Mental Capacity (Amendment) Bill [HL]

Baroness Browning Excerpts

2nd reading (Hansard): House of Lords
Monday 16th July 2018 Lords Chamber

[Baroness Browning (Con)]

My Lords, it is a great pleasure to be present during this important debate to hear the maiden speech of my noble friend Lady Barran. We all wish her well in her contributions to your Lordships’ House. I refer to my interests in the register and to the fact that I am a carer and a deputy holding LPAs for vulnerable relatives.

I fully understand why my noble friend the Minister has a certain sense of urgency in bringing this legislation forward. As we have heard, there is clearly a problem that is hitting individuals and our health and care institutions, because of the backlog that is accruing. Clearly, there is a sense of urgency to try to resolve this. However, I begin by saying to my noble friend: it has to be resolved correctly this time. I say “this time” having served on the pre-legislative scrutiny committee for the Mental Capacity Bill, having worked on the Bill when it went through the Commons, having served on the post-legislative committee in your Lordships’ House, and having worked on all existing mental health legislation that we are currently reviewing.

There was a recurring theme on all those committees—there are people around the House who were with me on those committees and who know that we seem to have been doing this for ever. We were only too well aware of the Bournewood gap, which my noble friend mentioned when completing his remarks, and we still have not plugged that gap. It is essential that we plug it this time. Recommendation 21 from the post-legislative scrutiny committee of this House considered that we had inadvertently created a new Bournewood gap and that that should be closed. I have to say to my noble friend that I do not think that the Bill as drafted closes that gap. It is a good attempt, but I would like to have seen some pre-legislative scrutiny on this rather small but important Bill.

Let me share this with the House. At the weekend, I received correspondence from the professional carers of HL in the Bournewood case, which I was involved in many years ago. In respect of the Bill before us, they say it is bizarre that the Court of Protection gives authority to deputies to exercise control over P’s accommodation and care provision. As this Bill stands, it prevents them having any real power in the process. Mr E goes on to state that their acid test is this: if HL v Bournewood happened today, would he be any better protected? As a House dealing with the Bill before it goes to another place, we have to make absolutely sure that we get it right this time.

Concerns have been expressed across the House on behalf of interested parties and the charitable third sector, particularly by my friend the noble Lord, Lord Touhig—he and I both serve as vice-presidents of the National Autistic Society. This brings forward another issue. A lot of noble Lords have spoken today about vulnerable people. That is who we are trying to address in this legislation to get it right. However, vulnerable people are on a spectrum and they all have different needs—they are all vulnerable but how one approaches them and resolves decision-making challenges for them is very different. For example, dealing with somebody very old who has been very disabled by a stroke and is in permanent residential or nursing care is very different from dealing with a 20-something year-old who needs residential care and is on the autistic spectrum. In the work that I have been involved in with younger autistic adults, it is often said that if you get the right person asking the right questions in the right way, those adults understand what the problem is and what the choices are. They have capacity but they have difficulty in knowing how to come to a decision for themselves about the right way forward. There is a world of difference between a professional going through that process and exercise with somebody and dealing with somebody who, as I just explained, might be very elderly or has had a stroke.

Then there is the question of communication. Across this whole spectrum of people are people with communication disorders. How they communicate, whether they need speech and language therapists to assist them or whether they are non-verbal but can still communicate, needs to be taken into account. For that process to take place and for that assessment and decision to be made, it is absolutely essential that time is given.

I know that many Members of both Houses—I am not sure how many—have taken part in training courses run by the Alzheimer’s Society in how to communicate with somebody who has advanced Alzheimer’s. To be frank, it is not all that different from how you communicate with people who are learning disabled or on the autism spectrum. When asking a question or putting information to them, you wait for them to process that information and give them plenty of time before they then express, in whatever way is appropriate for them, an answer to that question or indicate what their preference would be. That is not a cheap option. That type of assessment is not cheap or fast.

Although I understand the urgency to bring down this backlog and treat people individually, we must understand how some of these processes require very skilled people to carry out the assessment. They should be well-trained, experienced people, ideally who know the individual, although that is not always possible. These are the challenges in getting this legislation right.

I totally concur with many issues raised today. Best interests are very important and I am concerned that that phrase is not in this legislation. As someone who holds a lasting power of attorney for health and social care, I am only too well aware that my duties in law as a private individual—not as a professional—are that I should always assess and put that person’s best interests first. If I am doing the job properly, I should notate how I went about the process. Yet we are saying in this legislation that somebody who has that legal duty in respect of another individual does not have to take that into account. They will not be consulted and will not be at the heart of the decision-making as far as P is concerned when assessments and decisions are made. There seems to be a contradiction between two different legal requirements on people in the same Act. I hope my noble friend will address that because I am now very nervous, as somebody who holds this responsibility of lasting power of attorney for another that, somehow, putting their best interests first, which I am legally required to do, will not be taken into account when another area of law is challenging the validity of that responsibility. Again, we must get this right. We cannot leave this as a gap in the process, because it is very important.

Then there are the assessments themselves and the question of training and the quality of that training for the people who carry them out. We should make sure that, even if we save money publicly on reducing the backlog and the numbers, there will be an investment in training for people who currently do not have that training. Certainly, the post-legislative scrutiny committee understood only too well from the evidence that we took a few years ago that there is a paucity of people who really understand the legislation in terms of what they are meant to do as professionals. It was very patchy then and, from what we have seen, it does not appear to be any better now. Nothing has improved all that much.

I want to raise briefly the people who have registered advance decision-making rights to refuse treatment. I am grateful to Cardiff University for its briefing, which sets out the position and explains how this issue is affected by the legislation before us. It states that the Mental Capacity Act enabled people to make ADRTs to refuse in advance specified medical treatments at a time when they may lack capacity to give or refuse consent. The Act created for the first time a mechanism for a person to specify who they would like to make those decisions, which brings us back to lasting powers of attorney. Both provisions were meant to enhance respect for personal autonomy, so it is important that, whatever is in the Bill when it leaves this House, nothing in it should reduce in any way that respect for personal autonomy. Under DoLS there was a “no refusals” test, which meant that an authorisation could not be issued if the purpose of the deprivation of liberty was to provide treatment where the person had made an ADRT refusing it, or which an appropriately empowered attorney refused to consent to on their behalf. This meant that DoLS could not be used to trump the past expression of a person’s wishes and feelings about what would happen when they had had capacity. I hope my noble friend will look again and bring some clarity to this issue. The legislation we are discussing today really is not clear on how those advance decisions will be treated, not only in terms of their relevance but whether they will be recognised as they should be now.

I finish with a quote from evidence we took in our committee on a case that was prevalent at the time and remains a test case—that of Steven Neary. His father sent a letter to the committee. It is worth bearing in mind that we are not dealing just with numbers, money and legislation, but with real people living real lives and for whom there are lasting consequences. Steven’s father, Mark Neary, really fought the fight on his son’s behalf. After he had succeeded, he wrote to say, “Two years on, I still have to deal on a daily basis with the trauma Steven experienced as a result of the DoLS legislation being turned upside down by Hillingdon. It is painful to watch. Two years on, I still have to deal with my own feelings of anger, sadness and guilt that I was not able to protect Steven from the nightmare. Living with his and my feelings—I wouldn’t wish that on my worst enemy. That is why there is still so much to do in making sure that the Mental Capacity Act and DoLS truly protect the vulnerable people that the Act was designed for”. We must get it right this time.

Mental Capacity (Amendment) Bill [HL]

Baroness Browning Excerpts

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

[Baroness Thornton (Lab)]

My Lords, I will speak to Amendment 20, which is in my name on the Marshalled List and has been grouped with the amendment in the name of the noble Baroness, Lady Finlay.

During the briefing we had with the Bill team and the Ministers, my notes tell me that the first clause is a key change to the new regime, and that it is concerned with the portability of deprivation of liberty. I understand that the noble Baroness’s amendment makes sure that Section 4B—on the deprivation of liberty necessary for life-sustaining treatment or vital act—and Schedule AA1 are compatible with the provisions set out in the rest of the Bill and that they do not conflict with a valid decision to refuse care or treatment. The noble Baroness raises some important and substantial issues right at the beginning of the Bill and raises issues of conflicts which will need to be resolved.

Amendment 20 in my name comes from paragraph 15 of proposed new Schedule AA1 in the Law Commission’s draft Bill, quoting it exactly. It prevents the responsible body authorising arrangements for the cared-for person to reside in, or receive care or treatment somewhere, if those arrangements conflict with a valid decision by a donee of a lasting power of attorney or of a deputy appointed by the Court of Protection. As I say, the wording is exactly the same as that in the Law Commission draft Bill.

Under deprivation of liberty, a deputy and attorney may object to any deprivation of liberty and effectively block it, pending an application to the Court of Protection. I can see no obvious reason for excluding this from the Bill. The Government claim that it is already in the main provisions under the original Act—in Section 6(6) —but this is only the case where the basis for the deprivation of liberty is in “best interests”. If the basis for DOL is risk to others, that would not necessarily be the case, and so for the avoidance of doubt it is important to include this clause. If we do not, the risk of litigation on this point is probably quite high.

Deputies and donees should be able to refuse a deprivation of liberty, so this amendment seeks to ensure that the views of those donees and deputies, who have been appointed by the cared-for person to make the decisions in their best interests—as was eloquently outlined by the noble Baroness, Lady Finlay—are given appropriate weight with regard to where the cared-for person resides for care and treatment.

I am pleased to say that this amendment and what the noble Baroness, Lady Finlay, said, enjoys widespread support from the organisations who have found the time, even under the pressure we have all been under, to say that they support this. They include Mencap, VoiceAbility, Mind, the National Autistic Society, Liberty, Age UK, Sense and many others. The amendment looks at the clash or overlap between the different regimes that govern this area of law. I must ask why the Government did not adopt the Law Commission formulation. The Minister should be aware that I will return to that theme throughout Committee, because the Government seem to have cherry picked the Law Commission report, and some of the most important safeguards of liberty seem to have been omitted or watered down by the Bill.

[Baroness Browning (Con)]

My Lords, I refer to my interests in the register. I will pick up on two points that have been raised in the amendments, particularly the amendment in the name of the noble Baroness, Lady Finlay.

At Second Reading, I too raised my concern about the status of attorneys with lasting power of attorney, particularly over wellness and health. These are some of the most personal decisions. In some ways, I am more concerned about that than about attorneys who have power over the money. Money always seems a rather black and white matter—it either is or is not a good idea. But there are many shades of grey over health and, in particular, well-being. I should like to link this with decision-making and the other point in the noble Baroness’s amendment, about the need for qualified speech and language support to interpret and make sure there is a clear understanding of what “P”’s interests really are.

When you look at certain people with certain disabilities, particularly those with communication disorders—such as autism, learning disabilities and, of course, dementia—it is not always the case that they cannot express a view. But getting to that view—unless it is a real, life-threatening medical emergency—takes quite a long time. First, particularly those with autism and a learning disability, the individual has to be comfortable and familiar with the person asking the questions, however experienced. It is no good sending a stranger in for a five-minute cup of tea and a quick chat and thinking that person will then disclose their innermost feelings. How many of us would?

The point is that getting to that view might often be about something known for many years by someone who has been appointed as an attorney with a lasting power of attorney. I believe the two things are linked in those cases. We know from the Alzheimer’s Society that such a lot can be achieved for the quality of life and well-being of people with dementia and Alzheimer’s by giving enough time, when asking a question, to allow the person to process the information before they give an answer. Brain function is very different in these people. They need time to process the question they are being asked and to process how they will communicate the answer; it can take quite a long time.

This point was picked up quickly by the Alzheimer’s Society which says, for example, on a very simple matter, that when people with Alzheimer’s in residential care homes are asked whether they would like tea or coffee and do not immediately reply, they are processing the question and that can take a long time. They might prefer coffee today, but because they had tea yesterday, the answer may be quickly assumed—“I expect you will have tea, you always have tea”—before they can even process the information and the way they will communicate the answer.

How much more complex it is, and how much more time is needed when people are being asked more complicated questions about potentially life-changing decisions. This cannot be left only to someone with speech and language experience, important as that is, and such people need to be experienced. But people with a lasting power of attorney, who might have held an LPA for many years, and who know the individual extremely well, are in a prime position to act as an interpreter when important decisions are being made.

I believe my noble friend is aware of my view on this already. Those of us who served on the original Bill and its pre-legislative scrutiny many years ago know that a lot of thought went into the existing Bill on LPAs. To have one part of a Bill give rights to an individual through their attorney but then to diminish that in another part of the Bill, through amendment, seems not only wrong but seriously, morally wrong. I hope my noble friend will address this point when he replies to this amendment.

[Baroness Murphy (CB)]

My Lords, I have added my name to Amendment 20, tabled by the noble Baroness, Lady Thornton, and I give my strong support to the amendment in the name of the noble Baroness, Lady Finlay. I pay tribute to the good sense that the noble Baroness, Lady Browning, has just brought to our debate.

A theme that will run through our discussions and will come up again when we come to advance decision-making is that we must have more respect for those who have been trusted by an individual to make decisions on their behalf. We must encourage people to make plans and to think about the future, and we must ensure that those who make the very wise decision to appoint a lasting power of attorney are respected. As we have already heard, we do so in other parts of the Bill, and we should not remove that when we come to the question of deprivation of liberty. We must incorporate it in the general scheme of things. It seems absolutely crucial that we respect decisions made by people who have power of attorney and by the court’s appointed deputies. I strongly support the amendment.