Breast Scans

Baroness Finlay of Llandaff Excerpts

Monday 19th November 2018 Lords Chamber

[Lord O'Shaughnessy]

The noble Baroness is of course right. It is precisely because of interference with the image that the trial was discontinued and the evidence not collated. Such cushions are used for women across the country who are particularly sensitive or after surgery, but I have asked the committee to consider whether there are ways in which they can be used more systematically to relieve discomfort without interfering with the crucial image that needs to be captured.

[Baroness Finlay of Llandaff (CB)]

My Lords, will the Minister undertake to ask Sir Mike Richards to look at the need for large paddles for ladies who have large breasts and who may currently need to have two separate images taken on the same side, with the two images then put together, which does not always give a good picture? Not all breast screening services can supply larger paddles to have larger films.

[Lord O'Shaughnessy]

I am more than happy to do so. If the review is not the correct forum for consideration of such an issue, I will refer it to the advisory committee instead.

Health: Stroke

Baroness Finlay of Llandaff Excerpts

Wednesday 14th November 2018 Lords Chamber

[Lord O'Shaughnessy]

I understand the noble Baroness’s frustration about the gap between the strategy and the plan but it was right to include the work undertaken on the stroke plan within a long-term plan, because clearly that covers every aspect of how the NHS is working. In the meantime, I point out to her that the NHS RightCare programme for cardiovascular disease has been set up. It is aimed specifically at dealing with some of the variation in service that she talked about. But there is good news in stroke care: not only is there less incidence than 10 years ago but 30-day mortality rates have more than halved, so there is progress which we need to build on.

If the noble Baroness and the House will allow me, I would like to use this opportunity to pay tribute to my noble friend Lord Skelmersdale, who died very recently. He was a predecessor in this role and a great champion of stroke care, both as a Minister and as chair of the Stroke Association for 10 years. I am sure that everyone in the House would offer their sincere condolences to his family and friends.

[Baroness Finlay of Llandaff (CB)]

My Lords, will the Government outline the plans to roll out thrombectomy, which is sucking out the blood clot and is done under remote X-ray control? It has massively improved outcomes, even on thrombolysis, which tries to dissolve the clot. Such services need to be available across the UK on a 24/7 basis because stroke does not respect the clock or the calendar.

[Lord O’Shaughnessy]

The noble Baroness is absolutely right. In 2017, NHS England announced a rollout of the mechanical thrombectomy procedure to 24 centres across England. It is expected that 10% of stroke patients will be eligible. It leads to big reductions in disability after stroke, is now approved by NICE, and will be a significant part of the long-term plan which we will publish by the end of the year.

Mental Capacity (Amendment) Bill [HL]

Baroness Finlay of Llandaff Excerpts

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Baroness Murphy (CB)]

My Lords, I am the world’s greatest pragmatist in this matter. I am very sympathetic to what the noble Baronesses, Lady Barker and Lady Tyler, are saying. This Bill is by no means perfect. It has huge gaps and we would not have started from here, but the reality is that this Bill will be with us for the rest of the autumn and I believe that Sir Simon Wessely’s report will be submitted to the Government around 12 December, so it is likely to come before Third Reading and before we finish the Bill. We will be able to see if there are great big gaps. I do not think the two things will overlap very much. We might be helped out, particularly on amendments on advanced directives, and in that context we can perhaps make ourselves closer to what Sir Simon Wessely recommends, but I do not think there is anything to address, except that the current Bill is not working. We have all those people waiting for an assessment who will never be assessed. We need some legislation in place. There is some urgency. I know we would like a perfect Bill, but we are not going to get one. What we need is an implementable Bill which makes assessments doable for people who need them and so that we can get some process in place. The Bill is not perfect. We would not start from here, but we have this Bill and we should continue with it.

[Baroness Finlay of Llandaff (CB)]

I shall continue on the theme that my noble friend Lady Murphy has set out. Last week, I chaired the National Mental Capacity Forum leadership group. One of the people there said that:

“While there was an initial knee-jerk reaction amongst care providers and the local council, if you consider the”.


liberty protection safeguards,

“in more detail you quickly come to understand that it is actually quite an innovative solution”,

because there is such a backlog and so much difficulty in trying to get anything in place.

I am concerned that we are trying to draw clear lines between different types of illnesses and conditions when it is pretty impossible to do so. There are mental health conditions that impair your capacity, even though you may be compliant with treatment, there are physical illnesses that result in impaired capacity, and there are illnesses—Lewy body dementia is one of them—where part of the illness means that you may be a risk to other people. Huntington’s disease is similar and a horrible disease to have. Trying to draw clear lines between those different groups is difficult.

I looked at the amendment and for a definition of “fluctuate” and “short”. I tried to think how I would define “fluctuate” or “short” in a clinical context, and I could not because “short” might be short to some people and long to others and fluctuation can be all kinds of directions and with different degrees of severity. The difficulty we are grappling with here is that we are trying to write something in legislation that will be literally black and white: black words on a white page. The people we are dealing with are incredibly individual and have very different needs. That is why, returning to our previous debate, the stress on wishes and feelings and on consulting people who know the person becomes incredibly important. We will go on to talk about ways that people can call for external scrutiny because, if they care about the person, they need to be able to do that.

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[Baroness Thornton]

The amendment would reduce the maximum time for which an individual can be held in detention without renewal from three years back to 12 months. The Bill would allow responsible bodies to renew an authorisation of deprivation of liberty in some cases for up to three years, while simultaneously reducing the safeguards that a renewal process would require. The amendment would shorten that three-year period to a maximum of 12 months.

Why is that important? Tripling the potential length of an authorisation period to three years creates a stark difference between the Mental Capacity Act and the Mental Health Act, apart from anything else, and moves away from best practice in other countries. Paired with the new LPS renewal process, which weakens safeguards designed to prevent lengthy detentions, a three-year authorisation will be likely to face legal challenge.

At its core, the new LPS system is intended to safeguard vulnerable people who have been deprived of their liberty on mental capacity grounds. The possibility of a three-year period of detention with limited safeguards gets the balance wrong between safeguarding vulnerable individuals and the desire to reduce the bureaucracy of the system.

Strasbourg case law confirms that a lawful deprivation of liberty for the purposes of Article 5(1)(e) of the ECHR must include both “limits in terms of time” and “continuing clinical assessment of the persistence of a disorder warranting detention”. Therefore, in order to comply with Article 5, any system must contain, first, a provision for the termination of the authorisation after the maximum time has expired and, secondly, an ability to terminate an authorisation before the time limit has expired if the deprivation of liberty is no longer necessary.

A three-year renewal limit is likely to pose problems for responsible bodies, especially in cases concerning conditions such as learning disabilities, acquired brain injuries and other non-degenerative mental impairments. The courts are likely to intervene to interpret those paragraphs concerning renewals—paragraphs 27(a)(ii), 28(b)(ii) and 29(1)(b)—as narrowly as possible. Capacity assessments are time specific, and a three year-old capacity assessment cannot be relied on as accurate evidence for detention. Therefore, we propose to reduce the three years to 12 months.

It is notable that a 2017 paper comparing mental health legislation in five different jurisdictions—Canada, Australia, Scotland, the Republic of Ireland and England and Wales—states that renewal orders vary in different jurisdictions,

“with the time periods for subsequent orders being longer in duration up to a maximum of 12 months, except in Ontario (3 months) and Victoria (6 months)”.

The Law Commission states that a three-year period should be considered only in the context of robust safeguards and constant review. Given the weakening of the safeguards throughout the rest of the Bill, it would be inappropriate to triple the length of time for which an authorisation can last.

In his opening remarks on the Bill, the Minister stated:

“It is essential that the system afford the necessary protections for the most vulnerable people”.—[Official Report, 16/7/18; col. 1061.]

The Bill as currently drafted would in this respect not deliver that protection. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, I have three amendments in the group designed to remove any ambiguity about authorisations, in that an authorisation would fall if it partly fell—in other words, if the person’s condition had either improved or changed to such an extent that the plan in place was no longer applicable, even in part, that would warrant a complete review. I accept that it would have to be a light-touch revision, because some things might not have changed, but I am not comfortable with simply allowing it to be reviewed and people to say that these parts of the condition no longer apply.

Amendment 58C is to stress the need for evidence to be supplied to support statements. I hope that the Minister will be able to provide me with some assurance. That evidence might come from photographs, video recordings of behaviour or whatever. That may be quite different to the written word. I worry that one person’s observed written word may not adequately portray a picture, particularly where the cared-for person has become withdrawn. Someone might interpret that as their being compliant, when actually they may be deeply unhappy. A broader direct recording of the person could be helpful.

I tabled Amendment 62A because I was concerned that the care home manager might be in the process of arranging for adaptations to be made to meet the cared-for person’s needs in line with that person’s wishes and feelings, and that the Bill’s wording does not provide enough flexibility to consider the arrangements to meet the individual’s needs.

[Lord O'Shaughnessy]

I thank the noble Baronesses for tabling their amendments about renewals. I deal first with Amendment 58A, moved by the noble Baroness, Lady Thornton, which, as she said, would have the effect of meaning that authorisations cannot be renewed for longer than 12 months. As she pointed out, this would go against the Law Commission’s recommendation, which was that there could be circumstances under which renewals took place for up to three years, particularly following an initial review after up to 12 months and if it was unlikely that there would be a change in the person’s condition.

These three-year renewals are in place so that those who are in a stable condition and unlikely to recover are not subjected to annual assessments. The Bill does provide the safeguard—referred to by the noble Baroness—which ensures that an authorisation would need to be reviewed if there is a change. We would also want to make sure that there are appropriate reviews of arrangements when annual reviews under the Care Act take place. It would be up to the responsible body to set review periods. In care home settings, the care home manager must report to the responsible body on any reviews that have been carried out. As the Bill stands, there are significant safeguards to prevent abuse or lack of care of the vulnerable person.

All that being said, I know how strongly noble Lords and stakeholders feel about this issue. The noble Baroness, Lady Thornton, made a valid point about aligning the review process with the terms set out under the Care Act. I would like to give further thought to this, particularly in the context of the discussions which will be taking place about the proper role of the care home manager. There is clear concern about a proper system of oversight and regular review where responsibility has been devolved to the care home manager. If the noble Baroness will allow me, I will follow that up after this debate.

Amendment 58B, tabled by the noble Baroness, Lady Finlay, considers an authorisation ceasing to be renewed if it has lapsed wholly or in part. We will want to give further consideration to that. As discussed earlier in Committee, there are circumstances under which one might be happy for an authorisation to continue after a very minor change. That might be the proper process to align this to, and I want to give further thought to this.

Amendment 58C asks that, when deciding whether to renew authorisations in care home cases, responsible bodies should consider other relevant information, as well as that provided by the care home manager. I can confirm that the Bill does allow responsible bodies to consider information other than that provided by the care home manager. That would, inevitably, be in other formats too. We will set out more detail on that in the code of practice.

Amendment 62A would add the word “arranging” to the scenarios in which the care home manager was required to notify the responsible body that an IMCA should be appointed. The amendment intends to make sure that that happens at the earliest stage, including when the assessments are being arranged. That is what the word “proposing” in the Bill achieves. We are satisfied that the language currently in the Bill means that care home managers would be looking at this issue when they are beginning to propose an authorisation, which is the earliest point at which planning for, arranging or bringing together the assessments would take place. I would be happy to demonstrate what underpins our belief that this is the case. I do understand what the noble Baroness is driving at; it is something which we are trying to achieve.

On that basis, I hope that the noble Baronesses are willing to withdraw or not move their amendments.

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Moved by

[Baroness Finlay of Llandaff]

61: Schedule 1, page 17, line 23, at end insert—
“(c) for a named person to be in charge of training and revalidation of Approved Mental Capacity Professionals,(d) for honorary contracts with neighbouring local authorities and health bodies as required.”

[Baroness Finlay of Llandaff]

My Lords, I do not want to detain the Committee by revisiting too much of our debate on day 2, when the Minister stated that the local authority would decide for itself how to organise and manage how AMCPs will operate. My concern is that they must be trained to a uniformly high standard. Such training should include assessment in all the key domains of responsibility. They should be registered as an AMCP and subject to revalidation over time. These people will, potentially, hold an enormous amount of power over somebody who is vulnerable.

I am also concerned that, unless those professional standards are in place, we will have a problem with quality control. In the event of a concern being raised about an AMCP, it is important that they are formally registered with the local authority. I also raise the question of how they will be indemnified and who will be responsible for their appraisal and supervision. They must have honorary contracts with adjacent local authorities to enable them to act, because some local authorities have relatively confined geographical areas. Given that these should be professionals, they should be listed with their professional body as having specialised training and skills. Another reason for this is my worry that, if they are going to function in hospitals, and unless they have a formal honorary contract from the local authority and are registered, we may end up with a two-tier system between local authorities and hospitals. I am not sure how that is going to work.

Amendment 61A seeks to expand the range of people who can train to become an AMCP. I declare an interest as president of the Chartered Society of Physiotherapy; I was at its annual conference at the weekend. I did not add physiotherapists to the list when I wrote the amendment, because I had not had a chance to consult them. However, it was evident, from many inspirational presentations, that physiotherapists working in head injury, acute trauma and stroke units, and in mental health services, can often be key to rehabilitation and restore people dramatically to a degree of independence that others had not envisaged. They felt very strongly that they did not want to be excluded; they have a lot to offer and are keen to train up, which seems very sensible.

I have also come across a few—not many—doctors who have retired from their main clinical practice but remain on the medical register, still work in some capacity or another, and, in later life, have developed an interest in people with impaired capacity. They have years of experience behind them, particularly in old-age psychiatry and so on, and would like to train as an AMCP. The criteria on which to select people should be their motivation, personal skills and background experience. We should not judge them by their original clinical degree qualification, because that is arbitrary. It does not mean that just because you are a nurse, a clinical psychologist or a social worker you would be perfectly fitted to this role; nor does it follow that because you are a speech and language therapist or a physiotherapist or whatever, you would not be suitable to take on this role and these responsibilities.

I therefore hope that the Minister might be able to expand a little, or perhaps not even discuss it here but think again, on how we will ensure that the people who carry this responsibility are trained to a uniformly high standard, are properly indemnified, can be identified, are able to function properly and can be held to account for the way in which they take decisions and advise. I beg to move.

[Baroness Jolly (LD)]

I would like to add a few more points on training. An awful lot of people in an awful lot of new roles will require training to get whatever system that we are going to end up with up and running at pace. Which organisation will be responsible for setting up the programmes for ensuring the delivery of good-quality training? Who has the responsibility to ensure that nothing is implemented until all the appropriate professionals have received their training? There is nothing worse than determining a date to fire the gun if you discover that all the people who are going to run the system are not yet trained. Can the Minister confirm that all this will start with plenty of time before the rollout of this new system? We expect that training should be effective and ongoing. Who will assess the trainers? What is the process for ensuring quality and a national standard? We may well be able to twist something that currently exists and make it work, but I do not have that knowledge. Can he also confirm that, as part of this training, the rights of the individual will be reinforced? Will the training clarify the role that each of these professionals within this new system is going to have in ensuring that an individual’s rights are observed and respected?

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[Baroness Finlay of Llandaff]

My Lords, I learned some years ago not to have lists in the Bill, and I have fallen over my own list on this amendment. I am most grateful to the Minister for the reassurances that he has given. A lot of work will need to be done so that we make sure that training is there for the right people at the right time, but for now I beg leave to withdraw the amendment.

Amendment 61 withdrawn.

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Moved by

[Baroness Finlay of Llandaff]

63: Schedule 1, page 18, line 18, leave out “the manager is of the opinion” and insert “there is reason to believe”

[Baroness Finlay of Llandaff]

My Lords, in this group of amendments we begin to get into the issue of IMCAs and how that whole system will operate. In Amendment 63 I use the words,

“there is reason to believe”,

because I feel strongly that anyone who is concerned about the cared-for person—whether they are family, a friend who knows them well, a care assistant in the care home, if they are in a care home, or somebody who is coming into wherever they are being cared for, such as supported living—must be able to raise them independently, if necessary anonymously, and to request that an IMCA is appointed to go and see what is happening.

In Amendment 64 I removed the word “only” because I was attempting to remove the veto from a care home manager. The potential veto of a care home manager has caused so much concern in debate, and a great deal of anxiety in the briefings that have come through to us. I stress that advocacy—we will come on to that overall—needs careful monitoring, too, and people who act as advocates need support and supervision. Not just anybody can be an advocate, and we have to be careful that we do not exclude family and those who know a person well by having an advocate come in when in fact a family member who has known them for years may be in a much better position.

Also, we have to have a way of screening out advocates who, for whatever reason, may not be the right people to do this at the time. Unfortunately, it is inevitable and part of human nature that people will want to work in a field if they have had some experience of being on the receiving end. But certainly, when you look at bereavement counsellors and so on, they need to have a clear period before they are selected, and they need to be carefully selected and screened, and supervised. We are talking about extremely vulnerable people here, and the last thing we want to do is somehow to open the door to them being vulnerable at somebody else’s hands through our best intentions. I beg to move.

[Baroness Barker]

My Lords, this is again a rather fundamental indicator of some of the things that are badly wrong with the Bill. The words “best interests” appear in it three times, and twice they are used in relation to a care home manager being able to restrict access to advocacy. As the Bill stands, referral to advocacy is controlled by a relevant person, either the responsible body or the care home manager, and an advocate must be appointed if a person has capacity and requests an advocate—that is quite rare, and I have to say that under the Bill it would be something of a miracle, because they do not have the right to information about not only their current circumstances but about other less restrictive options. The Minister’s statements on information last week, when he referred to GDPR, were so strange that it has taken me a considerable time to work out that he had completely misunderstood that under the current system people have a right to information. They have the right not to request information but to be provided with information, which this amending Bill severely restricts.

However, the second condition is by far the most worrying. Somebody can request an advocate if the person lacks capacity and the relevant person is,

“satisfied that being represented and supported by an IMCA would be in the … person’s best interests”.

I invite noble Lords to think what would have happened if those words had been in law during Winterbourne View. That is why I am quite happy to use the word “shocking” about the Bill, as this is unacceptable. My amendments would try to get rid of the abuse of the term “best interests” to limit vulnerable people’s access to support. The Minister knows that under the DoLS system, by and large, if somebody requests an advocate, it is up to the relevant body to try to do their best to find one, or that they find an appropriate person. I refer to the point made by the noble Baroness, Lady Finlay, that under case law at the moment, local authorities have the right to override if an appropriate person is not doing their job properly on behalf of the person. That too will be undermined by the Bill.

The Minister will also know that if somebody has no relatives and nobody else in the world—they are “undefended”, to use that rather archaic but useful and clear term—they have an automatic right to advocacy. I know that much will be made of advocacy being expensive, advocates being a resource that is not readily available, and that people who do not need advocacy will be unnecessarily interviewed. I am quite happy to talk at length to the Government about ways in which advocates or advocacy resources could be better used and better targeted—but absolutely not by drawing it like this, putting this sort of hurdle not even in a code of practice but in a Bill.

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[Lord O'Shaughnessy]

I am happy to discuss the issue with all noble Lords, as I have said in the past. I return to where I started: the intention of this approach is to make sure that independent advocacy is not imposed on someone who genuinely does not want it. It is not to provide a “get out of jail free” card for poor care home managers. If that is a concern, I take it very seriously, but it is not the intention of the Bill. However, if it is the case, something needs to be remedied. Let me assure noble Lords that I will make best efforts to do so as we move forward from Committee.

This has been a very useful discussion. In some sense it has provided a degree of continuity from our discussion last week, while moving on to the issue of advocacy, which we will clearly explore further. I hope that, with the reassurances I have given at this stage, the noble Baroness will feel able to withdraw her amendment.

[Baroness Finlay of Llandaff]

My Lords, this debate has been extremely interesting and, in many ways, gets to the nub of some of our concerns. In looking at the Bill, one thing I have tried to do is to benchmark its procedures to see how they would work. I was involved in prosecuting appalling care in EMI homes. I am trying to see how we could have discovered sooner that there were problems there.

I share the concern about the care home manager having too much power. Having said that, I have found the Minister’s answers today reassuring, as they were on the second day in Committee. I suggest, however, that the number of objectors will be very few, because many of these people have such impaired capacity and are not in a position to object—it may be other people who speak up on their behalf.

[Baroness Barker]

I wonder whether the noble Baroness, Lady Finlay, agrees that, when you watch well-trained advocates at work, you see that they absolutely understand if their presence is upsetting somebody. They are not routinely attempting to force themselves on to people who definitely do not need their help. The question of whether somebody wants their help or not is a more nuanced professional judgment.

[Baroness Finlay of Llandaff]

I agree with the noble Baroness that when they work well, they can work extremely well. As I said earlier, I would also caution against the family and other people being potentially pushed aside, and people being not adequately supervised or monitored.

We have a great deal to consider outside the Chamber tonight. I am grateful to the Minister for being in listening mode so far. This group of amendments and the next are the ones that we will need to have a big discussion about. In the meantime, I beg leave to withdraw the amendment.

Amendment 63 withdrawn.

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Moved by

[Baroness Finlay of Llandaff]

65: Schedule 1, page 18, line 33, at end insert “or a person concerned with the welfare of the cared-for person has requested independent support for the cared-for person”

[Baroness Finlay of Llandaff]

My Lords, I feel that I should apologise for leading on this group of amendments, but it was by chance that my number came up. It was not my choice: I did not ask to lead on it.

The role of Amendment 65, which is the one that I really want to speak to, is to state clearly that we must strengthen the voice of anyone who has any concerns so that they can speak up on behalf of the cared-for person. I note that my noble friend Lady Hollins’s Amendment 66 provides powers to the voice of the responsible body and would mean that the responsible body must listen to representations. Amendment 67 strengthens the word “must”. There is a great deal in these amendments. I will not take the time of the Committee by speaking to other noble Lords’ amendments, other than to say that this group of amendments contains a great deal of rich wisdom. I beg to move.

[Baroness Hollins (CB)]

My Lords, this group of amendments concerns the appointment of an advocate, or appropriate person, to support the cared-for person in exercising their rights. The appointment of an independent mental capacity advocate and the identification of an appropriate person rely on care home managers being able to arrange a capacity assessment and a best-interests decision and on them notifying the responsible body. I noted the Minister’s assurance on our last day in Committee that care home managers will not be making an assessment themselves. But how will errors be identified and what will happen if the care home manager gets it wrong? Will the Minister tell the Committee how that will be detected on the basis of a paper-based review by the local authority when the paper has been supplied by the care home manager? The responsible body should not rely simply on what the care home manager thinks.

My Amendment 66 gives the local authority discretion to appoint an appropriate person or IMCA without notification from a care home, with whom there may be a conflict of interest, if the responsible body has reason to believe that such representation and support is needed for the cared-for person. Reasons to believe might include notification by an AMCP or a third party, or local authority social services involved in care planning.

The provision of advocacy can have a transformative effect and be the first time that the cared-for person’s views, and those of their family, are forcefully represented to decision makers. A failure to listen to people or to give weight or credence to what they say lies at the heart of many of the tragedies that have shamed social care and health services over recent decades. For that reason, it is vital for people to get the support that they need to express their views and exercise their rights, either through the appointment of an appropriate individual, often a family member, or an independent mental capacity advocate.

As they stand, Clauses 36 and 37 of the Bill are confusing and poorly drafted, with inconsistencies. For example, the Bill states:

“An IMCA should be appointed if the cared-for person … has capacity to consent to being represented and supported by an IMCA, and … makes a request to the relevant person”—


but IMCAs are instructed to support and represent only people who lack capacity. My Amendments 67, 69, 70, 73, and 74 add emphasis and aim to address these inconsistences and ensure that every cared-for person has access to support from either an appropriate person or an IMCA who is both willing and able to help them understand and exercise rights of challenge.

As it is drafted, the Bill leaves open the possibility of circumstances where a person may have neither an IMCA nor an appropriate person and therefore no means of being able to exercise their rights under Article 5(4) of the European Charter of Human Rights. Rulings such as the AJ v A Local Authority judgment, in paragraph 35, stipulate:

“Article 5(4) may not be complied with where access to a court is dependent on the exercise of discretion by a third party, rather than an automatic entitlement … Where a person lacks the capacity to instruct lawyers directly, the safeguards required may include empowering or even requiring some other person to act on that person’s behalf”.


My amendments therefore remove best interests from the criteria for appointment of a representative, as this should play no role in determining whether people are able to exercise their rights of challenge. Will the Minister explain the basis on which he believes that Part 5 of the Bill as drafted is fully compliant with this ruling and with ECHR Article 5?

I am also concerned about the potential conflict of interest if those responsible for arranging and providing care, such as care home managers, also act as gatekeepers to the person’s ability to exercise their right of appeal through best-interest assessments. There should be a clear route for the cared-for person to be able to appeal and to get the support that they need to do this. We know that access to justice is already a serious problem under the current system. The appeal rate is below 1% and cases such as that of Steven Neary and others show how hard it is for families and detained people to challenge public bodies where they object to the arrangements. I understand that the Government estimate that the new arrangements will reduce the appeal rate even further to 0.5%.

My Amendments 76 and 77 recognise the considerable responsibilities being placed on an appropriate person. In some circumstances, an appropriate person such as a family member who knows the person may well be best placed to assist the cared-for person, but may need some assistance. Making sure that an IMCA is involved in these cases would enable them to fulfil this role with support.

Nothing in the Bill details the functions that the IMCA will perform. It would help the Committee if we understood why this has not been addressed. The Law Commission’s draft Bill provided powers to strengthen regulation provision—Section 36 of the Mental Capacity Act—around how an IMCA is to discharge the functions of representing or supporting, including challenging decisions and facilitating a person’s involvement in relevant decisions. The experience of DoLS over the last nine years has shown us the need for clarity on when the representative—an IMCA or lay person—can or needs to challenge the authorisation.

My Amendment 79 recognises this and reinserts regulation-making powers into the Bill, extending it in the case of an IMCA appointed under the LPS to make provision as to how that advocate is to support the cared-for person, and where relevant the appropriate person, in exercising the right both to make an application to court and to request a review. This provision is necessary to secure a person’s rights under Article 5(4).

The Bill recognises that the role that the appropriate person undertakes provides a vital safeguard for the cared-for person for the purposes of Article 5 of the ECHR, but the Bill fails to place a duty on the responsible body to keep under review whether the appropriate person is undertaking their functions. This is an important safeguard under the DoLS, where the relevant person’s representative role—essentially an identical role to the appropriate person—has a duty to maintain contact with the cared-for person. My Amendment 80 places a duty on the responsible body to keep under review whether the appropriate person is undertaking their functions and, if they can no longer fulfil them, to appoint another appropriate person or IMCA at that point.

The Minister has given reassurances, a number of times, that issues within the Bill will be addressed through the code of practice. The requirement to act needs to be in the Bill. How it is done and implemented could be set out in the code of practice. I hope that the Minister will accept that these amendments address serious and fundamental issues that need to be resolved within the Bill.

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I hope, on that basis, that the noble Lord, Lord Touhig, will recognise that the Government intend to work together to make this Bill better. I think we are making some progress in that endeavour, and I am looking forward to working with him and all noble Lords to improve it further. On that basis, I hope that noble Lords will feel able not to press their amendments.

[Baroness Finlay of Llandaff]

My Lords, this has been a fascinating debate. I listened very carefully to the speech of my noble friend Lady Hollins. Her experience shone through, and there was much wisdom in her comments. I worry that perhaps in this and the previous group of amendments we have not adequately focused on the need to support the cared-for person as much as possible in making their own decisions and in supporting them. I can envisage a situation where the appropriate person has limitations for whatever reason and it would seem very sensible that they were then able to request an IMCA be appointed.

However, just on the other side of it, we must not forget the enormous burden out there already. Only last week I spoke with a brain injury case manager, Dr Mark Holloway, who works with a care home. He said he is currently managing 13 cases of clients with acquired brain injury who are awaiting DoLS approval from the local authority. Despite the efforts of the care home staff and their solicitors, they have not been able to get this through. We must not lose sight of the fact that the current system is, quite frankly, completely failing. He was saying that they have worked very hard to make sure that it is the least restrictive option, but he is concerned at the lack of scrutiny of their decision-making. In their efforts to acquire DoLS authorisations, the care home staff have sought and paid for expert legal advice on multiple occasions to support them constructing clear and evidenced capacity assessments. He stresses the difficulty of assessing capacity in acquired brain injury and the need to assess function: not just what is said but how the person is actually functioning—what is done and the complexity of it.

I hope that we will return to the issues behind this set of amendments, because in a way I do not feel that we have done justice to the subject tonight. It does need a bit more discussion outside this Chamber. I beg leave to withdraw my amendment.

Amendment 65 withdrawn.

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[Baroness Murphy]

My Lords, Amendment 84, in the name of the noble Baroness, Lady Thornton, is possibly one of the most important amendments we have tabled to the Bill. It has become so much more important over the last 20 or 30 years to try to encourage people to make decisions in advance about what should happen to them and to encourage them to think about what will happen in the event of things going wrong—to think about things such as lasting powers of attorney and advance decisions on mental health services. I understand that Sir Simon Wessely will recommend some changes that are very similar to this to go into the new mental health legislation. It would be good, bearing in mind our previous discussions, if we could feel confident that the same sort of approach was being taken in this Bill.

Advance decision-making in legislation has proved quite difficult to implement, because you have to have a widespread campaign of understanding how people can make these decisions. It also has to have the individual making the decision accept that things will happen to them that they are not expecting, which is sometimes very difficult. That is why it so difficult to get people to sign up to insurance against long-term care; they simply do not believe that it will ever happen to them. It is very difficult to get these bits of legislation implemented and widespread, but we have to start somewhere. This is such an important piece to try to get into a Bill, to start people thinking about their future and what is acceptable. This would be a very important thing for the Bill.

I would also like to see Amendment 85 implemented. It is something that the Law Commission had in originally. I am not quite sure why it came out. It sort of just disappeared in the transcription somewhere. It is an important safeguard. We tend to forget all those Victorian cases a couple of hundred years ago when people were quite regularly held in circumstances against their wishes and unlawfully deprived of their liberty. It is as well to be reminded that it can, and probably does, still happen quite frequently. To have something on the statute book would be helpful, so I support the two amendments.

[Baroness Finlay of Llandaff]

My Lords, I am afraid I will take a different view. Amendment 84 is potentially incredibly dangerous in the context of the Bill. I can understand why people with a mental health disorder who know exactly what is likely to happen to them when they relapse and know what treatment they do and do not want can make an informed decision based on their previous experience of their illness and episodes. Here, however, we are asking people to provide advance consent to their liberty being deprived in a situation that they do not know about and have not experienced. The evidence from advance care planning—I have a recent paper from Ontario—showed that people’s knowledge was very poor. There were decision conflicts and when they were re-interviewed later they had re-evaluated their decisions in the light of further information and as things had moved forwards.

The problem is that the cared-for person’s experience of care is based on human interaction. They cannot predict who will be the carer at some point in the future, nor how that interpersonal chemistry will work. I am concerned that there is a real danger that someone could be locked in to having to live with what they said previously. There is a lot of evidence from the world of care planning that people do change their preferences. Indeed, as an illness progresses, they may change them very radically.

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[Baroness Finlay of Llandaff]

I do not want to prolong this too much but I will ask the noble Baroness: has she in any way lost confidence in the proposal that she put forward when the Mental Capacity Act was a Bill before us? It was for an advance statement of wishes, which has, when properly used, been a very powerful tool to make sure that somebody is listened to. My concern has been that our discussion to date has been about the wishes and feelings of the person as previously expressed. From the way she was talking, I am concerned that it sounds as if she might have lost confidence in the ability of that—because, as I have said, I have a real concern that tying somebody legally to enforcing something which was said in advance could potentially be really dangerous.

[Baroness Barker]

No, I have not lost confidence in that; I simply wish to undertake further discussion, given that—I say it again—it looks entirely likely that mental health legislation may be changing. I think, in light of that, that it is a wise discussion to have.

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[Baroness Thornton]

Amendment 83 concerns the power of attorney and restrictions on it. This amendment comes from Clause 3 of the Law Commission’s draft Bill. I said right from the outset that in Committee we would test the Bill against those issues that the Law Commission had decided to put into the draft Bill and ask why they had been dropped. Many of them are absolutely at the heart of the safeguards that are necessary for vulnerable and cared-for people. The amendment would insert a new section into the Mental Capacity Act, which expressly prevents,

“a donee of a lasting power of attorney or a deputy”,

appointed by the Court of Protection from consenting on a person’s behalf,

“to arrangements which give rise to a deprivation of … liberty”.

This is the position in the current law but this statement makes it explicit. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, I have three amendments in this group, which are there simply because the topic is lasting power of attorney. I do not have an argument with Amendment 83 at all. It is absolutely right that the person’s best interests must be considered and that someone cannot just give consent on their behalf.

The amendments that I have tabled are designed to solve three current problems that we have with lasting powers of attorney. The first, Amendment 83ZA, relates to the identity documentation that somebody must produce to show that they are the donee of a lasting power of attorney. These are bulky papers which have to be registered and stamped by the Office of the Public Guardian, and then produced. For many people who are donees, those papers may be at their home; that may be a long way away from wherever the cared-for person—the donor—is. When that donor has lost capacity, the donee can either carry the sheaf of papers around with them all the time or just hope to be going via their home filing cabinet to pick them up before they go to see the person.

I hope that we might move toward something a bit more modern in electronic identification—something like the driving licence, which is a small card on which you can have a registration number. You could also have a picture of the donor as well as one of the donee, which would allow a second layer of recognition. That would also, I hope, focus the mind on the fact that the donor must be at the centre of all the decision-making. Its validity could easily be checked against a number, so that if it had been updated—and for some reason the previous form had not been returned—a simple check with the Office of the Public Guardian might verify its status.

Amendment 87G is designed to solve another problem that has been arising: that a person may appoint several people to hold their lasting power of attorney in the event that they lose capacity. However, as time goes on it has happened that they lose confidence in one of those people, for whatever reason. Maybe there is a dispute in the family or they feel that the person is no longer able to take a decision in their best interest, for whatever reason, and they want to revoke having that person as a donee. The problem is that it is quite a complicated process and they have to go back to square one. This amendment is designed to make it much easier for them to state that they no longer want one person listed but they want the others to remain. I have discussed this with the Public Guardian, who sees it as a problem at the moment that the revocation of a donee is difficult.

Amendment 87E arises out of a problem which is also beginning to occur. I should declare an interest here because it is a problem that is close to my heart: a member of my family has severely impaired capacity and her spouse, who is the only person who can act on her behalf, is becoming older. There is concern about what happens if he cannot act on her behalf and take decisions. At the moment, it is only when the donee loses capacity that others can go to the Court of Protection for a court-appointed deputy. The aim of this amendment is to allow the donee to make some provision so that, in the event of their losing capacity—either temporarily if they have a fall with a fracture, a head injury or have pneumonia, or permanently so they become frail and possibly demented—they can make provision ahead of time in the cold light of day. The alternative is the family, with one family member who lacks capacity and the person who was taking care of their affairs now acutely ill and in crisis, having to go to the Court of Protection to get a court-appointed deputy, which can take some time.

I have discussed this with the Court of Protection, which wants to be helpful in moving things forward, and with Alan Eccles, the Public Guardian, who is extremely sympathetic to the problem and can see that people who took out a lasting power of attorney, or prior to that an enduring power of attorney, and never expected to live as long as they have could now find that the donee is at greater risk of becoming frail than they anticipated. Donors are outliving their prognosis not just by months, but by years and possibly decades.

[Baroness Watkins of Tavistock (CB)]

It strikes me that Amendment 87E would apply not only to this Bill but to other Acts. Does it fit here? I understand the principle of what my noble friend is saying.

[Baroness Finlay of Llandaff]

It could have wide-reaching consequences, but a lot of people who have lost capacity and are in a state of high dependency are already in nursing homes, so they are already being cared for in the system and may be subject to deprivation of liberty. Some of them have long-term continuing funding for their care, but they have been there for a long time and the donee, who is managing all their affairs and advocating on their behalf, is very concerned about their welfare in the event of them failing.

[Lord O’Shaughnessy]

I am grateful to the noble Baronesses and the noble Lord, Lord Hunt, for tabling amendments in this group. I am very aware of the complexity of this issue. For a lay person such as me, some of the terminology can be confusing. I will do my level best to be as clear as humanly possible, but if I fail in that endeavour I will write to noble Lords and explain better what I am attempting to explain now.

The effect of Amendment 83, as the noble Baroness, Lady Thornton, said, would be to confirm in law that a donee of a lasting power of attorney or a deputy appointed by the Court of Protection was unable to consent on a person’s behalf to a deprivation of liberty. If they could provide such consent, the person would not be considered to be deprived of their liberty and no safeguards would need to be provided.

The Law Commission report stated that it was already the position in law that a donee or deputy could not consent to a deprivation of liberty. We confirmed in our response to the Law Commission’s report that the Government agreed with its view on the current legal position, and the Bill does not change the current situation. While the Bill creates a duty to consult with any donee of the lasting power of attorney or a deputy, it does not enable a donee or deputy to consent to the deprivation of liberty on behalf of the cared-for person. In other words, under this Bill the cared-for person would still be deprived of their liberty in those circumstances and would still need to be provided with safeguards to satisfy Article 5, which is of course the whole purpose of DoLS and liberty protection safeguards. In that sense the amendment, with which we agree, would serve only to duplicate existing legislation and is not necessary. I hope I have provided an adequate explanation to noble Lords, but obviously I am willing to set out in more detail exactly why we believe the current situation is not changed by the Bill as it stands.

I turn to the amendments in the name of the noble Baroness, Lady Finlay. Amendment 83ZA would require the Office of the Public Guardian to provide documentation, which may be in electronic form, to identify the donor and donee or donees of a lasting power of attorney and to recall the documentation if the donee’s power is revoked. As the noble Baroness pointed out, this is designed to make it easier for attorneys to provide proof of the existence of a registered LPA. It is right that there ought to be a robust system of proving that there is a valid power. My understanding is that the Ministry of Justice and the Office of the Public Guardian are actively considering how to offer a digital means of providing evidence of a valid LPA, and we expect to bring forward proposals in due course. I am happy to pursue that further with colleagues in that department and that office to understand greater details of their plans and to share those with noble Lords if they are forthcoming, which I hope that they will be.

Amendment 87E, in the name of the noble Baroness, Lady Finlay, would allow the donee of a lasting power of attorney to nominate someone to replace them if they were no longer able to fulfil their duties—I think that means if the lasting power of attorney was no longer able to fulfil their duties—while Amendment 87G would allow a replacement attorney to be nominated by the donor at the time of registering the LPA to take over the power if the donor decides to remove the power from the donee.

I do not need to reiterate to noble Lords just how critical it is to get the law and the rules in this area right; as the noble Baroness, Lady Watkins, pointed out, the rules around this would not apply only to this Bill. It is worth pointing out that there is provision in the original Mental Capacity Act to allow a person making a lasting power of attorney to nominate a replacement in the event that their attorney is unable to continue, but I think the point that the noble Baroness, Lady Finlay, was getting at is that there is a slight chicken and egg situation here: at the point where they no longer have capacity but the person whom they have previously appointed is no longer able to fulfil their role or the cared-for person no longer wants them to do so, they cannot go back in a time machine and appoint someone else—in other words, they cannot know what they do not know. I have just made things really clear by getting all Donald Rumsfeld about it all.

Having said all that, I want to consider if there is a way of unlocking that paradox, but clearly the implications of that would go well beyond the remit of what we are discussing here. I do not want to make any promises that it is not in my power to keep. I would appreciate the opportunity to explore this further so that we can consider how to give the donor more opportunities to have a sense of choice and agency as they think ahead to the future. I would have thought that we must be able to provide for that without creating extra complications. I look forward to taking that up with the noble Baroness and other noble Lords who are interested in the topic. On that basis, I hope the noble Baroness will feel able to withdraw her amendment.

Mental Capacity (Amendment) Bill [HL]

Baroness Finlay of Llandaff Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 15th October 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I have Amendments 47 and 50 in this group. They are concerned with the point at which court proceedings are triggered. It is appropriate that there is an ability to appeal, but it is also important that courts are not inundated and that disputes are resolved outside court as much as possible. Going to court should be the last port of call, but it should be accessible and should occur only when other interventions such as mediation have failed.

Sadly, sometimes cases need to go to court, which is why I have worded an amendment to allow the AMCP to consider going to court as part of their role. However, the AMCP must also be able to verify information and meet independently with the primary source—that is, the cared-ford person. That might mean setting up a meeting well away from other people who have previously been involved so that they can form their own view on whether there are other avenues that might be pursued before resorting to the court.

[Baroness Hollins (CB)]

I have added my name to Amendment 49 in the name of the noble Baroness, Lady Barker. My concern is that a failure to meet the person directly might lead to a desk-based review, which would not enable the necessary scrutiny of the appropriateness of the care arrangements.

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Moved by

[Baroness Finlay of Llandaff]

32: Schedule 1, page 12, line 19, leave out “Consultation” and insert “Duty to ascertain wishes and feelings of the cared-for person
(A1) The main purpose of the consultation required under this paragraph is to try to ascertain the cared-for person’s wishes or feelings in relation to the arrangements and the likely impact of the arrangements on the cared-for person’s wellbeing.”

[Baroness Finlay of Llandaff]

My Lords, this group of amendments takes us to the heart of the duty to ascertain the wishes and feelings of the cared-for person. For that reason, I am most grateful to the noble Lord, Lord Hunt of Kings Heath, for adding his name to my amendment, which would rename this part of the Bill, changing a consultation to a duty, and move up this paragraph from lower down:

“The main purpose of the consultation required under this paragraph is to try to ascertain the cared-for person’s wishes or feelings”.


That must be paramount. If we do not make arrangements that fit with and respect the known wishes and feelings of a person—or we make arrangements that cut across the feelings of others and cannot justify them very carefully—we will have failed completely in what we are trying to do. We should be empowering people to live as they want to live as much as possible while accepting that we need some restrictions in place.

That is why this group of amendments would also move the cared-for person to the top of the list of people to be consulted and make it clear that the professional responsible for the care plan needs to undertake the consultation. That will then inform what is happening and how the care is to be organised on a day-to-day basis and in the longer term, as well as ascertain whether the restrictions that may be put in place are necessary and proportionate in the light of knowing the cared-for person’s wishes and feelings.

It is important to remember that people do not object only actively. They may signal objection by becoming more withdrawn or less active. They may start eating less or there may be changes in toileting and so on—all of which can signal that someone is unhappy. All these changes should be considered in thinking about whether somebody is objecting in the broadest sense to whatever has been provided for them. They may well signal that their wishes and feelings are not being adequately respected. I beg to move.

[Baroness Hollins]

My Lords, I welcome the amendment tabled by the noble Baroness, Lady Finlay, which seeks to ensure the wishes and feelings of the person are at the heart of decision-making. My Amendment 33 follows this principle by adding the cared-for person to the list of people with whom the assessor is required to engage before arrangements can be authorised.

Self-advocacy groups and charities supporting people with learning disabilities and their families have shared their concerns that the Bill does not require sufficient regard to be paid to their views in particular. I will quote some views expressed by Learning Disability England, a membership organisation:

“Disabled people and their families are especially worried that there is no requirement to consider the person’s own wishes. That is how the institutions were … We do not want to go back to the days of the institutions … There is a risk that we take away people’s independence and give power to people that may not be doing a good job”.


Consulting with people who lack capacity can be challenging and requires quite advanced communication skills. It is crucial that we get this right as the consequences are significant and lead to other improvements or deteriorations in people’s health and independence. I declare an interest here as chair of the Books Beyond Words community interest company, which develops resources and pictures to help doctors, nurses, care staff and others to communicate more effectively with people with learning disabilities and others who find pictures easier than words and to support decisions which, at their outset, appear too difficult or challenging.

Amendment 35 is designed to oblige those carrying out the assessment to explore less restrictive alternatives thoroughly. This would need to take into account the cared-for person’s family and others who know them well and have an interest in their welfare, who are likely to have important information and expertise to share about the person’s needs and what good support, which maximises their freedom, might look like.

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[Baroness Stedman-Scott]

I thank all noble Lords for their important contributions to these amendments. I agree completely with the noble Baroness, Lady Finlay, about the importance of ascertaining the cared-for person’s wishes and feelings when consulting as part of the liberty protection safeguards processes. Sometimes it is more important to listen to what is not said or expressed over and above that which is said. Watching people’s behaviour and demeanour can tell us a lot about how they are feeling. The noble Baroness, Lady Watkins, gave us a good example of somebody who lost their parents and was terribly distraught about it, although what was causing him most angst was being able to see his sister only for short periods because of the distance travelled. We must make sure, in taking through this Bill, that we do everything we can to read those signs and that people are empowered to make the best decisions.

On care home managers completing the consultation and how we ensure that alternatives are considered, I can say to the noble Lord, Lord Hunt, that a wide range of people are consulted. Previous consultations conducted by professionals often relied on things that were not meaningful or in the best interest of the individual. We want the least restrictive as a principle—a requirement of Article 5 in case law—that must be considered and will be set out in the code of practice. The code of practice will be very important.

I say to the noble Baroness, Lady Barker, that the care home manager would consider whether a decision was appropriate and the decision would be reviewed by the responsible body. Any family member, IMCA or appropriate person could challenge a decision not to consult the cared-for person. The Government are committed to making sure that the consultation around the cared-for individual is at the heart of everything. We must move heaven and earth to make sure that we understand exactly what they want and that the consultation is respectful in every way.

The Bill already outlines that the main purpose of the consultation is to ascertain the cared-for person’s wishes and feelings. This is to ensure that the liberty protection safeguards are consistent with the focus of the rest of the Mental Capacity Act, which places the wishes and feelings of the person, even if they lack capacity, at the heart of the process.

The noble Baroness is also right to highlight the importance of considering the impact of the arrangements on the person’s well-being. Similarly, we are also clear that we expect the impact of the arrangements on the person to be addressed when undertaking consultation. However, the purpose of the consultation would be to consider the impact from the person’s point of view. This is crucial to how the Mental Capacity Act works.

The concept of well-being is not mentioned in the Mental Capacity Act. It is a legal concept which has particular meaning under the Care Act and the Social Services and Well-being (Wales) Act. We are concerned that it would cause confusion if this concept were inserted into the liberty protection safeguards.

However, the liberty protection safeguards will be in place to support living and will be positive for a person’s well-being. The accompanying code of practice will outline how the model works within wider care provision, including the Care Act, which has duties in relation to promoting well-being.

The amendment in the name of the noble Baronesses, Lady Hollins and Lady Finlay, explicitly requires that the cared-for person be consulted. Noble Lords raised this issue on our previous day in Committee and I know that there is enthusiasm for this proposal, as it is felt that it will more clearly place the person at the centre of the determination of their wishes and feelings.

The Government have also heard very clearly that noble Lords felt that the person themselves must be consulted. Again, I agree. If we are to secure the improvements that we want, it is essential that the person and their voice, wishes and feelings about any proposed arrangements are placed at the heart of this model. We will make sure that the Bill reflects this. I am grateful for the expert views of noble Lords in helping to improve the Bill to put this beyond doubt.

I agree with the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt, that it is important for those deciding whether an authorisation for deprivation of liberty should be given to consider whether any less restrictive options are available. Considering less restrictive alternatives is also an important aspect of the wider Mental Capacity Act. For example, the fifth principle of the Act requires decision-makers to have regard to less restrictive options. Nothing in the Bill changes this. The code of practice will set out how the liberty protection safeguards will work within the wider framework of the Mental Capacity Act and the care landscapes more widely.

Respectfully, therefore, I maintain that there is no need to add the words suggested by the amendments because they already form an integral part of the assessment process. We have made clear that the main purpose of the consultation duty is to ascertain the person’s wishes and feelings in relation to the authorisation, and this can include the person’s views about acceptable levels of restrictions.

For example, a person might wish to receive care in a care home where they have freedom to spend time in the community rather than in a care home where there is less freedom to do this. This might be because the conditions are less restrictive. This is an essential part of the liberty protection safeguards and is delivered through the assessment process. The noble Lord, Lord Touhig, made a very valid point when he asked whether we would want this for us. We must make sure that we treat people and respect them in the way we would like to be treated and respected ourselves.

I hope I have been able to provide a satisfactory explanation, but if there are outstanding concerns, I am happy to discuss them further. I trust that the noble Baroness will be able to withdraw her amendment.

[Baroness Finlay of Llandaff]

My Lords, I must admit that during the Minister’s very positive response, my hopes were up that she was going to accept the amendment and the change of title of this paragraph in the new Schedule. The reason I say that is that words matter: they set the tone. It would be very useful to be able to discuss this further so that we might take out the word “Consultation”, which has connotations of medical consultations and other things, and that we might state on the face of the Bill as a heading that there is a, “Duty to ascertain the wishes and feelings of the cared-for person”.

The noble Baroness, Lady Hollins, reminded us of the importance of wishes and feelings and that we should not slip back in time to old-fashioned, awful institutional care. The well-being Act in Wales was behind some of the wording as well, and the reason for moving that part of the Bill higher up.

The noble Baroness, Lady Barker, asked some very valid questions. Best-interest decision-making should be a process, not a one-off, and for that process to happen, it is very important that the person is consulted because their previously expressed wishes and feelings might no longer be their wishes and feelings now that they are in a different situation, but they might need help expressing those wishes and feelings as they are now. That process should also include their beliefs and values, some of which they might still hold on to and some of which they might have abandoned over time. There are other factors that the person might be likely to consider if they were able to consider them: their current views and past views might be expressed by others who know them well and care about them.

I hope that we can pursue the discussion further, but, at the moment, although I will withdraw the amendment, I would like to reserve the right to come back to this on Report, because unless we get wishes and feelings up there, in bold type as a heading, we might well find that, inadvertently, we fail the very people for whom we are arguing. I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

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[Baroness Thornton]

My Lords—

[Baroness Finlay of Llandaff]

My Lords—

[Baroness Thornton]

You go ahead of me.

[Baroness Finlay of Llandaff]

I beg your pardon; I have an amendment in this group as well. Oh dear, I seem to have spattered them in every group.

I have a real concern that triggering a review that is based on whether or not the person is thought to be objecting is far too narrow, and that anyone who has concerns about that person should be able to trigger a review independently—whether that is family, friends or somebody working in the place where the cared-for person is supposed to be being cared for.

I have an interest, or at least an experience, to declare: some years ago I was asked to help the police look at a care home where they had serious and justified concerns. The alert had come from somebody working at an extremely junior grade within the care home, not from anybody senior or from a professional. Following that, I was asked to review the case notes in detail. The people concerned all had severely impaired capacity and, often, an inability to express themselves—but, by meticulously looking at the case notes, one could see trends, and when I mapped them against the staff off-duty rota the trends became clearer.

I am very concerned that, if we leave this just as it is written, we will not allow the very people who have contact, possibly on a day-to-day basis, to put up a red flag about what may be happening in one person’s life. It may be that nine out of 10 people in an institution are very happy, but if one of them is not and one member of staff has got to know them and sees subtle changes in their behaviour, that member of staff must be empowered, with the cover of anonymity, to trigger an independent review, because that may be the only way to protect the cared-for person.

I put in my amendment that a review should be triggered if,

“the rationale … is based on the risk to others”.

The concept of “risk to others” is quite difficult to justify being in this Bill rather than in the Mental Health Act as the sole rationale for using the Bill, so I think that it becomes an exceptional circumstance that warrants that type of review. Similarly, if the restrictions are on contact with named persons, I worry that there could be a bias from the staff towards the named person. When somebody is very upset, they may appear to be an aggressive or angry visiting relative and may be a bit more difficult to handle—but actually it may be that that is simply the way that they are expressing their anxiety and their emotions towards the person who is now deteriorating and want to do their best for them. I worry about excluding a close relative without great justification; it should not be undertaken lightly.

[Baroness Barker]

When the Minister responds, will she confirm the point made to us by a number of stakeholders that harm to others, rather than harm to self, which is the basis of decision-making in best interests, is included in the Bill—because it is not explicitly ruled out and it was in the Law Commission’s proposals. If that is the case, that is a very significant change. The number of people included may well differ solely for that reason.

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Moved by

[Baroness Finlay of Llandaff]

50B: Schedule 1, page 13, line 42, at end insert—
“(aa) any arrangements that are not authorised or are authorised subject to conditions,”

[Baroness Finlay of Llandaff]

This group of amendments relates to the authorisation record. I have added an additional criteria in Amendment 50B because there may be arrangements put in place after an initial authorisation has begun—or that were subject to conditions—and parts of the authorisation may need early review. Amendment 62A is designed to ensure consistency—the care home manager will not do the assessments but will arrange them. Amendment 58B relates to renewal; if part of an authorisation no longer has effect it must be reassessed from scratch, not simply renewed. Amendment 58C requires that original evidence is submitted, not a second-hand report. It would allow the responsible body to see the authentic assessment rather than an interpretation of any original material.

[Baroness Barker]

My Lords, I am afraid that I think some of the amendments standing in my name have been wrongly grouped. I am sorry; I have been busy this afternoon going through everything else and I am now a bit stuck regarding the procedure and what I should do. I will speak to them, although I am rather reluctant to start this group.

[Baroness Barker]

But am I right in thinking that if I do not speak to my amendments today, they will automatically fall?

[Baroness Finlay of Llandaff]

It might be of assistance if I intervene here. If the noble Baroness is referring to amendments in the group beginning with Amendment 58A, I understand that if she does not speak to them now, they can be dealt with in the next group.

[Lord O'Shaughnessy]

I am no expert in parliamentary procedure but my understanding is that, as they come after the amendment we are considering now and indeed the one that we would consider next, they can be retabled.

[Lord O'Shaughnessy]

I am grateful to the noble Baroness, Lady Finlay, for initiating this discussion. Clearly the purpose of her amendments is to make sure that an authorisation cannot be renewed if it wholly or in part ceases to have effect. In some cases, an authorisation will not be renewed if in part it is no longer valid, but there might be other cases where minor changes to the restrictions are needed and that should not prevent an authorisation being renewed. We want to provide further detail in the code of practice and I would appreciate the opportunity to work on that with her.

The noble Baroness has also tabled amendments outlining that authorisation records should detail when arrangements are not authorised or if they are authorised with conditions, and that in care home cases responsible bodies should consider other relevant information, as well as information provided by the care home manager. I can tell her that in some cases if arrangements are not authorised, it might be useful to include them in the authorisation record. However, given the debate that we had on the previous grouping about the general trend towards the inclusion of data or information within records that are then made available to patients, their families and so on, I want to reflect on whether they should always be included and I will come back to that on Report.

The Bill allows the responsible bodies to consider information other than that provided by the care home manager, and further detail on the circumstances and kinds of information will be provided in the code of practice. On that basis, I hope that the noble Baroness is reassured and will feel able to withdraw her amendment.

[Baroness Finlay of Llandaff]

I am most grateful to the Minister for that clarification. I agree that some parts of this would be better in the code of practice than in the Bill, particularly because they might need modification as experience develops. If they are in primary legislation, we are effectively stuck with them for a time, whereas otherwise they can be altered. Therefore, I beg leave to withdraw the amendment.

Amendment 50B withdrawn.

Mental Capacity (Amendment) Bill [HL]

Baroness Finlay of Llandaff Excerpts

Monday 15th October 2018 Lords Chamber

[Baroness Barker (LD)]

My Lords, I move Amendment 17 and will speak also to Amendments 19, 54 and 57, which are in my name. Like other noble Lords, I thank the Minister for statements he made earlier about having listened to concerns over the duty to consult with the person and over the inclusion of 16 and 17 year-olds. He will appreciate that a number of amendments tabled by noble Lords stemmed from that deep concern about the lack of a statement on the Bill that the person being cared for should be seen by the person arranging for their assessment.

On a matter of form and detail, I do not like the term “cared-for person”. I prefer the scheme used under the Mental Capacity Act, where the person is referred to as P. They are considered as a person in their own right; they are subject to the legislation as a whole person. It is a stylistic matter. We got there with “unsound mind”; perhaps if we keep going, we might be on a roll—you never know—so I throw that in.

These amendments dig at some of the same concerns as those at which the noble Baroness, Lady Finlay, was getting on a previous set of amendments. As noble Lords will know, under the DoLS legislation there is a duty to ensure that not only does the cared-for person know what their rights are and have access to justice, but the people who care for them also know that what is proposed is the least restrictive option. There is a real question under the liberty protection scheme, as laid out, as to how somebody who lacks capacity or the people who look after them would know that. Furthermore, there have been concerns—assuming the care home manager was responsible for much of the assessment—over how they too would know that what was proposed was a least restrictive option. These amendments are about seeking to establish a duty to ensure that people are fully informed.

That takes us to another basic criticism of the Bill, which is about what I would say was an overreliance on the code of practice. Noble Lords have many years’ happy experience—some of it on the other side of the Dispatch Box—arguing about the importance of codes of practice as opposed to law. There has to be a statement in the Bill for anything in a code of practice to have force. As the Minister will know, practitioners need only have regard to the code of practice; effectively, they may not have regard to it. It matters more towards the back-end of the Bill, where much of the Mental Capacity Act is amended.

Put simply, nowhere in the Bill does there seem to be a duty to provide this information to the cared-for person or to the people who care for them. In the coming set of amendments the Minister will no doubt make much of the new requirements to consult, but that is something slightly different. We felt it was important to restate this and back up what is already the intention under the best interests of the Mental Capacity Act, but that we felt had been ignored in this Bill. I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, I added my name to Amendment 17 because I think it is important that things be written down clearly, particularly for the cared-for person—which is the term we are using—if they have fluctuating capacity or need to absorb things very slowly but want to understand. Also, their families and those concerned about them will not necessarily be there when someone comes in to assess them or formulate a care plan, but they will certainly have concerns and they may have a very good idea about wishes and feelings that could have been overlooked—not maliciously, but because people did not know about them. A written record will provide evidence for everybody about what is happening.

The way the consultation is conducted should therefore, I agree, demonstrate that restrictions have been proportionate and necessary, and that alternatives have been considered—and the reason they have been discounted should be given. I would like us to give people much more access to all their clinical records; the caring family, in particular, should have access to the records. Often, information held by family members and others close to the person is effectively like gold dust when it comes to planning their care, and would benefit from being shared.

Where someone’s condition deteriorates, if this has all been written down clearly you have a baseline against which you can measure changes. If they improve, the baseline shows the reason that things were put in place as restrictions, which could then be lifted. Again, that gives a benchmark against which to measure, which would make care more personalised. I hope this concept will be well received. I am unsure as to whether it should go in the Bill or in the code—it is easy to put lots into the Bill—but the principle is important.

[Baroness Hollins (CB)]

My Lords, I have some amendments in this group. I welcome the explanations given by the noble Baroness, Lady Barker, in her introductory comments. The Bill requires the responsible body to complete an authorisation record containing important information for the cared-for person. However, it does not require the responsible body to provide this information to so-called cared-for persons themselves. I rather like the term “cared-about person”; that is what families have in their minds, that they are caring about the person. While this is about official, statutory care, we still want that essence of caring about the person to be central to it.

The responsible body does not currently have to provide the information to the person themselves or to their family or an IMCA should they be involved in supporting that person. Amendments 51 and 52 seek to address this omission, by ensuring that the person themselves and any appropriate person or IMCA supporting and representing them are given copies of the authorisation record as soon as possible after authorisation is granted. Amendment 53 would require that the person is told of the options to appeal and notified of the outcome of reviews, variation or termination of an authorisation.

I support my noble friend Lady Finlay’s advice that information should be shared. I add that it should be shared in a timely, not reluctant, way. Perhaps the Minister can confirm that omission of the requirement to inform the person about options to appeal and about outcomes is just an oversight and that it can quite easily be added to the Bill.

--- Later in debate ---

Moved by

[Baroness Finlay of Llandaff]

18A: Schedule 1, page 11, leave out lines 12 and 13 and insert—
“(b) that the liberty protection arrangements impose physical restrictions on the cared-for person,”

[Baroness Finlay of Llandaff]

My Lords, previously we struggled with the definition of restriction of liberty. From the original judgment from the noble and learned Baroness, Lady Hale, the term “a gilded cage is still a cage” has become common currency and is sometimes used as a benchmark. The difficulty we face with this legislation is how we define the restriction of liberty for an individual and the normal variations of everyday living that vary from family to family and culture to culture, and with which we would not wish to interfere.

My noble friend Lady Murphy tried to provide a definition when we last debated this. Following her lead, I have tried in my amendments to come up with a definition which respects the personal cultural background of an individual, the right to private and family life that existed before they entered care, and the need for an appropriate way of living to be respected as they require some restrictions on their liberty to keep them safe. I want to avoid the risk-averse approaches that are sometimes taken and which can result in disproportionate restrictions, such as restricting the friendships and relationships that may form, particularly when a risk-averse approach may be motivated by the convenience of those responsible for providing care rather than a true balance of weighing up of risks. My noble friend Lady Hollins illustrated that very clearly in a previous debate on restrictions.

--- Later in debate ---

[Lord O'Shaughnessy]

I thought Amendment 81 was tabled in the name of the noble Baroness, Lady Murphy. Anyway, it does not matter in whose name it was, those reassurances are in the Bill. If there are any niggling concerns about that we can, of course, make that clear offline. On that basis I hope the noble Baroness will be prepared to withdraw her amendment and begin those discussions in earnest.

[Baroness Finlay of Llandaff]

I thank the Minister for that reply. Fuelled by the optimism of my noble friend Lady Murphy, we are moving forwards, and as the Minister has said, we need to give it a go but we must also take all the stakeholders with us. We will need some careful round-table discussions about this. I take completely the point about medication, and not using that word in the amendments I have drafted is an omission that needs to be corrected.

When I was considering emergencies, I was concerned about situations that are not necessarily life-threatening but still constitute some kind of emergency. They arise quite commonly in social care out in the community and emergency primary care settings. I do not think that they can be ignored when we are looking at a definition. We have to be quite broad, otherwise we might suddenly find that a gap emerges again, which would not be helpful. I look forward to thinking with others and I hope that they are more successful than I have been today. I beg leave to withdraw the amendment.

Amendment 18A withdrawn.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My Lords, three amendments in this very important group are in my name. I fully support the stress being placed on the need to see whether, with additional help and support, the cared-for person could make their own decision. It is always better if they can take their own decision over any aspects of their care that need to be in place. For example, providing support to young people with learning difficulties or people with an expressive disorder may require special skills, time and patience to support them to make their own decision. However, the Mental Capacity Act is clear that every effort must be made to support people.

It is also right that the way in which support is provided, as well as the evidence for why such support may have failed, should be recorded—as in Amendment 23, which I strongly support. Decisions should be based on evidence as much as possible, not on the personal opinion of the assessor, although there will always be a degree of interpretation of evidence. For people in community and supported living settings, this will be important to stress as they may agree with and consent to certain aspects of the care plan but not understand others—so it is not an all-or-nothing. However, even if the person does not appear to understand, everything must be explained as fully and clearly as possible. It will be important for any such evidence submitted to support the deprivation of liberty to come from the professional responsible for the care plan, whoever that is.

We have already debated the role of the care home manager. For consistency, I have removed the care home manager from this part of the Bill. I should apologise to care home managers for my use of “secretary” in relation to their role, which could be misinterpreted. I did not mean to cause offence; I just wanted to make sure that we recognise that the care manager and the care home manager are often different people.

In response to the amendment tabled by the noble Baroness, Lady Jolly, I would advise caution. In some situations, a specialist clinical psychologist may be better than a medical practitioner at undertaking the assessment. I would hate for us to end up with the view that the doctor would always be the best person to do the assessment because I do not think that they always would be; there may well be others.

I welcome the addition of speech and language therapists. They have a great deal to offer to people with expressive disorders and can often establish communication when other people think that the cared-for person lacks capacity but in fact they simply cannot express themselves.

[Baroness Thornton]

Yesterday or on Friday—whenever it was—we received a very helpful briefing from the Royal College of Psychiatrists. I found what it had to say on Amendment 22 very useful:

“The Royal College of Psychiatrists believes that only a ‘Registered Medical Practitioner’ should be able to determine whether an individual has a ‘disorder or disability of the mind’ … Currently the authorisation arrangements in Part 2 of the Bill say that a capacity and medical assessment has to be made, but does not say who has to make it. It is likely that the Government is assuming that this would be carried out by a ‘Registered Medical Practitioner’ but it would be helpful to have it on the face of the Bill.


The JCHR report was clear that in order to comply with human rights law, any deprivation of liberty under Article 5(l)(e) requires ‘objective medical evidence of a true mental disorder of a kind or degree warranting compulsory confinement, which persists throughout the period of detention’.


Given this requirement for ‘objective medical evidence’, there needs to be a guarantee in the Bill that only a Registered Medical Practitioner with appropriate training has the power to determine whether someone has an ‘unsound mind’ or ‘mental disorder’”.

--- Later in debate ---

[Baroness Jolly]

My Lords, I want to reflect on training and the cost of training. What is really interesting is where it is put on the balance sheet. If training is seen as a cost to an organisation, people will complain and feel that it is not necessarily money well spent. If training is seen as an investment, however, and is treated as such—certainly for local authorities—it would be a really good investment if it avoided court cases leading to very high legal bills. If training could be seen as an investment rather than a cost, while the problems will not go away, people might learn to think about things differently.

[Baroness Finlay of Llandaff]

My Lords, unless training becomes mandatory on some level, the problem is that we will always train those who are willing to be trained while not reaching those who perhaps need to be trained more. If we could make training a little bit like fire training or manual handling, with very short bursts of realistic training, it might be much more effective. Over the years I have seen very costly, ineffective training and very low-cost extremely effective training. Often the most effective training includes a realistic assessment because assessment drives learning. I strongly support the comments made by my noble friend Lady Hollins because case-based training involving the people themselves has a huge emotional impact and therefore embeds change in the behaviours and attitudes to the person on the receiving end. On a slightly optimistic note, I am rather hoping that within Wales, we might manage to get an agreement that all doctors at every grade need at least a minimum awareness of the Mental Capacity Act and that we might then be able to build on that. I keep my fingers crossed.

The other point that we have to be careful of when we talk about training is that this is not about broadcasting information that might sound quite legalistic and frightening. One of the most important skills is listening, and listening skills have often failed in these cases, such as the ones referred to already in which the relatives were not listened to early on. They were not believed early on, the cared-for people were not adequately listened to and things spiralled down. Some of that lack of listening is just a result of poor communication skills training. I am not sure that we have to be overspecialised, but we need to raise the skills of everybody across the board. It needs to be embedded in revalidation—you might train somebody now, but in five years’ time there will be drift. The training, therefore—particularly if people are being trained to take on specific responsibilities—needs to be refreshed over time to ensure that it remains authentic.

[Baroness Thornton]

My Lords, this has been a very useful and essential discussion about training. The noble Baroness, Lady Hollins, is quite right that there needs to be a strategy. I am concerned that there does not seem to be a strategy, so can the Minister tell us what consultation there has been about how this training—even the minimal familiarisation—would be achieved? Even the Minister accepts that that is clearly not going to be acceptable.

In terms of the stakeholders, the MHA—a charity providing care, accommodation and support for older people throughout the UK—heard from a care home manager in Hereford, who said, “As home managers without a mental health nursing background, it would be impossible to expect a home manager to undertake these assessments, as with the continuing health assessments, which we are deemed unable to complete as we are not healthcare professionals”. Well, quite.

Age UK says that at present there are no fewer than six assessments for a DoLS application. In order for care home managers to be able to conduct these assessments—or indeed be party to them, if only to act as secretaries, as outlined by the noble Baroness, Lady Finlay—they are going to need the requisite training.

The LGA point out that the Government should recognise the problems caused by these additional responsibilities and the financial pressures—as mentioned by my noble friend Lord Hunt—put on care homes by the provisions in the Bill, especially when the sector is already facing significant challenges in terms of both resources and workforce recruitment and retention.

Voiceability expressed its concerns about the new requirements on care home managers. It is concerned that this transfer of responsibility sets up potential conflicts of interest, which we have already discussed. Mencap says that there has to be significant consultation with the care sector about the implications of the new requirements on care home managers.

I am just wondering how we have got to this point in the Bill without that consultation having already taken place. We need to play catch-up because this is such an important area: not only are there funding implications, but we should not be expecting people who do not have appropriate skills to be carrying these responsibilities.

Mental Capacity (Amendment) Bill [HL]

Baroness Finlay of Llandaff Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Monday 15th October 2018 Lords Chamber

Moved by

[Baroness Finlay of Llandaff]

14A: Schedule 1, page 10, line 36, leave out from beginning of line 36 to end of line 8 on page 11

[Baroness Finlay of Llandaff (CB)]

My Lords, any restriction to a person’s liberty is a serious step that calls for a corresponding level of scrutiny. To do otherwise would devalue the currency of liberty. We must remember how this legislation will work in practice and that it is authorising one citizen to detain another, usually more vulnerable, citizen. This decision carries risks, not least the risk of undermining an individual’s self-esteem and dignity. Therefore it is imperative to ensure that only appropriate and experienced individuals are given the authority to assess capacity and plan the care programme for the cared- for person, with their best interests at the heart of decision-making.

I will speak to the amendments in this group that are in my name—Amendments 14A, 16A, 19C, 19E, 19F, 30C and 32C—which seek to probe an alternative to involving the care manager directly in the process and to align it more closely with the Care Act. Much anxiety has been expressed since Second Reading about the role of the care home manager because there has been concern that the manager is not an appropriate person to carry out or even co-ordinate assessments. There have also been concerns that the cost of providing adequate training would be high and that the proposed training of a few hours would prove grossly inadequate.

The Minister gave assurances on the first day in Committee when he explained that,

“the care home manager would be responsible for arranging the assessments for the responsible body—not necessarily carrying out but arranging”.—[Official Report, 5/9/19; col. 1882.]

He pointed out that care homes already play a role in arranging assessments because they are responsible for identifying deprivation of liberty and then notifying the relevant local authority which under current arrangements, will then send out a best-interests assessor to visit and assess. He pointed out that the assessments that the care home manager will have a duty to arrange will be carried out at the care assessment stage as part of early planning, often by social workers.

However, in discussion with stakeholders, concern has highlighted self-funders, who could risk getting a low level of protection in law and find that the cost of assessment is rolled into their care home costs. Whatever is decided, a care home manager will remain responsible for identifying those whose liberty is restricted and therefore will be responsible for triggering assessments. Nothing in the Bill permits searches to case-find anyone who has not been flagged up and therefore is illegally detained.

Unfortunately, the concerns expressed by stakeholders have not diminished, despite the many meetings at which reassurances have been offered. Those concerns include that the care home manager, even if not undertaking assessments directly, would have a power of veto and that the authorisation of assessments would become a paper exercise. There is also concern that the costs associated with making the assessment would be transferred from the local authority to the care home, but that the funding would not move from the local authority to the care home, leaving the person being assessed, if they are a self-funder, to carry the burden of additional costs.

Regarding conflicts of interest, although some care managers are excellent, not all have the appropriate background experience, and the local authority would remain liable in law for authorising the deprivation based on information from the care home manager. But we must not lose sight of why the Bill is here. The number of people waiting for assessments seems to be rising exponentially and is currently around 125,000 in England and Wales. Even if money was thrown at assessments now, there are not enough people and the current process is too complicated to ensure that they happen.

It is relatively easy to talk about a process, but we must focus on the individual. To the individual, it is not the assessment per se that protects their liberty but the way that they are cared for on a day-to-day basis. They can have the most thorough assessment in the world, but if it is a once-a-year process, they may spend the rest of the year with restrictions on liberty that go unnoticed. That is why a new process to protect liberty must link directly to the care plan that contains details of how the person’s freedoms will be enhanced and how they will be empowered within the ethos of the Mental Capacity Act to live as well as possible. Some may argue that you can have a well-written care plan that is not carried out, but later amendments would enable people to raise concerns and request a reassessment.

It is important to recognise that necessary and proportionate arrangements may restrict liberty in some areas in order to empower the person to live as fully as possible despite the restrictions that their disorder has imposed on them. In some care homes a great deal is done to enhance living through outings, personalised crafts and musical arrangements, or when residents are encouraged to pursue their interests while keeping them safe from obvious dangers. Sadly, in other care homes residents are left sitting in a circle around a blaring television. Their experience means either that they have a low quality of life or in effect feel imprisoned.

It is the day-to-day living experience that matters. The way the care is delivered to allow that experience should be enshrined in a good care plan that encompasses encouraging social interaction and contact with the family, and accepts a reasonable degree of risk while avoiding clearly identifiable major risks. It should specify what the protection of liberty arrangements are that need to be approved by the responsible body. Words matter. Perhaps we should drop the words “liberty protection safeguards” because they can be confused with safeguarding procedures and instead use the term “liberty protection arrangements”, which would probably be abbreviated to PoLAs to replace DoLS.

I know that Amendment 14A looks strange because it comes half way through a paragraph. Ideally the amendment would delete the whole of paragraph 13 in Part 2 of Schedule 1, but given that we reached the end of line 35 on day one of Committee, I believe that the amendment can start only at line 36. However, I hope that the other amendments I have tabled in this group make better sense if we understand that the whole of paragraph 13 should have been deleted.

We know that we cannot throw money at a failing system and that not everyone needs the full might of the current assessment process of DoLS. If care homes are not described differently, it may open the way for others to be required to do the assessments in all settings by the responsible body’s direction, which would mirror Section 42(2) of the Care Act, which states:

“The local authority must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case (whether under this Part or otherwise) and, if so, what and by whom”.


That subsection was designed to safeguard by triggering an inquiry if there is a suspicion of unmet care needs, abuse or neglect. In the amendments I have tabled, I have tried to make the responsible body reflect the same arrangements so that it would either provide assessments or cause them to be provided. Many supported living settings are competent to do such assessments and many care homes could do them in routine cases by being asked for information by the responsible body without any power of veto resting with the care home manager.

I am grateful to Lorraine Currie, the professional Mental Capacity Act lead in Shropshire, for discussing this with me in detail. I hope that by more closely aligning liberty protection with the Care Act we might have a more streamlined process. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, Amendments 17A, 19A, 30B, 30D, 32B an 32E are in my name. The noble Baroness, Lady Finlay, expressed very well some of the key challenges we face in scrutinising the Bill. My amendments would remove the role of the care manager in overseeing the determination that the arrangements are necessary and proportionate. They would also remove the care home manager from carrying out consultation to try to ascertain the cared-for person’s wishes or feelings on the arrangements. In both cases, the result of my amendments would be that responsibility falling to the responsible local authority.

The noble Baroness, Lady Finlay, spoke about the issues facing the sector in trying to implement the current legislation. The problem seems to be that the Government, in their haste to respond to this and the undoubted challenge of the Cheshire West judgment, have come up with a streamlined procedure in which the human rights of the cared-for person are sacrificed on the altar of bureaucratic convenience. The careful balance that the Law Commission put into the draft Bill has been overturned, safeguards have been removed and protections have been overridden. The analyses we have received have been very valuable, but the Law Society’s analysis is a succinct, devastating critique of the Government’s approach.

The proposal means that the very people with a vested interest in keeping cared-for people occupying beds in care homes have been placed in the driving seat in the process of overseeing the restriction of their liberty. According to the Bill, those cared-for persons have lost the right to participate in decisions affecting them, have no right to be consulted, have no right, like their relatives, to be told how to challenge a deprivation of liberty and have no right to request a review. On that latter point, they must rely on the interested person who, when you look at the Bill, remarkably turns out to be the care home manager; nor is there any obligation for the responsible body to meet the cared-for person before signing off on their deprivation of liberty. That is the background to why the amendments are so important and why the Bill’s basis is so flawed.

I cannot find an explicit duty to consult the cared-for person about their wishes and feelings. That is worrying in itself; it is a major defect in relation to the existing legislation. I also find worrying the extraordinary proposition that the care home manager should carry out the consultation. Essentially, they are judge and jury for the person’s liberty, since the consultation is about the outcome of the required assessment that the care home manager is responsible for arranging. As far as I can see, the care home manager will choose who will make that assessment and, presumably, pay their fees. They are also the gatekeeper for the appointment of an independent mental capacity advocate, which cannot happen without the care home manager saying that it is in the cared-for person’s best interests. However, we can see that the care home manager has a vested financial interest in these matters, as does the care home. On consultation, the Bill must be seriously rethought. That also applies to paragraph 16 of Schedule 1 on the determination that arrangements are necessary and proportionate. Currently under the Bill, it falls to the care home manager to decide who should make the determination. This, of course, is a vital test and the determination of the arrangements relates directly to the practice under Article 5 of the European Convention on Human Rights.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My Lords, I thank those who have spoken in this very interesting debate. The last part of the debate was extremely rich and I think we all need to go away and read it. I thank the Minister for giving us the assurance that things that had caused great concern, such as the issue of 16 and 17 year-olds, the wishes and feelings of the cared-for person and the stigmatising term “unsound mind”, will all be dealt with. I am sure I speak for everyone in the House and outside it when I say that looking at that is most welcome.

When we are debating this subject, we have to remember that we are not talking about a deprivation of liberty in care homes Bill; we are talking about a Bill that amends the Mental Capacity Act as a whole for people wherever they are. We have had a huge debate about care homes but it was partly about looking at people in other care settings. In the light of some points raised previously by my noble friend Lady Hollins about people in supported living environments, it seemed worth floating the question of whether there was a way to align more closely with the Care Act. Then of course there are domestic settings as well.

As the noble Baroness, Lady Murphy, said, we have to make it simpler and, if we can, decrease the number of people subject to the Bill because we cannot replicate the current system. If the current system were working and everyone had better care as a result of their assessments, we would not be here now. We are here because the current system does not work. I have been concerned that a great deal of anxiety has been expressed to us but not so many solutions. Some solutions have been very refined—they are tabled as amendments and we will be discussing them later—but we must not lose sight of the need for solutions that are elegant and applicable and that do not lock us into another system that will go on to fail as the current system has.

I was not aware that 48,000 people have been waiting for over a year for their assessment. We need to hold that figure in our minds because it is really worrying. I can see that the amendments that I have tabled do not do the job, but I hope they have opened the debate and forced us to think about other things. I thank the Minister for all the movement that there has been to date and hope we will have more movement as the day goes on. I beg leave to withdraw the amendment.

Amendment 14A withdrawn.

Moved by

[Baroness Finlay of Llandaff]

14B: Schedule 1, page 10, line 40, after “manager” insert “or the person responsible for the care plan”

[Baroness Finlay of Llandaff]

My Lords, with the leave of the Committee, I shall move Amendment 14B briefly, if the Minister will allow me. I apologise for my error: I claim jet lag, having just come back from Bahrain.

The amendments in the second group, which are all in my name, are designed to meet the statement and explanation made by the Minister that the care home manager would arrange assessments but not undertake them directly. They attempt to clarify in the Bill the assurance given by the Minister that the care home manager would arrange assessments on behalf of the responsible body. He pointed out that care homes already play a role. They are currently frightened by an increased level of responsibility and believe that they will be conducting assessments rather than having a co-ordinating role. The care home manager will always remain responsible for identifying people where there is a restriction of liberty.

In this set of amendments, the responsibility for performing assessments is clearly not with the care home manager, who has only an administrative role, making sure that the relevant assessments have been done and forwarded to the authorising body. They must be undertaken as part of care planning. I suggest that this would require pulling together medical assessments of the person’s condition, which may be from the GP in care of the elderly or from other specialist departments where that person has been. Sometimes, medical details may be obtained from people such as rehabilitation teams, where the person had a head injury. That becomes important because some aspects, such as frontal lobe damage, need a highly specialised assessment. You could not have a general practitioner assess some of these people, because it is beyond the scope of most clinicians.

The capacity assessment must be done by someone who is suitably qualified, and the care plan must consider the person’s wishes and feelings and the type of person they were before the illness struck. To use a simple example, a professional musician’s needs will probably differ greatly from those of an agricultural worker in terms of aspects of liberty that need to be enhanced, such as access to whatever instrument they played before, and how the environment needs to be adapted, such as allowing the agricultural worker to have much more time outside if that is what they need, to protect their ability to live well.

I have discussed this with a range of concerned stakeholders, and there are genuine concerns that if care home managers were to hold the responsibility to undertake assessments themselves, there could be conflicts of interest. Although some could be trained to a certain extent, others would need extensive training and would probably move on before they were able to undertake that role. There is general agreement that care home managers cannot do the assessments themselves, but they could have a co-ordinating role. Whatever the final pattern of assessment, many care home staff need better training in mental capacity overall. I feel a great burden of responsibility on my shoulders, as I chair the National Mental Capacity Forum.

In Amendment 30A, I require the assessment to be made by a registered professional who has responsibility for the care plan and appropriate experience and knowledge to lead the care planning process for the cared-for person. We must have a thorough debate about what the Minister was explaining to us on the first day of Committee, which I fear has been poorly understood by many outside this Chamber. In gratitude to the Committee for allowing me to speak to the amendments, I beg to move.

[Baroness Barker]

My Lords, I am very grateful to the noble Baroness for moving the amendment. It gives me the opportunity to return to the question I asked previously, to which I do not think we have yet got the right answer. It is about the nature of the assessment. The noble Baroness talked about the sort of assessments made under the Care Act—assessments to support somebody. They are not DoLS assessments, which assess whether someone is being deprived of their liberty. In what the Minister has said so far, in reference to care home managers, there is a failure to make that distinction. A DoLS assessment is a very serious assessment of whether someone has been deprived of their liberty. It can also be viewed in court. It is some stretch for a care home manager or someone in a community setting—making genuine operational assessments about supporting somebody—to make a decision that deprives that person of their liberty. We will come on to records of authorisation, but I have to say nothing the Minister has said so far has reassured me we are talking about an assessment system that would come anywhere near DoLS or be accepted by a court.

[Baroness Finlay of Llandaff]

My Lords, if I may come back very briefly on that, the noble Baroness makes an important point. I worry that some of the DoLS assessments are very long and complex, yet make little difference to the lived experience of the person on the receiving end of care, so I hope they will become better tailored. A badly drawn-up care plan could also be presented in court if there was a dispute, not only the assessment forms. Some of the forms I have seen will have taken a great deal of time to complete; I wonder whether the detail replicates that obtainable elsewhere, and whether there is a problem of proportionality. Also, I worry that we should be looking at the minimum amount of restriction on liberty, rather than deprivation of liberty. If someone is imprisoned, the whole system has failed. They must be encouraged and empowered to live as well as they can while being kept safe from dangers that, without due care and attention, would probably end for some of them in their deaths—wandering on to a motorway or whatever.

[Baroness Barker]

I take the point made by the noble Baroness; she is absolutely right. There are some pretty awful assessments. I am not sure the Bill will stop that—I think she is rather wishful in her thinking if she thinks otherwise. She will have talked to practitioners, as I have. Sometimes DoLS work really well, particularly when trained assessors use the conditions. These can be something quite simple, such as the right to see a priest once a week or go out on a pass. I find myself in a slightly different position from the noble Baroness, Lady Murphy. As I sit in these debates I find myself becoming ever more defensive of DoLS because some of the case made against them is exaggerated. A lot of the reason for the backlog is not that the system is complicated but that there are not enough assessors out doing the work. I take the point made by the noble Baroness, but I still go back to the need for assessors who are trained, understand their purpose and carry it out in a proportionate and timely way.

--- Later in debate ---

[Baroness Thornton]

I hate to interrupt the Minister, but I think he might be answering the next group of amendments. I am not sure—perhaps he is answering both groups together—but it feels as though he is answering a speech I have not yet made.

[Baroness Finlay of Llandaff]

I would like to intervene for a moment as I think this has been a valuable debate, even though short. I shall pick up on the point made by the noble Baroness, Lady Barker, on conditions, which are incredibly important. She cited one example, and I return to the musician to whom I referred earlier. Most professional musicians will feel that their instrument is an integral part of their own personality. If they lose speech, they will communicate through their instrument, especially their mood—their feelings, responses and so on—so it is a terrible deprivation of liberty to separate a musician from their instrument.

If the musician plays a trumpet or another loud instrument and they are in a care home, it will be important to find somewhere they can go to play their instrument without disturbing everybody else. It sounds humorous but it is incredibly important to people. I was struck when I visited a care home some time ago and saw a man playing a piano. I thought he was a volunteer brought in to play—beautifully—to people. When he finished playing, I started to engage in conversation with him and it became clear that, while his recall for the symphony he had been playing from memory was superb, he could recall or discuss remarkably little else from which I could gain a modicum of sense. As a result, we had a bizarre conversation, other than about the symphony.

Conditions are absolutely essential. My hope would be that, in the code of practice, we require conditions to be put into the care plan that must be enacted on a daily basis. This should not be just a set of recommendations that could be ignored. My concern is that we link care planning to the delivery of care; that is extremely important.

I was grateful also for the support—albeit somewhat tentative—from the noble Baroness, Lady Tyler. I draw a distinction between the care manager and the care home manager. The care manager should be the person overseeing the direction of care planning; they could be the district nurse for somebody at home, or whoever runs the supported living environment on a day-to-day basis and looks at alterations in the care plan.

In a large care home, the care home manager often manages the building and the staff. They make sure that regulations are maintained and that the lifts work, dealing with all the things that happen on a day-to-day basis, but can have remarkably little contact with individuals. I do not want to sound disrespectful to care home managers when I say that I would envisage their co-ordinating role as much more like that of an administrative secretary, rather than as somebody who gets information directly from the person or the family. However, I would want them to make sure that the family had been consulted, that all the people who cared about the person had been spoken to and that that information was properly documented, with a package being put together for the local authority to inspect. I believe that the local authority will know which care homes on their patch are working well and which need an eye to be kept on them. I think I have half given my response to the Minister’s response.

[Lord Cashman (Lab)]

My Lords, before the Minister gets to his feet, I want to thank the noble Baroness, Lady Finlay, for that clarification. Precisely those concerns about the role of the care manager and the care home were put to us when we met 30 or so representatives from the different services. They also dealt with the potential conflict of interest. As was said earlier by the noble Baroness, Lady Murphy, there are always conflicts of interest in professional fields. Here, we are dealing with a conflict of interest around someone’s deprivation of their liberty, and we need to get it absolutely right. With that clarification, I say that the amendments make us think again about precisely how we can deal with the backlog and how we can be effective but give the individual the rights and protections they deserve.

Finally, I also thank the Minister for his early intervention and assurances around the inclusion of 16 and 17 year-olds and on the phrase “unsound mind”, which I raised during our first day in Committee. I hope that I have not detained him from his notes.

--- Later in debate ---

[Lord O'Shaughnessy]

That is helpful, and I am sure the noble Baroness, Lady Finlay, will respond to those comments from her perspective. The noble Baroness goes to the point of the noble Baroness, Lady Tyler, about making sure we get the definition of the role of the care home manager right and the various types of case studies. As the noble Baroness said, there are self-funders, those in local authority-funded homes, those in homes funded by the NHS and so forth. In a sense, that is the point I was trying to make in the first group of amendments as I realise that we have not clarified that to a sufficient degree so as to put people’s minds at ease that what we are proposing is appropriate and deals with people’s concerns or exposes those concerns as being well founded and then enables us to do something about it by the time we come back on Report.

I apologise again for the false start in my response. However, this has been a useful debate and I am keen to hear the reflections of the noble Baroness, Lady Finlay, as, I hope, she withdraws her amendment.

[Baroness Finlay of Llandaff]

I thank the Minister; I am very grateful to him. If I have understood it correctly, the noble Baroness, Lady Barker, supports my Amendment 30A, which requires that a registered professional—who, if they really get it wrong, would lose their registration—who has responsibility for the care plan and appropriate experience and knowledge, should make the determination. In other words, it is not good enough just to be a professional. I go back to the example of people with a head injury, who need a highly specialised assessment and overview so that a lead can be taken on the care planning process.

[Baroness Barker]

My Lords—

[Baroness Finlay of Llandaff]

I will just finish, if I may. I completely share the concern about self-funders. They must have a care plan, because they are in receipt of care once they are in the system. It is appalling if there are people who are paying to be cared for in some kind of chaotic way without a proper, co-ordinated plan that they and their family can know about, so that everyone coming and going, be it out of hours or whatever, can understand what is happening.

I am beginning to think that there is not that much difference between us, and I agree that the current forms are inadequate. I apologise if, in the previous debates we have had, my comments about notification from the care home manager to the local authority were not well worded—on re-reading, I can see that, and I accept that I was wrong in the way that I worded it.

[Baroness Barker]

I do not want to get up the hopes of the noble Baroness, Lady Finlay, too strongly. She is a medic and therefore her go-to place is medical qualifications. There are some excellent best interests assessors who are not engaged in the care of the person. I wish to make that point. I shall keep coming back to the valid point of the noble Baroness, Lady Murphy, about the need to wind up with an affordable and manageable system. Noble Lords who have been involved in discussions with stakeholders will not be surprised to know that some of us think there is a way in which that could be done but it would involve reliance on advocates and assessors. Having said that, I agree with the noble Baroness.

[Baroness Finlay of Llandaff]

I beg leave to withdraw the amendment.

Amendment 14B withdrawn.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, my Amendment 37A would preclude the care home manager undertaking the pre-authorisation review, which follows on from what the noble Baroness, Lady Meacher, was saying. However, the Minister floated his answer to this point very recently. I thought I caught him saying that the pre-authorisation review can be done only under the auspices of the responsible body. Perhaps he can confirm that when he comes to speak because it is not clear in the Bill, as I see it. On page 10, paragraph 12 of Schedule 1 states:

“The responsible body may authorise arrangements, other than care home arrangements, if … a pre-authorisation review has been carried out in accordance with paragraphs 18 to 20”.


That relates to those cases where the care home manager does not have a role. Paragraph 13 of Schedule 1 simply states:

“The responsible body may authorise care home arrangements”,


if a number of qualifications have been met, including if,

“a pre-authorisation review has been carried out in accordance with paragraphs 18 to 20”.

I cannot see anything in the Bill that says that the pre-authorisation review cannot be carried out by the care home manager. If that is the case, it would be nice to see its inclusion in the Bill, which would provide some reassurance.

I know that we always stray here because we keep coming back to the issue of a conflict of interest. Has the Minister read the Law Society’s view, which we received over the weekend? The society described the fact that the care home manager has been put into a position of co-ordinating the way in which the Bill needs to be operated when a care home setting is involved as a “conflict of interest”. It stated:

“Vulnerable adults would be put at risk if care homes were given increased responsibility for decisions about their liberty”.


It also said that important safeguards “would be weakened”, stating that the,

“shift of responsibility for carrying out independent assessments of vulnerable people from local authorities to care providers”,

is not something that the Law Commission developed. However, we are working on the basis of a Law Commission draft Bill.

Although the noble Lord is as committed as ever to the care home manager having this key role, I am not at all convinced that this really is feasible. It will not be good enough for the Government to provide reassurance, which I doubt they can, about the training of care home managers and their capacity to carry out this responsibility, particularly in view of the big backlog that will have to be confronted, I suppose, by the care homes. I do not see any provision in the Bill for the current backlog to be dealt with under the existing legal requirements. There is a great deal of scepticism about whether this is going to work.

[Baroness Finlay of Llandaff]

My Lords, I have one amendment in this group and I wonder whether the group is focused on lines of answerability. Who is going to be responsible? If the person is in the community in any setting the responsibility will go or should go, as I understand it, to the local authority. If the person is in hospital then it would go to the hospital. However, we have a problem. A lot of people on continuing care funding are in the community. I am concerned that if the authorisation for those people sits with the clinical commissioning group rather than the local authority, we may end up with some people getting lost in the system. The standards and criteria against which the different assessments and processes are benchmarked and what is expected, particularly how the process is monitored, could be unclear. It will be much harder to monitor out in the community than in a hospital or in-patient setting.

Following on from our previous debate, I had a quick look at the requirements to be a best interests assessor. As far as I can see, to enrol on the course you must have had two years’ post-registration experience as an approved mental health professional social worker, registered with the Health and Care Professions Council, or be a nurse, a psychologist or an occupational therapist. The people who potentially will migrate to become approved mental capacity professionals are registered professionals. That is incredibly important and we should not lose that in any aspect of the Bill. If they are registered professionals they have a raft of professional duties that go with that.

This part of the Bill and the process is not terribly clear, and I worry particularly about people on continuing care out in the community, or those who may become self-funders, managing their own budgets for care.

[Baroness Murphy]

My Lords, I added my name to the amendment of the noble Baroness, Lady Jolly. In view of my previous comments, people may be surprised that I did because it seems to be making life more complicated. In fact, I saw the more professional pre-authorisation process for the smaller group who will eventually be subject to this Act, I hope, as introducing something for the high-risk people who will be assessed by professionals. I like the role of the new AMCP, which sort of takes over from the best interests assessor, because I think it will be a well-qualified group. It would add some solid support if the care home manager’s role is to continue. I saw this, when I first read it, as a good way of providing some pre-authorisation backstop, if you like—a solid foundation on which we would have more confidence that the care manager role could work. I am still anxious about the care management work for all the reasons that the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, mentioned, but this was one way that I saw of adding some professional expertise that would give confidence to the mental capacity community that we were taking this seriously.

Mental Capacity (Amendment) Bill [HL]

Baroness Finlay of Llandaff Excerpts

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

[Baroness Finlay of Llandaff (CB)]

My Lords, I have listened to the debate and have ended up feeling slightly puzzled. If we are looking at how we improve the quality of life of “P”, what they experience day to day in how they are looked after is what influences that quality of life—in other words, how well the care plan is planned and executed. It cannot be just about the planning phase but about how well it is executed and how that execution of the care plan is monitored, day to day and week by week. In a care home, the person ultimately responsible for care plans has to be the manager because you must have a vertical structure, even though the plans may well be written by staff at a different level. If a person is in supported living, someone will be responsible for overseeing the care and provision in that supported living arrangement by dint of it being supported. Therefore, that must also be planned for and it will not be a care home manager but somebody else overseeing their care.

I can see that there is enormous concern over care homes. We all know that there are some excellent care homes and we have all, sadly, encountered care homes that are not excellent, where one would have concerns about their ability. If we are trying to drive up a person’s experience and quality of life, and make sure that what is done is necessary—because there is no other way of managing them—there need to be restrictions proportionate to the problems that they pose. I add here that we must consult and make every effort to listen to the person. We have that in another set of amendments later.

It may be that our grouping of amendments at this stage is not right because there is so much that interweaves between them. The worry is that if we then say that the people on the ground and the care plan are not the main part of the assessment, we go back to somebody basically helicoptering in, doing an assessment, seeing how they are and going again and leaving approval—that may be for a year—without any pressure to constantly review. Later amendments seek to put pressure on to review whenever the situation changes—to make it a more dynamic situation that really reflects that people deteriorate. Fortunately, some sometimes improve but most of the time you are faced with deterioration.

The other problem is that local authorities are, we know, incredibly short of finance. We know that they already cannot cope with the burden of assessments that they are being asked to carry out. I cannot see how asking them to take back the role and possibly do three assessments rather than six will tackle the problem of the number of people needing to be assessed and thought about being far greater and not matching—I think it never will match—the resources available.

It is easy to say that we need more people to do this but realistically the number of trained and experienced people is just not there. We have to find another way forward. There is a tension because whoever does the assessment may have a conflict of interest, whether about funding the care or receiving the income from the care. Somehow we need a system that improves the quality of life of the person and is subject to scrutiny more often than just on the occasions that the assessment is done initially or when it is reviewed after a fixed time.

I wonder whether a group of us needs to go away, sit down and really try to work this through with worked examples. I should declare that at one of the meetings I had in Wales we used worked examples in different settings. When we started to work through it for supported living arrangements—that was the table I was on—it became easier to see how it could work and how the triggers could work. I am not saying it was a perfect solution. I think the intention of these amendments is superb but I worry that they might not solve the problem.

[Baroness Tyler of Enfield (LD)]

My Lords, I was not going to intervene on this group of amendments but I have listened carefully to all the points that have been put and they have all been absolutely excellent. There is a tension here, as the noble Baroness, Lady Finlay, just said. My main reaction, particularly when I read the letter from ADASS—I shall not read it out again; I have it in front of me—was of real concern. As the noble Lord, Lord Hunt, said, they are not the sort of people who say these things lightly. They do not scaremonger. They do not exaggerate. They make very carefully calculated judgments, as you would expect of people at that level. I read the letter with great concern.

I was equally concerned when I read the briefing, as mentioned earlier, from the Relatives & Residents Association. One phrase really resonated with me, about the association’s great concern that too often we were asking care managers to be judge and jury about decisions in which they were involved. That is how it was expressed. The noble Baroness, Lady Finlay, made some excellent points. We have to find a way through. It would be genuinely helpful if, as in her proposition, there was time to think about those who will be most involved, as they must be, in care planning for these very vulnerable people, and a sufficiently independent element in arrangements so that people feel that care home managers are no longer judge and jury. I do not think we are there yet. I cannot articulate it at the moment but we must work together to secure a slightly different way forward.

--- Later in debate ---

[Lord O’Shaughnessy]

I am grateful to the noble Baroness for clarifying that. I will seek to understand the implications of the Bill for those cases, and I will make sure that I write to her and all noble Lords with an explanation of what is envisaged.

[Baroness Finlay of Llandaff]

I hope the Minister will forgive me because we are now on an incredibly important part of the Bill. If we can get together and work through it, I wonder whether we need to look at a way that a specific person from the local authority—I gather that it happens in some parts of England and Wales but not everywhere—has a link to different care settings and gets to know them well. We are talking about the people we know about, but the people who are most vulnerable are those we do not know about, who have not been notified into the system. If that person knows a place and the quality of the care there, they may be inclined to have a lighter touch there than on places where there has perhaps been a turnover of staff, a change of management, and so on. They may feel that they want to do some face-to-face assessments to verify the quality of the care being provided—not in the CQC role, but in terms of the care delivered to the person who has impaired capacity.

I put that out there now because I am sure that this debate is being watched and monitored. It might be interesting to see whether we get any feedback on some of the points we have raised during the debate, because so many people have expressed concern and want to know what we are saying.

[Lord O’Shaughnessy]

I shall give just a brief response to that. It is a good idea. The Government think that the proposals for care homes, how they will carry out commission-needs assessments and the process for reviewing and authorising where necessary are a critical part of creating a more proportionate system that does what it says it will do, rather than the current system, which says it will do a whole bunch of things and then does not actually do them. That is where we want to get to.

I am being robust, as it were, in defence of the model. I want to explain—I think noble Lords are enthusiastic about this—how this will work in practice with the kinds of people who are most likely to be in the most difficult situations, so there is a clear understanding of the safeguards that exist to prevent conflicts of interest, provide independent oversight, make sure there is advocacy to support, and so on. It is clearly the case that there is not yet that understanding, and we need it to proceed.

--- Later in debate ---

Moved by

[Baroness Finlay of Llandaff]

14: Schedule 1, page 10, line 35, at end insert—
“(aa) the information provided by the care home appears to be consistent with either the assessments under paragraph 15 or the care and support plan held by the responsible body,”

[Baroness Finlay of Llandaff]

My Lords, this is really integrally linked. I have been trying to look at what would send a red flag, an alert, to an authorising body that this assessment needed to be looked into in detail and gone through with a degree of rigour—possibly with more time being able to be spent on it than can be spent currently—and that, in commissioning care, the local authority will have a care and support plan that defines what it is commissioning. It should have done a needs assessment and should commission against that and what it expects to be provided. What comes back on those assessments should mirror that care and support plan. What I have tried to do with this amendment is to highlight that, if there is not an almost identikit fit, that should not be given a margin of error but should trigger the need to visit that person and to look in detail at the care plan and its delivery. That might be the first sign that all is not well.

It may be that someone from the local authority visits and finds that the care and support plan, as commissioned, has been altered slightly because the person’s needs or ability to undertake activity have changed. It may be, in the best of circumstances, that something has been put in place that has enhanced the person’s ability to express themselves. I would use the example of music, where it has been found that by providing people’s favourite playlists, some people with really severe dementia are almost “unlocked” by the music—they are able to move in time to the music and their mobility and communication are better. Some people who have been unable to speak, even for years, recover some phrases and then, from that, begin to communicate verbally as well. And of course, we all know of people who appear to not be able to communicate but will then sing along to their favourite song, with all the words coming back again.

The purpose of the amendment is to say that, if there is not a close fit, that should be enough for the local authority to say that it is going to look at that in detail. That was the motivation behind my amendment. I beg to move.

[Lord Touhig]

This is a very small but very important amendment. Having spent 27 years in newspapers and publishing, I constantly came across issues and stories where people were having all sorts of difficulties, public services failed and systems failed because of lack of information. Certainly from my time as a councillor, as an MP and as a Minister, I passionately believe that we must be open and transparent and must share information. That is key to this part of the Bill, and we certainly strongly support the points made by the noble Baroness.

I do not intend to detain the House more than that, other than to say that the noble Baroness, Lady Finlay, may not be aware that, when I was a Wales Office Minister and she was a new Member of this House, she terrified my officials. They would come in and say, “Minister, it’s that Baroness Finlay again; she wants information on so and so”. She is pursuing her quest for information even today, which I think is very important and valuable. We strongly support her efforts in this area.

[Lord O'Shaughnessy]

I am grateful to the noble Baroness for tabling this amendment and to the noble Lord, Lord Touhig, for endorsing it. I will not detain the House other than to say that, clearly, the intention to make sure that there is not a discrepancy and, where there is, that there is a flag, is one that we share. We need to be alert to any issues of concern that would warrant further investigation, or indeed referral to an AMCP.

This is something that I think best sits within the code of practice, and I can confirm and commit that instructions along these lines will form part of the code of practice, as well as many other examples of where an authorising body should be seeing signs of concern. I am grateful for the opportunity to confirm that, and I hope that reassures everyone.

[Baroness Finlay of Llandaff]

I am grateful to the Minister and to the noble Lord, Lord Touhig, for his remarks in support—including his humorous ones. On the basis of that, I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Mental Capacity (Amendment) Bill [HL]

Baroness Finlay of Llandaff Excerpts

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

[Baroness Finlay of Llandaff (CB)]

My Lords, I must declare my interest, having chaired the National Mental Capacity Forum for almost three years, and having drawn attention, in March 2015, to the urgency of deprivation of liberty safeguards reform.

The Bill has had a long gestation period. Regarding the Bournewood gap—the history of which was outlined by the Minister and the noble Baroness, Lady Barker—we tried to ensure compliance with Article 5 of the European Convention on Human Rights in relation to those with impaired capacity who are unable to consent to their living and care arrangements. We should have been more vocal about our reservations when that legislation went through in 2008, because it focused on deprivation of liberty and seemed to ignore P’s security and empowerment.

The Cheshire West judgment of 2014 resulted in huge increases year on year in the number of people with impaired capacity identified as being deprived of their liberty in one way or another. Therefore, without the deprivation of liberty safeguards, their arrangements constitute an illegal deprivation. As the Minister said, last year more than 108,000 people were referred for DoLS assessments. Many of them are still waiting and more have joined that list. They are all illegally detained and the time delay for DoLS assessment has lengthened year on year. The bureaucracy of the current system is crippling, with six separate assessments needed, which can leave the person, P, feeling confused and unable to understand what is happening or why they are being asked personal questions by a stranger. The burden on adult social care is overwhelming. It would need around £2 billion injected just to clear the backlog, but that would still not solve the problem. The administrative processes themselves need urgent reform, and the vulnerable need better protection and better access to justice.

A little history is relevant here. The House of Lords post-legislative scrutiny Select Committee report of March 2014, which stated that the DoLS provisions are not fit for purpose, led to the Law Commission review that Tim Spencer-Lane has been leading. This is the widest consultation that the Law Commission has ever undertaken, travelling the length and breadth of the country to take evidence from as many as wanted to offer it, and I was privileged to be able to sit in on some of those sessions. The Law Commission’s consultation and draft Bill have fed directly into the Bill before us, as Tim Spencer-Lane has been working closely with officials. There has been continuity through the system, which I think is not widely known to people.

Chairing the National Mental Capacity Forum, I have asked many in health and social care how many people have had improved care as a result of DoLS. The estimates are usually around 4% and have ranged from around 3% to 8%, so for all this bureaucracy and expense, fewer than one in 20 has clear better outcomes from the current process. A placebo response for an intervention can be expected in about 20% of people. We would not allow a medical or surgical intervention that fared worse than placebo in improving outcomes, so why put people through these burdensome assessments when we have no evidence of benefit?

Around 2 million people with impaired capacity stand to benefit from the Bill. Importantly, when DoLS has improved care, it seems that this has been through a revised care plan. The best interest assessors who are bringing about improvements will need greater powers as independent mental capacity professionals to target prospectively those thought to be at risk and not depend on referrals from providers once a person is in care. Can the Minister explain how these professionals’ greater powers to protect those at risk will work and how this new system will relate to safeguarding and the processes around it?

This focus in the Bill is on the care plan, and it returns to the core principles of the Mental Capacity Act. Whether in hospital or a care home, those overseeing care are directly responsible for the care plan and for ensuring that, compliant with the empowering ethos of the Mental Capacity Act, the arrangements are the least restrictive option. The restrictions must be necessary and proportionate to ensuring that any deprivation of liberty is justifiable for P’s security, while allowing them as much independent and enjoyable living as possible. In developing a care plan, P’s wishes and feelings must be taken into account. P must be supported to take as many of the decisions over care as P is able to, and they must be involved. This builds on the important amendment that the noble Baroness, Lady Barker, introduced into the Mental Capacity Act 2005, establishing the place for an advance statement of wishes. That becomes particularly important for people with fluctuating capacity. Can the Minister provide assurance that this will be stressed in the code of practice whenever a best interest decision is taken, whether by health and social care staff or by a donee of lasting power of attorney for P?

The focus is on liberty protection irrespective of how care is funded, and that is welcome. Liberty protection safeguards are rightly so named and their portability makes sense because the care plan detailing how liberty is protected refers to P. Of course, the care plan must also be dynamic and revised appropriately. Will the Care Quality Commission be responsible for inspecting whether the liberty protection safeguards are dynamic and portable, with a review triggered if circumstances change, particularly for those with learning difficulties and other stable conditions, if an LPS has been signed off in the longer term for three years? In other words: if things change, everything changes.

Those who know P best—the family and those important to P—must be consulted, not sidelined as has happened sometimes with DoLS. Can the Minister confirm that the code of practice will signpost the involvement of expert assessment of those with speech and language difficulties, who are too often labelled as having impaired capacity because they have appeared unable to communicate?

The changes will allow social work staff to concentrate on the most vulnerable, freeing them up to provide person-focused training, so that on a day-to-day basis staff can support P better in making decisions and understand the importance of doing all that they can to involve P in decisions that need to be taken on his or her behalf.

In 2014-15, the year after Cheshire West, the cost to councils rose by more than £98 million, and it has risen further year on year. That backlog now needs £2 billion just to clear it. Will the Government undertake to review, after two years, that futile bureaucracy and duplication has been cut and tangible benefit to P increased?

The code of practice will be important in ensuring that care plans are properly devised and properly reviewed, both regularly and frequently. It will make care providers’ decisions more proportionate, through the emphasis on protecting liberty rather than risk-averse attitudes by providers. Concerns have been voiced about the care home sector’s ability to assess P, yet we rely on these staff day to day. I hope that there will now be mandatory training of all health and social care staff, not just care home staff, in all aspects of the Mental Capacity Act. Mandatory training is long overdue.

I hope that the Minister can assure the House that the code of practice will be developed quickly to address concerns that have been raised about the Bill. One of the most contentious is how liberty is defined, as has already been alluded to. It is important to differentiate disorders that have impaired a person’s liberty—post head injury; post meningitis; the dementias; learning difficulties; delirium, whatever the cause; the list goes on—from actions taken by those responsible for care that deprive P of liberty. Such actions must be justified as being the least restrictive options and designed to allow P’s liberty to be maximised and protected. Given the difficulties with a universally applicable definition, I hope that clarification can be included in the code of practice; that may be safer than trying to come up with something in the Bill.

The term “of unsound mind”, although current legal language—I recognise that it comes from the ECHR—is outdated and stigmatising and may benefit from better wording.

There is a concern that those aged 16 and upwards should be brought into the remit of liberty protection safeguards for consistency, even if they are in education, because transition can be a difficult time for those people and their families.

I hope that concerns about the Bill can be resolved rapidly, because this Bill is urgently needed. I remind the House of the five core principles of the Mental Capacity Act: capacity should be assumed until it can be shown why it is not present; all support must be given for decisions by P; people can make unwise decisions; when capacity is lacking, any decision must be in P’s best interests; and any such decision must be the least restrictive option.

This Bill is an add-on to the Mental Capacity Act; it does not replace it.

The NHS

Baroness Finlay of Llandaff Excerpts

Thursday 5th July 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, the noble Lord, Lord Darzi, in his superb opening speech, reminded us that we must not forget what the alternatives to the NHS look like, when whole tranches of the population cannot pay for care. As Bevan said:

“The field in which the claims of individual commercialism come into most immediate conflict with reputable notions of social values is that of health”.


It is said that you cannot know where you are going unless you know where you have come from. Our roots go back far. Lady Beatrice Webb led the 1909 minority report of the Royal Commission on the Poor Law, which called for a unified medical service. Beveridge, himself a researcher for the minority report, recognised the influence of that on himself. Then Bevan, in an inspired political appointment, took on the medical resisters, and we all celebrate the benefit from their defeat.

My interests go back more than four and a half decades, working fully in the NHS. I am grateful to all the patients I have looked after, who have taught me so much and enriched my life. It is a two-way process, and it is has been an honour and privilege to work with them.

In Bevan’s book In Place of Fear, he wrote:

“Preventable pain is a blot on any society. Much sickness and often permanent disability arise from a failure to take early action”.


By embracing artificial intelligence, we now have amazing opportunities for early action: we can decrease error, diagnose sepsis, acute kidney injury and melanomas, use CT and MRI to diagnose cancers, and so much more. The horizons are expanding before us. In my own cancer centre we are using virtual reality to help patients understand what is happening to them. Yesterday, at the Bevan Commission international conference—I declare my interest as a commissioner—artificial intelligence was seen as key to reducing error but was not expected to replace clinical roles in the next 10 years.

The latest paper from the Bevan Commission stresses the need for social support and social change. This week, Vaughan Gething, the Minister in the Welsh Assembly, has announced plans for Wales to be the first “compassionate country”. Across society, we must all take responsibility. Loneliness is a killer.

We must recognise the unique value in each individual and harvest it, recognising that adverse childhood experiences result in poor physical and mental health in adulthood, and take responsibility. For these children, the most important factor in their future is a stable adult in their lives.

Social care prevents some problems and delays others. It does not substitute for, or replace, life-saving technology or highly complex interventions when we need them.

We need a huge shift in controlling data. Patients should be able to access all their data. The OpenNotes trial found that 99% of patients and 75% of doctors want to continue with open access.

Bevan said that we would be in a state of constant change, and we are. We must look forward. We must not carry on squeezing until the pips squeak, but we must value care, science and vocation in our staff, so that in 70 years’ time we can meet the greatest need without the threat of somehow having to find money to pay—perhaps even millions of pounds if it is life-saving.