Mental Capacity (Amendment) Bill [HL]

Lord Touhig Excerpts

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Baroness Barker]

My Lords, I have tabled one amendment in this group, Amendment 75. I do not wish to rehearse the arguments we had on the previous group but I want to put one question to the Minister. Why in paragraphs 36 and 37 do we suddenly see the term “relevant person” being introduced? It is quite confusing and I shall need to go back and look at Hansard. I do not want to make a wrong accusation, but I think there is confusion about the terms “relevant person” and “appropriate person”, when in fact they are two completely different things. My understanding is that a “relevant person” is either the responsible body or a care home manager, so why do we not talk about that? If that is what is meant, let us be up-front about it.

Amendment 75 asks why the appropriate person as we know them under the Mental Capacity Act has to have capacity to consent to being supported by an IMCA if the purpose is not just to put another hurdle in the way to make sure that these people—let us bear in mind that they do not have a right to be given information under this Bill—have to make a request of the care manager or the care home manager. The noble Baroness, Lady Thornton, is right to say that the Minister has talked about care home managers and care managers; they are different, but all of them have a potential vested interest in making sure that someone does not have access to an IMCA. That, I think, would be a gross dereliction.

[Lord Touhig (Lab)]

My Lords, these amendments go some way to ensuring that a cared-for person is not left without an independent mental capacity advocate or the support of an appropriate person. Much of the Bill as it stands represents what I think is a real assault on human rights. For heaven’s sake, we should be listening to the contributions of the noble Baronesses, Lady Hollins, Lady Barker and Lady Finlay, and that of my noble friend Lord Hunt. He has shared with me the email from the carers of HL and it is very powerful. My father was a miner and he would have said, “This is the experience from the coalface”. We can take this as an important contribution to understanding the difficulties that families face when they have to deal with the issues we are discussing.

Amendment 66 would give a local authority discretion to appoint an appropriate person or an independent mental capacity advocate without notification from a care home. Mencap and others have argued most powerfully that this amendment would minimise the risk of conflict of interest. That is important, as we have seen in other debates. It would mean that a care home arrangement could be more easily challenged and subject to scrutiny. Is not challenging and scrutinising what we do every day in this House? We challenge and scrutinise legislation brought forward by the Government; that is our role. Why would we deny that opportunity to the vulnerable people we are talking about in this Bill?

As it stands, the process for deciding whether to appoint an appropriate person or advocate requires a series of capacity assessments and best interest decisions made by the responsible body or the care home manager, even though both convention and domestic law have made it clear that there is no place for best interests in Article 5 appeal rights. Unless we effect change, this Bill will pass into law and we will see a cared-for person without the appropriate support of either an independent mental capacity advocate or an appropriate person—and that at a most crucial time in their life. That cannot be right. Amendments 76 and 77 are important if we are to ensure that the appropriate person gets the support they need for the role they have undertaken. We have had several long and important debates during the passage of the Bill. These amendments are reasonable and surely the Government must now start to listen.

[Lord O’Shaughnessy]

I thank all noble Lords who have put their names to these amendments and given us the opportunity to carry on what has been a very good discussion so far about the important role of IMCAs and, indeed, appropriate persons as well. I shall deal first with Amendments 65, 66, 67, 69, 70 and 76 as they relate to the circumstances under which a person can request an IMCA and under which an IMCA can be appointed.

As I said in the previous debate, it is our intention not to have any reduction in advocacy or support as a consequence of the Bill. Indeed, it is our position that a responsible body should be able to appoint an IMCA if there is a request by a cared-for person or family member and either a care home manger has not provided notification or the responsible body disagrees with the notification given. As I also said then, I recognise concerns that the circumstances under which an IMCA can be appointed would be narrowed as a consequence of the Bill, which is not something we want to happen. I do not want to rehearse the entire debate we had last time other than to say that it was a good one. I have assured noble Lords about what I want to take away from that, which is to consider the appropriate way in which we can go forward with the role of the care home manager while making sure that all concerns about restrictions to advocacy and so on are adequately put to bed.

I want to make a point on Amendment 75, which falls into this set of amendments, about why the term “relevant person” is used. I am not quite sure why, specifically; rather, I have an idea, but I do not want to get it wrong. It would be safer for me to write to the noble Baroness, Lady Barker, about why that phrase is used and circulate it to noble Lords. Certainly, this is already a complex piece of legislation with lots of terms and jargon; for goodness’ sake, let us not increase that, if at all possible.

I want to take up the challenge from the noble Baroness, Lady Barker, on rights to information. During the previous debate, I tried to make it clear that we will set out the right to information but rights to information—not rights to request it—have been strengthened by a variety of legislation, some of which has nothing to do with the care of people lacking capacity. I also said last time that we are reviewing the Bill to see if it needs to be revised to achieve the outcome that the noble Baroness wants. I know that she is concerned about this, but work is under way to try to resolve this issue.

Moving on, we have not previously discussed the term “appropriate person”, which relates to Amendments 73, 74, 77 and 80. This is a good opportunity to speak about the important role of the appropriate person in the new model. As noble Lords know, under the DoLS system the relevant person representative—we are getting into difficulties of language—can be a family member, a paid role or even an advocate. That can unnecessarily give rights to two separate advocates. There has been confusion about the purpose of the RPR and how it differs to advocacy. Our intention is that the appropriate person role will be clearer, not least because it is a familiar part of the Care Act, where the appropriate person facilitates the person’s involvement in the care process.

Obviously, that person provides a vital safeguard for the cared-for person. They are appointed to represent and support the cared-for person, ensuring that the person’s rights are protected and that the person is fully involved in decisions. As I said, that is already established under the Care Act for the purposes of caring. The role of appropriate person can be fulfilled by a family member, someone close to the cared-for person, someone with lasting power of attorney or a volunteer. I know from previous discussions how keen noble Lords are to make sure that the voice of the person is central to discussions about their care and the deprivation of their liberty. Clearly, the appropriate person has an essential role here.

The noble Baroness, Lady Hollins, asked specifically about the question of a right to act. It is all very well appointing somebody—they also have to be willing to be appointed—but when appointing an appropriate person or recognising one, the responsible body has to be confident that the appropriate person is prepared to act. Indeed, that is part of their appropriateness. Otherwise, an IMCA should be appointed. That satisfies the noble Baroness’s question at the beginning about an appropriate person being appointed, but not about what happens if they lapse or the process by which they, or their appropriateness, would be reviewed. As it stands, I will need to reflect on that further to explain it to her. The process may well happen through the regular reviews, but I need to take that question away and think about how we provide reassurance that the appropriate person is in a position to act and wants to do so. Clearly, if an appropriate person, not an IMCA, was appointed but not prepared to act, the cared-for person would lapse into a situation where they did not have somebody in their corner, which we are all trying to avoid.

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[Lord Touhig]

My Lords, this group of amendments covers a range of things that need to be done before the commencement of the Act, and steps that should be followed later, as proposed by my Amendment 92. Noble Lords have made powerful arguments in favour of their amendments. In view of the lateness of the hour, I will confine my remarks to Amendment 92, tabled in my name, with the support of the noble Baronesses, Lady Tyler and Lady Jolly.

Amendment 92 would see two independent reports commissioned by the Government to be laid before Parliament within two and four years of the Act becoming law. The reports would provide a valuable update on how implementation was proceeding and would highlight areas for improvement. It has often been said that the Mental Capacity Act is a good piece of legislation that has been poorly implemented. If we want to see this Bill strengthened in all the areas we wish it to be, we will also need to monitor its implementation extremely closely, not least because the legislation affects some of the most vulnerable in our society and concerns their freedoms. Hundreds of thousands of people across England and Wales will be affected.

The amendment is modelled on the independent reviews that have accompanied the introduction of personal independence payments. The proposed report could look at a number of things: first, that decisions on whether someone’s liberty is restricted are truly being made in the best interests of the individual and not in the interests of providers or commissioners; secondly, that training is effective and ongoing and reinforces the rights of the individual; thirdly, that families and carers are involved and consulted as appropriate; and, fourthly, that advocacy is available to all who need it and is delivered effectively and impartially. Some very powerful arguments have been made in this short debate. I hope that the Minister will listen and that the Government will respond positively.

[Lord O'Shaughnessy]

My Lords, I am grateful to all noble Lords who have tabled amendments in this group. We have had a wide-ranging debate on areas where they would like to see various enactments, changes, reports and so on, before commencement and following implementation. I will attempt to deal with them thematically.

Amendment 86 requires that before commencement the Government must publish the code of practice and our response to the Mental Health Act review. Amendments 93 and 94 update Clause 5 to reflect this. I am happy to confirm that the Government will have published both of these before the new system commences.

Amendment 87 requires that the effectiveness of the Act is reviewed and a report laid in Parliament within a year of the Bill coming into force. As the noble Lord, Lord Touhig, just pointed out, Amendment 92 requires the Secretary of State to commission two independent reports on the operation of the new liberty protection safeguards scheme two and four years after the new system comes into force. Again, I am happy to assure noble Lords that the Government routinely conduct post-legislative scrutiny for all new Acts. The relevant guide says that within three to five years of Royal Assent the Government will be required to submit a memorandum to the relevant departmental select committee with a preliminary assessment of how the Act has worked in practice. I am happy to confirm that the Bill will receive such scrutiny and the Health Select Committee will be informed.

Amendment 87A, in the name of the noble Lord, Lord Hunt of Kings Heath, details requirements regarding a number of topics. As he pointed out, a number of these have already been addressed in our debates, including unsound mind, issues around advance consent, the availability of non-means-tested legal aid, and others. We have had a debate on the rules and guidance around IMCAs, which we are clearly going to take forward. He focused on tribunals. The Government are reviewing the courts and tribunals system but that review has not concluded. We are not proposing to change the position on the Court of Protection hearing challenges to liberty protection safeguards in the Bill precisely because there is not yet an opinion or a policy change from the Government with regard to a proposed new system. He also asked about the cost implications, which are outlined in our impact assessment, as he will know.

The noble Lord’s second amendment, Amendment 87B, seeks to make the CQC the regulator for the liberty protection safeguards. The Bill allows for bodies to be prescribed to report and monitor the scheme and it is absolutely our intention that the CQC takes on this role in England. It clearly has an important role in oversight of the new system, although we are concerned that his amendment would introduce additional layers of regulation. It should also be pointed out that the CQC is an England-only organisation; in Wales, the overseeing regulators are expected to be Healthcare Inspectorate Wales and Care Inspectorate Wales, which will both take on this role.

Amendment 87D was tabled by my noble friend Lady Barran and the noble Baroness, Lady Finlay. It would require responsible bodies to consider criteria to be published by the Secretary of State around best interests and the least restrictive option before authorisations are approved under the liberty protection safeguards. These are of course absolutely key principles of the Mental Capacity Act, and responsible bodies will have to consider them as part of any authorisation. As I have set out in previous debates, these factors already form part of the necessary and proportionate assessments, as well as other factors such as considering the wishes and feelings of the person. We will explain in the code how this assessment should be carried out and the factors that assessors should have regard to. I am grateful to my noble friend for some suggestions in that regard and I have just confirmed that the code would be published before commencement of the new scheme.

Amendment 87F, in the name of the noble Baroness, Lady Tyler, would remove the power of the Court of Protection to call for reports from local authorities and NHS bodies in cases relating to a cared-for person under the schedule. We think it is important, as I am sure she does, that the Court of Protection has access to such information but I heard the story that she told about an undue burden. I am certainly happy to commit to her that I will speak to colleagues in the Ministry of Justice to see whether there is any way that this process can be improved without removing the ability of the court to access the information it needs to make proper determinations.

Amendment 92A, in the name of the noble Lord, Lord Hunt, seeks to ensure that the liberty protection safeguards do not apply to any existing or pending DoLS authorisations. I can confirm that existing DoLS authorisations can continue until they are due for renewal or review. Clearly, depending on the final outcome of the Bill, the frequency with which those are renewed or reviewed will mean that there will be a steady stream of DoLS authorisations coming under the liberty protection safeguards in future, for those that are rolled over. Careful work will clearly need to be done with the sector to ensure that a tsunami of new authorisations does not happen but allowing for authorisations to continue under the previous system, until they can reach review or renewal, should go some way toward mitigating that risk.

Finally, Amendment 88, tabled by the noble Baroness, Lady Tyler, states that regulations should be subject to the affirmative parliamentary procedure and a consultation requirement. We have of course asked the Delegated Powers and Regulatory Reform Committee for its opinion on the regulation-making powers within the Bill and it has accepted that the negative procedure provides appropriate parliamentary oversight. As the Committee knows, we go against the DPRRC’s recommendations at our peril.

I apologise for detaining the Committee for six or seven minutes but I wanted to be thorough. I hope that I have been able to give the reassurances that noble Lords were looking for about the safeguards that we will put in place before commencement and the reviews of effectiveness to ensure that the system is working as intended. I hope that noble Lords will feel able to withdraw or not move their amendments.

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[Lord Touhig]

My Lords, I have spoken several times in Committee about my concern that the Bill as it stands is an assault on human rights. I have also mentioned in past debates that I am proud of the reputation of the all-party British delegation to the Parliamentary Assembly of the Council of Europe, so ably led by Sir Roger Gale, which has a proud record of defending human rights in that body. Article 5 of the ECHR protects our right to liberty and security. It focuses on protecting individuals’ freedom from unreasonable detention as opposed to protecting personal safety. As a result of Article 5, your Lordships and I have a right to personal freedom. That means we must not be imprisoned or detained without good reason. The Bill before us is about the quality of life, and the care and the respect of some of our most vulnerable fellow citizens. This amendment is about giving our fellow citizens, who may not have the capacity to defend themselves in the way that we take for granted, the same rights that we enjoy.

[Lord O’Shaughnessy]

My Lords, this is a good way to finish our Committee proceedings. I thank the noble Baroness, Lady Thornton, and the noble Lord, Lord Touhig, for tabling the amendment, and I thank the noble Baroness, Lady Barker, for speaking to it.

Clearly, not only ought it to be the case that the Bill is compliant with Article 5 of the European Convention on Human Rights, but it is also important to make it clear, as I did at the point of the introduction of the Bill, that its provisions are compatible with Article 5. As noble Lords will know, and as becomes painfully clear when you become a Minister and you see your name on printed Bills giving these kinds of reassurances, that is a process that we need to go through before introducing legislation. Clearly, there are still concerns about whether the Bill can be improved in giving force, as the noble Lord pointed out, to the rights under Article 5. Nevertheless, it is my view that the Bill is compatible with the ECHR.

Furthermore, because of Section 3(1) of the Human Rights Act 1988, primary and subordinate legislation must be read and given effect to in a way that is compatible with convention rights. It is already the case that the Bill must be read and given effect to in a way that is compatible with Article 5. My concern with the approach here is therefore not so much one of repetition but one of partiality because it only talks about Article 5. There is therefore a risk that if we implied that this legislation had only to comply, or had a special duty to comply, with Article 5 of the convention rather than the whole convention, that would not reflect our responsibilities under the Human Rights Act. Indeed, it could downplay critical protections that exist in the ECHR, such as the Article 8 rights to family and private life. So while I understand the motivation behind tabling the amendment and using it as an opportunity to rehearse some of the desire to improve the actions that will safeguard the liberty and security of the person, I do not think it is right to put such a clause in the Bill precisely because the Government have a broad responsibility to ensure not only that the Bill is compliant but that it is read and given effect to in a way that is compatible with all convention rights.

I hope that has provided reassurance to noble Lords that our intention, and indeed our obligation, is to provide not only for those Article 5 rights but for all other rights that apply under the ECHR. I hope the noble Baroness will feel able to withdraw her amendment.