Mental Capacity (Amendment) Bill [HL]

Baroness Hollins Excerpts

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

[Baroness Hollins (CB)]

My Lords, Amendment 29 seeks to ensure that the views of those consulted are taken into account in determining whether the arrangements are necessary and proportionate and, importantly, that particular weight is placed on the wishes and feelings of the cared-for person. I declare an interest as I also have a family member who is directly affected by the matters we are debating today; indeed, much of my Recess was spent trying to sort out his care needs taking into account his views.

While the Bill includes a duty to consult, I and many in the sector are concerned that, as currently drafted, the Bill does not adequately weight things towards the cared-for person’s wishes—the person who, of course, should be at the centre of all this. This also reflects the Law Commission’s advice about giving more weight to an individual’s own wishes and preferences regardless of whether they have been judged to have decision-making capacity—this is quite important. In a fairly recent case, Wye Valley NHS Trust v Mr B, the judge concluded:

“that an incapacitated person’s wishes and feelings should be assumed to be determinative of his best interests unless there is good reason to depart from the assumption”.

Earlier, the noble Baroness, Lady Browning, spoke importantly about the difficulties sometimes of communicating with and listening properly to people who have communication disabilities. I accept entirely that conversation with people who lack, or may lack, capacity can be challenging and requires additional communication skills, training and understanding. It is crucial that we get this right, because the consequences are significant and will lead directly to improvements or deteriorations in people’s health and independence.

It is often the case that the family are the most skilled at communicating with their loved ones and are, therefore, the ones most likely to understand their feelings and wishes. This may in some circumstances be communicated with subtlety and nuance. I declare another interest here as I chair the charitable community interest company Beyond Words. The wordless health and social stories that we create facilitate discussions and support decisions, but the discussions they facilitate are about people’s wishes and understanding; they support decisions that at the outset might appear too difficult or challenging.

Anything that enhances the understanding of the person—and of the carer, social worker or health provider—about what the person is thinking and might want takes time and skill. Sometimes people need special tools to help them. Effective engagement by support workers and carers with each individual can improve their understanding about the type of support the person requires and I hope will lead to less restrictive interventions being provided.

On this whole issue of who sits with, communicates with and listens to the person, I think many working in the care sector assume it will be an expert who comes in, yet the experts do not see that as being part of their job either. So there is a gap, where often nobody is actually doing the listening or communicating, because everybody assumes that it is somebody else’s job.

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[Baroness Thornton]

It is a spectacular omission not to mention the very person whose liberty is being restricted. I ask the Minister and the Bill team to remind themselves of Articles 5 and 8 of the UNCRPD, which mandate such consultations.

[Baroness Hollins]

This needs emphasis because of the culture of care that we have in this country. There is still such a paternalistic attitude towards the person, that not to emphasise it is to miss the point.

[Baroness Barker]

I thank noble Lords for their support. We will need to return to this and I am glad that the Minister has taken that point.

Another reason for tabling the other amendments to ensure that arrangements are the least intrusive and least restrictive option is that, as we will debate on later amendments, the Bill is somewhat deficient in the extent to which it requires that people should be given information on which to base the consultation.

I make no apologies for raising this again at this time. It is something that I hope we will discuss between now and later stages of the Bill. I hope that the Minister can understand the reasons for the concerns that lay behind the amendment. Having said that, at this point, I beg leave to withdraw the amendment.

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Moved by

[Baroness Hollins]

11: Schedule 1, page 10, line 10, leave out “, other than care home arrangements,”

[Baroness Hollins]

My Lords, Amendments 11, 12 and 13 deal with a perceived conflict of interest pointed out by numerous charities and care providers with regard to the role that care home managers are intended to play under the Bill. As drafted, the Bill places a new duty on care home managers to carry out the assessments and consultation prior to authorisation. My amendments would ensure that the duty for carrying out assessments resides with the responsible authority, with a retained duty to involve care home managers in carrying out those assessments.

I raise a puzzle that I have. I have been trying hard to get my head around some of the possible unintended consequences of the way in which we think about care homes and care home managers and the relationship between the different kinds of care and support that are provided. Some services, with great encouragement from local authorities, have been trying to convert their residential care homes into supported living houses. That has been the trend. Often, these new supported living houses are located on the same site as the remaining residential care homes or in the same area but with the same organisation running them and the same chief executive. Sometimes, the registered care home manager is not only the care home manager for the residential side but is also the manager for the supported living homes. They are located on the same site, close together and within the same organisation within the same management structure, but the organisation will have two different systems for authorising the provisions of the Act, which will be very confusing for it.

I wonder whether there might be a perverse incentive for adult social care to reverse its previously encouraged trend towards supported living, to reduce its administrative burden and to register more care homes. This seems to be a backwards step when, in times of personalisation, we want to move more people to settings that are not registered care homes, but are more supported and likely to take note of their personal wishes, if that is not too much of a conundrum. It is one of the real puzzles I have been struggling with over the Bill.

The whole ethos of DoLS was that those making the decisions about deprivation of liberty were independent of those providing care to the person, and that independent assessment is an important safeguard. More specifically, the new arrangements raise concerns that a number of stakeholders have pointed to. For example, it can be easier to care for someone by placing more restrictions on their freedom. It is harder to support them in the least restrictive way possible and to maximise their choice and freedom. We know that health and social care professionals are naturally risk-averse and, if there are some possible risks, they will often choose the perceived safer, albeit more restrictive, option over increasing liberty.

I believe the vision, which is great, is to integrate decisions about liberty protection safeguards and deprivation of liberty into care planning. This means that, at the point of making decisions about placement, decisions about restrictions are also considered, with a view to seeking the least restrictive option. This makes sense, but I do not see how this can happen if the care home is making the determination. It is already a done deal that the cared-for person is going to be in that care home. Their care manager will be looking at the arrangements within the care home. They are unlikely to say that the person would be better off and able to have more freedom in a different setting—for example, a supported living setting. There is a bit of a conflict of interest here.

Currently, the care provider feeds into the DoLS assessment, sharing their expertise as a provider. That is a different role and skill set from making decisions about necessity and proportionality. Consulting with relevant people is a different role from being one of those consulted. The assessments are complex and this new role is being placed on care managers who, by definition, have a different skill set. The sector is trying to deliver care for people who, in many cases, have complex needs and require intensive support to live as independently as possible. I am interested to know what conversations the Minister and officials have had with those upon whom this new duty would fall, as I suspect they will have raised many similar concerns.

Perhaps it is worth reflecting on the judgment by Lady Hale in the Cheshire West case. In speaking about the extreme vulnerability of the people concerned, she said:

“They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the deprivation-of-liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us”.


I wonder whether this paperwork exercise for non-objecting people is what she envisaged as an independent check. In his response, I would appreciate the Minister’s view on whether he sees a conflict of interest here and whether he agrees that the assessment should be carried out by someone independent of the care home, and who that should be. I wonder if we need to make more use of service brokers to do the care planning, listen to the person’s wishes and ensure that the decisions made lead to an effective care plan. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I have added my name to that of the noble Baroness. She has succinctly put forward the case for the removal of care home managers from this important position, and at this point, I am very supportive of that. While we debated this issue earlier, I want to come back to a point raised then. The argument was put that we ought not to worry because the local authority remains the body that approves authorisations; it will provide independent scrutiny and oversight. I have already referred to the fact that the impact assessment treats this essentially and mainly as a desktop exercise, but my advice from Professor Lucy Series of Cardiff University is that unless care home managers themselves indicate that an AMCP referral is required, all the responsible body will be able to make the decision on is the information supplied by those care home managers. She states that that is a very weak independent safeguard, and indeed it is when care managers have a financial interest in these decisions. That is why this arrangement simply cannot be allowed to stand.

The other thing I would point out to noble Lords is the evidence I received on Monday from ADASS, the association of Directors of Adult Social Services. Like everyone else, it supports the overall thrust of the Bill—there is no question about that—but it has some concerns relating chiefly to the expectation that care home managers will be responsible for the assessments required to authorise the deprivation of a person’s liberty. It says that it is in discussions with the Care Quality Commission and the Care Provider Alliance, which both have similar concerns. That answers the point raised by noble Lords about where the CQC stands in relation to this. I am not surprised that the CQC has concerns because of the very difficult challenges it faces in the care sector generally. One has to think carefully about whether adding to its responsibilities is the right course of action.

ADASS has stated:

“Whilst registered care providers have previously been required to assess individuals, to determine that they can meet the person’s needs and to undertake care planning, they have not been required to assess to protect people’s liberty. Planning Care and assessing whether deprivation of liberty is in a person’s best interest when they are unable to decide for themselves are very different things. ADASS therefore believe this to be a new activity, requiring new skills and resources. We have real concerns relating to a) care home capacity, b) care home staff competence, c) perverse incentives and potential conflicts of interest, d) additional cost (for training and additional capacity) and e) whether and how such costs will be resourced”.


Noble Lords who know those at ADASS will know that they do not make such statements without very good evidence. The noble Baroness is proposing in her amendment to take out the reference to care managers, and my assumption is that the role of assessing will be restored to the local authority, which of course was in the Law Commission’s original plan. From what I have heard, surely we have to stick to what the Law Commission proposed.

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I apologise for talking at some length on this topic, but it is clearly a very important one to explore. We need to pursue this route because it does two things: it gets consideration of the deprivation of liberty earlier in care planning and gives a more proportionate system. I also understand that we need to do more work to explain how the system we are proposing secures against conflicts of interest and provides independent oversight and expert input at every step along the way.

[Baroness Hollins]

I asked about the difference between care homes and supported living and just that conflict.

[Lord O’Shaughnessy]

I will briefly come to that. In supported living arrangements, the local authority, the CCG or the local health board would arrange the assessments. It would automatically be that body, as opposed to the supported living provider. I hope that will provide the reassurance the noble Baroness is looking for. It would be the commissioning body in that case.

[Baroness Hollins]

It may be that a lot of the thinking has been done around elderly people and people with dementia as opposed to people with learning disabilities. In the learning disability world, there has been such encouragement towards supported living that they are often within the same organisation, even within the same setting. It seems very strange that you would have a manager who ends up being responsible for a care home, where they have the responsibility, and for supported living, where somebody else has the responsibility.

[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.

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[Lord O’Shaughnessy]

There is a useful flowchart that exemplifies it and brings it to life. I will make sure that it is shared. I agree that we need to find ways of bringing it to life, and that is something we can do outside this Chamber.

[Baroness Hollins]

My Lords, I am most grateful to the Minister for his reassurance that the care home manager’s responsibility is only to arrange the assessments. The Mental Capacity Act is so important that we have to be sure that we do not make it worse. It is a good Act, and the main problem identified in the Post-legislative Scrutiny Committee was that it was not well understood. It is emerging that the stakeholders are not understanding what is intended. We should be trying to make it easier to understand and operate, not more complicated.

The noble Lord spoke of trying to legislate for a streamlined process. I am rather worried about legislating for some of these matters, and I am beginning to think that some aspects need to be in regulations rather than in the Bill, just to make things as simple as possible, but also amendable without having to come back to primary legislation. I beg leave to withdraw my amendment.

Amendment 11 withdrawn.