Mental Capacity (Amendment) Bill [ Lords ] (Fifth sitting)
Caroline Dinenage Excerpts(5 years, 9 months ago)
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Barbara Keeley (Worsley and Eccles South) (Lab)
I beg to move amendment 45, in schedule 1, page 19, line 34, at end insert—
“(2) In varying an authorisation, the responsible body may also consider—
(a) whether the cared-for person’s capacity is likely to fluctuate, and
(b) whether any restrictions imposed are necessary to prevent harm to the cared-for person and proportionate to the likelihood of that harm, and are likely to continue to be necessary for the duration of the authorisation.”
This amendment enhances safeguards around the variation of conditions by the responsible body. It indicates that the responsible body should consider whether the person’s capacity may fluctuate, and whether the restrictions which are proposed should be in place for the duration of the authorisation.
It is a pleasure to speak under your chairmanship again, Mr Austin. At least we do not have a boiling hot room to contend with.
The amendment deals with the way fluctuating conditions are addressed under the liberty protection safeguards system. The concept of fluctuating capacity is not expressly addressed or provided for in the Mental Capacity Act 2005, including the deprivation of liberty safeguards. The Mental Capacity Act code of practice recognises the steps that should be taken to support a person with fluctuating capacity to take their own decisions—choosing the time of day at which they are most alert, for instance. However, it does not indicate what should happen where an assessment is required of a person’s ability to make decisions on an ongoing basis about a particular matter. As such, the Law Commission did not consult on fluctuating capacity. However, when it launched its consultation, it received a large number of submissions on the topic.
It is clear that individuals with fluctuating capacity represent a major challenge under the current system. That is unsurprising, as capacity to consent is not a black and white issue. Everyone has varying capacity from day to day and from issue to issue. It is not reasonable to categorise people as entirely having or lacking capacity in all cases. My hon. Friend the Member for Dewsbury gave an example of how that can go wrong in practice.
Our amendment 32 would have required an assessment to be made of whether a cared-for person’s capacity was likely to fluctuate. That would have laid the ground for our amendment 45, which would allow the responsible body to take account of fluctuating conditions in varying an authorisation.
Under the current system, a deprivation of liberty safeguard must be terminated if a person regains the capacity to consent; the Mental Capacity Act makes no mention of what should happen if a person is likely to regain capacity only for a short period. That is not changed in the Bill. Under paragraph 26 of new schedule AA1, the authorisation will end if
“the responsible body believes or ought reasonably to suspect that any of the authorisation conditions are not met.”
That includes the person regaining capacity for any length of time.
There are two ways the issue can be dealt with. The first is that a new authorisation will have to be sought every time someone regains and then loses capacity, but that would dramatically increase the number of applications made. It would place more pressure on approved mental capacity professionals and on the cared-for person, who would be undergoing regular identical assessments. I understand that one aim of the Bill, as we have discussed, is to reduce the backlog of applications for deprivation of liberty. Requiring regular repeated applications for the same individual would not help to achieve that.
The second outcome is that the liberty protection safeguards will not be used properly. For example, in the case of older people with dementia whose condition fluctuates, such assessment might need to be hourly. It would simply not be practical to reapply for an authorisation every time they lost the capacity to consent. A person cannot give advance consent to be deprived of their liberty, so either they will be inappropriately deprived of their liberty through a blanket application or they will not receive the safeguards in the system because no application will ever be made. I reiterate that it does not matter, under the current system, whether a person is perfectly happy with arrangements when they have capacity. The moment that they no longer have capacity to consent, that consent is invalid. They cannot consent to any future arrangements.
Both outcomes leave responsible bodies potentially liable for breaching people’s rights under article 5 of the European convention on human rights. The Law Commission report states:
“it is not acceptable for the legislative framework simply to ignore fluctuating capacity. That exposes health and social care professionals and those authorising a deprivation of liberty to significant legal risk. It is therefore vital that the Liberty Protection Safeguards provide for fluctuating capacity expressly.”
However, the Bill the Government have brought forward makes no provision for fluctuating capacity. Our amendment is aimed at addressing that.
Amendment 45 would allow the responsible body to consider whether the arrangements it is authorising need to be in place for the entire duration of the authorisation it is granting. That would allow authorisations to be granted with specific provision for the arrangements to be suspended while a person has regained capacity. We will return later to what deprivation of liberty means, but that is relevant here. It may be that while someone has capacity, they are free to come and go as they please, with no supervision. But when they do not have capacity, they must be accompanied at all times for their own safety. There is no need for arrangements to require that they be accompanied at all times, regardless of their capacity. Instead, it should depend on their condition on a given day.
This comes back to the amendment moved by my hon. Friend the Member for Birmingham, Selly Oak. In it, he called for arrangements to be authorised only if there were no less restrictive alternatives available. If care providers treat capacity as something that, once lost, remains lost, people will inevitably be subject to unnecessarily restrictive arrangements—not all the time, but for the periods when they have regained capacity. That approach also fails to recognise that people’s capacity can vary without crossing the legal line in the sand. There will be days when someone with dementia can, with a certain amount of support, make the decision that they want to go out for coffee with an old friend, but it may be that, because they cannot make such a decision normally, there is no provision in the arrangements for them to go out. I am sure that the Minister would agree that we do not want over-zealous care managers, concerned about the danger of litigation, to end up unduly restricting a person’s liberty purely because they are treating capacity as a constant. Instead, we must establish a system that recognises the way capacity changes and what that can mean for the cared-for person, and that system should be described in the Bill.
The current system deals with fluctuating capacity through the code of practice. I will be concerned if the Minister says in her response that the Government mean that to continue to be the case. The Law Commission was clear, in its assessment of this legislation, that the code of practice was simply not an appropriate place to deal with this issue. I remind the Minister of the Law Commission’s comment that
“it is not acceptable for the legislative framework simply to ignore fluctuating capacity.”
Bringing individuals with fluctuating conditions within the scope of the Bill would not require them to be deprived of their liberty when that was not appropriate. An authorisation is not an order or injunction to detain the person, and professional discretion should of course be exercised—for example, as to when to take or not take steps to ensure that the person is not allowed to leave, or to bring about their return if they do leave.
Will the Minister cast her mind back to 14 March 2018, the day she published the Government’s response to the Law Commission review of the Mental Capacity Act 2005? On page 6 of the response, she accepted the Law Commission’s recommendations about fluctuating capacity. I should like her to clarify why she accepted them if she had no intention of taking on board the commission’s advice that they be contained in the statutory framework.
The amendment would require a consultation to be carried out before arrangements can be varied to account for fluctuating conditions. In some cases, where capacity fluctuates for short periods, that would be an onerous requirement, but it would also mean arrangements could not be made more restrictive when that might not be appropriate. The amendment does not go as far as the Law Commission wanted to on this topic, so it could be seen as a compromise.
In its draft Bill, the Law Commission set out provision for people to consent in advance of being deprived of their liberty. That would have meant that a cohort of people with degenerative conditions, who foresaw the requirement to deprive them of their liberty, would be removed from the system altogether. The Law Commission also said that
“the giving of consent should generally be regarded as an ongoing state of mind which is required in order for a confinement not to amount to a deprivation of liberty. There will be some who will lack capacity to give such consent for such a substantial proportion of the period covered by the proposed authorisation, and regain it for such brief periods, that it is right to regard them as, overall, lacking capacity to give or withhold consent to the arrangements.”
That is in line with the provisions in the current code of practice. It would codify them in statute, ensuring that the group in question would be adequately covered by the liberty protection safeguards. I do not understand why the Government have not yet taken those suggestions on board. They would ensure that people whose conditions fluctuate are properly dealt with by the new liberty protection safeguards, and close up one of the most glaring holes in the current Act. It seems clear that detaining someone while they have capacity would, at the moment, be a breach of the Act. We need real amendments to the Bill to make sense of the system, rather than yet more promises about a code of practice that we have not yet seen. I acknowledge that the Minister has sent us a list of its contents—but that is not the code of practice.
The Minister for Care (Caroline Dinenage)
It is a great pleasure, once again, to serve under your chairmanship, Mr Austin.
I thank hon. Members for raising an important point. We agree that the likelihood of fluctuating capacity should be addressed by the mental capacity assessment. We also expect fluctuating capacity to be considered when the responsible body is deciding to give an authorisation and setting the length of authorisation and frequency of reviews.
I think I set out in my comments on amendment 32 that I am tempted by some of the hon. Lady’s suggestions. However, they do not quite encapsulate the “What then?” of the issue: fluctuating capacity should be considered, but what then? That is why I have concerns. Fluctuating capacity is a complex, fact-specific matter that deserves in-depth, detailed guidance. That is why we will include details of it in the code of practice. We consider that a much better way, allowing examples and real guidance to be set out. That will include the issue of where a person with fluctuating capacity meets or does not meet the authorisation condition of lacking capacity to consent to the arrangements, and whether the authorisation continues in force or ceases to have effect.
The backdrop to the matter is the fact that courts have been considering whether decision makers can take a long-term view in some cases of fluctuating capacity. We expect a judgment from the Court of Appeal soon, in the case of Royal Borough of Greenwich v. CDM. Hopefully, that will give legal guidance on how decision makers should deal with fluctuating capacity. That, of course, will be reflected in the code.
With those assurances in mind, I hope the hon. Lady will feel able to withdraw the amendment.
Barbara Keeley
The Minister says she is tempted by the amendment. It is about time, because she accepted the recommendations when she accepted the Law Commission’s report, and I have even read out the date when she did that. The Law Commission was clear in saying that fluctuating capacity is not something that can be dealt with adequately in the code of practice.
Despite the Minister’s having said that she would accept the recommendations, the Government have made no attempt to deal with fluctuating conditions on the face of the Bill. There is a real danger that breaches of the Act will be encouraged because responsible bodies and care practitioners have no proper avenue to pursue if a cared-for person has a fluctuating condition. It is open to the Minister to move an amendment on Report, but we will be putting our amendment to a vote this morning.
Question put, That the amendment be made.
Caroline Dinenage
We are, largely, starting on the same page. We all agree that advocacy is of the utmost importance for the cared-for person. The Bill is clear that everyone has a right to an advocate, whether an appropriate person, an IMCA or, in some cases, both. The Bill sets out clearly that, if no appropriate person is available or able to represent and support a person, the responsible body must take all reasonable steps to appoint an IMCA, if the person has capacity and requests an IMCA and wherever a person lacks capacity, unless in very rare cases it is not in their best interest, as my hon. Friend the Member for Halesowen and Rowley Regis mentioned.
I thank hon. Members for recognising in the amendment the wishes of the cared-for person as a condition for appointment, as we would not wish to force advocacy on anyone. The Bill already allows an appropriate person to request the support of an IMCA. However, I am concerned about the way in which that best interest has been discussed today. Best interest is the standard that governs decision making under the MCA. I am concerned that the Opposition are disregarding that in relation to IMCAs. I apologise if I have misinterpreted what hon. Members have said. The core aspect of best interest is the person’s wishes and feelings. That has to be the primary consideration when it comes to rights and IMCAs.
Barbara Keeley
Given that the Minister has just expressed her view on how we are presenting our views on best interest, I hope I can summarise the examples that we have given and the view that we are putting forward that it is a subjective judgment. There is a difference with a cared-for person being allowed to have an advocate, as a default arrangement, unless they do not want that, as in some of the cases we have mentioned. The best interest test is at best a subjective judgment. There are many examples where somebody’s best interests have been ignored. That is why we have given many cases; those cases illustrate how incorrectly this test can be applied and how wrong it can go.
Caroline Dinenage
I thank the hon. Lady for that clarification. I am really grateful for all the interesting case studies and examples set out today. They show the incredible variety of cases, experiences and issues that the Bill needs to encompass, and the challenges of getting it 100% right. That is why we have to be incredibly careful with carte blanche.
We think it would only be in very rare cases that it would not be in the person’s best interest to have an IMCA or appropriate person representing them. Of course, the default is that they would. If the appropriate person is not fulfilling their duties, there should be an alternative appropriate person in place, or an IMCA should be appointed by the responsible body.
There is a presumption in a case where a person lacks capacity. They have the right to request an advocate, if they have capacity, and that best interest test is to avoid overriding their wishes and feelings in cases where they do not. Families of those who lack capacity have told us that they often feel left out of the process. Allowing them to act as appropriate persons enables them to be involved and provide support. I am sure hon. Members agree that that is a good thing.
The role of appropriate person is an important way of involving those who are close to a person, but is not necessarily a matter of either/or. An appropriate person can request support from an IMCA if they wish, and that will include access to challenge in court. We are expanding rights to IMCAs. Currently they are available only to people in hospitals and care homes. The liberty protection safeguard would expand that to those in the community and supported living.
We have set out the fundamental requirements of who can act as an appropriate person and the code of practice will give further detail. I know there were concerns that an IMCA would make a one-off visit and, once everything was settled, they would never be seen again, but it is clear that an IMCA must keep up ongoing contact outside of review times to ensure that the person’s rights continue to be protected and respected.
Barbara Keeley
The Minister said that that is clear. How is it clear? It is not clear anywhere in the Bill that there have to be constant visits. Where is that provision in the Bill?
Caroline Dinenage
It is clear in our minds, and it will be clear in the code of practice that hon. Members can approve.
Alex Cunningham
Will the Minister indicate what the code of practice will say in that respect?
Caroline Dinenage
I cannot give the exact wording because, as I have said, we are engaging with stakeholders and we wish to get the provision exactly right. If I were to provide the wording it would be just the opinion of a politician, and we will all agree that we need the voices of experts, and that the views of those with lived experience of having to support people should be taken into consideration.
Caroline Dinenage
I will in a moment, but I also wish to consider those parts of the amendment with which I fundamentally disagree, as that is important. The amendment would require all 16 and 17-year-olds to have an IMCA as well as an appropriate person. I feel strongly that automatically appointing an IMCA for a 16 or 17-year-old would risk freezing out parents from providing representation and support, and parents are often best placed to take such a role.
The hon. Member for Worsley and Eccles South often talks about the desperately distressing case of Bethany and countless others, where parents’ wishes and concerns are not listened to or heeded. We have been clear about giving families a strong role in this model, and we do not want to risk that. As with an appropriate person, a parent or family can request the support of an IMCA, or for their role to be performed by an IMCA.
Barbara Keeley
I am surprised that the Minster seems to be referring to an advocate as someone who will get in the way of the parents. When I have met parents—I have met Bethany’s father—a great deal of advocacy is going on. Stakeholders in the Bill help with the provision of advocates—indeed, they themselves provide advocacy and legal support. I know for a fact that Bethany’s father would not have got very far because, as the Minister knows, an injunction against him by his local council tried to prevent him from even speaking about his daughter’s case. People need professional support—parents need it, as do other carers—and I hope the Minister will not categorise the support of an advocate as somehow “getting in the way”. The professionals who make decisions have to be challenged, not advocates who are there to support people and their parents.
Caroline Dinenage
The hon. Lady slightly misrepresents what I am trying to say. Of course we have seen numerous examples of how important advocacy can be—it can literally make the difference between people living a happy life that suits their needs, or being kept in a place where they feel unhappy and that does not fulfil those needs. I agree that people should be able to access advocacy, that advocates should be able to work alongside parents, and that if parents feel that they cannot take on such a role, advocates should do that work instead of parents. I also feel, however, that if parents feel that they want to do this on their own and not take on additional advice they should not be forced to, and that is probably the fundamental difference between the Government and Opposition positions. People should be allowed to make decisions for themselves if they wish, and they should not continually be forced to take advice if they do not want to.
We want to make this model person-centric—that is key—and base it on the needs of individuals. By mandating the conditions for IMCA appointments in primary legislation we would once again be prescribing a one-size-fits-all approach that does not consider someone’s individual circumstances, or the wishes and feelings of those involved and their family and loved ones. I hope hon. Members agree and will withdraw the amendment.
Barbara Keeley
The Minister seemed to imply—I think she used similar words—that appointing an IMCA will be the default, but that is not the case in the Bill. The Bill states that an IMCA should be appointed if the responsible body is satisfied that being represented and supported by an IMCA is in the cared-for person’s best interests. There is a best interest test there, which will potentially get in the way. With the wrong sort of process going through in independent hospitals, it will be subject to that best interest test. That is how people can end up ignored, festering in situations where they do not want to be.
Caroline Dinenage
I am struggling with this, because the hon. Lady is giving the impression that best interest should not be taken into consideration. “Best interest” is basically code for the wishes and feelings of the individual. Is she honestly saying that because a person may be lacking capacity their wishes and feelings should be totally ignored, and they should be given what everyone else thinks is best for them?
Barbara Keeley
The Minister knows that that is not an accurate interpretation of what I am saying. We spent a fair amount of time talking about independent hospitals, which are still a massive worry and concern. There is still great concern about the potential role of care home managers, because of the conflict of interest in the case of both independent hospitals and care home managers. There are too many actors in this process who could get in the way and be the people deciding whether a best interest test is met.
Were the best interest assessors the people who are used to this and have been doing this job in local authorities, I would be more comfortable. The Government are trying to give power over the process to care home managers and independent hospitals as responsible bodies, and we disagree with that profoundly, because of the cases that I have brought to the Minister’s attention. I think she and the Government are wrong to put faith in bodies where there is a conflict of interest. That is why I feel so strongly about this.
Caroline Dinenage
I beg to move amendment 11, in schedule 1, page 24, line 3, at end insert “in a hospital”.
This is to provide that only arrangements to enable medical treatment for mental disorder in a hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded from being authorised under the new Schedule AA1.
Caroline Dinenage
Amendments 11 and 12 are technical and tidy up the provisions in part 7 of new schedule AA1 to the Mental Health Act 1983 that set out the interface with that Act. They provide that liberty protection safeguards cannot be used to recall to a hospital a person who is subject to the Mental Health Act and is residing outside a hospital. If someone is subject to a community power under the Mental Health Act and needs to be recalled to a hospital, that should be done through the Mental Health Act. That is already the case under the current DoLS system, and the amendments ensure that the Bill replicates that. The Bill is already clear that an order made under the liberty protection safeguards cannot conflict with an order made under the community provisions of the Mental Health Act, so if someone is required to reside at a place under a community treatment order, they cannot be required to live somewhere else under the liberty protection safeguards.
Amendment 13 ensures that that principle also applies to other legislation with a similar effect to the community powers of the Mental Health Act. That means that if someone is required to reside in a particular place under equivalent enactments that extend to England and Wales, they cannot be required to be placed somewhere else under liberty protection safeguards. The amendments effectively ensure that liberty protection safeguards are not used inappropriately to complete functions that should be completed using the Mental Health Act, and clarify what we all know: that a person cannot be required to be in two places at once. I hope the Committee supports the amendments.
Barbara Keeley
I understand that the amendments are designed to address the interface between the Mental Capacity Act and the Mental Health Act, and to keep that interface exactly the same as it is now. I think this is the point to say that this is not the course we wanted the Bill to take. Amendment 52, tabled in my name and to be discussed later, would delay the implementation of the Bill until the Government have given proper thought to how that interface ought to work. We will not oppose amendments 11 to 13, because I can see that they are intended as technical, drafting amendments and we will treat them as such, but I think this is a missed opportunity.
There is a considerable grey area between the Mental Capacity Act and the Mental Health Act, and in his recent review, Sir Simon Wessely made some valuable recommendations on how that divide could be clarified. At this stage, the Government have not tabled amendments to enact those recommendations, but through these amendments they will instead maintain a deficient set of arrangements. I fall back on what I have said before: I call on the Government to pause the Bill until they have given proper consideration to the interface between the two Acts and can produce a Bill that will not require near-immediate amendment and generate a lot of court cases, as we think this Bill will do.
Amendment 11 agreed to.
Amendments made: 12, in schedule 1, page 24, line 10, at end insert “in a hospital.”
This is to provide that only arrangements to enable medical treatment for mental disorder in a hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded from being authorised under the new Schedule AA1.
Amendment 13, in schedule 1, page 27, line 16, at end insert—
“(g) anything which has the same effect as something within any of paragraphs (a) to (f), under another England and Wales enactment.”—(Caroline Dinenage.)
If arrangements conflict with requirements, conditions or directions imposed or given under certain provisions of the Mental Health Act 1983 those arrangements cannot be authorised under the new Schedule AA1 of the Mental Capacity Act 2005. This amendment provides that arrangements which conflict with requirements, conditions or directions arising from an England and Wales enactment having the same effect as the provisions of the Mental Health Act listed in paragraph 54 also cannot be authorised under the new Schedule AA1.
Schedule 1, as amended, agreed to.
Clause 2
Deprivation of liberty: authorisation of steps necessary for life-sustaining treatment or vital act
Alex Cunningham
I share my hon. Friend’s paranoia. I do not understand why we would put any barriers at all in the way of people’s having a proper assessment within a reasonable time. Detaining someone for 14 days is effectively locking them up for 14 days. It means depriving them of their liberty and there may be no real necessity. An assessment, as quickly as possible, is essential.
Of course, if we allow those authorisations to go on for longer than 14 days or any other reasonable timeframe, we are putting people at risk of abuse, as the Law Society has said. I say to the Minister that we must put vulnerable people first. We must always put the individual first. We must have the safeguards in place, because to do anything else is to risk their liberty, and that is a risk I am not prepared to take. I hope she accepts the amendment.
Caroline Dinenage
Clause 2 allows caregivers, in limited situations, to deprive someone of their liberty for a short period of time prior to an authorisation being in place or in an emergency. That can be done only to provide the person with life-sustaining treatment or to prevent a serious deterioration in their condition. The clause enables a care home to place restrictions on the person for their own protection ahead of an authorisation being approved. That interim legal cover will be decision-specific and it will be targeted to life-sustaining treatment and care or to a vital act. Once those acts are completed, the conditions no longer apply and legal cover for depriving someone of their liberty ends.
In that way, the clause replicates clause 4B of the Mental Health Act 2005, already in DoLS. The emergency authorisation system applies in exactly the same way when a court application being made relates to a deprivation of liberty. There is no evidence at this time that it would lead to any lengthy deprivation of liberty, and the provision of the Bill builds on an existing and well-understood provision. The previous system also included an urgent authorisation. That has gone because it was used too often and its time limit was ineffectual.
Under the Bill, the legal cover is provided simply for as long as the life-sustaining care is needed and no longer. It is therefore a limited power and a better safeguard. An emergency is defined as a situation where there is an urgent need to act and it is not “reasonably practicable” to make an application under the liberty protection safeguards to the Court of Protection or under part 2 of the Mental Health Act. It was carefully considered by the Law Commission, which looked at the inclusion of a time limit and decided against it. We agree with its conclusion that a time limit could encourage care providers to aim for the time allowed rather than to adhere to best practice for that case and that person, which is certainly what we have seen in some urgent cases.
Given the seriousness of depriving someone of their liberty, it should be limited to the shortest possible timescale and should reflect the huge range of causes that it can be required to cover. The amendment would create a blunt, one-size-fits-all approach, rather than allowing us to reflect the different approaches called for.
Steve McCabe
The Minister cites the Law Commission, but is it not the case that the Law Society recommended this very type of safeguard?
Caroline Dinenage
I do not know about the Law Society. The Law Commission was tasked with reviewing the measure—it took three years to do so. The commission took evidence from across the sector and we have used its recommendations as the basis for this provision.
Barbara Keeley
It is interesting that the Minister is being so selective about which of the Law Commission’s recommendations she is accepting. I challenged her earlier about a recommendation that she had accepted at the time it was made and which has not been taken further in the Bill. This is a five-clause Bill, which Opposition Members have had to battle our way through. It is not the fifteen-clause draft Bill that the Law Commission brought forward, which had been consulted on. It is rather rich of the Minister at this point, when it suits her, to be quoting the Law Commission’s recommendations and adopting them when she has not accepted them on many other occasions, including the one on which I moved an amendment this morning.
Caroline Dinenage
The reason for that is quite simple. The Law Commission’s draft Bill had a whole lot more scope and took into it things that we have not been able to look at as part of this particular revision of DoLS, on which we want to focus. We are painfully aware of the fact that 125,000 people are still in a backlog, waiting for DoLS. They do not have the protections that they need; the families do not have the reassurance; and the people caring for them do not have the protection of the law. That is why, necessarily, this had to be a very narrow Bill. Where possible, though, we have taken the words of the Law Commission to its very heart.
Barbara Keeley
I am astonished that the Minister thought it was okay not very long ago this morning to not accept a Law Commission recommendation and then, in her very next speech, put forward such a recommendation as the main reason for turning down an amendment. There is an astonishing lack of logic.
Opposition Members believe that it cannot be right that emergency authorisations have no time limit. There is a concern that it could become easy to drop into using the provision given that there is no time limit on it. We can see how, given how systems are designed, people can get into going to the easiest place. If it is the easiest place to deprive someone of their liberty, that situation can become dangerous.
By failing to include a time limit, the Bill fails to incentivise local authorities and the courts to hear emergency authorisation cases promptly. There is no time pressure on them—they can take as long as they like. Applications can already take too long to process and, without a hard end date, they could drag on for weeks or months. The emergency authorisations contain far fewer safeguards than full authorisations, and as such Opposition Members believe that they should be used only sparingly and for brief periods.
Question put, That the amendment be made.
Caroline Dinenage
The ability to deprive someone of their liberty for a short period of time prior to an authorisation being in place or in an emergency is an important part of this model, as we have discussed. That can be done only to provide the person with life-sustaining treatment or to prevent a serious deterioration in their condition.
I spoke on amendment 16 about how this provision is limited to emergency and life-sustaining treatment or a vital act, and to the time limit that is legally enforced. We agree that the provision of information to the cared-for person and those who care for them is extremely important to help them understand the process and exercise their rights. I have committed in respect of other clauses to look again at information and how quickly and early it is disseminated and distributed. I agree in principle with the information part of the amendment.
My only reservation is that, given the nature of the situation, medical professionals have to work urgently in a short period of time, so the amendment might not be practical in practice. However, I agree 100% with the hon. Member for Worsley and Eccles South that information needs to be given out and that people need to understand what is happening to them and their loved ones, so I will commit to look again at this matter.
We agree, and I confirm that, when people are deprived of their liberty, records will need to be kept and those will need to be available after the event. We will outline the details in the statutory code of practice, including how that information should be shared with others.
The amendment outlines circumstances when objections to deprivation of liberty for the provision of life-saving or sustaining treatment should be referred immediately to the Court of Protection. Under the Bill, all people in those cases will have the ability to challenge emergency authorisations in the Court of Protection via section 16 of the Mental Capacity Act, and it is unnecessary for that to be made explicit again in the Bill. The applications will also operate alongside a full authorisation made under new schedule AA1 where appropriate and, of course, there will be full recourse to the court to challenge those authorisations too. For that reason, the Government cannot support the amendment.
Barbara Keeley
I am disappointed that the Minister will not accept the amendment because I have given her a very powerful example of why she should. I had not understood, until I engaged with Paula McGowan recently, how defective the processes were. I know that the Minister has been engaged in that case, so I ask her to think about how it adds to the burden of grief and bereavement for the parents that the processes that should have protected a young person such as Oliver were not engaged properly.
The point about information is important; the McGowans were not informed of their rights or listened to. There was no best interest meeting for Oliver. Had that happened, his parents could have pointed out the danger of the anti-psychotic medication. The Minister has just said that medical and care professionals are busy. That is the problem, is it not? That is how these cases happen—in the busyness of urgent care. The warnings about the medication were just ignored. That is why we very much need information to be given.
Mental Capacity (Amendment) Bill [ Lords ] (Fourth sitting)
Caroline Dinenage Excerpts(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Care (Caroline Dinenage)
I beg to move amendment 5, in schedule 1, page 14, line 6, leave out “prescribed connection” and insert
“connection, of a kind prescribed by regulations,”.
This amendment is to make it clear that a regulation making power is being conferred by paragraph 18(3) of the new Schedule AA1.
Caroline Dinenage
It is a great pleasure to serve under your chairmanship, Mr Pritchard. A warm welcome to the Committee—albeit not quite as warm as it would have been had you been here on Tuesday.
These technical amendments build on important amendments tabled by the Government in the other place. They ensure that a person with a connection to a care home cannot conduct the assessments needed for an authorisation or the pre-authorisation review, and thereby eliminate any potential conflict of interest. It is vital that assessments and pre-authorisation reviews are completed independently. The amendments not only ensure there is no conflict of interest in the process but prevent the approval of over-restrictive arrangements that are in a care home’s interest but not in the best interests of the individual.
The amendments clarify that the definition of a person with a connection to a care home will be set out in regulations; the Bill therefore confers regulation-making powers. That may not have been sufficiently clear in previous drafting, so those connections will be laid out in regulations, which will allow us to provide the necessary detail and ensure that all care home staff and those connected to a care home are excluded from completing assessments and pre-authorisation reviews. Consideration was given to setting that out in the Bill, but we concluded that regulations would better serve our intention of ensuring that we exclude agency staff and others who do not work directly for the care home. I hope the Committee supports these clarifying amendments.
Barbara Keeley (Worsley and Eccles South) (Lab)
It is a real pleasure to serve under your chairmanship, Mr Pritchard. The atmosphere is so much nicer than it was on Tuesday, when we were so horribly hot. You avoided being in a sauna for a few hours.
It is a pleasure to speak to such uncontroversial amendments. We will discuss conflicts of interest further, so I will not say too much now, but I wish to make one comment. The amendments make clear that assessments and reviews should not be carried out by people who have certain relationships with a care home, but I hope the Government take a broad view of the kinds of relationships that should be ruled out. The regulations must not provide that the only people with a prescribed relationship with a care home are its employees. I also hope the Government take an open and consultative approach to drawing up the regulations. Many stakeholders will have strongly held views about the kinds of relationships that should be prescribed, and the Government should ensure that they take all that expertise on board.
Amendment 5 agreed to.
Amendment made: 6, in schedule 1, page 15, line 4, leave out “prescribed connection” and insert
“connection, of a kind prescribed by regulations,”.—(Caroline Dinenage.)
This amendment is to make it clear that a regulation making power is being conferred by paragraph 19(4) of the new Schedule AA1.
Caroline Dinenage
I thank the Opposition for raising this issue. As we have heard, the amendment would require that parents’ wishes and feelings about the proposed arrangements for their 16 and 17-year-old child are ascertained. That would be in addition to the main purpose of the consultation, which is to ascertain the wishes and feelings of the cared-for person.
I understand that hon. Members are concerned to ensure that parents’ voices are heard—so, of course, are the Government. Parents have a vital role in caring for their children, especially when they lack mental capacity. We would fully expect the responsible body to consult parents about their views of the arrangement, where appropriate, while ascertaining the wishes and feelings of the person. We therefore believe the amendment to be unnecessary, because parents involved in the care of their child will already be included in the consultation process, where appropriate. I refer Members to my earlier comments on the safeguarding issues that must also be taken into consideration.
The other thing to be taken into consideration, which I mentioned earlier, is the Birmingham case which is being considered by the Supreme Court. That will bring further clarity to parental responsibility for young people lacking mental capacity.
Barbara Keeley
I hope that the Minister was listening to the cases that I cited—I know that she has been involved in and heard of those cases, and sometimes met the individuals. Parents, however, were not consulted in desperately difficult and at times tragic circumstances. She knows that Paula McGowan and Oliver’s father were not consulted; in fact, they were ignored. On a number of occasions, I have talked about the case of Y, whose parents were ignored—the social worker just ignored them—to the real damage of that young person, who was held for two years. The Minister says somewhat glibly, if she will excuse me saying that, that parents will be consulted, but they are too often ignored. It seems to me that the working practice of many professionals in this field is to ignore the parents. I do not think that the amendment is unnecessary, because it creates a situation in which we draw attention to the importance of the input that parents can make. I have certainly seen no evidence that that is routinely used at the moment.
Caroline Dinenage
I very much take on board the hon. Lady’s concerns, and she knows that I have enormous respect for her work in this field. As she said, I have met with a number of parents involved in these tragic cases—she mentioned Paula McGowan and her son, Oliver. It was not just Oliver’s parents whose wishes and feelings were ignored; it was Oliver’s. In the initial period he said that he could not have the medication that they were giving him, and they still gave it to him anyway. Her point is incredibly valid, but it needs a lot more than this to achieve what we are aiming for. That is why we are bringing forward the consultation on the appropriate training for people who work in health and care settings, on how to be able to communicate with, understand and properly look after people with autism and learning disabilities.
Barbara Keeley
I respect that the Minister has taken on board Paula McGowan’s campaign, but how much more powerful would the training of medical professionals and others involved with the care and treatment of people like Oliver be, when it is started, if it could be said in the consultation that they have to listen to the views of the parents? That would be a change, because clearly they are not doing so at the moment.
Caroline Dinenage
I completely agree with the hon. Lady. We are making it clear that parental voices must be heard, but we have to be careful about putting anything in the Bill that could create unintended consequences. We have spoken about it before and those safeguarding issues have to be taken very seriously. To our cost, we have learned from previous Bills that a loophole in the law can take the whole policy off in a way that we had not entirely expected. We do not want to recreate that. I hope that with that reassurance hon. Members feel they are able to withdraw the amendment.
Barbara Keeley
No, I am afraid I do not. Amendment 34 requires the views of parents to be given particular weight in the consultation process, when the cared-for person is 16 or 17 years old. That is the third of our amendments designed to ensure that 16 and 17-year-olds have proper safeguards. It is necessary, because of the greater safeguards that this age group currently receives under the Mental Health Act. I think there will be a shift in which piece of legislation is used in regard of 16 and 17-year-olds. We cannot have a situation where the safeguards are less under the mental capacity legislation than they are under the Mental Health Act or a court order. We will press this to a vote.
Question put, That the amendment be made.
Alex Norris
This debate harks back to what we talked about on Tuesday—the perverse incentives for those providing care to let individuals remain on care packages for their own commercial interests, whether consciously or subconsciously. There is definitely a conflict of interest there. We have not taken previous amendments on that, but at some point I believe a line will have to be drawn stating, “These are the very clear in law protections that we are putting down to ensure there is no conflict of interest.”
It is entirely possible that the code of practice will refer to that and at the first stroke make it clear that it would be highly inappropriate for the assessments or reviews to be done by individuals who have a close connection or employment relationship with the provider themselves. That might be so, but we do not have that code of practice yet, and in any case, it is probably something that would be better in the Bill than in guidance, notwithstanding what the Minister has said previously about the standing of the code of practice.
We know that care facilities have narrow financial constraints. Their finances are tight and, as my hon. Friend the Member for Stockton North says, there is a pressure to provide as cheaply as possible. That is a clear and present danger. To avoid that concern and send a clear signal about those who conduct these types of reviews, now is a good time to put it in the Bill.
Caroline Dinenage
I am grateful to the hon. Members who have raised this important issue. I will address each amendment in turn.
On amendment 35, I agree that the independence of the pre-authorisation reviewer is of the utmost importance for ensuring that there is no conflict of interest in the pre-authorisation review. The Bill provides for separation between those who will authorise arrangements and those who will carry them out. The Bill is clear that anyone involved in a person’s day-to-day care or treatment or with a prescribed connection to a care home cannot complete a pre-authorisation review. That was an amendment made to the Bill after discussion in the other place.
Dr Paul Williams (Stockton South) (Lab)
Even though somebody might not have a prescribed relationship, informal relationships can develop, as my hon. Friends said. Our concern is that the existence of those informal relationships—they have been described as “cosy”—may well not be precluded by the protections afforded in the Bill.
Caroline Dinenage
That is what we must guard against. It cannot be done in the Bill, because coverage has to be extensive; that is exactly where the regulations that run alongside the Bill come into their own. They will set out how, if someone is working for a care home in a different location but run by the same provider, they will be excluded. They will also take a broader view, encompassing things such as agency staff, volunteers and other areas where people may have very reasonable concerns, as well as, of course, everybody who is employed in the care home.
Another point I want to stress is that the amendment would put hospital trusts, clinical commissioning groups and local health boards in a position where they are unable to arrange for someone in their organisation who is separate from delivering care and treatment to complete the pre-authorisation review. They would instead have to organise someone external, which to me seems a wildly unnecessary and bureaucratic exercise. We trust our NHS staff with our lives every single day. I am sure that is an unintended consequence and that Opposition Members are not saying that we cannot trust our NHS staff to complete those reviews. That is when I talk about unintended consequences of amendments to Bills.
Steve McCabe (Birmingham, Selly Oak) (Lab)
This is a genuine question: what will the arrangement be for inspecting the work of the people who carry out the reviews? The Minister says that we trust our NHS staff, but we have a whole series of inspection and review processes to ensure that decision makers are complying with the law as intended. I think I asked a similar question the other day about the Care Quality Commission in relation to homes, which she said that she would look at. Will there be some similar oversight or random review process of the work that these people do? That would be one way—not a guaranteed way—of picking up whether there was an unsuitable relationship. At the moment, part of the fear is that we could end up in a situation where these people are set free to do this work, but without any guaranteed oversight of how they carry it out.
Caroline Dinenage
I laughed when the hon. Gentleman said, “This is a genuine question,” as if all the others he has asked have not been. I am sure that is not what he intended to suggest.
Steve McCabe
If the Minister will forgive me, it is just that she looks as if she does not believe me sometimes.
Caroline Dinenage
I think that might just be my natural resting face. I understand what the hon. Gentleman is saying, but it depends who we are looking at. If the pre-authorisation review is being conducted by a local authority for a care home, the oversight of the senior members of the local authority would apply, as well as the Care Quality Commission, which deals with the quality of care homes. If it is something like a hospital, people will monitor other people’s work as happens already within hospitals, CCGs and health boards.
The Bill says that somebody who is involved in the direct care of a particular person cannot mark the homework of another person. In something as big and broad as a local health board, a CCG or a hospital trust, which can be enormous, exclusively saying that there could not be two people, who have never met each other before, looking at each other’s work seems to me a huge leap.
Amendment 36 is designed to prevent anyone with a prescribed connection to an independent hospital from conducting pre-authorisation reviews. I am sure that we can all agree that the pre-authorisation review is critical to the effective operation of the liberty protection safeguards in providing independent reviews of proposed arrangements that may deprive people of their liberty. We are talking about the most precious and vital of our human rights. The reviews have to be conducted by someone independent, who is not involved in the day-to-day provision of care or treatment of the cared-for person. That provides the necessary degree of separation to ensure that the model is compliant with the European convention rights.
By requiring authorisations in independent hospitals to be considered by an AMCP, regardless of whether the individual objects, we add a further level of security and build on other safeguards within the model. The AMCP will meet with the person, complete any relevant consultation and review assessments to decide whether the authorisation conditions are met. They can effectively veto proposed arrangements, if they feel that the proper conditions are not met. AMCPs will be professionals, such as experienced social workers, learning disability nurses and psychologists. Their practice will be regulated by and they will be accountable to their professional bodies—in answer to what the hon. Gentleman said earlier.
Alex Cunningham
The Minister just used the expression—I have lost my train of thought. I beg your pardon, Mr Pritchard.
Caroline Dinenage
I will take an intervention from the hon. Member for Worsley and Eccles South.
Barbara Keeley
I can see the Minister’s drift, but I do not understand how the Bill deals with a person who has a prescribed connection with a care home, but not a prescribed connection to an independent hospital. If it is important to have that in the Bill for a care home, why is it not important to have that in the Bill for an independent hospital?
Caroline Dinenage
It is in there—it is in both. In addition we have the AMCPs. As I said when discussed amendment 19, I fully understand hon. Members’ concerns around independent hospitals. I know the hon. Lady shares my concerns, and this matter has been raised by Members across the House. I said to her, in relation to amendment 19, that I wanted to go away and consider it further.
Alex Cunningham
I did not realise I was going to have to declare an interest in the Bill, in view of my lapse a few minutes ago. My question is about the reference the Minister made to the AMCP always meeting the person. Does the AMCP meet the person in every circumstance? We tabled amendments because we want everybody to have access to that sort of professional person—not just for them to see a report, but to actually see the person.
Caroline Dinenage
Yes, by requiring authorisation in independent hospitals to be considered by an AMCP, we add that extra level of scrutiny and build those safeguards into the model.
Given that I have committed to look at independent hospitals again, as I said in relation to amendment 19, I hope that the hon. Lady is willing to withdraw the amendment.
Barbara Keeley
I tried to ask the Minister another question. I do not want her just to go away and think about it. Is she prepared to look at adding the words “independent hospital”? Amendment 36 is a fairly simple addition of a few words. Is that what she is considering?
Caroline Dinenage
At this stage, I am prepared to say that I fully take on board and share the concern felt by the hon. Lady and others about ensuring that independent hospitals are not only seen to be above board, but are above board in every way that we can manage. That is why I have committed to looking again at everything that we have said so far to see if there is anything further we can do.
Barbara Keeley
I thank the Minister for saying that. She will need to go further and say that she is prepared to amend it on Report. Otherwise we will have to press our amendment to a vote. It is very important. I do not really understand the difference.
Ministers have accepted in the Lords that they want to prevent this important independent review from being conducted by a person with a prescribed connection to a care home. Responsible bodies include independent hospitals. I do not understand. If the Minister is prepared to go away and table a Government amendment we will not press this amendment to a vote. Otherwise, we will.
Caroline Dinenage
I appreciate the hon. Lady’s tenacity and dedication to this matter. I am afraid that, at the moment, all I can I say is that I am committed to looking at it again.
Barbara Keeley
That was helpful to know, because for us it is unacceptable for an independent reviewer to be employed by the same organisation that delivers care and support. That is unacceptable in a care home and in an independent hospital. The Bill is drafted too narrowly and precludes only individuals who are personally involved in the delivery of care. We certainly need to vote on the amendment. It seems to me to defy logic to have such a provision for care homes, but not to be every bit as cautious about independent hospitals.
Question put, That the amendment be made.
Alex Norris
I have specific trouble with the word “practicable”. From my time in local government—I know things have not got better in the 18 months since then—I would argue strongly that the current assessment workload is not practicable for the individual. Earlier in our consideration of the Bill, my hon. Friend the Member for Birmingham, Selly Oak compared social work case loads when he was active in the profession with what they might be today. Putting in legislation how practicable it is for an individual to go and do an assessment creates the chance of a loophole that does something that we do not intend the Bill to do.
It is striking, as my hon. Friend the Member for Birmingham, Selly Oak said, that the Minister has at all turns been careful about what has been put in the Bill so as not to create future loopholes. We know that traditionally, this area has been tested very heavily in case law and it will be tested again in court. She has been very careful not to put those words in there, but this one is problematic. We know that in a time of rising demand and diminished resources, there will be pressures. To put something in that suggests that if it is just too difficult for a social worker to go and do an assessment, that assessment will not take place, is dangerous. I do not think that is what we are trying to do. I believe that it will lead to a serious problem.
The market for providing very high-need care is not very developed. We are talking about very small numbers of people, so there are not masses and masses of providers. When it comes to all of us being older, there are facilities in all constituencies and communities for older people to have residential care, because it is a high-demand area. The very specific, individualised care packages that involve things such as depriving liberty are not found in every community. Often, we hear horror stories in children’s mental health of people being sent a long way away to find the right facility. Are we then saying that a reassessment might not be practical, because the AMCP is in Nottingham and the care placement is a long way out on the east coast in Lincolnshire? That might not be considered by an individual to be a “practicable” thing to do, so I have a real problem with that word.
If the Government are saying that there are circumstances—my hon. Friend the Member for Worsley and Eccles South mentioned the exchange in the other place—where they are relaxed about an AMCP not seeing an individual face-to-face, I think that is a bad idea, for the reasons detailed by my hon. Friend the Member for Stockton North. If the Government are saying that there are circumstances where they are relaxed about that, they should name them and put them on the face of the Bill and be exhaustive with them, so that we can be clear and test the will of the Committee as to whether we agree.
We need to have a greater sense of what we are saying in respect of dialling back people’s rights to see a qualified professional when they are having their liberty removed. If we are rolling that back, let us be really clear about how we are rolling it back—the exact circumstances and what recourse they might have if they or their carers believe that to be wrong. I think this is out of step with all the discussions we had on Tuesday and this morning. I believe it creates a loophole and we need greater clarification.
Caroline Dinenage
I thank those hon. Members who have spoken and tabled these amendments. Amendments 42 and 43, as we have heard, would require an approved mental capacity professional to meet with the person in every case where they are carrying out a pre-authorisation review, rather than—as we propose and as is written on the face of the Bill—where it is “appropriate and practicable”.
The Bill currently states that where an AMCP is carrying out a pre-authorisation review, they must meet with the person where practicable and appropriate. In the vast majority of circumstances it will be practicable and appropriate. This qualification comes from the Law Commission draft Bill, which recognised—we agree with this—that the AMCP will be required to meet with the person in virtually every case. This is an important protection within the liberty protection safeguard system.
Caroline Dinenage
Let me make a bit of progress and I will hopefully answer the hon. Gentleman in the process, but if I do not, he can intervene again.
The exceptions where it would not be practicable and appropriate would depend on the circumstances of the case. Things such as workload, cost and distance would not count under the qualification of not appropriate or practicable. It might be not appropriate or practicable, for example, where the person is in a coma and the family has requested that the AMCP does not interview the person, because it would cause distress. Another example is where someone at the very end of their life needs to be deprived of their liberty in their last few days, and they do not want to see an AMCP. In many cases, we feel it would not be appropriate to override the person’s best interests and force them to meet with an approved mental capacity professional.
Mr Dhesi
The Minister makes some very good points that I have sympathy with, but why cannot we simply include what she says in the code of practice? Setting it in stone in the Bill gives completely the wrong signal to medical care professionals: it makes it the norm rather than the exception.
Caroline Dinenage
I might turn that point round on the hon. Gentleman: we are indeed including it in the code of practice. The Bill states that the AMCP will meet the cared-for person except in the very rare circumstances in which that is not practicable or appropriate. We will set out those rare exceptions, including case studies, in the code of practice—a much better place for them than the Bill, which cannot include such case studies to flesh out what we are trying to achieve.
Dr Williams
As the Minister describes it, the assessment will take place unless it is inappropriate or impractical, so perhaps the Bill ought to say that.
Caroline Dinenage
I thank the hon. Gentleman for that clarification, but we may be dancing on the head of a pin slightly. To my mind, the meaning of amendment 42 is that in all cases the AMCP should turn up and see the person, whereas we are saying that that should happen in all cases, with some very small exceptions. With that reassurance, I hope that the hon. Member for Worsley and Eccles South will withdraw the amendment.
Barbara Keeley
The Opposition believe, as the debate has shown, that the amendment would be a crucial safeguard. We have spent a lot of time discussing the code of practice, which is beginning to seem a bit like a unicorn—it is something out there that might or might not appear and be useful.
The amendment is important because the AMCP will have to be satisfied that the reality of the situation matches what is in the application. I am sorry that we are so often having to doubt care home managers and people working in independent hospitals, but that is only because we come across such appalling cases. Earlier today I cited the case of a young man in a care home who was deprived of his liberty for two years and restrained hundreds of times; other cases include people having their arms broken through the use of restraint techniques. All these things happen, and it does not help if an AMCP is prepared to accept the word of the care staff or the people in the independent hospital—the very people who have used the restraint that broke the arm or caused the damage.
I am afraid that we therefore wish to persist in pressing the amendment. I have made it clear that the meetings would not need to be burdensome, and I fully accept that there are circumstances in which a person doing such work will have to be flexible, but I would expect people with the appropriate knowledge, skills and experience to understand how to deal with an end-of-life care case and with the needs of very vulnerable people.
Caroline Dinenage
Thank you for that clarification, Mr Pritchard.
I thank hon. Members for tabling this amendment. I agree that it is vital that where authorisation conditions are not met and the proposed arrangements are reconsidered, the care or treatment that is provided should not deprive someone of their liberty. Arrangements should be more proportionate in such cases. It is essential that the responsible body and others, such as care providers, are notified swiftly. The new model will include a wide range of people with very different circumstances. In some cases, the responsible body should be notified very quickly.
May I seek further clarification?
The Chair
May I say, to help the Minister and the Committee, that the amendments 40 and 41 were coupled together due to agreements that were made outside the Committee? The Minister will have an opportunity—probably next week—to speak to amendment 41.
The Chair
For the ease of the Committee, if the shadow Minister is happy, the Minister can speak to amendments 40 and 41 if she wishes. She may want to speak again next week, or she might want to let that opportunity go by. For the flow of the Committee—if the Committee is happy—let us do it now and crack on.
Caroline Dinenage
I am very grateful for that clarification, Mr Pritchard. I have mixed my contributions on the two amendments together, so I will combine the two, if that is all right with the Committee.
Caroline Dinenage
I am sure we all agree that the role of an AMCP is incredibly important in ensuring that cases under liberty protection safeguards are identified as needing to be referred to a Court of Protection, particularly because they will be reviewing arrangements where objections have been raised by the cared-for person or other people on their behalf. We are very clear that if a person wants to challenge their authorisation in the Court of Protection, they have the right to do so.
I assure hon. Members that the responsible body has a responsibility to ensure that individuals who want to bring a challenge, in line with their article 5 rights, have access to the Court of Protection, as they currently do under the DoLS scheme. That applies, in particular, where a person should have had their case taken to court for a decision, but for some reason that has not occurred. The Bill does not change that. We agree that we expect AMCPs to communicate the outcome of their review swiftly to the responsible body. That will included cases where cared-for people raise objections that may require referral to the Court of Protection.
However, it is not only AMCPs who may be aware of objections. For example, people may raise matters directly with a responsible body or someone providing care or treatment, who may, in turn, raise concerns directly with the responsible body. Reviewers may become aware of an objection during a review of an arrangement that has been authorised. I am concerned that if we specify in the Bill that AMCPs have that duty, it may be felt that only AMCPs can and should identify such cases. Others, such as healthcare staff, should also be able to raise concerns directly with the responsible body, which can consider whether an application to court is swiftly required.
On amendment 40, I agree that it is vital that where authorisation conditions are not met, the proposed arrangements are reconsidered. The new model will include a wide range of people with different circumstances. In some cases, the responsible body should be notified much sooner than after 48 hours. My big concern is that 48 hours risks becoming a target.
The Bill already provides for people to have access to the court to challenge an authorisation, so if, after a review by an AMCP, a decision is made that the conditions are met but the cared-for person or carer still objects, they could take the case to the Court of Protection for challenge. The amendment also requires that where a cared-for person would wish to object but cannot communicate that, that is notified to the responsible body within 48 hours, as likely requiring a referral for challenge at the Court of Protection.
Finally, that is also why it is important that the LPS assessments are of good quality, and that the consultation takes place with the range of people necessary to identify the person’s wishes and feelings, including family and carers. I hope that I have been able to provide the necessary reassurance and that the hon. Member for Worsley and Eccles South is willing to withdraw the amendment.
The Chair
Before I call the shadow Minister, I inform the Committee that the vote on amendment 41—if there is a vote—will be taken next week, although the Committee has agreed to hear representations from the Front-Bench spokespeople on both amendments today. Amendment 40 will be taken shortly.
Caroline Dinenage
I thank the hon. Members who have tabled the amendments on authorisations up to three years. I stress that this was a recommendation of the Law Commission, in particular for people with long-term progressive conditions from which they are unlikely to recover. It was suggested because many people and their families told the Law Commission, throughout its extensive consultation and work, that they felt that starting the process from scratch every year was unnecessary and cumbersome.
I should also stress that the three-year authorisation period starts only after there have been two one-year authorisations, and the periods set are maximums, not minimums or targets. The Bill does not prevent a responsible body from approving an authorisation for the period set out in the amendment if that is appropriate. Furthermore, the responsible body is required to specify a continuous programme of reviews. If a person’s circumstances change significantly, the authorisation will be reviewed and may be found to no longer be valid. That could easily be the case with somebody with dementia, as has already been highlighted. In that way, I believe that the provision actually brings in additional safeguards.
I hope that has provided clarification and I ask hon. Members to withdraw the amendments.
Steve McCabe
My amendments were probing amendments, so I do not wish to push them to a vote. I hope the Minister will reflect again on what I said about monitoring how the detention periods are used, because I fear there is a greater risk here than people may have anticipated. I beg to ask leave to withdraw the amendment.
Barbara Keeley
Can I just make a couple of points? There is near unanimity in the sector that three years for renewals is too long. Even the Alzheimer’s Society is worried about the impact it could have. The power on renewals lies with the managers of independent hospitals or care homes, who are people with a vested interest in renewing the authorisation and keeping the cared-for person as a client. In the amendment, we suggest a 12-month period, which would allow the renewal process to be built on the all the other assessments that cared-for people undergo annually as part of their care programme. That would avoid the process placing an excessive burden on them.
Caroline Dinenage
I am sorry for pushing everybody’s patience, but I need to clarify something the hon. Lady said. I am sure she said it inadvertently. She said that a care home manager can renew an authorisation. That is not correct. Only a responsible body can renew an authorisation and only when the responsible body is satisfied that the conditions continue to be met.
Barbara Keeley
The point remains for independent hospitals. In other amendments, we have tried to move that independent hospitals are not responsible bodies, but the Government did not accept those amendments.
Amendment, by leave, withdrawn.
Amendment proposed: 44, in schedule 1, page 18, line 24, leave out from “less” to end of sub-paragraph (1)(b).—(Barbara Keeley.)
This amendment limits the period of renewal of any authorisation to twelve months.
Question put, That the amendment be made.
Mental Capacity (Amendment) Bill [ Lords ] (Third sitting)
Caroline Dinenage Excerpts(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Alex Norris
I thank the hon. Gentleman for that intervention, because that point is really important. It is perfectly conceivable that the heart might override the head and parents might be so desperate to keep their family together—which we can all relate to—that they might make decisions that are not the best decisions.
Again, however, that would mean entry into a pre-existing legislative space, in the sense that if a parent were acting negligently, we already have a series of protections for a child in that case. So, if we have what we are talking about today in law and then we have a case of the kind that the hon. Gentleman and I are both talking about, that would tip into a negligence situation, and therefore I think the matter would still be unresolvable in the best interests of the child. So I do not think that anything that we are suggesting here in this amendment would disqualify any of that.
I think the amendment is proportionate: it would just give that extra layer of protection. We understand that the cohort that we are talking about are particularly vulnerable; we understand the impact that this change would also have on parents; and we understand that fundamentally parents will want the best for their children. However, we also understand fundamentally that if a bad decision were being made by a parent, there are other sources to make sure that a young person’s needs are being met.
Actually, when we add all that together, I think the amendment would put in significant safeguards and important protections for both young people and their parents, but without creating a situation where we might unknowingly create some risk and perhaps do some harm.
The Minister for Care (Caroline Dinenage)
As ever, it is a great pleasure to serve under your chairmanship, Mr Austin.
I thank Opposition Members for initiating a discussion on this really important matter. Parents, or those with parental responsibility, have a vital role in caring for their children—of course they do—especially when the child lacks mental capacity. We would fully expect that the responsible body took every opportunity to consult parents with regard to their views about arrangements, where it was appropriate to do so as part of the consultation process, and we will make that clear at every stage in the regulations.
However, as the hon. Member for Nottingham North and my hon. Friend the Member for Halesowen and Rowley Regis have said, we have to allow for the very rare occasions on which parents may not have the best interests of their children at heart. That is why we have to be careful about adding this provision to the Bill.
Caroline Dinenage
Absolutely; we completely agree that objections raised by parents about the arrangements should be considered with the utmost care and attention. That is why we have already built those safeguards into the authorisation process. The Bill states that an approved mental capacity professional must conduct the pre-authorisation reviews where it is reasonable to believe that the person objects to the arrangements, and it clarifies that an objection can be raised on a person’s behalf by someone interested in their welfare. For the vast majority of 16 and 17-year-olds, of course, that would include their parents. In those cases we would expect an approved mental capacity professional to consider the objection carefully, meet both the person and their parents, and establish how they feel.
I understand the concerns of the hon. Member for Worsley and Eccles South about how the legislation relates to the Children Act 1989. I can confirm that the advice I have been given is that nothing in the Bill conflicts with that Act, or indeed with any other existing legislation. The hon. Lady may also be aware that the role of parental consent in the deprivation of liberty is currently being considered by the Supreme Court, and of course the Government will closely consider the implications of that judgment when it is handed down. The hon. Member for Stockton North spoke about the consultation on this issue, which of course was part of the Law Commission’s recommendations on the inclusion of 16 and 17-year-olds, and all the aspects of that. They spent three years working on those recommendations and consulted widely with stakeholders, including children’s charities, third-sector organisations, social workers and education providers.
Our view on the amendment is clear. Although almost all parents have their child’s best interests at the heart of everything they do, a tiny minority do not—maybe for good reasons; maybe for reasons of heart over head, as one Member has said today—and those are the children we have to protect. Parents should be at the heart of the process and they must be consulted where appropriate, but the person whose wishes and feelings must be at the dead centre of that process is the individual whose mental capacity is deemed not to be there. I hope that I have been able to provide clarification. On that basis, I ask the hon. Member for Worsley and Eccles South to withdraw the amendment.
Barbara Keeley
As I said earlier, it is welcome that the Bill expands eligibility to 16 and 17-year-olds, because it prevents them from slipping through the gaps that the Bill would otherwise create. However, I persist in the view that there are issues with the way the Bill interacts with the Children Act 1989. The difference is that under section 20 of that Act, parents can object to their child’s placement and can also remove their child from that placement.
I gave an example—the case of Y v. Barking and Dagenham—in which parental objections were overlooked by the responsible body. The key point is that there are many other such cases, as I am sure the Minister knows—she probably hears about them even more often than I do. That was a recent case, but it resulted in significant harm. That young person, still a child, was kept in a care home and deprived of his liberty for two years. He was restrained 199 times. He was assaulted by somebody in the care home, but the social worker only listened to opinions from the care home. The amendment is a safeguard, and it is vital that we put it into the Bill to prevent similar cases being enabled by the Bill. I put it to the Minister that she will be enabling more such cases if she does not include this provision on parental objections.
Caroline Dinenage
Can I just challenge that? Under the existing Mental Capacity Act 2005 there is recourse to the Court of Protection for the parents. Their views have to be taken into consideration, but if they feel in any way, shape or form that the best interests of their child are not being followed, they have that recourse to the law, and the amendment of the Act does not change that.
Barbara Keeley
Indeed, and we will be talking more about the Court of Protection, which is of course an important safeguard. However, parents should not have to have recourse to the court just to express objections and get them listened to. The Court of Protection is a good safeguard, but recourse to the law involves expert advice and all kinds of things. I shall discuss that in relation to a later amendment, but for ordinary people it is a serious matter to take on.
Sometimes the Minister encounters, as I do, parents who are confident enough to challenge things, go to the media and make a stir, but I have just given a strong example where a young person was kept in appalling conditions and was hurt and damaged. Such cases affect a young person’s ability to live in a home or community situation and should be avoided. Two years of detention in an unsuitable home, assault, and being restrained 199 times will surely lead to traumatic stress. That is why I think that the amendment is important, and why we will press it to a vote.
Question put, That the amendment be made.
Barbara Keeley
Yes, I agree that my hon. Friend the Member for Birmingham, Selly Oak should not run down his amendment, because it has provoked a useful debate. The purpose of the amendment is to expand the number of people who receive an AMCP review. It goes further than the amendments that I tabled, but we support it in principle, and I hope the Minister will consider it carefully.
Caroline Dinenage
I thank the honourable—I seem to be test-driving someone else’s teeth today, Mr Austin. I thank the hon. Member for Birmingham, Selly Oak for raising the issue and facilitating an important discussion. I have absolutely no doubt of his dedication and good intentions in the matter. I wish to offer him some reassurance, because the Bill already requires that an approved mental capacity professional carries out the pre-authorisation review where an objection has been raised. In such cases, authorisation cannot be granted unless the pre-approved mental capacity professional is 100% satisfied that the authorisation conditions are met. Amendment 9 would strengthen this provision, as the hon. Member for Worsley and Eccles South mentioned.
Should an approved mental capacity professional not complete the pre-authorisation review, it would be completed by someone who is not involved
“in the day-to-day care of the cared-for person…in providing any treatment to the cared-for person, or…who has a prescribed connection with a care home.”
We believe that this would ensure that the pre-authorisation reviewer is sufficiently independent. We expect that the review would be completed by professionals such as social workers, nurses or physicians. The hon. Member for Birmingham, Selly Oak talked about the use of the term “appropriate experience”, which is set out very clearly in extensive case law.
Steve McCabe
I am grateful to the Minister for that. Why does the wording suggest that the person should “appear” to have the appropriate experience? That does not sound quite as precise to me. Perhaps I am having difficulty comprehending this, but “appears” seems to suggest that there is an element of doubt or vagueness about the situation.
Caroline Dinenage
The hon. Gentleman is questioning aspects of legal terminology, on which I am not a huge expert. I am happy to get back to him on that in due course.
The hon. Gentleman referred to my personal family experience. I shall not share my life story, but my uncle’s situation is only the most recent experience that I have had of the whole system. I have far more than one family experience of this, which is why I am very keen to ensure that the Bill not only offers as much protection as it can, but works effectively and is as streamlined as possible. I have seen the effects of the delays not only in my constituency office, but in my personal life.
We have to be super careful not to denigrate in any way our care home staff, which I have spoken about before. So many of them work with great professional integrity. We have to be super careful about saying that a care home cannot be trusted not to interfere in the way the judgment is made. Clause 21 sets out clearly that the review would have to be completed by somebody who is not involved
“in the day-to-day care of the cared-for person…in providing any treatment to the cared-for person, or…who has a prescribed connection with a care home.”
The amendment would move away from having a targeted system, which allows authorisations to be in place more quickly, and would effectively recreate the current DoLS system. We cannot allow that to happen.
The hon. Gentleman talked about detriment to the interests of the individual. At the moment, the biggest detriment to the interests of 125,000 individuals is that they are sitting on a backlog. Some 48,000 have been sitting there for more than a year, which I am sure is not his intention. I cannot support the amendment and I ask him to withdraw it.
Steve McCabe
I am prepared to concede that the Minister has offered some reassurance—as a doubting Thomas, I would like an awful lot more. To be terribly honest, I am not that convinced. “Appear” is not a technical legal term; it is a description of the professional who would review a cared-for person’s situation for determination. Clause 18 sets out that the
“assessment must be carried out by a person who appears to the relevant person to have appropriate experience and knowledge.”
There is nothing too technical or legal about that. I say as gently as possible that if I were the Minister, I might go back to my officials and have another conversation about that in order to establish exactly why that wording has been chosen.
The Minister knows the Opposition’s view. She knows the view of quite a number of important organisations that are involved in this work day in, day out. It is probably better if I agree to withdraw the amendment now and take it on trust that the Minister will look further at our concerns. I therefore beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Caroline Dinenage
I start by welcoming the fact that we have just heard from the hon. Member for Dewsbury for the first time. It is a great pleasure to hear from her, not least because I can pronounce her constituency far better than Worsley and Eccles South.
I thank hon. Members for tabling the amendments, which I will take in the order in which the hon. Member for Dewsbury presented them. Amendment 32 would place the consideration of fluctuating capacity in the Bill. I agree that the likelihood of capacity to fluctuate should be very carefully assessed under the Mental Capacity Act. Fluctuating capacity should be considered in the authorisation, in the length of the authorisation and in the frequency of reviews. I am very tempted by the amendment, but the problem is, then what? It puts the provision in the Bill, but it does not describe what happens then. To my mind, that opens a whole can of worms.
As my hon. Friend the Member for Halesowen and Rowley Regis said, fluctuating capacity is incredibly complex to diagnose. It is a fact-specific matter that deserves great in-depth and detailed guidance. As such, I do not think it can be considered satisfactorily in one line in the Bill.
Dr Williams
I think there is an acknowledgment that whether or not someone has fluctuating capacity needs to be assessed. What is wrong with putting that in the Bill and then dealing with the complexity and the nuance and the “then what?” in the code of practice?
Caroline Dinenage
As I say, I am tempted by what hon. Members have said, so I will take this point away and look at it, but we have to consider this matter very carefully. We have to consider whether there are appropriate protections already in the Bill. That point relates to what I spoke quite a lot about on Tuesday—we have to be really careful about the unintended consequences of putting too much in the Bill, because if we then leave something out, we may create the sort of legal loopholes that caused so many problems with the previous DoLS legislation.
Helen Whately
The Minister is discussing whether there is already the necessary content in the legislation. Is she referring to the Act that we are amending or the Bill that we are discussing? It might be helpful to clarify.
Caroline Dinenage
Both, really. For example, the Bill lays out how every authorisation has a programme of reviews—if there is a change in the circumstances meaning that authorisation conditions are no longer met, the authorisation is no longer valid, and a review is triggered by reasonable request or significant changes in a person’s circumstances—so it is well within the scope of the Bill to address people with fluctuating capacity and to make sure that there is the necessary capacity.
The other issue that I have to take into consideration is that in a case regarding a patient known as CDM, fluctuating capacity has been considered by the Court of Protection, and that is currently being appealed. We are awaiting that decision, which will give useful guidance on how care workers should assess those with fluctuating capacity. That is something we will want to reflect on.
The hon. Member for Dewsbury spoke about the Law Commission and asked why we have differed a little bit from what it recommended. It is simple. The Law Commission had anticipated an entirely separate scheme for fluctuating capacity, adding a hugely complex dimension to this whole piece of work. Under its recommendations, people with fluctuating capacity would be dealt with in a separate authorisation process not directly linked to the main scheme. That is why there is a bit of confusion there.
There will be an awful lot of detail on this matter in the code of practice, which we consider the most appropriate form of guidance, given the level of detail it will require—this is a very serious matter. That will continue the practice under the current deprivation of liberty safeguards system, where the code of practice addresses fluctuating capacity. As I say, the Bill talks about regular assessment, including a limit of a year in the first instance—that is the maximum. The assessments can be set at very short-frequency time periods in order to deal with somebody who might have fluctuating capacity. Statutory guidance will include cases where a person with fluctuating capacity meets or does not meet the authorisation condition of lacking capacity to consent to arrangements, and will cover whether the authorisation continues in force or ceases to have effect.
Amendments 31 and 33 seek to ensure that medical assessments are completed by a registered medical practitioner. I completely agree that the person who conducts the medical assessment must of course be suitably competent, but the Bill already states that a person carrying out a medical capacity assessment must have “appropriate experience and knowledge”. We expect capacity assessments to be completed by a registered professional such as a nurse, social worker or occupational therapist, and medical assessments must be completed by physicians, such as family GPs and other doctors. However, we have to take into consideration that objective medical evidence does not require a registered doctor in all cases. Case law confirms that it can also include psychologists, for example, as was confirmed by the Law Commission.
In addition, to show the complexity of the issue, registered medical practitioners can include doctors who do not currently have a licence to practise. I know the hon. Member for Stockton South will be aware of that, given his knowledge and profession, but we need to consider carefully the law of unintended consequences when thinking about putting that in the Bill. We could be opening up a whole unwanted can of worms. We need to consider carefully whether we allow that particular group to give medical evidence.
It should also be noted that case law on article 5 of the European convention on human rights already requires that a deprivation of liberty must be based on objective medical expertise. The focus is therefore on competence at every stage rather than on qualifications. We are making it clear that all appropriate medical professionals should be included, which includes the speech and language therapists in the case that the hon. Member for Dewsbury spoke about.
I hope I have provided confirmation that medical and capacity assessments will be completed by somebody with the appropriate experience and knowledge to do the job, and that they will have the competence required to make a reliable assessment. I hope that I have provided Members with the reassurance they need to not press the amendments.
Paula Sherriff
I am grateful the Minister has agreed to have another look at the requests we have made today, but, in summary, medical and capacity assessments are a fundamental part of the proposed LPS system. They play a crucial role in preventing people from being wrongly deprived of their liberty. I have given examples today of where it is particularly important that the medical assessment is carried out by a registered medical practitioner. The European Court of Human Rights has held that deprivation of liberty on the grounds of unsound mind is permissible only on the basis of objective medical evidence. We need a guarantee in the Bill that medical assessments will be carried out by registered medical practitioners, otherwise we cannot ensure the Bill is fully compliant with European law.
I thank my hon. Friends for their contributions, including my hon. Friend the Member for Stockton South, particularly for his valuable medical experience on this issue, and my hon. Friends the Members for Stockton North and for Nottingham North.
The Law Commission wrote at length on the importance of considering fluctuating conditions. The amendment would ensure that an assessment has to be made of whether a person’s capacity will fluctuate. Without our amendment on fluctuating conditions, we might end up in a situation where anyone with fluctuating capacity is subject to different restrictions, depending on how a particular care setting treats them.
Finally, amendment 33 provides for capacity assessors to have the skills appropriate to carry out an assessment. That is especially important for people who have communication issues, as I outlined earlier. The Minister in the House of Lords said that skills will be covered in the code of practice, but we still have not seen the code. We need assurances in the Bill to ensure that people are not deprived of their liberty simply because an assessor could not understand them.
Question put, That the amendment be made.
Mental Capacity (Amendment) Bill [ Lords ] (Second sitting)
Caroline Dinenage Excerpts(5 years, 9 months ago)
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The Chair
Welcome back, everyone. I am sorry about the heat. Can we make sure our phones are turned off? The selection list for the sitting is available in the room. We have grouped amendments on similar issues together for debate, regardless of where they appear in the Bill. As I said this morning, decisions on amendments do not take place in the order in which they are debated, but in the order in which they appear on the amendment paper, which lists amendments according to which part of the Bill they affect.
The Minister for Care (Caroline Dinenage)
It is a great pleasure to respond on the amendment, after our short break, in this delightfully warm and cosy room. I will start by addressing some of the issues raised by hon. Members.
The Opposition spokeswoman, the hon. Member for Worsley and Eccles South, spoke powerfully about concerns to do with independent hospitals and, more particularly, about the case of Bethany. We are absolutely clear that it is completely unacceptable to be subject to prolonged seclusion in the way that the hon. Lady mentioned. We have commissioned an independent review under the NHS serious incident review framework. That does not necessarily have to do with the Bill, but I felt it important to set that out for clarity. In addition, the Secretary of State commissioned a section 48 Care Quality Commission review of restrictive practices, including seclusion and long-term segregation, to understand the extent to which these things happen. NHS England is working very urgently to support Bethany into a community placement. Her father and Mencap have issued a pre-action protocol to challenge the current arrangements.
More broadly, with regard to the Transforming Care agenda, detentions of people with learning disabilities and/or autism in mental health hospitals are completely inappropriate and must end. We will achieve a 35% reduction in that at the earliest opportunity.
Barbara Keeley (Worsley and Eccles South) (Lab)
Can the Minister say why the NHS long-term plan appears to go backwards on that? It is going from 25 people with a learning disability or autism in an in-patient unit per million adults to 30. That does not sound like progress; that sounds like removing a priority.
Caroline Dinenage
I understand why the hon. Lady says that, but looking at it in context, we committed to reducing the numbers by between 35% and 50% by the spring. There is no dilution of that commitment, but we have recognised that ensuring that community alternatives are robust is absolutely fundamental, because as she is well aware, we have seen people taken out of hospital settings and put into the community, but ending up back in hospital because community facilities were not sufficiently robust. That is why, as part of the NHS long-term plan, both autism and learning disability are highlighted as one of the four clinical priorities.
The plan commits to building in full the right support, to continuing that support, and to reducing in-patient numbers by 50% no later than 2023-24. The key is an enduring commitment—not knee-jerk reactions to an awful circumstance such as that mentioned by the hon. Lady—to address the issue for vulnerable people in the long-term. We are clear that in assessment and treatment units, the sorts of restraints we are talking about should be very much a last resort. We are committed to supporting those with learning disabilities and autism to live well in the community, and to putting an end to inappropriate detentions.
The amendment seeks to make clinical commissioning groups in England and local health boards in Wales the responsible bodies for arrangements in cases where they commission the care of people accommodated in independent hospitals. I am sure the whole Committee agrees—I know the hon. Lady does—that it is vital to provide protection to vulnerable people in independent hospitals. We have all seen how the misuse of authority in such settings can lead to the kind of tragic and unacceptable consequences that she highlighted.
The Bill demonstrates the Government’s commitment to ensuring that vulnerable people receive protection. The Government have further strengthened those protections with amendment 9, which requires an approved mental capacity professional to conduct the pre-authorisation review if the cared-for person receives care or treatment mainly in an independent hospital. By requiring authorisations in independent hospitals to be considered by an AMCP, regardless of whether there is any objection, we add a further level of security. The AMCP will meet with the person concerned, complete a consultation and review assessments to decide whether the authorisation conditions are met.
I further reassure Members that the AMCP will act independently of the responsible body. I know that the hon. Lady has concerns about that. The AMCP will be approved by a local authority, act as an independent decision maker and be accountable to their professional body. Those acting as AMCPs will be experienced professionals who have successfully completed approved post-qualification specialist training, which will require them to demonstrate the capability to ensure and promote the person’s best interests and protect their rights.
Barbara Keeley
The point I was making very strongly, and which I ask the Minister to consider again, is that it is easy to see a situation in which the relationship between an independent hospital and a preferred list of AMCPs could get very cosy, with the AMCPs working only in those hospitals and the work starting to become a large part of their livelihoods. The Minister cannot reassure me that that would not happen. The responsible body is entirely responsible for the whole process of selecting the AMCP and making the arrangements, and it can just plump for the same people time and again, and develop a cosy relationship. That is a real fear.
Caroline Dinenage
The hon. Lady has legitimate concerns. Making the responsible body the independent hospital was a recommendation in the Law Commission report. Amendment 19 changes the responsible body in cases where a CCG or a local health board is responsible for commissioning the care of people for the assessment or treatment of a mental disorder.
Steve McCabe (Birmingham, Selly Oak) (Lab)
I was reflecting on the comment made by my hon. Friend the Member for Worsley and Eccles South about the risk of the relationship being too close, cosy or convenient. Has the Minister considered giving the CQC a wider brief to investigate what happens between the various parties over a range of authorisation decisions in any given period? If a relationship that could be regarded as unhealthy was developing, that would presumably be an easy way of highlighting that.
Caroline Dinenage
I thank the hon. Gentleman for his suggestion; we will definitely take it into consideration. I fully understand where the concerns about independent hospitals acting as a responsible body come from. We must be careful not to stigmatise all independent hospitals. Every time we have such debates, we hear horror stories, but then I always get emails from parents who feel that their children’s lives have been saved by such hospitals. We must make preparations to care for those who are most vulnerable and at risk.
Alex Cunningham (Stockton North) (Lab)
Following up on what my hon. Friend the Member for Birmingham, Selly Oak, said, does the Minister agree that if she took up the idea of the CQC having such a role, we would need something in the Bill to ensure that if it identified a cosy or questionable relationship, someone could do something about that? In CQC reports now, homes are identified as totally inadequate, but no one can do anything about it, because the CQC will take a decision only at the very, very last minute, by which time it is matter of closure.
Caroline Dinenage
The hon. Gentleman makes a good point; we have to look at that interaction. The AMCP will be a professional social worker, will be accountable to a professional body, and will have the high level of skills and training to enable them to carry out their job with great professional integrity. However, the reasonable concerns that have been raised by hon. Members need to be taken into consideration, and I find the suggestion that they make in this amendment very interesting; I have a good deal of sympathy for it, and am certainly willing to reflect further on the amendment. The problem is that its exact wording does not work. We need to ensure that any changes work for the whole system. We also know that there are examples of NHS England commissioning the care from an independent hospital; it is not just CCGs. With that in mind, I commit to considering this amendment further. I hope that answer enables hon. Members to withdraw it.
Barbara Keeley
Our concern is that the Bill enshrines a fundamental conflict of interest by allowing independent hospitals to be the responsible body for deprivation of liberty in their own hospitals. That is what is wrong: they have that power in their own hospitals. They are not independent of the people who are in those hospitals, and the important thing is that, as I have described, these are organisations with a vested interest in putting people in their hospitals. There was not much debate about this issue in the House of Lords, because the Lords concentrated on the role of care home managers, but the point was made that the vested interests of independent hospitals are different from those of NHS hospitals.
NHS hospitals are not perfect. We have had awful issues in them; Connor Sparrowhawk’s death happened in an NHS hospital, as did other deaths. As the Minister will know, when somebody is admitted to an NHS hospital, the pressure on the system is to get them discharged. That is not the case here. The Minister knows from the case of Bethany, which I cited, and from other cases that the vested interest of independent hospitals is to keep people there. Maybe we should be looking at fee levels separately, because that is part of that vested interest, but there is a vested interest, and I would not be content to allow the situation that this Bill permits. Independent hospitals have a very substantial vested interest; the Minister heard the figures that I gave. Those are serious amounts of money, and a serious waste—it is not even a good use of money in the NHS.
Independent hospitals often receive hundreds of millions of pounds in public funding every year. They are not all bad, I am sure, but programmes such as the BBC’s “File on 4” and journalists such as Ian Birrell have repeatedly revealed cases in which they are bad and things are going wrong, the most recent being the Priory group and the death of young Amy. That hospital was making £720 million out of the NHS every year. These hospitals receive public funding, and they are not up to the job that they are doing. I ask the Minister for Care to accept that these independent hospitals are, in too many cases—we do not know what proportion—deeply flawed. The company I just mentioned had been criticised by the coroner 20 times since 2012—Southern Health had a lot to answer for—so we are not talking about one or two deaths.
As I mentioned, 40 people died in assessment and treatment units between 2015 and 2018. There are numerous cases involving the bodies that the Bill designates as responsible for organising this whole process, and that is what is wrong. The Government amendment, which will involve AMCPs in these cases, is not sufficient. It is clear to me that the power of deprivation of liberty should never lie in the hands of the organisations I have talked about, which are making such profits and have such vested interests.
The Minister is clear that she wants to address the appalling abuse that is sometimes meted out in independent hospitals, and I believe she is sincere about that. However, without this amendment, there is a danger that the Bill will enable more of that type of case, because it is clear to all parties that more cases will be dealt with under this new process than under the Mental Health Act 1983—and the Act has more safeguards.
In my view, the wrong signal is being sent at this time of heightened concerns about these hospitals. If the Minister is concerned about this issue, she should be prepared to accept the amendment. We will press it to a Division; it is important that we do so. If there is anything we can do to improve the amendment before Report, we will do it, but we are going to press it to a vote today.
Question put, That the amendment be made.
Caroline Dinenage
I beg to move amendment 3, in schedule 1, page 8, line 19, leave out from “mainly” to “that” in line 21 and insert
“through—
(i) the provision of NHS continuing healthcare under arrangements made by a clinical commissioning group, or
(ii) in Wales, the provision of an equivalent to NHS continuing healthcare under arrangements made by a Local Health Board,”.
“NHS continuing healthcare” is defined, for England, by paragraph 8 of new Schedule AA1. This amendment provides that in the case of arrangements carried out through the equivalent of NHS continuing healthcare, in Wales, the responsible body is the Local Heath Board making the arrangements.
This is just a technical amendment that will help to ensure that the new liberty protection safeguard system, which I am sure we all agree is a really important part of this process, works well in Wales. There is no statutory definition of “NHS continuing healthcare” that applies to Wales. The amendment clarifies that, while in England the CCG will be the responsible body when care arrangements are mainly done through continuing healthcare, in Wales, local health boards will act as responsible bodies, if the arrangements are mainly carried out through the provision of an equivalent to NHS continuing healthcare, as defined in English legislation.
In the new system, the responsible body will have the important role of arranging pre-authorisation review, in which a person independent of delivering the day-to-day care or treatment will review the arrangements before authorising them. This is a vital safeguard in a system that will ensure that arrangements receive proper scrutiny.
I put on the record my thanks to colleagues in the Welsh Government who have worked with us to ensure that the drafting of this amendment will allow the system to work in Wales as the Law Commission recommended and as the Government intend. I ask the Committee to support the amendment.
Barbara Keeley
We welcome this amendment, which gives clarity on arrangements in Wales, so that there is uniformity with England through the equivalent to continuing healthcare arrangements.
Amendment 3 agreed to.
Barbara Keeley
I thank my hon. Friend for introducing his amendment. Through the progress of the Bill, we are discussing the circumstances where it is appropriate to deprive someone of their liberty. That should never be done lightly. Nobody should be deprived of their liberty unless it is in their best interests. That point is really worth making and it should go without saying, but the Bill does not give an assurance that this will always be the case.
I acknowledge that other areas of the Mental Capacity Act 2005 discuss this interest, but it is such a vital point that it bears being made again. We cannot leave practitioners in any doubt that best interest must be foremost in their mind when they are making decisions. Best interest, of course, should not be entirely decided by practitioners. Even where people lack capacity, we must do everything we can to take their wishes into account. Again, I hope this is an obvious point, but it is not in the Bill.
Part of the difficulty of having such a short Bill is that many words should be included to make the concept clear and they are not there. I am sure the Government do not wish to see people deprived of their liberty when it is not in their best interest. I am absolutely sure about that. I look forward to hearing from the Minister how the Government will ensure that that is the case.
The amendment also makes clear that deprivation of liberty should be allowed only if there are no less restrictive alternatives—that is a key point. Nobody should be deprived of their liberty because it is easier, cheaper or requires less paperwork, or, indeed, because it is more expensive and makes a profit for firms. If there is a way to keep somebody safe that does not deprive them of their liberty, we should always seek to pursue that.
I have touched on the fact that thousands of people with autism and learning difficulties are currently held in assessment and treatment units. A number of people in mental health hospitals, independent hospitals and others are being held under the Mental Capacity Act. I gave the numbers of applications that are made under the deprivation of liberty safeguards earlier. We know that they are kept in isolation and denied freedom. I have no doubt that in some cases they were exhibiting challenging behaviour, and that became the path of least resistance. That is why it is very dangerous. If the amendment were accepted, hospitals and care homes would have to consider whether there were less restrictive ways to keep someone safe. Those other less restrictive ways may not be the easiest to organise, but that is not a good reason to deprive somebody of their liberty.
As the Minister knows, these topics were all raised in the House of Lords. She may say that everything will be laid out in the code of practice, but we do not have that in front of us and, as I made clear earlier, it will not carry the same weight as statute. The Bill is relatively short and it can bear additions; indeed, it is so brief that it needs them. Putting these provisions in the Bill would make intentions clear to practitioners. The deprivation of liberty should be a last resort and, of course, should never happen if it runs against a person’s best interest. The intention of the amendment by my hon. Friend the Member for Birmingham, Selly Oak is noble and I hope the Government will take it on board.
Caroline Dinenage
I thank the hon. Member for Birmingham, Selly Oak for highlighting the issue, about which I always listen to what he has to say. Of course, he is quite brilliant in his own special way, and he has taken a lot of time to engage with me and to do his homework on the subject, which is close to his heart. I am grateful for that.
I share the hon. Gentleman’s sentiment. As the hon. Member for Worsley and Eccles South said, we are talking about depriving somebody of their liberty, which is our most fundamental human right, so we cannot do it quickly, based on cost, or based on the current system, which Simon Wessely described as a “perfunctory and box-ticking” exercise. It has to be done with people’s best interests, and their wishes and feelings, at heart. Excellent care and the interests of the cared-for person have to be at the heart of everything we do.
In responding to the points the hon. Gentleman made in moving the amendment, it is worth reminding hon. Members that the Bill will not replace the current Mental Capacity Act 2005, but amend it. Best interest decision making remains fundamental to the existing Act, within which the liberty protection safeguards will sit. Before a liberty protection safeguards authorisation is considered, it will need to be decided that the arrangements are in a person’s best interests. That is included in section 4 of the 2005 Act. It must then be demonstrated that arrangements to enable that care and treatment are necessary and proportionate.
I understand the hon. Gentleman’s concern about the words “necessary” and “proportionate”, but the word “proportionate” was chosen because it has a specific meaning in human rights case law. It means that assessors must consider less restrictive options, and cannot base their decisions purely on cost or any other box-ticking exercise. The word “necessary” is used in conjunction with the word “proportionate” in the Bill, which means that the arrangements must benefit the person.
That part of the liberty protection safeguards takes place at the second stage test. I agree with hon. Members that it is fundamental for people deciding whether to authorise a deprivation of liberty to consider whether less restrictive options are available. A necessary and proportionate assessment would also include the consideration of less restrictive practices. Considering less restrictive alternatives is already an important aspect of the wider 2005 Act. In fact, the fifth principle of that Act specifies that decision makers have to have regard to less restrictive options. Nothing in the Bill changes that. Indeed, we will ensure that that is a core part of the consideration of what is necessary and proportionate.
On the matter of wishes and feelings, which the hon. Gentleman talked about so powerfully, it should be noted that they are already part of the first stage of best-interest decision-making under section 4 of the 2005 Act. I can confirm that the Bill does not change that. Wishes and feelings will form a key element of the necessary and proportionate test. During the Bill’s passage in the other place, we tabled an amendment that makes it explicit that regard must be given to a person’s wishes and feelings in relation to arrangements. We tabled a second amendment that explicitly requires the cared-for person to be consulted under the consultation duty. Those amendments were made purely because we agree that the person’s wishes and feelings should be at the heart of the liberty protection safeguards process.
I hope that that provides some clarification and reassurance for the hon. Gentleman. I am certainly not in the business of keeping the Bill as small and tight as possible just for the sake of it; if there are amendments that I feel will materially add to the Bill, I am more than happy to take them on. In this case, I hope that the hon. Gentleman will withdraw the amendment.
Steve McCabe
I was not planning to press it, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Caroline Dinenage
I beg to move amendment 4, in schedule 1, page 11, line 19, leave out from beginning to end of line 7 on page 12 and insert—
“13 (1) As soon as practicable after authorising arrangements, the responsible body must ensure that a copy of the authorisation record is given to—
(a) the cared-for person,
(b) any independent mental capacity advocate appointed under paragraph 39 to represent and support the cared-for person,
(c) any person within paragraph 39(5) in respect of the cared-for person (the “appropriate person”), and
(d) any independent mental capacity advocate appointed under paragraph 40 to support the appropriate person.
(2) As soon as practicable after authorising arrangements, the responsible body must take such steps as are practicable to ensure that the cared-for person and any other person listed in sub-paragraph (1) understands—
(a) the effect of the authorisation,
(b) the right to make an application to the court to exercise its jurisdiction under section 21ZA,
(c) the programme of regular reviews specified by the responsible body in accordance with paragraph 35(2),
(d) the right to request a review under paragraph 35(3)(b),
(e) the circumstances in which a referral will be made to an Approved Mental Capacity Professional under paragraph 35(4),
(f) the circumstances in which an independent mental capacity advocate should be appointed under paragraph 39, and
(g) the effect of there being an appropriate person in relation to the cared-for person.”
This amendment substitutes a new paragraph 13 of the new Schedule AA1 to require that, as soon as practicable after arrangements are authorised, the responsible body must provide to the cared-for person and any other person listed in paragraph 13(1) a copy of the authorisation record and take steps to ensure that those people understand the matters described in paragraph 13(2).
This amendment relates to the responsible body’s duty to provide information to the person receiving protections, an appropriate person, or an independent mental capacity advocate. When depriving someone of their liberty, it is crucial that they are provided with all the information necessary for them to exercise their rights. Arrangements under liberty protection safeguards will not simply be something that is done to a person, but a process they are part of—I hope that I have already explained that quite plainly in answers to previous amendments.
The duty to provide information derives from article 5 of the European convention on human rights, which is brought into effect in UK legislation through the Human Rights Act 1998. The Law Commission did not outline this duty in its draft Bill. However, views expressed in the other place have made it clear that this Bill should reflect the right to information explicitly on its face. This amendment has therefore been tabled to provide clarity on exactly what is required.
The amendment requires the responsible body to provide a copy of the authorisation record to the person under protection, as well as any appropriate person or independent mental capacity advocate, or IMCA, as soon as practicable after the authorisation is granted. It also specifies that the responsible body must, as soon as practicable after authorisation, ensure among other matters that the person understands the effect of the authorisation and their right to challenge it in a Court of Protection.
The amendment replaces the amendment inserted in the other place on this matter, which was unfortunately not workable within the existing Mental Capacity Act. The Lords amendment set out a range of information that should be shared with the person, but it did not provide clarity on where this information should be shared, which could lead to practical difficulties for practitioners and create exactly the sort of legal loopholes we are trying to avoid.
The Government amendment clarifies exactly what information needs to be provided and to whom, as well as specifying a clear point at which information should be shared. It will impose a legal duty on responsible bodies, so it must be clear where these duties arise. Information can, of course, be shared prior to this point, and in most cases we would expect and encourage this. We will set out more details of this in the code of practice and hopefully make that as explicit as possible.
The amendment is explicit about the point at which the information about the authorisation must be shared, and I hope the Committee will support it.
Barbara Keeley
Opposition Members cannot support Government amendment 4. The evidence provided to this Committee by Lucy Series suggests:
“Article 5(2) ECHR requires information to be provided to the person—or others capable of representing them—about the legal and factual basis for the deprivation of liberty and rights of appeal, in a language that they understand, so that they can exercise rights of appeal.
Both the DoLS and the MHA”—
the Mental Health Act—
“set out in statute who is responsible for providing this information to the person and any others representing or supporting them. It places explicit duties on the detaining authorities to take all practicable steps to help them to understand it. Surprisingly, this Bill did not contain rights to information when first read in the House of Lords; section 13 on ‘rights to information’ was inserted into the Bill after…a vote in the Lords.”
The Government’s new amendment would restore the fundamental imbalance in proposals that were removed by the House of Lords in the current paragraph 13 in regards to rights of information. Paragraph 13 established that the individual would receive information about their rights in a meaningful way in advance of the authorisation. That was a critical addition. Being giving information before authorisation of a deprivation of liberty is a fundamental human right.
Where a person would not be able to understand the information, it must be given to others capable of representing their interests. That is also a crucial condition, for several reasons, which were explained in the debate in the House of Lords. First, receiving information is critical because, in many cases, having information given to cared-for people and their families at the outset can clear up misunderstandings that can unsettle the cared-for person. Most people will not know what the liberty protection safeguards are, let alone have a good understanding of how they work. Knowing what the liberty protection safeguards are, the reasons for a cared-for person’s detention, and what recourse they have to change the situation in which they find themselves are critical parts of the entitlement to appeal. Knowing that the cared-for person can review this decision reduces anxiety, even if they do not wish to exercise that right of challenge at that point.
Alex Cunningham
Some people say that all I need now is to be a lawyer and an accountant, and then I will have done all of the bottom four professions when it comes to public confidence and respect. However, I enjoyed my time as a journalist, my time in the gas industry and even my time running my own business. I have always believed that more information is better than less, because people can then take what they want from it. They can understand what they want and they can challenge it.
However, the information also has to be timely and easily understood. In moving the amendment, the Government actually want people to have less information, and for it to be less timely. The Minister is shaking her head. Maybe even if there is the same amount of information, it will not come at the right time, and people will not be able to use it to understand, to decide a way a forward and to advocate for the person in care. In the light of what I just said, which the Minister refuted by shaking her head, what measures will the Government actually take to ensure that the information provided to the person being cared for and to appropriate persons is actually understandable, and in clear and simple language?
Many organisations and individuals submitted evidence to us that the consultation process for the Bill had been complicated and excluded people with learning difficulties. The very fact that we did not have an evidence session probably bears that out. Are there are any guarantees that those with learning difficulties will actually be able to understand the copy of the authorisation record and other materials and what they mean?
A person with a specific speech and language problem may be able to make some decisions if information is presented to them in a way that they understand. Has the Minister made any assessment of the use of speech and language therapists to communicate the authorisation records and subsequent information relevant to a person’s deprivation of liberty?
We have seen evidence from family members of those being cared for, and I have been contacted by constituents on this. They have told me that they are finding out about the authorisation of deprivation after the record has been issued, and that they are concerned that the cared-for person would not have been effectively communicated with. Does the Minister agree that speech and language therapists should be involved prior to the authorisation, to fully understand the circumstances?
Alex Cunningham
The Minister is nodding her head, which is very good news. She has given me that reassurance, so perhaps I do not need to continue with this particular line of questioning.
We should be very careful that a communication issue is not missed prior to an authorisation being recorded. Just because somebody cannot communicate in the same way that we can does not mean that they cannot communicate.
Alex Cunningham
Again, the Minister nods her head, but that opportunity must be long before a final decision on the deprivation of liberty. We must take every possible precaution to ensure that those with an interest in the wellbeing and care of the cared-for person are informed at every possible stage—before the point at which the Minister proposes that should happen. She must be clear that timely information must be given, and she must accept that to remove paragraph 13 of schedule 1 would weaken the rights of the vulnerable person, their family and any advocate. We need reassurances on those matters now, or on Report.
Caroline Dinenage
I completely agree that information sharing is vital in the system, and that it should be done at the earliest possible point. Liberty protection safeguards are not something that should simply happen to an individual, but something they need to be involved in from the outset. The Bill specifies that information must be shared after an authorisation is granted, purely because that is a legally cogent point. It includes having a watertight trigger point for information sharing from a legal perspective, but it does not prevent information from being provided beforehand.
Unlike the amendment tabled in the other place to existing paragraph 13, this amendment provides a clear trigger point to specify when information about the authorisation must be provided. We are clear that that point is absolutely the latest point at which information should be shared. In the vast majority of circumstances, that should be done much earlier, or at the very beginning of the process. The amendment does not prevent that from happening. The code of practice will provide detail regarding when it is appropriate to do that, and I have already made a commitment to the Committee to set out what will appear in the code of practice—
Barbara Keeley
The Minister cites legal points, but I read out earlier that article 5 of the European convention on human rights requires that a person be given information about the legal and factual basis for their deprivation of liberty so that they can exercise their right of appeal. Telling them after the authorisation process does not meet that requirement. I cited a case in which only on understanding their right to appeal was the person able to exercise that right, which brought about a less restrictive care situation. Apart from mentioning the code of practice again, the Minister has not explained why the focus has shifted from before an authorisation to afterwards. That cannot be right.
Caroline Dinenage
I hope that what I will say gives the hon. Lady more clarity. Amendment 4 follows the current approach in the deprivation of liberty safeguards system—the DoLS system—which requires information to be provided as soon as practicable after authorisation is granted. We agree that from a legal perspective, that is a clear point at which we will always be able to carry out that duty. Amendment 4 removes the requirement to provide information about the process, which was in existing paragraph 13. This is a matter of drafting, but the paragraph did not list the significant parts of the process about which a person must be informed.
The Bill ensures that the person has the right to representation and support from either an advocate or an AMCP. If there is no appropriate person and the person does not have capacity, there is an effective presumption that an independent mental capacity advocate—an IMCA—will be appointed. Responsible bodies will ensure that the person has representation and support. The Government amendment includes steps to ensure that the cared-for person and the IMCA understand the authorisation and the right both to review and to access court.
Steve McCabe
Can the Minister share exactly what the draft code of practice says on the matter?
Caroline Dinenage
No, I do not have that to hand, but I have explicitly said that we will set out what the draft code of practice will include. I hope that that will give the hon. Gentleman more reassurance.
Caroline Dinenage
We will do that during Committee. The hon. Member for Stockton North spoke about the involvement of expertise, particularly in assessing those with speech and language difficulties. That is something that I am really interested in. It was also raised on Second Reading by the hon. Member for Swansea West (Geraint Davies), whom I met yesterday to discuss the matter. I am aware that sometimes a speech and language difficulty can be misinterpreted as somebody lacking mental capacity.
Speech and language therapists already play an important role. We are putting an individual’s voice at the heart of the process, meaning that speech and language therapists will play an even greater role. We agree that their skills are essential and that all relevant health care professionals will recognise the role of speech and language professionals. That will be part of the training for this new role.
Barbara Keeley
There will be confusion about this, because the Minister is going back over what she has already said. Can she explain to me and my hon. Friends why the Government amendment would remove the following important steps:
“Prior to the authorisation process, the cared-for person must be fully informed of their rights…The responsible body must take such steps as are practicable to ensure that the cared-for person and any appropriate person…representing and supporting them understand the possible outcome of the assessments, the reasons why the cared-for person may be deprived of their liberty and their rights—”?
I do not understand why the Minister thinks it is a good idea to table an amendment that starts:
“As soon as practicable after authorising arrangements, the responsible body must ensure that a copy of the authorisation record is given”.
We will lose the vital early stage of explaining to the person or their advocate what is going to happen, and explaining the person’s rights. Existing paragraph 13 has widespread support. I have explained to the Minister that I think the Government have done badly in talking to stakeholders. To remove a provision that has widespread support—I have quoted some of the organisations that support it—is really rather shocking. For the Government to remove the requirement to provide explanations and fully inform a cared-for person of their rights seems to me to be a contravention of human rights and a serious matter. The Minister has not explained why the Government are doing this.
Caroline Dinenage
Let me explain why in two short sentences. In delivering a better and more effective system, we must ensure it is legally cogent. That includes having a watertight trigger point for information sharing.
Caroline Dinenage
I am very happy to discuss the matter further with hon. Members, but the issue is that there is not a watertight trigger point. When we say that information must be delivered at the earliest opportunity, it is very difficult to codify and define that in law.
Steve McCabe
I do not want to get bogged down in legal technicalities, but why is it necessary for the legal trigger point to be after the authorisation has been made? Why could it not be at the start of the authorisation process? That could also be a defined legal trigger point, surely.
Caroline Dinenage
I am happy to commit to going away and looking at the matter again. I understand that it worries hon. Members; if I am honest, it worries me, too. As I understand it, the reason is that the starting point is different, depending on the individual circumstances.
That is the problem we have had with the current Bill, from beginning to end. We are looking to create a Bill that satisfies the needs of somebody like my elderly uncle who was living with dementia, as well as the needs of a 16 or 17-year-old who was born with a learning disability. We want the same Bill to cover the needs of a 30-year-old who has been involved in a road traffic accident and has an acquired brain injury.
It is very difficult to ensure that we cover the legal bases and offer the protection needed by every one of those individuals, with their own personal support requirements. That is why we have to pay close attention to what is legally cogent, and why it is important to ensure that the Bill contains a watertight trigger point.
Barbara Keeley
I read out the evidence given by Lucy Series to this Committee. I am not a lawyer. We are talking about legal cogency, and I think that that is a difficulty, but the European convention on human rights requires information to be provided to the person or the people representing them about the legal and factual basis for the deprivation of liberty and about their rights of appeal in a language that they understand so that they can exercise rights of appeal. Where is that in Government amendment 4? It does not appear to me to be anywhere. The amendment starts with “after authorising arrangements”. The Minister talks about cogent points, but she has not given me any cogent information about why she is shifting the point at which people are entitled to information to after the authorising of arrangements. That is not right. I have read out the evidence and advice given to the Committee by a very qualified lawyer, which is that the European convention on human rights insists that the information has to be given at the start, not halfway through the process.
Caroline Dinenage
I will say in response only that amendment 4 follows the approach taken in the current DoLS system.
Question put, That the amendment be made.
Alex Cunningham
Indeed that is the case. There are probably thousands of people in the system at this time who are illegally detained, or whose freedom has been denied them; we can do without additional problems of the sort that my hon. Friend describes. I talked about the fall-back position: if there is nobody in the care home who can do this work, and it does fall back on the local authorities or some other organisation, they are already dealing with very strained budgets and an overload of work, so how do we fill that gap? Again, I ask the Minister how she will ensure that these organisations have the resources that they need, even if the duplication that she was describing earlier in the day is sorted out and the systems run far more effectively. I am aware that if our amendment is successful and these duties do not sit with care home managers, the bill for work by these other organisations will be all the greater. Again, how on earth will that be funded?
Of course, the system can work. I cite the case of the north-east of England, where the DoLS system probably works better than in other parts of the country—albeit that local authorities have chosen to take the political decision I talked about earlier. However, that is letting other services down because they feel that they must protect the interests of people whose liberty is at risk. I will return to my point about the north-east a little bit later, as I want to go back to the topic of care home managers. Does not the Minister agree that most of them should be working to improve or maintain their CQC ratings and all that comes with that, rather than carrying out those assessments of individuals in their care?
I intervened on the shadow Minister to talk about charges. Some care homes may even charge a self-funder an administration fee for the assessments. Who says that is fair, right, or proper—Members can use whatever word they like? Who on earth governs that, and who is protecting the person who is having to shell out the cash? What is to stop a care home manager from unnecessarily charging fees for “administration purposes”? Who is there to say otherwise? I said this morning that we need to protect the public purse and the purses of those who live in these establishments; this is another example of that. One of the pieces of written evidence we have received comes from a collective of organisations, including the Registered Nursing Home Association and Care England. It says:
“There is no reason for singling out care home managers for extra responsibility, over their colleagues in other care settings, except for to transfer significant costs from struggling local authorities to struggling care homes. The effect will inevitably be that some providers who continue in the sector…pass on the costs to the affected residents.”
My hon. Friend the Member for Nottingham North discussed that.
So there we are: care home associations do not want the responsibility of assessments; the persons involved will not want the care home to have that responsibility; and we Labour Members, who probably matter less than them, do not want care homes to have responsibility for assessments, so why are the Government continuing to push this? Any opportunity a care home manager has to improve their organisation’s financial outlook is bound to be considered. That is all the more reason why it should not be their job to carry out assessments for a person when they have a vested interest—and a financial interest, at that. The Alzheimer’s Society also has a concern; it argues that we urgently need clarification of the role of care home managers, and how to protect the independence of the person being cared for. That is currently dealt with by best-interests assessors. My council of Stockton-on-Tees has raised concerns with me about the fact that the decision as to the necessity of assessment still appears to rest with care homes.
I thank Angela Connor and Natalie Shaw from the Stockton DoLS team for taking the time to talk to me about their work and how it will be affected by the Bill. They provided me with some follow-up notes, for which I am very grateful, because in one hour they built my understanding more than all the reading that I had tried to do. Like others, they posed many questions. Where is the quality assurance? Who is going to check that what they are doing is both correct and within the law? Despite the obvious conflict of interest, local authorities rely on assessments made by a care home manager, including allowing care home managers to carry out a consultation to determine a cared-for person’s wishes.
Between 2013 and 2018, there was a 5,000% increase in the number of applications under the Mental Capacity Act that my local authority received. Stockton-on-Tees Borough Council created the DoLS team in 2014 to manage the applications. As I said earlier, we are quite lucky in the north-east because there has been a regional arrangement in place that means that mental health assessors are paid a fixed fee of £175 for three assessments—buy two, get one free—and best-interests assessors are paid £175, again for three assessments.
As I mentioned earlier, the number of completions of DoLS in the north-east was higher than in the rest of the regions, and applications are taking a shorter time to process. Dedicated DoLS teams have been established across the region. Independent assessors are used, and that raises awareness with managing authorities. Yet the Alzheimer’s Society tells me that the Bill would remove the post of best-interests assessor; part of their responsibility will shift to care home managers, who I think are ill equipped to perform the role. The DoLS team in Stockton tell me that they believe that the Government’s proposals will lead to a diluted assessment.
I agree with what the Minister said this morning about ending the duplication of assessments, cutting out waste and targeting limited resources where they are most needed, but that must not be done by diluting the assessment process. I am interested to hear what the Minister has to say to address the concerns of so many stakeholders in this area.
The Government’s proposals, under which care home managers, who are held responsible for providing care, are also responsible for assessment, are not in the best interests of the person affected. I do not believe that the Government intended to create this clear conflict of interest. If care managers are not to be removed from the process entirely, I hope the Minister will outline in detail exactly how this serious situation is to be avoided. We may have to rely on information provided later. A code of practice is all very well, but we need the detail now. If we do not have the assurances we require, how on earth can we support the Bill?
Caroline Dinenage
I thank hon. Members for raising important issues today. We have heard what amendments 20 to 29 would do. It is worth setting out that care homes already have an important role in the DoLS system. They are responsible for identifying where a person lacks capacity, and for working out where restrictions might be needed as part of care. They are responsible for making an application to a local authority. Because of the current backlog, they are responsible for chasing that deprivation of liberty safeguard, which gives them the legal protection that they need when they are keeping somebody in their care.
It is important that care home managers continue to play a central role in the liberty protection safeguard system, but we completely recognise that it would be a conflict of interest to have care home managers completing assessments. I am not sure whether the hon. Member for Stockton North was a bit confused, or whether I misinterpreted what he said, but there is no plan for care home managers to do the assessments; they are just gathering the information required. We amended the Bill in the other place to reflect that.
Barbara Keeley
I have picked up that it was generally thought that Ministers, and possibly the Bill team, have a rather honeyed view of the relationship between local authorities and care home managers, and of how much care home managers get involved in care planning. She has just illustrated that point.
These are the points that the Minister seems to be ignoring and needs to answer. First, 11% of care homes have no manager; there is an 11% vacancy rate. Secondly, one in 20 care homes requires improvement or is inadequate. She has talked about care home managers being involved in care planning, but that does not happen in the 11% of care homes where there is nobody there to do it, or in inadequate homes. In the care home that collapsed recently in Tameside, the staff effectively took over almost everything. There are many care homes—thousands, according to my hon. Friend the Member for Stockton North—possibly dealing with 70,000 people, that are not in an acceptable situation. There appears to be no recognition in the Bill, or in anything around it, that that is the case with our care sector.
Caroline Dinenage
I understand the hon. Lady’s concerns, but she is not 100% correct. Where there are concerns about the care home, it is possible for the local authority, which would normally be the responsible body, to carry out these functions. Care home managers should be able to arrange assessments and identify and provide valid assessments previously completed by the responsible body. Let me say why. This goes to the crux of why care homes and the system face this overwhelming bureaucracy today.
Let us take a straightforward case, such as that of my uncle, whom I spoke about earlier. He was in a care home—he is sadly no longer with us—and he was very happy. We were very happy with him being there. There was a clear medical assessment of his condition and his state on the care home’s books. Why couldn’t the care home manager gather that? If there was no care home manager, or if the local authority—the responsible body—had any concerns about that person, their role, or their ability to fulfil that function, they could do it themselves, as they currently do.
Steve McCabe
The Minister told the Committee earlier that she did not want to put too much detail in the Bill in case that in itself became a restrictive problem. If good care home managers are already involved in and informing the process as part of good practice, why does that need to be specified in the Bill? She is telling us that this happens anyway. Presumably, this could be cited in her code of practice as an example of good practice. The role of the care home manager that she describes is one of informing the responsible person, and using their knowledge and experience, gained through engagement and regular contact with the individual, to help inform the process. Presumably, that is just existing good practice, and it could be included in the code of practice. She may want to follow her own example of not cluttering her Bill by being too specific. This is an opportunity to take something out to help her achieve what she wants to.
Caroline Dinenage
I am grateful to the hon. Gentleman for that kind offer, but we intend to build on the role that care homes already play. Care home managers already daily identify that a person may lack capacity and need restrictions, take part in constructing a care plan, and liaise with mental health professionals. We are committed to supporting them further in doing that, ahead of implementation. We want to make sure that training for the workforce is delivered, and want the development-type model that I have spoken about.
I spoke a lot today about reducing the backlog. That will help enormously in reducing the burden that falls on care homes. They will not have to keep chasing applications that are in local authorities’ backlog in order to get protections regarding the legal right to hold somebody in their care. The care home manager is often in a strong position to identify whether a person objects to the arrangements. Having a role in the consultation allows them to do this.
Alex Cunningham
We can all acknowledge that there is a role for care home managers in the system, but I see them as a small cog in the engine, rather than the driver of the machine. Does the Minister understand the issues around the lack of competence in many homes? How will she spell out somewhere in the legislation who picks up the pieces? She replied to my hon. Friend the shadow Minister on this, but she has not been clear on who does the work that she is expecting the care home manager to do if the care home manager does not exist or is not competent.
Caroline Dinenage
I am more than happy to do that, and I will deal with that shortly. The amendments would remove the role from the care home manager entirely, and would separate the liberty protection safeguards from the wider care planning that is already being done. It risks recreating the existing failing system, in which DoLS are too often considered a separate, overly bureaucratic, one-size-fits-all, box-ticking exercise.
We have to be careful. The hon. Member for Worsley and Eccles South rightly spoke about not castigating local authorities. She also mentioned that we must not demonise care providers. I agree. Of our care providers up and down the country, 83% are rated good or outstanding. They provide an incredible level of professional integrity and care, as well as daily vocational commitment, sometimes in difficult circumstances.
Barbara Keeley
I want to pick up what the Minister for Care says about DoLS being a box-ticking process. I have given at least two examples of people being freed from a totally inappropriate care setting because of a well-run DoLS process. The DoLS process runs well in my local authority, in Stockton and in other large authorities. Let us not denigrate that. With regard to care homes, 83% are better than satisfactory, but 17% are not, and 11% have vacancies. Unless we are talking about a figure in the high 90s, we cannot have confidence. We have properly trained DoLS assessors. She is calling that a box-ticking exercise, and says that half a day’s training for a care home manager—when almost one in five of them are not doing an adequate job—is somehow going to be better. It is not. It will be disastrous in some cases.
Caroline Dinenage
I would just say to the hon. Lady that I am quoting Sir Simon Wessely. In his view, this is too often a bureaucratic tick-box exercise and does not put the individual, their wishes, feelings and best interests at the heart of what we are all trying to achieve. I would also reinforce what I said to her before: the responsible body can decide to carry out these functions where there are concerns about the quality of the care provider. That might be because there are inexperienced staff at the helm, or no care home manager, or even particularly strong social worker involvement. When it is appropriate, the responsible body can carry out the functions. The Bill already makes provision for the involvement of social workers and allows for that where appropriate. We also need to ensure that self-funders, who have had very little involvement from a responsible body, receive protections. Removing all forms of role for care home managers could easily risk such people falling through the cracks.
The hon. Member for Worsley and Eccles South raised a couple of issues that I want to address. We absolutely agree that families should be able to object, and the Bill is very clear that those with an interest in the welfare of cared-for persons can flag objections on the person’s behalf. An AMCP can review the case. That can be done directly with the responsible body, bypassing a care home, which solves the problem where people have the experience that the hon. Lady spoke of, where they do not have a good relationship with the care home. If they do not have confidence or are worried about raising concerns, the AMCP can be triggered.
The Bill already makes provision for the involvement of social workers. It already allows that, where appropriate, the responsible body can take on the functions from the care home if there are any concerns. My biggest concern is, in a nutshell, that these amendments, if passed, would risk fundamentally weakening the protections available to people. On that basis, I ask hon. Members to think seriously about the amendments, which are effectively recreating a system that we have all recognised is not fit for purpose, and I ask the hon. Member for Worsley and Eccles South to withdraw her amendment.
Barbara Keeley
We have had a very useful debate. It has been really helpful to hear the useful contributions from my hon. Friends, although I have to say it is very quiet on the Minister’s side. It is a pity that we are not hearing more from that side, as I am sure there are people here with useful experience as constituency MPs.
Although progress was made on this issue in the House of Lords, there is still potential for a conflict of interest to arise in relation to the role of care home managers. I do not resile from what I said: the provisions in the Bill risk further entrenching a postcode lottery in our social care services. We already have a postcode lottery and it could be much worse.
We believe that this is a serious situation, where local authorities diligently retain some of their role, while others are delegated to care home managers. On the point that the Minister covered at the end of her speech, it is particularly unacceptable for care homes to retain a role in carrying out the consultation. I gave case study examples where cared-for people and their families become wary of expressing objections to the people delivering care for fear of reprisals. It is true that in care homes, with GPs and in NHS hospitals people do not always say what they feel about the treatment they receive because they are so worried about reprisals, and that is very much the case with ongoing care situations. I gave several examples where family members were stopped from seeing a cared-for person after objections were raised. We have to take that seriously.
As we heard, as well as it being inappropriate that care home managers retain a role in carrying out the consultation, it is not clear to me at all from meeting organisations such as Care England, the network representing care home managers, that they want or are willing to take on the role. As we mentioned, they are currently under significant strain. That is a real factor. Having an 11% vacancy rate for registered care home managers is another real factor. Adding another role to them, without proper resourcing, will inevitably lead to services suffering.
In our discussions on the Bill, we need to have a proper debate about resources, because there was no time to discuss it in the Lords. There has been no real discussion on it yet, and it is absolutely crucial. There is a cost, as I covered in my speech, and we cannot just shunt the role on to care home managers who do not even want it.
Some care home providers are concerned that local authorities will delegate the role without providing training or additional resources to care home managers. I talked about the backlog of pay claims for sleep-in rates, which is a problem. Care England and the care home networks feel very strongly that a shunting-across is going on that will lead to financial difficulties for them. It will lead to care homes either leaving the market or no longer taking on clients who require deprivation of liberty authorisations. As I outlined, those could be cases of people involving dementia or brain injury. They will not take those cases if they think there is going to be a lot of admin linked to the processes.
Mental Capacity (Amendment) Bill [ Lords ] (First sitting)
Caroline Dinenage Excerpts(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
Welcome, everyone, to the first meeting of the Committee. Can we start by making sure that our phones and iPads are on silent? We will first consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication. I hope we can take those two things without too much debate. I call the Minister to move the programme motion, which was agreed by the Programming Sub-Committee yesterday.
The Minister for Care (Caroline Dinenage)
It is a great pleasure to serve under your chairmanship, Mr Austin. The Bill amends the Mental Capacity Act 2005 and reforms deprivation of liberty safeguards, which, if the Committee will forgive me, I will refer to as DoLS. DoLS came into force in 2009 to provide protections for vulnerable people who require care and treatment but do not have the capacity to consent. However, due to the cumbersome and inefficient nature of the current DoLS system, many people are not receiving those vital protections. Hon. Members across the House heard on Second Reading that there is currently a shocking backlog—
The Chair
Order. All you need to do at this stage is move the programme motion.
Ordered,
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 15 January) meet—
(a) at 2.00 pm on Tuesday 15 January;
(b) at 11.30 am and 2.00 pm on Thursday 17 January;
(c) at 9.25 am and 2.00 pm on Tuesday 22 January;
(d) at 11.30 am and 2.00 pm on Thursday 24 January;
(2) the proceedings shall be taken in the following order: Clause 1; Schedule 1; Clauses 2 to 4; Schedule 2; Clause 5; new Clauses; new Schedules; remaining proceedings on the Bill;
(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 24 January.—(Caroline Dinenage.)
The Chair
Copies of the written evidence received will be made available in the Committee Room.
We now begin line-by-line consideration of the Bill. The selection list for today’s sitting, which is available in the room, shows how the selected amendments have been grouped for debate. Amendments grouped together are generally on the same or similar issues. Decisions on amendments take place not in the order the amendments are debated, but in the order they appear on the amendment paper. The selection and grouping list shows the order of debate; decisions on each amendment will be taken when we come to the part of the Bill the amendment affects. I will use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules following the debates on the relevant amendments.
Clause 1
Deprivation of liberty: authorisation of arrangements enabling care and treatment
Question proposed, That the clause stand part of the Bill.
Caroline Dinenage
As I said, due to the cumbersome and inefficient nature of the current DoLS system, many people are not receiving the vital protections they need. Members across the House heard on Second Reading that there is a backlog of 125,000 people waiting to have their safeguards considered. That is 125,000 people who are not receiving the protections they are entitled to, as well as families who do not have peace of mind and carers who do not have legal cover. Worse still, more than 48,000 of those people have been waiting more than a year for an authorisation to be considered. I hope hon. Members agree that that simply cannot be allowed to continue.
The Government tasked the Law Commission with reviewing DoLS and, after more than three years of extensive engagement, it concluded that the system needed to be replaced as a matter of pressing urgency. The Bill concentrates on the Law Commission recommendations that focus on the delivery model. In certain regards, such as making consultation on the individual’s wishes and feelings an explicit feature of the Bill, we go further than the Law Commission recommended.
The Bill has passed through the other place. We worked constructively with the Lords to make important changes, including by ensuring there is no conflict of interest in the role care home managers play in the new system and by removing references to “unsound mind”, which is outdated and stigmatising. We hope to continue working constructively as the Bill passes through the Commons. Indeed, I have already met hon. Members from across the House, as well as key sector stakeholders, to ensure that we listen and respond to their concerns. I know the hon. Member for Worsley and Eccles South cares as much as I do about getting this right.
Clause 1 inserts schedule AA1 into the Mental Capacity Act. This replaces DoLS with a new administrative scheme for authorising deprivation of liberty, known as liberty protection safeguards.
Barbara Keeley (Worsley and Eccles South) (Lab)
It is a pleasure to serve under your chairmanship, Mr Austin. I look forward to the hours of important debate we have ahead of us on the Bill. Let us hope the temperature in the room balances out somewhat over the next few hours, because we are suffering a little bit at the moment.
I want to say clearly that the Opposition are committed to improving the Bill, despite the many reservations we have about not only its contents, but the way it has been developed so far. Should the Government push ahead with the Bill, our job is to ensure that it is the best it can be. We have tabled nearly 30 amendments, which are the minimum reforms needed to ensure that the Bill is fit for purpose.
I am sure that the Government want to produce a Bill that works. No Minister or Department wants to introduce a law that creates complicated case law and necessitates further legislation in the near future. We will work with the Government over the next few weeks to improve the Bill in a spirit of co-operation. If we can do that, we might just have a serviceable Bill at the end of this process.
We will not oppose clause 1 stand part. Indeed, clause 1 is the only part of the Bill that nobody is trying to amend.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Schedule 1
Schedule to be inserted as Schedule AA1 to the Mental Capacity Act 2005
Caroline Dinenage
I beg to move amendment 2, in schedule 1, page 5, line 19, leave out
“if a person objects to arrangements”
and insert “in certain cases”.
This amendment is consequential on Amendment 9.
The Chair
With this it will be convenient to discuss the following:
Amendment 38, in schedule 1, page 16, line 4, after “if” insert
“the cared-for person is aged 16 or 17 and in other cases if”.
This amendment makes provision for an AMCP to be involved in all cases involving 16 and 17 year olds.
Government amendments 8 and 9.
Amendment 37, in schedule 1, page 16, line 12, at end insert—
“(c) the arrangements include the use of physical restraint, or
(d) the arrangements include the use of sedating medication, or
(e) a person interested in the cared-for person’s welfare has objected to the arrangements, or
(f) the cared-for person owns or has the right to occupy a different property to the property in respect of which the arrangements apply, or
(g) the cared-for person is receiving covert medication, or
(h) the cared-for person is restricted from having contact with named persons, or
(i) the cared-for person is being detained in a mental health establishment for the purposes of treatment of a mental disorder, or
(j) there is a less restrictive option for the cared-for person’s care or residence available, or
(k) the cared-for person, or a person interested in the cared-for person’s welfare, requests the review be by an Approved Mental Capacity Professional.”
This amendment provides for access to an Approved Mental Capacity Professional in specific circumstances.
Amendment 39, in schedule 1, page 16, line 12, at end insert—
“(c) the arrangements provide for the cared-for person to receive care or treatment, and it is reasonable to believe that the cared-for person does not wish to receive the specific kinds of care or treatment which the arrangements provide for, or
(d) it is reasonable to believe that the cared-for person does not wish to receive care or treatment overall.”
This amendment broadens the criteria of objection in the Bill, so that it applies to objections to the kinds of proposed care or treatment to be given, or to an overall objection to care or treatment.
Government amendment 10.
Caroline Dinenage
With your leave, Mr Austin, I will address the amendments in my name before I speak to the Opposition’s amendments. This group of amendments relates to pre-authorisation reviews, which are conducted by an approved mental capacity professional, or AMCP. The AMCP provides an additional level of scrutiny for cases that need it, such as where somebody has raised an objection. Amendment 9 requires an AMCP to conduct the pre-authorisation review should arrangements mean that the cared-for person receives care or treatment mainly in an independent hospital. It also clarifies that cases can be referred to an AMCP by the responsible body, providing that the AMCP accepts the referral. The other amendments in the group are consequential on this.
I am sure that hon. Members of different parties have been as distraught and dismayed as I have at the widespread reporting of cases of inappropriate restrictive practices, such as the prolonged use of seclusion. They will recognise that the scrutiny of cases in independent hospitals must be absolutely robust. Stakeholders are right to raise their concerns about this, as many did in the debate on the Bill in the other place. The Government have acted to address those concerns by requiring authorisations in independent hospitals to be considered by an AMCP, regardless of whether an individual objects to their arrangements. We have added a further level of security to the process. The AMCP will meet the person, complete any relevant consultations, and review assessments to decide whether the authorisation conditions are met.
Amendment 9 also clarifies that the AMCP can conduct pre-authorisation reviews in any case, not just where an individual objects. The Government’s view has always been that certain cases might benefit from scrutiny by an AMCP due purely to their complexity or nature. The amendment will apply to all cases, not just cases where the independent hospital is the responsible body. The statutory code of practice will be used to explain in detail how these powers should be exercised. For example, authorisations that relate to people with an acquired brain injury might benefit from consideration by an AMCP, as the nature of their illness means that it can often be difficult to establish whether they have capacity, and their capacity might fluctuate. AMCPs will also play a key role should particularly restrictive arrangements be proposed.
The code of practice is a statutory document that will be approved by both Houses and will form the basis of the responsible body’s decision to refer cases to an AMCP, which could extend to cases in which physical restraint is used. The approved mental capacity professional will then decide whether to accept the referral, in line with the code of practice. It is important that AMCPs are focused on cases that need additional scrutiny, so that the system can be targeted and can deliver protection to all those who need it more quickly. That is why AMCPs have a role in making a judgment about whether to accept referrals. The amendments strengthen the safeguards in the Bill, and I hope the Committee will support them.
Let me turn to the amendments tabled by the Opposition. I thank hon. Members for initiating this important discussion about objections and access to AMCPs. Amendment 37 would provide for access to AMCPs in specific circumstances. The Government absolutely agree that AMCPs should review authorisations where appropriate, but the issue is that, by putting too much detail in the Bill, we can sometimes be caught out by what is left out. The Bill already requires that an AMCP completes the pre-authorisation review if it is reasonable to believe that the cared-for person does not want to reside in, or receive care or treatment at, a certain place. The objection can be raised by anyone with an interest in the cared-for person’s welfare. The Bill already requires that arrangements are necessary, proportionate and the least restrictive possible. That is to be considered as part of the pre-authorisation review.
The Government amendment previously discussed requires that an AMCP reviews every authorisation from an independent hospital, even if there is not an objection. That is an example of our commitment to protecting the most vulnerable.
Alex Cunningham (Stockton North) (Lab)
I am interested in the expression that the Minister used a moment ago—“where appropriate”. There is no clear definition anywhere in this material of who will determine what “where appropriate” means, and who will be involved in the decision making. I would welcome an explanation of what the Minister means by that. I would much rather see everybody covered by this provision.
Caroline Dinenage
Everybody is entitled to an AMCP if they are in an independent hospital. That is on the face of the Bill in terms of decision making, case studies and how we make sure people have the training and information to implement the Bill in the way it is intended. Let us not forget that we started with a well-intended Bill with DoLS, but because of the way it was worded and subsequent decisions by judges, we have now got a one-size-fits-all Bill. That is why we have a statutory code of practice, which runs alongside the Bill. It is a legal document and will be approved by both Houses. It will be put together with stakeholders and will set out very clearly the guidelines that dictate how and when action should be taken. It will include case studies and will be compiled very closely with stakeholders, who are on the frontline and deal with individuals.
Dr Paul Williams (Stockton South) (Lab)
I wonder whether the Minister can tell us what it is about independent hospitals that warrants an AMCP assessment, given that independent care homes do not warrant one?
Caroline Dinenage
I thank the hon. Gentleman for that interesting question. His medical background makes him a very valuable member of this Committee—as is everybody else, of course. There have been a lot of high-profile cases involving independent hospitals recently, and we have to pay attention of them. We are talking about a very tiny cohort of vulnerable people here—slightly less than 1%—but they are very important, given that they are extremely vulnerable. Given the nature of the concerns that have been raised about independent hospitals, we felt, and the Lords agreed, that it is important to ensure that additional protection is there from the outset, whether or not the person objects to their care.
Caroline Dinenage
I will just get to the end of my sentence.
The Government amendment already clarifies that AMCPs can review authorisations in other relevant cases—for example, if circumstances are complex or if particularly restrictive practices are used.
Steve McCabe
I am grateful to the Minister for giving way; I did not want to interrupt her flow. I want to clarify the answer she gave to my hon. Friend the Member for Stockton South a second ago. How many people reside in independent homes, as opposed to independent hospitals? I would have thought that the greater proportion are in independent homes, which is all the more reason why we should have concern about them.
Caroline Dinenage
With deprivation of liberty safeguards or liberty protection safeguards, roughly 80% are in care homes, 20% are in hospitals and—I know this will add up to over 100%, but it is there or thereabouts in each case—about 1% are in independent hospitals. We have to avoid recreating the painfully inadequate DoLS system we have at the moment. Where something is straightforward and simple, we do not want to take the power and decision making out of the hands of families, loved ones and those trusted to help people in decisions about their care.
We have put in this clause about independent hospitals because Members from both sides of both Houses have had particular concerns. I know that the hon. Member for Worsley and Eccles South shares these concerns with me. That is why we felt that the clause was particularly important.
We know that situations can be complex and incredibly far-ranging, which is why we intend to use this code of practice to capture the full scope of circumstances to which it may apply. We will set out in detail the circumstances that may trigger a review by an AMCP. I am keen to take input from all Members from across the House on this document.
Amendment 38 relates to the involvement of approved mental capacity professionals in arrangements for 16 and 17-year-olds. We understand that many 16 and 17-year-olds would benefit from the additional scrutiny of an AMCP. This is why the Government amendment clarifies that relevant cases should be referred to an AMCP.
Alex Cunningham
Again, the Minister uses words I am uncomfortable with—the word “relevant”. Who determines what is relevant in the case of an individual young person?
Caroline Dinenage
In each case, these are professional social workers who have the required skills and training to make this kind of decision. We do not want to recreate the current system, which very much leaves families and loved ones excluded from the whole process. We want to make sure that their consideration is taken into account at the same time, but we also want to rely on the judgment of professionals, who are incredibly skilled and well trained and who will have the additional workforce training to ensure that they are able to carry out this function successfully.
Amendment 39 broadens the criteria for objections within liberty protection safeguards. The Bill currently provides that the referral must be made to the AMCP if there is a reasonable belief that the person objects to the arrangements to reside in or receive treatment at a specified place. The amendment would expand this to care and treatment overall. I agree that it is important to take into account a person’s wishes and feelings in relation to their care and treatment. It is really important to remember that the provision of care or treatment is already governed by section 4 of the Mental Capacity Act. This amendment to the Act does not override some of the existing parts of the Bill, which are very valuable. In these situations, a best interest decision would need to be made, having regard to ascertainable wishes and feelings, as set out in the Act.
If a person objects, or has objected in the past, to the care or treatment, this must be taken into account within best interest decisions. In some cases a best interest decision must be referred to a court if the person or their family objects. Nothing in the Bill changes this. The statutory code of practice will set out how liberty protection safeguards work within the wider framework of the Mental Capacity Act.
Barbara Keeley
I will come to this in more detail later, but constantly referring to a code of practice we have not seen is not helping us here. We are trying to make sure that the Bill is fit for purpose.
Caroline Dinenage
I completely understand the hon. Lady’s feelings on this. She will know, because we met and discussed this, that I am very keen that the code of practice is put together by taking on board the advice and guidance of all stakeholders and Members from across the House. This work has already started. We have a first meeting in a couple of weeks, where we will get all the stakeholders together to flesh this out.
This is a statutory document that will bear weight in a court of law. There has already been a lot of commitment in both Houses to what the code of practice will include, so we would like to provide Members during the Committee with a document that will set out exactly the sort of things that we are already committed to.
Barbara Keeley
Briefly, if the Minister had done what I asked her to do on Second Reading, and what 40 organisations asked her to do, and paused the Bill, she would have had time to develop the code of practice before we got to this point. We would have the Bill and the code of practice here, and we could check them. We do not have them. That is why we will have a problem.
Caroline Dinenage
I understand where the hon. Lady is coming from. The code of practice will be a living document. It will go alongside the Bill and have case studies. It has to be put together in a very co-operative and collaborative way. It will have to come before both Houses to be signed off before it can be published and released, so there will be plenty of opportunity for Members to get involved in drawing it up. I have committed to providing a list of what we have already agreed will be part of it. Members will get a chance to vote on it before it is published, and it will need the approval of both Houses because it is a statutory document.
Barbara Keeley
I agree with my hon. Friend that that argument makes the case for us. In amendment 37, we suggest that the Government adopt in the Bill the process for assessing risk that social services departments up and down the country currently use on the DoLS application backlog. That is what they are doing and that is why that important amendment should be taken forward.
In response to the points made about amendment 39, it broadens out the terms of objection that would trigger an AMCP review. As I showed with examples, it is not always about the location. Just being able to raise objections about location is not enough. People often object to forms of treatment. There are some very difficult cases, such as eating disorders. There are often difficulties around the treatment.
I gave the example of an older person receiving palliative care who did not want dialysis. Medical people might find it hard, but there are cases where somebody does not want a treatment but wants the course of their disease to progress. In the cases I have mentioned, people were forced into situations that they did not want and where they did not have a basis to object. I believe that there is a case to broaden the grounds of objection to include not just location but the other points we have put forward in the amendment.
I just wanted to finalise those points and pull together what my colleagues have said. We will push our amendments to the vote at the appropriate time.
Caroline Dinenage
A number of valid points have been raised by hon. Members and I will cover some in more detail when we reach the relevant part of the Bill. I want to get through as many as I can now that relate to this matter.
The hon. Member for Birmingham, Selly Oak may have done it with a cheeky smile, but he said that I am flirting and dismissive in the way I address amendments to the Bill. Can I reassure him from the outset that I have not been dismissive of any of the amendments? I take the Bill incredibly seriously; I am not flirting with it. I look at every single amendment to see whether it would add to the Bill. That is why we amended the Bill so much in the House of Lords. I have committed to that.
I want to talk briefly about 16 and 17-year-olds. The hon. Member for Worsley and Eccles South is absolutely right that we have to be incredibly careful. The current system just does not work for 16 and 17-year-olds and the only recourse is the Court of Protection. We see a swathe of 16 and 17-year-olds who have no protection and no form of DoLS. That is simply not good enough.
Before making this change, we gave careful thought to how the inclusion of 16 and 17-year-olds would interact with other legislation, including the Children Act 1989. We are comfortable that it would work alongside existing legislation. We also looked at the interface with the Mental Health Act and the Mental Capacity Act. Sir Simon Wessely, who is conducting the review of the Mental Health Act, suggests that that is the way it should go.
We have given careful thought to how parents are involved when their child is subject to liberty protection safeguards. Where appropriate, they will be consulted. We have to say “where appropriate” because of the very small number of safeguarding issues that could arise. That is the problem with having absolutes in the Bill. We do not want to recreate what we have at moment—a system that tries to catch all and to be one size fits all, but that ends up helping nobody. We want a targeted system focused on resources where they are needed most. That is why we have not taken a blanket approach to AMCPs.
The hon. Member for Stockton North suggested that the problem is something to do with resourcing, but it is not—it is about focusing resources where they are most needed. In a case where a young person agrees to their care, their parents are happy with it and all professionals agree it is in their best interests, what does an AMCP add? The case would still be reviewed by someone not involved in their care, through the pre-authorisation process. Every single application under the liberty protection safeguards will be carefully reviewed by someone not involved in their care or treatment.
Barbara Keeley
The Minister asks what an AMCP review adds; it adds independence at a point where family members are banned from contact, where 16 and 17-year-olds are involved. This is new legislation and a new process. In amendment 37, we suggest that there is a need for additional safeguards; the safeguards we suggest are the ones currently used by social services departments up and down the country.
Caroline Dinenage
With the greatest respect, I do not think the hon. Lady listened 100% to what I said. I said that in a case where the young person agrees to their care, their parents are happy with their care and all professionals agree that it is in their best interests, what does an AMCP add when there is already pre-authorisation scrutiny? It is not to do with resources but with wanting a targeted system that focuses resources where they are most needed, protecting vulnerable people in the very best way we can. We understand that there are particular concerns about the use of restrictive practices on young people with learning disabilities or autism. That is why we have tabled an amendment to clarify that responsible bodies can refer cases other than those with objections to an AMCP. In many cases, we would expect that to happen.
The code of practice keeps being referred to as something peripheral, but it is key. The hon. Member for Birmingham, Selly Oak talked about not having the ability to scrutinise it. There is not only the ability to scrutinise the code of practice; hon. Members can contribute to it. That is why it is very important that it is laid out in the way my hon. Friend the Member for Halesowen and Rowley Regis said. That is exactly the place where we lay out the case studies, individual concerns and the very complex cases that need to be definitively scooped up by this Bill. Trying to do a catch-all in the Bill would not provide sufficient protection for the people we all care so desperately about.
Alex Cunningham
I want to come back to resources. The Minister is right that we need to target resources where they are most needed, but the fact remains that there are insufficient resources in the system. My local authority has lost 55% of its budget since 2010. It still makes the political decision that I mentioned earlier to try to pull money from other areas to bolster the work that is needed in this area. The Government must commit to putting more resources in. It should not be left to local authorities to let other services suffer to subsidise this type of activity. The Minister needs to take that away and think seriously about resourcing.
Caroline Dinenage
I completely understand where the hon. Gentleman is coming from, but as he says, that is a political decision taken by local authorities up and down the country. He spoke with great knowledge about the fact that his local authority has decided to clear its backlog. Others do not have that capacity. We know that some local authorities are under a lot of pressure.
Caroline Dinenage
If the hon. Gentleman lets me get to the end of my point, I will give way to him. The situation is this: if every local authority across the country was to completely clear its backlog, we are looking at an additional cost of about £2 billion. So much of that is unnecessary.
The hon. Member for Nottingham North spoke about his experience of this issue, and I have personal experience too. My uncle, whom we sadly lost in September, was living with dementia and had health problems that kept causing him to end up in hospital. In his case, the lovely care home he was in gave him great care and support. According to him, it was where he was very happy, and according to us, his family, it was the best place for him. All the doctors’ reports said that that was where he should be, but he kept having to go into hospital because he had fits and kept collapsing. Every time he went into hospital—probably three or four times a year—the hospital had to apply for another DoLS. That meant that, often, by the time he got back to the original care home, the DoLS from the place he went to second had not been applied. How can the hon. Member for Stockton North tell me that that is a viable use of Government and local authority resources? It is not. It is a terrible waste of money, and it does not protect the people who are most vulnerable.
Alex Cunningham
That can be corrected in the system. Some would say that £2 billion is a small price to pay to ensure that everything in our system is legal—there are tens of thousands of cases where people are being held illegally. We need to do something about resourcing and looking at that backlog. I take the point that we do not want repetition, and the legislation needs to knock out the repetition that the Minister describes, but the bottom line remains that local authorities, clinical commissioning groups and others are extremely stretched as far as resources are concerned, and we want to put even more responsibilities on some of them through this legislation, albeit maybe doing things a bit more efficiently.
Caroline Dinenage
I disagree. We are not putting more responsibilities on to local authorities—we are just targeting them better. The hon. Gentleman says £2 billion would be a small price to pay. That would be £2 billion wasted on a system that all the stakeholders across the board say is not fit for purpose, whatever their feelings about the Bill at the moment. The hon. Gentleman worked in his local authority, and he will know that there is desperate waste in the system. We are trying to get to the bottom of that waste here; we are trying to make sure that the money is much better spent, supporting the vulnerable.
Barbara Keeley
It is important that we do not tar all local authorities with the same brush. The overall situation is as the Minister presents it, but my hon. Friends are right to highlight that some local authorities—Stockton is one—have decided, in the current situation of cuts, to dedicate resources, and they have a very low backlog. In my own area of Salford, fewer than 200 applications were outstanding at the end of last year. In the London Borough of Bexley, the backlog is as low as 20 cases, and it had 1,385 applications last year. Some of our larger authorities—Salford, Bexley and Stockton—have decided to dedicate resources to this area, to effectively take resources away from other areas of their operation and to make this area a priority.
I met with DoLS leads in stakeholder meetings for the Bill, and they have a feeling that we are somehow denigrating them and running them down. A brilliant job is being done in places such as Salford and Bexley, and certainly Stockton. I do not want to send out a message from here that a resource problem that came up on this process because of the Cheshire West decision should be used to denigrate a process that can work and is working in some of our larger authorities. I hope the Minister will agree.
Caroline Dinenage
I agree very much with that sentiment. We know that local authorities up and down the country are doing sterling work processing applications, but we also know that there is huge geographical disparity, and there are vulnerable people who are not being looked after, with 125,000 cases in the backlog—48,000 of those for more than a year. As with the case of my uncle, many of those cases could already be moot. He had been in and out of hospital and was already back in his care home, and two DoLS applications were still sitting waiting on the backburner that would now never need to be done and were just adding to the bureaucracy, when there are other valid and vulnerable cases waiting to be addressed.
I will move on to a few other issues that were raised. The hon. Member for Worsley and Eccles South raised objections in terms of medication rather than location. There must be a best interests meeting, and sometimes a court hearing, on things such as covert treatment. That is already part of the Mental Capacity Act. We want objections to be considered as broadly as possible. They can be raised by those with an interest in welfare, a family or an independent mental capacity advocate. Streamlined systems mean that objections can be considered more quickly and can be acted on sooner.
The hon. Lady also spoke knowledgeably and passionately about the case of Steven Neary, who was held for a year despite parental objections. Under the provisions in the Bill, Steven’s parents would have been able to raise an objection on his behalf. Independent AMCPs would meet Steven and his parents. They could determine that conditions are not met and could agree arrangements so that these things would not be authorised. That type of provision would need to be reconsidered if they continued to deprive him of his liberty; it would be a breach of statutory duty but also of article 5 of the European convention on human rights.
Barbara Keeley
The Minister is making an assertion there, but to my view, the crux of the Steven Neary case was that the social worker involved listened to the care home staff and not to Steven Neary’s parents. She dismissed his parents’ objections entirely. We have talked about that substantially, and it is an important aspect. His parents’ objections were ignored, and it is quite clear from the court case that the social worker just listened to the care home managers. The Bill, as we will discuss later, just brings that to the fore. We will cover that later, but the Minister should not jump over that point in talking about that specific case.
Caroline Dinenage
I am grateful to the hon. Lady for clarifying that point, but I feel strongly that having an independent responsible body overseeing how these things are processed will make matters clearer.
Barbara Keeley
It is not clear what the Minister is saying there. In the specific case of Steven Neary, which independent responsible body would have done that? The local authority is the responsible body. This was a case of a care home and a young man held against his wishes and his parents’ wishes. Which independent responsible body is the Minister talking about? That did not work in the Steven Neary case. The parents were ignored.
Caroline Dinenage
The hon. Lady makes a strong point, but that underlines the issues we have with DoLS at the moment: despite a backlog of 125,000 and a cost ticket of £2 billion, the system is not working. That is why we need to change it.
I will talk briefly about the ADASS—Association of Directors of Adult Social Services—tool. ADASS worked carefully to develop it in response to increased numbers of cases, which were overwhelming some local authorities. That included recognising issues such as clear objections that are raised and providing help with prioritising important cases, but it still leaves that 125,000 backlog, and that is unacceptable. There are various other issues about how we will resource it, but we will discuss those nearer the time.
In conclusion, AMCPs can consider any relevant case —for example, a particularly restrictive practice that is being used, or people with mental disorders. In this case, an AMCP can complete the pre-authorisation review. We will set out the detail, the case studies and clear guidance when we have the statutory code of practice. Every authorisation must be reviewed by somebody who does not deliver the day-to-day care or treatment, and the pre-authorisation reviewer must be satisfied that the authorisation is valid before approving it.
AMCPs should have the opportunity in certain cases to allow a targeted approach that will deliver a more efficient system and to allow people the better protections they need more quickly. I appreciate 100% the hon. Lady’s concerns about the conflict of interest in independent hospitals. We will discuss that at greater length, but she knows I share her concerns about how individuals in those settings can best be protected.
Amendment 2 agreed to.
Barbara Keeley
I beg to move amendment 19, in schedule 1, page 8, line 17, at end insert—
“(aa) if the arrangements are for the cared-for person to be accommodated in an independent hospital for the purpose of assessment or treatment for mental disorder, and that care is commissioned by a clinical commissioning group or Local Health Board, it is the clinical commissioning group or Local Health Board, that is the responsible body;”
This amendment would mean that, where a person is accommodated in an independent hospital for the assessment or treatment of a mental disorder, and their care is commissioned by a CCG or Local Health Board, then the responsible body will be the CCG or Local Health Board.
Oral Answers to Questions
Caroline Dinenage Excerpts(5 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Toby Perkins (Chesterfield) (Lab)
The Minister for Care (Caroline Dinenage)
Diagnosing fibromyalgia can be difficult because there is no specific diagnostic test and symptoms can vary. A range of support exists to help GPs, including an e-learning course developed by the Royal College of General Practitioners and Versus Arthritis, and a medical guide on diagnosis and treatment developed by Fibromyalgia Action UK.
Toby Perkins
I am grateful to the Minister for that answer. I just hot-footed it here from Westminster Hall, where an excellent debate on fibromyalgia took place this morning. We heard a huge amount of evidence about people who suffer with fibromyalgia having waited more than a year to be diagnosed and having received treatments irrelevant to their condition. Clearly, diagnosis is not working at the moment. What more can the Minister tell us about investment in research to improve diagnosis and to try to get better outcomes for fibromyalgia sufferers?
Caroline Dinenage
I feel that my colleague the Secretary of State has set the bar for compliments to Members this morning. On that basis, I congratulate the hon. Gentleman on his Westminster Hall debate, which raised a key issue. The Department’s National Institute for Health Research welcomes funding applications for research into any aspect of human health, including fibromyalgia. Its support for that research over the past five years includes £1.8 million funding for research projects and £0.6 million funding for clinical trials through the clinical research network.
Eddie Hughes (Walsall North) (Con)
Will the Minister endorse the excellent work by Sue Worrall and her team at Walsall Fibro and ME Link, whose monthly meetings seek to tackle the isolation frequently associated with those conditions?
Caroline Dinenage
I warmly welcome the organisation that my hon. Friend mentioned. There are some outstanding voluntary community-led organisations up and down the country that provide invaluable support for people who suffer from this condition. We know that symptoms can vary and that it can be incredibly distressing, so that support is enormously valuable.
Chi Onwurah (Newcastle upon Tyne Central) (Lab)
The effectiveness of primary care in this and many other areas is undermined for the most vulnerable and poorest communities by this Government’s insistence on putting out GP contracts for competitive tender, even when there is no competition to serve poor communities. The Watson review of GP partnerships was published today. Will the Minister commit to reviewing the requirement for competitive tender for GP partnerships?
Caroline Dinenage
We do of course support the recommendations that were part of that review. We have announced massive investment in primary and community services and spend on those services will grow as the NHS budget grows.
Alex Burghart (Brentwood and Ongar) (Con)
The Minister for Care (Caroline Dinenage)
Autism and learning disabilities are clinical priorities in the NHS long-term plan. We are committed to improving the quality of care provided to people with a learning disability or autism and to addressing the persistent health inequalities they face.
Mike Wood
I thank the Minister for her response. The commitment to reducing diagnosis waiting times for children and young people is welcome, but what are the Government doing in this 10th anniversary year of the Autism Act 2009 to tackle diagnosis waiting times for all people?
Caroline Dinenage
I congratulate my hon. Friend on his active involvement in the all-party parliamentary groups on learning disability and on autism. Over the next three years, we will be testing and implementing the most effective ways to reduce waiting times for specialist services. We are developing guidance to support commissioners to develop the necessary services to support all autistic people, and we have launched a review of our autism strategy.
Alex Burghart
As a former governor of a school for children with autism, I thank the Minister for her response. It is well known that people with ASD suffer premature morbidity due to worse rates of heart disease, cancer and death through epilepsy. What is the Minister doing to ensure that fewer people with autism die early?
Caroline Dinenage
These are key elements of the NHS long-term plan, and we will shortly start consulting on mandatory learning disability and autism training for health and social care staff. We will work to improve uptake of the existing annual health checks for people with learning disabilities and will pilot the introduction of specific health checks for autistic people.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
The Minister knows of my interest in access to healthcare as chair of the Westminster Commission on Autism. She will also know that a real barrier is having enough people with the skills not only to identify autism, but to support families dealing with it.
Caroline Dinenage
The hon. Gentleman is right, and I pay tribute to his hard work in this area. Training is so important, and we want to ensure that all staff, whether clinical, medical or perhaps just on reception, have the necessary training to be able to help to support people with learning disabilities or autism.
Chris Bryant (Rhondda) (Lab)
What are the Government going to do about people who have suffered acquired brain injury? One in four major trauma centres have no neurorehabilitation consultant, meaning that such people all too often fall between the cracks and do not get proper support. Will the Government change that?
Caroline Dinenage
The hon. Gentleman chairs the all-party group on acquired brain injury, and we are working on the recommendations of his report. This is such an important issue, and we want to make sure that nobody falls through the gaps.
Several hon. Members rose—
Barbara Keeley (Worsley and Eccles South) (Lab)
This Government’s cuts to council budgets have meant that 100,000 fewer people received publicly funded social care over the past three years, and 90 people a day died while waiting for social care last year. What does the Secretary of State think it says to their families that the social care Green Paper and the meaningful funding settlement have been delayed again?
The Minister for Care (Caroline Dinenage)
The hon. Lady knows that we have given councils access to nearly £10 billion over a three-year period to address this very issue, but she is right to highlight the issues at the heart of social care. We will be publishing the Green Paper very shortly.
Maria Caulfield (Lewes) (Con)
Children’s hospices provide vital support for children with life-limiting conditions and their families at the most difficult of times. I welcome the £25 million of extra investment in these services, but what more can be done to support children’s hospices across the UK?
Caroline Dinenage
My hon. Friend is absolutely right to highlight the incredible work of children’s hospices across the country. Up until now, there has been a disparity between their funding and that of their adult counterparts, which is why I was delighted when, as part of the NHS long-term plan, we announced plans to increase funding for children’s hospices by as much as £25 million a year over the next five years. We can always do more, however, and we are always open to suggestions.
Yvonne Fovargue (Makerfield) (Lab)
Andrea Jenkyns (Morley and Outwood) (Con)
Each month I hold my memory cafés for those suffering with memory loss, dementia and Alzheimer’s, and their carers, families and friends. What support are the Government providing for those suffering with such memory loss conditions?
Caroline Dinenage
We remain absolutely committed to delivering the challenge under dementia 2020 and to making England the best country in the world for dementia care by 2020. As part of that, we are more than happy to do everything we can to support steps such as the memory cafés of which my hon. Friend speaks, which are such a valuable local community resource.
Several hon. Members rose—
Health and Social Care
Caroline Dinenage Excerpts(5 years, 9 months ago)
Ministerial CorrectionsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Care (Caroline Dinenage)
…The right hon. Gentleman also mentioned 16 and 17-year-olds. We have given very careful thought to how to include 16 and 17-year-olds and to how the Bill will interact with other legislation including the Children Act 1989, and we are very comfortable that it works alongside existing legislation. It is also a Law Commission recommendation to bring the provisions in line with the Mental Health Act, as he will be aware.
[Official Report, 18 December 2018, Vol. 651, c. 757.]
Letter of correction from the Minister for Care (Caroline Dinenage):
An error has been identified in the response I gave to the right hon. Member for North Durham (Mr Jones).
The correct response should have been:
The Minister for Care (Caroline Dinenage)
…The right hon. Gentleman also mentioned 16 and 17-year-olds. We have given very careful thought to how to include 16 and 17-year-olds and to how the Bill will interact with other legislation including the Children Act 1989, and we are very comfortable that it works alongside existing legislation. It is also a Law Commission recommendation to bring the provisions in line with the Mental Capacity Act, as he will be aware.
The Source NHS Drop-in Centre
Caroline Dinenage Excerpts(5 years, 10 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Care (Caroline Dinenage)
I thank the hon. Member for Eltham (Clive Efford) for securing this important debate and for the characteristically strong and comprehensive way in which he has brought this matter to the House’s attention. He always stands up for his constituents, and this evening is no exception.
This Government are committed to providing high-quality services, commissioned by clinical commissioning groups and NHS England on a local, regional and national basis. Ultimately, we want to continually improve health outcomes for individuals, communities and society as a whole. We believe that GPs, working with other healthcare professionals, are best placed to co-ordinate the commissioning of high-quality care for their local patients.
The hon. Gentleman spoke about the Source in Horn Park with great knowledge. I totally recognise his concerns about the decommissioning of the drop-in centre in 2016, and I understand the importance of people having access to services near their homes. From what he says, it sounds like this service was well valued and well used, and the location of the estate poses unique challenges to people being able to access the services they need. Equally, that is always balanced against the provision of the right services of the best possible quality. My understanding from the CCG is that its decision to decommission the Source was part of a range of actions taken to ensure that it continued to make high-quality services available to the residents of Horn Park and reduce duplication. Greenwich CCG says that, since closing the Source, it has expanded the range of services available to residents of Horn Park. That includes opening a GP access hub clinic at Eltham Community Hospital, which is located within 2 miles of Horn Park. The GP access hub is open seven days a week, with appointments available from 8 am to 8 pm on weekends and on weekday evenings until 8 pm. Patients can book appointments through any Greenwich GP at a convenient time that suits them. Overall, the CCG says that it provides an improved quality of service for local residents. Unlike those seen at the Source, patients who attend that hub will be seen by a Greenwich GP who has access to patient records. The GP will have vital information on long-term conditions, allergies and vaccinations, improving the quality and safety of care.
It should be noted that Eltham Community Hospital already offers a broad range of high-quality services to the people of Greenwich, including walk-in blood tests and walk-in X-rays. It also provides public health services, including long-term contraception and help with smoking cessation. Alongside that, we are always keen to promote local pharmacies, which are on hand for a range of services, including advice on various issues and flu vaccinations free of charge, but I note that the pharmacy on Horn Park estate has also shut.
I understand the hon. Gentleman’s position. The Source was a much-valued local facility, and there are always concerns when a well-used and well-loved facility closes and clinicians decide it is time to move to a different model, although it is right that decisions about local health provision should be made at a local level. I understand his concerns about access to services. The CCG informs me that a local bus service—the B15—connects Horn Park estate with all three Greenwich GP practices and Eltham Community Hospital.
I have heard the hon. Gentleman’s concerns about how the CCG has engaged with local residents and how it did—or, in fact, did not— listen to their views. I would like to be very clear that the Department does expect commissioners to engage properly with their communities before making any decisions on this level of service change. I am pleased to hear that the CCG has now agreed to facilitate and promote a further meeting on Horn Park in January 2019 with the hon. Gentleman and with ward councillors. I hope that that will be a good opportunity for him to raise what sound like some very valid concerns and to seek alternative options to present the evidence that he has collected in his petition and his survey. I very much look forward to hearing the outcome of that meeting and I hope that they will be positive for his area.
More generally, on 21 November, the Prime Minister announced £3.5 billion of funding for primary and community health care a year, in real terms, by 2023-24 under the long-term plan for the NHS. She also committed to grow spending on primary and community healthcare as an overall share of the NHS budget. As part of the development of this plan, we will be talking to system leaders, patients and other experts to understand how we can overcome certain challenges, like the one that the hon. Gentleman has mentioned, in a sustainable and positive way. In the meantime, I do very much recognise his concerns and thank him very much for bringing them to our attention. I hope that his meeting with the local CCG proves to be fruitful and very much look forward to hearing its outcome.
As the last speaker from this Dispatch Box this year, Madam Deputy Speaker, may I take this chance to wish you, your team, the Clerks, staff and security a very merry Christmas—
Clive Efford
Yes, just briefly. I would like to stress one point. Horn Park is an extreme example of how health services have moved away from the most deprived communities. There is an issue about accessing health services. These are the communities that are most distressed and most in need of having direct access to those services. If the Minister ever has an opportunity to talk to Greenwich CCG, will she bear that in mind when she does so and draw it to its attention? I think we could improve our health outcomes a great deal if we were to address that issue.
I wish all those who serve us here in the House a very happy Christmas.
Caroline Dinenage
The hon. Gentleman makes an excellent point, and I will of course raise it in any conversation that I do have with Greenwich CCG. He is absolutely right to say that we should be doing everything we can to close the health inequalities that people experience up and down our country.
May I, Madam Deputy Speaker, wish you a very merry Christmas and a happy, healthy and peaceful new year?
Madam Deputy Speaker
Thank you. As we approach the Adjournment of the House for the Christmas recess, I would like to thank everyone who works in this building, and in Parliament generally, who supports Members of Parliament in all the work that we do. We could not do without the Clerks, we could not do without all the other people who work here, and we certainly could not do without everyone in the Tea Room. I particularly wish a happy and peaceful Christmas to all Members of Parliament on all sides of the House.
Question put and agreed to.
Mental Capacity (Amendment) Bill [Lords]
Caroline Dinenage ExcerptsTuesday 18th December 2018
(5 years, 10 months ago)
Commons ChamberRead Full debate Mental Capacity (Amendment) Act 2019 View all Mental Capacity (Amendment) Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 147(a) Amendment for Third Reading (PDF) - (5 Dec 2018)
The Minister for Care (Caroline Dinenage)
Our liberty is one of the most fundamental of our human rights. Depriving people of that liberty is something that must be done with the greatest of care and with respect for individuals, and not as a tick-box bureaucratic process—a one-size fits all—that leaves vulnerable people without protections and in an unspeakable backlog. That is what we are facing today.
I thank all hon. Members for their contributions today. I will aim to cover all the questions that have been raised and will write to anybody whose points I do not get to. I start by stressing from the outset that liberty protection safeguards are not about detainment, but about appropriate arrangements being in place for the purposes of care and treatment.
We have heard it argued that the Bill has been rushed through. The Law Commission looked at this issue for three years, and the Joint Committee on Human Rights has looked at it. The Department of Health and Social Care has spoken endlessly to stakeholders. We are determined to get this right, but we continue to consult people across both Houses in order to do so.
Let me address the issue of three-year authorisations. This was a Law Commission recommendation, and the provision is geared towards people like my grandmother who live with dementia—people with long-term progressive conditions from which they are unlikely to recover. Their families tell us that they are part of an unnecessary and intrusive measure that they have to repeat every single year, when there is essentially no way that their loved one’s condition will improve. It is in such scenarios that the Bill allows the flexibility to deliver tailored protections that best support the individual depending on their needs.
The three-year renewal can be used only after two one-year renewals. Furthermore, the responsible body is required to specify a continuous programme of reviews if a person’s circumstances will change. That will address the issue of fluctuating conditions that was raised by my hon. Friend the Member for Faversham and Mid Kent (Helen Whately). We will also set out further details of fluctuating conditions in our code of practice.
The right hon. Member for North Durham (Mr Jones) talked about the code of practice, which will be a statutory document. It will be co-produced in consultation with the sector, the Local Government Association, the Association of Directors of Adult Services and the third sector, and it will be laid before both Houses. It will not be in the body of the Bill, because the problem at the moment is that there is a one-size-fits-all process in legislation, but people will have to pay regard to this statutory document.
The right hon. Gentleman also mentioned 16 and 17-year-olds. We have given very careful thought to how to include 16 and 17-year-olds and to how the Bill will interact with other legislation including the Children Act 1989, and we are very comfortable that it works alongside existing legislation. It is also a Law Commission recommendation to bring the provisions in line with the Mental Health Act, as he will be aware.[Official Report, 7 January 2019, Vol. 652, c. 1MC.]
Under the Bill, every authorisation must be reviewed by somebody who does not deliver the day-to-day care and treatment of the person. That is how we will avoid a conflict of interest for care home managers and independent providers. We want to drive a culture where independent hospitals are considering appropriate arrangements and where there are less restrictive alternatives available. This was also one of the Law Commission’s recommendations. However, we need to ensure that there are sufficient safeguards, which is why, in addition to introducing the consultation duties and the role for appropriate persons or independent mental capacity advocates, we will be tabling an amendment to ensure that every individual in an independent hospital setting will be assigned an approved mental capacity professional to complete the pre-authorisation review. That is regardless of whether the individual or their family object to the deprivation of liberty.
The hon. Member for Swansea West (Geraint Davies) talked about speech and language. It is vital that communication needs are considered where relevant, and we would expect that a speech and language therapist will be consulted in order to establish the individual’s wishes and feelings. It is really important that those wishes and feelings are very much at the centre of the process.
Members have spoken about the interface with the Mental Health Act. We have broadly recreated the current interface with that Act. The Mental Health Act review did make recommendations on that interface, but Sir Simon Wessely himself said that the Government need to consider the implications of the interface as part of the consideration of that Act. He said that the reform of DoLS cannot wait when there are 48,000 people waiting more than a year for protections to which they are entitled.
If the Opposition’s amendment succeeded, we would be stuck in a broken system with a bureaucratic backlog, in which 125,000 people are waiting for protections. Professor Simon Wessely said that this Bill strikes
“a better balance between the importance of care planning and the provision of (all too often) perfunctory and box-ticking procedural safeguards around that care.”
That makes it clear that action must be taken.
Through this Bill, we are ensuring that people’s wishes are always considered and respected, and that people are safe, cared for and looked after. We are talking about changing a system that is currently not fit for purpose. We have attempted to be collaborative at every stage of the Bill so far. We are driven by a relentless desire to make it as strong and effective as possible and worthy of the vulnerable people we are seeking to protect. We want their loved ones and healthcare professionals to have faith in it, and we will never swerve from our commitment to what is necessary, proportionate and in the best interests of the individual. We commit to working with individuals across this House to make sure that this Bill is in the very best possible shape.
Question put, That the amendment be made.
Diabetes: Artificial Pancreas
Caroline Dinenage Excerpts(5 years, 10 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Care (Caroline Dinenage)
I thank the right hon. Member for Knowsley (Mr Howarth) for his incredible work highlighting the importance of the right treatment for type 1 diabetes and of making use of technology in that treatment. I also thank him for giving us this opportunity to debate the issue. He has made some incredibly valuable suggestions, as indeed has the right hon. Member for Leicester East (Keith Vaz). I have listened with great interest and will carefully consider some of their fascinating suggestions.
Supporting the rising number of people with diabetes is one of the major clinical challenges of the 21st century, and improving outcomes and care quality for those living with, or at risk of, diabetes are key priorities for the Government. The right hon. Member for Knowsley correctly highlighted the role that modern technologies, when properly used, can play in the care of people with type 1 diabetes. Key to managing it is, of course, monitoring and controlling glucose levels, and—as he explained in great depth—a number of different technologies are available for that purpose, including glucose monitoring devices and insulin pumps.
As the right hon. Gentleman said, artificial pancreas devices are an emerging technology that combines continuous glucose monitoring with insulin pumps. One system, the Medtronic 670G system, which he mentioned, was recently approved by the US Food and Drug Administration and a European licence is being pursued.[Official Report, 23 January 2019, Vol. 653, c. 3MC.] Large randomised clinical studies of similar systems are now beginning and several are expected to come to the market in the next five years. Teams in the UK are leading some of that work.
The right hon. Member for Leicester East talked about the funding of research on diabetes. The Department funds such research through the National Institute for Health Research. In the last five years, the NIHR has awarded just over £144 million for work on diabetes, and 346 active projects are taking place across the NIHR infrastructure. One of them involves the closed-loop insulin delivery system to which he referred.
Giving people access to diabetes technology as swiftly as possible is, of course, a priority. Simon Stevens, chief executive of NHS England, said recently:
“Tens of thousands of people with Type 1 diabetes across the country will benefit from life changing glucose monitors on the NHS.”
The announcement referred to the FreeStyle Libre, a device that the right hon. Member for Leicester East also mentioned. NHS England will ensure that flash glucose monitoring is available on prescription to all patients who qualify for it in line with current recommendations. From April 2019, all qualifying patients will be able to receive it from their local GP or diabetes team.
The right hon. Member for Knowsley talked a lot about structured education and psychological support. In line with existing NICE guidelines, structured education should be offered to all patients within 12 months of diagnosis of diabetes. As he said, reported attendance levels at structured education courses have historically been low, but they continue to increase, and this year alone NHS England has invested £10.5 million to improve attendance by people with type 1 and type 2 diabetes.
Keith Vaz
May I pursue another point raised by my right hon. Friend the Member for Knowsley (Mr Howarth)? I understand that the NHS is still paying providers, even though people do not turn up. That is a big problem. We need to look at the providers. There is a reason why people do not turn up. We need to change the system in order to make them more able to do so.
Caroline Dinenage
That is an excellent point. The purpose of the £10.5 million that I have just mentioned is to improve attendance. It is clearly necessary to look at the way in which the service is provided and at who is providing it, and to ensure that it is provided in a way that will make people attend.
The right hon. Member for Knowsley spoke about improving care for those with diabetes and eating disorders, including what is often referred to as diabulimia. I think he will be pleased to hear that NHS England is supporting two pilots to test, trial and evaluate the effect of integrated diabetes and mental health pathways for the identification, assessment and treatment of diabulimia.
We will continue to create a health system that supports innovation, promotes the testing and development of health technology, and ensures that the best innovations are used so that patients can benefit as quickly as possible.
Question put and agreed to.