Mental Capacity (Amendment) Bill [HL]

Debate between Lord Touhig and Baroness Finlay of Llandaff

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Lord Touhig (Lab)]

My Lords, I thank the Minister and his team for their engagement with Members across the House, which has been very helpful. I strongly support the attempt, on the initiative of my noble friend Lord Hunt, to have this clause stand part debate.

In the past day or so, I have spent some time looking at advertisements for care home staff and managers. They vary greatly; there is no standard at all. One advert for the role of a care home manager said, “You will assume all aspects of responsibility for your care home and have exceptional man management skills”. A minimum of two years’ experience of managing a care home, with no other qualifications, was the only candidate requirement. Another advert said that there was an opportunity for someone seeking to develop their career who must have a solid residential care background on applying. It said that applicants should have a full working knowledge of CQC requirements, possess leadership and organisational skills, and be either qualified in or working towards an NVQ level 5 in social care management, a QCF 5 or equivalent. It took more of an interest in qualifications and was a bit hit-and-miss on whether the person should be fully trained. It said that candidates should have three years’ experience of social care and it would be preferable if they had some previous management experience.

A third advert offered an exciting opportunity for a care home manager with a view to becoming a registered manager if the applicant was not one already. The skills and qualifications needed were an NVQ level 5 in leadership and management, or to be working towards that. Again, that does not mean being qualified with all the necessary education and training. A fourth advertisement sought candidates with proven home management experience, strong marketing, commercial and business acumen and a clear and thorough knowledge of CQC standards. Your Lordships should note that possessing knowledge of CQC standards came third after marketing, commercial and business acumen.

My point is that this demonstrates that there is no agreed national standard for care home manager training. With this Bill, we are proposing to give them a huge new responsibility that will affect the quality of life of many vulnerable people in our society. This really needs to be revisited. We are taking a big risk with people who have no one else to defend them if we do not start defending them here.

[Baroness Finlay of Llandaff]

My Lords, to intervene fairly briefly, it is important that we remember that the current DoLS system has effectively fallen over. We have 108,000 people currently waiting to be assessed, so we have to do something. We cannot leave it running so there is an urgency to come up with some way forward. I remind the Committee that, whenever somebody is in a place of care such as a care home, the deprivation of liberty safeguards application—form 1—is a request for standard authorisation and has to be completed and sent in. That form asks about the purpose of the standard authorisation, and for a relevant care plan to be attached. It also asks why less restrictive options are not possible, and other things. So a degree of assessment is already going on at the care home and these forms are sent in. They are then sent to somebody to authorise them.

I worry that, in some of the briefings that we have had, it looks as though the care home manager will be able to authorise in totality, whereas, as I understand it—the Minister may correct me if I have this wrong—the care home manager will still be required to have the responsible body authorise. That responsible body will be able to look—and one would want them to look—at objections that may come forward from somebody. It is to be hoped they will go and visit if they feel there is a discrepancy between the care plan submitted and the original care and support plan that came from the local authority, which may have been involved in the pre-placement assessment that went on.

The idea behind these new approvals is that there is portability: the person may reside in one place, then be moved to hospital, go to outpatients, spend time in hospital and then come back to the care home. Within that portability, however, there is a requirement to review, if the circumstances change. We will come later to amendments that look at discrepancy between the care plan and the care and support plan as submitted. In other words, these are things that should trigger red flags in the mind of the authorising body, rather than the authorising body just being a rubber-stamping exercise, which is, I think, a misunderstanding that there may have been. If it is a rubber-stamping exercise, there are all kinds of dangers in that. Somehow, we have to filter out those people who really need an in-depth assessment and review from those people where the current processes are just burdensome, time-consuming and not contributing to improving their care. That filtering is really difficult. I offer that in the debate at this stage because it is worth looking at these forms, which I hope will be improved because there is not that much room to write on them.

Mental Capacity (Amendment) Bill [HL]

Debate between Lord Touhig and Baroness Finlay of Llandaff

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, this is really integrally linked. I have been trying to look at what would send a red flag, an alert, to an authorising body that this assessment needed to be looked into in detail and gone through with a degree of rigour—possibly with more time being able to be spent on it than can be spent currently—and that, in commissioning care, the local authority will have a care and support plan that defines what it is commissioning. It should have done a needs assessment and should commission against that and what it expects to be provided. What comes back on those assessments should mirror that care and support plan. What I have tried to do with this amendment is to highlight that, if there is not an almost identikit fit, that should not be given a margin of error but should trigger the need to visit that person and to look in detail at the care plan and its delivery. That might be the first sign that all is not well.

It may be that someone from the local authority visits and finds that the care and support plan, as commissioned, has been altered slightly because the person’s needs or ability to undertake activity have changed. It may be, in the best of circumstances, that something has been put in place that has enhanced the person’s ability to express themselves. I would use the example of music, where it has been found that by providing people’s favourite playlists, some people with really severe dementia are almost “unlocked” by the music—they are able to move in time to the music and their mobility and communication are better. Some people who have been unable to speak, even for years, recover some phrases and then, from that, begin to communicate verbally as well. And of course, we all know of people who appear to not be able to communicate but will then sing along to their favourite song, with all the words coming back again.

The purpose of the amendment is to say that, if there is not a close fit, that should be enough for the local authority to say that it is going to look at that in detail. That was the motivation behind my amendment. I beg to move.

[Lord Touhig]

This is a very small but very important amendment. Having spent 27 years in newspapers and publishing, I constantly came across issues and stories where people were having all sorts of difficulties, public services failed and systems failed because of lack of information. Certainly from my time as a councillor, as an MP and as a Minister, I passionately believe that we must be open and transparent and must share information. That is key to this part of the Bill, and we certainly strongly support the points made by the noble Baroness.

I do not intend to detain the House more than that, other than to say that the noble Baroness, Lady Finlay, may not be aware that, when I was a Wales Office Minister and she was a new Member of this House, she terrified my officials. They would come in and say, “Minister, it’s that Baroness Finlay again; she wants information on so and so”. She is pursuing her quest for information even today, which I think is very important and valuable. We strongly support her efforts in this area.