Mental Capacity (Amendment) Bill [HL]

Baroness Jolly Excerpts

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

Moved by

[Baroness Jolly]

31: Schedule 1, page 12, line 18, at end insert—
“(3) Where any interested party objects to the determination that arrangements are necessary and proportionate, an Approved Mental Capacity Professional (AMCP) must be engaged and the AMCP may, where they deem it necessary, refer disputes to the court.”

[Baroness Jolly (LD)]

My Lords, a cared-for person has rights, and it is the duty of all those dealing with that person to understand those rights and to ensure that they are respected and recognised. I am certain that the rights of a cared-for person should be at the heart of liberty protection safeguards. One way to ensure this is to provide an automatic referral pathway to an AMCP in those cases of dispute, objection or disagreement that cannot easily be resolved. We know that a group of cases referred to court has been pivotal in ensuring that people’s rights are upheld in the field of mental capacity. These cases provide AMCPs with the authority to refer to the court. If this authority is on the face of the Bill, it will provide an added level of reassurance that the interests and wishes of the cared-for person will be fully considered.

Cared-for people are found in many different settings in this context—in hospitals, care homes and, indeed, their own home—whether they are supported by friends and family or by a care provider. I believe that this amendment will have particular relevance in cases involving potential deprivations of liberty within the cared-for person’s own home. Although the Minister’s letter addressed after Second Reading stated that all applicants will be subject to an independent review before authorisation, the Bill as it currently stands does not reflect this—nor the ability of the AMCP to refer to the court any issues that have evaded amicable resolution. I wonder whether the Minister will look at this when he sums up, and bring back some government amendments on Report to resolve these omissions.

[Baroness Barker (LD)]

My Lords, some amendments in this group are in my name. The purpose of putting these amendments down is to enable a debate about the extent to which the Bill relies on family members to take responsibility for escalating up and—as it seemed to us when we started to read the Bill—challenging care home providers, as well as challenging any deprivation of liberty. We know from the experience of Mark Neary that he relied heavily on provisions of the Mental Capacity Act—particularly covering review procedures—to equip him with what he needed to challenge what was being done to his son. It seemed to us that, because of the way the Bill was written, there was a greater expectation that it would fall to relatives to bring matters before the court, which is not easy to do.

We realise that going to court is an expensive and time-consuming business. We do not want to refer cases to court where there is no need to do so—we want to rationalise—but in our view this part of the Bill is inadequately written. It does not contain sufficient safeguards, and therefore we wanted a debate on these matters to probe exactly what support family members will have where there is a need to challenge decisions made under LPS.

--- Later in debate ---

[Baroness Stedman-Scott]

We will ensure that guidance regarding the rare circumstances where it is not practical or appropriate is included in the code of practice. The amendment tabled by the noble Baronesses, Lady Barker and Lady Hollins, and the noble Lord, Lord Hunt of Kings Heath, requires the person who completes the pre-authorisation review, where they are not an approved mental capacity professional, to meet with the cared-for person regardless of whether it is appropriate or practical.

We appreciate that there may be circumstances where it is appropriate for the reviewer to meet the person, and the Bill does not prevent this happening. Indeed, in some cases it would be our expectation that this would happen, and further detail on this will be provided in the code of practice. However, in many cases the circumstances will be straightforward. For example, where someone consented to be in a care home but subsequently lost capacity, a meeting with the cared-for person would not challenge the outcome and it would not be proportionate to require that person to undergo the process again. The Bill provides that, prior to an application being authorised, it must first be reviewed by somebody who is not involved in the day-to-day care and treatment of the cared-for person. Where this is not an AMCP, the person who completes this review must review the information and determine whether it is reasonable for the responsible body to conclude that the authorisation conditions are met.

DoLS leads in local authorities have told us that they are already giving a great deal of thought to what they will need to see to be satisfied that the conditions are met for a liberty protection safeguards authorisation. We would do well to wait and see what the detail of that is. We will set out further guidance on this matter in the code of practice, but it is not right to require on the face of the Bill the reviewer to meet the cared-for person in every case. The Bill carefully balances the requirements necessary for authorisations across all the people involved: the cared-for person, their carers and their families, along with the healthcare workforce.

I now have a piece of paper, so I can tell the noble Baroness, Lady Thornton, that, yes, it is automatic for the AMCP to meet the person. The AMCP makes the decision on whether it is or is not appropriate or proportionate, which I believe I said earlier. Also, the noble Baroness, Lady Jolly, has made sure that we understand that what is important in this are the rights of the individual. Those are at the heart of what we are doing. She was particularly concerned about people in care homes. The system that we are bringing forward and trying to fine-tune will certainly make sure that they are given the due consideration they need. I will not repeat the points that have been made about going to court, which incurs all manner of personal and fiscal costs as well as bureaucratic costs. An appeal to the court on these things should be a last resort, because I agree completely with the noble Baroness, Lady Meacher, that such action would mean that there has been a failure in the system, which is something that we are desperately trying to avoid.

I hope that I have answered all the questions, but I know that noble Lords will tell me if I have not. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Jolly]

I thank the Minister for her response. We have had a short but interesting debate and I expect that many of us are keen to talk to the noble Baroness, Lady Meacher, because we are all quite interested in the conversation that she has just had with Sir Simon Wessely. I understand that there is no desire on his part to combine both Bills, although I feel that there should be some learning for this Bill from his deliberations. However, I will read Hansard carefully and reconsider the matter before Report.

Amendment 31 withdrawn.