Mental Capacity (Amendment) Bill [HL]

Baroness Jolly Excerpts

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I do not want to detain the Committee by revisiting too much of our debate on day 2, when the Minister stated that the local authority would decide for itself how to organise and manage how AMCPs will operate. My concern is that they must be trained to a uniformly high standard. Such training should include assessment in all the key domains of responsibility. They should be registered as an AMCP and subject to revalidation over time. These people will, potentially, hold an enormous amount of power over somebody who is vulnerable.

I am also concerned that, unless those professional standards are in place, we will have a problem with quality control. In the event of a concern being raised about an AMCP, it is important that they are formally registered with the local authority. I also raise the question of how they will be indemnified and who will be responsible for their appraisal and supervision. They must have honorary contracts with adjacent local authorities to enable them to act, because some local authorities have relatively confined geographical areas. Given that these should be professionals, they should be listed with their professional body as having specialised training and skills. Another reason for this is my worry that, if they are going to function in hospitals, and unless they have a formal honorary contract from the local authority and are registered, we may end up with a two-tier system between local authorities and hospitals. I am not sure how that is going to work.

Amendment 61A seeks to expand the range of people who can train to become an AMCP. I declare an interest as president of the Chartered Society of Physiotherapy; I was at its annual conference at the weekend. I did not add physiotherapists to the list when I wrote the amendment, because I had not had a chance to consult them. However, it was evident, from many inspirational presentations, that physiotherapists working in head injury, acute trauma and stroke units, and in mental health services, can often be key to rehabilitation and restore people dramatically to a degree of independence that others had not envisaged. They felt very strongly that they did not want to be excluded; they have a lot to offer and are keen to train up, which seems very sensible.

I have also come across a few—not many—doctors who have retired from their main clinical practice but remain on the medical register, still work in some capacity or another, and, in later life, have developed an interest in people with impaired capacity. They have years of experience behind them, particularly in old-age psychiatry and so on, and would like to train as an AMCP. The criteria on which to select people should be their motivation, personal skills and background experience. We should not judge them by their original clinical degree qualification, because that is arbitrary. It does not mean that just because you are a nurse, a clinical psychologist or a social worker you would be perfectly fitted to this role; nor does it follow that because you are a speech and language therapist or a physiotherapist or whatever, you would not be suitable to take on this role and these responsibilities.

I therefore hope that the Minister might be able to expand a little, or perhaps not even discuss it here but think again, on how we will ensure that the people who carry this responsibility are trained to a uniformly high standard, are properly indemnified, can be identified, are able to function properly and can be held to account for the way in which they take decisions and advise. I beg to move.

[Baroness Jolly (LD)]

I would like to add a few more points on training. An awful lot of people in an awful lot of new roles will require training to get whatever system that we are going to end up with up and running at pace. Which organisation will be responsible for setting up the programmes for ensuring the delivery of good-quality training? Who has the responsibility to ensure that nothing is implemented until all the appropriate professionals have received their training? There is nothing worse than determining a date to fire the gun if you discover that all the people who are going to run the system are not yet trained. Can the Minister confirm that all this will start with plenty of time before the rollout of this new system? We expect that training should be effective and ongoing. Who will assess the trainers? What is the process for ensuring quality and a national standard? We may well be able to twist something that currently exists and make it work, but I do not have that knowledge. Can he also confirm that, as part of this training, the rights of the individual will be reinforced? Will the training clarify the role that each of these professionals within this new system is going to have in ensuring that an individual’s rights are observed and respected?

[Lord Hunt of Kings Heath (Lab)]

My Lords, I want to follow up the remarks of the noble Baroness, Lady Finlay, by referring to the recent CQC annual report, which had a section on the implementation and practice in relation to DoLS. The report laid out a number of key concerns about care home and hospital providers that are actually using DoLS at the moment in relation to the Act itself. There is a huge variation in practice and this variation is commonly linked with a basic lack of understanding of the law, which is complex and difficult to understand. The report says that the result is that there are unnecessarily restrictive practices that can result in the loss of freedom and, in some cases, the loss of people’s human rights. The problems are reinforced by limited staffing levels, a lack of time to complete applications and inadequate staff training.

I am aware, of course, that the intention of this Bill is to streamline some of those procedures, although I think that, because the safeguards have been drastically reduced, we might be landing ourselves in future problems once the courts begin to hear some of the cases that will arise. The point is that it is quite clear that, at the moment, effective training is not taking place among many of the organisations involved in the operation of DoLS. The risk is that the same will happen in relation to the new legislation. We need some guarantees that there are going to be resources and a concerted training programme to ensure that we mitigate that impact.

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[Baroness Barker]

My Lords, I want to make a couple of quick points. The noble Baroness, Lady Murphy, is of course right that the whole issue of DoLS and the community is known to be a problem. However, the examples she gave seem to me to be examples of people not understanding the DoLS legislation and applying it wrongly, rather than the legislation necessarily being wrong. It is always important to make the case for the rights of families to reject undue intrusion, but I want to share with her the case of a young man with whom a learning disability organisation was working. The organisation achieved great results and he did really well. Prior to his involvement with the organisation, he would sit all day in a part of the living room that had been bricked off by his parents, with his own chair, his own television and being fed through a hatch. That was in a domestic setting. I need not tell the noble Baroness that we need to be quite careful when drawing up legislation.

It is a great shame that we have been presented yet again with a piece of legislation that came out of nowhere when we could have had a proper consultation. The people who are out working in the field at the moment having to administer DoLS understand many of the problems. They know that issues that arose partially from the application of the Cheshire West ruling and the High Court judgment have caused a problem. But amending a really bad Bill is not the way to deal with this problem.

[Baroness Jolly (LD)]

I want to make a couple of points, but I first draw the attention of noble Lords to my interests in the register relating to learning disability. It is interesting how to read this amendment. I looked at it and thought about individuals in domestic settings, and the charity that I chair does just that. We put four or five individuals into a domestic setting. A proportion of them will have a DoLS. If noble Lords go into the house, it looks just like an ordinary home. Each resident pays rent and would consider it very much their home. Carers offer 24-hour support and locks are well and truly in evidence. Over the weekend, I asked our director of operations what proportion of the people we support were subject to DoLS, and she said thousands. It is just the norm.

I understand that the noble Baroness’s intention was to take this into a family setting where there is mum, dad and a child who may well be an adult—certainly, we see parents in their 80s caring for their children with a learning disability who may be in their late 50s or late 60s, and the parents are at their wits’ end. All that fits with this amendment so, whatever its merits, the wording needs to change but it is certainly worth pursuing.

[Lord O'Shaughnessy]

I am grateful to the noble Baronesses for leading this debate. Obviously, the bulk of the debate focused on Amendment 87C, which would exclude people residing in domestic settings, and we have discussed the merits of that approach. The noble Baroness, Lady Meacher, gave a thorough exploration of alternatives to the LPS system in a domestic setting. The noble Baroness, Lady Murphy, gave a passionate defence of the role of families in caring, which was perhaps accentuated by the noble Baroness, Lady Wilkins, talking about the need to avoid overzealous application of any new provision of deprivation of liberty safeguards. My noble friend Lady Barran talked particularly about the group of people who lack a care plan and their interaction with the care system if they go temporarily into a care home. For me, all that brought home that we have further work to do on the appropriate system that applies in a domestic setting, to put it shortly.

It was helpful that the noble Baroness, Lady Barker, told us the story about the vulnerable person. We all agree that something needs to happen in that case to check the actions of the family or help the family to do better. They may just not know what to do or be at their wits’ end—who knows? We can imagine how easy it is to fall into those situations not out of intention but out of pressure and circumstance. That debate highlighted how important it is to get that right. I absolutely want to avoid intrusion where it is not necessary, but equally we need to ensure that those people deprived of their liberty receive the proper protections due to them under Article 5 of the ECHR. This is an issue that clearly needs more work. The amendment was not designed to perfect the solution but rather to start the conversation, and it is absolutely one that we will take through with noble Lords.

I turn briefly to Amendment 83B, moved by the noble Baroness, Lady Thornton, which seeks to introduce a legal presumption that a person should give evidence in all Court of Protection proceedings. Obviously I agree with her about the importance of this issue. She called it a reasonable point and I think it more than reasonable. It is essential that in any court proceedings a person’s rights are protected and that the cared-for person has the opportunity to give evidence to the court in any case concerning the deprivation of liberty. I am happy to be able to confirm that this is already reflected in the Court of Protection rules. The court’s overriding objective under the rules is to deal with cases justly and at proportionate cost. They expressly include ensuring that the person’s interests and position are properly considered and that the parties are on an equal footing. A new set of rules was introduced less than a year ago. They include changes to ensure that a person is able to participate in proceedings. Specifically, rule 1.2 requires the court to consider in every case how best to secure the cared-for person’s participation. It sets out a range of options including the cared-for person addressing the court directly, indirectly or with support from a representative, a litigation friend or an accredited legal representative. I hope that that provides the noble Baroness with the clarification that she was looking for and that she will feel able to withdraw her amendment.

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Moved by

[Baroness Jolly]

86: After Clause 3, insert the following new Clause—
“Requirements before commencement
(1) Before all provisions of this Act other than those which come into force on its passing can come into force, the requirements under subsection (2) must be met. (2) The requirements are as follows—(a) the Secretary of State must publish an updated code of practice giving guidance for decisions made under the Mental Capacity Act 2005, including the provisions of the Mental Capacity Act 2005 that are amended by this Act; and(b) the Secretary of State must publish a response to the Independent Review of the Mental Health Act, chaired by Professor Sir Simon Wessely.(3) The Secretary of State must lay a copy of the publications required by subsection (2) before both Houses of Parliament.”

[Baroness Jolly]

My Lords, I shall speak also to Amendments 87, 93 and 94 and address the amendments tabled in the name of my noble friend Lady Tyler and the noble Lord, Lord Touhig. Amendments 93 and 94 are simply enabling provisions.

Amendments 86 and 87 would require that, before the implementation date of this legislation, the Secretary of State should lay before both Houses of Parliament a copy of the updated code of practice giving guidance as well as a response to the review of the Mental Health Act that Sir Simon Wessely is carrying out. We have been half guessing in our discussions what might or might not be in it.

The Bill is not particularly easy to read and it is certainly not a guide for practice, and the ensuing Act will not be easy to read either—unlike the Care Act. The code of practice is absolutely critical to take professionals through what the legislation will entail and what they will have to implement in their practice. To that end, I have a little list. I wonder whether the Minister can indicate or confirm whether these issues will be covered in the code: the basis for detention and when the “necessary and proportionate” test applies; the role of IMCAs and appropriate persons; the professional qualifications and training of those undertaking pre-authorisation reviews; when an AMCP referral should be made; and obligations to provide information to the person and their family about the authorisation. The Minister may not have the answers on his person or from the Dispatch Box right now, but perhaps he could write to me and make that clear.

To make this happen, we would need subsection (2)(a) of the new clause proposed by Amendment 86 and a year’s wait. Many noble Lords have spoken both on and off and in Committee about the Mental Health Act. In our previous debate, the noble Baroness, Lady Meacher, referred to the work of Sir Simon in reviewing that Act along with the Act we are trying to amend now. Between them, the two Acts define, among other things, the care and rights of the most vulnerable—those with mental health conditions and those lacking capacity—who are unable to make decisions about their care. Sometimes, but not always, there may be an overlap. It would not be prudent for the Bill to end its passage through Parliament without us learning the findings of the Wessely review and determining whether it is necessary to amend the Bill further—hence the need for subsection (2)(b) of the new clause proposed by Amendment 86. Earlier today, the Minister spoke about pushing ahead. I understand the need for urgency, but I fear that if we pass the Bill in haste, we may end up repenting or regretting at leisure. That is just me being slightly cautious.

Amendment 87 calls for the Secretary of State to,

“lay a copy of the report before both Houses”.

He or she—who knows who it will be by then—is being asked to look at how the Act is working and whether they are confident that there is an improvement in the process surrounding the deprivation of liberty. We have all discussed this issue; the Minister will have detected the Committee’s concern about this area of the Bill. Basically, I am calling for the Secretary of State to report back on the impact of the Act and ensure that the code is well and truly in place before we start to use the Act in earnest.

I added my name in support of my noble friend Lady Tyler’s amendment, which seeks to ensure that regulations are scrutinised and debated in both Houses. It would also ensure that consultation takes place outside Parliament, which is critical. It is fine for us to debate these issues here—clearly, some people have more experience and understanding than others—but I get many letters from not just individuals who are, or would be, affected by the Bill but the sector, saying, “Keep the Government’s feet to the fire. Make sure we get the very best Bill we can”. I do not doubt at all the Minister’s intention to achieve that end, but the devil is in the detail and there is a lot of it. We must make sure that we get this right through primary legislation. As I said, there is much expertise but we all welcome the opportunity to look at the detail of regulations, both accompanying primary legislation and in any future proposed changes.

Under DoLS, a number of important things were set out in regulations, particularly: who best interests assessors were and how they were to discharge their duties; the timeframe for carrying out assessments; the type of information that would need to be collected; and details of how disputes might be resolved. As my noble friend Lady Tyler will highlight, this is not just about ensuring that regulations are debated; it is about how those in the sector—families and vulnerable people themselves, I would suggest—are consulted and involved in getting the detail right in both initial regulations and any subsequent changes down the line.

To bring this matter into sharper focus, I wonder if the Minister might be able to confirm what he thinks might go into regulation? I hope he would also confirm that regulations laid accompanying this Bill, and any amendments down the line, are subject to the fullest scrutiny both in this House and in the sector. This will mean a decent time gap will have to be found between the laying of the regulations and the debates in both Houses.

I welcome Amendment 92, in the name of the noble Lord, Lord Touhig, which would see another two independent reports commissioned by the Government. They would be laid within two and four years of implementation, to provide a valuable update as to how implementation was proceeding and highlight areas for improvement. We will need to monitor the implementation of the Act, however it may end up, really closely. We are dealing with the most vulnerable in our society.

These amendments are based on the PIP independent reviews, which have proven successful in highlighting problems. While I am sure many in this House would agree that there are still things to improve in terms of personal independence payments, the oversight provided by the independent reviews has been invaluable in terms of recommending important changes aiding implementation. There are many important issues to review: best interests decisions—ensuring that they are just that, and not based on commercial or other considerations; a monitor of advocacy offered and its uptake; the involvement of P—the cared-for person—and not just professionals, but also those who care for P, and the families of P. I am happy to support those particular amendments, and beg to move.

[Lord Hunt of Kings Heath]

My Lords, I have three amendments, starting with Amendment 87A. It sets out a number of requirements before the Act can come into force, embracing a set of independent reports that I would like to see commissioned by the Secretary of State. They address work on the rewording of the expression “unsound mind”; the availability of independent advocacy; appeals on behalf of cared-for persons; the availability of legal aid and support for cared-for persons participating in court proceedings; and short and long-term costs for implementing provision bills for local authorities, the courts and the health service. I recognise some of these points have already been discussed, on the second day of Committee in particular, and the Government are bringing forward amendments so the Bill reflects the need to consult the cared-for person. The Minister also agreed to look further at the expression “unsound mind”, which many believe is stigmatising and outdated language.

I hope the Government might just go further. This amendment is based on the report of the Joint Committee on Human Rights and reflects some of the issues it would like to see covered in legislation. I will not comment in detail, but I want to come back to the role of the Court of Protection. We discussed this on the second day of our proceedings, and I think the Committee was informed by the view that recourse to the Court of Protection should be avoided wherever possible, because of the stresses and strains involved and the cost. I am certainly conscious that we do not want to create a situation where mental capacity professionals defer their responsibility to the court, and individuals have to undergo court procedures unnecessarily.

According to Dr Lucy Series of the School of Law and Politics at Cardiff University, while the cost and stress of applications to the Court of Protection is undeniable, research by Cardiff has shown that the Government have taken the decision not to reform the Court of Protection, which would make it less costly, less stressful and more like the tribunal approach that many noble Lords would like to see. It is instead being managed by, essentially, restricting access to justice. A week ago, the noble Baroness, Lady Stedman-Scott, said that,

“if a person wants to challenge their authorisation in the Court of Protection they have the right to do so”.—[Official Report, 15/10/18; col. 371.]

However, the practicalities are that people may experience extreme difficulty initiating a court action without assistance, as will their families. The evidence on this matter was very clear to the House of Lords Select Committee on the Mental Capacity Act and the Law Commission. I hope that the Government will consider it.

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[Lord O'Shaughnessy]

My Lords, I am grateful to all noble Lords who have tabled amendments in this group. We have had a wide-ranging debate on areas where they would like to see various enactments, changes, reports and so on, before commencement and following implementation. I will attempt to deal with them thematically.

Amendment 86 requires that before commencement the Government must publish the code of practice and our response to the Mental Health Act review. Amendments 93 and 94 update Clause 5 to reflect this. I am happy to confirm that the Government will have published both of these before the new system commences.

Amendment 87 requires that the effectiveness of the Act is reviewed and a report laid in Parliament within a year of the Bill coming into force. As the noble Lord, Lord Touhig, just pointed out, Amendment 92 requires the Secretary of State to commission two independent reports on the operation of the new liberty protection safeguards scheme two and four years after the new system comes into force. Again, I am happy to assure noble Lords that the Government routinely conduct post-legislative scrutiny for all new Acts. The relevant guide says that within three to five years of Royal Assent the Government will be required to submit a memorandum to the relevant departmental select committee with a preliminary assessment of how the Act has worked in practice. I am happy to confirm that the Bill will receive such scrutiny and the Health Select Committee will be informed.

Amendment 87A, in the name of the noble Lord, Lord Hunt of Kings Heath, details requirements regarding a number of topics. As he pointed out, a number of these have already been addressed in our debates, including unsound mind, issues around advance consent, the availability of non-means-tested legal aid, and others. We have had a debate on the rules and guidance around IMCAs, which we are clearly going to take forward. He focused on tribunals. The Government are reviewing the courts and tribunals system but that review has not concluded. We are not proposing to change the position on the Court of Protection hearing challenges to liberty protection safeguards in the Bill precisely because there is not yet an opinion or a policy change from the Government with regard to a proposed new system. He also asked about the cost implications, which are outlined in our impact assessment, as he will know.

The noble Lord’s second amendment, Amendment 87B, seeks to make the CQC the regulator for the liberty protection safeguards. The Bill allows for bodies to be prescribed to report and monitor the scheme and it is absolutely our intention that the CQC takes on this role in England. It clearly has an important role in oversight of the new system, although we are concerned that his amendment would introduce additional layers of regulation. It should also be pointed out that the CQC is an England-only organisation; in Wales, the overseeing regulators are expected to be Healthcare Inspectorate Wales and Care Inspectorate Wales, which will both take on this role.

Amendment 87D was tabled by my noble friend Lady Barran and the noble Baroness, Lady Finlay. It would require responsible bodies to consider criteria to be published by the Secretary of State around best interests and the least restrictive option before authorisations are approved under the liberty protection safeguards. These are of course absolutely key principles of the Mental Capacity Act, and responsible bodies will have to consider them as part of any authorisation. As I have set out in previous debates, these factors already form part of the necessary and proportionate assessments, as well as other factors such as considering the wishes and feelings of the person. We will explain in the code how this assessment should be carried out and the factors that assessors should have regard to. I am grateful to my noble friend for some suggestions in that regard and I have just confirmed that the code would be published before commencement of the new scheme.

Amendment 87F, in the name of the noble Baroness, Lady Tyler, would remove the power of the Court of Protection to call for reports from local authorities and NHS bodies in cases relating to a cared-for person under the schedule. We think it is important, as I am sure she does, that the Court of Protection has access to such information but I heard the story that she told about an undue burden. I am certainly happy to commit to her that I will speak to colleagues in the Ministry of Justice to see whether there is any way that this process can be improved without removing the ability of the court to access the information it needs to make proper determinations.

Amendment 92A, in the name of the noble Lord, Lord Hunt, seeks to ensure that the liberty protection safeguards do not apply to any existing or pending DoLS authorisations. I can confirm that existing DoLS authorisations can continue until they are due for renewal or review. Clearly, depending on the final outcome of the Bill, the frequency with which those are renewed or reviewed will mean that there will be a steady stream of DoLS authorisations coming under the liberty protection safeguards in future, for those that are rolled over. Careful work will clearly need to be done with the sector to ensure that a tsunami of new authorisations does not happen but allowing for authorisations to continue under the previous system, until they can reach review or renewal, should go some way toward mitigating that risk.

Finally, Amendment 88, tabled by the noble Baroness, Lady Tyler, states that regulations should be subject to the affirmative parliamentary procedure and a consultation requirement. We have of course asked the Delegated Powers and Regulatory Reform Committee for its opinion on the regulation-making powers within the Bill and it has accepted that the negative procedure provides appropriate parliamentary oversight. As the Committee knows, we go against the DPRRC’s recommendations at our peril.

I apologise for detaining the Committee for six or seven minutes but I wanted to be thorough. I hope that I have been able to give the reassurances that noble Lords were looking for about the safeguards that we will put in place before commencement and the reviews of effectiveness to ensure that the system is working as intended. I hope that noble Lords will feel able to withdraw or not move their amendments.

[Baroness Jolly]

I thank the Minister and others who have spoken on this group. We all want to ensure that the new mental capacity Act—presumably of 2019—works and that the Department of Health and Social Care monitors its implementation. I know that we on these Benches look forward to working with the Minister and others between now and Report to ensure that the Bill is actually fit for purpose. I gently suggest that a longer time gap than is usual between Committee and Report might be needed. I guess that those conversations might need to be held with the usual channels but, in the meantime, I beg leave to withdraw my amendment.

Amendment 86 withdrawn.