Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Hollins and Baroness Barker

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

[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.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Hollins and Baroness Barker

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

[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.