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

Alex Norris Excerpts

Tuesday 15th January 2019 Public Bill Committees

[Barbara Keeley]

I cannot see anything other than that self-funders would end up paying it. Self-funders might not just end up paying it for themselves; they might be paying it for everybody else who is in the care home, which is actually what they do—there is a certain transfer.

I want to make myself perfectly clear. Care home managers should not be involved in the authorisation of deprivations of liberty or the consultations around that. It is unlikely that they would able to do it and, as far as I can ascertain, they do not want to do it. Given that, the best route is surely to move responsibility back to local authorities, which have considerable expertise in this area.

We also propose to remove care home managers from the process of renewing an authorisation through amendments 27 to 29. If anything, that is more critical. At authorisation stage there are some safeguards in place, but to renew an authorisation, all that a care home manager would have to do is carry out a consultation and then certify that they feel the authorisation conditions continue to be met.

I have covered our concerns about the consultation process, so will not go over them again. I cannot see how it can be appropriate, however, for an authorisation to be renewed without anyone outside the care home being involved. The Bill proposes that renewals could last for three years—longer than the initial authorisation—and we have our separate concerns about that. At the renewal stage, however, there is no independent review. There is no medical assessment by a person not connected to the care home. There is no independent consideration of whether the arrangements are suitable.

I understand the Government’s argument, which was made in the House of Lords, that they do not want the renewal process to be stressful for the cared-for person where there is little prospect of anything changing, but that is not an excuse to remove vital safeguards. The most vital of those is that the decision is made by somebody with no vested interest in maintaining the arrangements. Only by doing that can we begin to make sure that the streamlined renewal process does not result in people being wrongfully deprived of their liberty.

Before I make my concluding comments on these amendments, I want to give Members another example of how things can go wrong in care homes. I recently heard from someone who was admitted to a care home after a spell in hospital. She was admitted to hospital after knocking herself out in a fall in her garden and being rescued by ambulance. A social worker had arranged her admission to the care home, which the person thought would be for a few weeks.

The care home was privately run and was

“full of elderly men and women from varied backgrounds. There were writers and businessmen and women, carpenters and vicars but they were all suffering from various degrees of dementia. I met only one resident who wanted to be there and she had been there for about 15 years and had chosen to go there after her husband had died. Most of the people there were women. Most of them were put there by their children and their houses had been sold to pay for their care or, if not, their children or their local council paid the enormous bills.

The home was a miserable place, the food was worse than school dinners and there were no events or outings organised at all. Each day had a routine of getting up, breakfast, sitting in chairs silently looking at the ceiling or knitting scarves, toilets, lunch, sitting, early tea and all in bed by 9 pm. There was no stimulation or crafts to do.”

The woman soon realised that it was difficult for her to get out, because she was given IQ tests and declared to have Korsakoff syndrome. This can happen, I understand, after a head injury. She said:

“The home wasn’t interested in the residents’ wellbeing or recovery. It suited them to have sedated residents sitting doing nothing all day. Their interest was making money. They owned a number of homes in the area. The guests were allowed visitors in the afternoon, but many didn’t have visits at all. I continued to spend all of my days by myself, but read and researched lots of things, and insisted every day that I wanted to see someone about being released. I was told that they could release me if someone came to pick me up and took responsibility for me in their home.”

She started to do exercises designed to improve memory and got in touch with the local council. Someone from social services visited and arranged for a specialist doctor to conduct an IQ test, on which she got very high results. The social worker wrote to the home and to her, and used the deprivation of liberty regulations to secure her release.

The woman left this miserable care home some six months after being admitted there to live in a new house, which she had bought. She contacted me because she was grateful for the safeguards that enabled her to leave that place, which she saw as

“merely a depository for elderly unwanted family members.”

She told me that

“these commercial business homes are terrible institutions created to make money.”

We are asking that people like this person, if they are going to be deprived of their liberty, always have their rights guaranteed by an independent public body, rather than the organisation responsible for providing their care.

What is contained within the Bill is not a solution to a problem. There is near unanimity among stakeholders that it would be better if this role were never carried out by a care home manager. Our amendments would mean that care home managers are not given another task that they have neither the time nor skills to carry out. They would ensure that cared-for people and their families feel confident in speaking out when they disagree with the arrangements. They would ensure that people authorising deprivation of liberty are the people best qualified to do so: the well-trained professionals currently employed by local authorities for this very purpose.

More importantly, our amendments would remove one of the conflicts of interest that the Bill seems to seek to enshrine. They would ensure that nobody is deprived of their liberty in a care home on the say-so of the manager of that same care home, which is making profit from that deprivation of liberty. This is a matter of principle. Private companies should not be given responsibility for denying people their basic rights. It is right and proper that this responsibility should always lie with a public authority that is subject to democratic control. Amendments 20 to 29 achieve that and I hope that the Government will accept them.

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

Thank you, Chair: I know you have put in a double shift as Chair today. I think that might help us get to the root of why this room is so warm. We are trying to echo the micro-climate in Dudley, which I believe is quite tropical at this time of year. It is a pleasure to follow my hon. Friend the Member for Worsley and Eccles South.

This set of amendments follows on from amendment 19. When we were discussing amendment 19, the Minister said that she would take under active consideration the issue around independent hospitals; I am very glad about that. I hope that perhaps she will take these amendments in the same spirit, as they extend the same principle.

At the beginning, prompted by my hon. Friend the Member for Birmingham, Selly Oak, the Minister said she felt that independent hospitals would be a particular focus, because the revelations that we have seen on television showed that there is risk there. I suspect that the same risks are built into the care home sector, too, because the preconditions are similar—for example, a financial vested interest, a lack of outside scrutiny and an unhealthy power balance between those who run such schemes and those who are resident there.

The vast majority of the time, the leadership in such facilities is excellent and is geared towards supporting the individual. However, where that is not the case, those preconditions build up that risk. As I say, what we have talked about in relation to independent hospitals also applies here. We need to address a fundamental question. We have said that we believe that the DoLS system does not work, that the backlog is not tolerable, and that we ought to move to more effective arrangements. That view is very broadly shared, but I do not think that anyone would wish, in reaching a system that is more sustainable for the public purse and better for the individual, to downgrade the assessors from qualified social workers with specific qualifications in the area to others—in this case, care home managers. That is not a good way of saving money or getting things done more quickly, and the best way to make that clear is by finishing the process that began in the Lords, as my hon. Friend the Member for Worsley and Eccles South noted, and completely removing the relevant references from the Bill.

There are a couple of reasons why that is necessary. First, finances in care homes are marginal. We might sometimes blanch at the cost, but we know that they can go to the wall quite quickly. As a result, there are subconscious commercial pressures that could colour a judgment, shifting it away from the best interests of the individual and towards the best interests of the care home in general. That, of course, is not what we seek to do.

It cuts both ways. We have spoken about independent hospitals having a perverse incentive either to hold on to an individual when it is not appropriate or to provide a much more comprehensive service than is necessary, but it can cut the other way, too. I am not aware of the picture across the country, but in Nottingham the most complex care packages in a residential setting are hotly sought after and we do not have a mass market for them; the market for more general needs care in my city is quite mature and sustainable, but that is not the case for higher-end care. A different perverse incentive could therefore arise for a care home if there are individuals for whom starting the assessment process or conducting periodic reviews is more trouble than it is worth. Whatever path we take in the rest of the Bill, the issue will continue to be tested in case law, and I do not know of many care homes that would gladly take on the responsibility of being on the other side of it.

As well as perverse incentives either to keep people or to ensure that they do not stay, there is a second point, as my hon. Friend the Member for Worsley and Eccles South said: are care homes really the right responsible body? I did not know—I am disappointed that I missed it in my research—about the £20 training for care home managers in a really important subject. Of course that is not sufficient; I cannot imagine that it could cover anything beyond filling out a form in a legally compliant way. It instantly pushes us towards a tick-box approach, which nobody wants—an approach that is about clearing the necessary barriers to legal compliance, rather than working around the individual’s needs and being person-centred.

As my hon. Friend said, there is a double risk. Some local authorities will identify the risk straightaway; others will not. Those that are feeling particularly hard-pressed will say, “It is our legal responsibility to ensure that somebody does this, but it does not have to be us.” With public sector cuts as they are, there is a series of perverse cost incentives throughout the health and social care system that result in individuals being pushed from one organisation to another; this will be one such incentive. Other local authorities—we have heard some good examples—will say, “Hang on a minute: this is far too important for that,” but portfolio holders and directors of adult social services are under incredible pressure.

[Steve McCabe]

Is this another situation in which we are in the dark because of the missing code of practice? It may be the case that if the Government have thought about that there will be examples in the code of practice saying how it should operate, what the minimum expectations are to avoid a tick-box approach, what good practice is and what people should aspire to achieve. If we had sight of that—if we had some indication that it was on the Government’s agenda—it might be easier for us trying to scrutinise the Bill, and it would offer some reassurance to the wider public that the fears that have been expressed will not prove well-founded.

[Alex Norris]

I thank my hon. Friend for that intervention. I am perfectly willing to concede that I might be being a bit too sensitive or nervous about this if a blue riband code of practice is going to be laid next to the Bill that plays out all the concerns and things that we are seeking to avoid, and that therefore really protects people and ensures that decisions in the moment will be the right ones. However, the problem is that we simply do not have that, so we are left to conceive of it, which is very difficult. We trust Ministers and civil servants to pursue the goals that they are talking about, and to pursue the best for individuals, but it is still very hard. We cannot fully discharge our responsibility if we have not seen that piece of the puzzle, so that is frustrating.

It is about knocking this bit of legislation into something that gets us to the final goal. I do not think that anybody has advocated a DoLS system that is streamlined and more financially possible simply by pushing the assessments away from someone who is exceptionally skilled and trained in the area to somebody who is not. I do not think that is desirable for the individuals who will be assessed or fair on those who will do the assessing. I hope that Ministers are minded to take that on board.

[Alex Cunningham]

During today’s debate I have already raised concerns about independent hospitals, and about care home managers and their potential role in depriving people in their care of their freedom. I know that my hon. Friend the Member for Worsley and Eccles South has addressed that comprehensively, but I hope that I can still add some value to the debate.

Even if there was some way in which the Government could justify the role of care home managers as outlined in the Bill, there is still a huge number of reasons why the sector would struggle to deliver what Ministers want it to. My hon. Friend has talked about the fact that finances in care homes are very much on the margin—they could be bust one day and make a bit of profit the next. However, some care homes do not even have care home managers. In hundreds of others across the country, the level of competence of managers in running care homes is alarmingly poor. We have some of them in my constituency. We have some great managers, and we have some excellent care homes, but we also have some that fall into the “inadequate” or “requires improvement” categories on inspection. It is not good enough for us to consider handing over this level of responsibility to people who might not be competent, or might not even be there in order to carry out the work.

On the CQC website, 2,550 care homes are listed as requiring improvement, with a further 223 deemed “inadequate”. Some of them are very large homes, but let us say that each one has an average of just 25 people in their care. That would mean that some 70,000 elderly people in care are being failed by the system. Leadership in those homes is one of the reasons they are being failed, and CQC reports bear that out time and again.

I know that that is symptomatic of a broken adult care system that has been neglected by the Government. I am sure that the Minister wants to wring my neck when I start talking about resources again, but it is about inadequate resources. Even after allowing councils to hike council tax to boost the social care budget, there is still insufficient money in the system. Profit-taking companies are often failing to provide adequate care, citing as the reason that they cannot afford to do so.

The system is in danger of failing further, as care homes close and the number of people requiring residential support increases. How on earth can the Government justify placing this most important duty on care home managers, asking them to play a central role in depriving the people in their care of their freedom? Given that the system is broken, that thousands of care homes are not anywhere near the required standard, and that in many cases there is no one competent—or no one at all—in the home, who will fill the gaps and deal with deprivation of liberty issues there? There may be other reasons why someone needs to do the work planned for the care home managers. If there is no care home manager, who are the Government expecting to carry out these assessments? Those managers do not want this duty, so what happens if a care home manager says, “I am simply not prepared to do this work; I do not want this responsibility”? Again, who will pick up that work? Will it fall on the local authority, the local GP commissioning group, or the health board?