Mental Capacity (Amendment) Bill [Lords]

Debate between Dan Poulter and Baroness Keeley

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 12th February 2019 Commons Chamber

[Barbara Keeley]

It is not helpful if the Minister and I argue about this. We have had this argument enough times in Committee. She just needs to see that there is a level of concern. I am quoting a case where significant harm was done to a young person in a care home because the parents were not listened to and the care staff were.

[Dr Poulter]

I can understand where the hon. Lady’s concerns come from, but having had detailed discussions with my hon. Friend the Minister, I am reassured, perhaps more than the hon. Lady, by the systems and some of the amendments that have been put in place to take into consideration concerns about conflicting provider interest. She makes a good point on the lack of funds and resources and cash-strapped local authorities. Without the money to support local authorities, there is a real risk that scrutiny of care homes and the processes in place under the legislation will be sadly lacking, to the detriment of people under deprivation of liberty orders. What reassurance has she had, if any, during the passage of the Bill that the funding crisis affecting social care and local authorities is being addressed by the Government, both in respect of this legislation and otherwise?

[Barbara Keeley]

I thank the hon. Gentleman for that question. We have had no reassurances whatever. In fact, since the Committee finished, £1.3 billion has been taken out of central Government funding to local councils. Whatever our position was when we were in Committee, things are now much, much worse.

The Minister does not agree, but it is disturbing that we are still in the position on Report of trading the arguments back and forth. We gave lots of examples. There is provision in the Bill for an approved mental capacity professional. With our amendment we want to be sure that we do not have cash-strapped local councils delegating responsibility. There is talk under some amendments to bring in reviews, but reviewers have to be able and willing to stand up to care home managers, and that is a difficult thing.

As my hon. Friend the Member for Bridgend (Mrs Moon) said earlier, care home managers have a lot of power. They have the power to evict and the power to stop visits. Amendment 49 would work with amendment 50 to address the role that the care home manager could play. It is one of the most concerning provisions in the Bill, and it must be addressed if the new liberty protection safeguards are to be fit for purpose.

I do not in any way want to stigmatise care home managers, but I ask Government Members to accept that we are talking about a situation where at least 20% of care homes require improvement or are rated inadequate. Care home manager vacancies are at 11%. We are not talking about a situation where all care homes have a proper care home manager in place, or where they are all doing as well as they could. If the Minister reads many CQC reports, she will see that care homes often fall down on care planning. CQC inspectors often find that there is not a proper or adequate care plan for the situation.

Mental Capacity (Amendment) Bill [Lords]

Debate between Dan Poulter and Baroness Keeley

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons & Ways and Means resolution: House of Commons
Tuesday 18th December 2018 Commons Chamber

[Barbara Keeley]

The Minister says no, but Lord O’Shaughnessy in the House of Lords would not consider amendments tabled by two parties to deal with that issue. It is plainly wrong and represents a very clear conflict of interest.

Moreover, the Bill currently allows for the deprivation of someone’s liberty to be authorised for up to three years without review after two initial periods of 12 months, as the Secretary of State said earlier. It cannot be right to have that period of three years without renewal. The Bill is reducing the protections afforded by the current DoLS system, which operates a maximum period of 12 months before renewal.

[Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)]

The hon. Lady is outlining, with some good reason, the fact that there may be fewer safeguards and fewer opportunities for people to review or appeal under this Bill than when someone is sectioned under the Mental Health Act. She has a point about the need to look into that point, and to look more broadly at how this Bill sits alongside the Mental Health Act, given Simon Wessely’s review. Does she agree that a pause would be helpful to consider the interface of those pieces of legislation?

[Barbara Keeley]

Very much so. I will come on to that shortly, but I will not leave the point about independent hospitals, because it is important.

We know only too well from media reports, and the Secretary of State does too, of the torrid situation in independent hospitals that detain people with autism and learning disabilities under the Mental Health Act, and the measures in this Bill could have disastrous and far-reaching consequences. I have raised at the Dispatch Box on several occasions the appalling treatment of people with autism and learning disabilities in assessment and treatment units. I have described the situation as amounting to a national scandal, and I believe that it is still so. As many as 20% of people in these units have been there for more than 10 years. The average stay is five and a half years. The average cost of a placement in an assessment and treatment unit for people with a learning disability is £3,500 a week, but the costs can be as high as £13,000 a week or more.

As the journalist Ian Birrell has exposed in The Mail on Sunday, private sector companies are making enormous profits from admitting people to those units and keeping them there for long periods. Two giant US healthcare companies, a global private equity group, a Guernsey-based hedge fund, two British firms and a major charity are among the beneficiaries of what campaigners have seen as patients being seen as cash cows to be milked by a flawed system at the expense of taxpayers. According to a written answer I obtained from the Department of Health and Social Care, in the past year alone the NHS has paid out over £100 million to private companies for these placements. Shamefully, the Government cannot reveal how much they have spent since they came to power, because they claim that they did not record the expenditure before 2017. It cannot be right that the Bill potentially gives private companies the power to lock up vulnerable people for years at a time to feed a lucrative and expanding private health sector.

I would like to draw attention to one more issue that the Bill does not address—we have already discussed it—and that cannot be papered over by amendments. The Government commissioned Professor Sir Simon Wessely to lead a review of the Mental Health Act, which is of course long overdue for reform. However, as the hon. Member for Central Suffolk and North Ipswich (Dr Poulter) said, there is clearly a complex interface between the Mental Capacity Act and the Mental Health Act. Professor Sir Simon Wessely has made the point that there is now a worrying trend of people, particularly with dementia, being detained under the Mental Health Act when their deprivation of liberty should be dealt with under the Mental Capacity Act. His review recommended imposing a new line of objection to determine who should be treated under which legislation, but, as the hon. Gentleman said, there has been no engagement with these recommendations, which were finalised as this Bill was going through the House of Lords.

In our view, the Government must commit to a review of the interface between the two Acts, with full consultation, which has, to date, been sorely lacking. It is one thing to say that Sir Simon had a conversation with the Secretary of State about this, but that is not full consultation. The consultation must look at both hospital and community settings and provide clear and accessible rights of appeal.