Mental Capacity Act 2005 (Select Committee Report)

Lord Beecham Excerpts

Tuesday 10th March 2015 Lords Chamber

[Lord Beecham (Lab)]

My Lords, this is one of those perhaps rare occasions on which we debate a significant issue in a manner transcending the usual political perspectives which, perfectly properly, often characterise our proceedings. I am grateful to the noble and learned Lord and the four members of his committee who have spoken today, but mention particularly the noble Baroness, Lady Warnock, who I understand has given notice of her intention to retire from the House on 1 June. Her contribution today was interesting, as always, and the whole House will in due course want to pay tribute to the very significant contribution she has made to our proceedings over very many years.

As we have heard, and as the Select Committee itself proclaimed, the 2005 Act was both important and visionary, and it commanded support not only across the political spectrum but from a wide range of interests, both professional and among organisations and individuals concerned with the problems facing those suffering from mental health issues or learning disabilities impinging on their capacity to make decisions about their lives. It is clear that the potential of the Act is yet to be fully realised, as both the Select Committee report and the Government’s response confirmed.

A lesson that we as part of the legislature should perhaps learn is that post-legislative scrutiny in such sensitive areas of public policy should not be deferred for long periods. The committee report was published nearly nine years after the legislation was enacted. The Government responded with commendable expedition within four months. It has taken a further nine months for the House to have the opportunity to debate the matter. As the noble and learned Lord rightly pointed out, in this particular case, that may have been to the general advantage because the Government have responded and accepted a large number of the committee’s suggestions.

It was not any fault of the committee or, perhaps, the Government, that that time has been taken, but it is something that those responsible for the business of the House should consider. If post-legislative scrutiny is to be generally effective, it should surely be timely, arguably ranking somewhat higher among the priorities for debate—other, of course, than for legislation itself.

Having said that, I congratulate the noble and learned Lord the chairman and the committee members for a thorough and constructive analysis of what has happened and, perhaps more importantly, what has not happened, to fulfil the aspirations of the Act. I also welcome the helpful information supplied by the Minister describing what has been done in pursuance of the fairly long list of topics identified in the Government’s response. Items 32 and 34 of the information we received on Monday dealing with legal aid are disappointing. Reliance on the exceptional funding scheme, especially when we are considering this area of law and given the dismally low rate of successful applications under that scheme, is unacceptable.

Members with greater and longer knowledge of the topic than I could claim to possess have identified many of the areas of concern. I will not reiterate the matters that they have raised, but will emphasise some broad issues which need to be addressed if the intentions of the Act are to be fulfilled. My professional experience in this field of law as a solicitor was fairly limited, confined effectively to dealing with the Office of the Public Guardian and the Court of Protection in personal injury cases and in the area of wills and probate. I found both bodies difficult to deal with. There were long delays in dealing with both correspondence and process, failures to involve deputies—for example, under powers of attorney—or ensure timely visits to check on the position of patients led me at one stage to write to my noble and learned friend Lord Falconer about the problems that were being occasioned.

The move of staff to Nottingham seemed to precipitate a distinct deterioration in the service. In fairness, I gather that there has been a marked improvement in the performance of both bodies in the past two or three years, with correspondence and turnaround times for registration of lasting powers of attorney, for example, having been much improved, and the fees for the latter actually reduced. I mention the latter with some hesitation, lest the Lord Chancellor be tempted to consider full cost or more than full cost recovery in that respect.

The two main worrying areas identified by the committee and acknowledged by the Government are the failure to ensure that the aspirations of the Act are recognised not only by members of the public, including those suffering from incapacity, but, critically, by professional and other carers, including family and friends, and the important but discrete issue of deprivation of liberty safeguards.

As many have stressed, it is essential that the five principles of the Act, beginning with the assertion that capacity is to be assumed unless the contrary is established, and the other principles which flow from that starting point, be more widely understood and applied. It is clear that that objective has not yet been achieved. Moreover, it is also clear that it will often be achieved only if all the relevant partners and agencies are aware of their responsibilities and work effectively together. We are becoming increasingly aware as a society that increasing numbers of us are likely to need not just physical care but help when it becomes questionable whether we can make decisions for ourselves, and perhaps ultimately necessary for some to be made on our behalf. Nor is this something confined to the elderly; advances in medical science mean that younger people are living longer with conditions that impair their capacity than used to be the case. In this context, we need to ensure that there is effective cross-sectoral collaboration in planning and financing relevant support services, and oversight and evaluation of need and the effectiveness of provision. Thus far, the Care Quality Commission appears to have some way to go to achieve this but more is needed, too, from other agencies.

The first port of call will in many cases be the general practitioner, but hospitals, and NHS England generally, local government and the voluntary and community sector need to be jointly engaged. Within local government, this area cannot be confined to social care services as housing, leisure, public health and perhaps transport may well have a role. In two-tier areas, that will require collaboration between the county and district tiers. The police and emergency services also need to be alert to the issues so that they can, if necessary, refer cases to the appropriate agency.

Local oversight should take place within the health and well-being boards and the health scrutiny committees of councils. I declare my interest as a member of the relevant committee in Newcastle. The financial implications for local authorities in dealing with what will be a rising need will have to be examined. I will return to this aspect when I deal with the deprivation of liberty issue. I welcome the initiatives of the Local Government Association and the Association of Directors of Adult Social Services in developing a self-assessment tool and peer challenge for local authorities, along with a commissioning guide and the appointment and training of Mental Health Act leads in councils and the National Health Service.

I also welcome the Government’s decision to appoint a mental capacity advisory board to oversee and report annually on the implementation of the Act, at least pending the review to which the noble and learned Lord referred and which the Government are going to undertake. It may be that that initial step will be superseded by a return to the committee’s original proposal. I will certainly be interested to see how things develop over the next two or three years, while the Law Commission considers the matter, and whether the Government of the day keep an open mind as to an eventual outcome.

I hope, too, that the remit of any such body will extend to oversight of the Court of Protection and the Office of the Public Guardian in the exercise of their responsibilities, both to those suffering from a lack of capacity and those who assume responsibility for them. However, an understanding of the issues and knowledge about how they impact on individuals needs to extend well beyond the statutory services. Those who have to deal with people whose mental capacity is an issue need education, training and oversight in how they carry out their responsibilities—especially, perhaps, those dealing with the personal and financial affairs of clients who may have problems. Lawyers, accountants, banks, insurance companies and those engaged in financial services must also be equipped to recognise possible problems and be alert to the necessary responses.

Some Members of your Lordships’ House will have seen the briefing from Compassion in Dying, which identifies issues with advance decisions in relation to medical treatment and the need to reflect these in the training and support of professionals, volunteers and others concerned with end-of-life rights. A number of your Lordships have referred to that issue today.

Lastly, I turn to perhaps the most difficult and sensitive issue, that of the deprivation of liberty safeguards. As the report makes clear, this has been an area of great concern. Members may have seen the very troubling accounts of some cases supplied in briefings for this debate. The committee was critical of the way that the existing safeguards have been applied by the professionals whose responsibility it is to implement them, and sceptical about what it regarded as the low number of DoLS applications: just under 12,000, when there were 200,000 people with dementia living in care homes and only 1,600 authorisations in place at any one time. Witnesses suggested that thousands—perhaps tens of thousands—were being detained without the protection of the law and the means to challenge their deprivation. Their scepticism is borne out by the latest information provided by the Minister, and referred to by the noble and learned Lord, showing as many as 90,000 applications for the first nine months of 2014-15—a startling increase with potentially massive implications for resourcing in terms of process and services.

Mencap has reported continuing complaints from families excluded from best interest decisions. It is extremely disturbing that 55% of the 3,000 patients with learning disabilities in in-patient units experienced self-harm, accidents, assaults, restraint or seclusion last year. Can the Minister advise us on what progress is being made in involving families in best interest decisions, particularly in that category? What is being done to ensure that professionals involved in the transforming care programme are being equipped effectively to implement the Act?

The Supreme Court decision in the Cheshire case last year, about which we have heard, has led very properly to a significant increase in applications requiring assessment and the application of safeguards, the cost of which is estimated by the Local Government Association and the Association of Directors of Adult Social Services as £96.8 million a year more than the existing funding of £35.2 million. This is in effect a new burden and the Government need to bridge the gap.

Today I have received some disturbing information from Newcastle City Council, of which I am a member. Currently the council has received 847 requests, 696—that is 80% of them—from care homes and 151—the other 20%—from hospitals. The council estimates that the cost of dealing with these cases will amount to £1.2 million this year just for this authority. That has to be found from within the council’s own budget, which is already suffering a 48% cut. In the absence of government funding for this significant new need there is a clear risk of further cuts to already stretched services, and that will apply, I suspect, to many other local authorities. I hope that the matter can be addressed urgently by the relevant government departments—the Ministry of Justice, the Department of Health, and the Department for Communities and Local Government. Of course, I do not ask the Minister tonight to write any cheques, as it were, but the matter needs to be considered across the relevant government departments with some urgency. It is clear that demand is far outstripping what was originally envisaged.

The potential scale of the challenge is huge. Up to 670,000 people in England are living with dementia and are potential beneficiaries of the Act and over a million have learning disabilities, some at least of whom may also need its protection. We owe it as a society to ensure that they and their families and carers are properly supported, that their dignity and their interests are sustained, and that the intentions of the Act are realised. The committee’s report and the Government’s welcome response should facilitate this process and ensure that the situation is kept regularly under review and that these critical needs are met by society on behalf of those who are among the most vulnerable.