Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Tyler of Enfield and Baroness Barker

Monday 15th October 2018 Lords Chamber

[Baroness Barker]

My Lords, again I preface my remarks by saying that these amendments were drafted when the role of the care home manager was less clear than perhaps it is now. Nevertheless, they take us to the important point about determinations on mental capacity and the requirement to make sure that they are evidence based. In the Bill as it stands, a huge amount of discretion is given to care home managers and people involved in care to determine whether someone has capacity. We do not believe that that is right. Determining whether someone has capacity is difficult to do and something for which a great deal of training and experience is required. We keep coming back to what would be acceptable levels of training and qualifications to exercise that determination.

Amendment 21 seeks to provide that there should be an evidence base and that those making the capacity assessment should go through it and be ready to justify their decisions accordingly. I will go back to a point and reiterate it, although it must be rather boring: a DoLS assessment is different from a care assessment, and whoever makes and records such assessments should know that they are challengeable in court, which is a big responsibility.

Amendment 22 again endeavours to make sure that the person carrying out the assessment of capacity should be properly qualified, a point I have made before. I do not think that the Bill as it stands is sufficiently robust about the level of professional training needed and therefore this is a matter to which we should return.

Amendment 25 in a way follows on from our previous discussion. With this Bill we will move into a new position where the assessment of capacity is not as clearly specific to the situation as it is under the Mental Capacity Act. We are also moving towards a position in which assessments can be rolled over for longer periods. I am not saying that that should not happen and I take absolutely the point that a number of the assessments being required under DoLS are unnecessary. When someone has had a diagnosis of dementia, for example, their capacity to make decisions may not fluctuate or change, but we need to be altogether a lot more precise in the terminology being used in the Bill. It is not just a change in someone’s condition but may also be a change in their circumstances which has led to the deprivation of liberty. We are bringing in a new test to show that things are necessary and proportionate. I do not think that it is that clear or that it will clarify the decisions which are going to have to be made. This is an attempt on our part to move away from what we believe to be a position where the subjective judgment of care providers would have been given too much weight in the determination of capacity. The amendments on that issue are probing in nature and I beg to move.

[Baroness Tyler of Enfield (LD)]

My Lords, I rise to lend my support to Amendment 21 tabled in the name of my noble friend Lady Barker and to speak to Amendment 22, which is tabled in my name. Amendment 22 is essentially about who should be able to determine whether an individual is, as it currently states in the Bill, “of unsound mind”. That is the terminology being used, but I would prefer to see terms like a “disorder” or a “disability” of the mind. That is one of the three key authorisation conditions. Perhaps I may say again how very pleased I am that the Minister has indicated his willingness to look at some new language so that we do not use the term “unsound mind”, which in my view is stigmatising and has no place in today’s society.

I return to Amendment 22. Currently, the authorisation arrangements in this part of the Bill state that a medical assessment has to be made but do not state who has to make it. It is likely that most people would assume—indeed, it may well be that the Government are assuming it and no doubt the Minister can reassure us on the point in his response—that a medical assessment needs to be carried out by a registered medical practitioner. However, it would be helpful and reassuring to have that made clear in the Bill. The report published earlier this year by the Joint Committee on Human Rights is clear that, in order to comply with human rights law, any deprivation of liberty under Article 5 requires,

“objective medical evidence of a true mental disorder of a kind or degree warranting compulsory confinement, which persists throughout the period of detention”.

Given the requirement for “objective medical evidence”, my contention is that there needs to be a guarantee in the Bill that only a registered medical practitioner with appropriate training has the power to determine whether someone has an unsound mind or mental disorder, depending on which language is going to be used.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Tyler of Enfield and Baroness Barker

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

[Baroness Tyler of Enfield (LD)]

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]

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.