All 8 Baroness Tyler of Enfield contributions to the Mental Capacity (Amendment) Act 2019

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Mon 16th Jul 2018
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2nd reading (Hansard): House of Lords
Wed 5th Sep 2018
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Committee: 1st sitting (Hansard): House of Lords
Wed 5th Sep 2018
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Committee: 1st sitting (Hansard - continued): House of Lords
Mon 15th Oct 2018
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Committee: 2nd sitting (Hansard): House of Lords
Mon 22nd Oct 2018
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Committee: 3rd sitting - (Hansard): House of Lords
Wed 21st Nov 2018
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Report: 1st sitting: House of Lords
Tue 27th Nov 2018
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Report: 2nd sitting (Hansard): House of Lords
Wed 24th Apr 2019
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Ping Pong (Hansard): House of Lords

Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts
2nd reading (Hansard): House of Lords
Monday 16th July 2018

(5 years, 8 months ago)

Lords Chamber
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Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield (LD)
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My Lords, I am pleased to be speaking in this debate, conscious that I am a novice in this area of mental health legislation but very grateful that there are so many other noble Lords across the House with deep expertise in it. To start on a positive note, I welcome the intent behind the Bill and believe that it goes some way towards ensuring that the current high levels of bureaucracy, workforce hours and cost that have been a part of mental capacity assessments since the Supreme Court ruling in the Cheshire West case are offset by a more balanced ability to plan and deliver timely care while still safeguarding patients.

However, I have real concerns about its timing and its interaction with the Mental Health Act, and because it is silent on some of the key recommendations of the Law Commission report. I hope that at the end of this debate, the Minister will provide some explanation for the variance with the Law Commission proposals and the unexpected timing of the Bill, which seems to have taken many by surprise.

A quick glance at the statistics reveals the scale of the problem. Last year, more than 200,000 DoLS applications were made—a number certain to rise. The average time taken to complete the assessments was 120 days, with a backlog of more than 120,000 cases. The Law Commission has estimated that the annual cost of all this might end up being close to £2 billion, so there is clearly a major problem here that needs fixing.

The proposals in the Bill, essentially allowing NHS staff rather than the Court of Protection to oversee when and where to deprive people of their liberty, on the face of it seem to strike a better balance between care planning and the provision of what has too often been a box-ticking procedural safeguards process. The Bill comes at the same time as the recommendations from the Joint Committee on Human Rights only last week that a new legal definition of deprivation of liberty should be debated and defined, which could,

“produce greater clarity and would extend safeguards only to those who truly need them, whilst respecting the right to personal autonomy of those who are clearly content with their situation, even if they are not capable of verbalising such consent”.

All the briefings I have received from those working in the sector make it clear that the lack of such a new legal definition is a serious omission and risks jeopardising this legislation’s chance of successful implementation. That all adds up to my overall feeling about this Bill: that we risk acting with indecent haste before all the relevant pieces of the jigsaw are in place to allow a coherent and joined-up new system to be put in place—and I know that that new system is much needed. I note that Sir Simon Wessely, chair of the Mental Health Act review, said as much in a recent blog, drawing attention to the fact that at the moment some people lacking the capacity to consent to their admission for care and treatment will fall under the Mental Capacity Act and the proposed new liberty protection safeguards, and some will be detained under the Mental Health Act. But—and it is a big but—the boundaries between the two are not clear. My main concern about the Bill is that, in rushing ahead to fix the clear deficiencies of the DoLS procedures, we are creating further complexity in an area already beset with confusion and complexity. My view, like that of some other noble Lords today, is that it would have been far preferable to have a single, fully integrated Act covering both mental illness and mental capacity.

The interaction with the Mental Health Act is at the very least a messy one. There is a real tension between wanting to tackle problems with the current mental capacity law straightaway—I fully understand that—and the need to properly link it with plans to improve the Mental Health Act. I know that the JCHR has called on the Government to move quickly on reforming the Mental Capacity Act, but this should not prevent close consideration of the two pieces of legislation and how they relate to each other. In response to the Law Commission’s proposals, I noted that the Government stated that they would await the Mental Health Act review’s recommendations on interface issues, including how reformed DoLS would interact with the Act. I find that quite a confusing statement. Could the Minister say whether and how the Government plan to fulfil that undertaking?

I am also concerned, as are others, that the focus of the Bill is on deprivation of liberty alone, rather than the wider amendments to the Mental Capacity Act proposed by the Law Commission. In particular, the important recommendation to put particular weight on a patient’s wishes in any Mental Capacity Act best interests decision-making process is absent, as are any additional provisions about advanced consent. As I have said, I really feel—others have said it far more eloquently than me—that this is a missed opportunity to treat vulnerable people with the dignity and respect that they deserve in what we all agree is a very difficult situation.

I turn to the issue of including 16 and 17 year-olds in the Mental Capacity (Amendment) Bill, as originally proposed by the Law Commission. The main reasons for this are twofold. First, using parental responsibility to authorise Article 5 deprivation denies 16 and 17 year-olds the uniform statutory protections available to people aged 18 and older. Secondly, including 16 and 17 year-olds would create greater certainty and standardised practices for this age group than currently exist. It is all a bit technical but, as I understand it, presently Article 5 deprivation can be authorised by four different mechanisms: parental responsibility, a court order, a police protection order under the Children Act, or the Mental Health Act.

Front-line clinicians I have spoken to are often unsure which option to pursue. This can cause delays of a number of weeks while professionals argue with each other about the most appropriate option. In the meantime, the 16 to 17 year-old is in a legal limbo, often stuck in a paediatric ward or A&E while these debates take place. The situation gets even more confusing if two people with parental responsibility disagree or if the local authority shares parental responsibility—for example, for children on a care order. This is an opportunity to make the situation for 16 to 17 year-olds much better, and we should take it.

The Law Commission’s proposals also included the very interesting idea that we follow the lead of many countries and include in the Mental Capacity Act a framework allowing people to make formal support agreements. This would hugely benefit family members of the person under the liberty protection safeguards and value their input to the process. However, the wording in the Bill is unhelpfully convoluted, and will make it more difficult for staff, patients and their families to understand.

As the Bill stands, there is a heavy burden on care home managers to manage the applications. An individual would be reliant on the motivation, knowledge and skill of the care home manager to identify deprivation of liberty and to take appropriate safeguarding steps. Managers’ level of knowledge and experience will inevitably vary enormously, resulting in an individual’s human rights potentially being neglected if a manager simply does not recognise what constitutes a deprivation of liberty and takes appropriate action. As other noble Lords have said, a major training programme would be needed, as well as significant resources for implementation.

My final point relates to the phrase “unsound mind”, which I understand is still used because of the reference to the European Court of Human Rights. This is dated terminology which is offensive and stigmatising and has no clinical value. Imagine if you learned that this was an outcome of an assessment of your parent, partner or sibling. I stress again the importance of keeping the patient at the centre of our legislation, not the conventions or convenience of lawyers. Will the Government commit to removing the reference to “unsound mind” from the Bill?

In conclusion, I return to my concern about timing and the outcome of the review of the Mental Health Act, given that both Acts relate to the non-consensual care and medical treatment of people. The overlap between the two systems is one of the reasons that the current system is so complicated, and changes to address problems under one system will inevitably have unintended knock-on consequences for the other. What is needed is simplification and streamlining, rather than incremental, piecemeal reform. There is much to do to improve the Bill; I hope that the Government will be open minded and in listening mode.

Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts
Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018

(5 years, 6 months ago)

Lords Chamber
Read Full debate Mental Capacity (Amendment) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 117-I(b) Amendment for Committee, supplementary to the marshalled list (PDF) - (5 Sep 2018)
Baroness Finlay of Llandaff Portrait Baroness Finlay of Llandaff
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My Lords, to intervene fairly briefly, it is important that we remember that the current DoLS system has effectively fallen over. We have 108,000 people currently waiting to be assessed, so we have to do something. We cannot leave it running so there is an urgency to come up with some way forward. I remind the Committee that, whenever somebody is in a place of care such as a care home, the deprivation of liberty safeguards application—form 1—is a request for standard authorisation and has to be completed and sent in. That form asks about the purpose of the standard authorisation, and for a relevant care plan to be attached. It also asks why less restrictive options are not possible, and other things. So a degree of assessment is already going on at the care home and these forms are sent in. They are then sent to somebody to authorise them.

I worry that, in some of the briefings that we have had, it looks as though the care home manager will be able to authorise in totality, whereas, as I understand it—the Minister may correct me if I have this wrong—the care home manager will still be required to have the responsible body authorise. That responsible body will be able to look—and one would want them to look—at objections that may come forward from somebody. It is to be hoped they will go and visit if they feel there is a discrepancy between the care plan submitted and the original care and support plan that came from the local authority, which may have been involved in the pre-placement assessment that went on.

The idea behind these new approvals is that there is portability: the person may reside in one place, then be moved to hospital, go to outpatients, spend time in hospital and then come back to the care home. Within that portability, however, there is a requirement to review, if the circumstances change. We will come later to amendments that look at discrepancy between the care plan and the care and support plan as submitted. In other words, these are things that should trigger red flags in the mind of the authorising body, rather than the authorising body just being a rubber-stamping exercise, which is, I think, a misunderstanding that there may have been. If it is a rubber-stamping exercise, there are all kinds of dangers in that. Somehow, we have to filter out those people who really need an in-depth assessment and review from those people where the current processes are just burdensome, time-consuming and not contributing to improving their care. That filtering is really difficult. I offer that in the debate at this stage because it is worth looking at these forms, which I hope will be improved because there is not that much room to write on them.

Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield (LD)
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My Lords, I make a brief intervention, primarily to underline the importance of two points that the noble Lord, Lord Hunt, made when introducing his amendment. Like my noble friend Lady Jolly, I fear we have no alternative other than to carry on and scrutinise this Bill. The reasons for doing something have just been set out very clearly by the noble Baroness, Lady Finlay, but I retain two really key concerns which I raised at Second Reading.

The first—referred to by the noble Lord, Lord Hunt—is that of timing and understanding the relationship with the review of the Mental Health Act. I understand that it is due in the autumn—I am not quite sure when—together with amendments to the Mental Capacity Act, given that both Acts relate to non-consensual care and treatment. It seems that the overlap between the two systems is one of the reasons why the current system is so complicated, and why so many staff struggle with it. Frankly, it is why I struggle with it so much. There must be real concerns that changes to address problems under one system will have unintended consequences for the other. Clarity is needed from the Government over when patients should be subject to one Act over the other, so that, in the words of Sir Simon Wessely, chair of the Mental Health Act review,

“arguing over the framework does not get in the way of delivering the care that the person needs”.

I could go on at length—I will not, your Lordships will be pleased to hear. I have just one more thought on this. In addition to the need for clarity on when the Mental Capacity Act or the Mental Health Act should be used, it is really important that patients do not find that they are deprived of their liberty by both Acts at the same time. There are examples of this happening, particularly when a patient has both a mental disorder and an unrelated physical disorder.

That is my first point. My second point, which was made very cogently by the noble Lord, Lord Hunt, is about the consultation that is taking place with the sector. Like everyone else, I have received a large number of briefings in the past few days. Frankly, it has been difficult to take them all on board. I have done my best. I was particularly concerned by a survey that was published only a couple of days ago by an organisation called Edge Training. I do not know it personally, I do not know exactly what else it does, but I do know that it was a survey of 900 people and nearly half the respondents were best-interests assessors, with the rest being primarily social workers, health professionals and independent mental capacity advocates. I will not go through what they said, other than to say that there were really very high levels of concern—80% this and 90% that—particularly in relation to the new roles being placed on care home managers, the potential conflicts of interest, plans to charge care home managers with deciding whether it is in a resident’s best interests to have an advocate if they lack capacity to request one, and the lack of a specific requirement to consult the person themselves about a proposed deprivation of their liberty.

My conclusion from all this is that the sort of consultation that should have gone on with the sector for a change such as this, which really has to work—this is not political, it is about something that has to work on the ground and people who do this have to understand it and feel that it does work—cannot have happened to the extent to which I think it should have happened, and that has real importance for the pace at which this can be taken forward and the consultation and implementation timescale.

Baroness Barker Portrait Baroness Barker
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My Lords, I just want to share the thoughts that I had over the summer, when we had a very long time to look at this proposal. I have been wrapping my head in wet towels looking at this legislation, trying to work out what it is all about, and to answer a key question: why this Bill now? I am still not happy that I have the right answer.

The noble Baroness, Lady Murphy, referred to the Mental Capacity Act as a “monstrous” Act—the DoLS part of it. But let us be fair, when the Select Committee did its review, we found that the Act was held in quite high regard; the problem with it was that it was not properly understood and that had caused problems with its implementation. It is true that we said in the Select Committee report that there needed to be an absolute root and branch review of DoLS, but we prefaced all our recommendations for the review of the Act on one other premise, which has been ignored by the Government. We said that one of the reasons that we saw for the failure of the Act to be properly implemented was that there was no central ownership of the Act and no single body responsible for its implementation. The Government have chosen to ignore that. Instead, they have shoved responsibility for the MCA on to the CQC, where it does not get specialist attention. There is nothing like the attention paid to the Mental Capacity Act that there is to the mental health legislation, and yet if it is not properly implemented, people can be deprived of their liberty.

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Lord Cashman Portrait Lord Cashman
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My Lords, I too support Amendment 2 in the name of my noble friend Lady Thornton, and the consequential amendments. I am grateful to her for bringing her personal experience to this and reminding us of the young individuals involved. This amendment and the subsequent amendments are to be welcomed. By including 16 and 17 year-olds, it offers better safeguards to those who are not served well at the moment. The amendment would see 16 and 17 year-olds protected by the LPS. It would simplify the system, would bring clarity and ensure that their rights under Article 5 of the European Convention on Human Rights were therefore protected. For those reasons and many more, I support this amendment and the subsequent amendments.

Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield
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My Lords, I rise briefly to support this group of amendments. I strongly support bringing 16 and 17 year-olds within the scope of the Mental Capacity Act, and support the proposed amendments to the authorisation and safeguards scheme. I will raise a couple of points, and I would be grateful if the Minister were able to provide some answers or reassurance.

First, clarity will be needed on the role of those who currently have parental responsibility, and how that will fit in with the proposals that are being put forward. Secondly, we need to make sure that there is a fully co-ordinated and joined-up approach across a number of different pieces of legislation. I have already talked about the join-up between the Mental Capacity Act and the Mental Health Act, but I am conscious that, when we are looking at 16 and 17 year-olds, we need to look also at other legal mechanisms that authorise a deprivation of liberty, such as Section 25 of the Children Act 1989, and at how the model dovetails with legal frameworks for the provision of care and support, such as education, health and care plans under the Children and Families Act 2014. So I would ask for some reassurance that someone is looking at the join-up with other relevant bits of children’s legislation.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath
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My Lords, I would like to follow that up. Clearly, the Government accepted in principle that these provisions should extend to 16 and 17 year-olds but then entered the caveat that,

“changes will need to carefully consider wider rights”,

as the noble Baroness has said. The Government said then that they would consider these matters carefully before bringing forward legislation. The question I would like to ask is: how far has that work got, and is there a prospect of seeing legislation in the reasonable future in relation to it, or is this our opportunity? Other opportunities may not come for some time to come. I realise Ministers are reluctant to commit themselves to particular legislation, but it would be helpful to the House if the Minister could at least give some indication of the work that is now being undertaken and when it is likely to come to fruition.

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Moved by
3: Schedule 1, page 6, line 4, leave out “is of unsound mind” and insert “has any disorder or disability of the mind”
Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield
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My Lords, the essence of this amendment is about language and use of language—in particular, the term “unsound mind”. I think we would all agree that language is important; it sends very important signals. Many noble Lords raised this point with passion at the Second Reading debate. I was pleased that the Minister’s helpful letter of 24 July referred to the debate about “unsound mind” and made clear that the Minister was sensitive to the points made and would welcome views. I guess this amendment is my way of putting forward my views.

The fact remains that, despite growing awareness and acceptance of mental illness, stigma and discrimination remain a regular experience of people with mental illnesses and their families and can put people off seeking help. We were given to understand that the use of the term “unsound mind” within the Bill was to ensure that it was in line with the ECHR—but this was written in the 1950s. Many people, both inside this Chamber and outside, have expressed serious concerns about the inclusion of this language in the Bill in 2018. Frankly, it perpetuates very unhelpful negative stereotypes. I would contend that the phrase “unsound mind” is out of place in today’s society; it is out of place in legislation being looked at in 2018; it is stigmatising and has no clear clinical meaning; indeed, I would say it is offensive to many.

Therefore, my amendment proposes that, in paragraph 2(2)(c) of Schedule 1 to the Bill, the term “is of unsound mind” is replaced by “has any disorder or disability of the mind”. This terminology is already a well-established term in the Mental Capacity Act and has proven to be compliant with the ECHR without, in my view, having anything like the same stigmatising connotations of “unsound mind”. A disorder or disability of the mind, I am informed by the Royal College of Psychiatrists, has a clear clinical meaning. It is well understood by clinicians and should be no more stigmatising than saying someone has a physical disability.

I am aware that the BMA, which supports not using the term “of unsound mind”, has put forward a proposition that this term should be reconsidered and experts and patient groups consulted to find an alternative to it. The BMA may be right, but I felt that, for my starter for 10, I wanted to put forward terminology that I thought was right. I am sure that others will be able to improve on it.

To conclude, above all this Bill must put the people most affected centre stage—that means some of the most vulnerable people in society, as we have already heard. In my view, it is simply not good enough to continue using terms that lawyers and drafters of legislation may find helpful—it might help them fit things in with other bits of legislation and other conventions—but which causes harm and distress to those we are all trying to help. I believe there is a real and welcome opportunity to change the narrative and discourse in a positive way, and this amendment is a way of taking that opportunity.

Lord Cashman Portrait Lord Cashman
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My Lords, it is a great pleasure to support this amendment. Language is crucial. Several times during the day I question whether I am of sound mind, and I think that the concept of unsound mind is extremely dubious. I welcome the amendment from the noble Baroness, Lady Tyler, because it seeks focus and clarity, substituting for “is of unsound mind” the words,

“has any disorder or disability of the mind”.

I believe that the Royal College of Psychiatrists has supported this approach. The BMA also suggests that there should be a different approach because the term “unsound mind” reinforces stigma and discrimination, and equally it is outdated. Its continued use merely perpetuates negative stereotypes of vulnerable people, particularly when we are trying to get over those stereotypes in order to get people to speak more openly at the beginning of their problems—our problems—with mental health issues. Therefore, it is a pleasure to support this amendment.

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Lord Woolf Portrait Lord Woolf
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In the list of people whose help the Minister is going to seek, may I suggest that parliamentary counsel be invited to consider whether it is possible, through the use of language in the Bill, to ensure that there is no gap?

Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield
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I am grateful to the Minister for his response, particularly the last bit, which I found a tiny bit more reassuring. I thank everyone who has contributed. It has been an excellent short debate and we have benefited hugely from highly distinguished medical and legal expertise.

I understand that the Minister may have concerns around risks and gaps, but we need—and he has agreed to bring forward—examples and evidence of what these gaps and risks are and why they could not be dealt with by language that is perhaps slightly different from that which I proposed. There is a huge opportunity to be seized here. I have made it very clear that the wording I propose may well not be quite right. I am sure that others could come up with better wording that meets the Minister’s concerns, which I understand are legitimate. I am grateful that he said he will think further and come back with further evidence. I should like to put down a marker that I will wish to return to this on Report.

Amendment 3 withdrawn.

Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts
Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 5th September 2018

(5 years, 6 months ago)

Lords Chamber
Read Full debate Mental Capacity (Amendment) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 117-I(b) Amendment for Committee, supplementary to the marshalled list (PDF) - (5 Sep 2018)
Baroness Finlay of Llandaff Portrait Baroness Finlay of Llandaff (CB)
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My Lords, I have listened to the debate and have ended up feeling slightly puzzled. If we are looking at how we improve the quality of life of “P”, what they experience day to day in how they are looked after is what influences that quality of life—in other words, how well the care plan is planned and executed. It cannot be just about the planning phase but about how well it is executed and how that execution of the care plan is monitored, day to day and week by week. In a care home, the person ultimately responsible for care plans has to be the manager because you must have a vertical structure, even though the plans may well be written by staff at a different level. If a person is in supported living, someone will be responsible for overseeing the care and provision in that supported living arrangement by dint of it being supported. Therefore, that must also be planned for and it will not be a care home manager but somebody else overseeing their care.

I can see that there is enormous concern over care homes. We all know that there are some excellent care homes and we have all, sadly, encountered care homes that are not excellent, where one would have concerns about their ability. If we are trying to drive up a person’s experience and quality of life, and make sure that what is done is necessary—because there is no other way of managing them—there need to be restrictions proportionate to the problems that they pose. I add here that we must consult and make every effort to listen to the person. We have that in another set of amendments later.

It may be that our grouping of amendments at this stage is not right because there is so much that interweaves between them. The worry is that if we then say that the people on the ground and the care plan are not the main part of the assessment, we go back to somebody basically helicoptering in, doing an assessment, seeing how they are and going again and leaving approval—that may be for a year—without any pressure to constantly review. Later amendments seek to put pressure on to review whenever the situation changes—to make it a more dynamic situation that really reflects that people deteriorate. Fortunately, some sometimes improve but most of the time you are faced with deterioration.

The other problem is that local authorities are, we know, incredibly short of finance. We know that they already cannot cope with the burden of assessments that they are being asked to carry out. I cannot see how asking them to take back the role and possibly do three assessments rather than six will tackle the problem of the number of people needing to be assessed and thought about being far greater and not matching—I think it never will match—the resources available.

It is easy to say that we need more people to do this but realistically the number of trained and experienced people is just not there. We have to find another way forward. There is a tension because whoever does the assessment may have a conflict of interest, whether about funding the care or receiving the income from the care. Somehow we need a system that improves the quality of life of the person and is subject to scrutiny more often than just on the occasions that the assessment is done initially or when it is reviewed after a fixed time.

I wonder whether a group of us needs to go away, sit down and really try to work this through with worked examples. I should declare that at one of the meetings I had in Wales we used worked examples in different settings. When we started to work through it for supported living arrangements—that was the table I was on—it became easier to see how it could work and how the triggers could work. I am not saying it was a perfect solution. I think the intention of these amendments is superb but I worry that they might not solve the problem.

Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield (LD)
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My Lords, I was not going to intervene on this group of amendments but I have listened carefully to all the points that have been put and they have all been absolutely excellent. There is a tension here, as the noble Baroness, Lady Finlay, just said. My main reaction, particularly when I read the letter from ADASS—I shall not read it out again; I have it in front of me—was of real concern. As the noble Lord, Lord Hunt, said, they are not the sort of people who say these things lightly. They do not scaremonger. They do not exaggerate. They make very carefully calculated judgments, as you would expect of people at that level. I read the letter with great concern.

I was equally concerned when I read the briefing, as mentioned earlier, from the Relatives & Residents Association. One phrase really resonated with me, about the association’s great concern that too often we were asking care managers to be judge and jury about decisions in which they were involved. That is how it was expressed. The noble Baroness, Lady Finlay, made some excellent points. We have to find a way through. It would be genuinely helpful if, as in her proposition, there was time to think about those who will be most involved, as they must be, in care planning for these very vulnerable people, and a sufficiently independent element in arrangements so that people feel that care home managers are no longer judge and jury. I do not think we are there yet. I cannot articulate it at the moment but we must work together to secure a slightly different way forward.

Baroness Barran Portrait Baroness Barran (Con)
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I echo the appreciation of the noble Baroness, Lady Tyler, of the explanation of the noble Baroness, Lady Finlay, of the choices we face between the care home manager, who in the best cases will know “P” well, and the local authority assessor, who, as was said, might be parachuted in. It underlines the need for the now-familiar new paragraph 17(2) to be well thought-through and implemented. It is clear that the Bill’s intention is for this to be one of the critical safeguards of how this all works in practice, along with the scrutiny role of the responsible authority, which we will no doubt cover in detail.

Amendment 11 in the name of the noble Baroness, Lady Hollins, raises an important point about supported housing and care homes. It raised in my mind a slightly different question, which may have occurred to other noble Lords: do we need more clarity in the Bill on how it applies in domestic settings? For example, when someone who is normally cared for at home is in a care home for a short stay, perhaps because their carer is in hospital, what is the position in the home once the protection of liberty safeguards have been authorised? I wonder whether my noble friend could consider whether there is a need to clarify exactly the role of the safeguards in domestic settings and how they interface with the Care Act and other bits of legislation that would apply in such cases.

Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts
Baroness Thornton Portrait Baroness Thornton
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The noble Baroness, Lady Finlay, has done the Committee a great favour. The previous group of amendments was about whether care managers should do this at all. This group is about how they do it, which is a fair question to ask. I have three points to make, and they run like a stream through the Bill. The first is, if care managers have powers and responsibility, how will that work? Will they be qualified and, if so, how? As my noble friend Lord Hunt stated on the first day of Committee, many care homes do not even have registered managers. They are very small and are not capable of doing this. Secondly, who decides and who pays? I appreciate that the amendments in the name of the noble Baroness, Lady Finlay, are exploring how care home managers would manage, but some amendments in this group actually water down even further the rights and responsibilities relating to deprivation of liberty.

Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield (LD)
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I have a fair degree of sympathy with the sentiment behind this group of amendments. It is right that the Committee looks at what an appropriate role for the care manager might be. We have not got it right yet and it is clear from the debate so far, and the representations received from the sector and from people who deal with this day to day, that there must continue to be some sort of more independent element in the assessment. It cannot simply all come down to the care manager. However, I equally have some sympathy with the idea which was partly behind the Bill. We need better integration between care planning and the difficult decisions that have to be made about deprivation of liberty.

That is why we must explore further what an appropriate role might be. I am not quite sure what it is. Is it simply making referrals or some sort of co-ordination? I share the concerns of other noble Lords about dilution of safeguards, conflicts of interests and all that, but equally we must make sure that the care manager has an appropriate role and is not left out of the picture. We are talking about a very important sentiment.

I welcome what the Minister said in response to the previous group of amendments about the position he has now come to on including 16 and 17 year-olds and putting the cared-for person at centre stage to ensure that they are part of the consultation. I particularly welcome what he had to say about changing the language of unsound mind.

Lord O'Shaughnessy Portrait Lord O'Shaughnessy
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I thank noble Lords for a concise but incisive debate on this group of amendments. As the noble Baroness, Lady Thornton, said, this is really about the role of those organising assessments for the deprivation of liberty and about who is responsible for pre-authorisation reviews. As has been mentioned by the noble Lords who tabled them, many of these amendments specify that pre-authorisation reviews must be completed by someone who is not employed by an organisation involved in the day-to-day care of the cared-for person or in providing any treatment to that person.

Paragraphs 12 and 13 of the schedule outline that, in all cases, arrangements must be authorised by the responsible body, which is either a local authority, hospital manager, CCG or local health board. It is our intention that only the responsible body, or an individual working on their behalf, will conduct the pre-authorisation review. Currently, senior social workers will often review DoLS applications when they are received. Similarly, we expect that, under the liberty protection safeguards, those for care home cases will be completed by a senior social worker. There are circumstances in which the responsible body is also the organisation that delivers the day-to-day care of treatment—and that is one of the concerns raised about conflicts of interest. This will usually be the case when NHS organisations are the responsible body, but it will also be the case for authorisations in local authority-run care homes.

Unfortunately—although I understand the motivation behind them—the amendments tabled by the noble Baronesses, Lady Jolly, Lady Thornton, Lady Murphy, Lady Barker and Lady Finlay, would make it harder to satisfy the pre-authorisation review requirement where the responsible body also delivers the day-to-day care and treatment; this would be especially so for smaller NHS bodies such as some trusts and CCGs. It would mean such bodies having to hire people from outside organisations specifically for the role, which could introduce complexity and lead to delays.

Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts
Lord Faulkner of Worcester Portrait The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
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I must advise the Committee that if this amendment is agreed to, I cannot call Amendment 56 for reasons of pre-emption.

Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield (LD)
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My Lords, I support what my noble friend Lady Barker said about this important set of amendments. Briefly, they look at the interaction between the Mental Capacity Act and the Mental Health Act, which has not been properly thought through at all in how the Bill has been brought forward. The amendments focus in particular on people with fluctuating conditions. We have had a bit of discussion about such people but not nearly enough to understand what the real implications will be for people who may have a severe mental illness that fluctuates. They may have a range of other physical conditions requiring treatment and care. There may be times when they are in a position to give consent to treatment and times when they are not. We really need to think much more about how that is to be dealt with in the new system.

My concern, if I may summarise it, is that this complex interaction between the two Acts will result in a two-tier system, with a considerable imbalance in rights and safeguards between the regimes of the Mental Health Act and the Mental Capacity Act. To pick out one example, I understand that under the Mental Capacity Act everyone is entitled to make a legally binding advance decision to refuse various future medical treatments, but that decision can be overridden under the Mental Health Act in most circumstances. It is complicated. There are people covered by both Acts; it is not a question of having the Mental Health Act and people covered by it over here and having the Mental Capacity Act and people covered by that there.

We really need to think this through and satisfy ourselves that any new system deals with that and, frankly, makes the most of the opportunity to streamline these regimes, in particular to take account of people who are covered by both. I would be particularly pleased if the Minister, in responding, would say something about the needs of people who are severely affected by mental health issues and whose capacity may fluctuate, and about how that has been taken into account in the drafting of the Bill.

Baroness Meacher Portrait Baroness Meacher (CB)
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My Lords, I feel that I should contribute to this debate although I have no speech prepared because, in the discussion with Sir Simon Wessely that I referred to last week, I challenged him about this issue. I asked what we were doing by debating this Bill before his review came out. He was clear and while I cannot say what he is proposing, maybe I can indicate the sort of areas he is looking at. These may help to illuminate the clear differences in certain ways between the two sets of debates and legislation.

For example, he is looking at the role of the Ministry of Justice in relation to people under restriction orders. There are specific mental illness issues in that area. He is looking at how community treatment orders operate—there might be less use of such orders—and how detentions in hospital for people with psychotic illnesses operate, and so on. Those areas are, in general, probably quite distinctive to the Mental Health Act. The bit where I feel there really is a potential overlap is in the area of mental health tribunals, which I will raise when we come on to deprivation of liberty concerns in the context of specific domestic situations. I will have a proposal to make then. I will not go into it here, as it would not be appropriate.

Sir Simon Wessely’s position is clear: he feels that the Mental Health Act needs reform and I think he will have very interesting proposals to make about that. We also all agree that the DoLS system needs reform and we are discussing how that should be done. What he is doing and what noble Lords are trying to do here are both quite complex sets of reforms. Sir Simon Wessely’s view—I hope that he would agree with me—is that these two sets of reforms need to be in place for quite a period. He talked about a decade, actually. There is also the Northern Ireland situation; there are proposals for some bringing together of these things there. There is of course no Government in Northern Ireland but Sir Simon Wessely wants that Northern Ireland Government to be formed and for them to be the pilot of all this and see how that works over a period of years. We would then come forward with some proposals, as and if appropriate, for bringing these two pieces of legislation together.

I hope that I have represented Sir Simon Wessely properly. It is important for us all to be aware that we do not have the support of the person in charge of the review of the Mental Health Act when we say, “Come on, what are we doing by having this first? Surely it should all be done at once”.

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Finally, Amendment 92A is a probing amendment. We have discussed the backlog; I would like to hear from the Government how it will be handled. Am I right in thinking that once you start a process it needs to be completed under existing legislation, even though you might not have got very far with it, or is it assumed that all of those backlogged cases will be transferred over to be dealt with under the new legislation? If that is so, have we really considered the impact, particularly on care home managers, of suddenly being faced with many more cases to be dealt with at the same time as picking up their new responsibilities? There is hard evidence of backlog issues causing systems to break down because the Government assume that bringing in new legislation will deal with the backlog. Notwithstanding that this is a more streamlined process, there is still an awful lot of work to do. I would like to hear a little more on how the Government propose to deal with this without pulling a ton of bricks down on the new system. I hesitate to raise the Child Support Agency, which is the classic example of trying to embrace on day one in a new system all those people who had gone before. The system collapsed. We do not want the same thing to happen here.
Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield
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My Lords, I have two amendments in this group and my name is attached to four others. It is a little unfortunate that we are coming to this important group of amendments, which affect the Bill as a whole—there are some very important implementation issues—quite so late in the day when the appetite for debate is understandably somewhat limited.

My Amendment 88 seeks to do two things. It seeks, first, to enhance scrutiny of regulations in Parliament and, secondly, to ensure proper consultation if the Government seek to amend regulations later on down the line. According to the Explanatory Notes, as drafted the regulations are subject to the negative procedure, except where the Secretary of State wishes to change primary legislation, in which case the affirmative procedure applies. My amendment proposes a different approach, whereby the positive procedure applies in both cases. That would mean that, should the Government wish to amend regulations, such a change would automatically trigger scrutiny in both Houses. Why do I think this is important? Fundamentally, depriving someone of their liberty is a very major and fundamental action which warrants strong safeguards and scrutiny. I think it is absolutely vital that we closely monitor the implementation of this legislation and debate any proposed changes that the Government may wish to introduce.

The second part of my amendment—which I think is equally important—means that, before laying a regulation, the Government must consult with stakeholders on its potential impact. Again, given that this legislation concerns extremely vulnerable people, it is absolutely vital that we get it right—that is both primary legislation and the detail of any regulations. One of the threads throughout our debate in Committee, both today and in our two previous sessions, has been that, while the Law Commission consulted widely on its draft Bill, the Government’s Bill, which we are now discussing—and which is very different in a number of important aspects—was introduced with very little consultation with those who work in the sector. It is absolutely vital that we hear from mental health practitioners, legal professionals, charities and those representing vulnerable people.

Amendment 87F is a probing amendment and it is to highlight the current unsatisfactory situation, which I gather is causing real concern to clinicians in relation to when they are obliged to complete court reports requested by the Court of Protection. This issue was drawn to my attention by the Royal College of Psychiatrists and I draw the House’s attention to my interests in the register. Currently, Section 49 of the Mental Capacity Act 2005 authorises courts to,

“require a local authority, or an NHS body”,

to prepare a report on such matters,

“as the court may direct”—

generally, the relevant person’s mental health or mental capacity.

I understand that drafting such a report requires a senior clinician to review previous reports, examine the patient, talk to family members or carers and carry out necessary tests. Notably, it often relates to a patient who has never been under the care of that clinician or even the hospital trust employing them. I have been told that the average time required to complete such a report—although it varies—would be around 10 hours, which does not include the extra time required if the clinician is required to attend court in person to give evidence.

The nub with the concern here, which has been raised by many clinicians, is that an unknown quantity of clinician time is being taken away from front-line patient care. As there is no national data, as I understand, on this, it is unclear how much. Again, as I understand it, CCGs and NHS trusts are not being paid for or equipped for their staff to be required to spend their time in such a way, and the very short timeframe often set by the court can lead to very considerable disruption of clinical priorities and patient appointments being changed at the very last minute.

I emphasise that I have no problems with the Court of Protection needing reports and expert advice—it is just that the system for getting it does not seem right to me, with the NHS being required to provide these reports in such a way. Frankly, there is cost shunting on to the NHS, but it is also having no regard for the impact on wider patient care. The Minister has said that he will be talking to the MoJ about a number of things. It would be very helpful to hear how the MoJ thinks this system could be better managed so it does not have such a deleterious effect on wider patient care. The purpose of this amendment is to get the Minister to explain and outline the Government’s thinking in this area.

Finally, Amendments 86 and 93 require two very crucial documents to be laid before Parliament before the provisions of the Act can come into force: the code of practice and the Government response to the Independent Review of the Mental Health Act. It is really where we started off this evening—certainly where I started off was looking at the interaction of those two pieces of legislation.

The one point I will make is that whatever recommendations the Mental Health Act review ends up making, it is clear that as long as we have separate legislation to govern mental illness and mental capacity, we absolutely must consider the interaction between those two frameworks. In terms of implementation, the early introduction of the Bill prevents the review from making suggestions that touch on the scope of the LPSs we are discussing. Therefore, it is crucial that the Government respond to the review’s recommendations before the LPSs that we are talking about at the moment can come into force.

Baroness Barran Portrait Baroness Barran
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I am sorry to take noble Lords back a step to Amendment 87D, which is in my name and is really a probing amendment. I thank the noble Baroness, Lady Finlay, for her very warm support—she has unfortunately had to run for a train, but I am grateful to her.

It seemed to me, in thinking about this amendment, that there are a couple of points in the process of authorising liberty protection safeguards where there needs to be real rigour to check that the best interests of the cared-for person lacking capacity are upheld and that the least restrictive option is found in terms of depriving them of their liberty. We spent a lot of valuable time looking at the role of the care home manager in relation to this. The noble Baroness, Lady Hollins, was also alluding in part, in her Amendment 66, to the second actor in this, namely the responsible body. My amendment explores the role of the responsible body.

The first part of the amendment seeks to address the role of the responsible body, which, as I understand it, is effectively a safety net in the process. The aim is to encourage the responsible body to identify cases where it is more likely that those two key considerations have not been upheld. The second part of the amendment sets out a course to follow if that is the case. What I have been trying to imagine is what it is like to be sitting in the responsible body, the local authority or the hospital, with a pile of LPS forms to authorise. How can we keep the person doing that alert and using their discretion appropriately?

In the first part of the amendment, what I am getting at is a way to set clear criteria for the responsible body to follow, such that if the criteria were met it would trigger a review of the applications in more detail. I do not have a definitive list of what those criteria might be but, for example, one might imagine that if the care home in which the cared-for person was going to reside had been rated as inadequate by the CQC, it might be a prompt for a further review, if that care home manager had arranged the assessment.

Other possible criteria might involve what the noble Baroness, Lady Barker, referred to as “unbefriended” people. I am much sure whether this is technically unbefriended, so forgive me, but if someone has no friends or family and a carer has some kind of indirect financial interest in the outcome of the decision, that might be another case of where these criteria might trigger further review. The assumption would be that this amendment would apply whatever the source of funding for the cared-for person. There may be other criteria that would be more helpful, and I am sure that noble Lords who are more experienced in this area than I am will think of what these might be.

In the second part of the amendment, I have simply suggested that, if there is cause to examine an application more closely, it should follow the pathway set out in paragraph 18 of new Schedule AAl. Obviously, if this route is taken, consideration needs to be given to resources, since we do not want to create a conflict of interest for the responsible body—the mirror image of some of the conflicts we have talked about for the care home manager. We certainly want to avoid a situation where there is a financial disincentive to review those cases which genuinely warrant a review.

Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts
Report: 1st sitting: House of Lords
Wednesday 21st November 2018

(5 years, 4 months ago)

Lords Chamber
Read Full debate Mental Capacity (Amendment) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 117-R-I(Rev) Revised marshalled list for Report (PDF) - (20 Nov 2018)
Moved by
2: Schedule 1, page 5, line 33, at end insert—
“(1A) For the purpose of paragraph 2(1)(b), arrangements which give rise to the deprivation of the cared-for person’s liberty are those in which—(a) the cared-for person is subject to confinement in a particular place for a not negligible period of time; and(b) the cared-for person has not given valid consent to their confinement.(1B) For the purpose of paragraph 2(1A)(a), a cared-for person is subject to confinement where—(a) the cared-for person is prevented from removing himself or herself permanently in order to live where and with whom he or she chooses; and(b) the dominant reason for the deprivation of liberty is the continuous supervision and control of the cared-for person, and not treatment for their underlying condition.”
Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield (LD)
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My Lords, I draw the attention of the House to my interests in the register. Concern has been raised repeatedly throughout this Bill, both in this House and outside, that there is no statutory definition of what constitutes a deprivation of liberty. That is what this group is about. My amendment is designed to provide practitioners, families and the cared-for person with an agreed interpretation that is unambiguous as to where deprivation of liberty is enacted and a clear sense of understanding of to whom it should actually apply. Including a definition in the Bill would allow guidance and information to be developed for families and practitioners to allow them to make what I would call a real-world assessment of whether the care arrangements they are putting in place when their loved one lacks capacity amount to a deprivation of liberty. In many cases this will allow them to steer clear of depriving someone of their liberty, quite often unwittingly, because the line would be that much clearer.

I welcome the report on the Bill from the Joint Committee on Human Rights which was published on 26 October. It addresses clearly the need for a definition of the term “deprivation of liberty”, and of course raised other concerns as well. Unless we have a clear definition which is supported by parents, families will be at risk of the courts interpreting their personal situation in different ways. I know from the many briefings and correspondence I have received that this is strongly supported by the sector. Having looked at the report, noble Lords will be aware that the definition I have proposed is derived from the JCHR report. I believe that in fact two definitions are offered in the report and later we will hear from the noble and learned Lord, Lord Woolf, who is proposing the other definition. I am sure that he will put forward good arguments for doing so, given that he was a very distinguished member of the Joint Committee.

I have gone for the definition that I am proposing because I think it is simpler and easier. I think it best captures the recommendations made by the noble and learned Baroness, Lady Hale, in the Cheshire West case. She was clear that a definition was necessary in future primary legislation. As we have noted many times during the passage of this Bill, the test, which was referred to in the Joint Committee’s recommendation, references the case taken by the noble and learned Baroness, Lady Hale, Cheshire West and Chester Council v P in 2014. The key sentence she noted was that the person concerned,

“was under continuous supervision and control and not free to leave”.

Unless we have a statutory definition in the Bill, I strongly suspect that the question of what actually constitutes a deprivation of liberty will continue to have to be determined by reference to Article 5 of the ECHR and indeed will continue to come back to court for further clarification.

I shall say briefly that while it would be possible to include a definition in the code of practice rather than in the Bill itself, I do not think that that will satisfy a court. The best form of protection would come from the inclusion of a definition in the Bill itself. We are looking at this issue again in primary legislation partly because recent court rulings, including the Cheshire West case which I have already referred to, have radically changed who deprivation of liberty applies to and, frankly, have substantially increased the number of people it covers; hence the reasons we are here.

I hope very much that the Minister, who has listened carefully and, if I may say, responded constructively to many of the arguments that have been put forward both in Committee and since, will have something positive to say on this point. I recognise that the definition could do with some more work and I am sure that the Bill team could look at it and come back at Third Reading. However, if there are any fears of unintended consequences, my view is that a well-drafted definition will pose considerably less risk than having no definition at all, which leaves patients and practitioners exposed to different legal interpretations and subsequent consequences.

I conclude by saying that without a definition in the Bill, any future interpretation by the courts could lead to a wide range of outcomes for cared-for people and their families which could undermine the very essence of the new LPS scheme. That is what this Bill is all about. It seeks to provide clarity, but without a definition it simply will not do so. I beg to move.

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Lord O'Shaughnessy Portrait Lord O’Shaughnessy
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I am happy to give that commitment, bearing in mind that there is always uncertainty about the timing of Bills’ progress but, in terms of the work we will do to come up with the definition, I am more than happy to do that and to include estimates—I see the Chief Whip coming into the Chamber—of the timing of the further parliamentary stages.

Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield
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I thank the Minister for his full and helpful reply. This has been a good and important debate to start this afternoon’s debate. I am grateful to the Minister for agreeing to look at this. He has twice confirmed the Government’s position, which is that it is important that the definition is clarified and contained in the statute. That was the purpose of my amendment. He is right to say that this is complex and technical and that we need to get it right. I fully understand that that needs a bit of time. Although at one stage I hoped that this might be able to come back at Third Reading, I fully understand why he said that the Government will lay an amendment in the Commons stages, and I support my noble friend Lady Barker in her request for a letter setting out the timescale of the work and who will be involved. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.
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Baroness Garden of Frognal Portrait The Deputy Speaker (Baroness Garden of Frognal) (LD)
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My Lords, I need to inform the House that, within this group, Amendments 25 and 26 appear to be alternatives. Amendment 26 will be moved only if Amendment 25 is withdrawn or disagreed to.

Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield
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My Lords, I support this group of amendments. One or two offer a slightly different definition or slightly different words but the key point for me, having moved a similar amendment in Committee, is that we have now removed the phrase “unsound mind” from the Bill. I know this is welcomed here and will be hugely welcomed by many in the sector. It means we will get rid not only of a very old-fashioned and stigmatising term but one on which there were also concerns—as I understood from my conversations with the Royal College of Psychiatrists—that it had no real clinical meaning. The term “mental disorder”—or the few more words added by other amendments—not only brings us in line with the Mental Health Act, which is good, but I am advised that it will also help to provide diagnostic clarity. That has to be a good thing too. I support this group of amendments.

Baroness Watkins of Tavistock Portrait Baroness Watkins of Tavistock (CB)
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My Lords, I support this group of amendments and I am delighted that the Minister has had his mind changed. Not using this phrase will change how people feel about their relatives who may be suffering from mental disorders. I am also optimistic that, in the longer term, using such modern nomenclature will make mental health professions more attractive to young people.

Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts
Report: 2nd sitting (Hansard): House of Lords
Tuesday 27th November 2018

(5 years, 4 months ago)

Lords Chamber
Read Full debate Mental Capacity (Amendment) Act 2019 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 117-R-II Second marshalled list for Report (PDF) - (23 Nov 2018)
Baroness Thornton Portrait Baroness Thornton
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My Lords, I was pleased to add my name to Amendment 67 in the names of the noble Baronesses, Lady Barker and Lady Jolly, because it would allow the responsible body to specify the set of conditions on the deprivation of liberty to determine that the arrangements are necessary and proportionate and that those conditions are complied with.

Throughout the Bill’s stages, the noble Baronesses, Lady Barker and Lady Finlay, have been consistent on the importance of conditions. Of course, these things make the deprivation of liberty from the patient or cared-for person either tolerable—that is, understandable—or really horrible. I have been very impressed by some of the examples explained by the noble Baroness, Lady Finlay. It is important that these conditions are not only set, but met, monitored and changed when circumstances change. We seek assurance that the legislation, regulations and conditions will make that happen.

Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield (LD)
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My Lords, I reinforce what has been said about the importance of conditions and the difference that they can make to both quality of life and the tolerability of the regime to which the looked-after person is subject. I read about how some of the conditions might be things such as helping the looked-after person to sit in the care home’s garden every day or be taken out once a week, as well as how vital these conditions are to ensuring that the decisions taken are the least restrictive. We can all relate to these important things. It is important that there is provision for such conditions to be set out.

Lord O'Shaughnessy Portrait Lord O’Shaughnessy
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I thank the noble Baronesses for introducing their amendments and giving us the opportunity to discuss this important issue. I will set out why the Government have taken a different approach and attempt to explain it.

It is not that we do not think conditions are important. The use of conditions should be baked into the care plan and the arrangements put forward for authorisation, rather than being added only at the point of authorisation. This is not to say that the conditions—let us call them the elements of the arrangements—pointed out by the noble Baroness, Lady Tyler, and other noble Baronesses are not critical. Obviously, they are critical to making sure that the elements are the least restrictive. This is about when they are put in place in the care planning and authorisation process. I shall explain our approach, which I hope will satisfy noble Lords, but we can see whether further discussions are required.

I will deal with the amendments in order. Amendment 61 states that it should be determined by the responsible body,

“that the arrangements will continue to be necessary and proportionate for the period of time for which the arrangements are sought”.

We absolutely agree that this should form part of our model and I confirm that this will be considered by the responsible body.

Furthermore, under the Bill, the responsible body is required to specify a programme of regular reviews at the point of authorisation. In a sense, it gets to specify at the point of authorisation how frequently reviews should take place, to seek whether changes in arrangements or other changes have taken place. This means that the care home manager—or the responsible body, if it is carrying it out directly—will be continually required to consider whether arrangements are necessary and proportionate. That is baked into the system we are introducing.

Amendment 67 specifies that conditions can be put on authorisations and, of course, conditions exist under the current DoLS system. However, with the backlog, by the time they come into force, it is often too late, because the person has been subject to the arrangements for some time before the conditions can be applied. In developing the liberty protection safeguards system, we have taken a different approach; for that reason, conditions have not been included in the Bill. Again, it is worth pointing out that this is consistent with the approach adopted by the Law Commission, which concluded that conditions, as currently provided for under the DoLS system, were not necessary under its new scheme. The Law Commission’s final report states on page 112 that, instead of DoLS conditions, the scheme,

“focuses on particular arrangements and what will be authorised are very specific arrangements. Further, it is only arrangements which result in the minimum amount of deprivation of liberty possible that will be authorised, otherwise the necessary and proportionate condition will not be met. So the arrangements will need to be described in a way which builds in any conditions”.

In other words, arrangements under the Bill can be detailed in such a way as to have the same effect as conditions. For example, the authorised arrangements could include enabling the person to be taken out on trips with one-to-one support, or their care plan could specify that additional staff should be provided to enable the person to be taken out more frequently.

It is our view that doing this provides greater protections for the person. This approach means that conditions—or, if noble Lords prefer, specific arrangements—are considered as part of care planning, before an authorisation is sought, rather than being bolted on afterwards. Rather than being something that happens after the person is deprived of liberty, they would be an integral part of care planning, with the proposed arrangements submitted to the responsible body for review.

Notwithstanding this approach, I know the noble Baroness, Lady Barker, is keen to have a statement from me about current practice, under which a DoLS lead, or best-interests assessor, can insist that deprivation of liberty is authorised only if stated conditions are made. We are not proposing to change the ability of the responsible body, whether the responsible body itself or an AMCP, to make conditions as part of an authorisation. It will still be possible for that to happen. We are trying to ensure that the decision on appropriate conditions is made earlier in the care-planning process, so that they are incorporated into the arrangements that are then put to the responsible body for review, rather than being added when the review takes place. Failure to comply with these conditions, specifically because they have been within the authorisation, would mean that the authorisation would cease to have effect, and must be reviewed. There we come to the ongoing important role that appropriate persons, IMCAs and others will have, in making sure the person is supported, so that if there are any changes in their condition, or their circumstances, a review is triggered.

I recognise this is a fiendishly complicated thing to describe, and I have probably done a fairly inadequate job of it. However, I strongly believe that, in making this change, we are not trying to remove conditions, but move the concept of applying conditions to earlier in the care-planning process. That is the right thing to do. The responsible body will continue to be able to add subsequent conditions if it feels it is necessary for an authorisation. I genuinely believe that is a better system. Clearly, the proof of the pudding will be in the eating. On how this will happen in practice, there will need to be clear guidance and training to make sure that people are trained to do this, both at the care home, and in other NHS bodies, and to make sure that reviewers are capable of assessing such arrangements and making their own subsequent conditions, if they feel it is necessary. That guidance and training is something we aim to provide, of course.

I hope I have explained why we take the point the noble Baronesses made in tabling these amendments very seriously, and shown that the system allows for it. It puts this consideration earlier in the planning process, we hope with better effect. We have been guided by the Law Commission’s approach in this way. I hope this has been persuasive, but if further discussion and elaboration is needed, I would be more than happy to give it following today’s debate.

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Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield
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My Lords, I shall speak to Amendments 142 and 144. My substantive Amendment 142 requires that the code of practice to the Mental Capacity Act and the government response to the independent review of the Mental Health Act must be laid before Parliament before the provisions of the Bill come into force. I shall focus on the latter, as we have already heard from the noble Lord, Lord Hunt, about the code of practice.

The independent review of the Mental Health Act is due to report its final recommendations on 12 December. I know this because last week I attended a helpful briefing given by Sir Simon Wessely to interested parliamentarians, in which he outlined his broad findings. However, until that review is published, we cannot know how its recommendations will impact precisely on this Bill.

We know that the Mental Capacity Act and the Mental Health Act are the only two pieces of legislation that allow a deprivation of liberty for the purposes of care and treatment and that, as such, there will inevitably be cross-over between the two. I thank the Minister for confirming in Committee that these documents would be produced before the Bill is enacted. However, I am concerned that the Bill could have completed its parliamentary passage by the time the Government respond to the independent review. Therefore this important debate is taking place in a vacuum of information on how people with severe mental illnesses could be affected by the proposed LPS.

Sir Simon Wessely has indicated that his review will not consider the full fusion of the Mental Capacity Act and the Mental Health Act, which some people were advocating a while back, but there are none the less many outstanding questions on the interaction of the Bill with the Mental Health Act and, frankly, until it has reported they are impossible to answer.

Under the Mental Health Act, there is no capacity test and the capacity-based principles of the Mental Capacity Act do not apply to mental health care or treatment provided under the Mental Health Act. People without capacity are nevertheless detained and treated under the Mental Health Act. We know there has been a dramatic rise in recent years in the number of those aged over 65 being treated under the Mental Health Act. Indeed, the Care Quality Commission has highlighted that both the broadening of the definition of deprivation of liberty in the light of the Cheshire West judgment and the associated overburdening of DoLS, which is what we are talking about, are likely to have played a role in this.

As a result, there are still crucial questions about how the independent review of the Mental Health Act will address people who lack capacity and what the implications may be for those who fall under the LPS regime depending on where the dividing line between the two Acts is drawn. It is an incredibly complex picture.

Let me say a couple of words finally to highlight and paint a picture of that complexity. It is not possible for a person to be subject to the LPS when they are already detained under the Mental Health Act, even if they lack capacity. However, it is possible for people who are in hospital to be subject to the LPS if they are not detained. The LPS was not primarily designed for people with severe mental illness whose conditions are likely to fluctuate, improve or be contested more frequently than, for example, dementia. While I have focused on the needs of those with severe mental illness under the LPS, many of the same points apply in the opposite direction.

I could go on but I will not. I hope these illustrations of how the Mental Capacity Act is applied to mental health patients, and the Mental Health Act to people without capacity, in these two overlapping legislative frameworks have shown the necessity for this amendment so that the two can be finally considered together, a point which I and many other noble Lords have raised consistently since Second Reading.

Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts
Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield (LD)
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My Lords, I shall speak to Commons Amendment 1C, which was agreed in lieu of Amendment 1B, which I moved in this House before the Recess. I start by thanking the Minister and the Bill team for the discussions it was possible to have in the latter stages of the Bill, which helped get us to a position that we now feel, particularly in relation to the definition, is pragmatic and one that we can live with.

First, I welcome the Government’s decision to drop what has been termed the “exclusionary definition” proposed earlier. It had a whole raft of problems but I have no intention of going into them again now. It is important to acknowledge that the Government took on board the views expressed by Peers and others in the wider sector on that definition. The outcome of those discussions—that there should be no statutory definition in the Bill—is a sensible and pragmatic compromise after a rather long and tortuous journey. Those of us involved in putting forward different definitions had all received legal advice, which said that our definitions were fully compliant with Article 5 and so on. However, we were never going to resolve that; they just came from different lawyers with different opinions. We had to find a way forward and we did. The fact that we will now be using the code of practice to set out—clearly, I hope—where deprivation of liberty is and is not occurring and that it can reflect existing and evolving case law is important.

I took the opportunity to listen to the debate on the Commons amendments in the other place on 2 April and found it very illuminating. I was particularly pleased to hear the Minister for Health and Social Care, Caroline Dinenage, say:

“We will set out the meaning of a deprivation of liberty in a positive”—


I emphasise “positive”—

“framing and in a way that is clearer for people and practitioners”.

That was the very nub of my concerns when I put forward my definition: it was not clear; it was all framed in a negative way; and it was very difficult for the families affected and, indeed, for some practitioners to understand. This is a real step forward.

We are now to have a code of practice and a definition set out there. I was also pleased to hear the Minister say, when asked about the timescale for producing the code of practice, that it,

“is being worked on as we speak … Once we are all content that the code of practice is robust and fully covers everything that we want it to it will then be presented to both Houses of Parliament”.—[Official Report, Commons, 2/4/19; cols. 964-5.]

That is very positive. However, can the Minister update us on the timing for the code of practice? When will this House see the guidance? It is absolutely critical that what it says in the guidance—what we have been talking about—does not mean that we have kicked the can down the road in terms of some of the problems associated with the definition. When I see what is in the code of the practice and the guidance contained in it, my acid test will still be whether it is easy for the lay person—I include myself as a lay person here—to understand, not full of double negatives or pages and pages of rather confusing case studies. I would be grateful if the Minister could update us on the timing of that.

Secondly, I was extremely pleased to hear that the definition will be considered and reviewed regularly—and kept up to date, as I have said, with evolving case law—and that there will be a report of that review laid before Parliament within three years of the measures coming into force. That will be another opportunity for this House to scrutinise how it is working in practice. I am very grateful to the Government for listening to my representations on the need for a review and for a report to come before both Houses.

Could the Minister give some commitment that, when the review is published—and this House has had a commitment to look at that review—the code of practice will be regularly updated? A review is important; our having an opportunity to scrutinise it is important; but most important of all is that the code of practice be regularly updated. I contend that some of the problems this whole Bill is designed to address, such as the backlog of deprivation of liberties cases, were in part caused by the fact that the code of practice was not amended as circumstances changed and as more and more cases such as Cheshire West were brought into the scope of the Bill.

I would very much welcome assurances from the Minister on those two points, and thank her for being as helpful as she has been. I thank colleagues on all Benches, because I feel that we have worked very collegiately and co-operatively. I hope and feel that that has helped improve the Bill.

Baroness Murphy Portrait Baroness Murphy (CB)
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My Lords, I do not really share the enthusiasm or optimism of the noble Baroness, Lady Tyler, although I often shared her views on what needed to be done at earlier stages. We are all rather tired of this Bill and I see nothing to be gained from hindering its passage, but I cannot let it pass without expressing my profound misgivings. We—the Members of this House—have failed to do what we were supposed to do. Our task was to make the deprivation of liberty safeguards—now the “liberty protection safeguards”—more practical, more focused on those at risk, more cost-effective and safer, and we have allowed the Bill to disintegrate into a sprawling, all-encompassing bit of a nightmare. The procedures may be simpler—we have cut out one layer of bureaucracy—but we have allowed these provisions to be extended even further than Cheshire West, even pursuing people in their own homes in a way which I do not think many families will appreciate.

The one thing everyone, including the JCHR, was hoping we would do was to introduce a realistic definition of a deprivation of liberty. In the end, we in this House just copped out. We could not agree; we got into a mess; the lawyers could not agree either; so we have just said, “No, let us put it all in a code of practice”. As many noble Lords will know, I wrote some of the early codes of practice for the Mental Health Acts, and I know that codes of practice suffer from mission creep—they get more and more stuff in which is quite difficult for people outside in practice who will implement it, and do not get updated very regularly because it is difficult to do so. Indeed, if there is no clause in statute, which most codes are fixed around—and there will not be, of course, as is intended—it will have to be arranged around Article 5. That will leave a situation in which the lawyers will have a field day, and in which we will still be waiting for case law to give us some guidance.

Meanwhile, the numbers are going up. My latest count was 140,000—I think the official number a couple of months ago was 125,000. There will be a lot more soon. About a third—it may be even more than that—will be waiting for over a year, and 75% of them are elderly people with dementia, who will probably die before they get their rights looked at. Will it make any difference to them? Generally, it will not make one whit of difference. If we had done our job properly, the numbers would have gone down, and there is a chance that those at greatest risk—for example, people with severe dementia who are kept in locked units, who never see the light of day, and people with severe disabilities in residential care—would have been seen sooner and would have had their care plans addressed in respect of their freedoms.

Meanwhile, these last three years have seen an industry grow up around the implementation of DoLS. It is now called DoLS by everybody out there—I am not sure that most people know what that means. A costly public service has developed which has a life of its own, and which, as we have seen, takes money directly out of care budgets. When Staffordshire quite sensibly tried to call a halt and said, “Hang on a minute, let’s go for the worst cases: those most at risk, those with the most profound disabilities or where there is a disagreement”, somebody complained, and they were told in no uncertain terms by the Local Government Ombudsman to get on with it and to get back to doing everybody. So the waiting list grew yet again. Of course, many other county councils and metropolitan councils were making similar decisions, but they have all had to go back to compiling the waiting list, which grows and grows.

The other people who will love the Bill are the lawyers. Just imagine how you will be able to debate the nuances of Article 5 meanings when the code of practice fails to live up to expectations.

This Bill should be a lesson to us all. It is legislation which arose from a Supreme Court judgment—an impeccable theoretical case, made without any thought to the practicalities that would affect 2 million people. The Law Commission was as tied up in knots as everyone else and could not see a way through. My goodness, it worked long and hard on it in an admirable way, but it could not get beyond the problems of having to satisfy Cheshire West and the Supreme Court’s judgment. This House’s inability to grasp the Bill will not provide any more than a hit-and-run assessment of one patient’s disabilities and whether they are deprived of their liberty. It will not provide any more care for people, and it will be a bit of a disaster.

I have been as guilty as everyone here because I was not here for Report, when perhaps I should have been here to say this more clearly—I am sure that my colleagues quite often feel cross with me when I am not here, and I apologise for that. However, I am not blaming the Ministers either, who have, unfortunately, changed during the passage of the Bill, which has taken a lot longer than it should have done. They have struggled as best they can with a complex, technical Bill; nor am I blaming the team at the Department of Health, because Sharon Egan and her team have been squashed between the lawyers, the DoLS industry, the obvious need to make things viable and less depleting of care budgets, and the impossibility of satisfying everyone.

The only flexibility left—because we will pass the Bill—is that before the Bill is commenced, the Government should pause and do a few more sums; otherwise, we shall be back here in another three years, looking at how we can make this legislation more viable. Many more millions of hours of care staff time will have been wasted in failing to improve the care of mentally incapacitated people. Their rights need protecting, but this Bill will not do it.