Mental Capacity (Amendment) Bill [HL]

Baroness Finlay of Llandaff Excerpts

Report: 1st sitting: House of Lords
Wednesday 21st November 2018 Lords Chamber

[Lord Woolf (CB)]

My Lords, I am very grateful for the expectation about my contribution to this debate, which the noble Baroness, Lady Tyler, just referred to. I am only too conscious that I shall disappoint her, but I will do my best.

First, I must disclose an interest. I have a relative whom the Bill may affect. I am also a member of the Joint Committee on Human Rights. The noble Baroness, Lady Tyler, was quite right in everything she said about the committee’s report, which has something useful to say in connection to this. I hope the Minister will agree with that. I see him nodding his head and telling me that it is so.

I shall focus on the second amendment proposed by the committee, which supplements the one moved by the noble Baroness, Lady Tyler. It is designed to limit the unintended harm caused as a consequence of the Cheshire West case, which is not easy. That harm takes two forms: first, it has resulted in a huge increase in the number of people who will be caught by the Bill; secondly, it means that people who do not need the precise benefits normally available to those in their position are dragged into that protection to their disadvantage.

I shall try to describe the persons concerned. They are people who have problems that would fall within the context of the Bill, but are residing, possibly in their home or some other institution, somewhere where they are perfectly content and well looked-after. There is no problem in their case. I do not think it necessary to expand the burdens on the Treasury caused by people in their condition by including them, unless it can be shown that there is a real necessity. Although the language of the amendment proposed by the committee, to which I am speaking, is complex, if one reads it carefully it does not give rise to any difficulties, but it could have the ameliorating effects to which I have referred. For those reasons and those the noble Baroness has given, I commend this amendment.

[Baroness Finlay of Llandaff (CB)]

My Lords, I should like to comment on these amendments. Before I do that, I thank the Minister on behalf of everyone for listening, as well as for his willingness to meet Peers and to move on the things that had caused enormous concern to many of us.

I have a couple of concerns regarding these amendments. I commend the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for trying to get us back to a definition. I completely agree that if we do not have a definition, the matter will go to court and we will end up back in a circle that we do not want to be in. The problem I see is the non-negligible period, which will be really difficult to define. If somebody is in a confined space for even 10 minutes or a quarter of an hour, that could be absolutely terrifying for them and completely unjustifiable. We have a difficulty in trying to use time as a measure, but I understand why it is there as well.

In his amendment, the noble and learned Lord, Lord Woolf, certainly includes the principle of consent, which means that there should be information that the person has capacity and that their care and treatment are voluntary. I was a little worried, however, that his proposed new paragraph 2(1B)(d) in the amendment, which would require two clinicians to confirm in writing, rather ran counter to the principles set out in Part 1 of the Mental Capacity Act itself, Section 1(2) of which states:

“A person must be assumed to have capacity unless it is established that he lacks capacity”.


It almost turns itself on its head if you must have somebody to verify that they have capacity.

I note that in his letter to us, the Minister stressed the importance of supporting liberty as much as possible and valid consent wherever possible. Would the Minister be prepared to say that we can work on this between now and Third Reading? If we can reach a definition that seems right by then, we will have done the whole community a great service.

[Baroness Thornton]

My Lords, I thank the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for bringing forward the amendments. I can see that the Government have a decision to make about which way to go on them.

Listening to the Joint Committee on Human Rights is always a good idea. We discussed a statutory definition during the previous stage of the Bill, when the Minister repeated that he,

“should like to take some time between now and Report to consider the opinion expressed by noble Lords and in the report of the Joint Committee about the benefits of a statutory definition”.—[Official Report, 5/9/18; col. 1849.]

I understand why the noble Baroness, Lady Finlay, is thanking the Minister already but it may be slightly premature. I know what she means, but let us wait until the end of the next day and a half. It is important that the Minister shares with us now where that thinking has led him.

--- Later in debate ---

[Baroness Watkins of Tavistock (CB)]

My Lords, I support this group of amendments and I am delighted that the Minister has had his mind changed. Not using this phrase will change how people feel about their relatives who may be suffering from mental disorders. I am also optimistic that, in the longer term, using such modern nomenclature will make mental health professions more attractive to young people.

[Baroness Finlay of Llandaff]

My Lords, I also welcome these amendments; removing “unsound mind” is a major step forward. I have a couple of questions for the Minister and I hope he can clarify. I may have misheard him but I understood him to talk about head injury. It would be helpful if he could clarify that he was referring to acute head injury—or acute brain impairment of any sort—as opposed to long-term damage such as frontal-lobe damage, which can happen when you have had a major brain injury. This can result in very long-term problems and difficult behaviours, which may mean that people currently need to be assessed as subject to deprivation of liberty. Could he clarify that we are not discounting a whole group of people who, it is generally felt, benefit from being properly assessed and safeguarded?

I would also like confirmation from him on another group. In January 2015, the then Mental Capacity Act deprivation of liberty safeguards policy lead in the Department of Health wrote out quite widely. There had been a concern about people who were nearing the end of life, including palliative care patients and patients in hospices. It was made clear in this letter that if somebody had consented to a care package and then went on—as part of their disease process when they were dying—to need some restrictions, and possibly to be moved to another place of care, that would not fulfil the acid test as such; neither would it in the case of people who were being nursed in a side room who were not under continuous supervision and control. The reason was that, in palliative care cases, there is often a time when the family cannot cope as the patient becomes unconscious, is moved to a hospice or develops another condition that had not been anticipated. It would be an inadvertent consequence if this letter from January 2015 no longer stood. It has been important and has made care easier. It was following this letter that we were able to change the regulations for what had to be referred to a coroner. That made a major difference, because families found it terribly traumatic to find a relative subject to a deprivation of liberty safeguard having to be referred to a coroner. I simply seek clarification on those two issues, but I in no way question the importance of removing “unsound mind” from the Bill. I hope this is the beginning of us seeing the end of that term, which is stigmatising.

[Baroness Hollins (CB)]

My Lords, I welcome the replacement of “unsound mind”, but I ask the Minister to consider adding a safeguard to ensure that no one has their liberty denied because of a mental disorder without first being seen by a qualified doctor. It is essential that individuals are assessed for a mental disorder and not another condition presenting as a mental disorder, such as delirium or the side-effects of medication, which are common among older people. It is important that consideration is given to whether the disorder can be managed without depriving the person of their liberty. This requires assessment not only of their mental state but of their past and current physical health and medication. The assessment is a core part of this process. It has great significance because it relates to the deprivation of a person’s liberty. Who can carry this out should be stipulated in the Bill rather than in a code of practice. I ask the Minister to reconsider bringing forward an amendment to add this requirement to the Bill.

--- Later in debate ---

[Lord O'Shaughnessy]

My Lords, we now come to the largest group of amendments on the issue that has perhaps taken up most of our attention in the progress of the Bill so far, and quite right too.

The government amendments in this group relate to ensuring that care home managers have an appropriate role in the liberty protection safeguards system that we are seeking to implement. You would have to have had ears of cloth not to have heard the concerns raised by noble Lords and stakeholders throughout the passage of the Bill about the proper role of care home managers. I agree that we must be absolutely clear at this stage in legislation about what is the right role for those care home managers. I also agree that there should be no scope for any conflict of interest—not when we are talking about the safety and care of very vulnerable people—and that we should ensure that all assessments are completed by those with the appropriate experience and knowledge. Furthermore, people should always have confidence that they will have access to independent support and representation.

I will shortly address the specific amendments in this group. Before I do so, I would like to draw noble Lords’ attention to other germane government amendments, which we will deal with on the second day of Report but which are important to consider in the round with the amendments in this group. Those include proposals that we have made to ensure that only responsible bodies can arrange the pre-authorisation review and that care home managers will be explicitly excluded from completing the pre-authorisation review. This is important because pre-authorisation should not confirm poor care planning or perpetuate a system where someone is receiving care in an inappropriate setting. The amendments that we have laid and which we will deal with on the second day will counteract any incentive the care home manager might have to ensure that a resident stays in a care home inappropriately. We are also determined to make sure that the care home manager cannot act as a gatekeeper to the IMCA appointment, and we have laid amendments accordingly.

There has been a great deal of discussion about the role of care home managers in authorisation. I have strongly and deeply considered noble Lords’ concerns in the context of what we know works now in the current system. There is a desire to make sure that the liberty protection system that we intend to introduce builds on what works and changes what does not. Under the current DoLS system, care home managers have the role of identifying that someone may lack capacity and need restrictions as part of their care. In practice, they must complete form 1, which brings together all of the current assessments for a person. This is then sent to local authorities, which appoint a best-interest assessor to conduct a further assessment ahead of providing the authorisation. This is an appropriate role for care home managers to undertake, and is the role we are proposing and clarifying through our amendments.

Amendment 30 requires the responsible body to make a decision on whether it is content that it is appropriate for the care home manager to carry out the relevant functions prior to authorisation, including arranging assessments and carrying out consultation. Amendment 90 applies this decision to reviews as well. This is an important change because it provides additional protections in cases where there may be concerns about a particular provider and its capability for conducting its role, and it allows responsibility to take on all the relevant functions in these cases. There may also be cases where there are no concerns about quality of care, but there may, for example, be particularly strong social worker involvement and it may make sense for them to take on those functions.

This power to remove the care home manager from the process can be enacted at any point, and we would expect it to be done at the earliest possible point, particularly if there are concerns. We will use the code of practice to set out the detail so that it is applied consistently by different local authorities, with clear criteria for the responsible body to make a decision on whether to retain responsibility for the relevant functions. In the case of care home residents, this significantly strengthens the role of local authorities in terms of oversight, intervention and supporting the quality of the operation of the scheme. If the responsible body has decided that the care home manager should be responsible for providing the statement and carrying out the other functions, the care home manager will bring together the information, evidence and assessments needed for the responsible body to make a decision on whether to authorise the liberty protection safeguard. In many cases, this will bring together recent valid assessments that can be used for this purpose.

As has been said previously, care needs change over time. We recognise that putting hard and fast rules on the validity and timeliness of assessments would not recognise the reality of what happens. That is why we will set out in the code of practice what we would expect to see in terms of valid and up-to-date assessments. The Bill also enables the responsible body to step in, if they are not confident in the validity of the assessments, by refusing to authorise the arrangements. Let me be clear that all the assessments would involve consultation with the person. In addition, the Bill will require the care home manager, or the responsible body, to complete the consultation with the person and other interested persons.

Some noble Lords have stated their concern that there is a potential conflict of interest if care home managers were to conduct assessments. The Government agree that there is a potential financial conflict if care home managers were to complete assessments for people in their own care homes, particularly when it comes to considering whether there are less restrictive alternatives. Amendment 52 explicitly excludes care home managers or others from undertaking the assessments if they have a specified connection to the care home, in particular if there is a financial connection. This will be set out in regulations. We will use the regulations to ensure, in England, that care home staff are not able to conduct assessments where they have a potential financial conflict of interest and the Welsh Government will have the power to do the same. Doing this in regulations allows us to provide the necessary detail, given the complexity of the care home sector, to ensure that there are no loopholes. For example, we would not want someone who works in another care home run by the same company to conduct the assessments.

Noble Lords have rightly asked questions about who undertakes the assessments and in particular why there were no clear requirements on the expertise of those who undertake capacity and medical assessments. That refers tangentially to the issue raised by the noble Baroness, Lady Hollins, before. Although that is already provided for in binding Article 5 case law, I have been persuaded that more clarity is needed. Amendment 52 clarifies that capacity and medical assessments must be carried out by someone with appropriate experience and knowledge. Capacity assessments should be completed by a registered professional such as a nurse, social worker or occupational therapist, and medical assessments must be completed by a physician. We will set out in the code of practice the experience and knowledge that we would expect to see for those undertaking assessments.

On the point about experience and knowledge, Amendment 53 tabled by the noble Baroness, Lady Finlay, would have the effect of requiring that the person who conducts the assessment has the appropriate skills and knowledge. The noble Baroness is absolutely correct that the person who completes the assessment should have the necessary skills to be able to conduct the assessment. Amendment 52 already provides for that within the description of experience and knowledge and we would expect that to cover the necessary skills. We will define that in the code of practice so that it explicitly describes the skills, using the term “skills” and describing the kinds of skills that ought to be required of the person carrying out assessments.

There are also some minor amendments that clarify definitions of care home manager and responsible bodies. Amendment 8 updates the definition of care home manager. Amendment 9 corrects the definition of care home manager in Wales. Amendments 11, 15 and 24 set out a definition of English and Welsh responsible bodies. Amendment 17 removes the definition of local health board as it is now superfluous.

I hope that noble Lords have had a reasonable chance to examine all the government amendments in this group. They have been carefully crafted to reflect to the best possible extent all the concerns set out by noble Lords at Second Reading and in Committee to remove any concerns about conflict of interest and make sure that care home managers are not, to coin a phrase, marking their own homework. They have an important role in organising assessments, but it is effectively an administrative function with proper oversight, and assessments will be carried out by those with the proper qualifications, expertise, skill and knowledge. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, there is a tone of disappointment because I welcome all the government amendments, but the role of my amendment to government Amendment 52 was twofold. First, I am disappointed that speech and language therapists were not in that list read out by the Minister, because we had a debate about the importance of communication skills. When communication is impaired, particularly with disorders that affect any part of the speech or throat cycle, it is very difficult to assess someone’s capacity.

I included skills because I worry that experience and knowledge are sometimes just not enough. If the Government insist on “skills” going into the code of practice, I hope that the Minister will be able to confirm that the skills will be assessed and reviewed at appraisal, and that they demonstrate an understanding of the impact of fear—being frightened—on the way the person behaves.

The assessors must have a high level of communication skills and awareness of all the different ways that communication can be enhanced. I hope that they would also have an awareness of the impact of different types of medication on someone’s capacity, because sometimes changing the medication can really improve a person’s ability to make a decision for themselves.

Amendment 53 links to Amendment 74, which is in my name and will come up later. I am concerned that, without strong reassurance, some of these issues could slip by and we could inadvertently end up having superficial assessments of some people and not the thorough and in-depth ones they deserve. The whole principle of the Mental Capacity Act is to empower people to make their own decisions, and we are talking about trying to have the least restrictive option so that we can enhance a person’s liberty as much as possible. If that assessment is not meticulous with the appropriate skills, the wrong judgments could end up being made.

[Lord Hunt of Kings Heath]

My Lords, I realise that in the last group I mentioned general medical practitioners. I ought to inform the House of my forthcoming appointment to the General Medical Council.

We have had a lot to read in the last few days, and are clearly going to have to take a lot of this on trust, but the thrust of the amendments is welcome, and I am grateful to the Minister for tabling them. As he said, they strengthen the role of local authorities and give them a clear remit to intervene where they feel that, for one reason or another, the care home manager cannot discharge the responsibilities given in relation to the authorisation application appropriately.

In the letter that the Minister sent to a number of noble Lords, he set out factors that might be considered by the local authority as a responsible body. These would be:

“Whether the person has a care plan with the responsible body … local intelligence about a local provider of care homes”,


which would suggest that the responsible body takes over the process;

“insight from local commissioners or concerns about performance … sustained absence of a registered manager”—

or presumably when the turnover of managers is high, as it can be; and—

“an increase in concerns raised by residents, their carers or families … a new service or category of care provision, and/or … provision of poor or incomplete statements”.

To me that sounds very comprehensive and welcome.

What arises from this is that the responsible body will have to make a considerable judgment and, to make it, will need a very clear understanding of the care homes in its area. Could the Minister say a little about how he thinks that local authorities might be supported in that role? Clearly, they now have a major role which they have found it hard to discharge, for reasons that have been discussed. It is important they are able to do this in a consistent way.

The Minister mentioned the code of practice. It is a statutory code of practice, which I think means that it must be followed unless the local body has very good reason not to do so. It would be interesting to know what plans the department has for checking with the local authorities—not in a heavy-handed way—how well it is going after time and implementation, and seeing whether there is consistency across the country as a whole.

--- Later in debate ---

[Baroness Meacher]

My Lords, I put my name to this amendment and I very strongly support it. Having been a Mental Health Act commissioner for many years and having visited independent hospitals as well as NHS hospitals and other establishments, I remember those independent hospitals as being the most alarming environments that I ever visited. Very often, the biggest problem was indeed the conflict of interest. People would get into those hospitals and be treated, and that was all good, but whereas in an NHS hospital the pressure all the time, from the day of arrival, is to plan the exit and aftercare in the community, once those hospitals had got the person better they had a lovely ride. The patient was there and was no trouble, no longer had symptoms and was miles—maybe hundreds of miles—from their family. They did not get visits. The conditions in which those people were held were shocking, and the degree of the deprivation of liberty was often deeply shocking. Did they go out in the grounds? Probably not. Did they go out for walks? Probably not. Any kind of a sense of liberty could be lost, not just for days, weeks or even months, but for years. We would do our tiny best, but the fact was that we might get round to one of those hospitals every two years. It was inadequate to say the least. I therefore urge the Minister to take this very seriously. We are worried about care homes, which are probably local and have the family nearby, if there is one. They can be a problem, but this is on another scale and of another degree of severity, so I strongly support this amendment and urge the Minister to consider it.

[Baroness Finlay of Llandaff]

My Lords, I, too, have put my name to this amendment. My noble friend Lady Meacher has laid out very clearly some of the problems and conflicts of interest that can arise. One of the difficulties is deciding which will be the responsible body. If the place where somebody is treated is quite a long way from whoever commissioned their care, it can create real problems for a local authority or a clinical commissioning group, which might be funding outside the range of common care for somebody to be some distance away. That is why we have to decide which is to be the responsible body, and that responsible body must take those responsibilities seriously. The advantage of the responsible body being a designated NHS trust is that the private hospital is likely to have consultant-level staff who are likely to have an NHS contract somewhere at another trust, which may be nearby, or if they are part of a specialised group they will be subject to a degree of oversight, appraisal and so on within that specialist area. They are less likely to have local GPs who would be answerable to clinical commissioning groups. One just does not know. They have to go to one or the other. The most dangerous of all would be to have what one might term a mixed economy of a responsible body in some situations and a clinical commissioning group or local health board in another.

In Wales, things are a little different because the local health board covers the hospital sector and the community, so we have clearly defined geographical boundaries with much easier lines of answerability. My feeling is that we need to plump for one. I hope that the Government will, and I can see that there may, on balance, be advantages in saying the designated NHS trust is the responsible body.

[Baroness Thornton]

My Lords, I shall speak to my amendment, which is in this group. The noble Baroness, Lady Finlay, said that the Government need to opt for something here to solve this problem. Mencap, in particular, and VoiceAbility have been very exercised by this because, as noble Lords have said, there is a conflict of interest when an independent hospital can be responsible for authorising deprivation of liberty for people in the hospital for the purposes of assessment and treatment of a mental disorder. My amendment names the CCG or local health board as the responsible body to remove that conflict of interest.

Since the Winterbourne View learning disability abuse scandal in 2011, the Government have been trying to reduce the number of people in these settings but, it must be said, largely without success. There remain 2,350 people with a learning disability and/or autism in these settings who in many cases could, with the right support, be in the community, but half of them are in independent hospitals. The independent hospital sector is expanding—to the horror, it must be said, of very many people. The average cost of a placement in an assessment and treatment unit for people with a learning disability is £3,500 a week. It can be as high as £13,000 a week. The average stay is of five and a half years. This is really not acceptable. Many noble Lords may have seen the excellent piece by Ian Birrell in the Mail on Sunday—not a newspaper I would normally read—which looked at the companies and the significant profits they make from these very lucrative contracts. The article details two giant US healthcare companies, a global private equity group and a Guernsey-based hedge fund, as well as two British firms and a major charity. The point is that these bodies are responsible for deprivation of liberty, and that can neither be acceptable, nor indeed what the Government intended. The Minister needs to provide us with some solution to this problem.

--- Later in debate ---

[Lord O’Shaughnessy]

That is a perfectly reasonable question, but the AMCP would absolutely look at every case. There would not need to be an objection raised. I was just explaining the hierarchy for non-independent hospital cases. It would be, in a sense, going to the second-highest port of call for scrutiny that we are considering in other cases to highlight the seriousness of it. There would not be that gatekeeper point which the noble Baroness is worried about.

[Baroness Finlay of Llandaff]

How would we be clear that we knew about all the people who had a deprivation of liberty, if we are depending on that independent hospital to notify and call in an AMCP? That AMCP may be one with whom they end up having an uncomfortably close or cosy relationship. How could there be a degree of independence, when the person signing it off as the responsible body would still be the one with a vested interest in keeping their beds full and their income going, which was the very thing that concerned us about the care home? Is the Minister prepared to meet us and discuss this outside? I understand the intention to have everyone assessed by an AMCP, but I am worried that if we leave it to go to the Commons, some of the concerns that have been raised here may not get carried over.

[Lord O’Shaughnessy]

Absolutely—I would be more than happy to do so. I have tried to demonstrate our intention to deal with the issue, but we remain open-minded about the best way to do it. We have concerns with the amendments as laid—we were trying, if anything, to turbo-boost the approach. I recognise that the noble Baroness is concerned about an overfamiliarity between individuals, which she is trying to make sure that we avoid. There may be other concerns with the model that we are considering. I am more than happy to take that offline, and that would be a very fruitful discussion.

--- Later in debate ---

Therefore, I make it clear to the Minister that we have thought long and hard about how to deal with this issue, which we have argued back and forth over the past few weeks, in a way that offers the greatest legal clarity and assurance to people who will be subject to this law, to their families and to practitioners who have to interpret it. With that in mind, I beg to move this amendment, and I have to say that at this point, reassurances about anything in a code of practice will not suffice.

[Baroness Finlay of Llandaff]

I endorse the comments of the noble Baroness, Lady Barker, in moving this amendment. One of the reasons that it should be in the Bill is that we have been trying to have the cared-for person at the heart of our deliberations, and the wording here is completely compatible with other parts of the Mental Capacity Act.

There is a terrible tendency when people look at the least restrictive option to also think about what might be convenient for them. The least restrictive option might not be the easiest, and might mean that staff have to behave in quite a different way. By wording these two amendments in this way, we are looking at the risk of harm to the person specifically, and are keeping the person at the heart of this. There always will be a risk that decisions will be contested in court and will need to go to court, and an application to the court may be judged specifically against that test, because it is in the Bill. If it is in the code of practice, there is a real danger that it could be downgraded.

[Baroness Thornton]

I put my name to this amendment, and we on these Benches very much support the intention behind the amendments in this group.

I bow to the fact that the noble Baroness, Lady Barker, has lived and worked with this for a very long time indeed, has reviewed the Mental Capacity Act and was very influential in the way it was formed. There has been a lot of discussion with stakeholders about this group of amendments and how we can best express “necessary and proportionate” in a way that will strengthen the Bill and prevent harm to the cared-for person. These amendments do that, providing clarity. Again, as I mentioned in the previous debates, because this is to do with protection and powers, it has to be in the Bill and not the code of practice. I hope that the Minister will agree to the amendments, because it is probably the best way forward, and that he will end this discussion in harmony and agreement.