Mental Capacity (Amendment) Bill [HL]

Baroness Hollins Excerpts

Monday 15th October 2018 Lords Chamber

[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.

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[Baroness Meacher (CB)]

My Lords, I support Amendment 91, to which I have added my name. There is concern out in the field that care home managers will not be in a position to identify who will undertake the assessments under the Bill. It is not clear what training will be required for assessors. In his earlier comments, the Minister alluded to best interests assessors becoming the assessors under the Bill, but can he confirm exactly who will be undertaking the assessments? Only then can we be clear about what training they need.

The Minister also seemed to give the House an assurance that care home managers would not undertake pre-authorisation reviews. Again, could he confirm that and explain exactly who will undertake the pre-authorisation reviews? Again, the training of these people will depend absolutely on what their role is.

The 2008 regulations define who can undertake assessments. An assessor must be a qualified social worker, psychologist, nurse or occupational therapist. Also specified is precisely what training and testing the deprivation of liberty assessors have to undergo. Even though they are professionals and are required to have two years of experience in their profession, the deprivation of liberty training is also very precise. We need to know the extent to which the professionalism of the present system will be replicated.

The aim of the Bill is to streamline the process for authorising the deprivation of liberty. Any streamlining has to be thoroughly welcomed. I mentioned one idea of the British Association of Social Workers for streamlining. It has another interesting idea: that some streamlining could be achieved if the existing practice frameworks for care assessments and the Mental Capacity Act assessments were combined. The result would be that a trained professional undertook the deprivation of liberty assessments in the course of their other assessment work rather than having separate people. It would require revision of the codes of practice for the Mental Capacity Act and the Care Act, but it could be a useful way forward. Can the Minister explain whether this option has been considered? If not, would he be willing be to meet the British Association of Social Workers, and possibly me, to explore whether it has merit?

At present, we are clear neither about the roles of different people—assessors and pre-authorisation reviewers—nor about what their training might and should be. I would be grateful if the Minister could clarify some of these things.

[Baroness Hollins]

I am grateful to my noble friend for her support for my Amendment 91, which calls for a comprehensive training strategy to be published to accompany the Act. The amendment comes about in part because little has been said of the training that those in the care sector will receive and on whether they will be resourced to undertake it.

The impact assessment estimates that care home managers will need only half a day’s “familiarisation” regarding the new regime. Given my own difficulties in understanding the Government’s intention despite spending considerably more than half a day reading and researching it and attending many briefings—many of this during recess—I doubt that half a day would be enough.

One reason for the implementation of the Mental Capacity Act being slow is that health and care professionals probably did not receive enough training effectively to embed the Act in practice. This Bill extends liberty protection arrangements to a much larger group of people, including those living in the community. My concerns in this group of amendments, as in previous groups today, focus on the needs of people with learning disabilities and their families, who make up the second largest group of people who will be affected by these changes—in care homes, in hospitals and in the community. Many of them may have been in receipt of such care for a long time, so we are talking not about a sudden referral for care but something which has been long established and where their current deprivation of liberty may be coming to attention now.

Despite this, the impact assessment does not put a figure on the number of people with learning disabilities who will be affected and thus the number of people in a rather wider range of settings who may need training—I may be wrong about this, but I could not see that.

Any training strategy must also consider ongoing training needs and how they will be resourced. We know that the sector is stretched to breaking point, so any additional, unfunded responsibilities will undoubtedly be keenly felt. The training will also need to address the current power imbalance where people with learning disabilities and family voices are often ignored. The fear is that training will be unable to change this culture and that the power imbalance could become worse when care home and hospital managers are able to choose whom they consult. So there is a real concern about the culture.

For this reason and others, my amendment recommends that vulnerable individuals and their families be included in developing and delivering the training. Having co-delivered training for health professionals together with people with learning disabilities and families, I know what a difference this makes in bringing pertinent issues to life for those being trained. If the wishes and feelings of cared-for people are to be at the heart of the system, they must be consulted and involved in the training. I would be grateful for the Minister’s comments on this and for explanations to noble Lords about how those responsible in the sector will be trained and the resources made available.