Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Baroness Finlay of Llandaff

Tuesday 26th February 2019 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I apologise—I should have declared my interest as chair of the National Mental Capacity Forum at the beginning of the previous debate. Like others, I thank the noble Lord, Lord O’Shaughnessy, for having made sure that the Bill is now in much better shape than it was when it came to us.

I am very grateful to the Minister for confirming that the whistleblowing amendments are there, and in fact are, if I have understood correctly, stronger than when they left this House. I have a couple of questions for her, though. One relates to the group of people who can become approved mental-capacity professionals. I was concerned that she did not include speech and language therapists in her list. People who have communication difficulties can be extremely difficult to assess. Those with a brain injury affecting the speech area can be very difficult indeed to assess because they may also have frontal-lobe disorders, as the noble Baroness herself well understands.

I know that the regulations will be brought forward, and I hope that the Minister will be able to consider additional training—not part of general undergraduate training but additional, postgraduate training for speech and language therapists to be able to develop a full set of competencies and undergo the same training as other people. I think that, without it, we will end up with duplication of assessments and duplication of costs.

My other question relates to portability. I hope that the Minister can confirm that the portability concept, which was so welcomed in the liberty protection safeguards, remains and will be applicable so that people can move between different settings without needing a reassessment. Obviously, emergency medical treatment can arise at any time with anybody, and that is covered separately for someone who lacks capacity and must be treated: that would come under a best-interest decision-taking process anyway.

My last query relates to the determination conditions and the assessment. I have a slight concern on reading the amendments that the assessments seem to be separated from the determination. If I heard the Minister correctly, she said that the care-home managers would not be making either the assessments or the determinations. We had a lot of concern over care-home managers and conflicts of role in previous debates, and I would be grateful if she would confirm that this is my correct understanding, and that we have not had a way whereby the care-home manager can undertake the assessment, and then somebody else, based on that assessment, will make a determination, because the validity of the assessment will determine the validity of the later determination.

Those are my queries in relation to this, and the determination and assessment question relates in particular to Amendments 28 to 38, to which the Minister has already spoken.

[Baroness Barker (LD)]

My Lords, I will make three quick points. One is to thank the Minister for the way in which she set out the ways in which the Government listened to the debates at an earlier stage in this House. We had deep misgivings about the lack of attention that we have been able to pay to independent hospitals. I am very glad that the reassurance that they will no longer be the responsible bodies has been given by the Government in another place.

Anybody who has followed our deliberations in great detail, as some people have, will know that we have had to spend an awful lot of time during the passage of this legislation focusing on care-home managers and the inappropriate responsibilities that they were given in the initial draft of the Bill. I am not entirely convinced that in relation to independent hospitals or local authorities we have entirely separated responsibility for assessment, responsibility for determination of what constitutes a care package and deprivation of liberty, and responsibility for the financing of those care packages. If the Bill had started off in a better shape, perhaps we would have been able to spend much more time on that, as we should have done. Therefore, it is important that at this stage we take on board the points made in Amendment 41A tabled by the noble Baroness, Lady Thornton, and make sure that we have not left a conflict of interest anywhere in the Bill.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Baroness Finlay of Llandaff

3rd reading (Hansard): House of Lords
Tuesday 11th December 2018 Lords Chamber

[Baroness Barker]

My Lords, I do not want to detain the House but I have one or two important things to say. First, the House owes a debt of gratitude to the ministerial team for their work in getting us to this point. The noble Lord, Lord O’Shaughnessy, should take a great deal of the credit for enabling all the things he listed as achievements of the House, going forward. Obviously, the Bill leaves us in a much better state than when it arrived.

There was one contribution by a Member of your Lordships’ House that we have not acknowledged but should: that of the noble Baroness, Lady Browning. She has not been able to take part in many of our debates but she made an important contribution when she stood up and said that the Bournewood gap still exists. For all our work, it does, and it will continue to exist until such time as we sit down and really consider mental health and mental capacity legislation, including who makes the decisions about who comes under what piece of law. Until we sort out that gap, people will still be deprived of their liberty. We can call it by a different name, but they will be.

I will ask the Minister to reflect on one thing. Nobody came to this legislation believing that DoLS had to be preserved. Everybody knew that it was wrong. Everybody understands that we need to make greater and better use of the limited professional resources for overseeing the lives of people detained for one reason or another. We should listen to the noble Baroness, Lady Browning, and reflect on what else Parliament may have to do over the next five, six or seven years to make sure that the gap is addressed once and for all so that people are not wrongfully detained.

[Baroness Finlay of Llandaff]

My Lords, I will very briefly add my thanks to the Minister, the noble Baroness, Lady Stedman-Scott, and the Bill team, for listening. I also thank everyone from outside who brought their own experience, either individually or as part of a professional group, a voluntary sector group or the care home sector. I thank personally those in the Welsh Government who arranged meetings for me and also brought expertise, coming from a different health service framework. That was important because this legislation must apply across England and Wales. So I add my thanks to others.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Baroness Finlay of Llandaff

Report: 2nd sitting (Hansard): House of Lords
Tuesday 27th November 2018 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, Amendment 35 is a failsafe mechanism that will save a great deal of court time in the future and make it clear where the process has halted if things go awry. The failsafe is that an approved mental capacity professional—AMCP—can veto authorisation if the AMCP has grounds to object. However, it is important that the AMCP cannot authorise arrangements. In other words, the default position is to preserve liberty and not to impose restrictions on a person without a very sound reason. It is important that we are explicit about the extent of the AMCP’s powers, whether on the face of the Bill or in subsequent regulation, as we will need to be more prescriptive about these powers in the statutory code of practice than we have been to date, for the sound reason of flexibility and the independence of the AMCP.

The reason I tabled the amendment and feel it should be in the Bill is that there is a risk that local authorities facing financial stringencies might be inclined to authorise arrangements that are less costly, thereby revealing an inherent conflict of interest where a local authority is funding a person’s care. We have had many debates about conflicts of interest in relation to care homes but we must remember that in a whole-health and social care system which is under financial pressure, all kinds of little conflicts and pressures can creep in.

The other amendments in this group specify the different criteria whereby an approved mental capacity professional must conduct the review. I am not going to go through each line of these amendments—they are quite self-explanatory—but they show the importance of that degree of independence before taking the major step of imposing restrictions on somebody’s liberty and conditions under the new liberty protection safeguards process. I beg to move.

[Baroness Barker]

My Lords, I will speak briefly to Amendment 77 in my name, which was drawn up because of the experience of many relatives. I make particular reference to the case of Stephen Neary, where relatives had to deal with local authorities which were telling them wrongfully what their position was in law. A great deal of responsibility was put on to the relatives to oversee the right interpretation of the law. This amendment seeks to ensure that, where they are acting in the best interests of someone who is cared for, relatives would be able to meet an AMCP and trigger their involvement. In our earlier discussions, there was an underlying sense on the Government Benches that the involvement of professionals can often be an unwelcome intrusion into families. In fact, many of them do not find that at all. Many find that the first occasion when they come into contact with a professional is the point at which all sorts of information and understanding becomes available to them in support of their loved ones.

Although I am not seeking to press this amendment today, I hope that the Minister might think about it and, if he is disposed to do so, make some supportive statements.

--- Later in debate ---

[Baroness Barker]

My Lords, Amendments 61 and 67 return to two issues that I and the noble Baroness, Lady Finlay, raised at earlier stages in our debates.

Amendment 61 pertains to what happens when the circumstances or condition of a person deprived of their liberty change. As we have said on previous occasions, that may be someone with dementia whose condition deteriorates or, as in the cases cited by the noble Baroness, Lady Finlay, it could be someone with a brain injury whose condition improves and who regains some of their capacity. It is the intention under the Bill that deprivations of liberty will last considerably longer than under current circumstances.

I seek an assurance that there is an ongoing duty on care home managers and those responsible for arranging and carrying out assessments to revisit people whose conditions are likely to change to ensure that their detention is still the least restrictive option.

In Amendment 67, I use the word “conditions” in a completely different sense. As has been said, under DoLS people carrying out assessments and authorisations have the right to say that it would be in order to detain someone and deprive them of their liberty provided that certain conditions are met. The noble Baroness, Lady Finlay, has given us memorable examples of what those conditions might be. However, in truth, the most common condition concerns medication and reviews of medication.

The Government have consistently said that the Bill does not alter that—and that, as ever, the matter will be dealt with in the code of practice—but I am simply asking for a statement from the Minister setting out the legal force by which it will be possible in future for those who are responsible for depriving people of their liberty to do so on the basis of conditions which must be met. The importance of those conditions— particularly when we talk about DoLS in the community —is that they can make something a least restrictive option and therefore admissible.

It is for that reason that I have returned to these two amendments today, and I beg to move.

[Baroness Finlay of Llandaff]

I have added my name to Amendment 61 because it is important that we recognise that no one has a crystal ball—we cannot predict what is going to happen. Even people we think might be seriously impaired, as the noble Baroness, Lady Barker, said, can sometimes improve and it can be quite unexpected.

It is inconceivable that the course of a person’s illness will match the timetable of annual reviews—that is not the way bodies behave when they have an impairment; if someone does not improve within an expected time frame, they must be reassessed. Otherwise, there is a real possibility that they will languish with inappropriate restrictions on their liberty when such restrictions are no longer necessary or proportionate. In fact, in the case of medication reviews, they may have become inappropriate because they may be on medication that is unnecessarily a sedative.

Of course, those who deteriorate will also need phased authorisations and reviews. Without the Government laying out explicitly this degree of uncertainty in the timeframe and the fact that wherever there is expected to be uncertainty, it should be specified, I fear that there will be pressure to define the amendment’s principle by going to court. We will then end up with a court precedent that is not necessarily applicable to a lot of people, but which they will get caught up in anyway. We will end up with a risk-averse response. I hope the Government will be able to accept, if not the actual wording of the amendment, the principle that the timeliness and the timeframe need to be specified wherever possible to avoid that confusion.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Baroness Finlay of Llandaff

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, in this group of amendments we begin to get into the issue of IMCAs and how that whole system will operate. In Amendment 63 I use the words,

“there is reason to believe”,

because I feel strongly that anyone who is concerned about the cared-for person—whether they are family, a friend who knows them well, a care assistant in the care home, if they are in a care home, or somebody who is coming into wherever they are being cared for, such as supported living—must be able to raise them independently, if necessary anonymously, and to request that an IMCA is appointed to go and see what is happening.

In Amendment 64 I removed the word “only” because I was attempting to remove the veto from a care home manager. The potential veto of a care home manager has caused so much concern in debate, and a great deal of anxiety in the briefings that have come through to us. I stress that advocacy—we will come on to that overall—needs careful monitoring, too, and people who act as advocates need support and supervision. Not just anybody can be an advocate, and we have to be careful that we do not exclude family and those who know a person well by having an advocate come in when in fact a family member who has known them for years may be in a much better position.

Also, we have to have a way of screening out advocates who, for whatever reason, may not be the right people to do this at the time. Unfortunately, it is inevitable and part of human nature that people will want to work in a field if they have had some experience of being on the receiving end. But certainly, when you look at bereavement counsellors and so on, they need to have a clear period before they are selected, and they need to be carefully selected and screened, and supervised. We are talking about extremely vulnerable people here, and the last thing we want to do is somehow to open the door to them being vulnerable at somebody else’s hands through our best intentions. I beg to move.

[Baroness Barker]

My Lords, this is again a rather fundamental indicator of some of the things that are badly wrong with the Bill. The words “best interests” appear in it three times, and twice they are used in relation to a care home manager being able to restrict access to advocacy. As the Bill stands, referral to advocacy is controlled by a relevant person, either the responsible body or the care home manager, and an advocate must be appointed if a person has capacity and requests an advocate—that is quite rare, and I have to say that under the Bill it would be something of a miracle, because they do not have the right to information about not only their current circumstances but about other less restrictive options. The Minister’s statements on information last week, when he referred to GDPR, were so strange that it has taken me a considerable time to work out that he had completely misunderstood that under the current system people have a right to information. They have the right not to request information but to be provided with information, which this amending Bill severely restricts.

However, the second condition is by far the most worrying. Somebody can request an advocate if the person lacks capacity and the relevant person is,

“satisfied that being represented and supported by an IMCA would be in the … person’s best interests”.

I invite noble Lords to think what would have happened if those words had been in law during Winterbourne View. That is why I am quite happy to use the word “shocking” about the Bill, as this is unacceptable. My amendments would try to get rid of the abuse of the term “best interests” to limit vulnerable people’s access to support. The Minister knows that under the DoLS system, by and large, if somebody requests an advocate, it is up to the relevant body to try to do their best to find one, or that they find an appropriate person. I refer to the point made by the noble Baroness, Lady Finlay, that under case law at the moment, local authorities have the right to override if an appropriate person is not doing their job properly on behalf of the person. That too will be undermined by the Bill.

The Minister will also know that if somebody has no relatives and nobody else in the world—they are “undefended”, to use that rather archaic but useful and clear term—they have an automatic right to advocacy. I know that much will be made of advocacy being expensive, advocates being a resource that is not readily available, and that people who do not need advocacy will be unnecessarily interviewed. I am quite happy to talk at length to the Government about ways in which advocates or advocacy resources could be better used and better targeted—but absolutely not by drawing it like this, putting this sort of hurdle not even in a code of practice but in a Bill.

--- Later in debate ---

[Lord O'Shaughnessy]

I am happy to discuss the issue with all noble Lords, as I have said in the past. I return to where I started: the intention of this approach is to make sure that independent advocacy is not imposed on someone who genuinely does not want it. It is not to provide a “get out of jail free” card for poor care home managers. If that is a concern, I take it very seriously, but it is not the intention of the Bill. However, if it is the case, something needs to be remedied. Let me assure noble Lords that I will make best efforts to do so as we move forward from Committee.

This has been a very useful discussion. In some sense it has provided a degree of continuity from our discussion last week, while moving on to the issue of advocacy, which we will clearly explore further. I hope that, with the reassurances I have given at this stage, the noble Baroness will feel able to withdraw her amendment.

[Baroness Finlay of Llandaff]

My Lords, this debate has been extremely interesting and, in many ways, gets to the nub of some of our concerns. In looking at the Bill, one thing I have tried to do is to benchmark its procedures to see how they would work. I was involved in prosecuting appalling care in EMI homes. I am trying to see how we could have discovered sooner that there were problems there.

I share the concern about the care home manager having too much power. Having said that, I have found the Minister’s answers today reassuring, as they were on the second day in Committee. I suggest, however, that the number of objectors will be very few, because many of these people have such impaired capacity and are not in a position to object—it may be other people who speak up on their behalf.

[Baroness Barker]

I wonder whether the noble Baroness, Lady Finlay, agrees that, when you watch well-trained advocates at work, you see that they absolutely understand if their presence is upsetting somebody. They are not routinely attempting to force themselves on to people who definitely do not need their help. The question of whether somebody wants their help or not is a more nuanced professional judgment.

[Baroness Finlay of Llandaff]

I agree with the noble Baroness that when they work well, they can work extremely well. As I said earlier, I would also caution against the family and other people being potentially pushed aside, and people being not adequately supervised or monitored.

We have a great deal to consider outside the Chamber tonight. I am grateful to the Minister for being in listening mode so far. This group of amendments and the next are the ones that we will need to have a big discussion about. In the meantime, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Finlay of Llandaff]

I do not want to prolong this too much but I will ask the noble Baroness: has she in any way lost confidence in the proposal that she put forward when the Mental Capacity Act was a Bill before us? It was for an advance statement of wishes, which has, when properly used, been a very powerful tool to make sure that somebody is listened to. My concern has been that our discussion to date has been about the wishes and feelings of the person as previously expressed. From the way she was talking, I am concerned that it sounds as if she might have lost confidence in the ability of that—because, as I have said, I have a real concern that tying somebody legally to enforcing something which was said in advance could potentially be really dangerous.

[Baroness Barker]

No, I have not lost confidence in that; I simply wish to undertake further discussion, given that—I say it again—it looks entirely likely that mental health legislation may be changing. I think, in light of that, that it is a wise discussion to have.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Baroness Finlay of Llandaff

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 15th October 2018 Lords Chamber

[Baroness Finlay of Llandaff]

I beg your pardon; I have an amendment in this group as well. Oh dear, I seem to have spattered them in every group.

I have a real concern that triggering a review that is based on whether or not the person is thought to be objecting is far too narrow, and that anyone who has concerns about that person should be able to trigger a review independently—whether that is family, friends or somebody working in the place where the cared-for person is supposed to be being cared for.

I have an interest, or at least an experience, to declare: some years ago I was asked to help the police look at a care home where they had serious and justified concerns. The alert had come from somebody working at an extremely junior grade within the care home, not from anybody senior or from a professional. Following that, I was asked to review the case notes in detail. The people concerned all had severely impaired capacity and, often, an inability to express themselves—but, by meticulously looking at the case notes, one could see trends, and when I mapped them against the staff off-duty rota the trends became clearer.

I am very concerned that, if we leave this just as it is written, we will not allow the very people who have contact, possibly on a day-to-day basis, to put up a red flag about what may be happening in one person’s life. It may be that nine out of 10 people in an institution are very happy, but if one of them is not and one member of staff has got to know them and sees subtle changes in their behaviour, that member of staff must be empowered, with the cover of anonymity, to trigger an independent review, because that may be the only way to protect the cared-for person.

I put in my amendment that a review should be triggered if,

“the rationale … is based on the risk to others”.

The concept of “risk to others” is quite difficult to justify being in this Bill rather than in the Mental Health Act as the sole rationale for using the Bill, so I think that it becomes an exceptional circumstance that warrants that type of review. Similarly, if the restrictions are on contact with named persons, I worry that there could be a bias from the staff towards the named person. When somebody is very upset, they may appear to be an aggressive or angry visiting relative and may be a bit more difficult to handle—but actually it may be that that is simply the way that they are expressing their anxiety and their emotions towards the person who is now deteriorating and want to do their best for them. I worry about excluding a close relative without great justification; it should not be undertaken lightly.

[Baroness Barker]

When the Minister responds, will she confirm the point made to us by a number of stakeholders that harm to others, rather than harm to self, which is the basis of decision-making in best interests, is included in the Bill—because it is not explicitly ruled out and it was in the Law Commission’s proposals. If that is the case, that is a very significant change. The number of people included may well differ solely for that reason.

--- Later in debate ---

[Baroness Finlay of Llandaff]

This group of amendments relates to the authorisation record. I have added an additional criteria in Amendment 50B because there may be arrangements put in place after an initial authorisation has begun—or that were subject to conditions—and parts of the authorisation may need early review. Amendment 62A is designed to ensure consistency—the care home manager will not do the assessments but will arrange them. Amendment 58B relates to renewal; if part of an authorisation no longer has effect it must be reassessed from scratch, not simply renewed. Amendment 58C requires that original evidence is submitted, not a second-hand report. It would allow the responsible body to see the authentic assessment rather than an interpretation of any original material.

[Baroness Barker]

My Lords, I am afraid that I think some of the amendments standing in my name have been wrongly grouped. I am sorry; I have been busy this afternoon going through everything else and I am now a bit stuck regarding the procedure and what I should do. I will speak to them, although I am rather reluctant to start this group.

[Baroness Barker]

But am I right in thinking that if I do not speak to my amendments today, they will automatically fall?

[Baroness Finlay of Llandaff]

It might be of assistance if I intervene here. If the noble Baroness is referring to amendments in the group beginning with Amendment 58A, I understand that if she does not speak to them now, they can be dealt with in the next group.

[Lord O'Shaughnessy]

I am no expert in parliamentary procedure but my understanding is that, as they come after the amendment we are considering now and indeed the one that we would consider next, they can be retabled.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Baroness Finlay of Llandaff

Monday 15th October 2018 Lords Chamber

[Baroness Barker (LD)]

My Lords, I move Amendment 17 and will speak also to Amendments 19, 54 and 57, which are in my name. Like other noble Lords, I thank the Minister for statements he made earlier about having listened to concerns over the duty to consult with the person and over the inclusion of 16 and 17 year-olds. He will appreciate that a number of amendments tabled by noble Lords stemmed from that deep concern about the lack of a statement on the Bill that the person being cared for should be seen by the person arranging for their assessment.

On a matter of form and detail, I do not like the term “cared-for person”. I prefer the scheme used under the Mental Capacity Act, where the person is referred to as P. They are considered as a person in their own right; they are subject to the legislation as a whole person. It is a stylistic matter. We got there with “unsound mind”; perhaps if we keep going, we might be on a roll—you never know—so I throw that in.

These amendments dig at some of the same concerns as those at which the noble Baroness, Lady Finlay, was getting on a previous set of amendments. As noble Lords will know, under the DoLS legislation there is a duty to ensure that not only does the cared-for person know what their rights are and have access to justice, but the people who care for them also know that what is proposed is the least restrictive option. There is a real question under the liberty protection scheme, as laid out, as to how somebody who lacks capacity or the people who look after them would know that. Furthermore, there have been concerns—assuming the care home manager was responsible for much of the assessment—over how they too would know that what was proposed was a least restrictive option. These amendments are about seeking to establish a duty to ensure that people are fully informed.

That takes us to another basic criticism of the Bill, which is about what I would say was an overreliance on the code of practice. Noble Lords have many years’ happy experience—some of it on the other side of the Dispatch Box—arguing about the importance of codes of practice as opposed to law. There has to be a statement in the Bill for anything in a code of practice to have force. As the Minister will know, practitioners need only have regard to the code of practice; effectively, they may not have regard to it. It matters more towards the back-end of the Bill, where much of the Mental Capacity Act is amended.

Put simply, nowhere in the Bill does there seem to be a duty to provide this information to the cared-for person or to the people who care for them. In the coming set of amendments the Minister will no doubt make much of the new requirements to consult, but that is something slightly different. We felt it was important to restate this and back up what is already the intention under the best interests of the Mental Capacity Act, but that we felt had been ignored in this Bill. I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, I added my name to Amendment 17 because I think it is important that things be written down clearly, particularly for the cared-for person—which is the term we are using—if they have fluctuating capacity or need to absorb things very slowly but want to understand. Also, their families and those concerned about them will not necessarily be there when someone comes in to assess them or formulate a care plan, but they will certainly have concerns and they may have a very good idea about wishes and feelings that could have been overlooked—not maliciously, but because people did not know about them. A written record will provide evidence for everybody about what is happening.

The way the consultation is conducted should therefore, I agree, demonstrate that restrictions have been proportionate and necessary, and that alternatives have been considered—and the reason they have been discounted should be given. I would like us to give people much more access to all their clinical records; the caring family, in particular, should have access to the records. Often, information held by family members and others close to the person is effectively like gold dust when it comes to planning their care, and would benefit from being shared.

Where someone’s condition deteriorates, if this has all been written down clearly you have a baseline against which you can measure changes. If they improve, the baseline shows the reason that things were put in place as restrictions, which could then be lifted. Again, that gives a benchmark against which to measure, which would make care more personalised. I hope this concept will be well received. I am unsure as to whether it should go in the Bill or in the code—it is easy to put lots into the Bill—but the principle is important.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Baroness Finlay of Llandaff

Committee: 2nd sitting (Hansard): House of Lords
Monday 15th October 2018 Lords Chamber

[Baroness Barker]

My Lords, I am very grateful to the noble Baroness for moving the amendment. It gives me the opportunity to return to the question I asked previously, to which I do not think we have yet got the right answer. It is about the nature of the assessment. The noble Baroness talked about the sort of assessments made under the Care Act—assessments to support somebody. They are not DoLS assessments, which assess whether someone is being deprived of their liberty. In what the Minister has said so far, in reference to care home managers, there is a failure to make that distinction. A DoLS assessment is a very serious assessment of whether someone has been deprived of their liberty. It can also be viewed in court. It is some stretch for a care home manager or someone in a community setting—making genuine operational assessments about supporting somebody—to make a decision that deprives that person of their liberty. We will come on to records of authorisation, but I have to say nothing the Minister has said so far has reassured me we are talking about an assessment system that would come anywhere near DoLS or be accepted by a court.

[Baroness Finlay of Llandaff]

My Lords, if I may come back very briefly on that, the noble Baroness makes an important point. I worry that some of the DoLS assessments are very long and complex, yet make little difference to the lived experience of the person on the receiving end of care, so I hope they will become better tailored. A badly drawn-up care plan could also be presented in court if there was a dispute, not only the assessment forms. Some of the forms I have seen will have taken a great deal of time to complete; I wonder whether the detail replicates that obtainable elsewhere, and whether there is a problem of proportionality. Also, I worry that we should be looking at the minimum amount of restriction on liberty, rather than deprivation of liberty. If someone is imprisoned, the whole system has failed. They must be encouraged and empowered to live as well as they can while being kept safe from dangers that, without due care and attention, would probably end for some of them in their deaths—wandering on to a motorway or whatever.

[Baroness Barker]

I take the point made by the noble Baroness; she is absolutely right. There are some pretty awful assessments. I am not sure the Bill will stop that—I think she is rather wishful in her thinking if she thinks otherwise. She will have talked to practitioners, as I have. Sometimes DoLS work really well, particularly when trained assessors use the conditions. These can be something quite simple, such as the right to see a priest once a week or go out on a pass. I find myself in a slightly different position from the noble Baroness, Lady Murphy. As I sit in these debates I find myself becoming ever more defensive of DoLS because some of the case made against them is exaggerated. A lot of the reason for the backlog is not that the system is complicated but that there are not enough assessors out doing the work. I take the point made by the noble Baroness, but I still go back to the need for assessors who are trained, understand their purpose and carry it out in a proportionate and timely way.

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[Baroness Finlay of Llandaff]

I thank the Minister; I am very grateful to him. If I have understood it correctly, the noble Baroness, Lady Barker, supports my Amendment 30A, which requires that a registered professional—who, if they really get it wrong, would lose their registration—who has responsibility for the care plan and appropriate experience and knowledge, should make the determination. In other words, it is not good enough just to be a professional. I go back to the example of people with a head injury, who need a highly specialised assessment and overview so that a lead can be taken on the care planning process.

[Baroness Barker]

My Lords—

[Baroness Finlay of Llandaff]

I will just finish, if I may. I completely share the concern about self-funders. They must have a care plan, because they are in receipt of care once they are in the system. It is appalling if there are people who are paying to be cared for in some kind of chaotic way without a proper, co-ordinated plan that they and their family can know about, so that everyone coming and going, be it out of hours or whatever, can understand what is happening.

I am beginning to think that there is not that much difference between us, and I agree that the current forms are inadequate. I apologise if, in the previous debates we have had, my comments about notification from the care home manager to the local authority were not well worded—on re-reading, I can see that, and I accept that I was wrong in the way that I worded it.

[Baroness Barker]

I do not want to get up the hopes of the noble Baroness, Lady Finlay, too strongly. She is a medic and therefore her go-to place is medical qualifications. There are some excellent best interests assessors who are not engaged in the care of the person. I wish to make that point. I shall keep coming back to the valid point of the noble Baroness, Lady Murphy, about the need to wind up with an affordable and manageable system. Noble Lords who have been involved in discussions with stakeholders will not be surprised to know that some of us think there is a way in which that could be done but it would involve reliance on advocates and assessors. Having said that, I agree with the noble Baroness.

[Baroness Finlay of Llandaff]

I beg leave to withdraw the amendment.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Baroness Finlay of Llandaff

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

[Baroness Barker]

My Lords, Amendments 7 and 8 in my name are yet another attempt to make some sense of this Bill. Perhaps they might not have been tabled had we been able to have more discussion over the Recess. As several noble Lords have already mentioned, there has been considerable disquiet about the non-appearance of best interest assessments in this Bill. Indeed, a number of noble Lords attempted to table amendments that, at the very least, like this amendment, were trying to probe where the best interests of the cared-for person would come into play.

This particular part of the Bill—Part 2 of Schedule 1 —is on “Authorisation of arrangements”. In putting down these probing amendments, I was particularly taken by the briefing given to us by the Law Society, which suggested:

“Remove the distinction between the ‘arrangements’ and ‘care and treatment’ as it will result in difficulties when applied in practice. For example, how would a person’s capacity to make medical treatment decisions or decisions about contact with others be distinguished from decisions about the ‘arrangements’ to provide that treatment or to prevent contact with others?”.


In light of that, at the very least we ought to be asking the Minister how this is going to work. I accept a number of the points made by the noble Baroness, Lady Murphy, about the clumsiness of the existing DoLS procedure, but the removal of best interest assessors is one that has caused a fair degree of disquiet among the different groups.

Amendments 7 and 8 are also meant to begin to probe a key provision in the Bill—the assertion that the arrangements need to be “necessary and proportionate”. There is no further explanation in the Bill about what the term “necessary and proportionate” might mean, who will make the decision and on what basis it will be judged and reviewed. This goes back to some of the points made by the noble Lord, Lord Hunt of Kings Heath, that, given the increased role— let us say that—of care home managers, they will be making the assessments of what is necessary and proportionate.

No doubt I am going to be told that these amendments are either deficient or unnecessary, but they are here to begin to probe some very unclear but key parts of the Bill about the authorisation of arrangements. In that vein, I beg to move.

[Baroness Finlay of Llandaff]

My Lords, I support the principle behind Amendment 8 in particular. Perhaps this is something the Minister will want to view as going in the code of practice, as I am not sure that putting this on the face of the Bill is necessarily the right place for it—although I completely understand the sentiment, which is to avoid serious risk. We live in a risk-averse system, and it is serious risk that we must be concerned with.

A case that I heard about in the last few days came to mind. An elderly lady with dementia became extremely agitated when it snowed. Because of her tendency to wander, she was not going outside unescorted. A conversation with her son revealed that she had been a meteorologist, so her view was that when it snowed she had to go outside and measure the depth of the snow and telephone the Meteorological Office. What they did was simply wrap her up really well, let her go out and measure the depth of the snow, give her a telephone and let her make a mock phone call to the Meteorological Office. She was very calm and happy. You do not want her to go wandering because she is near a main road and a railway line and all the other risks, but it was not a serious risk to let her out in the garden, well-wrapped up when it was snowing. That illustrates the granularity of the need to take appropriate decisions focused around the individual person.

Other cases that do concern me are those people who will become sexually disinhibited when exposed to great temptation. That struck me about a case I came across in a home for people with a history of sexual offences. There had been a DoLS in place for somebody not to go unescorted through woodland because, if he came across a young girl on her own in woodland, his sexual drive would overcome his rational behaviour—exposure to porn sites would also overcome his rational behaviour. However, the rest of the time, he could live well. Sadly, that DoLS was apparently overturned by the Court of Protection and, within weeks, he offended and ended up being imprisoned for his offence, but he had been living well with an enormous degree of freedom prior to that point. I think that the serious risk to the cared-for person has to be considered, because there the risk to him was that he would offend and, sadly, that came true.

I hope that the Minister will look sympathetically on the sentiment behind this.