Mental Capacity (Amendment) Bill [HL]

Baroness Finlay of Llandaff Excerpts

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

[Baroness Finlay of Llandaff (CB)]

My Lords, Amendments 49, 85 and 87, which are in my name, complement Amendment 29—which, like others, I strongly support. Information to the family and those who care deeply about the welfare of the person is the cared-for person’s safeguard against exploitation or bad care or simply having their needs ignored. It is paramount that families have a role to play in the care planning of their relatives, not least by giving them the option to stay fully informed and to object to the proposed plans if they are unsatisfied.

When an assessment happens at one point it is easy to collate all the information, get it signed off and then forget that every day until the scheduled review is a day to be lived by the cared-for person. If the conditions laid out in the authorisation are not adhered to, if the person is not empowered as much as possible to be both mentally and physically active, gradual inactivity and a slipping decline set in.

The care itself is important. Certainly, quality of care will vary between care homes and within them, but monitoring the care plan is central to ensuring that the cared-for person’s dignity is maintained. Their quality of life depends on how they are treated day in, day out, as well as whether they receive care in a way that enhances their personal dignity or, shamefully, they are treated as though they are of less worth. It is therefore imperative to ensure that the cared-for person is placed at the heart of the LPS authorisation process, which is why I want all those consulted in the initial process, as laid out in paragraph 17(2), to be able to access easily the care and support plan. Being able to apply for it is not enough; many people may not even know that they are able to apply to look at it. Relatives will notice if the care plan states that something is not happening and question why.

The care plan and authorisation record must be available to the cared-for person, enabling them to keep track of what is supposed to be happening. For those with fluctuating capacity or less severe impairments, the sense of control and empowerment that this would give is completely in line with the ethos of the Mental Capacity Act. Where the cared-for person cannot monitor their care plan, they can still know, even in their short-term memory, whether they are getting what they should get. Those with specific responsibilities for the cared-for person’s welfare—such as the nominated representative, the donee of the lasting power of attorney for health and welfare or the court-appointed deputy—must have both the authorisation statement and the accompanying care plan.

The care plan must also be provided to the care team in the cared-for person’s place of residence, because where such a place is supported living, I am concerned that those who provide support and are not on a professional register may find that they are not given all the details. I strongly support Amendment 29, introduced so clearly by my noble friend Lady Watkins. People must know what their rights are and what will happen. This will not be costly; it will be far less costly than the court cases that are likely to come if the requirement to provide information about all aspects of the process and plan is not in the Bill.

Amendment 87 deals with what to do in the event of a dispute. It requires an AMCP to be appointed to explore the reasons for the dispute and assess the situation independently. If agreement cannot be reached, independent mediation must be sought before resorting to the adversarial processes of going to court. A group of family law solicitors has been working for over a year to develop a system of mediation to be used before a court proceeding in the Court of Protection. This type of dispute, where everyone agrees that a solution must be found in the interests of the cared-for person, lends itself well to mediation; it would be swifter, cost less than any court action and be far less traumatic for all concerned. If the principle of dealing with dispute is not in the Bill, can the Minister reassure the House that it will be dealt with in the code of practice?

Before I finish, I urge the Minister to recognise the strength of feeling about people needing to be given information about their rights. If he will not accept these amendments, will he agree to bring the lead amendment in this group back as a government amendment at Third Reading? Requiring adequate information-giving must be in the Bill; it cannot be left to the code of practice, nor deferred to the Commons stages. This is one of the most essential planks in ensuring that the care that should be given is given.

[Baroness Wheeler (Lab)]

My Lords, we on these Benches strongly support the key amendments in this group. Amendment 29, to which my noble friend Lady Thornton added her name, would ensure that the responsible body has a duty to make sure that the cared-for person or the person representing them in an advocacy, professional or other capacity fully understands the rights of the cared-for person for whom deprivation of liberty is proposed, and the rights to challenge. Those rights also include specifically the rights to an independent and professional assessment, to a review of the LPS arrangements, to advocacy and support and to be able to challenge the LPS authorisation in court.

The noble Baroness, Lady Watkins, made a strong case for rights to information to be on the face of the Bill, ably following on from the interventions of the noble Baroness, Lady Hollins, during its previous stages. She spoke on the importance of this issue, particularly in respect to people with learning difficulties, and the need, wherever possible, to take steps to increase the cared-for person’s capacity to understand what is happening to them and to have as much involvement as possible to help them determine their wishes and feelings.

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[Lord O’Shaughnessy]

On the noble Baroness’s first point, of course there is nothing to stop us setting out anything in the code of practice. The concern would be whether there would be a clash between what was set out in the Bill and what was set out in the code of practice or in Article 5. That is one of our concerns and it is for that and other reasons that unfortunately we are not able to support that amendment.

[Baroness Finlay of Llandaff]

Does the noble Lord agree that one of the differences here between Article 5 rights normally and this group of people is that these are people who lack capacity to make their own decision, which is why they are being deprived of their liberty? They are particularly vulnerable and unable to speak up for themselves and depend on others. Therefore, if we have something in the Bill—and it may be that the wording in Amendment 29 is not right—brought back by the Government at Third Reading, we would know that there is an explicit right to information to be given to people when they lack capacity, as well as giving it to people when you have done everything to confirm that they have capacity for it.

[Lord O’Shaughnessy]

I recognise the point that the noble Baroness is making. As I said, our belief is that the rights that currently exist, and are in no way amended or reduced as a result of the Bill, provide what she is asking for. Unfortunately, I am not able to give a commitment that we will be able to return to this issue at Third Reading.

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Moved by

[Baroness Finlay of Llandaff]

33: Schedule 1, page 10, leave out lines 14 to 16

[Baroness Finlay of Llandaff]

My Lords, I am most grateful to the Government for having changed the role of the care home manager. All the changes in the Government’s amendments have been welcomed. Almost all of my amendments in this group have fallen away, but I seek reassurance from the Minister that the authorisation process will include inspection of the proposals and conditions as set down in the care and support plan. This is because the necessary and proportionate test can be understood only in the context of the way that the care will be provided and how it will meet the wishes and feelings, as well as important information gleaned from the consultation process. The helpful diagram that was attached to the Minister’s letter of 15 November shows the factors, but I am unclear how they will be contextualised for the authorising body without the authorising body having access to a copy of the care and support plan. It is for that reason that I decided to speak to this group of amendments. I hope the Minister will be able to give me reassurance. This is about the process whereby the authorising body will know that it has accurate information that will affect the day-to-day care of the person. I beg to move.

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[Baroness Finlay of Llandaff]

I am most grateful to the Minister for that clear reassurance. I reiterate our gratitude that the Government decided to change the role of the care home manager, making most of the amendments in this group redundant. Therefore, I beg leave to withdraw the amendment.

Amendment 33 withdrawn.

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Moved by

[Baroness Finlay of Llandaff]

35: Schedule 1, page 10, line 32, at end insert—
“12A The responsible body may not authorise arrangements if an Approved Mental Capacity Professional has concluded that the arrangements should not be authorised.”

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[Baroness Finlay of Llandaff]

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

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

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

[Baroness Barker]

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

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

[Lord O'Shaughnessy]

I am grateful to the noble Baronesses for tabling these important amendments. It is critical to get right the role of approved mental capacity professionals and when they should review cases under the liberty protection safeguards system. AMCPs will be a vital part of the system. They will be qualified, knowledgeable and experienced professionals. It is intended that they will act independently, both of the care provider and the responsible body, and that they will make a determination on proposed arrangements after meeting the person and reviewing relevant information.

Amendment 35, tabled by the noble Baroness, Lady Finlay, explicitly prevents the responsible body overriding a determination of the AMCP. The responsible body is responsible for approving the authorisation, but an AMCP is required to complete the pre-authorisation review if it is reasonable to believe that the person objects to the arrangements. The AMCP can also conduct the pre-authorisation review in other cases. Where an AMCP conducts the pre-authorisation review they will determine whether the authorisation conditions are met.

The critical issue here is the consequences of the AMCP determining that the authorisation conditions have not been met. We are absolutely clear that the responsible body should follow the AMCP’s determination, and indeed any responsible body that did not do so would be taking on a significant legal risk. The responsible body might believe that it has a good reason to disagree with the AMCP’s assessment, but in that case the proper course of action would be to discuss this with the AMCP. If the responsible body then tried to override the AMCP’s decision, we would expect the AMCP to raise concerns—first, with the responsible body itself. If the local authority is the responsible body, the concern can be escalated to the Local Government Ombudsman, and if a CCG is the responsible body, it can be escalated to the regional director of commissioning in NHS England. Concerns regarding NHS organisations and independent hospitals can also be raised directly with the CQC in England or Health Inspectorate Wales. Therefore, I hope that noble Lords are reassured that mechanisms are in place to stop any unjustified behaviour on behalf of responsible bodies.

Amendment 77, tabled by the noble Baronesses, Lady Barker, Lady Finlay and Lady Jolly, makes explicit that a pre-authorisation review must also be conducted by an approved mental capacity professional if relatives or those with a genuine relationship to the person object to the arrangements, if there is restriction on contact, if the care home manager or responsible body considers the case to be exceptional, or if the arrangements are for mental disorder or the arrangements include covert medication.

The Government agree that families and carers play an important role in liberty protection safeguards. As the people who know the cared-for person best, they will often know what the person’s wishes and feelings are and whether they do, or would, object to what is being proposed. The Bill already states that a pre-authorisation review must be completed by an AMCP if there is a reasonable belief that a person objects to residing in or receiving care and treatment at a particular place. We are clear that an objection raised by someone with an interest in the cared-for person’s welfare can also give rise to a reasonable belief that the person objects, and this will be confirmed and clarified in the code.

We all agree that deprivation of liberty is a serious matter, especially when accompanied by measures such as high levels of restriction, covert medication and restrictions on contact. Such measures should be put in place only following a best-interests meeting and in some cases will require a court application. This is confirmed in the current MCA code of practice and will continue to be a key aspect of the new code.

I agree that in some circumstances such cases should be considered by an approved mental capacity professional. The Bill expressly allows for a pre-authorisation review to be completed by an AMCP in other cases, as is clear from paragraph 19(1). However, although the Bill is clear about how the lodging of an objection will lead to a review by an AMCP, I have heard clearly from noble Lords and stakeholders that there is a concern about referring appropriate cases to an AMCP. I hope that noble Lords will be glad to hear that I have been persuaded that we need to clarify on the face of the Bill that other cases can be referred to an AMCP.

In the previous day on Report, I stated that we would revisit, in the Commons, the issue of referral to AMCPs, specifically regarding those in independent hospitals. I can now confirm we will be looking at this issue more widely, including the specific concerns raised in the debate and in the amendment, as part of our considerations for government amendments in the other place. I look forward to working with all noble Lords to make sure that we get this right.

I turn briefly to Amendment 46 in the names of the noble Baronesses, Lady Thornton and Lady Barker. The amendment would mean that in care home cases the statement to the responsible body must indicate whether any person interested in the person’s welfare is satisfied that the person does or does not object. I understand that the intention here is to create a mechanism for those with an interest to be able to raise objections. I have already said that the Bill specifies that the statement must reflect any consultation that has been completed with those with an interest in the cared-for person’s welfare, and our later amendments will also make it explicit that that includes the person themselves under the “duty to consult” government amendments. The IMCA and the appropriate person will also have a role in reflecting these concerns.

To conclude this group of amendments, Amendment 104 states that a review is triggered if a person with an interest in the cared-for person’s welfare has raised concerns. As I said, that will be the case. Amendment 109 would change the Bill to reflect the effects of Amendments 34 and 104.

I hope that in answering points raised on these important issues, I have been able to give two kinds of reassurance. The first is that the process of triggering a review will be clearly set out. The Bill as it stands, as well as amendments that we are making, will mean that anybody with an interest in a person’s welfare will be able to trigger a review and that will lead to a consideration by an AMCP. Secondly, in the rare cases where there is a dispute between an AMCP and a responsible body, there will be avenues to escalate such a disagreement to mediation and resolution.

Furthermore, we are determined to get the role of the AMCP right. We think it is necessary to go beyond specifying that those in independent hospitals can see an AMCP and to think of other cases as well, and we are intending to bring forward amendments at the Commons stages of the Bill. I hope that that provides the reassurance that the noble Baronesses are looking for and that the noble Baroness, Lady Finlay, will be prepared to withdraw her amendment.

[Baroness Finlay of Llandaff]

I think I can speak on behalf of all noble Baronesses who had their names on these amendments. We are most grateful to the Government for listening and find all that the Minister said in his speech in response to this group of amendments reassuring and positive. We look forward to working with the Government as these new criteria evolve. I beg leave to withdraw the amendment.

Amendment 35 withdrawn.

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[Baroness Barker]

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

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

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

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

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

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

[Baroness Finlay of Llandaff]

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

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

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

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[Lord O’Shaughnessy]

My Lords, before introducing these amendments, I thank the noble Baroness, Lady Barker, for accepting my explanation on the previous group. I am conscious that we need to explain this in more detail, but I am grateful to all noble Lords and to the noble Baroness, Lady Thornton, for not pushing this point. This is something that we can clarify to get to a better system.

The amendments in this group are clearly central to the Bill, because they are all about putting the cared-for person at the centre of the new liberty protection safeguards. Noble Lords have been at pains to highlight a concern that the cared-for person is not listed explicitly as a person to consult. That has clearly always been our intention, but it is nevertheless quite right that that should be explicit in the Bill.

Amendment 71 clarifies that the cared-for person must be consulted as part of the consultation under new paragraph 17. Amendment 63 sets out that the person’s wishes and feelings must be considered as part of the determination that the arrangements are necessary and proportionate. Amendments 110 and 111 update other parts of the Bill to reflect the new explicit consultation requirement and to make some other minor drafting changes.

The consultation required by the Bill is important in establishing the cared-for person’s wishes and feelings, and identifying objections to the arrangements. It is also an important way of involving the person and their families in the process, and making sure that the liberty protection safeguards authorisation is something that happens not just to them, but with them. It has always been our position that the person should be consulted, but it is quite right that we set this out explicitly. Through these amendments we have also been explicit that the person’s wishes and feelings must be considered as part of the necessary and proportionate determination.

Briefly, Amendment 68, tabled by the noble Baronesses, Lady Finlay and Lady Jolly, would also ensure that this point is considered. I hope they will feel that the Government’s amendments have dealt with their issues and that they will feel happy not to press their amendments.

[Baroness Finlay of Llandaff]

I am looking to the noble Baroness, Lady Jolly, because I am sure she will agree with me. I am grateful and happily give way to the government amendment, which does what we wanted to do. We will not do anything with our amendment. I thank the Minister for his clarifications.

[Lord O’Shaughnessy]

I thank the noble Baroness for her agreement. I beg to move.

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Moved by

[Baroness Finlay of Llandaff]

76: Schedule 1, page 13, line 15, at end insert “, or
(c) there is dispute between the responsible body and the registered health or social care professional who has carried out the review under paragraph 20.”

[Baroness Finlay of Llandaff]

My Lords, I declare an interest. Some years ago I was involved in helping the police prosecute people who were responsible for care but who were delivering terrible abuse in what was then termed an EMI home. A care assistant, encouraged and supported by her friend who worked on the domestic side, thought, “This wouldn’t be good enough for one of my relatives”. As we explored the cases, families in their statements commented on all they had noticed but said they did not feel able to raise concerns, let alone complain. They feared that their relative in the home would be victimised if they said anything or raised any questions. It was case records that revealed repetitive patterns of entry that gave the clues to support the statements that relatives gave to the police and provided evidence against those abusing these people, which led to a successful prosecution. The Minister has already said that the triggers for an AMCP review will be expanded. We look forward to working with him and officials on this. That should cover Amendment 76 when there is a dispute. Amendment 74 has, of course, fallen through pre-emption.

I shall focus on Amendment 76A, because it supports the whistleblower and ensures an independent review. Without that, we will fail those who need protection and leave whistleblowers with no option other than to stay silent and say nothing—or, if they can pluck up the courage, go to the CQC or the police, with all the disruption, expense and risk of losing their job that that involves. It would also mean a delay in alerting when things are not as they should be. The other amendments in this group concern other ways of triggering a professional expert review. I know that we have legislation designed to protect whistleblowers, but for domestics—cleaning and kitchen staff—and care assistants, who are often those who spend most face-to-face time with people, who need the job and may not be able to find alternative employment where they live, it takes enormous courage to say that things are not right. Sadly, it is more courage than many people can pluck up.

A Guardian report, published on Friday, cites examples of “terrible indignity and neglect” in for-profit care homes across the country. Whistleblowers have risked their jobs and livelihoods to report cases of,

“inappropriate and disproportionate use of physical restraint”,

on residents with autism, and carers failing to manage medicine safely. In this article, Eileen Chubb, founder of Compassion in Care—a charity that campaigns on behalf of whistleblowers for better levels of care—was quoted as saying:

“We have seen first hand the appalling consequences of poor care … company after company making millions whilst on the frontline vulnerable people are left without the basics to sustain life”.


Carers who break the silence surrounding abuse, such as the whistleblowers at the home cited, deserve protection.

Even if a care home is a good home and receives a good rating from a CQC inspection, relatives may visit only intermittently and may not be aware that the care that they think is being given to their relative just is not happening for them. They will not be aware of the minute-to-minute, hour-to-hour aspect of a person’s care. It is the staff there for hours on end who can benchmark that care. They may realise that the person has become increasingly withdrawn and increasingly less communicative, and perhaps cries at night and seems very unhappy. The staff must confidently be able to ask for a review without prejudice.

This amendment will play an important role in giving protection both for residents and for those who call for a review. It calls for a review because it is far less threatening for somebody who has a concern to be able to ask for an independent review from an AMCP who can come in and assess what is going on—they do not feel that they need the body of evidence to make an accusation of malpractice. That is why this should be in the Bill, even if all the other ways of triggering a review are consigned to the code of practice. I feel quite strongly that when staff feel that something is not right and want to say so but their seniors are not recognising it, they must have the ability to protect the cared-for person, because the cared-for person is so vulnerable. I beg to move.

[Baroness Thornton]

My Lords, right from the beginning of this Bill—at Second Reading and in Committee—concerns have been expressed across the House about how the interests of the cared-for person can be ensured through the process of using the AMCP when that person is at their most vulnerable and may not be articulate at all. The noble Baroness, Lady Finlay, articulated exactly what we are saying. Amendment 76A, in my name and those of the noble Baroness, Lady Barker, and the right reverend Prelate the Bishop of Oxford, is an essential fail-safe that we believe needs to be in the Bill.

Like the Minister, we have sought across the House to prioritise the issues that we thought were most important for the cared-for person. I think we have come through rather well in improving this Bill together, and mostly without having to resort to Divisions. I hope that the Minister will accept Amendment 76A, because it is certainly in line with the aspirations that he has expressed to the House about safeguarding the cared-for person. If he is not prepared to do that, certainly on these Benches we hope that the noble Baroness, Lady Finlay, will seek the opinion and support of the House, because it is certainly there.

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[Baroness Finlay of Llandaff]

I am most grateful to the Minister for realising the seriousness of this issue and that our current whistleblowing policies are inadequate. I do not share his concern about vexatious reporting because if you got such reporting from a staff member, it would be pretty obvious pretty quickly. The review would have happened and if one person is better protected, it is far safer than many people being inadequately protected. I accept that my drafting—I am grateful to the Public Bill Office—may not be perfect and because the Minister will come back to this at Third Reading, we will have a meeting and then be able to bring back an amendment.

[Baroness Thornton]

May I seek clarification from the Minister? He said that he would come back to Amendment 76A. Is this about Amendment 76 or Amendment 76A?

[Lord O'Shaughnessy]

It is Amendment 76A.

[Baroness Finlay of Llandaff]

I am grateful to the noble Baroness, Lady Thornton, for clarifying on the record that we are talking about Amendment 76A. With the caveat that the meeting will include all of us who have been involved in and feel so concerned about this matter, I will withdraw the amendment, knowing that we will bring something back at Third Reading in this House and not leave it to the code of practice or the Commons. I beg leave to withdraw the amendment.

Amendment 76 withdrawn.

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[Baroness Finlay of Llandaff]

My Lords, I support the amendment. I would like to put an illustrative example before the House, although I know this is Report so I will be very brief. I heard recently about someone who had sustained a head injury, living in a place where he received care, who got very aggressive whenever people suggested that he should attend to his own personal hygiene or tidy up. Any type of reasoning or persuasion completely failed. The solution was not to restrict what he did at all but rather just to walk in, put a vacuum cleaner in the room and go out again. He seemed to then go into an automatic mode of vacuuming, cleaning up, tidying up and then washing, and everything was sorted, including his personal hygiene.

I mention that because it is important for us to realise, when we are thinking of restrictive options, that sometimes you need to be imaginative to find the least restrictive option for people. Letting people out a certain amount can be far more effective than being so risk-averse that you limit what they can do.

[Baroness Thornton]

Yet again, the noble Baroness, Lady Finlay, brings us a helpful example. I put my name to the amendment and we support it. It is part of a suite of amendments about keeping the cared-for person as far as possible empowered to make their own decisions, which must be intrinsic to the Bill. The amendment would ensure that the least restrictive method is always used.

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[Lord O'Shaughnessy]

I am grateful to the noble Baroness for moving the amendment. Obviously, it is worth having an opportunity to restate that we clearly agree with her that it is necessary that anybody with an interest in a cared-for person’s welfare is able to trigger a reasonable request or, indeed, an objection on their behalf that constitutes a reasonable belief. That is something that we have discussed in terms of people who are supportive, such as family members, appropriate persons, IMCAs, and so on. Clearly, we have agreed to talk further about the role of whistleblowers and staff members.

I can reassure the noble Baroness that what she is asking for is already contained in numerous places in the Bill. The amendment deals specifically with paragraph 31(3)(b) of Schedule AA1. It is implicit in the description,

“person with an interest in the arrangements”,

that that includes people who have an interest in the cared-for person’s welfare. That is the purpose of the Bill. As I have made clear, any objection from someone who has an interest in the person’s welfare constitutes a reasonable belief, as set out elsewhere in the Bill. I am grateful for the opportunity to return to this issue and hope that I have reassured the noble Baroness that this is absolutely included in the definition.

[Baroness Finlay of Llandaff]

Before the Minister sits down, will he confirm that “interests” does not include the interests of the care home manager, where it may be a cheaper option, and that the interests of the cared-for person are definitely at the centre of the clause as written? I want to be absolutely sure that it cannot be misinterpreted in the future to mean “interests” in a much broader sense than the interests of the cared-for person.

[Lord O'Shaughnessy]

That is a very valid question. We have tried to deal with the conflict issues in other amendments. It is absolutely not the intention that that ought to be misused for the purpose referred to by the noble Baroness. I will need to get specific clarification about the implications of this, but I can reassure her that that is not the intention of it. If it needs to be clarified in a letter to noble Lords and, subsequently, in a code of practice then that is what we will do.