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

Debate between Alex Cunningham and Paula Sherriff

Thursday 17th January 2019 Public Bill Committees

[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.