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

Debate between Barbara Keeley and James Morris

Tuesday 22nd January 2019 Public Bill Committees

[James Morris (Halesowen and Rowley Regis) (Con)]

The hon. Lady is laying out an interesting case. I wanted to ask a quick question about the amendment. Proposed sub-paragraph (2)(e) states that

“there is reason to believe that the appropriate person would be unwilling”

and proposed sub-paragraph (7) states:

“The responsible body must keep under review”.

I wonder how she envisages that process working in practice. What would the review process be that the responsible body would undertake to determine whether they thought an appropriate person was capable of undertaking their functions? It sounds a bit like a procedure where somebody has power of attorney, which then has to be frequently reviewed. How does she envisage that process working?

[Barbara Keeley]

Obviously, it is an extensive amendment. There are two issues, and I will go on in a moment to talk about how important it is to keep in contact with the cared-for person. It is clear to anybody who knows anything about care homes, or independent hospitals in particular, that some people end up without visitors and without having contact with anybody. The Bill allows renewal periods of three years. We can envisage a situation, given the examples I have given, where a cared-for person is hundreds of miles away from their family. In the example I gave of Sam, the family were not in contact due to the distance of travel.

With regard to review, a responsible body would keep an eye on the situation of a person who never receives any visits or contact. In those situations, it really is up to the care home, the independent hospital or the hospital. Those are the most vulnerable people. The amendment says that it should be a person’s right and the default to have an advocate. It is a matter of how to get the mechanism working towards that. The idea of a review is that the responsible body should be looking out for people who have had no contact with anybody else.

My next example is a powerful one. It was supplied by POhWER, an organisation that provides advocates to people who do not have anyone else to support them. POhWER’s advocate had been visiting an older lady in her care home for a few months. He described his work with her as follows:

“This was supposed to be a two-monthly visit but I felt monthly visits were more appropriate. I carried out mainly unannounced visits due to some of my concerns…

She had been living within the home for over a year. When speaking to the client, she wasn’t really aware where she was living and either referred to it as a temporary placement or a hospital. She didn’t state any unhappiness within the placement, but visually there appeared to be some neglect. There was inconsistency in the way she was described by staff and her documentation was also unclear…

After a few visits I noted her clothes were not appropriate for her skin condition. I was significantly alarmed by her swollen weeping legs and tight trousers that were wet from the fluid. I raised this with the managers immediately. She was then dressed in appropriate clothes. They spoke about the client having choice about what she wants to wear. I explained issues with her statement and the difference between choice and best interests for someone who lacks capacity and for someone who is not aware of the risk.

I asked them to identify this in various care plans, but there was nothing suitable in place…

My following visit saw some changes and this was now reflected in paperwork, but when speaking to the nurse in charge she wasn’t aware of the protocol in place. The client was in a better condition than in my previous visits which was comforting to see. Again I fed back to management about the communication in the team being unclear and was assured by the care home management this would be addressed.

I carried out another unannounced visit and saw my client in a nightie with blood stains. I had seen her legs which looked in extremely poor condition. I asked staff and management how her skin on her legs was and was informed there were no issues and they were following the protocols in place.

My client’s legs were weeping and covered in blood stains. I reported this to the managers of the home. This was also highlighted in my email and reported to the supervisory body and I was advised to contact the safeguarding team.

All my details and findings were reported to the safeguarding team and to the quality standards team. Since the involvement of the safeguarding team my client no longer resides at the home, has changed accommodation and is enjoying living there.”

The only reason the advocate was able to pick up on the poor treatment being received by the cared-for person in that case was because they visited her several times over the course of several months. Had they been involved solely with the authorisation process but then not visited until a scheduled review or renewal, which, as I mentioned earlier, might be three years later, it seems unlikely that the multitude of errors documented would have been seen. Ultimately, that would have led to the cared-for person receiving a much lower standard of care. That is why we want to see an appropriate person or advocate who will keep in touch with the cared-for person, and support to do that should be provided if it is needed.

Paragraph 39(5), which is proposed by the amendment, outlines some of the rights that the IMCA or the appropriate person should support the cared-for person to understand and exercise. I hope that the code of practice sets out in more detail the way in which IMCAs or appropriate persons should carry out their role, but we feel that the rights outlined in proposed sub-paragraph (5) are the most important for the cared-for person to understand. They include the ability to trigger an independent review of the application or authorisation, and I believe that they should be in the Bill. We have not seen the code—we have seen a list of what is going to be in the code—and we have not seen the guidance that will be issued to IMCAs. In the absence of those, we want to ensure that certain key rights are protected in the legislation.

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

Debate between Barbara Keeley and James Morris

Tuesday 15th January 2019 Public Bill Committees

[Barbara Keeley]

I think it is worth quickly winding up on the Opposition’s three amendments. As I said earlier, it was right to extend the liberty protection safeguards to 16 and 17-year-olds, and some very helpful points on that have been made by my hon. Friends. I ask the Minister to accept that it introduces a new process to authorise a young person’s deprivation of liberty. We stick to the view that the AMCP’s conducting a pre-authorisation review for 16 and 17-year-olds is absolutely vital.

I ask the Minister to reflect on the points that emerged in the discussion of Opposition amendment 37. Some 4,670 DoLS applications came in from mental health establishments. Of those, 305 did not meet the qualifying requirements. Those people should not have been deprived of their liberty where they were. Given the backlog of DoLS assessments, there might be a larger number than the ones we know about. We need to reflect on the fact that mental health detention is one of the most restrictive under the liberty protection safeguards, which we should take into account. Evidence has been put to us that there is a serious risk of unlawful detention and excessive restriction. Although we want to deal with that through the new process, we do not want people to be detained unlawfully.

Our amendment means that a review will be required for 16 and 17-year-olds where physical restraint, sedation or covert medication is used. The Minister and the Secretary of State are instigating reviews on this, as are other Committees of the House: there is an ongoing review by the Joint Committee on Human Rights. There are really serious concerns and we have to be specific, but we cannot do that without a code of practice, which we have not seen.

On restrictions on contact, my hon. Friend the Member for Nottingham North and I talked about cases in which parents are banned from visiting—they are just not allowed to visit, which is totally unacceptable. There should be a review where there is a less restrictive option for the cared-for person’s care or residence. We should reflect on the well-known case of Steven Neary, which I mentioned. He was kept unlawfully for a year, which should not happen.

[James Morris (Halesowen and Rowley Regis) (Con)]

The hon. Lady talked about it being unacceptable for family members to be restricted in their access to children who have been deprived of their liberty, and I have a lot of sympathy for that point. Does she accept that there are cases where that would be deemed appropriate due to the particular circumstances in which a young person has found themselves? Giving family members an automatic right to have access to a child is not a black and white issue, because it depends on the particular circumstances in which the child has been deprived of their liberty.

[Barbara Keeley]

I very much accept that point. Clearly there are difficult family circumstances and sometimes contact is not allowed. All the Opposition are saying in amendment 37 is that those cases where the family is denied access are more risky, and there should be the possibility of an AMCP review. We are not saying it should not happen—we know it does happen for a variety of reasons—but the risk of another Steven Neary case is clear once parents or other family members are banned. Once family members have their contact reduced or taken away, that becomes a high-risk case.