Mental Capacity (Amendment) Bill [HL]

Baroness Hollins 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.

[Baroness Meacher (CB)]

My Lords, I support Amendment 45 in the name of the noble Baroness, Lady Jolly, and Amendment 47 in the name of the noble Baroness, Lady Finlay, to which I have added my name. These amendments strengthen the human rights-based duties of the approved mental capacity professional.

As it stands, the Bill weakens considerably the abilities of a person or their family or friends to exercise the convention right, under Article 5.4, of any detained person to take their case speedily to court. I think that all noble Lords understand perfectly well how this has come about. Paragraph 36 of Schedule 1 seems to indicate that an IMCA will be appointed only if the care home manager gives the relevant notification. I would be grateful if the Minister could clarify in what circumstances an independent mental capacity advocate would not be appointed under the new system.

At Second Reading, I raised my concern that the Bill was going ahead before we knew the outcome of the Mental Health Act review. The Law Commission urges the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals to review the question of the appropriate judicial body to determine challenges to authorisations of deprivation of liberty under the Bill. The Law Commission also urges the establishment of a single legislative scheme governing non-consensual care or treatment of both physical and mental disorders where there is a lack of capacity.

At that point I have to delete chunks of my speech, having just had a meeting with Sir Simon Wessely, head of the Mental Health Act review, and Judge Mark Hedley, a former head of the Family Division, who knows all about mental capacity and everything associated with it. The Mental Health Act review will recommend that there should not be a bringing together of the Mental Health Act and this legislation. Therefore, I hereby withdraw my concern expressed at Second Reading.

As I said, following that meeting, I have deleted chunks of my speech, and I am not quite sure where I can pick it up again. Basically, they agreed with me—we agree about everything, in fact—that appeal to a court should be an absolute last resort. It goes without saying that court cases are incredibly time-consuming, stressful and expensive. It has to be seen as a failure of the system if recourse to a judge is needed. I certainly have a great deal of sympathy with the argument that, as far as humanly possible, we need to focus all the resources we can on the care of individuals, whether in the community or elsewhere.

We know that, if a court demands reports, the care of the patient has to come second to those reports being produced. This comes at a time when 10% of psychiatrists’ posts are not filled and vast numbers of all doctors’ and nurses’ posts are not filled, and it is proving more and more difficult to recruit—we will not mention the reason why. It seems to me, following discussion with Simon Wessely, that it is crucial to get the process right to minimise the need to access the courts. That is what his Mental Health Act review will concentrate on, albeit it will be a lot more liberal and professional than the current Act. It is an excellent process so that we can reduce the need for access to the courts.

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[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.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have added my name to two of these amendments. We heard earlier that the Minister has agreed that the Bill at some point in the future will reflect the need to consult the cared-for person. This is clearly a great advance and sets the context for the debate on this group of amendments. I particularly commend the suggestion that the consultation should be not just about what the assessment has concluded should be done to the cared-for person—I fear that the sense of the Bill at the moment is “done to”—but what the alternatives are.

This is where I come back to one of our problems with the architecture of the Bill. So much responsibility is given to the care home manager who, inevitably it seems to me, must think about residence in a care home as being the only option because their job is to make sure that occupancy is of the highest level in order to maximise the viability of the home. It would be good to know how the Government think with this Bill and the new arrangements we are going to ensure that the alternatives are properly looked at before someone’s deprivation of liberty is actually authorised.

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Moved by

[Baroness Hollins]

38: Schedule 1, page 13, line 10, after “person” insert “or those interested in their welfare”

[Baroness Hollins]

My Lords, my Amendments 38, 39, 40, 41 and 43 would add in families, friends and carers. They build on and support Amendments 15 and 16, which were debated earlier and tabled by the noble Baroness, Lady Jolly. They would require that every cared-for person has access to an approved mental capacity professional, regardless of whether the assessor considers that the cared-for person might object to the care and treatment proposed.

Not everyone will be able or willing to risk expressing an objection to those currently providing their care. It can be very hard for a person to object to care given by a staff member on whom they may be totally dependent, and may feel obliged to agree with, when they view them, correctly, as somebody who has power over them. I suggest that for some people this will not be an easy judgment even if they are trying to object, particularly if they have difficulty communicating. It is often the case that family members are the most skilled at communicating with their loved ones, as I suggested earlier, and are therefore most likely to understand their feelings and wishes—feelings which may be communicated with subtlety or nuance, and which are unlikely to be confided to unfamiliar people or people perceived to have power over them.

In those situations where someone is not able to communicate their objections, it is vital that their family and others with an interest in their welfare are able to object for them and to trigger a referral to an AMCP—someone whom they can be confident has the right expertise. Otherwise someone with profound communication impairments might not be able to object while those close to them have serious concerns about the arrangements, yet are not able to request an AMCP. Those with the most profound impairments must not miss out on the involvement of an AMCP in this situation. In the 2014 report from the House of Lords post-legislative scrutiny committee, Nicola Mackintosh spoke about the compliant nature of many incapacitated adults. She said that,

“if you have a vulnerable person detained in a care home who is physically or verbally expressing a wish to leave, those cases are more likely to be raised before the court than cases involving a compliant, incapacitated person. That was the case in the Bournewood case. I do not think the DoLS scheme has cured the illegality”.

I do not think that the Bill, as amended, will fill the Bournewood gap. My Amendment 44B has identified a similar issue to that in Amendment 44A, proposed by the noble Baroness, Lady Thornton. It has been tabled to protect the rights of people detained for treatment in assessment and treatment units, and other hospital settings, for treatment for mental disorder. It would include NHS and independent hospitals. These are often the most restrictive settings where the liberty protection arrangements will apply and there are serious concerns about the rights of patients with learning disabilities who are placed in these settings.

However, due to the rules governing the interface between the Mental Capacity Act 2005 and the Mental Health Act, which this Bill leaves largely untouched, these patients will not receive any independent assessment by an AMCP. The reason for this, as I understand it and put as simply as possible, is that the Mental Capacity Act cannot be used to authorise a detention if the person is viewed as objecting to their detention; the Mental Health Act must then be used. This means that patients detained in hospital under DoLS or its successor, the LPS, will by definition be regarded as not objecting by those responsible for their detention. This would include people such as HL in the Bournewood case, who may not be capable of expressing an objection or whose behaviour is hard to interpret by those who do not know them well.

Under the Bill, a person will qualify for an assessment by an AMCP only if there is reason to believe that they are objecting, so for this group a specific trigger is needed to ensure that their detention is scrutinised by an independent, specially trained professional to ensure that it is justified, having regard to the alternatives. Last year there were 4,670 DoLS applications for patients in this category. I hope the Minister will agree that it is important for people in these settings to have access to an AMCP automatically.

I have also had some communication with Professor Sir Simon Wessely today, but I did not achieve the same certainty as my noble friend, who is not in her place. I hope that the Wessely review will remove the learning disability exemption in the Mental Health Act, which allows people with a learning disability to be detained if their behaviour is abnormally aggressive and so on, and that instead their detention will be on the same grounds as for any other person. I beg to move.

[Baroness Barker]

There are two amendments in my name in this group. Amendment 44 is designed to probe an issue that is clearly worrying lots of noble Lords: that the condition that triggers an AMCP is that the person is objecting to their care in a particular place. The noble Baroness, Lady Hollins, is always very good at helping us to understand legislation from the point of view of people with learning disabilities. My background and my chief concern is with older people with dementia who are probably disproportionately likely to be overlooked by this provision because they will not necessarily be vocal.

I return to the questions raised by the noble Baroness, Lady Thornton: why would you object if you do not know what you are objecting to? What will happen if you do object? Will you receive any help? Currently, best interests assessments are required for DoLS detentions but, as I understand this, where a person does not object they do not get to see an AMCP. If they are in a care home, it is the care home staff, but in hospital and community settings the responsible body can use evidence from other assessments to make a determination for somebody. What is the evidence base for this? Do we know how many people currently object to their care and treatment? Why is that considered a sufficiently robust basis on which to make this a criterion in law? There is something deeply flawed and deeply wrong about this.

Amendment 59 may seem a bit strange on the face of it. It inserts a requirement to keep a record of refusals of authorisations. One of the things that the Select Committee of your Lordships’ House found was that the evidence base for DoLS is very sketchy. I have to make it clear that the Select Committee’s report was put together and came out just around the time of the Cheshire West ruling. In the light of that ruling, the number of applications shot up. We have never had a robust evidence base for the way DoLS work. I agree with the noble Baroness, Lady Hollins, that this is not going to close the Bournewood gap, but we should at least try to cover up some of the deficiencies there have been in the past. Therefore, trying to get together some basic stats and information, including how many times things like DoLS have been refused, is important.

I know, as will other noble Lords, that among professionals, or rather among stakeholders, there was a big discussion prior to Cheshire West about whether having lots of DoLS applications was an indication that in fact you were a good provider or whether that would somehow be indicated by the fact that you had none. That is not the right calculation; you can argue it either way.

We still need to get to the bottom of the transparency of the decision-making around this. That was my reason for tabling what might seem to be a rather strange amendment.

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[Baroness Stedman-Scott]

The noble Baroness is pleased with me; that makes me worried.

The amendments from the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt of Kings Heath, would mean that the referral to an approved mental capacity professional would also be required in the following circumstances: if any person interested in the person’s welfare does not wish them to receive treatment at the place, if any other person interested in the person’s welfare makes a request, or if there is reason to believe that an approved mental capacity professional should carry out the review. I am assured that the Bill is already explicit—where it is reasonable to believe that the cared-for person does not wish to reside or receive care or treatment at a place, an approved mental capacity professional must consider their arrangements. If an objection is made on the person’s behalf by a family member of the person or someone who is interested in their welfare, we would generally consider this to constitute a reasonable objection. We will provide detail—including examples—of when an approved mental capacity professional should complete a review in the code of practice. We plan to set out in detail where this would apply in the code of practice but it will include complex cases such as arrangements proposed for people with acquired brain injuries, and people in independent hospitals receiving mental health treatment.

While I understand the intention of the amendment tabled by the noble Baroness, Lady Hollins, the effect would be that any objection by any person with an interest in the person’s welfare would trigger a referral to an approved mental capacity professional. In short, this would mean that anyone could trigger a referral. An acquaintance from social media or a distant relative would be able to raise an objection. While this might be appropriate in some cases, there may be others where it would not represent the person’s wishes and feelings. As currently written, the amendment would undermine the purpose of the duty, which is to ensure that the views of the person are central to the process. I am sure that noble Lords agree that a focus on the views of the cared-for person is vital. That is why the Government have made this core to the new model.

The amendment in the name of the noble Baroness, Lady Finlay, would require a referral to an AMCP when others have expressed concerns, when an authorisation is being justified because of risk to others, or when the arrangements involve restrictions on contact with named persons. I thank her for raising these points and we will consider this carefully for the code of practice. I also hope I can provide reassurance that the Bill only enables authorisation of arrangements that give rise to a deprivation of liberty necessary for the purpose of receiving care or treatment. We would not ordinarily expect the liberty protection safeguards to be used to authorise a restriction on contact and we will make this clear in the code of practice. I am also sure that the noble Baroness is aware that risk to others is being considered as part of the Mental Health Act review.

The noble Baroness, Lady Thornton, wants to ensure that an AMCP conducts the pre-authorisation review for everyone in an independent hospital receiving a mental health assessment or treatment. I am sympathetic to this and wish to consider the matter. Such cases should be referred to an AMCP. Detail of this will be provided in the code of practice.

We have tried to respond to all the points made by noble Lords this evening, but there is more to do. If it is acceptable to your Lordships, we should carry on talking about these issues. The Government are absolutely committed to doing this. On that basis, I hope that I may have passed the exam set by the noble Baroness, Lady Thornton, and that the noble Baroness, Lady Hollins, will be able to withdraw her amendment.

[Baroness Hollins]

My Lords, I am grateful to all noble Lords who have spoken on the amendments in this group and asked very astute questions. I am grateful to the Minister for her optimistic response, but I am not completely reassured. I disagree with her interpretation of my amendment’s intentions. I reserve the right to bring this matter back on Report after further consideration. I will certainly read Hansard carefully and look forward to any other communication which may be forthcoming from the Minister’s office. I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

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Moved by

[Baroness Hollins]

50A: Schedule 1, page 13, line 36, at end insert—
“Clinical ethics committees
20A(1) The Secretary of State must by regulations made by statutory instrument make provision for all NHS bodies to have access to a clinical ethics committee.(2) The main objective of a clinical ethics committee is to provide advice on clinical ethics to professionals on matters relating to Schedule AA1.(3) The regulations in sub-paragraph (1) must make provision for the membership, funding and constitution of the clinical ethics committee.(4) The regulations in sub-paragraph (1) may make provision to require certain cases to be referred to a clinical ethics committee, such as in cases where a dispute has arisen.(5) The Secretary of State must review the operation of clinical ethics committees and prepare and publish a report on the outcome of the review before the end of the period of three years beginning with the day on which this paragraph comes into force.(6) A subsequent report must be published before the end of each period of three years beginning with the day on which the previous report was published.(7) The Secretary of State may arrange for some other person to carry out the whole or part of a review under this section on the Secretary of State’s behalf.(8) The Secretary of State must lay before both Houses of Parliament the reports published under this paragraph.(9) A statutory instrument containing regulations under this paragraph may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

[Baroness Hollins]

My Lords, these amendments in the name of the noble and learned Lord, Lord Mackay, and myself are about mediation, conflict and decision-making. It is a complex area and made more complicated now that the Bill is being extended to 16 and 17 year- olds. Rather than taking time in your Lordships’ House this evening, I believe the noble and learned Lord, Lord Mackay, would prefer to discuss this matter with the Minister and decide whether the Bill is the right place to progress this issue. I am grateful to the Minister for already having agreed to discuss it. I reserve the right to return to this on Report if no progress is made.

[Lord O'Shaughnessy]

We have had a discussion about the issues under consideration here, which are in some ways prompted by the experience of the Gard family and their son Charlie; we are all aware of the tragic circumstances at the end of his life. We agree with the noble Baroness and my noble and learned friend that these are incredibly important issues, and we are grateful to them for tabling the amendment. However, I think this would be best pursued outside of the confines of the Bill. I give her my commitment to do that; I am keen to work with her and with all noble Lords who have a particular interest in this issue, to ensure we come to the right conclusion. On that basis, I am sure she will withdraw the amendment.

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[Baroness Hollins]

I thank the Minister and beg leave to withdraw the amendment.

Amendment 50A withdrawn.

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.

--- Later in debate ---

[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.

Mental Capacity (Amendment) Bill [HL]

Baroness Hollins Excerpts

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

[Baroness Hollins (CB)]

My Lords, I, too, congratulate the noble Baroness, Lady Barran, on her compassionate and informed maiden speech.

Many organisations working in the field of learning disability, the people who are the focus of my speech today, welcome the reform of the deprivation of liberty safeguards. Both the Joint Committee on Human Rights and the House of Lords post-legislative scrutiny committee, of which I was a member, highlighted major concerns about the implementation of deprivation of liberty safeguards. I am grateful to several organisations for their briefings in advance of today’s debate, including Mencap, the Royal College of Psychiatrists, the Royal College of Speech and Language Therapists and others. I refer to my interests in the register. I speak also as the carer of an adult relative for whom I hold a lasting power of attorney.

Recommendation 37 of the post-legislative scrutiny committee suggested that,

“replacement legislative provisions and associated forms be drafted in clear and simple terms, to ensure they can be understood and applied effectively by professionals, individuals, families and carers”.

Some of the briefings received in the last few days remind us of the complexity of this legislative area and how easy it is to misunderstand it.

Any adult, regardless of any communication or cognitive impairment, has the right to make or be supported to make their own decisions wherever possible. The Mental Capacity Act supports this principle while also providing a legal framework, the DoLS, so that decisions can be made when someone lacks capacity. When the Government introduced those safeguards over 10 years ago, the rules required that they would allow a deprivation of liberty if the chosen restraints or restrictions worked in a person’s best interests. I am grateful to my noble friend Lady Finlay for clarifying that best interests will remain integral to the amended Act. I look forward to confirmation from the Minister that that is indeed the case, as it has been a matter of some concern to the organisations briefing me. That takes us to the heart of what they were intended to do, but implementation of the Mental Capacity Act and the deprivation of liberty safeguards has been poor. The health and care sector does not have the training, awareness and skills to carry it out effectively. It takes a willingness and considerable skill to protect people’s liberty.

The impact assessment before the original safeguards were introduced estimated that 50,000 people may be eligible for them, but that the number of applications would be much lower because not all of those at risk would actually need to be deprived of their liberty to protect it. The assessment also held that numbers would fall after the initial year, as parties became familiar with the safeguards and, crucially, found ways to avoid deprivation of liberty happening. In fact, the opposite has occurred. In 2015-16, 105,000 completed applications were received, of which 73% were granted—86% in London. However, the impact assessment estimated that only 25% of applications submitted would be approved and justifiably deprived of their liberty.

The intention was that the safeguards would drive a change in practice that would seek to avoid deprivation of liberty occurring, but it has not happened. Will these new safeguards do better in preventing people being deprived of their liberty and protecting it, as originally intended? Or will they simply streamline the administrative processes and reduce the financial burden to the state of the authorisation process, while reducing the focus on an individual’s own choices and preferences? These are the fears that are being expressed.

We clearly want more than that. Our goals must be to improve care and treatment for people lacking capacity; to reduce restrictive practice; and to ensure that individuals in vulnerable circumstances, their families and carers have a say in their care. This is absolutely necessary, as people who lack capacity may be dependent on the good will of their carers for some of the most basic rights and freedoms, including, for example, the right to choose and spend time with their friends—rights which we all take for granted. This is an issue I am currently struggling with for the adult relative I mentioned earlier. There is an obvious power imbalance in these relationships. The Law Commission report suggested wider changes to the Mental Capacity Act than envisaged in the Bill, including giving more weight to the individual’s wishes and preferences and the establishment of supported decision-making. However, the Government’s impact assessment states that they have decided not to legislate for this,

“at this point, as we think there are other effective levers to deliver improvement in these areas”.

What are these other effective levers?

A key concern of the post-legislative scrutiny committee was the abject failure of many services to understand how to increase someone’s capacity by, for example, providing them with accessible information; patiently making up for limited educational opportunities by increasing their understanding; assessing their communication skills, as recommended by the Royal College of Speech and Language Therapists in its briefing; and assessing their capacity to make a specific decision on more than one occasion. This is what supported decision-making involves and it takes time. The noble Baroness, Lady Browning, explained how time-consuming this is when it is done well. Alongside the need to give individuals a voice about their own care is the need to give families and carers a voice. The principle of best interests in the Mental Capacity Act had much to say on consulting others involved in the individual’s care. I share the concerns expressed by the noble Baroness, Lady Browning, about the Bournewood gap. Would HL have still been detained today, but legally, and would his carers’ views have still been overridden? In his evidence to the post-legislative scrutiny committee, Mark Neary said that he would not want any other family to have to experience the heartache and trouble he did. Will the role of families and LPAs be strengthened or weakened by this Bill? If strengthened, will the Minister reassure the House by explaining exactly how?

Some practitioners have suggested the introduction of support agreements, which would allow people with learning disabilities to nominate their own supporter or co-decision-maker, thus shifting power back to disabled people and those they rely on to help them make decisions. These would be a bit like lasting powers of attorney, only easier to make and more geared towards supporting the person to make decisions for themselves or jointly making decisions with a trusted person. Co-decision-making is very popular with grass-roots community organisations in Canada, and it is being adopted in Ireland, Australia, Texas, Israel and many other states and countries.

The responsibility for gathering the necessary proposed assessments, identifying whether a person is being deprived of their liberty, determining the person’s capacity, and determining whether the arrangement is necessary and proportionate and who should be consulted—all of this may be left to the same person: the care home manager. This puts a large responsibility on this individual and creates a potential conflict of interest. The person who may be responsible for the deprivation may also be responsible for assessing and gathering information. This hardly seems an appropriate way to balance the power differential, and I would like reassurance on this. Do care home managers currently have the skills to take on this responsibility? The impact assessment suggests that they will need half a day’s “familiarisation” with the new policy. That would not be sufficient.

My third area of concern is the ability to appeal decisions to deprive individuals of their liberty. The new role of an approved mental capacity professional is proposed—an independent, skilled assessor with a role similar to that of approved mental health professionals in the Mental Health Act. The expertise and independence of this role is a welcome addition to the safeguards, but it seems that AMCPs will only be called upon if the individual objects. Who judges if the person is objecting? Even access to an independent review would need to be facilitated through the care home manager, as would access to advocacy. We need to think carefully about this.

Finally, the appeal process will still be through the Court of Protection, but this process has been criticised as more complex and more difficult to access than the tribunal system in the Mental Health Act. The impact assessment suggests that only 0.5% of cases will end up in the Court of Protection. But given that a quarter to a half of patients detained under the Mental Health Act appeal to the tribunal system, can the Minister explain how the Government have arrived at such a low number? The review being chaired by Sir Simon Wessely is due out later this year and, as we have already heard, some proposals are expected to relate to the interface between the Mental Health Act and the Mental Capacity Act. Could the Minister clarify, as other noble Lords have asked him to do, whether the Bill will be further amended when the Wessely review is published or whether the final stages of the Bill will be delayed until we know the content of that review and its recommendations?

This amendment Bill may work out to be cheaper for the state, although there are worries about the increased burden on care providers. The role of your Lordships’ House in Committee will be to ensure that the proposed liberty protection scheme lives up to its name.

NHS: Brexit-related Risks

Baroness Hollins Excerpts

Thursday 5th July 2018 Lords Chamber

[Lord O'Shaughnessy]

I am very pleased to do so. The Windrush generation has made a fantastic contribution to our NHS and caring services.

[Baroness Hollins (CB)]

My Lords, I am glad that contingency plans are being made. The British public voted to leave the EU because of the promise of £350 million a week to save our NHS. We now hear, however, that Brexit could have catastrophic consequences for the NHS in areas such as staff recruitment and essential supplies and for the adequate resourcing of the NHS to the standard of our EU partners—a standard that we do not yet reach. Will the Minister admit that these promises were wrong and tell the British people that we may need to think again?

[Lord O'Shaughnessy]

It would be a big mistake for anybody to tell the British people that they voted the wrong way. I point out to the noble Baroness, however, that, whatever was on any side of the bus, as a result of the funding plan announced by the Prime Minister there will be £394 million a week more in real terms for the NHS by 2024. I am also pleased to say that there are more EU staff working in the NHS today than two years ago.

National Health Service: Mental Health Funding

Baroness Hollins Excerpts

Wednesday 20th June 2018 Lords Chamber

[Lord O’Shaughnessy]

Although the particular funding the noble Baroness is talking about is a Home Office issue, I can say that £100 million is available until 2020 to support the victims of domestic violence. From the health service perspective, obviously we are increasing the amount of money spent on treating those with mental illness, regardless of the cause that gave them their illness in the first place.

[Baroness Hollins (CB)]

My Lords, does the Minister agree that more oversight is needed—not just through the mental health dashboard—of how and how well clinical commissioning groups meet the mental health investment standard, previously known as parity of esteem? Can he also explain why the mental health investment standard does not include people with learning disabilities who have mental health needs? Further, what assurances are there that clinical commissioning groups will continue with their current level of investment once the national sustainability and transformation fund finishes?

[Lord O’Shaughnessy]

I reassure the noble Baroness that there is independent audit of performance against the mental health investment standard. Anyone with mental health problems, whether they have learning disabilities or not, should certainly be included in the figures. I am alarmed by what she has said and obviously I will look into it and write to her. However, it is important to say that CCGs have been increasing their spending. In 2016-17 they were expected to deliver at least 3.7% growth in mental health spending, but the actual outturn was 6.3% growth, so that is a good story.

Long-term Plan for the NHS

Baroness Hollins Excerpts

Tuesday 19th June 2018 Lords Chamber

[Lord Hannay of Chiswick]

My Lords—

[Baroness Hollins (CB)]

My Lords—

[Baroness Manzoor]

My Lords, it is the turn of the Cross Benches.

[Baroness Hollins]

My Lords, there is much concern in this House about social care. Can the Minister confirm that the now-promised social care plan will address not only the needs of older people but the needs of all vulnerable people of all ages? It is a little-known fact that the cost of meeting the needs of people with learning disabilities will soon overtake the cost of care of the growing number of older people. It is really important to address that.

[Lord O'Shaughnessy]

The noble Baroness is quite right to highlight the care for this vulnerable group of adults. As she knows, there has been a parallel work stream alongside the work for the Green Paper. Those are two allied but separate pieces of work. At this point in time I do not have a specific date for when that work will emerge into a report or a review, but I will write to her with the details because the Government agree with her that this issue is of equal importance.

Health Inequality: Autism and Learning Disabilities

Baroness Hollins Excerpts

Thursday 10th May 2018 Grand Committee

[Baroness Hollins (CB)]

My Lords, I, too, have a family interest. My son has a learning disability and is on the autistic spectrum.

The Learning Disabilities Mortality Review report was discussed briefly following an Urgent Question last night, and the Minister made some very reassuring comments about training, on which I hope that he will expand today. The mortality review is an extremely important programme, but it cannot change entrenched discriminatory attitudes on its own. Equally important is what action Ministers, NHS England and NHS trusts take to prevent avoidable deaths, given this important evidence.

Interestingly, the recommendations in the recent report are almost identical to recommendations made in 2007 Mencap’s game-changing Death by Indifference report: make sure that hospital staff understand about people with learning difficulties. Make sure that hospital staff work together with other agencies, including families, and that they understand the law on capacity and consent. They are the same recommendations every time, but we do not seem to be able to do anything about it.

It is critical that tackling health inequalities faced by people with a learning disability and/or autism is a priority among Ministers. NHS England must continue the funding of the mortality review programme beyond its current one-year extension and continue the good work of its learning disability programme beyond next March. Other confidential inquiries are permanent. Why is this group being treated differently?

In addition, individual NHS trusts must take urgent action in line with the recommendations of the review, not least in improving learning disability awareness training and practice in relation to the Mental Capacity Act. Doctors and nurses probably need a lower threshold for admission and to understand that sending a person with a learning disability home and suggesting that they come back if they are worried is inadequate. That may be one reason for the episodes of sepsis which underlie 11% of the deaths reported by the learning disability review.

The third sector is campaigning effectively, but it needs the Government and the NHS to commit, too. Mencap launched the Treat Me Well campaign in February, an aim of which is to ensure that no health professional sets foot on a hospital ward without learning disability awareness training. Dimensions, another national learning disability provider, is launching an initiative to offer training within primary care, and we have heard about SeeAbility’s report.

In my time at St George’s at the University of London, the most effective training for medical students was co-delivered by people with learning disabilities. Sadly, it ended on my retirement, because it depends on having a learning disability expert on the staff. If it was mandated, it will be different.

We know that involving people helps health professionals to understand what it is like to have difficulties communicating or understanding complex information. I look forward to working with the noble Lord, Lord Touhig, who has raised this important subject today, and other noble Lords, including the Minister, on this agenda.

Learning Disabilities Mortality Review

Baroness Hollins Excerpts

Wednesday 9th May 2018 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I declare my interest as the chair of a social enterprise that creates communication resources for people with learning disabilities. My own research more than 25 years ago uncovered very similar shocking inequalities. The noble Lord has responded to a question about education but is it not now time for there to be mandatory education for all healthcare professionals? This is not a specialist matter. Does he agree that such training should be co-delivered by people with learning disabilities in order to reduce the fear and lack of understanding among health professionals when it comes to making reasonable adjustments? What action will be taken now?

[Lord O'Shaughnessy]

The point that the noble Baroness makes about the involvement of people with learning disabilities in this process is critical. I did not respond to a question from the noble Baroness, Lady Jolly, about communications with people with learning disabilities. Having written a manifesto in the past and having had it translated into the Easy Read format, I know that this is critical. I know that there are attempts to make sure that communications are made in that format where it is helpful to do so.

On the noble Baroness’s question about training, we have a really good template which my honourable friend Caroline Dinenage mentioned in the other place yesterday, and that is dementia training. It is tiered, with tiers 1 and 2, and it has been rolled out very broadly across the health and care sectors with great success. Therefore, I think that we have a template for doing this, and I know that my honourable friend is taking that forward. It was a specific recommendation in the report by the University of Bristol. My honourable friend committed to take forward with NHS England all those recommendations, and that is what we will endeavour to do.

The Long-term Sustainability of the NHS and Adult Social Care

Baroness Hollins Excerpts

Thursday 26th April 2018 Lords Chamber

[Baroness Hollins (CB)]

My Lords, unlike the noble Lord, Lord Saatchi, I cannot see into the future, but I remember the past. In 1980, when I was a senior trainee in psychiatry, the Reith lecture series was given by Sir Ian Kennedy, who addressed the fundamental problems with healthcare in this country at that time. High among the problems he identified was the value we place on acute hospitals. He argued that prevention was always better than cure but that, unfortunately, spending was always on cure, not on prevention. That was 38 years ago, and despite numerous transformations in the NHS, we are still having the same debate and reaching similar conclusions today. The noble Lord, Lord Prior, commented earlier that too little attention has been paid to prevention in the last six years. I suggest that it has been longer than that.

A consensus is forming today around the need for a more coherent and non-party political long-term strategy, with more robust community healthcare, social care alongside healthcare, and for the same value to be given to mental health as to physical health. In paragraph 34 of this game-changing report, the Royal College of Nursing is quoted as saying that we must consider health and care services and budgets as “fundamentally connected and interdependent”. However, we also heard today about the gap between these aims and what is actually happening on the ground.

I worked as a psychiatrist in the NHS for over 30 years, and will focus my remarks on my own areas of expertise in mental health and learning disability. These services should be at the vanguard of a new sustainable health service. Most practitioners in mental health work in community settings rather than hospitals, and I recall from my own practice my team’s endeavours to prevent the admission to hospital of people with learning disabilities who also have mental health problems, unless absolutely necessary for short-term specialist intervention. The services I developed and had the privilege of working in had close links to social care, with workers working alongside mental health and learning disability workers in community teams. They worked with some of the most vulnerable, isolated people in society who not only struggled with their mental health but had poor physical health outcomes and died much younger than their non-disabled peers. Such close working seems less possible today.

The learning disability Transforming Care programme is due to end in March next year without having changed the all-too-common factor of a one-way hospital admission in crisis being the only option available. I left the debate briefly today to discuss the case of a young autistic man who has spent the last nine years in a private psychiatric unit. He was detained under the Mental Health Act on grounds of learning disability and aggressive behaviour. A recent attempt under the Transforming Care programme to discharge him unfortunately resulted in readmission after only three months. This was because of inadequate support in the community. Funding disputes were central to that failure. The social care support provider has still not been paid a penny, and the local NHS failed to take any responsibility for him. This local failure, still repeated around the country, is priming a boom in private hospital care, costing the NHS as much as £8,000 a week per person. Long-term admissions are good for business but not good for patients. I conclude from this that the barriers within the bureaucracy currently in place are making it well-nigh impossible to provide skilled, effective personalised care for people like the young man I have mentioned.

The Royal College of Psychiatrists highlights that, despite the Government reporting “record” levels of mental health spending, mental health NHS trust income is lower than it was in 2012 once inflation is taken into account. Referral numbers are going up, while the ability of trusts to provide services is going down—the exact opposite of a sustainable system, despite a more confident and competent discourse about mental health and the promised commitment to parity with physical healthcare. According to a freedom of information request reported in the Independent, nationally 50% of clinical commissioning groups say that they are planning to spend less of their total funding on mental health during the current year. How can this be right?

Funding is now so complex that it is difficult to track how national priorities are being translated locally. In any new long-term funding plan for the NHS, new money must not simply paper over the cracks in the current crisis, shifting the problems just five years further along into the next electoral cycle; nor must the money be sucked into acute hospitals, in keeping with practice over the last 40 years. Instead, it must be distributed with a focus on prevention. Funding for mental health services must be ring-fenced. Most importantly, social care should share in the benefit from any extra resources. The Association of Directors of Adult Social Services is calling for parity of esteem for the social care workforce. Its chair wrote that it is a source of shame that this is a minimum wage workforce and asks for serious consideration to be given to regulating the care workforce and to investing adequately in it.

I commend this important report. I also commend my noble friend Lord Patel for his leadership and, in particular, for his call for better health and care outcomes for everyone, including the young man whose shocking case I described earlier.

Health: Medical Respite for Children

Baroness Hollins Excerpts

Wednesday 21st March 2018 Lords Chamber

[Lord O'Shaughnessy]

Yes, I would be happy to do so. I am disturbed by the picture that the noble Lord has painted. He will know, I am sure, that the Government have set out our commitment to end the variation in end-of-life care, and of course this is a co-commissioned service. I would be very pleased to meet him to investigate that.

[Baroness Hollins (CB)]

My Lords, what measures are being taken by the NHS to check that CCGs have the range of specialist expertise available to be able to make assessments individual by individual? These children’s needs are complex. From my experience, often the assessors may be expert in one area but not necessarily that of the case they are assessing.

[Lord O'Shaughnessy]

The noble Baroness is quite right. Many of the children we are talking about are receiving continuing care to meet all their needs, and delivering that is very complex. A national framework for continuing care is being revised at the moment, and it will provide the picture for the skills mix that is needed at local level to ensure that these children are properly served.