Mental Capacity (Amendment) Bill [HL]

Baroness Murphy Excerpts

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

[Baroness Browning (Con)]

My Lords, I refer to my interests in the register. I will pick up on two points that have been raised in the amendments, particularly the amendment in the name of the noble Baroness, Lady Finlay.

At Second Reading, I too raised my concern about the status of attorneys with lasting power of attorney, particularly over wellness and health. These are some of the most personal decisions. In some ways, I am more concerned about that than about attorneys who have power over the money. Money always seems a rather black and white matter—it either is or is not a good idea. But there are many shades of grey over health and, in particular, well-being. I should like to link this with decision-making and the other point in the noble Baroness’s amendment, about the need for qualified speech and language support to interpret and make sure there is a clear understanding of what “P”’s interests really are.

When you look at certain people with certain disabilities, particularly those with communication disorders—such as autism, learning disabilities and, of course, dementia—it is not always the case that they cannot express a view. But getting to that view—unless it is a real, life-threatening medical emergency—takes quite a long time. First, particularly those with autism and a learning disability, the individual has to be comfortable and familiar with the person asking the questions, however experienced. It is no good sending a stranger in for a five-minute cup of tea and a quick chat and thinking that person will then disclose their innermost feelings. How many of us would?

The point is that getting to that view might often be about something known for many years by someone who has been appointed as an attorney with a lasting power of attorney. I believe the two things are linked in those cases. We know from the Alzheimer’s Society that such a lot can be achieved for the quality of life and well-being of people with dementia and Alzheimer’s by giving enough time, when asking a question, to allow the person to process the information before they give an answer. Brain function is very different in these people. They need time to process the question they are being asked and to process how they will communicate the answer; it can take quite a long time.

This point was picked up quickly by the Alzheimer’s Society which says, for example, on a very simple matter, that when people with Alzheimer’s in residential care homes are asked whether they would like tea or coffee and do not immediately reply, they are processing the question and that can take a long time. They might prefer coffee today, but because they had tea yesterday, the answer may be quickly assumed—“I expect you will have tea, you always have tea”—before they can even process the information and the way they will communicate the answer.

How much more complex it is, and how much more time is needed when people are being asked more complicated questions about potentially life-changing decisions. This cannot be left only to someone with speech and language experience, important as that is, and such people need to be experienced. But people with a lasting power of attorney, who might have held an LPA for many years, and who know the individual extremely well, are in a prime position to act as an interpreter when important decisions are being made.

I believe my noble friend is aware of my view on this already. Those of us who served on the original Bill and its pre-legislative scrutiny many years ago know that a lot of thought went into the existing Bill on LPAs. To have one part of a Bill give rights to an individual through their attorney but then to diminish that in another part of the Bill, through amendment, seems not only wrong but seriously, morally wrong. I hope my noble friend will address this point when he replies to this amendment.

[Baroness Murphy (CB)]

My Lords, I have added my name to Amendment 20, tabled by the noble Baroness, Lady Thornton, and I give my strong support to the amendment in the name of the noble Baroness, Lady Finlay. I pay tribute to the good sense that the noble Baroness, Lady Browning, has just brought to our debate.

A theme that will run through our discussions and will come up again when we come to advance decision-making is that we must have more respect for those who have been trusted by an individual to make decisions on their behalf. We must encourage people to make plans and to think about the future, and we must ensure that those who make the very wise decision to appoint a lasting power of attorney are respected. As we have already heard, we do so in other parts of the Bill, and we should not remove that when we come to the question of deprivation of liberty. We must incorporate it in the general scheme of things. It seems absolutely crucial that we respect decisions made by people who have power of attorney and by the court’s appointed deputies. I strongly support the amendment.

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[Baroness Jolly (LD)]

My Lords, I will resist the temptation to rerun Second Reading, but I thank all the organisations which have provided us with informative briefings as well as all the individuals, academics and carers who have done so—you all know who you are.

This rather ugly Gorgon of a Bill matters. It matters to those who are vulnerable and will unknowingly place their future in its hands. It matters to diligent professionals from both the NHS and care services. They do not know it, but it matters to the general population, too—many will become carers one day.

I wish someone had had the courage to tear it up and write a Bill that was clear, compassionate and contemporary—but they did not. Because we care we will spend the next few days in Committee and beyond, trying to make it fit for purpose. The noble Lord, Lord Hunt of Kings Heath, has given us the briefing around which we shape this debate on Clause 1 stand part and for which I thank the Relatives & Residents Association. It covers the role of the care manager, the centrality of the cared-for person and their views, best interests and advanced wishes; an understanding of what deprivation of liberty is, access to information and, indeed, cost.

It is worth mentioning that there are amendments from all over the House that cover each of these areas. Like others, I am concerned about the role of the care manager as assessor. Over the last few years I have met many kind, efficient care managers, both professionally and in my role as a carer. As professionals, they run hotel services, ensure that care needs are met and rosters are filled and deal with people who lack capacity with compassion. But experts in mental capacity they are not and I am concerned that they are given such a key role in this Bill. As chair of a not-for-profit organisation that cares for people with learning disabilities in residential settings, I know how hard it is to do this on the money that local authorities give us.

An efficient home is a full home. The person who determines whether someone should enter that setting or go somewhere else should, under no circumstances, be the manager. The conflicts of interest, no matter what checks and balances are in place, will always be there and that is the same for the private sector, not-for-profit and even, where it still exists—and I believe it does in parts—the public sector. Training and awareness should minimise this but we must be on our guard.

Everyone accepts that the 2005 Act has become not really fit for purpose and that this is a patching exercise. Everyone accepts that DoLS has run its course. Many believe that what we are trying to amend is drafted to save costs and that goes back to the briefing that this debate is based on—people live longer, care costs increase and these processes are not cheap. Can the Minister confirm that these amendments are all drafted to be the most effective way to deliver a better service and not as a cost-cutting exercise?

The noble Lord, Lord Hunt of Kings Heath, mentioned consultation, which is something that we on these Benches are concerned about. My understanding is that consultation did go on but it was with individuals grouped together—they were like focus groups of care home managers, social workers and so on. There was no consultation of the organisations, the umbrella bodies. I phoned many organisations before putting my thoughts together and tabling my amendments. All of them came back to say that they are going to see the department this week or next week but that they have not spoken yet. I think that is disappointing.

Much as there might be a temptation to scupper this Bill by supporting Clause 1 stand part, I know that it is for now the only alternative. I will do that in the hope that the Minister tells his right honourable friend the Secretary of State for Health and Social Care that it is barely good enough and that future patching of legislation is not acceptable. The people we are discussing really deserve better.

[Baroness Murphy]

My Lords, I support the noble Lord, Lord Hunt, in his endeavour to raise this important issue about care homes. I know we will return to it. This is a very good example of where I had not really thought about the twin-track approach to raising the safeguarding issue. I understand completely how this came about as an attempt to try to improve on the monstrous bureaucracy of DoLS. This is a very good example of that, to which I think the noble Baroness, Lady Jolly, alluded. We have a monstrous Bill at the moment. I remember discussions at the Law Commission with the Royal College of Psychiatrists as to how we might make it more streamlined and reduce costs, which in my view is pretty crucial if we are to target the right people. That led to the production of a process to involve care home managers which, on the face of it, looked as though it would cut bureaucracy.

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On a personal note, I have a 12 year-old niece who has severe mental capacity issues. I discussed what will happen to her when she is 16 and became aware that there seems to be a vacuum; there is an issue here which this legislation needs to address. So, in my personal capacity, I hope that we can resolve this issue. I beg to move.

[Baroness Murphy]

My Lords, I support this amendment. As the noble Baroness, Lady Thornton, has already said, the Royal College of Psychiatrists feels strongly that this would clarify decision-making. There may be issues arising from the fact that when the Bill was being put together we had not yet had the Birmingham judgment, which is why we are not quite there yet. However, having the four regimes that we currently have to choose from for this age group makes it very difficult to make appropriate choices. This would clarify it. It was strongly supported by the Law Commission in its first recommendations, and I support it.

[Lord Cashman]

My Lords, I too support Amendment 2 in the name of my noble friend Lady Thornton, and the consequential amendments. I am grateful to her for bringing her personal experience to this and reminding us of the young individuals involved. This amendment and the subsequent amendments are to be welcomed. By including 16 and 17 year-olds, it offers better safeguards to those who are not served well at the moment. The amendment would see 16 and 17 year-olds protected by the LPS. It would simplify the system, would bring clarity and ensure that their rights under Article 5 of the European Convention on Human Rights were therefore protected. For those reasons and many more, I support this amendment and the subsequent amendments.

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[Baroness Murphy]

My Lords, the noble Baroness, Lady Tyler, has produced a perfectly adequate descriptor which would substitute perfectly well for “unsound mind”. We always face this difficulty in discussing terms that relate to stigmatised disorders. We have to keep changing the language to keep it up to date and to refresh people’s thinking about what we are dealing with. “Unsound mind” went out in the 1960s and 1970s—I do not think that I have ever diagnosed anybody as being of unsound mind—and we must now have an alternative. We do not need the convenience of it remaining as it was back in the 1950s. Therefore, I support the descriptor given by the noble Baroness, Lady Tyler. It is a very good one. We have used it before and it would be perfectly adequate. Let us ditch “unsound mind”.

[Baroness Barker]

My Lords, I shall not detain the Committee for long but it is important to recap on a bit of history. The original legislation that came before your Lordships’ House on this issue—the Mental Incapacity Bill—was subject to the first ever pre-legislative scrutiny. In going through that then very innovative procedure, Members of this House and another place did a couple of things which at that time were game-changing. One was that we invited people who lacked capacity to come and give evidence to us. But we went further than that. When we produced our report, we invited them back to discuss with them what we had listened to and what we had changed. One of the first and most important things that we did was to change the title from the Mental Incapacity Bill to the Mental Capacity Bill. We also, for the first time ever, produced an easy-read version of a Bill.

I strongly support my noble friend Lady Tyler because this feels like a real regression in thinking. I understand that the term is there because somebody somewhere believes that it has a legal meaning. We came up against those same arguments all those years ago and this House led the way in getting lawyers and counsel to change their minds. I do not see a reason for us not to do the same again.

I wish to add one point. I vividly remember listening to the people whom we invited back to talk to us after we had produced our report. At this point, there were only Members of your Lordships’ House in the room—the Commons were busy and had not turned up. I remember one particular gentleman who said, “When I first saw this, I thought it was really rubbish, but actually you’ve done quite a good job”. I have to say that in all my years in your Lordships’ House I do not think that I have ever received a more sincere accolade. That is not to belittle anybody’s contribution to this, but I think that my noble friend has made a very strong point.

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[Baroness Murphy]

I really struggle to understand where these gaps might fall. For example, these people who have brain damage, which gives rise to a mental disorder, or people who have transient episodes of epilepsy, which might lead to some fugue state—would they not also be included in mental disorder, under the definition suggested by the noble Baroness, Lady Tyler? I cannot see where these gaps might arise. Have they been identified by psychiatrists? If we look through the Diagnostic and Statistical Manual of Mental Disorders, or the International Classification of Diseases, if you prefer, I cannot understand where these gaps might arise.

[Lord Woolf (CB)]

If the real purpose is to ensure protection under the Human Rights Act for those we are concerned about, has the Minister considered whether that might not be achieved merely by stating that the category of people we are looking at should have the benefit of the relevant section of the Human Rights Act? When I say the Human Rights Act, I mean the convention.

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Moved by

[Baroness Murphy]

4: Schedule 1, page 6, line 4, at end insert “, and
(d) if living in a care home or supported accommodation, meets any one of the following conditions—(i) is under continuous supervision and is not permitted to leave the premises on their own, or(ii) is subject to the use of physical barriers to limit their access to particular areas, or(iii) is subject to the use of force, including physical, mechanical or chemical restraint, or(iv) is subject to constant close observation and surveillance.”

[Baroness Murphy]

My Lords, we have come to what I regard as the most important and possibly stickiest, most difficult issue that we face. It addresses the reason why we are all here today with a new Bill to try to solve the problem of the old one, which did not work. Why did the old DoLS not work? Because they were overbureaucratic, very expensive—we are talking about £2 billion a year and this is cheaper at £300 million, although someone said to me that this costing business is rather a science fiction at the moment—could not be implemented and were predicated on a judgment in Cheshire West that extended the previously accepted notion of deprivation of liberty. I wanted to have a first go at introducing a restricted definition of what constitutes deprivation of liberty for the purposes of this Bill.

I am primarily concerned not about the cost, but the risk. When tens of thousands of people are subjected to a procedure, those whose circumstances really need scrutiny and review—because they themselves or their families or professional carers are objecting to their care or placement—are not receiving the focus and energy of the safeguarding process because they are simply lost in the morass of processing so many cases. Already we know that the tick-box mentality has pervaded the existing procedures, and that is not because the people who are trying to implement them have not been doing their best. There are not enough of them. They are trying to rush around with a list as long as your arm and they cannot get through it.

I had heard that there are now 140,000 unassessed cases, although I think the noble Baroness, Lady Finlay, mentioned 106,000. Noble Lords should think how long that list would take to deal with. With a mean length of stay in residential care of two years from admission to death, many elderly people with dementia—who, after all, are being cared for because of a terminal illness—will never be assessed before the great final assessment. By the way, I only hope that when they encounter Saint Peter at the pearly gates they do not find that a specially approved angel has been designated to assess whether heaven is in their best interests or not—it is quite possible. To return to more serious matters, it is crucial that we reduce the numbers that will be scrutinised by this system so that those who are truly at risk of abuse or of receiving less than adequate care are better safeguarded.

Of course, we could wait for another case to come before the Supreme Court for the penny to drop, but Parliament should surely provide a statutory definition of what constitutes deprivation of liberty in the case of those who lack capacity, in order to clarify the application of the Supreme Court’s acid test and bring clarity for families and frontline professionals. There is a risk that the Law Commission’s proposals—the safeguard principles have much merit—will become unworkable both in the domestic sphere, where we have hardly started to take people into the system, and with the potential expansion of the scheme into domestic care settings, which will become exceedingly invasive and difficult to operate. And that is in the context of care homes and joint living arrangements that are not being adequately met.

Many legal experts, including Lord Carnwath and Lord Hodge, found the decision in the case of Cheshire West puzzling. They said,

“nobody using ordinary language would describe persons living happily in a domestic setting … as being deprived of their liberty”.

In their evidence to the Joint Committee on Human Rights, Sir Nicholas Mostyn and Sir William Charles, retired Family Court judges, submitted that the proposed liberty protection safeguards are based on an acid test in which the starting point is legally wrong, and should be revisited. Sir Nicholas noted that,

“no case from Strasbourg has come close to saying that the case of someone of ‘unsound mind’ (as Article 5 puts it) falls within the terms of that article if they are being looked after in their own home”.

Further, he argued that,

“it is surely vanishingly unlikely that Strasbourg would disagree with the narrower test”,

that used to be used. He said that,

“it is after all completely consistent with its jurisprudence, which mandates a fact sensitive approach and which looks at the range of factors such as the intensity of the restrictions in question”.

The Joint Committee on Human Rights agreed with that point and introduced in its report the case of Mark Neary. I will not go into that case now because of shortness of time, but a number of cases were described where people were clearly being deprived of their liberty and families could not understand why it was happening. The new definition from Cheshire West cast a very wide net, capturing people who were content and those who had expressed de facto consent, albeit not valid consent for the purpose of the law. That has led to incredible family distress—people felt that their loved ones were being deprived of their liberty as a result of care plans—as well as resource issues. It sits at odds with the UN Convention on the Rights of People with Disabilities, which emphasises respecting the autonomy and wishes of those with disabilities.

The question is whether an amendment could be introduced to solve this problem. The Scottish Government gave some thought to amending their own Act and suggested a number of principles that might be followed. First, if a regime looks like detention, it does not lose that characteristic just because the person does not display opposition. Secondly, if a regime does not look like detention but the adult displays opposition to staying there, that should be considered as placing significant restrictions on a person’s liberty. Thirdly, a person may be perfectly content to move to another place of residence, but may not agree with aspects of their care, which amounts to a significant restriction on their liberty. Fourthly, a person may remain in the same residential setting, but become subject to changes in aspects of their care that mean they become subject to significant restrictions on their liberty. We often see that in care homes where people are moved from a general unit to a specialist unit for dementia, or to an elderly mental care unit when they become “unmanageable”, with quite serious restrictions placed on them.

A person may be considered as having significant restrictions if: the adult is under continuous supervision and control and is not free to leave the premises; barriers are used to limit the adult to particular areas of premises; or the adult’s actions are controlled by physical force or the use of restraints, by the administering of medication for that purpose or by close observation and surveillance, which can be very intrusive. However, measures applicable to all residents in a given place that are intended to facilitate ordinary, proper management of the premises, such as security cameras at the front door and front door locks—the sort of things we might have in our own homes—should not necessarily be regarded as restricting liberty.

It is crucial that the first principle of the Mental Capacity Act be paramount in any decision. Whenever possible, a mentally incapacitated person should be listened to and their wishes respected. While short-term memory may be seriously diminished, the individual often still recognises the people around them and can express a wish. Where there is a clear agreement between an adult, their family and professional carers, I believe the state should keep its legislative nose out. This may not be the right amendment, and I look forward to listening to others whose ideas are also contained in amendments tabled in this group, but it seems we should concentrate our resources on those who are really at risk, where we are confident that we have the resources to concentrate training and interest on a smaller group.

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[Baroness Murphy]

Perhaps I may just say that the amendment is my first stab at the issue with no help in creating it or any legal consultation. My next will be a lot better.

[Lord O’Shaughnessy]

I am sure it will be and I look forward to seeing it.

As she pointed out, the noble Baroness has a second amendment which makes the point that the steps taken to deprive a person of liberty, life-sustaining treatment or a vital act should be of benefit to that person, and of course we all agree with that. But as the noble Baroness, Lady Finlay, pointed out, before any authorisation is made or arrangements take effect, a decision will first need to be taken that the care or treatment is in the person’s best interests in accordance with Section 4 of the Mental Capacity Act 2005. It is important to note that this amending Bill does not change it, so that will continue to be true if the Bill before us in this House is taken forward as it stands. The legislation is already clear that if actions are taken to deprive someone of their liberty in these situations, it must be to the benefit of the cared-for person. That was at the heart of the amendment spoken to by the noble Baronesses, Lady Jolly and Lady Thornton, so I want to take this opportunity to say that that provision continues to exist because the best interests test foreruns the subsequent necessary and proportionate test, which we will explore in a subsequent group.

On the point made by the noble Baroness, Lady Finlay, about limiting the time for the duration of authorisation of the steps necessary for life-sustaining treatment or vital acts, the intention, as she will know better than me, is to move consideration of the deprivation of liberty to earlier in the planning stage. Nevertheless, there will be cases where it needs to be applied in an emergency situation. I do not need to bring that to light because other noble Lords have done so. Her amendment, which I think is probing, would require authorisations to be renewed every seven days. She will know that there are limited periods at the moment, but unfortunately they are not always adhered to. If we are honest, they can become a target rather than a limit, and I think that is what is happening. We need to make sure that we have a system which gives providers greater clarity but does so in a way that is more sophisticated than could be achieved in legislation. I therefore agree with her that the code of practice is the right vehicle for that because it will be able to outline the different circumstances and scenarios and thus give a much richer picture of the kind of situations and principles that ought to be considered.

This has been a very useful debate and, as I have said, I should like to take some time between now and Report to consider the opinion expressed by noble Lords and in the report of the Joint Committee about the benefits of a statutory definition. Having started that discussion, which is obviously the phrase of the evening, I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Murphy]

My Lords, I am grateful to the Minister for his positive response to the ideas if not to the amendments themselves. We will return to this at the Report stage, as he has said, and I hope that we may have forthcoming from those associated with the Joint Committee on Human Rights some support at that point for the further debates in this area. With that, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.