Mental Capacity (Amendment) Bill [Lords]

Alex Cunningham Excerpts

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

[Alex Cunningham (Stockton North) (Lab)]

First, I declare my interest as chair of the all-party group on social work. This very Bill was the subject of our most recent meeting, when we heard from those working in this sector. These are no doubt some of the most important issues we could be debating and legislating on, and judging by the attendance at the all-party group meeting, it could not be more important to the policy makers and professionals in the field. This legislation governs the rights of individuals and the people who can deprive them of one of their most basic fundamental rights—freedom.

Some of the people attending the all-party group felt the Bill had made some progress with the amendments in the House of Lords, but it is fair to say that the Bill is simply not yet good enough. I really think that the Government need to pause, think again about the implications of the plans that Ministers are putting before us today, listen to the countless charities, other organisations and professionals that work with the legislation every day and then come back with a Bill that is fit for purpose.

This cannot and must not be a basic political argument between the Government and the Opposition; it is a debate between law makers and the people, some of whom at a particular time in their life can be subject to some of the most restrictive legislation we have. It saddens me that this could be another Government measure to cut the costs of associated assessments under the current Act.

There is a wealth of briefing material, from organisations as diverse as the Law Society and the Royal College of Nursing, outlining concerns that need to be discussed and addressed through the legislation. There are serious issues with potential conflicts of interest, but I think the Minister knows that. Imagine a scenario in which a care home manager is making a decision on someone’s life but has a financial interest in making a judgment either way. The Royal College of Nursing shares my concerns on this. Care home managers may feel under pressure in their workplace, meaning that they may make decisions that are not always in the best interests of the person they are caring for. There should not be any vested interest—only an interest in the wellbeing and freedom of the person concerned. Issues have already been raised about private hospitals. A private hospital could authorise deprivation of liberty, knowing that it would benefit financially from that. I know that the vast majority of people are honest and work in the best interests of those they care for, but such judgments should be made by a genuinely independent person.

My hon. Friend the Member for Swansea West (Geraint Davies) mentioned the Royal College of Speech and Language Therapists. There is a real and genuine risk that people may be wrongly deemed to lack mental capacity because any communication needs they have are not properly recognised. Nothing short of full staff training on communication needs—for everyone in the system—would be satisfactory as a measure to ensure that people are being assessed correctly and that any additional needs are addressed.

[Rebecca Pow (Taunton Deane) (Con)]

The hon. Gentleman is making a very sound point. Given the importance of communication and of being able to assess people correctly, does he agree that it may be beneficial to add speech and language therapists to the list of approved mental capacity professionals, which would benefit some of the people being assessed?

[Alex Cunningham]

That is not something that has previously come to my attention, but I am sure the organisation would very much like to look at that possibility.

Following on from that, there must be a suitably qualified person carrying out the assessments and they must also be independent. A skilled approved mental capacity professional should be involved before a person is placed in an institution, not just when there is an objection or a trigger. There needs to be further clarity on the role of independent mental capacity advocates. Considering that the Bill in its current draft would allow responsible bodies to detain someone without renewal for up to three years, leaving people deprived of their liberty for inappropriate lengths of time, it is essential that there is genuine independence when it comes to such an assessment.

[Dr Poulter]

The hon. Gentleman is making some very good points. I am sure he is aware that, for a section 2 or section 3 admission to be approved under the Mental Health Act, there needs to be a second-opinion doctor—it is good practice for that doctor to be independent—and a social worker to ensure that the section admission takes place. It therefore seems extraordinary to me that, in a similar situation where there is an issue of capacity to be decided, there is not the safeguard of a second opinion, given that the decision may last for three years.

[Alex Cunningham]

I would certainly bow to the expertise of the good doctor and acknowledge exactly what the hon. Gentleman says. These second opinions and safeguards are absolutely essential, and I do not see such cover in the Bill at the moment.

Another concern I want to highlight is the lack of consultation and clarity about extending the scheme to 16 and 17-years-olds, and the risk that the new scheme will make it easier for authorities to remove young people from the care of their families, despite the family objecting. The Government must go back and give careful thought and consideration to the risk that 16 and 17-year-olds could see their liberty restricted inappropriately.

This issue has already been mentioned, but I too am concerned about the fact that there is no real acknowledgement of the interface between the Mental Capacity Act and the Mental Health Act, although the Secretary of State said it would be considered. I am no expert in this area, but does the Minister not agree that, as the Wessely review on the Mental Health Act has only just been published, the Government should pause the Bill to look at its recommendations properly, rather than risk creating legislation that does not fit together? Professionals must be able to understand the differences in regime and to clearly decide which is most appropriate.

We are dealing with changes to the law that any of our relatives, or even ourselves, could be subjected to in the future. We cannot just bounce this through the Commons and potentially hand substandard powers to a group of people who could rule the roost over an older person, a middle-aged person or a teenager, with nothing at all that their families could do about it.

There are plenty of people out there who are experts in this field; they could have been consulted and heard if there had been pre-legislative scrutiny of the Bill. I have some questions and concerns that have been raised by some of the organisations out there. From Inclusion London: does the Minister agree that the Bill makes it clear that deprivation of liberty cannot be used as a way to deliver care in the cheapest way possible? From the Royal College of Psychiatrists: can the Minister confirm that the Bill will not prevent psychiatrists from being called away from frontline services? From Mencap: what reassurances can the Minister give that all conflict of interest is removed from the Bill? There is plenty in there. From the Law Society: will the Government consider the interaction between the Bill and the Mental Health Act, as set out in their recently published review? Will they take the time to do that properly?

There are many other questions from many other organisations, and I hope that we have real time to address them if the Bill gets into Committee. I gather that the programme motion suggests that the Bill should come back towards the end of January, and there will not be a lot of time in January to consider the real issues. I just hope that the Minister will listen to that point.

Mental Capacity (Amendment) Bill [Lords]

Alex Cunningham Excerpts

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

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

I will be brief. My hon. Friend the Member for Rhondda (Chris Bryant) has tabled an excellent amendment, which I support. We know that the system is broken. What we are doing is replacing it with an even worse system. Just to acknowledge how broken the system is, the Alzheimer’s Society’s national dementia helpline receives over 100 calls a month about the Mental Capacity Act, which is clearly confusing and complicated for people with dementia, as well as for their families and carers. However, as we have heard, so many different disability organisations and a whole range of charities, as well as the Law Commission, are saying that this Bill is not fit for purpose.

I particularly support the amendments tabled by my hon. Friend the Member for Rhondda. The Greater Manchester Neuro Alliance, which I have supported for several years now, has several concerns, particularly about a person who presents inconsistently and has a cognitive impairment, mental health problems or is simply vulnerable and does not accept or appreciate their illnesses and the limitations. One member of the alliance from Oldham told me:

“My son has been deemed as having capacity because he can answer questions yes or no but he can’t be left alone or allowed to go out unsupported, he doesn’t take his medication and doesn’t have the ability to plan or manage anything including lifesaving treatment every three weeks”.

Such examples are not addressed in the Bill.

I will move swiftly on, Madam Deputy Speaker. I share the concern that my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley) has expressed so clearly about care home managers and the conflict of interest in the Bill. It is a minefield and needs to be addressed. She made that point clearly.

Amendment 48, tabled by my hon. Friend the Member for Stockton North (Alex Cunningham), would rightly prevent cared-for people from being charged for the assessments required by the system, potentially providing a financial incentive to do the mental capacity assessments. Without the amendment, we cannot be sure that people will not be charged more for their care solely because they require liberty protection safeguards to be granted. If the Minister does not accept the amendment, I would like to know why. On advocacy, we need to ensure that the “best interests” test is changed to place more weight on a person’s wishes.

There are several other issues with the Bill. It has not had a sufficient airing. It has not been consulted on greatly, but I will hand over to my hon. Friend the Member for Stockton North.

[Alex Cunningham (Stockton North) (Lab)]

I had hoped to address several of the amendments signed by my hon. Friends and me, because this is a bad Bill with huge opposition across our society. It fails to protect people adequately, meaning they could be locked up without a proper process of assessment and without advocacy support—and that includes 16 and 17-year-old children. The protections for them are also inadequate, as they are for their parents. Time is against me, however, so I will turn straight to amendment 48, which stands in my name and that of my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams).

There is a genuine concern among organisations in the sector that vulnerable people, particularly those receiving private care, may be charged for an assessment or for assessments to be carried out. I know the Minister got a bit fed up with me banging on about funding and about the fact that local authorities such as mine in Stockton-on-Tees have lost millions of pounds in funding and that budget reductions are continuing across health. I have also addressed the tight margins on which care homes operate and the need to ensure the sector remains viable.

We know that the sector is strained financially and might feel it has no choice but to implement fees and charges for the assessment of clients’ mental capacity. The intention of the amendment is to ensure that this does not happen. Several written submissions to the Public Bill Committee raised concerns about the absence of any provision for a fee for medical professionals to provide medical evidence.

This is the right point to refer to the revised impact assessment published by the Government. I and other Opposition Members have been contacted by academics accusing the assessment of perpetuating a myth by saying that GPs will provide diagnostic evidence and conduct capacity assessments for the LPS and that this will have no resource implications. What total nonsense. How has this conclusion been reached? I have not heard from a single body or GP arguing it will have no resource implications—quite the opposite.

The experience of judicial DoLS applications to the Court of Protection seems to be that GPs are very reluctant to provide such evidence, either because they do not feel skilled enough to do so or because they require payment. This means that someone will have to pay a fee for the medical assessment, and there is nothing in the Bill or the NHS charging regulations to prevent it from being passed on to the person themselves.

Evidence shows that that is already happening. Southfield House, a care home in Stockport, was found to be charging residents £250 if they required a deprivation of liberty authorisation. A complaint was lodged with the Care Quality Commission by Edge Training, but it was told in response that that was allowed. What was that £250 for? “An application to the local authority requesting an assessment” appears to cover it—and after that, there was the £125 annual fee. Individuals who are going through what can only be an extremely emotionally difficult process are being charged hundreds of pounds for the luxury.

It is frustrating that the care home is well within its rights to make those charges. A spokesman put it best:

“The social care sector…is currently under huge financial pressure. All tasks from care to admin to facility carry a cost”.

Because the sector is underfunded, the Government consider it appropriate to take financial advantage of the most vulnerable people in society.

I do not intend to press the amendment to a vote, but I think that the Minister must take on board the whole issue of charges. At present, the law gives care home managers and others carte blanche to charge exactly what they want. There are no limitations whatsoever. I ask the Minister, perhaps at the regulations stage, to come back with specific ideas to restrict care home managers and others from exploiting those vulnerable people.

[Chris Bryant]

I was expecting my hon. Friend the Member for Stockton North (Alex Cunningham) to go on a bit longer, but now that I have the Floor, let me say this.

There is quite a bit of consensus, certainly among Labour Members, that there are elements of the Bill with which we are not happy, and I am sure that we will vote on those in a few moments. What the Minister said earlier makes me hopeful that she will do her level best to ensure that the way in which the needs of people with acquired brain injuries can be met will be clearly laid out in the code of conduct. As my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams) said, some of the issues are very specific to them; they are different from those affecting other people in the same category.

The deprivation of liberty is one of the most important issues that Parliament ever has to consider. We all accept that, and it was referred to by both the Minister and my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley). I hope that we manage to get the code of conduct right, at the right time, and that the process we use ensures that as many as possible of the users, patients, carers and organisations that are involved in this matter on a daily basis have a real opportunity to feel that they can own that code. I think that that is the point at which the Minister might manage to assuage some of our concerns, although some Labour concerns are extremely strong.

As I told the Minister yesterday, I do not intend to press my amendment to a vote. She is smiling now. I therefore beg to ask leave to withdraw the amendment.

Question put and agreed to.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Barbara Keeley]

That is very much the case. We asked on Second Reading for some consideration of the interface between the two.

As well as the issue of care home managers, there is a real concern about the restrictions on access to advocacy under the Bill. Advocacy is a fundamental pillar of any system for authorising deprivation of liberty. The Bill means that vulnerable people who need an advocate may not get one, and amendments that could have changed that have been rejected. The use of a best interest test to decide whether someone gets an advocate has been widely criticised. The Government could and should have removed the reliance on the best interest test.

The maximum renewal period of a deprivation of liberty authorisation is tripled by the Bill. As the right hon. Member for North Norfolk (Norman Lamb) said, the Mental Health Act review is moving in one way while this Bill moves in another. The Bill could see people being detained for three years at a time without a full reconsideration of their case. The only safeguard against that being misused is a series of regular reviews, but we do not know how regular those will be or what they will look like.

In Committee, the Government introduced a new definition of deprivation of liberty to the Bill. It is woefully inadequate and will inevitably result in costly litigation. The Government introduced the definition late on, with next to no consultation. The clashes between that definition and existing case law will lead to court challenges. The definition will see some people deprived of their liberty without the safeguards they need, while the issue is sorted out in the courts.

The process that the Bill has been through could be used as a case study of how not to make legislation.

[Alex Cunningham]

Will my hon. Friend give way?

[Barbara Keeley]

I do not have time, I am afraid.

The Government have consistently tried to push the Bill through as fast as they can, with minimal consultation. It should be clear that stakeholders are united in thinking this a poor piece of legislation, and on many issues the Government have failed to address their concerns. On Second Reading in the House of Lords we heard the Bill described by Baroness Barker as

“one of the worst pieces of legislation ever brought before this House.”—[Official Report, House of Lords, 11 December 2018; Vol. 794, c. 1247.]

The Bill may have improved slightly, but there has been too little progress for us to support its becoming law. It would enshrine a fundamental conflict of interest and weaken the current safeguards of people without capacity.

It was clear from the start that the Bill was intended to shift the costs of authorising deprivation of liberty away from the state and on to private providers. This matter is too important for us to pass a Bill that we know will not work properly simply because Government budget cuts have created a problem. The Government chose to continue to cut local council budgets; as a result of that lack of resourcing, tens of thousands of people are being deprived of their liberty without authorisation. Letting the backlog build up was a political choice, but this Bill is not a solution. It will not adequately protect people’s human rights, and replacing one bad system with another will not be progress. If the Government were serious about protecting people’s liberty, Ministers would have paused the Bill, which we called on them again today to do, and given local authorities the resources they need to address the backlog. They could then have given this matter the time, consultation and consideration it needs before beginning a new Bill that does not weaken the protections that vulnerable people rely on.

I thank members of the Public Bill Committee, our excellent Whip, all the hon. Members who contributed to this shortened debate tonight and, particularly, the Clerk to the Committee. I urge right hon. and hon. Members to join us in voting against this flawed piece of proposed legislation that undermines the human rights of vulnerable people who lack capacity.

Question put, That the Bill be now read the Third time.