Mental Capacity (Amendment) Bill [HL]

Baroness Finlay of Llandaff Excerpts

Tuesday 26th February 2019 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, I take this opportunity to welcome the Minister to her new role. I am very much looking forward to working with her, and thank her for meeting me yesterday.

I was pleased that the Government listened to the concerns that many of us raised when this Bill was on Report, and that they agreed to introduce a statutory definition in the Bill. They subsequently brought forward a new clause in the other place, introducing what some have termed an exclusionary definition of deprivation of liberty.

I believe that there are serious problems with the government definition. My overriding concern is that as it currently stands, the government amendment defines only when a person is not being deprived of their liberty. A definition based on someone not having their liberty restricted does not, in my view, allow for a clear assessment of whether a cared-for person is currently being deprived of their liberty. The whole of the definition is couched in the negative, and splattered with double negatives, which I consider very difficult to understand.

I also have concerns over Clause 1(4) in the government definition, which I believe is unnecessary. When it is in someone’s best interest to receive emergency or routine medical care, there is already a clear consent procedure—even when that patient lacks capacity. As currently worded, it is discriminatory between physical and mental illnesses. I have taken much advice, and I am grateful to people in the sector—charities, lawyers, human rights groups, academics and others—who have offered invaluable expertise in this very complicated issue. I note that some leading academics have described the Government definition as too complicated, unclear and out of step with Article 5 of the ECHR, and therefore likely to lead to costly litigation. I accept that my last two points run contrary to what the Minister has said, but this demonstrates what a highly complex, contested and difficult-to-interpret area this is. Nothing is that clear-cut.

What is needed is a definition which is simple, easy to understand and provides practitioners, and above all, families and cared-for people, with a clear understanding of where they stand. The purpose of any definition is to provide absolute clarity to practitioners. Perhaps more importantly, it should tell cared-for people and their families when they are deprived of their liberties and thus have certain rights which they can call upon. It is, frankly, of little use if people cannot use it to make such a determination, and my conclusion at the moment is that the definition does not serve that purpose.

We need a definition which, as well as being simple and easy to understand, allows guidance and information to be developed for families and practitioners that will allow them to make a real-world determination of whether the care arrangements they are putting in place when their loved ones lack capacity amount to a deprivation of liberty.

The definition that best captured the recommendations from the Cheshire West case of the noble and learned Baroness, Lady Hale is that the person concerned is under continuous supervision and control and is not free to leave. I believe that the wording in Amendment 1B meets these vital tests. My definition of what constitutes a deprivation on liberty is based on the principles outlined in the noble and learned Baroness’s judgment in the Cheshire West case. I believe that it would allow practitioners and family members to clearly test their individual circumstances against that definition.

This is complex and I think many of us have found it difficult to get our head round it, but it is so important that the definition is compliant with Article 5 of the ECHR. The definition that I have put forward meets that test. It may not be perfect but it provides a basis for moving forwards. I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, I commend the noble Baroness, Lady Tyler, for the amount of work that she has put into her amendment, along with others of us who have worked on it. I do not want to take a lot of time repeating what she has already said in explaining it. However, I would like to pick up on some criticisms made by the Minister and question them.

The Minister spoke critically about the concept of “valid consent” yet, as far as I have understood, consent must always have three pillars to it: the person must have capacity to make that decision; they must have accurate information on which to make a decision; and it must be made voluntarily and free of coercion. With those three pillars in place for all types of consent, I was slightly confused by the Minister’s suggestion that this could somehow apply if people did not have capacity to provide consent. The other area where I was confused when she spoke relates to the Government’s own amendment, where we have a double negative. Amendment 1 says:

“A person is not deprived of liberty in a particular place if … the person is not subject to continuous supervision”.


However, the amendment tabled by the noble Baroness, Lady Tyler, has turned the two negatives into a positive as while a person would be “subject to continuous supervision”, she has added the very important words “and control”.

A lot of people who are supervised one way or another are free to do what they want, but there is a safety barrier around them. They are not being controlled in the way that they behave; it is simply that to protect them from dangers to which they may be subject, there is a degree of supervision. That is called good care of another citizen, and we all do it all the time in relation to each other if we see someone about to get into a situation which is dangerous, whether or not they have mental capacity. The difference in this situation is that if somebody is deprived of their liberty, something is being taken away from them and controlled by another person. The amendment from the noble Baroness, Lady Tyler, has captured that difference between a duty-of-care supervision and that control.

I know that there are difficulties in defining a negligible period of time but I note the concept, in the Government’s own amendment, of whether somebody is free to leave a place permanently. How long would we determine “permanently” to be? Is it days, weeks, months or years when, again, it is a concept but is not defined specifically? With those questions, I am concerned that the Government’s criticism of the noble Baroness’s amendment does not stack up equally with the criticisms that have come from many quarters over the Government’s amendment, which is indeed quite difficult to understand, particularly because of the double negatives in it.

I draw the House’s attention to the fact that, if I am correct, the Law Commission’s original report did not include a recommendation of a definition. Perhaps what we see here is that it is incredibly difficult to come up with a definition that applies across the enormous range of circumstances that people who lack capacity may find themselves in. I am concerned that the Government’s amendment is intended, in the words of the Minister, to be able to respond to evolving case law. I suggest that that is a recognition that there will be legal challenges to the Government’s own definition, just as much as to any other, and I am unsure how that will be avoided by anything in the Bill. I will therefore strongly support the amendment in the name of the noble Baroness, Lady Tyler.

--- Later in debate ---

[Baroness Meacher (CB)]

I shall speak very briefly. I welcome very much Amendments 13 and 22 in particular in relation to independent hospitals. In Committee, a number of us raised that issue and were very concerned that independent hospitals, which are often hundreds of miles away from a person’s home, could act as the responsible body and make crucial decisions where perhaps they have a commercial interest in keeping that person on their premises.

With the permission of the current Minister, I will applaud the noble Lord, Lord O’Shaughnessy, because I feel I know that he played a key role in making sure that these amendments found their way into the Bill. The stipulation that the local authority shall be the responsible body is important. Although I understand what the noble Baroness, Lady Thornton, is saying, it seems to be a huge step forward to take the responsible body away from the independent hospital. I would like to feel that local authorities—the professionals dealing with the assessment of such cases—would have a real interest in making sure that those people returned home, if at all possible, as soon as possible. That is what all this should be about.

The other matter I will raise briefly is that of people in domestic settings, where deprivation of liberty is at stake. At our recent meeting with the Bill team we were assured that such cases would be dealt with under this new piece of legislation in the course of the normal care planning process, rather than requiring a reference to the Court of Protection. When an elderly person is caring for a demented husband or wife, the last thing they need is some bureaucratic requirement. This seemed very important, and I was delighted when the Bill team gave us an assurance that this, too, was being dealt with.

There is nothing in the Commons amendments on this, but I wonder whether the Minister could give the House an assurance that it will indeed be the case that people in domestic settings will be dealt with within the local authority planning process, and will not require a reference to the Court of Protection.

[Baroness Finlay of Llandaff]

My Lords, I apologise—I should have declared my interest as chair of the National Mental Capacity Forum at the beginning of the previous debate. Like others, I thank the noble Lord, Lord O’Shaughnessy, for having made sure that the Bill is now in much better shape than it was when it came to us.

I am very grateful to the Minister for confirming that the whistleblowing amendments are there, and in fact are, if I have understood correctly, stronger than when they left this House. I have a couple of questions for her, though. One relates to the group of people who can become approved mental-capacity professionals. I was concerned that she did not include speech and language therapists in her list. People who have communication difficulties can be extremely difficult to assess. Those with a brain injury affecting the speech area can be very difficult indeed to assess because they may also have frontal-lobe disorders, as the noble Baroness herself well understands.

I know that the regulations will be brought forward, and I hope that the Minister will be able to consider additional training—not part of general undergraduate training but additional, postgraduate training for speech and language therapists to be able to develop a full set of competencies and undergo the same training as other people. I think that, without it, we will end up with duplication of assessments and duplication of costs.

My other question relates to portability. I hope that the Minister can confirm that the portability concept, which was so welcomed in the liberty protection safeguards, remains and will be applicable so that people can move between different settings without needing a reassessment. Obviously, emergency medical treatment can arise at any time with anybody, and that is covered separately for someone who lacks capacity and must be treated: that would come under a best-interest decision-taking process anyway.

My last query relates to the determination conditions and the assessment. I have a slight concern on reading the amendments that the assessments seem to be separated from the determination. If I heard the Minister correctly, she said that the care-home managers would not be making either the assessments or the determinations. We had a lot of concern over care-home managers and conflicts of role in previous debates, and I would be grateful if she would confirm that this is my correct understanding, and that we have not had a way whereby the care-home manager can undertake the assessment, and then somebody else, based on that assessment, will make a determination, because the validity of the assessment will determine the validity of the later determination.

Those are my queries in relation to this, and the determination and assessment question relates in particular to Amendments 28 to 38, to which the Minister has already spoken.

[Baroness Barker (LD)]

My Lords, I will make three quick points. One is to thank the Minister for the way in which she set out the ways in which the Government listened to the debates at an earlier stage in this House. We had deep misgivings about the lack of attention that we have been able to pay to independent hospitals. I am very glad that the reassurance that they will no longer be the responsible bodies has been given by the Government in another place.

Anybody who has followed our deliberations in great detail, as some people have, will know that we have had to spend an awful lot of time during the passage of this legislation focusing on care-home managers and the inappropriate responsibilities that they were given in the initial draft of the Bill. I am not entirely convinced that in relation to independent hospitals or local authorities we have entirely separated responsibility for assessment, responsibility for determination of what constitutes a care package and deprivation of liberty, and responsibility for the financing of those care packages. If the Bill had started off in a better shape, perhaps we would have been able to spend much more time on that, as we should have done. Therefore, it is important that at this stage we take on board the points made in Amendment 41A tabled by the noble Baroness, Lady Thornton, and make sure that we have not left a conflict of interest anywhere in the Bill.