Mental Capacity (Amendment) Bill [HL]

Baroness Finlay of Llandaff Excerpts

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

Moved by

[Baroness Finlay of Llandaff]

1: Clause 1, page 1, line 9, at end insert—
“( ) After section 4A, insert—“4AA Compatibility with other provisions in the Mental Capacity Act 2005Nothing under section 4B of, or Schedule AA1 to, this Act permits the authorisation of any arrangements for enabling care or treatment of a person that give rise to a deprivation of liberty which conflicts with sections 1 to 4 of this Act, or a valid decision to refuse care or treatment by the donee of a lasting power of attorney or a court-appointed deputy or contained in a valid advance decision to refuse treatment.””

[Baroness Finlay of Llandaff (CB)]

My Lords, I start by declaring my interest as chair of the National Mental Capacity Forum. It is in that role that I have been able to have meetings over the summer in Wales with several people from different professional groups across all sectors.

I hope that the House will bear with me as I try to explain why I have tabled the amendment right at the front of the Bill. The key word on which I want to focus is “conflicts” in the third line of the amendment. The reason is that the Bill adds to the Mental Capacity Act, and the principles of that Act must be paramount. In some of the meetings that I have had, I have been worried that there is a view almost that the Bill is free-standing rather than that it is completely connected to and falls out of the Mental Capacity Act.

So whatever we do, and whatever legislation goes forward, we must be aware that first of all the presumption of capacity is being overturned, and that it has to be overturned on evidence that it is for a specific decision at a specific time. People may need support to make their own decisions. Indeed, when somebody has impaired capacity they do need support, because it may be that their capacity can be maximised and they could take that decision. I have been concerned that speech and language therapists have not been a core part of best interests assessors because, when people have expressive and communication disorders, a speech and language therapist can be absolutely essential. It seems strange to have them acting almost as translators for other people who are then best interests assessors or for other clinicians when they have the skill set themselves and want to be trained. Of course, there are also people such as the independent mental capacity advocates.

People need time and a calm environment—but, for support to be provided, they also need somebody who knows them. That might be a parent, a friend, a relative or their child. But it takes time, and we need to recognise that the time taken in supporting somebody is not going to be given by a health professional or somebody perhaps running a care home who is under pressure of time and lots of other responsibilities. So we have to interpret what we are doing in that sense and maximise the ability of the person to be empowered.

Of course, the Mental Capacity Act also allows people to make unwise decisions. We need to think about how we manage harm to others under the Bill, when people may have very specific areas where they lack insight and capacity and are at particular risk. That applies particularly, I would suggest, to those likely to commit sexual offences in society because they do not have the ability to have control when they are in a situation of temptation. They may need to have some restrictions on their liberty to protect others.

When capacity is not there, we are left with best-interest decisions. That consultation must include P. There are amendments that we will come to later that stress that the cared-for person must be involved and at the top of the list, and I have my name on one of those amendments. That consultation must include everybody concerned with P’s well-being, which brings me on to the latter part of my amendment, on where there is conflict with a valid decision to refuse care or treatment, which is probably self-explanatory. I will just say, however, that in some care settings it can be very difficult for people—for example in an emergency department—when somebody is just brought in, to know whether a decision to refuse care or treatment is valid, how it was drawn up and what was considered in the process.

The others who must be consulted are those who hold lasting power of attorney or are a court-appointed deputy for somebody who did not have anybody, so the court appointed them. We must recognise that, when somebody chooses a person to donate a lasting power of attorney to, it is a very difficult choice; it is somebody whom they trust deeply. The court-appointed deputy also has a duty to know the person well. But the person with lasting power of attorney may well have known this person for years and may have seen them through deteriorating health up to the point when the lasting power of attorney needed to be activated. I am concerned that, if the lasting power of attorney or the court-appointed deputy are not really given appropriate prominence in our process, we could find that the careful choice of a trusted person becomes effectively downgraded in the system when we are trying to consider what is in P’s best interests. I hope that noble Lords will forgive me for using the term “P”. It is shorthand for the cared-for person.

The other part of that consultation—for which I hope we will give due credit to the noble Baroness, Lady Barker—is the concept of an advance statement of wishes. Those of us who took through the old Mental Capacity Act—I say “old” because it was some years ago now—will remember the debates when the noble Baroness suggested that we needed a balance between an advance decision to refuse treatment and an advance statement of wishes. The more that I have spoken to professionals across all parts of health and social care, the more I have been struck by how the concept of an advanced statement of wishes has not been used adequately. That becomes important because we are talking about the care plan that will be the basis of our process. The care plan must be the way that somebody who lacks capacity for decisions is to be cared for, and that care plan must be flexible and must meet their needs, so the advanced statement of wishes can become very important in shedding light on somebody’s wishes and feelings.

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[Baroness Finlay of Llandaff]

My Lords, I am most grateful to the Minister for his reassurance, which is quite clear. There can be no doubt that the views of the holder of the lasting power of attorney or the court-appointed deputy must be taken into account and respected. Given that the principle behind this Bill is the importance of good care planning, I am glad to have that assurance. Of course, it is the person who has lasting power of attorney who will be in a good position to oversee the ongoing care of the person to detect whether things have improved or got worse and whether some restrictions could be lifted and things changed.

I can provide a word of reassurance to the noble Baroness, Lady Barker, and I hope that it is not misplaced. I have challenged the deans of medical schools, with my forum chairmanship hat on, on two occasions now. I have also rather sneakily gone in to different clinical consultations semi-incognito—it is difficult to be completely incognito—and I have been impressed by the changes that I have seen in the last couple of years, particularly in care of the elderly settings where there was respect for the need to empower someone’s decision-making. I hope that, if things were revisited, they would now see a difference.

We talk a lot about liberty protection safeguards. With the confusion between safeguarding and deprivation of liberty, I wonder whether that is the right word and whether we should be talking about “liberty protection assessments” or something else. I worry when we look at the domestic setting that safeguarding where there is a problem and the role of a liberty protection safeguard—which is to enhance the living of the person to live as well as they can within the restrictions of whatever has happened to them—more than overlap. They will always overlap a little, but they are becoming a little muddled in the system.

Having said all that, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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[Lord Touhig (Lab)]

My Lords, I thank the Minister and his team for their engagement with Members across the House, which has been very helpful. I strongly support the attempt, on the initiative of my noble friend Lord Hunt, to have this clause stand part debate.

In the past day or so, I have spent some time looking at advertisements for care home staff and managers. They vary greatly; there is no standard at all. One advert for the role of a care home manager said, “You will assume all aspects of responsibility for your care home and have exceptional man management skills”. A minimum of two years’ experience of managing a care home, with no other qualifications, was the only candidate requirement. Another advert said that there was an opportunity for someone seeking to develop their career who must have a solid residential care background on applying. It said that applicants should have a full working knowledge of CQC requirements, possess leadership and organisational skills, and be either qualified in or working towards an NVQ level 5 in social care management, a QCF 5 or equivalent. It took more of an interest in qualifications and was a bit hit-and-miss on whether the person should be fully trained. It said that candidates should have three years’ experience of social care and it would be preferable if they had some previous management experience.

A third advert offered an exciting opportunity for a care home manager with a view to becoming a registered manager if the applicant was not one already. The skills and qualifications needed were an NVQ level 5 in leadership and management, or to be working towards that. Again, that does not mean being qualified with all the necessary education and training. A fourth advertisement sought candidates with proven home management experience, strong marketing, commercial and business acumen and a clear and thorough knowledge of CQC standards. Your Lordships should note that possessing knowledge of CQC standards came third after marketing, commercial and business acumen.

My point is that this demonstrates that there is no agreed national standard for care home manager training. With this Bill, we are proposing to give them a huge new responsibility that will affect the quality of life of many vulnerable people in our society. This really needs to be revisited. We are taking a big risk with people who have no one else to defend them if we do not start defending them here.

[Baroness Finlay of Llandaff]

My Lords, to intervene fairly briefly, it is important that we remember that the current DoLS system has effectively fallen over. We have 108,000 people currently waiting to be assessed, so we have to do something. We cannot leave it running so there is an urgency to come up with some way forward. I remind the Committee that, whenever somebody is in a place of care such as a care home, the deprivation of liberty safeguards application—form 1—is a request for standard authorisation and has to be completed and sent in. That form asks about the purpose of the standard authorisation, and for a relevant care plan to be attached. It also asks why less restrictive options are not possible, and other things. So a degree of assessment is already going on at the care home and these forms are sent in. They are then sent to somebody to authorise them.

I worry that, in some of the briefings that we have had, it looks as though the care home manager will be able to authorise in totality, whereas, as I understand it—the Minister may correct me if I have this wrong—the care home manager will still be required to have the responsible body authorise. That responsible body will be able to look—and one would want them to look—at objections that may come forward from somebody. It is to be hoped they will go and visit if they feel there is a discrepancy between the care plan submitted and the original care and support plan that came from the local authority, which may have been involved in the pre-placement assessment that went on.

The idea behind these new approvals is that there is portability: the person may reside in one place, then be moved to hospital, go to outpatients, spend time in hospital and then come back to the care home. Within that portability, however, there is a requirement to review, if the circumstances change. We will come later to amendments that look at discrepancy between the care plan and the care and support plan as submitted. In other words, these are things that should trigger red flags in the mind of the authorising body, rather than the authorising body just being a rubber-stamping exercise, which is, I think, a misunderstanding that there may have been. If it is a rubber-stamping exercise, there are all kinds of dangers in that. Somehow, we have to filter out those people who really need an in-depth assessment and review from those people where the current processes are just burdensome, time-consuming and not contributing to improving their care. That filtering is really difficult. I offer that in the debate at this stage because it is worth looking at these forms, which I hope will be improved because there is not that much room to write on them.

[Baroness Tyler of Enfield (LD)]

My Lords, I make a brief intervention, primarily to underline the importance of two points that the noble Lord, Lord Hunt, made when introducing his amendment. Like my noble friend Lady Jolly, I fear we have no alternative other than to carry on and scrutinise this Bill. The reasons for doing something have just been set out very clearly by the noble Baroness, Lady Finlay, but I retain two really key concerns which I raised at Second Reading.

The first—referred to by the noble Lord, Lord Hunt—is that of timing and understanding the relationship with the review of the Mental Health Act. I understand that it is due in the autumn—I am not quite sure when—together with amendments to the Mental Capacity Act, given that both Acts relate to non-consensual care and treatment. It seems that the overlap between the two systems is one of the reasons why the current system is so complicated, and why so many staff struggle with it. Frankly, it is why I struggle with it so much. There must be real concerns that changes to address problems under one system will have unintended consequences for the other. Clarity is needed from the Government over when patients should be subject to one Act over the other, so that, in the words of Sir Simon Wessely, chair of the Mental Health Act review,

“arguing over the framework does not get in the way of delivering the care that the person needs”.

I could go on at length—I will not, your Lordships will be pleased to hear. I have just one more thought on this. In addition to the need for clarity on when the Mental Capacity Act or the Mental Health Act should be used, it is really important that patients do not find that they are deprived of their liberty by both Acts at the same time. There are examples of this happening, particularly when a patient has both a mental disorder and an unrelated physical disorder.

That is my first point. My second point, which was made very cogently by the noble Lord, Lord Hunt, is about the consultation that is taking place with the sector. Like everyone else, I have received a large number of briefings in the past few days. Frankly, it has been difficult to take them all on board. I have done my best. I was particularly concerned by a survey that was published only a couple of days ago by an organisation called Edge Training. I do not know it personally, I do not know exactly what else it does, but I do know that it was a survey of 900 people and nearly half the respondents were best-interests assessors, with the rest being primarily social workers, health professionals and independent mental capacity advocates. I will not go through what they said, other than to say that there were really very high levels of concern—80% this and 90% that—particularly in relation to the new roles being placed on care home managers, the potential conflicts of interest, plans to charge care home managers with deciding whether it is in a resident’s best interests to have an advocate if they lack capacity to request one, and the lack of a specific requirement to consult the person themselves about a proposed deprivation of their liberty.

My conclusion from all this is that the sort of consultation that should have gone on with the sector for a change such as this, which really has to work—this is not political, it is about something that has to work on the ground and people who do this have to understand it and feel that it does work—cannot have happened to the extent to which I think it should have happened, and that has real importance for the pace at which this can be taken forward and the consultation and implementation timescale.

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[Baroness Jolly]

My Lords, there is always a risk in your Lordships’ House when an amateur follows a professional. I feel that I have a bit of a starter-for-10 moment as well, because both the noble Baroness, Lady Murphy, and I tabled similar amendments, Amendments 4 and 5, to achieve the same sort of aim. I could take noble Lords through my arguments, which again are similar to hers, but time is of the essence, so it might be worth putting both of them before the Minister to ask whether the Government would consider bringing back an amendment that would put a clear definition of deprivation of liberty in the Bill. There has been a lot of pressure from various parts of the sector for this to happen. At the moment, only case law gives an indication of deprivation of liberty, so to have something in the Bill would be helpful.

[Baroness Finlay of Llandaff]

My Lords, I have an amendment in this group that does not sit terribly well with the first two—but so be it. I will be brief. These attempts to define a deprivation of liberty are nobly submitted, but I worry about potential unintended consequences from the wording. I will not go through them in detail, but I hope that the Minister will assure us that this is something we can take away and look at. One difficulty is that one person’s imprisonment—a deprivation of liberty—might not be a deprivation of liberty to another, so this may be very personal in some aspects.

On Amendment 81 in relation to a “vital act”, I hope that the noble Baroness, Lady Murphy, will take reassurance from me—I do not know whether the Minister will agree with this or not—that anything done must be in a person’s best interest. Part of that is that it is a benefit and not a burden—or it may be a burden, but the benefits outweigh the burden. That has to be a fundamental principle in clinical decision-making.

The reason I tabled Amendment 82, which relates to an urgent authorisation, is that, looking through, I was concerned about unintended consequences from the way the legislation was written. I could see two, possibly—but they may be misplaced anxieties. First, in a true emergency situation, as a consultant in emergency medicine said to me, you just get on and do what you have to do. You do not go and look at paperwork. So, in an emergency situation, you may have to restrict somebody’s liberty to do what you have to do, which is in their best interest. You do not do something that is not in their best interest—and the last thing we want to do is impose any more bureaucracy or paperwork.

So I suggest that, possibly in the code of practice and not in the Bill, it should be clear that an urgent authorisation is an authorisation to begin longer-term care, but in an acute situation, in a clinical decision, nobody would expect people to even begin this process until we get to about 48 hours. I say that because a clinical decisions unit will normally have people staying in it for under 24 hours, as they may even on an acute medical ward, before being moved to a longer-term in-patient unit where their longer-term care may be assessed. Of course, we have people who have a transiently impaired capacity because of illness and the treatment of that will restore their capacity, such as the diabetic whose diabetes is out of control through either hyperglycaemia or hypoglycaemia, and things such as hypocalcaemia as well. None of those should be included.

The concern at the other end was that an urgent authorisation could be used for example to take a confused person with advanced dementia where care at home had completely collapsed. Possibly their main carer at home had suddenly been admitted to hospital. They would then have to be moved into a nursing home placement at great speed, but that may not be what they want and they cannot consent to it. They would have to be moved to that place, be in a placement and be assessed there. There needs to be some time limit so that this cannot linger on for months or years, with somebody saying, “Oh, well, they are here under an urgent authorisation”, rather than a longer-term authorisation. That is why I tabled the amendment. I accept that it is not perfect, but I hope it is something we can look at. It may be that the code of practice can clarify those issues.

[Baroness Thornton]

I have added my name to the amendment tabled by the noble Baroness, Lady Jolly, precisely because I thought we needed to have this discussion. That was exactly right. I would hate to choose between the two amendments, but this sets out when deprivation of liberty occurs:

“Arrangements that give rise to a deprivation of … liberty”,


are when the cared-for person is placed,

“under continuous supervision and control”,

they are “not free to leave” and the responsible body believes that it is in the cared-for person’s “best interests”. That is worth putting on the face of the Bill if at all possible.

The Joint Committee on Human Rights made a strong argument in favour of a statutory definition. I read its report and it seems absolutely right that that is what we should do. I would be interested to hear what one of the lawyers in our midst might have to say about this: whether they think that it would be a useful thing to do and whether the stabs we have made at it so far are helpful. We are interested in this discussion but we realise that this is the beginning of the discussion rather than something that may be appropriate right now.

When listening to the noble Baroness, Lady Finlay, talking about her amendment, it occurred to me that this is one of those occasions when technology is important. When you have an emergency admission, you need to be able to input the name of the person into a PalmPilot, which will tell you whether a DoLS is already in place and whether a do not resuscitate order has been made. Recently I have had experience of exactly this situation with a family member. Because the information was not readily available in an emergency, we ended up where we did not want to be. I just add that to the debate because I know that the Minister and his boss are very interested in technology and its uses in the health service. This is another of those occasions where it might be useful.

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[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.

[Lord Hunt of Kings Heath]

My Lords, my Amendments 27 and 28 follow the same lines of argument that we have heard from the noble Baronesses but relate to paragraph 16, “Determination that arrangements are necessary and proportionate”, on page 12 of the Bill.

I know the Minister will refer us back to Section 4 of the Mental Capacity Act, which is very comprehensive in defining what “best interests” are. Clearly, the intention is that, because it is stated there as a principle at the front of the Act, that permeates through all of the issues that we will be discussing in this amendment Bill. There is always an issue when you have an amendment Bill. It is not incorporated in the principal Act and is quite difficult to follow. It will be difficult to follow for the practitioners who are going to have to operate the new provisions. This must relate, too, to the code of practice. We seek certain reassurances that it will be made clear to the people at the front line who are going to operate it that the best interests provisions in this amendment Bill will apply equally.

What is confusing is the wording “necessary and proportionate”. In a sense, the Government are saying there is a qualification—that things have to be necessary and proportionate. I wonder whether that is helpful. It is confusing that we have a qualification of necessary and proportionate, but in the principal Act it is “best interests”. Clearly, these are probing amendments, seeking to tease this issue out, but I wonder whether the Government could give further consideration to how we can ensure that everyone involved is very clear that the best interests apply.