Mental Capacity (Amendment) Bill [HL]

Baroness Murphy Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 24th April 2019 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, I shall speak to Commons Amendment 1C, which was agreed in lieu of Amendment 1B, which I moved in this House before the Recess. I start by thanking the Minister and the Bill team for the discussions it was possible to have in the latter stages of the Bill, which helped get us to a position that we now feel, particularly in relation to the definition, is pragmatic and one that we can live with.

First, I welcome the Government’s decision to drop what has been termed the “exclusionary definition” proposed earlier. It had a whole raft of problems but I have no intention of going into them again now. It is important to acknowledge that the Government took on board the views expressed by Peers and others in the wider sector on that definition. The outcome of those discussions—that there should be no statutory definition in the Bill—is a sensible and pragmatic compromise after a rather long and tortuous journey. Those of us involved in putting forward different definitions had all received legal advice, which said that our definitions were fully compliant with Article 5 and so on. However, we were never going to resolve that; they just came from different lawyers with different opinions. We had to find a way forward and we did. The fact that we will now be using the code of practice to set out—clearly, I hope—where deprivation of liberty is and is not occurring and that it can reflect existing and evolving case law is important.

I took the opportunity to listen to the debate on the Commons amendments in the other place on 2 April and found it very illuminating. I was particularly pleased to hear the Minister for Health and Social Care, Caroline Dinenage, say:

“We will set out the meaning of a deprivation of liberty in a positive”—


I emphasise “positive”—

“framing and in a way that is clearer for people and practitioners”.

That was the very nub of my concerns when I put forward my definition: it was not clear; it was all framed in a negative way; and it was very difficult for the families affected and, indeed, for some practitioners to understand. This is a real step forward.

We are now to have a code of practice and a definition set out there. I was also pleased to hear the Minister say, when asked about the timescale for producing the code of practice, that it,

“is being worked on as we speak … Once we are all content that the code of practice is robust and fully covers everything that we want it to it will then be presented to both Houses of Parliament”.—[Official Report, Commons, 2/4/19; cols. 964-5.]

That is very positive. However, can the Minister update us on the timing for the code of practice? When will this House see the guidance? It is absolutely critical that what it says in the guidance—what we have been talking about—does not mean that we have kicked the can down the road in terms of some of the problems associated with the definition. When I see what is in the code of the practice and the guidance contained in it, my acid test will still be whether it is easy for the lay person—I include myself as a lay person here—to understand, not full of double negatives or pages and pages of rather confusing case studies. I would be grateful if the Minister could update us on the timing of that.

Secondly, I was extremely pleased to hear that the definition will be considered and reviewed regularly—and kept up to date, as I have said, with evolving case law—and that there will be a report of that review laid before Parliament within three years of the measures coming into force. That will be another opportunity for this House to scrutinise how it is working in practice. I am very grateful to the Government for listening to my representations on the need for a review and for a report to come before both Houses.

Could the Minister give some commitment that, when the review is published—and this House has had a commitment to look at that review—the code of practice will be regularly updated? A review is important; our having an opportunity to scrutinise it is important; but most important of all is that the code of practice be regularly updated. I contend that some of the problems this whole Bill is designed to address, such as the backlog of deprivation of liberties cases, were in part caused by the fact that the code of practice was not amended as circumstances changed and as more and more cases such as Cheshire West were brought into the scope of the Bill.

I would very much welcome assurances from the Minister on those two points, and thank her for being as helpful as she has been. I thank colleagues on all Benches, because I feel that we have worked very collegiately and co-operatively. I hope and feel that that has helped improve the Bill.

[Baroness Murphy (CB)]

My Lords, I do not really share the enthusiasm or optimism of the noble Baroness, Lady Tyler, although I often shared her views on what needed to be done at earlier stages. We are all rather tired of this Bill and I see nothing to be gained from hindering its passage, but I cannot let it pass without expressing my profound misgivings. We—the Members of this House—have failed to do what we were supposed to do. Our task was to make the deprivation of liberty safeguards—now the “liberty protection safeguards”—more practical, more focused on those at risk, more cost-effective and safer, and we have allowed the Bill to disintegrate into a sprawling, all-encompassing bit of a nightmare. The procedures may be simpler—we have cut out one layer of bureaucracy—but we have allowed these provisions to be extended even further than Cheshire West, even pursuing people in their own homes in a way which I do not think many families will appreciate.

The one thing everyone, including the JCHR, was hoping we would do was to introduce a realistic definition of a deprivation of liberty. In the end, we in this House just copped out. We could not agree; we got into a mess; the lawyers could not agree either; so we have just said, “No, let us put it all in a code of practice”. As many noble Lords will know, I wrote some of the early codes of practice for the Mental Health Acts, and I know that codes of practice suffer from mission creep—they get more and more stuff in which is quite difficult for people outside in practice who will implement it, and do not get updated very regularly because it is difficult to do so. Indeed, if there is no clause in statute, which most codes are fixed around—and there will not be, of course, as is intended—it will have to be arranged around Article 5. That will leave a situation in which the lawyers will have a field day, and in which we will still be waiting for case law to give us some guidance.

Meanwhile, the numbers are going up. My latest count was 140,000—I think the official number a couple of months ago was 125,000. There will be a lot more soon. About a third—it may be even more than that—will be waiting for over a year, and 75% of them are elderly people with dementia, who will probably die before they get their rights looked at. Will it make any difference to them? Generally, it will not make one whit of difference. If we had done our job properly, the numbers would have gone down, and there is a chance that those at greatest risk—for example, people with severe dementia who are kept in locked units, who never see the light of day, and people with severe disabilities in residential care—would have been seen sooner and would have had their care plans addressed in respect of their freedoms.

Meanwhile, these last three years have seen an industry grow up around the implementation of DoLS. It is now called DoLS by everybody out there—I am not sure that most people know what that means. A costly public service has developed which has a life of its own, and which, as we have seen, takes money directly out of care budgets. When Staffordshire quite sensibly tried to call a halt and said, “Hang on a minute, let’s go for the worst cases: those most at risk, those with the most profound disabilities or where there is a disagreement”, somebody complained, and they were told in no uncertain terms by the Local Government Ombudsman to get on with it and to get back to doing everybody. So the waiting list grew yet again. Of course, many other county councils and metropolitan councils were making similar decisions, but they have all had to go back to compiling the waiting list, which grows and grows.

The other people who will love the Bill are the lawyers. Just imagine how you will be able to debate the nuances of Article 5 meanings when the code of practice fails to live up to expectations.

This Bill should be a lesson to us all. It is legislation which arose from a Supreme Court judgment—an impeccable theoretical case, made without any thought to the practicalities that would affect 2 million people. The Law Commission was as tied up in knots as everyone else and could not see a way through. My goodness, it worked long and hard on it in an admirable way, but it could not get beyond the problems of having to satisfy Cheshire West and the Supreme Court’s judgment. This House’s inability to grasp the Bill will not provide any more than a hit-and-run assessment of one patient’s disabilities and whether they are deprived of their liberty. It will not provide any more care for people, and it will be a bit of a disaster.

I have been as guilty as everyone here because I was not here for Report, when perhaps I should have been here to say this more clearly—I am sure that my colleagues quite often feel cross with me when I am not here, and I apologise for that. However, I am not blaming the Ministers either, who have, unfortunately, changed during the passage of the Bill, which has taken a lot longer than it should have done. They have struggled as best they can with a complex, technical Bill; nor am I blaming the team at the Department of Health, because Sharon Egan and her team have been squashed between the lawyers, the DoLS industry, the obvious need to make things viable and less depleting of care budgets, and the impossibility of satisfying everyone.

The only flexibility left—because we will pass the Bill—is that before the Bill is commenced, the Government should pause and do a few more sums; otherwise, we shall be back here in another three years, looking at how we can make this legislation more viable. Many more millions of hours of care staff time will have been wasted in failing to improve the care of mentally incapacitated people. Their rights need protecting, but this Bill will not do it.

[Baroness Finlay of Llandaff (CB)]

My Lords, I have taken a slightly different view. I declare my interest as chair of the National Mental Capacity Forum, and I am grateful to my leadership group in that forum for their comments, constant advice and constructive criticism. I am also most grateful to the Bill team, the noble Lord, Lord O’Shaughnessy, and the Minister for having listened. We have certainly given the Bill what we could term a bumpy ride. I think that needed to happen and do not apologise for it at all. From what I understand, the way the code of practice is now being developed will result in a far better situation.

Mental Capacity (Amendment) Bill [HL]

Baroness Murphy Excerpts

3rd reading (Hansard): House of Lords
Tuesday 11th December 2018 Lords Chamber

[Baroness Murphy (CB)]

My Lords, I support this amendment. It is well thought through and I am glad that the Government have brought it forward. However, like my noble friends Lady Hollins and Lady Meacher, I have some very serious doubts about the continuance of this Bill as it goes to the Commons. We have already raised our anxieties about how it fits in with the Wessely review, and we have come to the end of our deliberations—when the noble Baroness, Lady Thornton, and the noble Lord, Lord O’Shaughnessy, normally congratulate each other on the process that we have gone through—but in fact we are leaving this Bill with the very same problems with which it came to this House.

The Bill came before Parliament because of the totally unviable nature of the current legislation. However, we do not have a statutory definition of deprivation of liberty for the purposes of this legislation and we now intend, as the Bill goes to the Commons, still to intrude on people living in their own homes. We are talking about a Bill that affects about 1 million people. It is currently projected to cost £2 billion a year but, with our amendments that introduce some improvements, it will cost considerably more.

Will the Commons really tackle the key issues? We have not seen the wood for the trees—that is the problem. We have tackled some really important minor issues but not the major issues that will make the legislation implementable in the care system. Can the Minister tell us what will happen next?

[Baroness Jolly (LD)]

My Lords, I welcome the amendment and declare my interests as set out in the register.

I too would like to talk about the application to adults with learning disabilities, autism or dementia who also have a mental health diagnosis, and I would also like to talk about what other noble Lords have mentioned—the interface between the Mental Health Act and the Mental Capacity Act. As the Minister will have seen, Sir Simon’s review redraws the dividing line between when a person should be detained under the Mental Health Act and when they might fall under the Mental Capacity Act.

Given that the proposed new dividing line is “objection” —in other words, those not objecting fall under the Mental Capacity Act—the role of the advocate in articulating the wishes of the individual becomes paramount in ensuring that the individual is treated under the appropriate legislation. With that in mind, I have a couple of questions for the Minister. Does he agree that advocates will need to receive sufficient support and training to understand this new dividing line, as and when it comes into being? Can he also clarify who will be responsible for ensuring that the training takes place and from whose budget the funding for it will come?

Mental Capacity (Amendment) Bill [HL]

Baroness Murphy Excerpts

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

[Baroness Murphy (CB)]

My Lords, I am the world’s greatest pragmatist in this matter. I am very sympathetic to what the noble Baronesses, Lady Barker and Lady Tyler, are saying. This Bill is by no means perfect. It has huge gaps and we would not have started from here, but the reality is that this Bill will be with us for the rest of the autumn and I believe that Sir Simon Wessely’s report will be submitted to the Government around 12 December, so it is likely to come before Third Reading and before we finish the Bill. We will be able to see if there are great big gaps. I do not think the two things will overlap very much. We might be helped out, particularly on amendments on advanced directives, and in that context we can perhaps make ourselves closer to what Sir Simon Wessely recommends, but I do not think there is anything to address, except that the current Bill is not working. We have all those people waiting for an assessment who will never be assessed. We need some legislation in place. There is some urgency. I know we would like a perfect Bill, but we are not going to get one. What we need is an implementable Bill which makes assessments doable for people who need them and so that we can get some process in place. The Bill is not perfect. We would not start from here, but we have this Bill and we should continue with it.

[Baroness Finlay of Llandaff (CB)]

I shall continue on the theme that my noble friend Lady Murphy has set out. Last week, I chaired the National Mental Capacity Forum leadership group. One of the people there said that:

“While there was an initial knee-jerk reaction amongst care providers and the local council, if you consider the”.


liberty protection safeguards,

“in more detail you quickly come to understand that it is actually quite an innovative solution”,

because there is such a backlog and so much difficulty in trying to get anything in place.

I am concerned that we are trying to draw clear lines between different types of illnesses and conditions when it is pretty impossible to do so. There are mental health conditions that impair your capacity, even though you may be compliant with treatment, there are physical illnesses that result in impaired capacity, and there are illnesses—Lewy body dementia is one of them—where part of the illness means that you may be a risk to other people. Huntington’s disease is similar and a horrible disease to have. Trying to draw clear lines between those different groups is difficult.

I looked at the amendment and for a definition of “fluctuate” and “short”. I tried to think how I would define “fluctuate” or “short” in a clinical context, and I could not because “short” might be short to some people and long to others and fluctuation can be all kinds of directions and with different degrees of severity. The difficulty we are grappling with here is that we are trying to write something in legislation that will be literally black and white: black words on a white page. The people we are dealing with are incredibly individual and have very different needs. That is why, returning to our previous debate, the stress on wishes and feelings and on consulting people who know the person becomes incredibly important. We will go on to talk about ways that people can call for external scrutiny because, if they care about the person, they need to be able to do that.

--- Later in debate ---

[Baroness Thornton]

My goodness, we are back in the Bill, out of the appendix. I am formally moving that Clause 2 do not stand part. However, I will address my remarks to the two amendments in my name in this group. They concern advance consent. This amendment comes from Clause 6 of the Law Commission’s draft Bill, and inserts two new sections into the Mental Capacity Act: advance consent to certain arrangements, and the effects of advance consent. These sections provide for a person to consent in advance to specific arrangements to enable care and treatment that would otherwise amount to a deprivation of liberty.

To give advance consent, the person must have the capacity to consent to specified arrangements being put in place at a later time that otherwise would be considered deprivation of liberty. They must also clearly articulate the arrangement to which they are consenting. Provisions in this amendment relating to advance consent are similar to those relating to advance decisions to refuse treatment which appear in Sections 24 to 26 of the Mental Capacity Act.

I am very grateful to the noble Baroness, Lady Murphy, and my noble friends Lord Touhig and Lord Hunt for supporting this amendment, and I think it is important that we probe this particular issue. On previous Committee days and in discussions with stakeholders, one of the recurring sentiments was that the well-being of the cared-for person should be at the front of this legislation, and it seems that advance consent is definitely a crucial issue in putting the cared-for person at the heart.

Amendment 85 concerns unlawful deprivation of liberty. Again, this amendment comes from Clause 7 of the Law Commission’s draft Bill and would insert two new sections into the Mental Capacity Act on unlawful deprivation of liberty and on proceedings and remedies. These sections would provide a route for an individual deprived of their liberty in a private care home or hospital to seek redress where proper authorisation under this Bill and the Mental Health Act, or an order of court, has not been obtained. This amendment seeks to define the private care provider. Again, we have been concerned about how the Bill will be applied to those in a private care setting or hospital. It seeks to probe how they should be affected by the Bill.

[Baroness Murphy]

My Lords, Amendment 84, in the name of the noble Baroness, Lady Thornton, is possibly one of the most important amendments we have tabled to the Bill. It has become so much more important over the last 20 or 30 years to try to encourage people to make decisions in advance about what should happen to them and to encourage them to think about what will happen in the event of things going wrong—to think about things such as lasting powers of attorney and advance decisions on mental health services. I understand that Sir Simon Wessely will recommend some changes that are very similar to this to go into the new mental health legislation. It would be good, bearing in mind our previous discussions, if we could feel confident that the same sort of approach was being taken in this Bill.

Advance decision-making in legislation has proved quite difficult to implement, because you have to have a widespread campaign of understanding how people can make these decisions. It also has to have the individual making the decision accept that things will happen to them that they are not expecting, which is sometimes very difficult. That is why it so difficult to get people to sign up to insurance against long-term care; they simply do not believe that it will ever happen to them. It is very difficult to get these bits of legislation implemented and widespread, but we have to start somewhere. This is such an important piece to try to get into a Bill, to start people thinking about their future and what is acceptable. This would be a very important thing for the Bill.

I would also like to see Amendment 85 implemented. It is something that the Law Commission had in originally. I am not quite sure why it came out. It sort of just disappeared in the transcription somewhere. It is an important safeguard. We tend to forget all those Victorian cases a couple of hundred years ago when people were quite regularly held in circumstances against their wishes and unlawfully deprived of their liberty. It is as well to be reminded that it can, and probably does, still happen quite frequently. To have something on the statute book would be helpful, so I support the two amendments.

[Baroness Finlay of Llandaff]

My Lords, I am afraid I will take a different view. Amendment 84 is potentially incredibly dangerous in the context of the Bill. I can understand why people with a mental health disorder who know exactly what is likely to happen to them when they relapse and know what treatment they do and do not want can make an informed decision based on their previous experience of their illness and episodes. Here, however, we are asking people to provide advance consent to their liberty being deprived in a situation that they do not know about and have not experienced. The evidence from advance care planning—I have a recent paper from Ontario—showed that people’s knowledge was very poor. There were decision conflicts and when they were re-interviewed later they had re-evaluated their decisions in the light of further information and as things had moved forwards.

The problem is that the cared-for person’s experience of care is based on human interaction. They cannot predict who will be the carer at some point in the future, nor how that interpersonal chemistry will work. I am concerned that there is a real danger that someone could be locked in to having to live with what they said previously. There is a lot of evidence from the world of care planning that people do change their preferences. Indeed, as an illness progresses, they may change them very radically.

--- Later in debate ---

[Baroness Barker]

No, I have not lost confidence in that; I simply wish to undertake further discussion, given that—I say it again—it looks entirely likely that mental health legislation may be changing. I think, in light of that, that it is a wise discussion to have.

[Baroness Murphy]

May I just add that I think it is important to read all the amendments of the noble Baroness, Lady Thornton? She provides for any opportunity, any chance, that the individual may indicate that they have changed their mind, at which point those things come to an end, essentially. They have to be quite specific that if there is any doubt in somebody’s mind that this is no longer something that can be continued, that there is anxiety about them being implemented, then it comes to an end. So I think those things can be taken care of.

[Baroness Hollins]

My Lords, these amendments are examples of the long and complicated amendments which I think could end up going wrong, because they are trying to cover quite a lot, which will probably become gold-plated and give rather too much weight to the legal profession. I do not think that what Sir Simon Wessely planned to do is relevant here, because it is not really about mental illness but about dementia. If that is the case, people may not be in a position to change their mind at a later date, so these amendments are very complicated and probably rather unwise.

--- Later in debate ---

[Baroness Meacher]

I will speak to Amendment 87C and apologise to the Committee for being unable to remain in the Chamber earlier—I had two commitments that I had to fulfil. I emphasise that it is a probing amendment; it will certainly need rewriting at Report if we bring something back. I thank Godfred Boahen of BASW, whose briefing was an enormous help in preparing my remarks.

Our aim is to stimulate a debate about the processes to deal with deprivation of liberty issues which arise in domestic settings. There is a case for enhancing the assessment processes in those situations. As it stands, the Bill makes no mention of people in domestic settings where deprivation of liberty is at issue. It is not clear—to me, anyway—what the Government have in mind and I hope that the Minister will be able to clarify the position. The Bill leaves vulnerable individuals in domestic settings where there is an issue of deprivation of liberty with no judicial protection, except through an appeal to the Court of Protection, a process which is onerous, costly, stressful and slow. That also leaves this group of people without access to a mental capacity professional in the event of an objection to the proposed care plan. The amendment assumes that, where a deprivation of liberty arises in a domestic setting, this would be considered, as now, under either the care planning or the safeguarding provisions of the Care Act 2014, but with two important reforms, which I will come to. Thus domestic settings would not come under the processes set out in the Bill.

Before referring to the proposed reforms, I need to clarify the two key processes involved under the Care Act, or the reforms would not make a lot of sense to anybody. First is the prospective model, as proposed by the Law Commission, when a deprivation of liberty is considered during care assessments and planning. The care planning processes apply here. During a Care Act assessment of needs, professionals will ascertain the likely impact of a care plan on the liberty of an individual, whom I will call P. The idea is that, in some cases, the state has prior knowledge that a deprivation of liberty will occur and has therefore taken the necessary steps to authorise it alongside establishing conditions to safeguard P’s human rights. This could be achieved through an amendment to the Care Act guidance, not a legislative change.

The great attraction of this approach, as the Law Commission recognised, is that the safeguards are implemented in a way that minimises intrusion into private and family life. The Law Commission argues that:

“In most cases arrangements could be authorised in an unobtrusive and straightforward manner through a care plan and without a perception of State intrusion into family matters”.


In domestic situations and with the involvement of professional local authority employees in organising and undertaking the care planning, only where the care plan is contrary to the wishes of P would the involvement of the mental capacity professional be warranted. At present, the Bill does not make it clear that the MCP would be brought into domestic settings in any circumstances. This is one of the two areas in the Bill that need clarification. I am impressed that the Law Commission thinks that this approach strikes an appropriate balance between the rights of the person to be protected, and the rights to private and family life under Article 8.

The second model for the deprivation of liberty in domestic settings is the retrospective model, where the safeguarding procedures under the Care Act 2014 come into play. Under Section 42(1) of that Act the safeguarding procedures apply to an adult who satisfies three conditions, which I do not need to go into. The safeguarding process involves P from the very beginning. There are certain crucial points about these processes: their desired outcomes should be considered; professionals have to balance P’s capacity against their best interests and the public interest; and the safeguarding provisions draw significantly on the best-interests principle of the Mental Capacity Act. If deprivation of liberty is an issue, then the Care Act safeguarding provisions and the Mental Capacity Act best-interests principle can be applied to generate a care plan which safeguards P’s interests while providing care and protection.

Within the safeguarding provisions an independent advocate is appointed when appropriate. What is currently lacking is access to a mental capacity professional in the event that P has concerns about or objections to the care plan. An amendment bringing the MCP into safeguarding in domestic settings is needed to align people in such settings with those in others.

My last point relates to the requirement under the European Convention on Human Rights that if P is deprived of their liberty, they must have access to a court. I have already referred to the current arrangement for access to the Court of Protection as the only court route. I urge the Minister to consider seriously the possibility that mental health tribunals could be adapted to become mental health and capacity tribunals to include those in domestic settings where P is objecting to the care plan.

Mental health tribunals already consider whether and how their judgments and the conditions they impose on patients might amount to a deprivation of liberty. Additionally, they have experience of the issues involved in deprivation of liberty considerations in domestic settings. This would not be something outside their competence, and that is very important. It would be too radical to introduce something entirely different. Such tribunals are local and would be speedier, less costly and more accessible for families who are themselves often vulnerable. They are less imposing and therefore less stressful for those involved.

Consider the case brought to my attention recently of an 85 year-old woman looking after her 89 year-old husband, who had severe dementia. She felt she could only cope by keeping her husband in one room. The idea of taking that case to the Court of Protection just feels unreasonable. It certainly needs sorting out in some way, but not that way. In line with the estimated number of appeals to the tribunals, clearly, the number of tribunal members would need to increase. However, as well as having advantages for those involved, this reform would surely be less costly than the current Court of Protection process. I hope we can have a short but constructive debate today and that the Minister will meet us to discuss the best way forward. It might not be exactly what I have suggested, but we really need to think this through carefully. I beg to move.

[Baroness Murphy]

My Lords, I support the amendment of my noble friend Lady Meacher, but I will sound a few words of caution. As I understand it, cases in domestic settings are not included under the current DoLS arrangements. However, there have been several cases where Cheshire West has been quoted in instances where domestic settings have been challenged—with, in my view, some ludicrous outcomes. These have put people who were doing their best by their relatives, as they saw it, in the invidious position that they could no longer continue to care.

I have a case that is similar to that of my noble friend Lady Meacher, where a man was looking after his elderly mother at home. She wandered on most nights, and he put some gates at the top of the stairs to stop her falling down the stairs. That allowed him to get a good night’s sleep and she did not go downstairs. It is a very difficult issue: there was the question of whether she could have gone over the gates and come to more harm. He was also told by the professional carer who was helping him—from a private care provider—that he could not do this because it was illegal. Under the legislation, it was now not possible for him to do that, nor could he put a lock that she could not undo on the outside door. He would have to accompany her if she wanted to go out and come back. The implication is quite clear: he actually gave up caring for her because, as he said, if he could not look after his mother in his own home, he was not going to be able to have a life that was possible for him to live. I have no doubt in my mind that that elderly woman would have given her last sixpence to stay at home being cared for under her son’s restrictions, rather than go into a care home with strangers. She would probably have had her liberty restricted anyway under some new procedures.

We have to come back to this numbers game, because we want a situation where it is only in cases involving people being treated inappropriately, with cruelty and thoughtlessness, where we want to expose something that is just unacceptable. When we are challenging arrangements that would, if they were for a person of a different age, for example a parent protecting a child—when we are putting in the same things because somebody is mentally incapacitated, it is quite wrong.

Mental Capacity (Amendment) Bill [HL]

Baroness Murphy Excerpts

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

As the noble Baroness, Lady Murphy, noted in that debate, the notion that the majority who flit through the system, on short-term contracts and training, many of whom come from outside the EU, can in half a day master the Mental Capacity Act and be trained through this process to make a proper assessment and identify people within the meaning of the Act is completely ludicrous. The care home manager will be responsible for these people and for ensuring that all the things in this Bill actually take place. I do not believe, in all justice, that they are the people to do it, nor do I think they have the capacity to do so.

[Baroness Murphy (CB)]

My Lords, I find myself in something of a dilemma because I have already said that I am very anxious about the role foreseen for care home managers in this Bill. I am also getting the heebie-jeebies about how we are criticising the Bill because of how we have got here in the first place. The noble Baroness, Lady Finlay, and the noble Lord, Lord Hunt, have already mentioned that we are here because at the moment we have a bad piece of legislation; it is not being implemented appropriately because we cannot afford it. The Law Commission, the Department of Health and the Ministry of Justice have tried to bring forward a piece of legislation that makes it a lot simpler.

We are used to having conflicts of interest in public sector services. Every time a GP refers somebody for a hospital appointment or surgery or prescribes expensive medication they have a financial conflict of interest, but we live with that because of the way that the system works. We are used to it—we take account of it day by day.

I am not going to oppose these amendments but we have to say to ourselves that the care home manager is there and we know that the local authority has not got the resources. Would it work better if we could give care home managers proper training? I do not know, but I know that we must at every stage think very carefully about the alternatives that we propose instead of the departmental proposals. We have to make the process simpler. We have to reduce the numbers of people who are subject to it. Perhaps if we reduced the number of people subject to it, we could put in place these better arrangements. Maybe then we can take out the care home manager. Until we do so I still have this great anxiety that we have not come up with an alternative that will really work.

Although I share the anxieties about how care home managers will discharge this responsibility, I have some anxieties about the alternatives. We have to make the process simpler and more affordable. I neither support nor oppose these amendments. We need to give some very careful thought to making sure that we do not end up with a more complex and difficult process than is implementable and affordable.

[Baroness Meacher (CB)]

My Lords, I was not planning on speaking to this amendment at all. I am certainly not an expert on the Mental Capacity Act, but it was suggested to me by BASW that the Bill will cover people in domestic situations. It questions whether those people could be taken out of the Bill. I very much follow the point made by the noble Baroness, Lady Murphy, that it might be a good thing to do something really well for people in institutions while maybe avoiding duplication for people in domestic situations. There is the safeguarding procedure, which, as has been suggested by my medic daughters, is already incredibly bureaucratic, but I will leave that to one side for the moment. If at least the people in domestic settings were left to be assessed by the safeguarding system, that would achieve something and reduce the number of people covered by the Bill. This is particularly true because, as we go along, more and more people will be looked after in domestic settings rather than in care homes.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My Lords, I have one amendment in this group and I wonder whether the group is focused on lines of answerability. Who is going to be responsible? If the person is in the community in any setting the responsibility will go or should go, as I understand it, to the local authority. If the person is in hospital then it would go to the hospital. However, we have a problem. A lot of people on continuing care funding are in the community. I am concerned that if the authorisation for those people sits with the clinical commissioning group rather than the local authority, we may end up with some people getting lost in the system. The standards and criteria against which the different assessments and processes are benchmarked and what is expected, particularly how the process is monitored, could be unclear. It will be much harder to monitor out in the community than in a hospital or in-patient setting.

Following on from our previous debate, I had a quick look at the requirements to be a best interests assessor. As far as I can see, to enrol on the course you must have had two years’ post-registration experience as an approved mental health professional social worker, registered with the Health and Care Professions Council, or be a nurse, a psychologist or an occupational therapist. The people who potentially will migrate to become approved mental capacity professionals are registered professionals. That is incredibly important and we should not lose that in any aspect of the Bill. If they are registered professionals they have a raft of professional duties that go with that.

This part of the Bill and the process is not terribly clear, and I worry particularly about people on continuing care out in the community, or those who may become self-funders, managing their own budgets for care.

[Baroness Murphy]

My Lords, I added my name to the amendment of the noble Baroness, Lady Jolly. In view of my previous comments, people may be surprised that I did because it seems to be making life more complicated. In fact, I saw the more professional pre-authorisation process for the smaller group who will eventually be subject to this Act, I hope, as introducing something for the high-risk people who will be assessed by professionals. I like the role of the new AMCP, which sort of takes over from the best interests assessor, because I think it will be a well-qualified group. It would add some solid support if the care home manager’s role is to continue. I saw this, when I first read it, as a good way of providing some pre-authorisation backstop, if you like—a solid foundation on which we would have more confidence that the care manager role could work. I am still anxious about the care management work for all the reasons that the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, mentioned, but this was one way that I saw of adding some professional expertise that would give confidence to the mental capacity community that we were taking this seriously.

[Baroness Thornton]

My Lords, I added my name to the amendments of the noble Baroness, Lady Jolly, and to my noble friend Lord Hunt’s amendment. Pre-authorisation review is essential. We support these amendments because they propose that everyone should have access to an approved mental capacity professional. As drafted, my understanding is that the Bill gives that access only to those who object to the proposed arrangements. If everybody had access to an AMCP it would lessen concerns about the significance of the independence of the reviews.

Age UK has said:

“In respect of self-funders in private homes, there is an existing principle in mental health law that where an assessor has a financial interest in the decision to deprive someone of liberty there must also be an independent external assessor. A preauthorised review by an Approved Mental Capacity Practitioner … will bring this section of the Bill into line with this principle, which is currently reflected in the Conflicts of Interest Regulations to the Mental Health Act. Without such a requirement a significant conflict of interest for the care home manager is likely to arise”.


I will not say more because I think that we have explored that issue.

There also seems to be an assumption that care homes will already have existing written capacity assessments and that staff will have the knowledge to carry out such an assessment. As we have already discussed, that is clearly not the case.

This is a significant group of amendments. The Minister needs to take heed that we are, in a way, returning to some of the fundamentals that underpin the legislation. We on these Benches have listened carefully to stakeholders and are fairly sure that the Government have not got it quite right. As the noble Baroness, Lady Barker, said, in this House we have always proceeded on mental capacity issues on a consensus basis. We would much prefer that that was the case because we have come up with solutions to these very difficult, knotty, complex problems that cut across health, justice and liberty, and take account of things such as the United Nations and the European Union’s rights of the individual. This House is famous for doing that—I wanted to say that at some point this afternoon. This group of amendments lends itself to that because if we get the pre-assessment regime right then a lot of other things will flow from it that will lead to the right decisions and minimise the risk of local authorities, health authorities and CCGs ending up in court because the right procedures have not been taken and the rights of the individual have not been managed.

The noble Baroness, Lady Finlay, mentioned the qualifications needed to be an assessor. We have had several briefings from BASW, for which I am very grateful, that explain how well qualified the people involved in this process are. That of itself creates a problem for care home managers to undertake these issues.

I will paint a scenario for the Minister. If the local authority is the responsible body and therefore will end up in court if this does not work out—it will be expensive and time-consuming and behind it will be an individual who has not been treated properly—it seems quite likely that the local authority will be very risk-averse to the tick-box system that the Bill suggests to assess whether the right procedure was gone through in the assessment process.

Does the Minister agree that we might actually increase the bureaucracy and delays in the system, simply because we did not get the pre-assessment right? That could create one of two things: either a local authority will keep referring back the assessments for reprocessing or it will let through assessments which do not do the trick and therefore bear the risk of ending up in court because somebody’s individual rights have not been properly taken into account. Not only is this an issue of doing right by the individual but there is possibly a compelling case for why it is important to get the pre-assessment right. If we do not, the Bill fall shorts on Article 5 of the ECHR. Had the Government followed the Law Commission’s draft Bill, which contained these safeguards, I think that we would not be having this debate in this form.

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

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.

--- Later in debate ---

[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.

--- Later in debate ---

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.

--- Later in debate ---

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.

--- Later in debate ---

[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.

Mental Capacity (Amendment) Bill [HL]

Baroness Murphy Excerpts

2nd reading (Hansard - continued): House of Lords
Monday 16th July 2018 Lords Chamber

[Baroness Murphy (CB)]

My Lords, this Bill should be a lesson to us all. It is designed to correct the disaster created by another piece of legislation, introduced not to address a common problem or by popular demand by a group, but at the instigation of the judiciary, addressing a problem we did not know we had. Unfortunately, it does not solve the problem, and this House’s ability to improve it will merely ameliorate the ongoing disaster.

The DoLS legislation, since its inception, was designed to plug the Bournewood gap, which the Minister described quite clearly. However, as the noble Baroness, Lady Browning, pointed out, because this legislation will no longer have the best interests of the patient at heart, it will do nothing to close better the Bournewood gap. It will leave that gap and will leave exposed the several related cases. Although the bureaucracy of the Bill apparently tries to address it, it does nothing of the sort.

The problem is that we are trying to combat an edifice of poor professional practice—in this I echo what the noble Baroness, Lady Hollins, said. However, rather than improve professional practice by working in the way that families and professional carers work and talk to each other about what should happen to improve the situation of the individual, we have moved away from what health and social care considerations should look like and into a world of legalities. Legislation and regulation can never substitute for good practice. They can provide a framework within which good practice is enacted, but they are no substitute. That is where the DoLS legislation has been such a disaster. I respect that the virtue in this Bill is the intention to make things safer, more competent and more accountable, but theoretical legal advantages have led to a massively intrusive bureaucracy of paper schedules and rules, which this Bill diminishes but does not solve.

For the past three years, as a result of widespread concern about the adverse impact of the deprivation of liberty safeguards on the care and treatment of older people, I have been the convenor of an informal group of members of the Royal College of Psychiatrists Faculty of Old Age Psychiatry. The group was established to liaise with the Law Commission and other organisations to consider issues arising from the draft liberty protection safeguards and the original Law Commission’s draft bill, part of which—but only part—now comes to this House as a new Bill. I think everybody here agrees that the monstrous piece of bureaucratic machinery that is the deprivation of liberty safeguards has caused untold harm and cost a huge amount of money that has been diverted from finite clinical and social care budgets at a time when the country can ill afford it, and when the quality of care in hospitals and residential homes is barely adequate and often downright poor. The money pouring uselessly down the DoLS drain is a disgrace. The detailed problems were well articulated by the Law Commission in chapter 4 of its paper 372, published last year.

The Law Commission, through Tim Spencer-Lane and his colleagues, has done an enormous amount of hard work and consulted widely to produce improved and less bureaucratic procedures. However, it was constrained by its brief to take the judgment in Cheshire West as the starting point, which contained, in my view and that of many others, an unworkable definition of “deprivation of liberty”, which most people find extraordinary. That is my main concern about the Bill before us today.

Before I get on to the definition issues, however, I want to express my surprise and concern that some of the most far-seeing and progressive parts of the draft Bill produced by the Law Commission have been omitted from the Bill before us. As many others have mentioned, we have lost proposals that were either accepted or accepted in principle in the Government’s response to the Law Commission. The first relates to strengthening the place of the individual’s wishes and feelings in Section 4, any notion of which has been abandoned in favour of what is “necessary and proportionate”. These are vague words that may well imply that, in this age of austerity, the person will get care in a way that is convenient for the authorities making the judgment to impose and that does not take account of the individual’s expressed wishes or include a discussion about what they might wish. Although “best interests” is mentioned, when the crunch comes, it will be ignored.

I want to refer here to the description of a person as being of “unsound mind”. If that is old-fashioned now, and clinically irrelevant as a phrase, what will it sound like in 10 years, when it really will be past its prime? It is simply not a phrase that we should be using in the Bill.

Secondly, the proposal to strengthen the safeguards around Section 5 in relation to serious interference in people’s lives has been ditched. Thirdly, the proposal enabling advance consent to be given has been omitted, which was accepted in principle and would have had a real part to play in allowing people to say what arrangements they are happy to accept when it comes to a later stage in their life. Fourthly, regulation-making powers for supported decision-making schemes have been omitted. Again, all of these were thought at the time by the commission to be important steps necessary to strengthen the Mental Capacity Act in how it works across the board. There has been widespread approval of these provisions by families, professionals and lawyers—a unanimity that is quite rare. Can the Minister explain why these good things have been dropped when there was such an initial positive response? It is not as though there will be another chance. There will not be another Mental Capacity Act for some time, probably years, so now is our chance to improve it.

I return now to what is meant by “deprivation of liberty”. The Cheshire West Supreme Court judgment 2014, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, indicated, gave a significantly wider definition than had been previously understood both by public authorities and the lower courts to apply in the health and social care context. I will not repeat the argument of the noble and learned Baroness, Lady Hale— a bird in a gilded cage is still a bird in a cage—but her logic, as always, is totally unassailable. However, it has been applied in cases that the Supreme Court did not have the opportunity to review. Difficulty arises where everyone—patient, family members and professionals—are all either consenting to admission and the care and treatment as proposed or are not objecting, which also applies to patients in their own homes.

Approximately 750,000 people in the UK—I have heard a figure of up to 2 million, but I am talking about people who have definite and serious lack of capacity—lack the capacity to make major decisions, and the vast majority of these patients fall into “willing” or “not objecting” categories when it comes to their care. Two-thirds are living in their own homes. It is hard indeed to see in what way they are deprived of their liberty by being admitted willingly to a hospital, nursing home or hospice or being cared for in their own homes by family or professional carers whom they are happy to receive. Furthermore, when these Supreme Court criteria are applied to patients admitted to general hospitals, hospices and care homes as the Mental Health Act 2007 dictates, a ludicrous situation now arises. Before anything is done for the patients, a bureaucratic procedure is enacted to ensure that their rights are being considered, although in practice, nothing changes as a result. Lots of forms are signed and boxes ticked but little else.

Approximately one-third of older patients admitted to hospitals through A&E departments are suffering from transient confusional states consequent on physical illness, or mild cognitive impairments that intermittently, fluctuatingly or permanently affect their capacity to consent. The vast majority of such individuals—of 16 million annual hospital admissions, an estimated 3 million individual admissions—fall under the current jurisdiction. Because nobody is implementing this Act, they are currently being treated informally in their best interests with clinical staff relying on GMC guidance on decision-making and discussion with family and carers. The intrusion of an artificial safeguarding mechanism between those who did not know they were depriving someone of their liberty and those who did not know they were being deprived is a kind of Alice in Wonderland nightmare and ludicrously expensive to administer. We have in the Bill a system that will still be applied to tens of thousands of people and a pie-in-the-sky, almost delusional, impact assessment of its likely costs if it is implemented as drafted.

The result of the overinclusive definition of deprivation of liberty has resulted in very serious interface problems that other noble Lords have mentioned between the Mental Health Act and the Mental Capacity Act, and the misuse or overuse of Mental Health Act legislation to detain elderly people on general wards to treat them for physical health problems, simply because sectioning someone is easier to hurry through than the DoLS procedures and easier than the proposed liberty protection safeguards. The use of the Mental Health Act usually rules out any subsequent placement in a care home because patients are rejected by the care home system if they have been sectioned, and leads to extra responsibility for Section 117 aftercare funding for the local authority. I can give the Minister a catalogue of cases where the misuse of the Mental Health Act and/or DoLS has resulted in poor care or a decision by relatives to reject a care plan because they do not want their relatives stigmatised by being sectioned.

The interface problem has led to widespread illegality by the misapplication of legislation. The Bill continues this problem and, while I understand the wish to wait for Sir Simon Wessely’s review of the Mental Health Act to be complete, we are rather stuck with a gravely inadequate situation. Inevitably, problems will continue to arise at the interface between these two regimes unless we are serious about sorting them out.

The crucial thing for me is that the criteria for “deprivation of liberty” need to be changed before any new legislation is approved. It is pointless to wait to see what we can put into a code of practice. We cannot legislate on such a serious matter by leaving it to a code of practice; I simply do not think it will work. I do not believe it is reasonable to include admission and/or residence of incapacitated persons in homes and hospitals where there is no objection by the patient, family carers or professional carers, or to include private individuals living by personal choice in their own family homes, supervised by family members or professional carers. It really should apply only to those who express dissent or opposition, or where there is clear disagreement between those responsible for the care. I would like the Minister to explain why, given the report of the Joint Committee on Human Rights that supported the view that I and many others have just expressed—there is a need to revise the criteria—a change in the definition has not been included and whether the Government will consider bringing forward an amendment to address this problem before Committee?

No legislation should be enacted until it is clear that the law will improve the care of individuals subjected to it and genuinely protect them from abuse or unwarranted repressive conditions. We need to reinject some common sense into care relationships. Without better definitions and a serious reduction in the number of individuals being subjected to them, the liberty protection safeguards will continue to create anxiety in staff when there should be none and militate against the decent care that I believe everyone in this House agrees society should provide.