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

Alex Norris Excerpts

Thursday 17th January 2019 Public Bill Committees

[Barbara Keeley]

I beg to move amendment 34, in schedule 1, page 15, line 34, at end insert—

“(3A) Where the person consulted under sub-paragraph (2) has parental responsibility for the cared-for person, the consultation shall seek to ascertain that person’s wishes and feelings in relation to the arrangements.”

This amendment introduces a requirement to consult parents about their child’s care arrangements.

The amendment follows on from amendment 30 on parental consent and amendment 38 on approved mental capacity professional reviews for 16 and 17-year-olds. It would provide an additional and equally important tool to ensure that 16 and 17-year-olds, who will now be subject to the Mental Capacity Act 2005, are afforded the proper safeguards.

I have previously welcomed the inclusion of 16 and 17-year-olds in the Bill, as it is important that they do not fall through the cracks in the system. Their inclusion provides consistency with the remainder of the Mental Capacity Act, which makes no distinction between 16 and 17-year-olds and people older than them, but the Bill does not go as far as was recommended by the Law Commission, which wanted the Government to carry out a full review of mental capacity law as it relates to children and young people. I hope the Government are still considering that recommendation. The current system leaves children under 16 in an uncertain legal position as there is no provision for them to be subject to mental capacity legislation, so I hope a review is forthcoming.

The amendment focuses on the consultation process that must be carried out before an authorisation is either granted or renewed. That is one of the most important processes that will be carried out under the liberty protection safeguards, as it will ensure that the cared-for person and others who are interested in their welfare have a say. Since we will not cover consultation in great detail in future, I will briefly outline why the process is of such importance in the context of the amendment.

In this area, the Bill goes considerably further than the existing deprivation of liberty safeguards system. It is welcome that we are moving on from a situation where consultation is optional to one where it is mandatory. That is a crucial part of understanding whether the arrangements are in a person’s best interests, particularly in cases where a person has communication issues—we explored that this morning. Those with an interest in a person’s welfare may be the best placed to comment on their wishes and feelings. That is a broad group, which is why the phrase “people with an interest in the cared-for person’s welfare” is so vital. It covers family members, but goes further where it needs to. It could include anyone, from fellow members of a church congregation to a neighbour who keeps an eye out for the cared-for person. The consultations are not optional; the Bill contains provision that those people must be consulted. Unfortunately, how the results of the consultation should be integrated with other assessments is not mentioned. I suspect that, again, that will appear in the much-fêted code of practice when it is finally published.

I hope it will become clear that the results of the consultation should be given appropriate weight in considering whether arrangements are necessary and proportionate. In most cases, that will be sufficient, but the views of some of the groups to be consulted that are mentioned, and one crucial group that is not specifically mentioned, should be given greater weight. This amendment refers specifically to 16 and 17-year-olds, and there is a group with a specific legally grounded interest in their welfare: the individuals who have parental responsibility for the cared-for person. We want to ensure that people with parental responsibility have their different role recognised. Amendment 30 on parental objection was one way that could be achieved; amendment 34 is another.

In the Mental Capacity Act 2005 there are a number of provisions, as part of the best interest requirements, that would be integrated into the consultation process. I will quote from those briefly. Section 4(6) of the Act requires an assessment to be made on

“the person’s past and present wishes and feelings…the beliefs and values that would be likely to influence his decision if he had capacity, and…the other factors that he would be likely to consider if he were able to do so.”

Those are not necessarily things that would be obvious to just anyone interested in a cared-for person’s welfare. In particular, beliefs and values are often deeply personal. To ensure those are properly captured, we must ensure that those people who know the cared-for person best are not only consulted but given a meaningful say on the arrangements.

When the Bill was published, the requirement was that anybody with an interest in the cared-for person’s welfare must be consulted, but as I said, it went no further than that and did not specify what the consultation would seek to do. Because the Bill extends to 16 and 17-year-olds, that provision is now clearly deficient. Parents have a greater stake in their children’s welfare than others, but more than that, parents can give a greater insight into the beliefs, values, wishes and feelings of their children than those who have other relationships. Legislation such as the Children Act 1983 recognises that fact and provides parents with a far greater say over what their children do than is normally given to other family members. In particular, existing legislation creates a presumption that a person with parental responsibility has a significant say over where a child or young person lives. We are talking about an age group that requires parental permission to get married or even to get a tattoo. It is clear that the parents of 16 and 17-year-olds have rights and responsibilities that vastly outstrip those found in other relationships. The amendment would reflect that importance.

This is a distinct issue from the one raised in amendment 30 on the role of parental consent in authorising arrangements. We have touched on that before. Inevitably, there will be cases where parents do not wish to withhold their consent completely, but none the less have reservations or suggestions that should be taken on board, particularly in the case of 16 or 17-year-olds, who may sometimes display challenging behaviour. In those circumstances, parents may not wish to veto arrangements completely, as that may leave them without the support they need.

We are taking about situations where parents may find themselves pitted against professionals. We all know the feeling of being told by a doctor that something is in our best interests; mostly, we do not challenge those assertions, but that does not mean that professionals are infallible. In cases of such importance, where we are dealing with people’s fundamental human rights, it is important that we test such presumptions.

I have spoken previously about the case of Bethany, who was held inappropriately in St Andrews independent hospital. Despite the difficulties, in some ways Bethany is fortunate that her father is able to stand up for her and argue against what professionals are telling him is in her best interests. Steven Neary, whose case I also mentioned, was also fortunate that his father worked tirelessly to have him moved from the unit in which he was being held so inappropriately.

There is another deeply tragic case, illustrating the difficulties parents have in challenging professionals’ determination of what is in a patient’s best interest—that of Oliver McGowan. I know the Minister met Oliver’s mother Paula following her successful petition for a debate on the treatment of people with autism and learning disability. Oliver was autistic, but had a full life expectancy. He had previously had adverse reactions to the type of antipsychotic medication that eventually killed him, yet despite his parents’ raising concerns, the clinician treating him continued to administer that medication and Oliver died. That tragic case highlights what parents can be up against.

The unfortunate reality is that parents such as Bethany’s dad and Steven Neary’s father, who have been able to challenge decisions affecting their children, are notable for being the exception, not the rule. There are any number of parents of children in this situation who have been told so often by professionals that the arrangements are in their children’s best interests that they find it hard to persist in challenging that over months and years. It is particularly hard for parents who do not have the resources, time or confidence to draw public attention to their case. Other parents need to be proactively supported to comment on the proposed arrangements.

To summarise my argument, some parents will not feel confident enough to try to overrule professionals who are telling them that certain arrangements are in their child’s best interest. That does not mean we should not pay particular attention to their views on whether the arrangements are proportionate or on whether there may be less restrictive options available.

One point that must be considered is where parents would prefer that their child continue to live in the family home. I spoke earlier about the importance of never depriving somebody of their liberty unless that is the only option, but the unfortunate reality is that local authorities face severe funding pressures, and professionals sometimes tend toward ensuring physical safety at the cost of all else. That can lead to parents who may want to keep their child at home being told that the only way to keep the child safe is to move them elsewhere. Giving their views particular weight at the consultation stages is one way to ensure that arrangements are not authorised when a less restrictive option is desirable.

The amendment provides a dedicated outlet for parents to give their views. It reflects the greater role that parents and those with parental responsibilities play in caring for their children. The purpose is to strengthen the role that parents can play throughout the process of authorising a deprivation of liberty. Our amendment 30 would have required them to give their approval to any arrangements, but there is a final reason to specify that those with parental responsibility must have their views considered. I discussed at length earlier some cases where care homes restricted contact between a cared-for person and their family. That can be done for no reason, with only spurious grounds given. The cases I raised earlier all related to an older cared-for person, but the same provisions are sometimes put in place for younger people, with parents restricted from seeing their own children. However widespread that practice may be, it is another instance where a single case of a parent being denied a say on their child’s care for no good reason would be too many. I hope amendment 34 makes it clear that the responsible body, or whoever else is organising the consultation, cannot simply sideline those with parental responsibilities. The amendment is about ensuring that the parental voice is heard throughout the process and can shape the form that arrangements may take.

We are talking about a cohort of young people with immensely complex needs. They need the people who know them best to be not only informed, but actively consulted on the arrangements they will be subject to. By doing that, we can ensure that when 16 or 17-year-olds are subject to the liberty protection safeguards, it is done in their best interests.

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

It is a pleasure to serve under your chairship, Mr Pritchard. This morning we talked a lot about the role of parents in these circumstances, so I will not rehearse all those arguments again. We tested the view of the Committee on the principle that there would be a parental override, and the decision of the Committee was that that was not appropriate. Amendment 34 is perhaps a step back from that, but would still give parents a very important place and role in exceptionally difficult decisions. I hope it might find a little more traction with colleagues.

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[Alex Norris]

This debate harks back to what we talked about on Tuesday—the perverse incentives for those providing care to let individuals remain on care packages for their own commercial interests, whether consciously or subconsciously. There is definitely a conflict of interest there. We have not taken previous amendments on that, but at some point I believe a line will have to be drawn stating, “These are the very clear in law protections that we are putting down to ensure there is no conflict of interest.”

It is entirely possible that the code of practice will refer to that and at the first stroke make it clear that it would be highly inappropriate for the assessments or reviews to be done by individuals who have a close connection or employment relationship with the provider themselves. That might be so, but we do not have that code of practice yet, and in any case, it is probably something that would be better in the Bill than in guidance, notwithstanding what the Minister has said previously about the standing of the code of practice.

We know that care facilities have narrow financial constraints. Their finances are tight and, as my hon. Friend the Member for Stockton North says, there is a pressure to provide as cheaply as possible. That is a clear and present danger. To avoid that concern and send a clear signal about those who conduct these types of reviews, now is a good time to put it in the Bill.

[Caroline Dinenage]

I am grateful to the hon. Members who have raised this important issue. I will address each amendment in turn.

On amendment 35, I agree that the independence of the pre-authorisation reviewer is of the utmost importance for ensuring that there is no conflict of interest in the pre-authorisation review. The Bill provides for separation between those who will authorise arrangements and those who will carry them out. The Bill is clear that anyone involved in a person’s day-to-day care or treatment or with a prescribed connection to a care home cannot complete a pre-authorisation review. That was an amendment made to the Bill after discussion in the other place.

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[Alex Cunningham]

I know that the Minister is well intentioned with this Bill, but it remains the case that the cared-for person is not always at the heart of it. That is a major worry, not just for us, but for people across our society. The issue has been brought to me by the Law Commission, by the Alzheimer’s Society, by experts who work for pro-liberty groups and by constituents who have taken the time to write to me on this point specifically.

It is baffling to me that the approved mental capacity professional is not required in the Bill to meet the cared-for person. Yet they are the professional who will decide the future of that person—whether or not they lose their liberty. None of us would want that for one of our relatives, would we? We simply would not want that to happen.

It may well be that the person in care does not have the capacity for a meaningful conversation to express their wishes and beliefs, but the assessor does not know that unless they meet them. It is essential. If the person in care does have some capacity, which I suspect would be identified by the assessor, surely their views, however communicated, ought to be taken into consideration—and, who knows, we might avoid the deprivation of liberty for that person.

I have already raised the importance of the role of speech and language therapists. I think the hon. Member for Faversham and Mid Kent mentioned them this morning, and I know the Minister accepts the role that they have to play. They may well help identify the wishes of the cared-for person simply by enabling them to communicate, and surely there should be a separate assessment of the person’s views. If they are opposed to the accommodation or the care plan, an independent advocate should act in that person’s best interest.

Evidence submitted by Rethink Mental Illness raises the important point that nobody should have an advocate forced upon them, especially if they do not want one. However, advocates should still be appointed, even if they are then removed. That would ensure that the opinions of both the advocate and the person in care are taken into consideration, and that a judgment is made by a professional on the need for representation. We will debate advocacy later on in this Committee and I will speak to it in more detail then.

Ultimately, the amendment is about ensuring that the approved mental capacity professional has met with all the appropriate parties, including the person in care themselves, so that they can make the most informed decision possible. Not only does mandating the AMCP to meet the cared-for person before making the decision ensure liberty and respect is given to the person in care; it makes the professional’s job considerably easier, as diagnosis is more effective when they have met the person. As was raised in the evidence-gathering, in some cases simply meeting the cared-for person can make it obvious whether the person has capacity. As I said earlier, I suggest that no one but a professional is fully equipped to make that judgment.

Kay Matthews, from the deprivation of liberty safeguards team in the Borough of Poole local authority, wrote to the Committee and said that she would like to see the

“Wishes of the person—past and present”—

I emphasise “past and present”—taken into consideration in the Bill. She went on to say:

“I would like the person’s wishes—what they want, what they would have wanted—to be central to the assessment. I would like it stipulated that people making decisions on behalf of the person ought to support the person who lacks capacity to make the decisions they would have made if they still had capacity; that the person’s wishes are to be followed unless there is evidence that there is or could be seriously dangerous or significantly distressing consequences for the person.”

Ms Matthews says that that is vital because,

“in practice, some staff and relatives see a lack of capacity as a green light to over-ride the wishes of the person to meet their own needs (which are usually to feel less personally or professionally anxious about the person).”

She says that in her 10 years of experience she has seen it happen “again and again”. It is not only ineffective, but potentially dangerous that the Bill would allow the AMCP to basically come up with a verdict by just reading the in-care person’s file or talking to everyone else apart from the person themselves. I understand that because of tight budgets and cuts, care homes need to save money and time, but that comes at the cost of the in-care person.

While I am on the subject of costs in care homes, can the Minister tell me what assessment she has made of the potential costs that will fall on care homes from their extended role in the process? Has she had any data from the industry on that and, assuming she has, will she publish that assessment and data so that the Committee can understand the additional financial burden she is placing on the sector? Can she also advise us of who will be responsible for those costs? Will it be the hard-pressed care home that has to absorb them? Will there be a charge on the individual if they happen to meet their own care costs? If they do not, will that pass to the local authority, the health board or the clinical commissioning group? Who will pick up those costs? If the Minister does not have the data, will she commit to getting some before Report stage?

Returning to the amendment, do the Government want to be seen to be ignoring the voices of people in care? Most of all, does the Minister want to see people in care deprived of their liberty for the sake of what I see as one essential step in the process? The Mental Capacity Act should be an Act that is designed to support, listen to and respect the opinions of those being cared for. It should not make it easy for other people to quash or ignore the decisions of that individual.

[Alex Norris]

I have specific trouble with the word “practicable”. From my time in local government—I know things have not got better in the 18 months since then—I would argue strongly that the current assessment workload is not practicable for the individual. Earlier in our consideration of the Bill, my hon. Friend the Member for Birmingham, Selly Oak compared social work case loads when he was active in the profession with what they might be today. Putting in legislation how practicable it is for an individual to go and do an assessment creates the chance of a loophole that does something that we do not intend the Bill to do.

It is striking, as my hon. Friend the Member for Birmingham, Selly Oak said, that the Minister has at all turns been careful about what has been put in the Bill so as not to create future loopholes. We know that traditionally, this area has been tested very heavily in case law and it will be tested again in court. She has been very careful not to put those words in there, but this one is problematic. We know that in a time of rising demand and diminished resources, there will be pressures. To put something in that suggests that if it is just too difficult for a social worker to go and do an assessment, that assessment will not take place, is dangerous. I do not think that is what we are trying to do. I believe that it will lead to a serious problem.

The market for providing very high-need care is not very developed. We are talking about very small numbers of people, so there are not masses and masses of providers. When it comes to all of us being older, there are facilities in all constituencies and communities for older people to have residential care, because it is a high-demand area. The very specific, individualised care packages that involve things such as depriving liberty are not found in every community. Often, we hear horror stories in children’s mental health of people being sent a long way away to find the right facility. Are we then saying that a reassessment might not be practical, because the AMCP is in Nottingham and the care placement is a long way out on the east coast in Lincolnshire? That might not be considered by an individual to be a “practicable” thing to do, so I have a real problem with that word.

If the Government are saying that there are circumstances—my hon. Friend the Member for Worsley and Eccles South mentioned the exchange in the other place—where they are relaxed about an AMCP not seeing an individual face-to-face, I think that is a bad idea, for the reasons detailed by my hon. Friend the Member for Stockton North. If the Government are saying that there are circumstances where they are relaxed about that, they should name them and put them on the face of the Bill and be exhaustive with them, so that we can be clear and test the will of the Committee as to whether we agree.

We need to have a greater sense of what we are saying in respect of dialling back people’s rights to see a qualified professional when they are having their liberty removed. If we are rolling that back, let us be really clear about how we are rolling it back—the exact circumstances and what recourse they might have if they or their carers believe that to be wrong. I think this is out of step with all the discussions we had on Tuesday and this morning. I believe it creates a loophole and we need greater clarification.

[Caroline Dinenage]

I thank those hon. Members who have spoken and tabled these amendments. Amendments 42 and 43, as we have heard, would require an approved mental capacity professional to meet with the person in every case where they are carrying out a pre-authorisation review, rather than—as we propose and as is written on the face of the Bill—where it is “appropriate and practicable”.

The Bill currently states that where an AMCP is carrying out a pre-authorisation review, they must meet with the person where practicable and appropriate. In the vast majority of circumstances it will be practicable and appropriate. This qualification comes from the Law Commission draft Bill, which recognised—we agree with this—that the AMCP will be required to meet with the person in virtually every case. This is an important protection within the liberty protection safeguard system.

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[Alex Norris]

Unless I am missing something, the Bill states that

“the Approved Mental Capacity Professional must…meet with the cared-for person, if it appears to the Approved Mental Capacity Professional to be appropriate and practicable to do so”.

The word “if” does not imply to me that the exception should apply only in an extraordinarily small minority of cases.

[Barbara Keeley]

As we have discussed, the AMCP is likely to be engaged only in high-risk cases anyway, so we are not proposing something burdensome. The meeting need only be a few minutes long; I am not suggesting that it has to be exhaustive. It needs to confirm that the condition of the cared-for person matches what is in the application. In a case involving deprivation of liberty, I think family members would welcome someone saying, “I am only here to check that the facts bear out what I am reviewing.” It would be a further safeguard for people in high-risk cases.

We should reject anything that would undermine the ACMP’s ability to make a full and thorough assessment of every case. We wish to press the amendment to a vote.

Question put, That the amendment be made.