Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Murphy and Baroness Jolly

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]

Debate between Baroness Murphy and Baroness Jolly

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

[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.