Mental Capacity (Amendment) Bill [HL]

Baroness Greengross Excerpts

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

[Baroness Greengross (CB)]

My Lords, it has been a real privilege to hear the noble Baroness, Lady Barran, give her maiden speech. I enjoyed listening to her, and I think that we will all benefit enormously from her experience and her commitment to vulnerable people. I share that passion, so I hope we can do a lot of work together. She brings such a lot of important experience to this House. She has worked for many years to make a difference to the lives of a huge number of vulnerable people. I share her passion to eliminate domestic abuse and other forms of abuse and I hope that we can do some work together in future. I have worked in the field, particularly among abused older people, and the noble Baroness has done a lot of work among people of all ages. I have heard that she has four children and I have four children. I wonder whether there is a connection that brings our interests together because we know what bringing up a large family means. I wish her every success. I am sure that she will enjoy being in the House. I—like, I think, everybody listening to her today—look forward to working closely with her and gaining from her very valuable experience and commitment to people who are vulnerable and who need help and advice from her and from all of us.

I welcome the Bill, which has many positive features. It includes a lot more person-centred care planning, it attempts to reduce bureaucracy and it provides clarity around responsibilities for those closest to the delivery of day-to-day care. I acknowledge that there are omissions. Noble Lords who have spoken have pointed them out. We will concentrate on them as the Bill goes through our House.

Recognition that the system in its current form is overly technical and legalistic is long overdue. Indeed, in her letter to the All-Party Group on Dementia, which I co-chair, the Minister, Caroline Dinenage MP, remarked that the current system places too heavy a burden on people and their families and too often fails to achieve the positive outcomes that underpin the purpose of the process. I agree, and our committee will do all we can to help her make the Bill work and improve its outcomes, and I look forward to working with the Minister in your Lordships’ House to make that happen.

In 2013 our Select Committee on the Mental Capacity Act 2005 found that its provisions were inadequate and left those deprived of liberty without adequate protection. The committee felt that the provisions were poorly drafted, overly complex and bore no relation to the language and ethos of the Mental Capacity Act. The safeguards are not well understood and are poorly implemented. With this legislation, the appropriate delicate balance has to be struck between the protection and empowerment of individuals, who may lack the mental capacity to make their own decisions about their care and treatment, and the duty of care to staff, other patients and the public at large that the state has to protect them from the behaviour of people who may not be fully responsible for their actions.

I am not fully certain that in the Bill, despite the Government’s best efforts, we have got the balance entirely correct. Noble Lords will be aware that I am committed to promoting human rights for vulnerable people, so I welcome anything that seeks to drive up standards and accountability in the social care sector. I have been contacted by a social worker and co-ordinator from south Wales who is concerned that the new scheme, with its significant increase in legally prescribed duties for social workers, has not been fully discussed with leaders in the care provider sector. Indeed, he feels that many care home staff are scarcely aware of it and will be very concerned about these changes as they may not be well informed enough to make the crucial decisions that will be needed. He feels that the lessons of the patchy implementation of the Mental Capacity Act to date have not been properly studied and that it may be that all we do is simply transfer the burden, backlog and chaos from statutory bodies to unprepared care homes. Could the Minister reassure us that, in his view, there has been appropriate consultation within the care sector?

I also share the reservations expressed by the charity VoiceAbility about the lack of weight given by the Act to the wishes, feelings and views of the cared-for person or their family and carers, with concerns about how compliant with Article 5 of the European Convention on Human Rights the new scheme is. Under the Bill, the right to refuse a deprivation of liberty safeguard by a lasting power of attorney or a deputy has been removed, so we have concerns that the rights and safeguards for the cared-for person might be diminished by the Bill.

It is good news that £200 million a year will be saved by local authorities. However, we have to suppose that the increased role of NHS and independent sector providers will lead to increased costs elsewhere, while the new responsibilities being imposed on care homes, hospitals and CCGs will need some thought, resources and training. For example, the Royal College of Speech and Language Therapists argues that assessors often do not recognise or know how to support communication difficulties. One can envisage that this could be a real problem if English is not the first language of the patient or their family.

As a vice-chair of the Local Government Association, I share its assessment that the transition to the new framework and its future framework implementation should receive additional resources to reflect the additional costs that may be associated with the change. I also share the view of ADASS that a period of transition is likely to be needed to enable hearth and care staff to adapt to the new system. I hope that the Minister will be able to reassure us on these points, that an appropriate cost-benefit analysis of the changes will be in place and that the training and integration aspects have also been fully thought through and costed.

I have one or two other reservations. I do not think it unreasonable to ask the Minister to explain why, when the Bill so closely follows the recent proposals from the Law Commission, it differs from them in several significant respects. For example, the regime applies only to those who are 18 and over although the Law Commission argued that LPSs should apply to 16 and 17 year-olds because it feels that the current regime is inadequate and is failing to protect the rights of some young people. The Government said they accepted this recommendation in principle but would,

“need to consider in more detail this recommendation’s practical application and implementation”.

Turning to older people, I welcome the inclusion of a new special procedure for care homes within the scheme, which gives them greater responsibility for arranging the assessments of people who may lack capacity from dementia. As much as I welcome this change, I share Age UK’s concern that provision must be made to ensure that care home managers have the training and resources to be able to clear the significant backlog of assessments under the Bill’s provisions.

In my view, the Bill should set out a specific route for authorisations within a person’s home. Can the Minister assist the House by explaining how he sees at-home assessments working? I note that the new system retains the distinction that, where an individual who could be detained under the Mental Health Act objects to being detained, they cannot be made subject to an authorisation under new Schedule AA1. I also share the concern of the Alzheimer’s Society that the current interface between the Mental Health Act and the DoLS process for authorising deprivation of liberty within the Mental Capacity Act is a key issue for people living with dementia.

Lastly, the Bill makes provision for the introduction of approved mental capacity professionals, who must carry out the pre-authorisation review and determine whether the authorisation conditions are met. This role replaces the best interest assessors’ role under the Mental Capacity Act. However, the Bill and the Explanatory Notes do not detail which professionals could act in this new role and how they interact with other clinicians. I know that the General Medical Council sees potential for conflict between its regulatory standards and the proposed legal requirements. It has called for more clarity about doctors’ roles and responsibilities in such a challenging area. Perhaps the Minister could explain a little more about how and when the Government plan to firm up the status and context of this important role.

In closing, we must find a way to define deprivation of liberty more clearly. The JCHR’s view is that this is needed to clarify the application of the Supreme Court’s acid test, which sets out questions that must be considered when determining whether an adult who has been assessed as lacking the capacity to consent is being deprived of their liberty. Without a clear definition, there is a risk that the Bill will be unworkable, particularly in domestic settings. The development of the LPS must also be considered in the wider context of other issues within the health and social care system, such as the upcoming Green Paper on care and support reform and the independent review of the Mental Health Act.

The Government need to act speedily to ensure that the rights of this group of very vulnerable people are clarified and that their needs are met quickly. They are not in a position to wait any longer.