Mental Capacity (Amendment) Bill [HL]

Baroness Murphy Excerpts

Monday 15th October 2018 Lords Chamber

In summary, these amendments seek to ensure that we personalise the definition; that we do not confuse restrictions through disease and disorder with restrictions imposed by people. All restrictions imposed by people must be fully recorded and justified to empower the person to live as well as possible. I am not sure that we will come up with a concise definition in the Bill—perhaps it may be better if we do not carry on trying—but we must address the concepts in a code of practice or even, possibly, in regulation, which could be changed more easily. Otherwise we risk another legal case of poor care and poor decision-making which then goes on to have unintended consequences. I fear that at the moment we are living with some of the unintended consequences of things that have happened historically. I beg to move.

[Baroness Murphy (CB)]

My Lords, I congratulate the noble Baroness, Lady Finlay, on again introducing this discussion on a difficult topic. I do not share her pessimism that it is impossible to find a definition. It would be quite simple to have a definition in the Bill which would enable us to distinguish between those who are and are not being deprived of their liberty.

The fact that people are deprived of their liberty, in reality, by their condition is an irrelevance. We have to stick with what is happening to people; what we, the state or the carer are doing to the individual. We would not find it too difficult to decide what is or is not a restriction. You can compare the living accommodation of a person in a care situation to that of someone who is living in the same place without those restrictions. Care home managers would not have too much difficulty in saying who was and who was not restricted.

We should not give up trying to have some kind of definition that lists those conditions. People might be receiving sedative medication so that they cannot move around and others might be restricted physically—there are still people being restricted physically—in dreadful chairs and so on who cannot move about. We could define fairly well what the conditions are. I hope we will come back on Report with some clarification of what they are so that we can put something in the Bill. I worry that if they are in the code of practice it will be so flexible that it will result in a postcode lottery, with one area’s policy different from another’s. That would be a disaster.

We should be able to get something in the Bill. I hope that we will not give up at this stage.

[Baroness Barker]

Following on from the observation made by the noble Baroness, Lady Murphy, one of the most common restrictions of liberty is medication and medication reviews. We often think of it as being physical but it is not. New medicines often come online and create change. I take her point and hope we will be able to work towards a definition.

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[Baroness Murphy]

I believe that it is the amendment of the noble Baroness, Lady Finlay.

[Lord O'Shaughnessy]

I thought Amendment 81 was tabled in the name of the noble Baroness, Lady Murphy. Anyway, it does not matter in whose name it was, those reassurances are in the Bill. If there are any niggling concerns about that we can, of course, make that clear offline. On that basis I hope the noble Baroness will be prepared to withdraw her amendment and begin those discussions in earnest.

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[Baroness Barker]

My Lords, I have two amendments in this group, Amendments 60 and 62, to which I shall speak briefly. To reiterate, the responsibility for this law lies and remains with the responsible bodies, and not with the care providers. If things go wrong, it is they who will end up in court. Consequently, and rather like the bodies under the Mental Health Act, they retain responsibility for ensuring enough sufficiently trained people are available to ensure that the law is applied properly.

Part of the reason for all noble Lords having such an interest in this issue is that we know from the review of the Mental Capacity Act that availability of trained staff is one of the biggest reasons why the Act failed to be properly implemented. Furthermore, we have statistics on the patchy nature of implementation by local authorities and some in the health service. Some authorities absolutely get this and implement it properly, but a lot just do not. It is an almost random distribution, which has a knock-on effect.

The other reason for noble Lords wanting to talk about these issues is the impact assessment. We have not really talked about the impact assessment for this Bill. The noble Baroness, Lady Murphy, used some particularly strong words, but she let them off very lightly, because I do not see how that impact assessment stacks up. Perhaps I may ask the Minister about one of the many assumptions made in the impact assessment. My understanding is that it assumes that training under this Bill will be needed for 10% of doctors and 10% of social workers. Can the Minister explain—if not now, then perhaps at a different juncture—that assumption and how it has come to be? I would be really surprised if the figure for social workers was 10%. Ten per cent for doctors is possible, but a figure of 10% for social workers needing to be trained under this Bill seems very low. My amendments were designed to enable us to have this sort of probing debate.

[Baroness Murphy]

I support the comments made by the noble Baroness, Lady Hollins, on some of the training issues. Like many people here, I suspect, I have spent a great number of years training junior doctors in how to use mental health legislation, as well as social workers and occupational therapists. One of the most difficult things is to convey the culture of what we are trying to achieve in legislation of this kind. We all refer to the European court and the agreements, but what we are trying to achieve for individuals and why is difficult for many people to grasp when they have grown up in a very didactic, academic environment, where these things are not necessarily considered.

A key aspect of that cultural shift which is so required is the problems that arise between relatives, carers and professionals over what should happen to an individual. All the way through this Bill, I have been scratching my head and thinking, “Will this solve the Bournewood problem?” All the cases from Bournewood onwards have arisen because of a cavalier approach or attitude by professionals to discussing with relatives and carers what the individual wanted, needed or was used to. If we do not get those things right, we will not solve the problem and there will be another case because it will all be up again for grabs where the professional training has not been accurate.

I note that there are some very specific proposals about care home managers. There are some very specific difficulties about what training care home managers currently have, and it is absolutely basic and rudimentary. It is largely about keeping the accounts right. We need to find a way to get the culture of what we are trying to achieve for individuals and families into this Bill. Exploring those training options is crucial if we are to avoid another Bournewood.

[Lord Hunt of Kings Heath]

My Lords, the noble Baroness, Lady Murphy, has made a very telling comment. Part of the issue of training is cost. It seems to me that part of this Bill is about cost shift from local authorities, which have found managing this process very difficult, to care homes. We have not discussed this very much, but will the Minister tell us who he expects to pay the cost of this whole process? I suspect that the answer is that it is going to be in charges, mainly for self-funders, who not only will probably pay the cost of their own assessment, but will probably—as they do at the moment—have to subsidise the cost of local authority-funded people who come under the provisions of the Act. Clearly, the Government did the RIA on the basis of trying to show that the cost will be minimal in order to prevent being rumbled on essentially what they are seeking to do, which is clearly to cost shift the public sector in favour of self-funders.

The RIA is simply non-believable, and puts into question quite a lot of the architecture of the Bill. We know that care home managers, as the noble Baroness, Lady Murphy, said, have rudimentary qualifications. We also know that the turnover for care home managers is quite high. Therefore, major new responsibilities are being given to people who are in a sector where they are often pretty poorly paid; they do not have much training, and they do not have professional qualifications in many cases.

Training is very important indeed, and we need to have some answers as to how this is actually going to happen and who is going to pay for it. If the answer is that it will mainly be paid for by self-funded, vulnerable people, I do not think that is right.