minister will be able to clarify the position. The Bill leaves vulnerable individuals in domestic settings where there is an issue of deprivation of liberty with no judicial protection, except through an appeal to the Court of Protection, a process which is onerous, costly, stressful and slow. That also leaves this group of people without access to a mental capacity professional in the event of an objection to the proposed care plan. The amendment assumes that, where a deprivation of liberty arises in a domestic setting, this would be considered, as now, under either the care planning or the safeguarding provisions of the Care Act 2014, but with two important reforms, which I will come to. Thus domestic settings would not come under the processes set out in the Bill.

Before referring to the proposed reforms, I need to clarify the two key processes involved under the Care Act, or the reforms would not make a lot of sense to anybody. First is the prospective model, as proposed by the Law Commission, when a deprivation of liberty is considered during care assessments and planning. The care planning processes apply here. During a Care Act assessment of needs, professionals will ascertain the likely impact of a care plan on the liberty of an individual, whom I will call P. The idea is that, in some cases, the state has prior knowledge that a deprivation of liberty will occur and has therefore taken the necessary steps to authorise it alongside establishing conditions to safeguard P’s human rights. This could be achieved through an amendment to the Care Act guidance, not a legislative change.

The great attraction of this approach, as the Law Commission recognised, is that the safeguards are implemented in a way that minimises intrusion into private and family life. The Law Commission argues that:

“In most cases arrangements could be authorised in an unobtrusive and straightforward manner through a care plan and without a perception of State intrusion into family matters”.


In domestic situations and with the involvement of professional local authority employees in organising and undertaking the care planning, only where the care plan is contrary to the wishes of P would the involvement of the mental capacity professional be warranted. At present, the Bill does not make it clear that the MCP would be brought into domestic settings in any circumstances. This is one of the two areas in the Bill that need clarification. I am impressed that the Law Commission thinks that this approach strikes an appropriate balance between the rights of the person to be protected, and the rights to private and family life under Article 8.

The second model for the deprivation of liberty in domestic settings is the retrospective model, where the safeguarding procedures under the Care Act 2014 come into play. Under Section 42(1) of that Act the safeguarding procedures apply to an adult who satisfies three conditions, which I do not need to go into. The safeguarding process involves P from the very beginning. There are certain crucial points about these processes: their desired outcomes should be considered; professionals have to balance P’s capacity against their best interests and the public interest; and the safeguarding provisions draw significantly on the best-interests principle of the Mental Capacity Act. If deprivation of liberty is an issue, then the Care Act safeguarding provisions and the Mental Capacity Act best-interests principle can be applied to generate a care plan which safeguards P’s interests while providing care and protection.

Within the safeguarding provisions an independent advocate is appointed when appropriate. What is currently lacking is access to a mental capacity professional in the event that P has concerns about or objections to the care plan. An amendment bringing the MCP into safeguarding in domestic settings is needed to align people in such settings with those in others.

My last point relates to the requirement under the European Convention on Human Rights that if P is deprived of their liberty, they must have access to a court. I have already referred to the current arrangement for access to the Court of Protection as the only court route. I urge the Minister to consider seriously the possibility that mental health tribunals could be adapted to become mental health and capacity tribunals to include those in domestic settings where P is objecting to the care plan.

Mental health tribunals already consider whether and how their judgments and the conditions they impose on patients might amount to a deprivation of liberty. Additionally, they have experience of the issues involved in deprivation of liberty considerations in domestic settings. This would not be something outside their competence, and that is very important. It would be too radical to introduce something entirely different. Such tribunals are local and would be speedier, less costly and more accessible for families who are themselves often vulnerable. They are less imposing and therefore less stressful for those involved.

Consider the case brought to my attention recently of an 85 year-old woman looking after her 89 year-old husband, who had severe dementia. She felt she could only cope by keeping her husband in one room. The idea of taking that case to the Court of Protection just feels unreasonable. It certainly needs sorting out in some way, but not that way. In line with the estimated number of appeals to the tribunals, clearly, the number of tribunal members would need to increase. However, as well as having advantages for those involved, this reform would surely be less costly than the current Court of Protection process. I hope we can have a short but constructive debate today and that the Minister will meet us to discuss the best way forward. It might not be exactly what I have suggested, but we really need to think this through carefully. I beg to move.

--- Later in debate ---

[Baroness Meacher]

I thank the Minister very genuinely for an encouraging and positive response. I recognise that this matter of deprivation of liberty in domestic settings needs to be addressed and that we need to have a conversation about exactly how it should be done. I also thank my noble friends Lady Murphy and Lady Watkins and the noble Baroness, Lady Barran, for putting their names to my amendment, albeit that it still needs a lot of work. I am grateful for their helpful comments, along with those of the noble Baronesses, Lady Jolly and Lady Barker. I look forward to discussions with the Minister and others.

[Baroness Thornton]

I thank the Minister for that helpful answer. The grouping is slightly odd, but I am pleased that the noble Baroness, Lady Barran, has joined in; I notice that she has been sitting in her place for the whole of our proceedings. We have had a useful discussion and I beg leave to withdraw the amendment.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Thornton and Baroness Meacher

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

[Baroness Meacher (CB)]

My Lords, I support Amendment 45 in the name of the noble Baroness, Lady Jolly, and Amendment 47 in the name of the noble Baroness, Lady Finlay, to which I have added my name. These amendments strengthen the human rights-based duties of the approved mental capacity professional.

As it stands, the Bill weakens considerably the abilities of a person or their family or friends to exercise the convention right, under Article 5.4, of any detained person to take their case speedily to court. I think that all noble Lords understand perfectly well how this has come about. Paragraph 36 of Schedule 1 seems to indicate that an IMCA will be appointed only if the care home manager gives the relevant notification. I would be grateful if the Minister could clarify in what circumstances an independent mental capacity advocate would not be appointed under the new system.

At Second Reading, I raised my concern that the Bill was going ahead before we knew the outcome of the Mental Health Act review. The Law Commission urges the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals to review the question of the appropriate judicial body to determine challenges to authorisations of deprivation of liberty under the Bill. The Law Commission also urges the establishment of a single legislative scheme governing non-consensual care or treatment of both physical and mental disorders where there is a lack of capacity.

At that point I have to delete chunks of my speech, having just had a meeting with Sir Simon Wessely, head of the Mental Health Act review, and Judge Mark Hedley, a former head of the Family Division, who knows all about mental capacity and everything associated with it. The Mental Health Act review will recommend that there should not be a bringing together of the Mental Health Act and this legislation. Therefore, I hereby withdraw my concern expressed at Second Reading.

As I said, following that meeting, I have deleted chunks of my speech, and I am not quite sure where I can pick it up again. Basically, they agreed with me—we agree about everything, in fact—that appeal to a court should be an absolute last resort. It goes without saying that court cases are incredibly time-consuming, stressful and expensive. It has to be seen as a failure of the system if recourse to a judge is needed. I certainly have a great deal of sympathy with the argument that, as far as humanly possible, we need to focus all the resources we can on the care of individuals, whether in the community or elsewhere.

We know that, if a court demands reports, the care of the patient has to come second to those reports being produced. This comes at a time when 10% of psychiatrists’ posts are not filled and vast numbers of all doctors’ and nurses’ posts are not filled, and it is proving more and more difficult to recruit—we will not mention the reason why. It seems to me, following discussion with Simon Wessely, that it is crucial to get the process right to minimise the need to access the courts. That is what his Mental Health Act review will concentrate on, albeit it will be a lot more liberal and professional than the current Act. It is an excellent process so that we can reduce the need for access to the courts.

[Baroness Thornton (Lab)]

My Lords, I have added my name to Amendments 31 and 48 from the noble Baroness, Lady Jolly. Apart from supporting the amendments and regarding the approved mental capacity professional as an issue of great importance in the Bill, I did so to be able to ask a few questions.

It might be simply that I do not understand, but my concern is this: how will the person who cannot object, but who needs to object, do it? The Bill states that people can automatically access the approved mental capacity professional if they object, but what happens for the person who cannot object but probably ought to? Who decides that a person’s family or those around them will be consulted to make sure that, if there is a need for an objection, it is heeded, which then puts them in the right place to access the AMCP? Those concerns have been expressed by lots of our colleagues in different ways. It is still not clear to me how that will happen. How will that person be protected under those circumstances?

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Thornton and Baroness Meacher

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

[Baroness Meacher (CB)]

My Lords, I was not planning on speaking to this amendment at all. I am certainly not an expert on the Mental Capacity Act, but it was suggested to me by BASW that the Bill will cover people in domestic situations. It questions whether those people could be taken out of the Bill. I very much follow the point made by the noble Baroness, Lady Murphy, that it might be a good thing to do something really well for people in institutions while maybe avoiding duplication for people in domestic situations. There is the safeguarding procedure, which, as has been suggested by my medic daughters, is already incredibly bureaucratic, but I will leave that to one side for the moment. If at least the people in domestic settings were left to be assessed by the safeguarding system, that would achieve something and reduce the number of people covered by the Bill. This is particularly true because, as we go along, more and more people will be looked after in domestic settings rather than in care homes.

[Baroness Thornton (Lab)]

My Lords, it is our job to look at how things will and will not work and what the alternatives are. The noble Baroness takes a perfectly legitimate position that says, “If this won’t work, what will?” In a way, that underlines a lot of the discussions we have been having in this House: we need some time to discuss this Bill and we have not been able to have that.

My name is to the amendments tabled by my noble friend Lord Hunt. We are questioning the ability of the care home manager to be able to do this at all. The words that have been used to us by the stakeholders—we have now talked to dozens of stakeholders in the last month or so—are “capability” and “capacity” of care home managers. Professionals question the capability and local government and other institutions question the capacity. Those words are being used constantly while we discuss this issue.

It is also worth mentioning the voice of the care home managers themselves, which is starting to emerge. We recently had a briefing from a large group of care home managers who feel that they are not qualified to take on this role or to carry out assessments and that the administrative burden they could carry could mean that they will not have the capacity to take on the extra work to carry out liberty protection safeguard assessments.

There is some confusion here with what the Minister said during the first day in Committee and in the letter he wrote to us all following Second Reading. I admit that I am confused as to whether we are talking about initiating and carrying out assessments and what the powers of the care home managers are. It seems that the Bill team and the Minister have given us several different descriptions of what those roles might be. That has not helped our consideration of our concerns.

Mencap has stated that it believes that the views of the cared-for person have to be at the heart of this part of the Bill and that it should be refocused accordingly. The comments made by my noble friend and the noble Baroness, Lady Finlay, suggest that that has not yet been achieved, and that the role of the care home manager makes it less rather than more likely. That has been said to us not just by Mencap but by many stakeholders. They are concerned that the cared-for person is not at the heart of the Bill. It is therefore legitimate to ask whether the Government have got this aspect of the Bill right and whether they need to find a different way of delivering it.