Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barran and Baroness Tyler of Enfield

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

[Baroness Tyler of Enfield]

My Lords, I have two amendments in this group and my name is attached to four others. It is a little unfortunate that we are coming to this important group of amendments, which affect the Bill as a whole—there are some very important implementation issues—quite so late in the day when the appetite for debate is understandably somewhat limited.

My Amendment 88 seeks to do two things. It seeks, first, to enhance scrutiny of regulations in Parliament and, secondly, to ensure proper consultation if the Government seek to amend regulations later on down the line. According to the Explanatory Notes, as drafted the regulations are subject to the negative procedure, except where the Secretary of State wishes to change primary legislation, in which case the affirmative procedure applies. My amendment proposes a different approach, whereby the positive procedure applies in both cases. That would mean that, should the Government wish to amend regulations, such a change would automatically trigger scrutiny in both Houses. Why do I think this is important? Fundamentally, depriving someone of their liberty is a very major and fundamental action which warrants strong safeguards and scrutiny. I think it is absolutely vital that we closely monitor the implementation of this legislation and debate any proposed changes that the Government may wish to introduce.

The second part of my amendment—which I think is equally important—means that, before laying a regulation, the Government must consult with stakeholders on its potential impact. Again, given that this legislation concerns extremely vulnerable people, it is absolutely vital that we get it right—that is both primary legislation and the detail of any regulations. One of the threads throughout our debate in Committee, both today and in our two previous sessions, has been that, while the Law Commission consulted widely on its draft Bill, the Government’s Bill, which we are now discussing—and which is very different in a number of important aspects—was introduced with very little consultation with those who work in the sector. It is absolutely vital that we hear from mental health practitioners, legal professionals, charities and those representing vulnerable people.

Amendment 87F is a probing amendment and it is to highlight the current unsatisfactory situation, which I gather is causing real concern to clinicians in relation to when they are obliged to complete court reports requested by the Court of Protection. This issue was drawn to my attention by the Royal College of Psychiatrists and I draw the House’s attention to my interests in the register. Currently, Section 49 of the Mental Capacity Act 2005 authorises courts to,

“require a local authority, or an NHS body”,

to prepare a report on such matters,

“as the court may direct”—

generally, the relevant person’s mental health or mental capacity.

I understand that drafting such a report requires a senior clinician to review previous reports, examine the patient, talk to family members or carers and carry out necessary tests. Notably, it often relates to a patient who has never been under the care of that clinician or even the hospital trust employing them. I have been told that the average time required to complete such a report—although it varies—would be around 10 hours, which does not include the extra time required if the clinician is required to attend court in person to give evidence.

The nub with the concern here, which has been raised by many clinicians, is that an unknown quantity of clinician time is being taken away from front-line patient care. As there is no national data, as I understand, on this, it is unclear how much. Again, as I understand it, CCGs and NHS trusts are not being paid for or equipped for their staff to be required to spend their time in such a way, and the very short timeframe often set by the court can lead to very considerable disruption of clinical priorities and patient appointments being changed at the very last minute.

I emphasise that I have no problems with the Court of Protection needing reports and expert advice—it is just that the system for getting it does not seem right to me, with the NHS being required to provide these reports in such a way. Frankly, there is cost shunting on to the NHS, but it is also having no regard for the impact on wider patient care. The Minister has said that he will be talking to the MoJ about a number of things. It would be very helpful to hear how the MoJ thinks this system could be better managed so it does not have such a deleterious effect on wider patient care. The purpose of this amendment is to get the Minister to explain and outline the Government’s thinking in this area.

Finally, Amendments 86 and 93 require two very crucial documents to be laid before Parliament before the provisions of the Act can come into force: the code of practice and the Government response to the Independent Review of the Mental Health Act. It is really where we started off this evening—certainly where I started off was looking at the interaction of those two pieces of legislation.

The one point I will make is that whatever recommendations the Mental Health Act review ends up making, it is clear that as long as we have separate legislation to govern mental illness and mental capacity, we absolutely must consider the interaction between those two frameworks. In terms of implementation, the early introduction of the Bill prevents the review from making suggestions that touch on the scope of the LPSs we are discussing. Therefore, it is crucial that the Government respond to the review’s recommendations before the LPSs that we are talking about at the moment can come into force.

[Baroness Barran]

I am sorry to take noble Lords back a step to Amendment 87D, which is in my name and is really a probing amendment. I thank the noble Baroness, Lady Finlay, for her very warm support—she has unfortunately had to run for a train, but I am grateful to her.

It seemed to me, in thinking about this amendment, that there are a couple of points in the process of authorising liberty protection safeguards where there needs to be real rigour to check that the best interests of the cared-for person lacking capacity are upheld and that the least restrictive option is found in terms of depriving them of their liberty. We spent a lot of valuable time looking at the role of the care home manager in relation to this. The noble Baroness, Lady Hollins, was also alluding in part, in her Amendment 66, to the second actor in this, namely the responsible body. My amendment explores the role of the responsible body.

The first part of the amendment seeks to address the role of the responsible body, which, as I understand it, is effectively a safety net in the process. The aim is to encourage the responsible body to identify cases where it is more likely that those two key considerations have not been upheld. The second part of the amendment sets out a course to follow if that is the case. What I have been trying to imagine is what it is like to be sitting in the responsible body, the local authority or the hospital, with a pile of LPS forms to authorise. How can we keep the person doing that alert and using their discretion appropriately?

In the first part of the amendment, what I am getting at is a way to set clear criteria for the responsible body to follow, such that if the criteria were met it would trigger a review of the applications in more detail. I do not have a definitive list of what those criteria might be but, for example, one might imagine that if the care home in which the cared-for person was going to reside had been rated as inadequate by the CQC, it might be a prompt for a further review, if that care home manager had arranged the assessment.

Other possible criteria might involve what the noble Baroness, Lady Barker, referred to as “unbefriended” people. I am much sure whether this is technically unbefriended, so forgive me, but if someone has no friends or family and a carer has some kind of indirect financial interest in the outcome of the decision, that might be another case of where these criteria might trigger further review. The assumption would be that this amendment would apply whatever the source of funding for the cared-for person. There may be other criteria that would be more helpful, and I am sure that noble Lords who are more experienced in this area than I am will think of what these might be.

In the second part of the amendment, I have simply suggested that, if there is cause to examine an application more closely, it should follow the pathway set out in paragraph 18 of new Schedule AAl. Obviously, if this route is taken, consideration needs to be given to resources, since we do not want to create a conflict of interest for the responsible body—the mirror image of some of the conflicts we have talked about for the care home manager. We certainly want to avoid a situation where there is a financial disincentive to review those cases which genuinely warrant a review.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barran and Baroness Tyler of Enfield

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

[Baroness Tyler of Enfield (LD)]

My Lords, I was not going to intervene on this group of amendments but I have listened carefully to all the points that have been put and they have all been absolutely excellent. There is a tension here, as the noble Baroness, Lady Finlay, just said. My main reaction, particularly when I read the letter from ADASS—I shall not read it out again; I have it in front of me—was of real concern. As the noble Lord, Lord Hunt, said, they are not the sort of people who say these things lightly. They do not scaremonger. They do not exaggerate. They make very carefully calculated judgments, as you would expect of people at that level. I read the letter with great concern.

I was equally concerned when I read the briefing, as mentioned earlier, from the Relatives & Residents Association. One phrase really resonated with me, about the association’s great concern that too often we were asking care managers to be judge and jury about decisions in which they were involved. That is how it was expressed. The noble Baroness, Lady Finlay, made some excellent points. We have to find a way through. It would be genuinely helpful if, as in her proposition, there was time to think about those who will be most involved, as they must be, in care planning for these very vulnerable people, and a sufficiently independent element in arrangements so that people feel that care home managers are no longer judge and jury. I do not think we are there yet. I cannot articulate it at the moment but we must work together to secure a slightly different way forward.

[Baroness Barran (Con)]

I echo the appreciation of the noble Baroness, Lady Tyler, of the explanation of the noble Baroness, Lady Finlay, of the choices we face between the care home manager, who in the best cases will know “P” well, and the local authority assessor, who, as was said, might be parachuted in. It underlines the need for the now-familiar new paragraph 17(2) to be well thought-through and implemented. It is clear that the Bill’s intention is for this to be one of the critical safeguards of how this all works in practice, along with the scrutiny role of the responsible authority, which we will no doubt cover in detail.

Amendment 11 in the name of the noble Baroness, Lady Hollins, raises an important point about supported housing and care homes. It raised in my mind a slightly different question, which may have occurred to other noble Lords: do we need more clarity in the Bill on how it applies in domestic settings? For example, when someone who is normally cared for at home is in a care home for a short stay, perhaps because their carer is in hospital, what is the position in the home once the protection of liberty safeguards have been authorised? I wonder whether my noble friend could consider whether there is a need to clarify exactly the role of the safeguards in domestic settings and how they interface with the Care Act and other bits of legislation that would apply in such cases.