Mental Capacity (Amendment) Bill [Lords]

Debate between Barbara Keeley and Steve McCabe

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 12th February 2019 Commons Chamber

[Barbara Keeley]

I very much agree with that. We have heard about a code of practice and regulations, but we cannot see any of these things. With this Bill, we should have had the promised detail on the code of practice. We should not be passing the Bill without it.

First, I wish to talk about amendment 50, which addresses the role proposed in the Bill for care home managers. A number of Members have raised that issue, and we fundamentally disagree with that role, in the same way that we disagreed with the role in the liberty protection safeguards system being given to independent hospitals, which the Government are now amending. There is no logic in the Government removing one conflict of interest from the Bill and not the other.

When this Bill was introduced in the House of Lords, it placed almost all power and responsibility for the LPS in the hands of care home managers. It would have allowed them to be judge and jury, deciding when to deprive people of their liberty. I accept that the Bill has been marginally improved from the original position. The Government were forced to make concessions in the House of Lords, but what they have done so far is the bare minimum. The Bill still hands far too much power to care home managers. Stakeholders across the sector, including care home managers themselves, are very concerned about this. Care England, the representative body for care homes, has said:

“As providers we are very concerned about the inherent conflict of interest associated with placing Liberty Protection Safeguards assessment responsibilities on care home managers “

I also want to quote something that was written in evidence to the Public Bill Committee. A submission made by the Albert House nursing home stated:

“Managers in Care Homes are already stretched and heaping further responsibility on them could lead to more people giving up and looking for easier work.”

It seems clear that even care home managers do not want this responsibility to be given to them. I cannot understand why the Government are insisting on doing so, unless of course the reason is just cost saving.

Under the Government’s proposals in the Bill, local councils will be able to delegate the assessment and consultation process to the care home manager whenever they see fit. That risks creating a postcode lottery, where some local councils with adequate resources carry out LPS assessments themselves, while others will have to reduce their role to simply rubber-stamping the applications they get from care home managers. That cannot be right.

We have to be clear in this Chamber that one issue facing the current system is that some local councils are not able to properly resource their DoLS teams following years of cuts to their funding. This Bill would allow cash-strapped local councils to outsource the process entirely, with serious consequences for cared-for people. If care home managers organise the authorisation process, they decide who carries out medical assessments, and who determines whether the arrangements are necessary and proportionate. I have heard colleagues expressing concern that the statement provided by the care home manager forms the basis of authorisation. We know that many local councils do not currently have the resources to fund their DoLS teams properly now. Conservative Members have talked about the backlog and concerns about that, but in recent weeks we have seen a further £1.3 billion taken out of grant funding to local councils. The Minister has given us no reassurance that the Government will provide any new funding for the proposed system.

[Steve McCabe]

While my hon. Friend is on the subject of care home managers, may I ask whether she agrees that if they are responsible for the consultation, which is supposed to be one of the safeguards protecting a person’s liberty, the person cannot possibly be at the heart or centre of the Bill? Such a provision drives a coach and horse through the notion that their liberty is being protected.

[Barbara Keeley]

I absolutely agree with that. Local councils face a serious resource issue, and we see a pressing of this role away to care home managers. I have got some examples with me, but I do not know whether I will have time to go through them. However, we can see that there will be a strong temptation in local councils simply to presume that the care home manager is right. We have to recognise that over-stretched professionals in local councils will sometimes simply accept the word of care staff without fully investigating the case.

In the Public Bill Committee, I talked about the recent case of Y v. Barking and Dagenham. This was the case of a young man who was placed in an inappropriate care home. Initially his parents were satisfied with his placement, but over time the quality of his care deteriorated. We hear a lot and have great concerns about restraint. That young man was restrained in that care home 199 times in two years and suffered significant harm. Y eventually got out of that placement, following a court-appointed guardian visiting and raising concerns, but it took the intervention of somebody outside the care home—that is the key thing.

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

Debate between Barbara Keeley and Steve McCabe

Tuesday 22nd January 2019 Public Bill Committees

[Barbara Keeley]

The Minister knows that that is not an accurate interpretation of what I am saying. We spent a fair amount of time talking about independent hospitals, which are still a massive worry and concern. There is still great concern about the potential role of care home managers, because of the conflict of interest in the case of both independent hospitals and care home managers. There are too many actors in this process who could get in the way and be the people deciding whether a best interest test is met.

Were the best interest assessors the people who are used to this and have been doing this job in local authorities, I would be more comfortable. The Government are trying to give power over the process to care home managers and independent hospitals as responsible bodies, and we disagree with that profoundly, because of the cases that I have brought to the Minister’s attention. I think she and the Government are wrong to put faith in bodies where there is a conflict of interest. That is why I feel so strongly about this.

[Steve McCabe]

I was going to put a similar point to my hon. Friend. The danger in the Minister’s assertion is that she puts all her faith in the official position, in the position of the responsible authorities. As we have already discussed in the Committee, because of the pressures on those people, they may have other interests and other demands on their attention. If we want to represent properly the best interest of the person and make sure that they are at the centre of the process, we need a balancing mechanism, to ensure that all the issues that the authorities will take into account will be balanced against the best wishes of the person. That is why there is an argument for independent advocacy being set aside from the interest of the responsible organisations.

[Barbara Keeley]

That is very much the case. To summarise the debate, on the Labour Benches we have given some very powerful examples of the value of advocacy. I have been very impressed by the selection of cases and I thank my hon. Friends for their speeches.

Advocacy is one of the most important safeguards in a mental capacity Bill. It is—perhaps we do not like to use the word these days—a final backstop against improper deprivation of liberty. Our amendment makes it clear that the provision of advocacy must be the default position and I do not resile from that being the right thing to do. There are a few limited exceptions, but the provision of an advocate should go ahead, so that cared-for people are able fully to enact their rights. Without that support they will not be able fully to enact their rights.

We have heard powerful examples about getting people out of inappropriate settings and preventing someone’s home being sold when they did not want it to be sold, so that they could return to it. We should not underestimate—Labour Members do not underestimate—how vital advocates are. I know it is a wide-ranging amendment, but it seeks to improve the Bill in a number of ways, primarily guaranteeing an advocate for anybody who wants one.

Question put, That the amendment be made.

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

Debate between Barbara Keeley and Steve McCabe

Thursday 17th January 2019 Public Bill Committees

[Steve McCabe]

Absolutely; I agree entirely. That makes more sense than the way I have been saying it.

I accept that the amendment is clumsy and not well drafted, but I hope that it is clear that, more than anything, we need to hear—all the better if it happens before our proceedings conclude—and then see in black and white a cast-iron guarantee that the arrangements will not be used in a way that ends up being detrimental to the interests of the person about whom we should be most concerned. That is the purpose of the amendment. We can have some confidence that all those conditions have been appropriately and properly satisfied only if we have confidence that a professional with the appropriate experience, knowledge and skills, who is valiantly independent and capable of looking at it in the round, has been a key component of that decision.

[Barbara Keeley]

I thank my hon. Friend for moving the amendment. The Committee has already considered the principles that he has discussed, but I am glad to have the opportunity to return to them, because the role of the AMCP is a big part of the schedule, which I am sure we will come back to.

The aim of the amendment is to ensure that all people subject to the liberty protection safeguards have their case considered by an approved mental capacity professional. On Tuesday morning I discussed a range of cases where we thought that it was crucial that the approved mental capacity professional should review the case. I was talking about specific cases, but an AMCP review would be beneficial in all cases, because it would bring independent scrutiny from a professional with experience in such matters. We will talk about the issue of skills shortly, which comes into it as well.

An AMCP review can only be a good thing. It would ensure that even lower risk cases than the ones I spoke about were properly scrutinised, so that cared-for people would be at less risk of being inappropriately deprived of their liberty. That is what it is all about, really; that is what we on the Opposition side are doing. I am sure that we and the Government are of one mind on the important role that approved mental capacity professionals can play, which is why we will support Government amendment 9 when it is put to the Committee, and why I hope that they will support our amendments 37, 38 and 39.

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

Debate between Barbara Keeley and Steve McCabe

Thursday 17th January 2019 Public Bill Committees

[Barbara Keeley]

I absolutely agree. My hon. Friend makes such a good point.

The Minister in the Lords, Baroness Stedman-Scott, said:

“We are clear that our intention is for approved mental capacity professionals to meet with the cared-for persons in almost all cases.”—[Official Report, House of Lords, 15 October 2018; Vol. 793, c. 371-72.]

That qualification—“almost all cases”—creeps in again. Our proposal would go a little further and require AMCPs to meet the cared-for person in every case that they review. This is a crucial part of reviewing an application. It cannot be right that the role of the independent reviewer should be limited to simply reading a set of papers and certifying that what is contained within them meets the requirements to authorise a deprivation of liberty. That would be no safeguard at all.

I have mentioned the case of Y v. Barking and Dagenham, which saw a young man held in an inappropriate care setting for more than two years. One major failing of the local authority and the independent social worker in that case was to simply accept the assertions made by care home staff, which led to nobody challenging the changes in Y’s condition, denying him the safeguards he so badly needed.

There are, so far as I can see, only two objections to requiring the AMCP to meet the cared-for person. The first is that it might be an excessive burden on the cared-for person. My response to that is simple: we are not asking for the AMCP to carry out a protracted, in-depth cross-examination of any cared-for person. It need not take hours or involve directly checking every minute detail of the authorisation record with the cared-for person, which would be burdensome in itself. We would not want to implement a system that requires somebody to go through a lengthy experience like that. However, that is not the same as not wanting the AMCP to meet the cared-for person, which could be for only a few minutes.

[Steve McCabe]

Does my hon. Friend share my surprise that these words have actually been included in the Bill? We have heard quite a bit from the Minister about the things she has not wanted to add to the Bill because she has not wanted to send the wrong signal or be too rigid in her approach. Does my hon. Friend agree that, if the Minister’s argument is that there could be genuine circumstances where it is not necessary to meet the person and the phrase would apply, that would be a matter of professional judgment that could be spelled out in the code of practice? By putting it in the Bill, the Minister succeeds in giving a clear signal that she expects there to be lots of circumstances where the person will not be seen.

[Barbara Keeley]

That is really worrying.

As I was saying, the meeting could be for just a few minutes to confirm that the cared-for person appears to present with the behaviours that are described in the application for deprivation of liberty. A meeting, no matter how short, could confirm or deny what is written in that application—whether a person is visibly happy or unhappy with arrangements and whether the arrangements appear to be proportionate.

To give a hypothetical example, physical restraint is not unheard of in cases under the deprivation of liberty safeguards—we know of many cases where restraint is being used. It might not be unreasonable to look at a level of physical restraint on paper and feel that it is needed to prevent harm to others, but seeing that person in the flesh may make it clear that the subject of the application is underfed and would not present a significant physical threat. Cases such as that would perhaps be rare, and I do not want to suggest that care providers would seek to over-restrain people as a matter of course, but the Minister and I, and many hon. Members, understand that it does happen. In such a case, the meeting with the cared-for person would tell the AMCP whether the arrangements were overly restrictive.

A second objection might be that meeting a cared-for person would involve extra cost. As it stands, the responsible body decides whether an AMCP should be brought in to review a case, so responsible bodies, including local authorities, must be properly resourced to bring AMCPs in on all cases where they are needed. We will touch on resources later in the debate. The reason that the meeting is important is simple: it may be that the cared-for person is not completely as they are described on paper or by other people that the AMCP meets in the process of their review.

I return to the case of X, whom I discussed previously, to illustrate why that is so important. For hon. Members who cannot remember that far back in our discussion—we have had several case studies—X was a 99-year-old woman residing in a nursing home. Daily, if not hourly, she was objecting to where she was. She wandered up and down the care home objecting to the arrangements that had been put in place. Of course, nobody in the care home had bothered to identify that X was objecting to the arrangements and that, as such, she would require a deprivation of liberty safeguards application to be made.

The Government’s refusal to accept some of our earlier amendments on approved mental capacity professionals means that X would not have received an AMCP review, given that nobody had identified an objection. If an AMCP had been appointed, however, it would have been critical that they met X, because anything else would have led them to simply accept the word of the nursing home, which clearly felt that X was content with the arrangements, despite the evidence to the contrary.

Meeting the cared-for person would allow the AMCP to stress-test the other elements of the application that they are reviewing. It would provide them with primary evidence, against which they can hold everything else they are given. I hope that the Minister agrees that that is important—indeed, that is undoubtedly why the Bill contains provision for approved mental capacity professionals to meet most of the cared-for people whose cases they are reviewing. Our amendment would simply extend that slightly to ensure that nobody falls between the cracks.

As we have discussed, the AMCP will not be involved in the majority of pre-authorisation reviews. They will be involved only in higher-risk cases where extra safeguards are needed. Given that the AMCP is being brought into the process because the cared-for person is at risk of being inappropriately deprived of their liberty, it seems perverse not to require that they at least meet the cared-for person.

The Bill provides for the approved mental capacity professional to

“meet with the cared-for person, if it appears”

to them

“to be appropriate and practicable to do so”.

--- Later in debate ---

[Steve McCabe]

My amendments were probing amendments, so I do not wish to push them to a vote. I hope the Minister will reflect again on what I said about monitoring how the detention periods are used, because I fear there is a greater risk here than people may have anticipated. I beg to ask leave to withdraw the amendment.

[Barbara Keeley]

Can I just make a couple of points? There is near unanimity in the sector that three years for renewals is too long. Even the Alzheimer’s Society is worried about the impact it could have. The power on renewals lies with the managers of independent hospitals or care homes, who are people with a vested interest in renewing the authorisation and keeping the cared-for person as a client. In the amendment, we suggest a 12-month period, which would allow the renewal process to be built on the all the other assessments that cared-for people undergo annually as part of their care programme. That would avoid the process placing an excessive burden on them.

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

Debate between Barbara Keeley and Steve McCabe

Tuesday 15th January 2019 Public Bill Committees

[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.

[Steve McCabe]

Does the hon. Member for Halesowen and Rowley Regis not make the argument for the Government to spell out more clearly the circumstances in which to consider these matters? Surely, that is exactly the sort of thing that both courts and professionals would be asked to take into account. He makes a valid point and I agree with him. His point is an argument to be more specific rather than more vague.

[Barbara Keeley]

I agree with my hon. Friend that that argument makes the case for us. In amendment 37, we suggest that the Government adopt in the Bill the process for assessing risk that social services departments up and down the country currently use on the DoLS application backlog. That is what they are doing and that is why that important amendment should be taken forward.

In response to the points made about amendment 39, it broadens out the terms of objection that would trigger an AMCP review. As I showed with examples, it is not always about the location. Just being able to raise objections about location is not enough. People often object to forms of treatment. There are some very difficult cases, such as eating disorders. There are often difficulties around the treatment.

I gave the example of an older person receiving palliative care who did not want dialysis. Medical people might find it hard, but there are cases where somebody does not want a treatment but wants the course of their disease to progress. In the cases I have mentioned, people were forced into situations that they did not want and where they did not have a basis to object. I believe that there is a case to broaden the grounds of objection to include not just location but the other points we have put forward in the amendment.

I just wanted to finalise those points and pull together what my colleagues have said. We will push our amendments to the vote at the appropriate time.

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

Debate between Barbara Keeley and Steve McCabe

Tuesday 15th January 2019 Public Bill Committees

[Barbara Keeley]

We welcome this amendment, which gives clarity on arrangements in Wales, so that there is uniformity with England through the equivalent to continuing healthcare arrangements.

Amendment 3 agreed to.

[Steve McCabe]

I beg to move amendment 47, in schedule 1, page 11, line 17, at end insert—

“(d) the arrangements are in the cared for person’s best interest,

(e) less restrictive options have been considered,

(f) appropriate weight has been given to the cared for person’s feelings and wishes as best as these can be determined.”

This amendment is designed to pursue the issue of a person being deprived of their liberty as a last resort and only if it is in their best interest and a reasonable effort made to determine their wishes and feelings.

In suggesting these additions to the clause, I will return to the matters I raised this morning, because it seems to me that it is crucial that we in this Committee are as confident as any Committee ever can be that the arrangements will prove to be for the benefit of and in the best interests of the vulnerable person, and not for the convenience of the agency or the authorising body. It seems to me that, as the pressures grow on various professionals, the temptation is to interpret legislation for the convenience of the agency, as opposed to the interests of the individual. Consequently, it would be helpful and send an absolutely clear signal about the Government’s intentions if the Minister were to include in the clause a statement that the authorisation must be in the person’s best interests. That would make it crystal clear that there could not be any room for doubt or any other agenda or issue to intrude.

I recognise that paragraph 12(c) of new schedule AA1 to the Mental Capacity Act 2005 says that the arrangements must be “proportionate”, and I guess that the Minister will tell me that my fears will, therefore, not be realised, but I was thinking about that during the break and wondered whether “proportionate” could be interpreted as “suitable” rather than “necessarily in the best interests of the person”. It is quite possible in a hospital or a local authority setting to make proportionate arrangements that are suitable.

I am sure every member of the Committee deals with housing cases in local authorities every day of the week, where the local authority says that it has been proportionate in its decision about allocating a property, particularly given the constraints on the properties it has. It will certainly be a proportionate decision, but whether it is necessarily in the best interests of the person is open to debate. I simply say to the Minister that I am not wholly convinced that the two terms are exactly the same. Likewise, I do not know that, in a situation where “proportionate” meant “suitable”, it would necessarily indicate that all other less restrictive options have been properly considered, examined and then excluded. I am thinking of an elderly person who suffers a degree of confusion, or a brain-injury victim. If there is a lack of home care or day care in the area in which they reside, there may be a temptation to go for another option regarded as proportionate based on those considerations, rather than on what is in the best interests of the person, and to rule out more coercive options.

In such a situation, it might be perfectly possible for that elderly person or brain-injury victim to be properly and well cared for with the support of a dear relative, if that relative had access to realistic respite care to give them a break from time to time, and if the cared-for person had their care supported by reasonable access to home care and day care services. If that were the case, it would be wrong to restrict that person’s liberty not because less restrictive options had been considered and ruled out, but because the available care options in the area were inadequate and nothing had been done to try to address that.

That would be a classic example of a decision being made to suit the immediate economic interests of the agency or the environment in which the person happened to reside. It would not be about what was wholly in the best interests of that person. It would certainly not be because appropriate consideration had been given to less restrictive options. It would be proportionate, because in that situation “proportionate” was interpreted to mean “convenient” or “suitable”, rather than anything else. That is why I raise this matter.

--- Later in debate ---

[Steve McCabe]

I assume that the Minister has given quite a bit of thought to this matter already. Does my hon. Friend think that this is one area where it would be extremely helpful for the Committee to be able at least to see what is in the draft code of practice covering this area before the end of our proceedings? If the Minister and her officials have been giving quite a lot of attention to this, there may be some reassurance in the draft code of practice. If there is not—if it is yet to be drafted—it would be close to a dereliction of duty for us to say that that is acceptable on such a crucial point, namely that the person does not even get the opportunity to raise issues about what is being done to them until after it has been done.

[Barbara Keeley]

I very much agree with my hon. Friend. I understand the Minister’s difficulty with the code of practice. She has told us that it would have to be laid before both Houses, but the difficulty here is that the Government are trying to remove from the Bill provisions that strengthen safeguards, and are thus making those safeguards weaker. As I said earlier, I do not understand why this is happening at all; I do not understand why we would be expected to accept it or to think it was a good idea.

A code follows what is in statute, and sets it out in lay terms and at length, but it would not exist if the obligation in law was not clearly set out. I do not want the Minister to change obligations for information, yet that is what she appears to be doing. I want to make it clear that, for Labour Members, the right to information before authorisation must be on the face of the Bill. It cannot be something added to the code of practice—even if we could see it now, and the trouble is we cannot—because it would not be a right.

There is existing case law about the Mental Capacity Act code of practice. In 2018, in the case of NHS trust v. Y, the Supreme Court said:

“Whatever the weight given to the Code by section 42 of the MCA 2005, it does not create an obligation as a matter of law to apply to court in every case.”

I think that says it all, really.

Paragraph 13 is the right approach in the case of this Bill. Furthermore, a number of Labour amendments, including amendments 17, 40 and 41, which we will come to later, would strengthen the duty on the responsible body to promote appeals.

--- Later in debate ---

[Barbara Keeley]

By moving this responsibility in the Bill to local authorities, which currently have this responsibility, we can ensure that people are more confident about expressing their feelings. The consultation process should act as a crucial safeguard to prevent people from being deprived of their liberty against their wishes. Without our amendments, I am afraid that all too often the Bill will not achieve its purpose.

I turn now to the burden of work that the Bill will place on care home managers, because that is an important aspect. I hope that I have made it clear that I do not think that it can ever be appropriate for a care home manager to have a role in this process, but more than that there is no evidence that care home managers want this role or could carry it out. There is currently a vacancy rate of 11% for registered care home managers—11% of care homes do not even have a manager. That is higher than for any other role in the care sector. Care home managers are overworked in many cases, having to manage care homes that are operating on increasingly narrow margins. They are not experts in mental capacity nor trained to carry out assessments. In short, the role that they may be given is not one that they are prepared for or want.

Given that they are overstretched, we can expect them to make mistakes on occasion—that is understandable. When people are placed in high-pressure environments and expected to do more than they reasonably can or want to do, something has to give. We should not be in a situation where that something is the proper process for the authorisation of the deprivation of somebody’s liberty. It would not be acceptable if the result of the Government’s underfunding of social care was that people had their liberty taken away based on a tick-box exercise by a care home manager who lacks the time and skills to do any more.

I understand that the Government estimate that it will cost just £20 to train a care home manager to carry out this role. I think it was said at a recent meeting of the all-party parliamentary group on social work that it takes years to train a social worker to get to the point of carrying out assessments. Twenty pounds represents perhaps half a day of training. The idea that after a few hours a care home manager will be able to go out and manage liberty protection safeguards is not plausible. These complex issues should be carried out by people who have experience and expertise.

As we heard earlier, local authorities already have teams dedicated to deprivation of liberty safeguards, so it seems a wasted opportunity not to use that resource. Ultimately, it would not even save money.

[Steve McCabe]

As I listen to my hon. Friend, I wonder if people are a little confused between process and practice and, as a consequence, are doing a disservice to the local authority or whoever the appropriate responsible body is and to the care home manager. Surely, it is the job of a good care home manager to provide and oversee the care and to give regular reports and information that explain how the cared-for person is responding to the care regime that they are receiving—what seems to help them and what may hinder them. That is extremely useful, because the alternative to that is that the person is being warehoused and there is no way of knowing what happens over a period of time. The process is to assimilate that information and think about it in the context of what is in the person’s best interests and where we should go next. By suggesting that the same person should do the same thing—and it is just the same thing—have we not ended up doing a disservice to both groups of people?

[Barbara Keeley]

I think my hon. Friend is right; that is the case. Ultimately, the point is that it would not even save money. Despite what the Government’s out-of-date impact assessment may say, care home managers will not be able to carry out this role for free. Time spent carrying out these authorisations is time spent not doing other work. Care home managers are not currently sitting around doing nothing all day, so there will be cost implications. When care homes are struggling to remain solvent anyway, these small differences cannot simply be absorbed.

The Bill comes at a time when social care is under enormous pressure. Years of underfunding mean that care homes are hard pressed to keep their heads above water. The brutal reality is that without more funding for local authorities, they will not be able to increase what they are paying to care homes, and that means that some care homes will have to carry out these assessment without any extra resourcing. That will mean that less time is spent delivering hands-on care and more time is spent dealing with this process. This is where the proposed reforms to the Bill would have a real implication for the delivery of social care as a whole. We need to see reform across the board if this is not to become another cost that we expect care homes to bear, pushing more of them into dire financial straits.

It would not be the first time the Government have done that. When they brought in the living wage, they made no effort to support local authorities so that they could pay providers more. When the Government updated their guidance on sleep-in pay, they made no guarantees to providers that they would support them to pay off their liabilities. The care sector cannot afford to continue to pay for Government decisions without being appropriately supported to do so.