Mental Capacity (Amendment) Bill [ Lords ] (Fifth sitting)

Alex Cunningham Excerpts

Tuesday 22nd January 2019 Public Bill Committees

That seems the perfect argument for the case my hon. Friend the Member for Worsley and Eccles South seeks to make. I ask the Minister to think about the variety of people we are asked to look after when applying this legislation. They may not all be elderly people; some may be quite young people, such as Layla, and may have a very long life ahead of them. Our duty is not just to offer them immediate protection, but to ensure that we do everything in our power to maximise their potential for the years ahead.

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to see you in the Chair again, Mr Austin.

As I reflect on what my hon. Friend the Member for Birmingham, Selly Oak was saying, I recollect that we were getting stories some years ago about people—possibly like that young person—who were suffering the fate that could have befallen her. In some cases, their only crime—the only thing they had ever done wrong—was to get pregnant; they were locked away in what, in those days, were called “mental institutions” because they got pregnant. We heard story after story, not so many years ago, of people coming out of those places having lived 30 or 40 years there, when there had been no mental capacity issues or anything like that at all—just something way back in their past. If people in that situation had had an advocate, we might never have had that situation or heard those stories of people being deprived of their liberty, particularly unlawfully, for decades.

To illustrate the case for this amendment—if my hon. Friend’s story does not do so—I want to use real-life examples provided by the advocacy provider POhWER, to which I am grateful. Imagine someone is in a care home; their same-sex partner of more than 30 years has passed away, but the care home staff have denied them the right to look at photographs of their partner, because the relationship they enjoyed over all those years went against God’s will. The staff are depriving that person of their liberty, unauthorised. The person is experiencing homophobia, and they are distressed, as they are not allowed to look at photographs of the person they spent their life loving. In time, however, they get an advocate; their distress is clear to the advocate, yet they smile and laugh when, at last, they are handed a photograph of their late partner. Situations such as that have happened, and are still happening.

Another case in the same care home centred on a cared-for person being prevented from attending the local mosque, because the care home manager, for some bizarre reason, felt the weekly visit from a Christian priest was sufficient to meet everyone’s religious needs. Having seen them operate in hospitals and all manner of places, I know that good priests, rabbis, imams or other religious leaders visiting care homes or hospitals do not discriminate; they will speak to anyone and spend time with them. They do that because their faith is driven by compassion and care, and they have a genuine desire to minister to people regardless of their faith, or even if they do not have a faith at all. However, that is no reason for a person to be denied the right to attend the building that serves them in their faith, but that, too, happened in this care home.

A one-size-fits-all arrangement across the wide range of services provided in a care home is not sufficient, and it certainly does not work with faith and sexuality. The people in those examples were helped in their respective plights, thanks to an advocate—someone who could help to put matters right, who ensured those people had what they needed and who, perhaps more importantly, had the capacity, skills and knowledge to point out the rights of the person in care and to make the point that the actions I described are discriminatory and could be unlawful.

Last week, the Minister rightly spoke in praise of care home managers, and I have made it clear that I believe the vast majority do a good job and are genuine carers. But they too are ingrained; they are stuck in the day-to-day running of their care home, and we cannot expect them to function as an assessor, an advocate or anybody independent whom a cared-for person needs. Even if they did have that responsibility, that would have failed to protect the two people in the two examples I gave.

The default position in the Bill should be that every person gets an advocate unless they actively refuse one after they have been given one. As I and others said earlier, it should be an opt-out rather than an opt-in—my hon. Friends have covered that in some detail. It is much better for a person to decide that they do not want an advocate than for them to be unfairly treated because they did not have anybody to speak up for them.

I agree with Mencap, which argued:

“The new scheme must ensure the right of the person to object to and challenge arrangements if they wish, and have the support and representation to do so”.

If the person in the case I spoke about at the start of this speech had had the support and representation to challenge arrangements, she may not have been so distressed because she was denied access to photographs of her partner. She may have had a better emotional quality of life and, leading from that, probably a healthier physical life as well. Instead, she was let down by care home staff, and her rights to express her sexuality were denied. She was denied her liberty.

Age UK has also backed this amendment, saying:

“Support from Independent Mental Capacity Advocates should not depend on a person’s ‘best interests’ as it is currently drafted in the Bill. Instead everyone should be able to access an advocate and a person who chooses not be represented can then opt out.”

[James Morris]

Obviously, everyone would agree that having advocates is a good idea, but I want to press the hon. Gentleman on the point about the circumstances where there might be a need for a best interest test before an advocate is appointed. Does he accept that the number may be limited, but there may be circumstances in which the particular condition of an individual—the nature of their condition—might mean that their having an advocate might not be appropriate?

[Alex Cunningham]

I understand the hon. Gentleman’s point. Unfortunately, we have to cover everybody with an amendment such as this, otherwise we end up with exclusions left, right and centre. We cannot afford to have exclusions. If an advocate is in place, there is no additional problem associated with that. At least the person has some chance of representation.

[Steve McCabe]

I think the Minister covered the point made by the hon. Member for Halesowen and Rowley Regis when she cited the small number of situations she thought could be distressing or problematic—I presume that is what the hon. Gentleman was thinking about. That is exactly the sort of thing that the code of practice is supposed to cover. Is that not exactly what we would expect? On the one hand, the Bill clearly legislates in broad terms for what is and is not acceptable, and on the other hand, the code of practice gives the back-up information for professionals, so that they can recognise the sort of situation to which the hon. Gentleman refers.

[Alex Cunningham]

That is most certainly the case. I go back to my Second Reading speech. This is about the individual. This is about one of the most serious things we can do as a nation to somebody—take away their liberty. We should do anything and everything we can do to ensure that they have every single piece of support before that decision is taken, effectively, to lock them up. I agree with my hon. Friend.

I was quoting Age UK, which believes that everybody should have access to an advocate and that a person who chooses not be represented can then opt out. The quote continues:

“This will greatly improve the Bill and give clarity to the cared for person and the responsible body.”

Mencap believes, as I do, that independent advocacy is vital to help vulnerable people to understand and exercise their rights under the law. We have had several examples of that this morning.

Rethink Mental Illness is also on board with the amendment. I appeal to the Minister to provide an opt-out approach, which would greatly improve this Bill, as others have said, and give clarity to service users and providers.

I mentioned care home managers, but the risk of independent hospitals being responsible for assessments is another concern about the Bill, and as we said the other day, we hope the Minister will ramp up the assurances in this area. I have another real-life example for her. A man was held in hospital for almost a year—with no advocate for 10 months. He was angry because he wanted to go back to his two-bedroom home, but the local authority wanted him to move into accommodation with 24-hour support and to not return home. The reason given was that the brother had moved into the spare room at the cared-for person’s home and there had to be a spare room for any overnight carer, should the man return home.

What did the advocate find out by talking to the cared-for person? They found that, when he had been living at home, he had been sleeping in a chair in the lounge while his brother had his room and his carer had the spare bed. Then he had fallen and not been found for two days, as a succession of carers had failed to attend. The cared-for person’s statements were not taken into account by the social worker involved. If they had been, the process might have been very different. The man needed an advocate from day one.

The case eventually went to court, and the judge accepted evidence from the advocate and ordered the cared-for person to be returned home—[Interruption.] Bless you!

[Alex Chalk (Cheltenham) (Con)]

I wonder how Hansard records a sneeze.

[Mr Dhesi]

That is now a matter of record.

[Alex Cunningham]

The Committee is going to get this example whether it wants it or not. The case went to court, and the judge accepted the evidence and ordered that the cared-for person be returned home and that the sibling be evicted so that the live-in or an overnight carer could be accommodated. The gentleman in question returned home successfully and was later assessed as having regained capacity.

That is the power of an advocate, and it proves the necessity of an advocate in all cases, so I hope that the Minister takes these comments on board and ensures that she helps to enhance the quality of life for vulnerable people by including this amendment in the Bill. It would probably also ensure that she plays an important role in getting people who can be supported in the community the right result for their lives, rather than their being effectively locked up in a place where they do not want to be.

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to follow so many colleagues making so many eloquent points about just how important advocacy is. I think that all of us in this room recognise that. An individual up against powerful organisations, across all sectors, is in a very uneven power relationship. If we then add in perhaps a lack of knowledge of how systems and services work, they might need support. Certainly, when they do not have capacity either, there is a clear need for some sort of support.

Sometimes we might read, whether in our postbags or online, that we in this place do not get it on an issue. On this issue, we definitely get it, because every day all of us at some point are battling the local council, the health service or the Home Office—that feels like a regular one—in advocating, as Members of Parliament, for people who do not know the system the way we do. They might look at something and think, in a natural justice way, “Hey, this isn’t right” or “I’m not happy about this,” and we provide extra support and learned knowledge to try to help them through that.

We do get it, and I hope that we can layer that into this very important legislation. We know the sensitivities of the individuals we are talking about. The whole purpose of the Bill, of our being here for the third day and of the time in the Chamber as well, is to take a system that, at the moment, does not work in terms of system capacity and has in the past created outcomes for people that we would not wish for ourselves, our loved ones or anybody, and to try to get something that does work and is robust. Fundamentally, we would always want to know that, as a result of what is decided by Parliament in this legislation, people living in Nottingham, Bristol or Birmingham, with relatively similar circumstances, would have similar outcomes, irrespective of the fact that the person in Nottingham had an adult child who was very active or even a DoLS specialist and the person in Bristol had no one. We would want, irrespective of those circumstances, that those people got consistent outcomes, because that is what a fair system means.

If we take away advocacy as a default, we get into the fundamental question of whether families, including active families, would even know to know that they could have an advocate. If the quality of the engagement with the responsible authorities is not good, for whatever reason—that has sometimes happened in the past—would the family know that they could ask for an advocate, or that there might have been a best interest assessment and a judgment that, given that the family were around, advocacy was not necessary?

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[Caroline Dinenage]

It is clear in our minds, and it will be clear in the code of practice that hon. Members can approve.

[Alex Cunningham]

Will the Minister indicate what the code of practice will say in that respect?

[Caroline Dinenage]

I cannot give the exact wording because, as I have said, we are engaging with stakeholders and we wish to get the provision exactly right. If I were to provide the wording it would be just the opinion of a politician, and we will all agree that we need the voices of experts, and that the views of those with lived experience of having to support people should be taken into consideration.

[Alex Cunningham]

Will the Minister give way?

[Caroline Dinenage]

I will in a moment, but I also wish to consider those parts of the amendment with which I fundamentally disagree, as that is important. The amendment would require all 16 and 17-year-olds to have an IMCA as well as an appropriate person. I feel strongly that automatically appointing an IMCA for a 16 or 17-year-old would risk freezing out parents from providing representation and support, and parents are often best placed to take such a role.

The hon. Member for Worsley and Eccles South often talks about the desperately distressing case of Bethany and countless others, where parents’ wishes and concerns are not listened to or heeded. We have been clear about giving families a strong role in this model, and we do not want to risk that. As with an appropriate person, a parent or family can request the support of an IMCA, or for their role to be performed by an IMCA.

--- Later in debate ---

The Law Commission also said that it was concerned that a maximum authorisation period for emergency authorisations would become the target for assessing the cared-for person, and we have a similar concern. Without an end date to the authorisation, what incentive would the responsible body have to expedite the assessment process? With no hard deadline by which to complete it, there is a danger that other cases would take priority. Given that anyone subject to an emergency authorisation has few, if any, safeguards, we cannot allow this to happen. Through this amendment, we are seeking to ensure that nobody is deprived of their liberty for long periods of time while waiting on a court or other assessment. I hope that the Committee accepts the amendment.

[Alex Cunningham]

I find it incomprehensible that any emergency authorisation would need to last longer than 14 days. An emergency is just that: it is a serious, unexpected and often dangerous situation requiring immediate attention. That is my online dictionary definition. Once that emergency has been dealt with and the dangerous situation averted, the normal approach should then be adopted. Why on earth would the authorities need to detain a person for many weeks on end without carrying out that full assessment under the law? I suspect the Minister agrees that emergency authorisations would not need to be in place for very long, so everything would be fine and there would be no risk to the person involved. Sadly, nothing in this Bill nails that down. I hope she will have no problem providing us with a guarantee, or supporting this amendment—the real guarantee—to limit that duration of emergency authorisation to 14 days.

We must always take every opportunity to make sure that every precaution is there to ensure that those under emergency authorisations have safeguards and protections. We have been talking about it for days on end. Those authorisations are to be in place so that a person cannot face an indefinite order against them. Not just those of us on the Opposition Benches think that. No fewer than 200 people from my constituency have either commented on this Bill or have signed a petition through 38 Degrees calling for the kind of safeguards in the Bill for which we have been arguing. They are worried about the further erosion of an individual’s rights by the clause if it is not amended.

At every point in this Bill I have posed myself this same question: what does it mean to younger people—the 16 and 17-year-olds—who are captured by it? As I read it, a young person could be detained under these emergency powers. We have talked about insufficient safeguards for young people and parents under the Bill. Who knows how long it could be before they are fully assessed, even when the views of their parents or others were taken into consideration?

According to the Law Society, the Bill

“gives wide-ranging powers for depriving a person’s liberty through emergency authorisations for unlimited periods of time where a ‘vital act’ is deemed necessary. We believe this is unlawful.”

What action will the Minister take to ensure that such actions are not unlawful, as suggested by the Law Society? Although she said that the risks being taken in the care of vulnerable people are simply not there, she needs to convince us or support the amendment. The Law Society goes on to support the amendment in its evidence submission, saying that a

“time limit of 14 days is essential to prevent abuse in accordance with case law”.

Members have spoken at length and given full examples of how the Bill and proposed amendments could play out or have played out in the real world. It is also vital that we take note and address the issues that may arise outside this place in regards to any legislation introduced by us. Imagine the danger we could be unwillingly putting vulnerable people in if we do not pass the 14-day authorisation limit. A person under such an authorisation could be left for months and denied their freedom with no one having carried out a full assessment, perhaps because it is in the best interests of the person that has assessed them or not assessed them—a care home manager or an independent hospital director. Whatever it is, we have a duty of care over those deprived of their liberty under the measures. The Bill falls short of ensuring that we properly protect and safeguard them.

We have debated authorisation renewals. This measure falls into a similar category in that we should provide adequate checks to ensure that people are not needlessly deprived of their liberty for any unnecessary time. I am not convinced we are there yet. Within those 14 days there is an expectation that an adequate, comprehensive assessment will be carried out to determine whether the cared-for person meets the authorisation conditions. If it is more than 14 days, who is going to tell us when it will happen?

[Steve McCabe]

I do not know whether I am being a bit paranoid about this, but is there a danger that this could become the easy get-out clause? It will be a bit complicated to get all the parties together and carry out a proper assessment, but it will not be as difficult to get someone to say, “Ah—there’s an emergency.” That way, they have dealt with the paperwork in one fell swoop and they have the person where they want them. If there are no safeguards, it will become the clause that will bypass the rest of the legislation, because this is where people will go when they do not want to put in the work or they feel too hard pressed to do it.

[Alex Cunningham]

I share my hon. Friend’s paranoia. I do not understand why we would put any barriers at all in the way of people’s having a proper assessment within a reasonable time. Detaining someone for 14 days is effectively locking them up for 14 days. It means depriving them of their liberty and there may be no real necessity. An assessment, as quickly as possible, is essential.

Of course, if we allow those authorisations to go on for longer than 14 days or any other reasonable timeframe, we are putting people at risk of abuse, as the Law Society has said. I say to the Minister that we must put vulnerable people first. We must always put the individual first. We must have the safeguards in place, because to do anything else is to risk their liberty, and that is a risk I am not prepared to take. I hope she accepts the amendment.

[Caroline Dinenage]

Clause 2 allows caregivers, in limited situations, to deprive someone of their liberty for a short period of time prior to an authorisation being in place or in an emergency. That can be done only to provide the person with life-sustaining treatment or to prevent a serious deterioration in their condition. The clause enables a care home to place restrictions on the person for their own protection ahead of an authorisation being approved. That interim legal cover will be decision-specific and it will be targeted to life-sustaining treatment and care or to a vital act. Once those acts are completed, the conditions no longer apply and legal cover for depriving someone of their liberty ends.

In that way, the clause replicates clause 4B of the Mental Health Act 2005, already in DoLS. The emergency authorisation system applies in exactly the same way when a court application being made relates to a deprivation of liberty. There is no evidence at this time that it would lead to any lengthy deprivation of liberty, and the provision of the Bill builds on an existing and well-understood provision. The previous system also included an urgent authorisation. That has gone because it was used too often and its time limit was ineffectual.

Under the Bill, the legal cover is provided simply for as long as the life-sustaining care is needed and no longer. It is therefore a limited power and a better safeguard. An emergency is defined as a situation where there is an urgent need to act and it is not “reasonably practicable” to make an application under the liberty protection safeguards to the Court of Protection or under part 2 of the Mental Health Act. It was carefully considered by the Law Commission, which looked at the inclusion of a time limit and decided against it. We agree with its conclusion that a time limit could encourage care providers to aim for the time allowed rather than to adhere to best practice for that case and that person, which is certainly what we have seen in some urgent cases.

Given the seriousness of depriving someone of their liberty, it should be limited to the shortest possible timescale and should reflect the huge range of causes that it can be required to cover. The amendment would create a blunt, one-size-fits-all approach, rather than allowing us to reflect the different approaches called for.