Mental Capacity (Amendment) Bill [HL]

Lord Touhig Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 27th November 2018 Lords Chamber

[Lord O'Shaughnessy]

My Lords, the amendments in this group provide clarification regarding the form of the statements provided by the care home manager to the responsible body. I thank noble Lords and others outside the House who highlighted some issues that these amendments attempt to address.

Amendments 41 and 96 outline that the statements provided by the care home manager to the responsible body under paragraphs 14 and 28 must be in writing. This issue was rightly raised by the noble Baroness, Lady Barker, and others at Second Reading and in Committee. It has always been the Government’s intention that the statement be a written one, and I gave assurances to noble Lords during Committee that the Bill would be updated to be explicit on this.

Passing these amendments, although they are simple and straightforward, is important, because it will mean that care homes are not able to provide statements over the telephone, as sometimes happens now. This is a valid concern about the future system. The amendments will help to ensure the quality of assessments and pre-authorisation reviews, and that there will always be a written record of the basis for decisions. It is vital that statements be in writing in order for a thorough pre-authorisation review to be completed and for proper evidence of assessments and consultation to be provided.

Under the current DoLS system, care homes are required to complete a “form 1” when making an application. We envisage that under the liberty protection safeguards there will be a similar form, updated and tailored to the new system. I hope this amendment makes it clear to all noble Lords that the Government do not want to see any weakening of safeguards as a result of our reforms.

Amendments 47 and 59 clarify that the necessary and proportionate test is based on an assessment, and that the care home manager’s statement under paragraph 14 must be accompanied by a record of that assessment and a record of the medical and capacity assessments. This was always the Government’s intention. Its omission was a simple drafting error, for which I apologise and which we are now rectifying.

I hope noble Lords will be able to support these minor but vital amendments, which will clarify how the system works in practice. I beg to move.

[Lord Touhig (Lab)]

My Lords, at Second Reading I said that there was much to be concerned about in this Bill and that I really hoped the Government would be in listening mode. For the most part, the Government have listened and have made improvements, thanks to the willingness of the Minister and Bill team to listen and to the hard work and commitment of noble Lords on all sides of the House, who have pursued improvements with all the energy they could command.

Government Amendments 41 and 96, requiring a care home manager to provide a written statement to the responsible body to authorise and renew arrangements, seem pretty obvious. Most of us would think that it is common sense to provide a statement in writing, but my late mother would often lament that I would find that, in life, sense is not that common. We certainly welcome these amendments.

The same applies to Amendments 47 and 59, which will ensure that the determination that arrangements are necessary and proportionate is to be made in an assessment, and that a record of this assessment must accompany the statement from the care home manager to the responsible body before an order to authorise arrangements is made. This is also most welcome. On this side, we certainly welcome these amendments.

[Baroness Barker]

My Lords, I also welcome these amendments and want to make a brief observation. Since the summer, like many other noble Lords, I have spent a great deal of time talking to practitioners and stakeholders. If one were to try to thoroughly amend and improve the DoLS and LPS systems, you would start not with the role of the care home manager but with the paperwork and the bureaucracy. Before the code of practice is written, the Government would do well to spend some considerable time talking to local authorities and practitioners about paperwork and communication, because that is perhaps the biggest cause of the backlog of people who have yet to have a proper assessment.

I hope that the Minister will take on board what noble Lords have said on this matter. It is not a commitment to the current way of doing things; rather, although noble Lords are committed to ensuring that people are sufficiently informed, we are not averse to changing and modernising the systems to make them work more efficiently.