Mental Capacity (Amendment) Bill [HL]

Baroness Barker Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 5th September 2018 Lords Chamber

Moved by

[Baroness Barker]

9: Schedule 1, page 10, line 8, at end insert “to safeguard the well-being, wishes and feelings of the cared-for person.”

[Baroness Barker (LD)]

My Lords, we return to the topic that we were discussing before the break: the conditions that have to be met for authorisation of deprivation of liberty arrangements. During the dinner break, I reflected on what the Minister said in response to the previous Amendments 7 and 8, which were in similar territory. I understand entirely what he said about the best interests test being in the Mental Capacity Act and that being the first stage of assessment. However, on the secondary assessment for arrangements for either care and treatment or deprivation of liberty, the Minister seemed to suggest that there was a possibility of conflict between those two things or a misunderstanding of them. I will go back over some of that territory again; that may irritate the Minister, but it has been clear all afternoon that one of the main purposes that these proceedings in your Lordships’ House may serve is to enable people outside in the lobby groups, who, like us, have not been able to see a clear read-across from this Bill back to the original legislation, now to do so.

Amendments 9, 10 and 30 seek to reiterate or reintroduce concepts which will be very familiar to all those who took part in the deliberations during the passage of the Mental Capacity Act. Under that legislation, it was always to be made clear to a person who was possibly going to be subject to a deprivation of liberty, and to anybody involved in that decision-making, that the well-being, wishes and feelings of that person had to be taken into account, that any decision would be the least intrusive as possible, and that the arrangements being made for the person were the least restrictive, particularly with regard to where somebody should reside. That is for many people, particularly older people, perhaps one of the most contentious decisions. It is often one of the subjects on which there can be conflicting views between families and individuals or between professionals and individuals.

I have said before and—given that the one thing that has stuck out in the Bill is the enhanced role for care commissioners and, particularly, home care managers—I do not think it is unreasonable to go back again and satisfy ourselves that, when the authorisation of arrangements happens, these key parts of the Mental Capacity Act will again form part of the assessment. I hope, when we come to further amendments down the line, that they will be part of the record of decision-making. I do not make any apology for raising these amendments. I am sure the Minister will bat them back, but if he will do so with a deal of explanation then I think we will have served a purpose. I beg to move.

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[Baroness Barker]

I thank the Minister for that reply. We started with the mental capacity legislation, which is explicit in having the person at the centre of everything that happens. Yet we know from several reviews that have been conducted, including the review by the Select Committee, that the implementation of that legislation has been very patchy. To then be faced with a piece of legislation in which consultation with the person is not on the face of the Bill seems to be moving a long way from that original principle.

I have let the Minister talk about the code of practice repeatedly and I have not mentioned it so far, given that we have other amendments to debate. However, we found out with the Mental Capacity Act that reliance on the code of practice was one of the reasons why the Act was not implemented as well as it should have been. We will come on to that in far more detail, but there are some things that are so fundamental to the operation of this that we should know by now that leaving them to the code of practice is not acceptable. We can talk about implementation within the code of practice, but there are some things that need to be on the face of the Bill. For me, we really have hit that. If we are not even going to attempt to consult people, that for me is a red line, so I am pleased that the Minister has agreed to talk to us about that.

The points made by the noble Baroness, Lady Hollins, about the weighting of the wishes and feelings are also important. Those wishes do not sit on an equivalent level with the views of everybody else. They should be pre-eminent.

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[Baroness Hollins]

This needs emphasis because of the culture of care that we have in this country. There is still such a paternalistic attitude towards the person, that not to emphasise it is to miss the point.

[Baroness Barker]

I thank noble Lords for their support. We will need to return to this and I am glad that the Minister has taken that point.

Another reason for tabling the other amendments to ensure that arrangements are the least intrusive and least restrictive option is that, as we will debate on later amendments, the Bill is somewhat deficient in the extent to which it requires that people should be given information on which to base the consultation.

I make no apologies for raising this again at this time. It is something that I hope we will discuss between now and later stages of the Bill. I hope that the Minister can understand the reasons for the concerns that lay behind the amendment. Having said that, at this point, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

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[Lord O’Shaughnessy]

I shall give just a brief response to that. It is a good idea. The Government think that the proposals for care homes, how they will carry out commission-needs assessments and the process for reviewing and authorising where necessary are a critical part of creating a more proportionate system that does what it says it will do, rather than the current system, which says it will do a whole bunch of things and then does not actually do them. That is where we want to get to.

I am being robust, as it were, in defence of the model. I want to explain—I think noble Lords are enthusiastic about this—how this will work in practice with the kinds of people who are most likely to be in the most difficult situations, so there is a clear understanding of the safeguards that exist to prevent conflicts of interest, provide independent oversight, make sure there is advocacy to support, and so on. It is clearly the case that there is not yet that understanding, and we need it to proceed.

[Baroness Barker]

I thank the Minister for his explanation, which has been very helpful. Over the next few weeks, while he is seeking to give further clarification, I wonder whether it would be possible to explain this. One of the Government’s arguments is that the consideration of deprivation or the safeguarding of liberty should come much earlier in the care planning process. Most care is commissioned, most of it by local authorities. Can the Minister explain—perhaps not now at this late hour—how the commissioning of services will change to reflect the new system?

[Lord O’Shaughnessy]

There is a useful flowchart that exemplifies it and brings it to life. I will make sure that it is shared. I agree that we need to find ways of bringing it to life, and that is something we can do outside this Chamber.