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

Debate between Alex Norris and Alex Cunningham

Tuesday 22nd January 2019 Public Bill Committees

[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?

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

Debate between Alex Norris and Alex Cunningham

Thursday 17th January 2019 Public Bill Committees

[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.

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

Debate between Alex Norris and Alex Cunningham

Thursday 17th January 2019 Public Bill Committees

[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—

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

Debate between Alex Norris and Alex Cunningham

Tuesday 15th January 2019 Public Bill Committees

[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?

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

Debate between Alex Norris and Alex Cunningham

Tuesday 15th January 2019 Public Bill Committees

[Alex Norris]

I share that view completely. On my first day here, if my hon. Friend had stopped me and said, “You’ve just come from Nottingham, where you were the adult social care lead. What was your situation with DoLS? Why did you have a backlog? Are the regulations too cumbersome?” I would have said that they probably were, but that that was about our assessor capacity, because there have been eight years of growing demand in social care, while the council has experienced extraordinary reductions in resources. That toxic cocktail meant that we were increasingly stretched to the point where we really struggled to keep up with our responsibilities. There is concern that, while we could write the best legislation, if we do not understand the context, we will not deliver what we are trying to.

[Alex Cunningham]

On resources, I spent yesterday evening with the lead member for adult services in my local authority of Stockton-on-Tees, Councillor Jim Beall. He told me that the council has made the political choice to plough resources into the DoLS system to ensure that there is no backlog. Throughout north-east England, political decisions have been made to take resources from other areas and put them into that, to ensure there is no backlog. Might that not be good practice?

[Alex Norris]

Yes. That clearly shows Stockton’s commitment to ensuring that there are no backlogs and that it complies with its legal responsibilities. It also shows that the system there works in the best interests of the individual, rather than around council budgets. That is a political decision, as my hon. Friend says. There is a real question as to whether we establish and resource a system that makes that the norm everywhere, or whether, up and down the country, hard-pressed social care leads will make judgments and say, “Hang on a minute; I am getting a bit of pressure from colleagues at council budget time. Can we really afford to resource this properly?”. That should be a real concern to us.

I move on to amendments 37 to 39. In general, beefing up the arrangements on page 16, line 12, of the Bill seems a good idea; we know that, because the Minister seeks to do it through a Government amendment. I am concerned that if we accept only Government amendments, there is still far too much interpretation in the Bill. My hon. Friend the Member for Stockton North—I have two hon. Friends from Stockton behind me and I am not sure who is from the north and who from the south.

[Alex Cunningham]

I am north.

[Alex Norris]

I am sure Hansard will correct that and make me seem a lot more articulate, which is one of the real perks of this place. Already, we have heard a lot about the interpretation of what is appropriate. I worry that if we accept only what is in the Bill and Government amendments, the Bill will be very much open to interpretation in the moment by a third party who, presumably, is busy and has other responsibilities. Our amendments develop the situation further.

I heard what the Minister said about the perils of putting in a long list that risks failing to be exhaustive, but I would say, “Let’s develop that list a little.” Amendment 37 is clear about our wanting to make sure that areas with the highest risk—those that would have been the flashing reds I talked about earlier—are definitely and in all cases covered, without that being open to interpretation under the Bill. I think that is important.

Amendment 38 extends and tidies up arrangements for 16 and 17-year-olds, and brings in a new category of person—young people—for whom there is lots of risk. It is prudent to make sure that all such cases are covered. Amendment 39 broadens that trigger of objection, so that when a third-party interpretation is made in a care setting, it is a lot clearer what constitutes an objection, and what might just be the individual not enjoying their day. Again, that is wise and gives us a great deal of security. I will finish on that point. This is important legislation, but it is important that we know the full story, which means having the code of practice. If we mean something, we should state it in the Bill, and not wait for interpretation later.

--- Later in debate ---

[Alex Cunningham]

The issue of conflicts of interest is very important, particularly in relation to the previous discussion about independent hospitals. It beggars belief that we can hand over to countless private organisations the responsibility to determine whether a person in their care—for whom substantial fees are being paid —should be deprived of their liberty and detained without recourse to anyone other than those within their own circle.

We have a duty to protect the public purse in this area, and not just the public purse, but the purses of those people who pay for their own care. Currently in the Bill, the responsible body for an independent hospital is the independent hospital itself. It is simply not appropriate for an independent provider to be responsible for authorising deprivations of liberty of people in its own establishment. The shadow Minister, my hon. Friend the Member for Worsley and Eccles South, has spoken about how that would be a serious conflict of interest, as have many others in the past. The feedback I have had from organisations confirms that. They see the huge financial incentive for an independent hospital to keep people in their establishments. Does any Member here believe that an independent hospital can be truly impartial when treating patients who are paying directly for their treatment, and have no conflict of interest? Can any Member tell me confidently they do not believe that any manager of a private hospital would make any consideration of the financial benefits to the hospital when assessing a patient?

My hon. Friend stressed at length the advantages of amendment 19, which would mean that when a person is accommodated in such a hospital for the assessment or treatment of a mental disorder and their care is commissioned by the CCG or local health board, the responsible body will be the CCG or local health board. What can be wrong with the public sector having a role, not only to determine whether there is a need for a liberty protection safeguard order, but to be involved in determining what is best for the individual?

If we hand this power to an independent private hospital, who will assess whether the placement is still the best way to meet that person’s needs and arrange for them to be moved elsewhere, or to another establishment, or even back to their family? If an approved mental capacity professional was involved and they too were employed directly by the hospital or happened to be their preferred go-to person, they also have a financial vested interest in the outcome of such an assessment.

We have to protect the client first and foremost, and I believe that the amendment would achieve that. There is a genuine worry that self-funders may be deprived of their liberty with no proper authorisation—and if no independent person is there to check up, who will know? An assessment is not satisfactory if there are no checks and balances for the person concerned.

There is also a concern that fees may be required for certain assessments. Again, if no genuinely independent person is involved, who can judge whether such an assessment is necessary? I am sure that the vast majority of people in such establishments will act credibly and honestly, but I am concerned about the few who may not, who may see dashing for a new order as the simplest way forward, when what the person affected really needs is a full and proper assessment. If we cannot completely trust that there can be no ulterior motive when caring for self-funders and that the individual’s care and wellbeing is the only consideration, we must ensure that assessment and care are totally separate.

Many organisations with an interest in the Bill have raised concerns with me. The consensus among them appears to be that the cared-for person will be at serious risk if responsibility for authorising their deprivation of liberty is placed in the hands of the detaining private hospital, because the managers have a vested interest in a particular outcome. As Mencap notes, it would be a serious conflict of interest because there is a huge financial incentive for the independent hospital to keep people.

Our focus should be entirely on people, not profit. There needs to be an absolute separation, so the conflict of interest needs to be removed from the Bill. Organisations tell me that it is essential that the CCG, the local health board or the relevant local authority should act as the responsible body in such circumstances, and that in each case an AMCP should carry out the pre-authorisation review and, critically, retain oversight throughout the duration of the detention. Families need to be able to raise concerns with a person who is genuinely independent; I do not believe that that can happen if the independent hospital is given total responsibility.

Amendment 19 will deliver what is needed if we are genuine about our concern to protect vulnerable individuals. I ask the Committee to agree to it.

[Alex Norris]

The Minister moved part of the way towards us earlier in the debate by noting the challenges that have happened in the sector, especially those that have received public attention. It is worth our looking at the issue, because it is clear that there are perverse incentives for independent hospitals to make judgments that serve—whether consciously or subconsciously—the broader interests of the facility, but move away from the best interests of the individual. It makes abundant sense to put some sort of independence into the system and help those organisations by moving responsibility back to those who would normally have holding responsibilities for the care of individuals.

In an ideal system, a CCG or local authority would purchase a framework, as it would in general needs social care, in which the cost was related to the care that it was buying for the needs of individuals. It would be relatively fixed and understood, rather than going up and down according to individual circumstances. However, with the individuals and the care packages that we are talking about, frameworks break down instantly; the package needed for each person is so specific that there are no models to buy from and no fixed prices, so the benefit of a market falls away. In my experience in local government of commissioning analogous packages of support for people with very profound needs, often only one provider came forward, so it very much set the price.

Amendment 19 would take away the perverse incentive and ensure, as we would all wish, that care is designed around the individual and not around anything else.

Ordered, That the debate be now adjourned.—(Wendy Morton.)