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

Alex Cunningham Excerpts

Thursday 17th January 2019 Public Bill Committees

[Barbara Keeley (Worsley and Eccles South) (Lab)]

I beg to move amendment 30, in schedule 1, page 12, line 29, at end insert new sub-paragraph—

“(da) in the case of a cared-for person aged 16 or 17 (unless that person is subject to a care order under section 31 of the Children Act 1989 or an interim care order under section 38 of that Act) the responsible body is satisfied that no person with parental responsibility objects to the arrangements,”.

This amendment makes provision enabling parents to object to care arrangements that give rise to their child’s deprivation of liberty.

It is a pleasure to see you in the Chair again, Mr Austin; you are working very hard on the Bill, as indeed we all are. Amendment 30 follows on from amendment 38, which would extend pre-authorisation reviews to 16 and 17-year-olds. Amendment 30 would provide that, where there is a person with parental responsibility for the cared-for person, an authorisation may be made only if the person with parental responsibility does not object to that authorisation. We believe that would ensure the Bill does not create a situation where the responsible body is able to override the wishes of 16 and 17-year-olds’ parents to deprive them of their liberty.

I appreciate that case law in this area is not abundant, but one relevant case in point is Y v. Barking and Dagenham, which I mentioned when we debated amendments regarding the role of care home managers. Despite agreeing to Y’s placement, his parents became concerned about the standard of care he was receiving. The local authority deprivation of liberty safeguards application made no mention of the concerns they had raised. Subsequently, the parents withdrew their consent for Y to remain at the care home.

Around the time Y’s deprivation of liberty was granted, a member of staff at the care home was reported as having assaulted Y. That was raised with the local authority, but Y’s parents were not informed. The local authority then applied for a care order for Y, and the social worker reviewing the request dismissed the parents’ concerns. When the case eventually went to court, the local authority admitted that it had dismissed the parents’ concerns without proper investigation.

I believe parental objection is an important principle, which is currently missing from the Bill in relation to deprivation of liberty for 16 and 17-year-olds. Its omission means that the Bill is out of step with the Children Act 1989 and there may be conflict between the two. In particular, there is a lack of reference in the Bill to the role of parents in making decisions about the placement of their child. As I just described, in Y v. Barking and Dagenham, Y’s parents withdrew their consent for Y’s placement in the care home in which he was residing. Under section 20 of the Children Act, parents can object to their child’s placement and remove their child from that placement. In paragraph 20 of proposed new schedule AA1, the Bill provides that certain people must be consulted, but the main purpose of consultation set out in paragraph 20(2) is to ascertain the cared-for person’s wishes or feelings about the arrangement. That does not address parents’ views about the arrangements for their child.

Without our amendment, the liberty protection safeguards provisions would allow a local authority to make arrangements that deprive young people of their liberty without the agreement of their parents. Further, it would allow the local authority to do so without needing to obtain a court order. That is not the case under the Children Act, so there is clearly a conflict, which we must address. I see the amendment as by no means contentious. It is very much in the spirit of what has been suggested to widen the scope of liberty protection safeguards to 16 and 17-year-olds, including the extension of pre-authorisation reviews by approved mental capacity professionals. It is a key component of the Children Act, as it should be of the Bill.

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship again, Mr Austin. As I said in a previous sitting, children and young people have always been my focus in politics, and the measures that impact 16 and 17-year-olds are some of the most important in the Bill.

As my hon. Friend the Member for Worsley and Eccles South said, amendment 30 would make provision to enable the parents of a 16 or 17-year-old to object to care arrangements that gave rise to deprivation of their liberty. Not unlike in many other parts of the Bill, there is a severe lack of clarity about the role of parents. We must make that clearer. The law regarding young people is already very complex, and the Bill just seems to add to that complexity. There is real concern out there in the community about the lack of recognition of parental rights under the LPS system.

Parents fall within the group of people to be consulted about the young person’s views of the care arrangements, but there is no acknowledgement at all that parents have the right to make decisions about the young person’s placement. That seems to me to undermine the Children Act 1989, which provides for parents being able to object to the young person’s placement and to remove their child. Does the Minister agree that there is such a conflict? If authorities want to overrule parental wishes about the care of their child, they must go through the legal and court proceedings to do so.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

As well as being against the 1989 Act, does my hon. Friend agree with me that it is common sense for parents to be at the heart of any DoLS? It is not good to be sidelining them on what is, in effect, the issue of the health and wellbeing of their children.

[Alex Cunningham]

That is very much the case. I always try to place myself into such a situation. I am at the grandfather stage of life now, and I think about how that would affect the children of my children, or other parts of my family who have children. I would most certainly want them to be at the centre of it—I would probably try to interfere a bit myself as well.

The Children Act, however, provides protection—it is a real safeguard—and yet the Bill is not at all clear about how it will sit with that existing legislation. Surely, as my hon. Friend the Member for Worsley and Eccles South suggested, parents must be consulted and have that ability to make decisions about their child, even if they are 16 or 17. We must ensure that such safeguards are enhanced, not watered down or in conflict with each other.

The Royal College of Psychiatrists has highlighted to me that encompassing 16 and 17-year-olds in the Bill can be positive where they lack capacity to make their own decisions, but that must be authorised by an appropriate safeguarding system. The RCP shares my belief that a parent or legal guardian with capacity to make the decision should be able to authorise the required deprivation of liberty.

Many social workers and other professionals in the field have made submissions. There is a strong consensus that additional safeguards should be available where objection is made by a person with parental responsibility. The Mencap submission, too, welcomes the inclusion of 16 and 17-year-olds in the Bill, but it also expressed concern that we might be reducing protections and eroding parental rights. Mencap has asked the Government to conduct further public consultation on the measures for 16 and 17-year-olds to understand the implications fully.

Does the Minister believe that the Government have consulted properly on the issue of 16 and 17-year-olds? Clearly, the organisations with an interest in such matters do not think so. Will she commit to undertake a rapid consultation exercise ahead of Report, in the hope that we in Committee can be reassured about parental rights and the very necessary protections for young people?

Mencap highlighted the particular uncertainty about how the new system works alongside existing legislation. I have already talked about that, but a complex web of legislation and guidance relates to those young people who might fall under the LPS system, including looked-after children. My hon. Friend, however, has already spoken about that. It is essential for the Minister to provide clarity in such areas, preferably now but certainly before Report.

In closing, I will make a general point about involving parents in all manner of processes in the health and social care world. For them to be excluded from the process, denied the right to report or told simply that the authorities know best must be an exception. It is not always the case that the authorities know best. At times, I have a tremendous caseload of parents coming to talk to me about issues affecting their children and how they feel excluded.

I put it to the Minister, if a child affected in a particular case was one whom she knew personally, one whose parents she has had contact with, would she be content for them not to have every possible access to information or not to be consulted at every stage? I remind her that a child is being deprived of liberty—this is an opportunity to lock a child up, basically. We need to understand and empathise with parents in their desire to be consulted in the decision-making process, and I believe that the amendment would go a long way to ensuring that that actually happened.

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

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

It is important to reflect at this point that the purpose of this legislation is to take an existing cumbersome system and to try to make one that works, but of course we are putting a new focus on 16 and 17-year-olds while we do that. So it is important that we have good consideration about how we can do it in the safest way, and in the way that best reflects the needs of the individual and of their family in general.

We will all be aware that social media can skew our view of these things, but the very high-profile cases on social media of young people who are in the settings that we are talking about today, and just how difficult that is for the parents and those young people themselves, mean that we should take every step we can to make what is an exceptionally difficult situation as best as it can be for those parents.

This issue came up in one of our previous discussions—it was raised by the hon. Member for Halesowen and Rowley Regis—when we were talking about access for parents as a matter of course, which I think we will come back to when we consider a later amendment. The idea was discussed that we would not want to put something in the Bill that would give access to a child to someone who was not supposed to be given access at that point.

I reflected on that point, because it is obviously very important, but I do not think that it actually applies in this situation. I was using, as an analogous case, the idea of a parent’s right to have input into their children’s education. If that parent is subject to a non-molestation order, that right falls away, so I do not think that there is anything that we would put in this Bill that would supersede that.

In a similar vein, my hon. Friend the Member for Stockton North used the phrase “with capacity”, regarding the parents being involved. Again, therefore, nothing that we are doing here would supersede the fact that if that parent was not able—

--- Later in debate ---

[Alex Cunningham]

Age UK agrees with my hon. Friend’s point and proposes an extension to it, through the involvement of an AMCP every time a family member objects, or if the cared-for person has no family members to object on their behalf. Does he agree with that position?

[Steve McCabe]

Absolutely; I agree entirely. That makes more sense than the way I have been saying it.

I accept that the amendment is clumsy and not well drafted, but I hope that it is clear that, more than anything, we need to hear—all the better if it happens before our proceedings conclude—and then see in black and white a cast-iron guarantee that the arrangements will not be used in a way that ends up being detrimental to the interests of the person about whom we should be most concerned. That is the purpose of the amendment. We can have some confidence that all those conditions have been appropriately and properly satisfied only if we have confidence that a professional with the appropriate experience, knowledge and skills, who is valiantly independent and capable of looking at it in the round, has been a key component of that decision.

[Barbara Keeley]

I thank my hon. Friend for moving the amendment. The Committee has already considered the principles that he has discussed, but I am glad to have the opportunity to return to them, because the role of the AMCP is a big part of the schedule, which I am sure we will come back to.

The aim of the amendment is to ensure that all people subject to the liberty protection safeguards have their case considered by an approved mental capacity professional. On Tuesday morning I discussed a range of cases where we thought that it was crucial that the approved mental capacity professional should review the case. I was talking about specific cases, but an AMCP review would be beneficial in all cases, because it would bring independent scrutiny from a professional with experience in such matters. We will talk about the issue of skills shortly, which comes into it as well.

An AMCP review can only be a good thing. It would ensure that even lower risk cases than the ones I spoke about were properly scrutinised, so that cared-for people would be at less risk of being inappropriately deprived of their liberty. That is what it is all about, really; that is what we on the Opposition side are doing. I am sure that we and the Government are of one mind on the important role that approved mental capacity professionals can play, which is why we will support Government amendment 9 when it is put to the Committee, and why I hope that they will support our amendments 37, 38 and 39.

[Alex Cunningham]

I hope that my hon. Friend agrees that my hon. Friend the Member for Birmingham, Selly Oak does himself down, because this is a good amendment. He is actually doing the Minister a favour, because we have talked about resources, and if we agree to the amendment there will be less associated cost. If we get the assessment right first time, it will not be laid open to challenge or repetition, and the system will be more efficient in the longer term.

[Barbara Keeley]

Yes, I agree that my hon. Friend the Member for Birmingham, Selly Oak should not run down his amendment, because it has provoked a useful debate. The purpose of the amendment is to expand the number of people who receive an AMCP review. It goes further than the amendments that I tabled, but we support it in principle, and I hope the Minister will consider it carefully.

--- Later in debate ---

[Alex Cunningham]

As colleagues may remember, on Tuesday I mentioned my past as a journalist, public relations manager and communications manager—something, I have found out, that I share with you, Mr Austin.

[The Chair]

Indeed.

[Alex Cunningham]

I still consider it to be an honourable profession.

[The Chair]

A noble profession.

[Alex Cunningham]

A noble profession. We have brought tremendous expertise to this place as a result.

[The Chair]

Yours probably more than mine.

[Alex Cunningham]

I have no experience, however, as a health or medical practitioner, so I bow to my next-door neighbour in the north-east of England, my hon. Friend the Member for Stockton South, who is a medical doctor and knows about these things—probably a lot of things that I will never have any understanding of myself. However, I do not need to be a medical expert to know that if I were to suffer a heart attack, a cardiologist would be involved in my treatment and care. I hope my hon. Friend will nod his head to say I am right.

[Dr Williams]

indicated assent.

[Alex Cunningham]

He does. I know that if I were to develop cancer, oncologists would be involved. I know that medical experts should be and are involved with that level of illness, which requires ongoing treatment and observation. They are the experts, and they know the field; we have to trust what they say and follow their instructions on what is best to do. It just strikes me as ludicrous that anybody could disagree with the notion that people carrying out medical and capability assessments must have the skills to do so. We have already seen in our country in recent years the terrible mess that is the various capability assessments for employment and support allowance, personal independence payments and, lately, the discredited universal credit system.

[Dr Williams]

I wondered whether to refer to the work capability assessments, but it is certainly true that in my experience as both a medic and a Member of Parliament, people have often described the inadequacy of the assessments, particularly when their conditions fluctuate, and how they are often judged on the day rather than anyone really listening to what their condition is like. One of the things that that greater level of skill, experience and knowledge brings is the ability to take a step back and ask the right questions about things such as fluctuation.

[Alex Cunningham]

Indeed; that applies to this Bill as well. We are dealing with the most serious issue possible—the right of the authorities to deprive someone of their liberty—so we must get it right. We have seen failure time and again in the areas I mentioned. When people with inadequate knowledge carry out assessments of various things, they get it very badly wrong, and the client ends up winning their appeal. More than half of them, in some cases, win their appeals, but only after many weeks and even months, so they are often left without the support they need.

I wonder what happens in this sort of situation, when we are dealing with the deprivation of people’s liberty. We cannot allow those types of failure to be repeated in the system set up under the Bill, because the consequences are so far-reaching. It is taking somebody’s liberty away. It will not just be a decision to deprive people of their welfare benefits; it will actually take away their freedom.

I agree with my colleagues who have spoken in the debate that assessments should be undertaken by people who have the knowledge, skills and experience and hold the appropriate professional registration. If we do not put that into the Bill, the Bill will simply not be strong enough. It is far too important to be in the follow-up code of practice. We have heard a lot about the code of practice, but of course we have not seen anything that is in it. It is far more important than that. We must ensure that there is a sufficient level of scrutiny within the legislation.

I wonder what the Minister would tell Dr Haider Malik, a consultant psychiatrist who provided written evidence to the Committee. He said:

“In current Bill there is complete oversight of mental health assessor’s role. Though DoLS is considered complicated and bureaucratic piece of legislation but in my view Liberty Protection Safeguarding…would fail the stress test.”

The evidence we have received from a number of stakeholders is very clear. There is a clear demand out there, from people who know what they are talking about, for us to ensure that those carrying out the assessments are qualified to do so. Anything short of that is a betrayal not just of the individual, because it could lead to them wrongly losing their freedom, but of our duty to legislate to protect them.

[Paula Sherriff]

I will move on to amendment 31, which addresses who should be able to carry out medical assessments.

As hon. Members know, one of the three criteria for authorising the deprivation of liberty is that the cared-for person has a mental disorder. On the face of it, that is one of the most straightforward provisions in the Bill. However, the only provision for who should carry out the assessment is contained in paragraph 18(2), which states that the assessor must appear

“to the relevant person to have appropriate experience and knowledge.”

I am sure that I am not the only person present who is somewhat unclear about what constitutes the appropriate experience and knowledge.

Unlike other areas of the Bill, the assessment of a mental disorder is not wholly subjective; it is a medical assessment made under the Mental Health Act 1983. If someone wants to detain someone else for assessment under that Act, they need the recommendation of not one but two registered medical practitioners, yet under the Bill, it may be possible for a mental disorder to be diagnosed without the input of a medical practitioner.

Amendment 31 has been supported by the Royal College of Psychiatrists, which is concerned about the potential impact of assessments made by people who are not registered medical practitioners. One of its concerns is that the Bill says that the person commissioning the assessment has to decide whether the person carrying out the assessment has the relevant skills and experience, which could lead to a significant watering down of the levels of protection if we do not clearly state who can carry out such assessments. Furthermore, it has raised the possibility of misdiagnosis where a different disorder presents as a mental disorder, which would lead to the person being wrongly deprived of their liberty under the Bill.

The amendment also brings the Bill into line with the principles laid out by the European Court of Human Rights in relation to the diagnosis of a mental disorder. In Winterwerp v. the Netherlands in 1979, the European Court ruled that article 5 requires:

“Objective medical evidence of a true mental disorder of a kind or degree warranting compulsory confinement, which persists throughout the period of detention”.

Given that requirement for objective medical evidence, the Bill needs to guarantee that only a registered medical practitioner with appropriate training has the power to determine whether someone has a mental disorder. Anything else would risk creating legal issues, as people will challenge what constitutes objective medical evidence.

I hesitate to wake up Conservative Members by pushing a point about Europe, but the Minister will know that the Secretary of State has signed a statement on the front of the Bill to say that, in his view, its provisions are compatible with the convention rights. Can the Minister therefore confirm that the Government have considered that legal point and tell us with total confidence that the Bill meets the requirements for objective medical evidence without setting the requirement that a registered medical practitioner provide it? The requirement need not be excessively burdensome on the medical profession, as the Bill already makes provision for previous assessments to be used for certifying that somebody has a mental disorder.

The Royal College of Psychiatrists has helpfully supplied some examples of where there is a clear requirement for a registered medical professional to carry out the medical assessment, which I hope the Committee will find helpful in clarifying why we have tabled amendment 31. The first case relates to an 80-year-old woman, who has been settled in a care home for a year. Suddenly, without any obvious cause, she becomes agitated and distressed and tries to leave the care home. It would not be unreasonable for a lay person to conclude that she is no longer happy with the arrangements that are in place and needs an LPS to be granted.

In fact, the reason for the woman’s agitation is that she has developed a urinary infection, which has caused her to develop delirium. Once that is diagnosed and treated, she regains capacity and no longer needs an LPS. Delirium is not only easily missed, but life threatening. By having the involvement of a registered medical professional, it is much more likely that delirium will be correctly diagnosed.

In a second example, a wealthy man in a nursing home has met a younger woman via the internet. She has offered to move him out of the home and look after him in exchange for payment. The nursing home and social services feel that an LPS should be used to keep him in the nursing home, despite his wanting to leave. Following a detailed examination of his mental state, there is no evidence to suggest that he has a mental disorder. That example shows that it is important for an experienced medical professional to conduct a full and thorough assessment, rather than assuming that someone has a mental disorder purely because they engage in activity that others might see as reckless or unwise.

The third and final example relates to a woman living in a care home. She has been becoming more confused over time, and it is now thought that an LPS is needed. However, increased confusion is secondary to a recently commenced combination of medication. Once that is identified and her medication regime is changed, her confusion settles. After that, she is happy to remain in the home. In that case, it was important to have a medical professional with experience of analysing the impact of medication to assess the case. That meant that the changes in her mental state could be correctly ascribed to a mix of medicines that is not working, rather than a mental disorder.

All those examples illustrate cases in which the medical assessment needed to be carried out by a registered medical professional. Indeed, without the input of medical professionals at that point, it is possible that people would be not only wrongly deprived of their liberty, but subjected to totally inappropriate treatment regimes.

So far, the Government have said only that the code of practice will set out the requirements for the assessor under the new LPS scheme. I hope that the Minister will guarantee to the Committee that the code of practice will match the requirements of amendment 31 for an assessment by a registered medical practitioner. As my hon. Friend the Member for Worsley and Eccles South said, a code of practice does not carry the full weight of law. If this provision will be contained in the code of practice anyway, I see no reason to resist our amendment, which would give it that weight in the Bill. The Minister in the Lords suggested that the assessor will be a physician, but there has been no further clarification of that. I make it clear that the amendment is not merely probing; it is an amendment that needs absolute clarity.

The requirement for the assessment to be carried out by a medical practitioner is a vital safeguard. It helps to align our laws with the established position of the European Court. As such, that requirement must be included in the Bill, not shoehorned into a code of practice that we have not yet seen and that is to be published later.

Amendment 33 focuses on the skills of the people carrying out the medical and capacity assessments. The amendment goes slightly further than the Bill, which focuses only on experience and knowledge. In a number of places, that might make a difference, but it does so most clearly in relation to people with communication difficulties. The Royal College of Speech and Language Therapists stated:

“A person with a communication need may be at risk of being labelled as ‘lacking mental capacity’ if people mistake their communication problems for a lack of capacity.”

That could lead to people being deprived of their liberty under the Act when, in reality, they have the capacity to consent or not to consent to the arrangements.

One example of how that can look in practice involves speech and language therapists. In one case, a speech and language therapist used an inclusive communication approach to support a young man who had had a traumatic brain injury to understand a complex ophthalmic surgical procedure. He was then able to demonstrate that he could understand and consider the pros and cons of surgery, enabling him to make his own decision. Without that input, he would likely have been deemed to be lacking capacity and the best interests process would have been implemented.

In short, amendment 33 is about ensuring that we do not assume that people lack the capacity to make decisions purely because they might struggle to make themselves understood. Our amendment would ensure that whoever carries out the assessments has the appropriate skills to communicate with the cared-for person. What those skills include might of course vary from person to person. For example, if someone is non-verbal, it might well be that an assessor who can use Makaton is needed to ensure that their capacity can be considered adequately.

Will the Minister confirm that for a small number of people who have been deprived of their liberty, the main reason given was a hearing impairment? I do not think that any of us in Committee would be happy if it turned out that the person who ruled on capacity in those cases did not have the skills needed to communicate with someone who cannot hear.

The Minister in the House of Lords made assurances that the code of practice would set out the skills expected of assessors. Will the Minister for Care expand on that assurance and guarantee to the Committee that she will address communication specifically? None the less, at the risk of repeating myself, a code of practice simply does not carry the same weight as a provision of the Bill. It is absolutely unimaginable that somebody should be able to make a decision on a cared-for person’s capacity if they are unable to communicate with them properly. Amendment 33 would simply ensure that they could communicate with them.