Mental Capacity (Amendment) Bill [HL]

Baroness Thornton Excerpts

Report: 1st sitting: House of Lords
Wednesday 21st November 2018 Lords Chamber

[Baroness Thornton (Lab)]

That is quite right, they are technical.

Amendment 1 agreed.

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[Baroness Finlay of Llandaff (CB)]

My Lords, I should like to comment on these amendments. Before I do that, I thank the Minister on behalf of everyone for listening, as well as for his willingness to meet Peers and to move on the things that had caused enormous concern to many of us.

I have a couple of concerns regarding these amendments. I commend the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for trying to get us back to a definition. I completely agree that if we do not have a definition, the matter will go to court and we will end up back in a circle that we do not want to be in. The problem I see is the non-negligible period, which will be really difficult to define. If somebody is in a confined space for even 10 minutes or a quarter of an hour, that could be absolutely terrifying for them and completely unjustifiable. We have a difficulty in trying to use time as a measure, but I understand why it is there as well.

In his amendment, the noble and learned Lord, Lord Woolf, certainly includes the principle of consent, which means that there should be information that the person has capacity and that their care and treatment are voluntary. I was a little worried, however, that his proposed new paragraph 2(1B)(d) in the amendment, which would require two clinicians to confirm in writing, rather ran counter to the principles set out in Part 1 of the Mental Capacity Act itself, Section 1(2) of which states:

“A person must be assumed to have capacity unless it is established that he lacks capacity”.


It almost turns itself on its head if you must have somebody to verify that they have capacity.

I note that in his letter to us, the Minister stressed the importance of supporting liberty as much as possible and valid consent wherever possible. Would the Minister be prepared to say that we can work on this between now and Third Reading? If we can reach a definition that seems right by then, we will have done the whole community a great service.

[Baroness Thornton]

My Lords, I thank the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for bringing forward the amendments. I can see that the Government have a decision to make about which way to go on them.

Listening to the Joint Committee on Human Rights is always a good idea. We discussed a statutory definition during the previous stage of the Bill, when the Minister repeated that he,

“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”.—[Official Report, 5/9/18; col. 1849.]

I understand why the noble Baroness, Lady Finlay, is thanking the Minister already but it may be slightly premature. I know what she means, but let us wait until the end of the next day and a half. It is important that the Minister shares with us now where that thinking has led him.

[Lord O’Shaughnessy]

My Lords, I am more than happy to do so. I express my gratitude to the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for tabling their amendments and for precipitating this incredibly important debate. As has been set out, Amendment 2, moved by the noble Baroness, Lady Tyler, states that the liberty protection safeguards apply only to,

“arrangements which give rise to the deprivation of the cared-for person’s liberty”,

when,

“the cared-for person is subject to confinement in a particular place for a not negligible period of time … and … the cared-for person has not given valid consent”.

The amendment explains that someone is confined when they are,

“prevented from removing himself or herself permanently … and … the dominant reason for the deprivation of liberty is the continuous supervision and control of the cared-for person, and not treatment for their underlying condition”.

Amendment 4, tabled by the noble and learned Lord, Lord Woolf, also states that a deprivation of liberty for the purposes of liberty protection safeguards is where,

“the cared-for person is subject to confinement in a particular place for a not negligible period of time … and … the cared-for person has not given valid consent to their confinement”.

The amendment goes on to define “valid consent”, stating in particular that valid consent has been given when,

“the cared-for person is capable of expressing their wishes and feelings … has expressed their persistent contentment with their care and treatment arrangements … there is no coercion involved in the implementation of the … arrangements”,

and it is,

“confirmed in writing by two professionals, one of whom must not be involved in the implementation of the cared-for person’s … arrangements”.

The intention behind the amendments is to create a statutory definition of the deprivation of liberty, as has been discussed. I note that the amendments were influenced by the work of the Joint Committee on Human Rights, which I both applaud and welcome. We are aware, and the Law Commission’s consultation confirmed, that there is real confusion on the ground over the application of the so-called acid test and determining whether a person has been deprived of their liberty. In some cases, that has led to blanket referrals and applications for authorisations being made where there may be no deprivation of liberty at all.

As the noble Baroness, Lady Thornton, pointed out, I promised to think about this issue and we have given it a great deal of thought. Like other noble Lords, we have reached the conclusion that deprivation of liberty should be clarified in statute. However, we want to get the definition right and make sure that it is compatible with Article 5 of the ECHR. I agree that the aims of the amendments are laudable. As I said, the Government support providing clarity in the Bill. However, as I am sure all noble Lords appreciate, this is a complex and technical issue, and we have to make sure that any amendment is compliant with Article 5.

The noble Baroness, Lady Thornton, pointed out one particular concern around the use of the term “not negligible … time”. The point I want to make is much more technical, but it serves to introduce how difficult this issue is. I hope noble Lords will bear with me as I explain it; it is incredibly important. We believe that the amendments tabled by the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, would not have the intended effect of defining deprivation of liberty, but would instead limit the application of liberty protection safeguards to those who fall within the respective definitions.

Section 64(5) of the Mental Capacity Act defines “deprivation of liberty” as having the same meaning as in Article 5. The definitions in the amendments would not change this. Deprivations of liberty that fall outside those definitions would still be deprivations of liberty under Article 5, and would still need to be authorised in accordance with Article 5. However, because the liberty protection safeguards would not apply, authorisation would instead need to be sought in the Court of Protection, which, as we know, can be a cumbersome and distressing process for persons and their families, and would have significant cost implications for public bodies and the court system

Furthermore, the amendment tabled by the noble and learned Lord, Lord Woolf, although closely resembling the proposal put forward by the JCHR, also seeks to determine what valid consent would mean, and we are worried that that would not work in the way intended, because the definition is very broad. Its consequence could be that a significant number of people currently subject to DoLS authorisation would be caught by the definition and excluded from the liberty protection safeguard system, and tens of thousands of people might need to seek authorisation from the Court of Protection. Again, I do not believe that anyone would want to see that outcome. I notice that the noble and learned Lord is shaking his head, so clearly there is some disagreement on this point. I use it, however, to illustrate that there is a concern that we get this right.

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[Baroness Meacher (CB)]

My Lords, my noble friend Lady Murphy, who added her name to this amendment, apologises because she unfortunately cannot be here as she is not in the country.

Like other noble Lords, I thank the Minister for really listening to the serious points that have been made by noble Lords across the House and for taking things forward substantially since we started this work.

The two issues that I want to raise are, first, that it may be unhelpful to include within the LPS system cases where there may be a deprivation of liberty in a domestic setting and, secondly, that it may be helpful to all concerned if the Bill makes it clear as far as possible—and I know this is difficult—where the boundary lies between the Mental Health Act and the Mental Capacity Act. I will discuss these issues in turn. Their only common feature is that they concern two groups of people whose deprivation of liberty issues might best be dealt with outside this Bill.

Turning to the question of people in domestic settings, we should probably start with the Supreme Court’s judgment in P v Cheshire West and Chester Council, which has been referred to many times, which set the acid test of when a deprivation of liberty is occurring. Importantly, it lowered the threshold so that deprivations of liberty can also occur in domestic settings. This is absolutely right. It is perfectly possible to envisage cases where abusive relatives may be depriving a family member of their liberty in an inappropriate, disproportionate and even cruel way. A system to deal with such situations is absolutely necessary—I am not questioning that for one minute—and that system must ultimately have a process involving access to a court to determine disputes. The question is what system is appropriate for such cases and how far it can go to try to avoid references to court wherever possible, because these things can be very distressing for relatives and others involved.

Your Lordships will be aware that some informal carers consider the LPS system to be too expensive and an intrusion on family life. My noble friend Lady Murphy and I are—I was going to say “inclined” to agree with them, but we actually very much agree with them. Which system would provide a proportionate and effective protection of the liberty of people in domestic settings is what this amendment is all about.

The British Association of Social Workers, which represents the best interest assessors and others involved in deprivation of liberty cases at present, proposes that a new statutory definition could exclude home situations and domestic arrangements from a deprivation of liberty, thus removing the current expensive practice whereby the Court of Protection has to authorise these to make them lawful. In this scenario, the safeguarding provisions of the Care Act 2014 would be drawn on to protect people’s liberty within domestic settings.

We hope that between the Lords and Commons stages of the Bill—I do not think anything can be done before Third Reading—the Government will consult on this question and come up with very clear amendments to this Bill and to the Care Act 2014 regulations in order to establish a proportionate and effective system to deal with liberty issues in domestic settings. Both will be necessary.

I will give an example to clarify the real importance of proportionality. Under the safeguarding procedures, an 85 year-old caring for her 89 year-old husband with severe dementia, who feels she can manage only if her husband stays in one room, will have a stream of people calling to assess the needs and potential risks which might be involved. Nine different people may be coming to the house—the poor woman does not know who they are or what they are there for. In our view, she should not have to deal with yet more bureaucracy if it can possibly be avoided. It can be avoided if the safe- guarding professionals are able to assess the deprivation of liberty issue alongside—and within the same visit as—the other assessments. The Government will need to consider the definition of “domestic setting” and to determine whether this includes supervised living arrangements, which, of course, are not care homes. Again, that is a matter on which we need to defer to the Government to work out between the two Chambers.

I turn now to the dividing line between the Mental Health Act and the Mental Capacity Act, as amended by this Bill. Unlike DoLS, which are always based on the best interests of the individual, LPS may result in a person being deprived of their liberty, primarily where there is a risk of harm to others. In such cases, the best interests of the others who may be harmed must be taken fully into account, even at the risk of limiting the liberty, and indeed the best interests, of the individual who may cause the harm—one wants however to avoid that as far as possible. The two groups who come to mind are those with Lewy body dementia, and a small number of people suffering from autism. Sub-paragraph (1B) of our amendment would result in such cases being assessed under the Mental Health Act apart from in exceptional circumstances—I was persuaded that that was an important sub-paragraph to include within any amendment. These assessments would be done by people with experience of assessing risk resulting from disorders of the mind. They would be well equipped to assess deprivations of liberty and their necessity in these particular cases.

In my discussions with Sir Simon Wessely, who is leading the Mental Health Act review, and quite separately in a meeting with two of Sir Simon’s colleagues on the review, I came away clear that it would be helpful to flag up the need for further work on this issue. The Law Commission had proposed that,

“risk of harm to others”,

should be an additional possible reason for detention under their “necessary and proportionate” test, and this was explicitly written into their draft Bill. Interestingly, the Government omitted the relevant text from their Bill.

Recently, the Government said in passing that “risk to others” will be a basis for detention, but this will be set out in the code of practice. I hope the Minister will agree that this really is unsatisfactory, unless the code of practice sets out that detention on grounds of risk to others will not be dealt with in this Bill. One could probably do that in the code of practice, but not the opposite. Is that in fact what the Government have in mind?

This is the issue where the outcome of the Mental Health Act review could relate directly to this Bill. The review reports on 12 December, and no doubt the Government will know the conclusions some days before that. I urge the Minister to try to ensure that work is done to produce an amendment to this Bill, clarifying the position of these relatively small groups of people who might best be assessed under the Mental Health Act rather than under this legislation.

The issue of stigma was raised earlier, but even the Royal Family are trying to address stigma with regard to mental illness. One should not put groups of people under the wrong legislation as a method of dealing with stigma, as it will not deal with it.

As the Minister made clear in our meeting, the best interests test is clearly set out in the Mental Capacity Act, and that carries forward into the Bill. That is absolutely right and important, but this is the most powerful argument for excluding “risk to others” as a criterion for deprivation of liberty under the Bill. These two situations—deprivation of liberty issues in domestic settings and deprivation of liberty due to a risk to others—require an appropriate judicial body for determining challenges to authorisations of deprivation of liberty. The judicial body needs to be accessible to enable participation in the proceedings of the person concerned, the speedy and efficient determination of cases, and the desirability of including medical expertise within the panel deciding the cases, when that is necessary—but not when it is not, which is important.

I hope that the Government will consider widening the scope of mental health tribunals to include a limited number of mental capacity cases as discussed here. The tribunals could be named mental health and capacity tribunals. In many cases, the judge of such a tribunal could determine the case on the papers without the involvement of the full tribunal. Sir Simon made the point to me that we do not have sufficient psychiatrists in this country, and we do not want a great backlog to build up simply because there are not the people to do the job. He seems to think that we have an abundance of judges—that would have to be checked; I do not know about that. These two important issues have not been given adequate attention. I beg to move.

[Baroness Thornton]

My Lords, we on these Benches recognise that the noble Baronesses, Lady Meacher and Lady Murphy, have been persistent in raising these issues throughout the course of the Bill. They are absolutely right that these issues have to be addressed and that they are not covered adequately; the briefings we have had suggest that they are not. The reason that possibly we have not been able to develop enough of a head of steam on this is that we have been focusing on other issues in the Bill, which we will come to. The Minister may not be able to resolve this immediately, but I hope that he will recognise its importance and bring forward a solution.

[Lord O'Shaughnessy]

I express my gratitude to the noble Baronesses, Lady Meacher and Lady Murphy, for tabling this important amendment. As the noble Baroness, Lady Meacher, pointed out, the effect of the amendment would be to ensure that liberty protection safeguards do not apply to a deprivation of liberty in a domestic setting, and that these should be dealt with under the Care Act. It further states that the schedule does not apply where the dominant reason for the deprivation of liberty of a person is for an underlying condition under the Mental Health Act.

The effect of the amendment as tabled would mean that people deprived of their liberty in domestic settings could not have that authorised through the liberty protection safeguards or the Court of Protection. Instead, their case would fall to be dealt with under the Care Act 2014. I appreciate that the intention is that in most cases deprivation of liberty would be avoided through care planning and safeguarding under the Act. But nevertheless, in some cases there will need to be an authorisation of a deprivation of liberty in domestic settings.

I absolutely sympathise with the noble Baroness’s intention to reduce wherever possible intrusions into family life; as the noble Baroness, Lady Thornton, pointed out, that has perhaps not been given sufficient time during the passage of the Bill so far, although it is nevertheless a significant issue. However, we have a concern with regard to the amendment as laid in that the Care Act does not in itself provide adequate Article 5 safeguards, and to rely on such a process could result in a real risk of incompatibility with convention rights.

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[Lord Touhig]

My Lords, I too welcome the amendments and I thank the Minister and his team for the meeting we had earlier this week. He will recall that I raised my concern about different regimes operating in different parts of the country. A responsible body in my borough might decide that it alone would take responsibility for putting together applications, while in the next-door borough the care home manager and so on might be involved. I wanted to look at how we could get to a common approach right across the country. The Minister has helpfully sent us an excellent letter in response to the points I and others raised. In it he states:

“We wish to work with a wide range of stakeholders on developing the code of practice”.


Is he yet in a position to tell which stakeholders he will be consulting? Perhaps he could write and tell us at a later stage, because it would be awful if we left someone off who could make a valuable contribution to this work. The Minister goes on to say:

“We are beginning to develop a programme for the new Code of Practice for the Liberty Protection Safeguards, working alongside the Ministry of Justice. The MoJ is also about to start a project to review the Code of Practice for the wider Mental Capacity Act too, so we will have the opportunity to work on both”.


How does he plan for the two departments to consult between them with stakeholders when looking at the code of practice? Will he consider whether it would be worth setting up a group of interested parties who could act as a sounding board? As the code is developed, similar to what we have done with the Armed Forces covenant, we could bounce ideas off a group which might have an interest and make a contribution. Perhaps we could do something along the same lines. That might ensure that when in the end we get the code of practice, it will have widespread support and be of great benefit to those who we are concerned about.

[Baroness Thornton]

My Lords, I am grateful to the Government for tabling this suite of amendments which, as they say, change the position of care home managers from the original proposal to give them a significant role in applying the liberty protection safeguards—the scheme that is to replace DoLS in care homes. As the Minister said in his comprehensive introduction of this large group, they are a combination of technical amendments and others which are very important indeed. The amendments headed by government Amendment 30 are particularly relevant because they give the responsible body the ability to decide in certain circumstances to take over the authorisation functions in care homes in certain settings. The Government have said that they will set out the details in the code of practice. I shall return to the issue of the regulations and the code of practice in a moment.

Government Amendments 52 and 66 are equally important because they deal with conflicts of interest. The Government have said that the regulations will set out in detail the prescribed functions. I just want to ask a technical question. We do not quite understand why Amendment 78 has been severed from Amendment 73, which it seems to sit with; they are kind of twins and need to be taken together. I realise that we will be dealing with Amendment 73 next week, but they are very important amendments which give regulation-making powers, allowing the appropriate authority to make provisions about what constitutes a connection with a care home. They are also about conflicts of interest.

Amendment 90, as the noble Lord has said, gives the responsible body the ability to decide on the renewal of authorisation functions in care home settings. Listening carefully to what the Minister said when he introduced these amendments, one of the issues they raise is what goes in regulations and what goes in the code of practice. This has been a theme that we have discussed all the way through. It seems to me very important—and I seek reassurance from the Minister on this—that what goes in regulations is matters relating to powers and protection of the individual, and what goes in the code of practice is how those are carried out. Both are very important documents and it is important to address this, so that the right things go in regulations and the issue is comprehensively covered.

It is clear from the debates we have had throughout consideration of the Bill that we welcome the change of heart on policy. Some clarification and explanation will still be required as we move forward, but this suite of amendments does address the important issue of conflicts of interest in the powers of the care home manager and puts the interests of the cared-for person at the heart of the Bill, as they should be. It was clear from the beginning that this issue is of huge concern to all stakeholders on the Labour Benches, as well as across the House. That is why we submitted the suite of amendments early after Committee—strong amendments which addressed and fundamentally changed the role of the care home manager.

Noble Lords will see that the next group of amendments in the list are mine and are supported by the noble Baronesses, Lady Jolly and Lady Watkins. I thank them most sincerely for their support very early in this process. We went through the Bill and removed reference to, or significantly changed the role of, the care home manager. This group starts with Amendment 13, which I would like to assure the Minister, as I did the Bill team, I will not be moving today. These amendments were designed to specify the responsibilities of what we called the “nominated body”—in other words, a qualified body nominated by the responsible body in relation to the authorisation of care home arrangements. That suite of amendments makes it clear that the care home manager’s role is to co-ordinate the required information, determinations and assessment, rather than to carry them out. I am very glad that the Minister used almost exactly those words. What we call the nominated body will be designated by the responsible body. All the subsequent amendments in this group take powers away from the care home manager and replace them.

I was in the Minister’s place many years ago. Seeing these amendments coming down the track with support from across the House—and, indeed, the amendments tabled by the noble Baroness, Lady Finlay, which were sometimes even more radical in their intent—the Minister, the Bill team and his advisers were very wise to take a second look when one considers that all the stakeholders took the same view, without exception, I think. I agree with the noble Baroness, Lady Barker, in that I regret that we met such obduracies, which is what they felt like from our point of view, from the Government in the early stages of the Bill about the role of the care home manager. That meant that we did not spend enough time on other issues that we should have addressed. We did not spend enough time on CCGs, the NHS and the place of local councils in delivering the new arrangements, as my noble friend Lord Hunt mentioned. We did not spend enough time examining the funding and resourcing of the new arrangements. The Minister got off quite lightly on those issues; I am sure that my honourable friends in the Commons will make up for where we lack in this area.

The test of the amendments is whether they fulfil the aims of the suite of amendments we tabled all those weeks ago. We are applying that test today. Can the Minister confirm that the government amendments would give the responsible local authorities the option of giving these roles to the care home manager or taking the responsibilities on themselves and, most importantly, that the care home manager will no longer be responsible for notifying the responsible body whether an IMCA should be appointed in any case? In Amendment 78, it seems that care home managers would not be able to commission anyone with a prescribed connection to the care home. That is to be welcomed.

As far as we are concerned, these amendments are lacking on the issue of—is it the AMPS?

[Lord O’Shaughnessy]

The AMCP.

[Baroness Thornton]

Thank you. I always get those initials wrong. We will discuss that issue tomorrow. As far as we are concerned, the amendments go a long way to meeting the issues that we have raised throughout the previous stages of the Bill. I am grateful for that and I offer them our support.

[Lord O’Shaughnessy]

I am grateful for noble Lords’ support for this group of amendments. I might say that I recognise a juggernaut when I see one coming, but this was about not just the force or number of the amendments—or, indeed, the length of them—but the force of the argument. During this process, we have established the critical point that the care home manager has an important role in the new system, because we want to provide a more proportionate and flexible system, but equally that cannot put them in a position where they have too much power. That would compromise the rights of the people being cared for, who are obviously very vulnerable. The amendments in the names of the noble Baronesses, Lady Finlay and Lady Thornton, gave us some idea of where noble Lords were headed and gave us some sense of shape and direction about where we ought to go to. We have made great progress, and I thank noble Lords for not just their input but their patience throughout this process. It has been trying and challenging for all of us at times, but we have made some great changes that will put the system on a much better footing.

I want to deal with the specific issues raised by various noble Lords. The noble Baroness, Lady Finlay, asked about speech and language therapists. In describing the amendments, I talked about professions “such as” those; she is right that I did not name them specifically. We need to consider which professions are included; clearly, we will want to consult relevant groups and noble Lords on that. Of course, we will make sure during that process that such professionals have the knowledge, skills and expertise that the noble Baroness is looking for. On skills, I recognise that she is disappointed; I hate to disappoint her. I think that this is an issue of semantics. Offline, I can provide assurance on what she is looking for, which is not a superficial case of whether these professionals have a certain degree or are a member of a certain professional body so that boxes can be ticked and we can go ahead. That should be avoided because it will not serve us very well.

The noble Lord, Lord Hunt, asked about the role of local authorities. In the amendments, we have made it clear that the local authority has a prior role in making a judgment about the providers in its area. That was not clear in the Bill before—the noble Baroness, Lady Thornton, asked about that role as well—and it is an incredibly important judgment, because local authorities will need to be in a position to look across their provider network and see who they are clear and confident will be able to make such decisions and who will not. To take up the point made by the noble Lord, Lord Touhig, that will be set out in the code of practice. I will come to his point about stakeholders later. The most important thing is that this is a prior power, to be exercised by the responsible body.

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[Baroness Finlay of Llandaff]

My Lords, I, too, have put my name to this amendment. My noble friend Lady Meacher has laid out very clearly some of the problems and conflicts of interest that can arise. One of the difficulties is deciding which will be the responsible body. If the place where somebody is treated is quite a long way from whoever commissioned their care, it can create real problems for a local authority or a clinical commissioning group, which might be funding outside the range of common care for somebody to be some distance away. That is why we have to decide which is to be the responsible body, and that responsible body must take those responsibilities seriously. The advantage of the responsible body being a designated NHS trust is that the private hospital is likely to have consultant-level staff who are likely to have an NHS contract somewhere at another trust, which may be nearby, or if they are part of a specialised group they will be subject to a degree of oversight, appraisal and so on within that specialist area. They are less likely to have local GPs who would be answerable to clinical commissioning groups. One just does not know. They have to go to one or the other. The most dangerous of all would be to have what one might term a mixed economy of a responsible body in some situations and a clinical commissioning group or local health board in another.

In Wales, things are a little different because the local health board covers the hospital sector and the community, so we have clearly defined geographical boundaries with much easier lines of answerability. My feeling is that we need to plump for one. I hope that the Government will, and I can see that there may, on balance, be advantages in saying the designated NHS trust is the responsible body.

[Baroness Thornton]

My Lords, I shall speak to my amendment, which is in this group. The noble Baroness, Lady Finlay, said that the Government need to opt for something here to solve this problem. Mencap, in particular, and VoiceAbility have been very exercised by this because, as noble Lords have said, there is a conflict of interest when an independent hospital can be responsible for authorising deprivation of liberty for people in the hospital for the purposes of assessment and treatment of a mental disorder. My amendment names the CCG or local health board as the responsible body to remove that conflict of interest.

Since the Winterbourne View learning disability abuse scandal in 2011, the Government have been trying to reduce the number of people in these settings but, it must be said, largely without success. There remain 2,350 people with a learning disability and/or autism in these settings who in many cases could, with the right support, be in the community, but half of them are in independent hospitals. The independent hospital sector is expanding—to the horror, it must be said, of very many people. The average cost of a placement in an assessment and treatment unit for people with a learning disability is £3,500 a week. It can be as high as £13,000 a week. The average stay is of five and a half years. This is really not acceptable. Many noble Lords may have seen the excellent piece by Ian Birrell in the Mail on Sunday—not a newspaper I would normally read—which looked at the companies and the significant profits they make from these very lucrative contracts. The article details two giant US healthcare companies, a global private equity group and a Guernsey-based hedge fund, as well as two British firms and a major charity. The point is that these bodies are responsible for deprivation of liberty, and that can neither be acceptable, nor indeed what the Government intended. The Minister needs to provide us with some solution to this problem.

[Lord O’Shaughnessy]

My Lords, I first thank the noble Baronesses for tabling their amendments and giving us the opportunity to debate, as the noble Baroness, Lady Barker, pointed out, an incredibly important issue. We have heard examples of individuals and institutions where there have been tragic cases of people deprived of their liberty in independent hospitals, and these amendments have given us the opportunity to think about the best way forward to make sure there is proper oversight and authorisation in such cases.

Amendment 16, tabled by the noble Baronesses, Lady Barker, Lady Finlay and Lady Meacher, makes the designated NHS trust the responsible body in independent hospital cases. The amendment tabled by the noble Baroness, Lady Thornton, would make the CCG or local health board the responsible body where a person is accommodated in an independent hospital for the assessment of mental disorder.

As the noble Baroness, Lady Barker, and other noble Baronesses pointed out, stakeholders have raised this issue on many occasions. They have raised concerns about the level of scrutiny in these independent hospital cases. The Bill, as it stands, provides that in most cases the managers of independent hospitals are responsible bodies, meaning that they authorise arrangements carried out mainly in hospitals. The amendments seek to address this by changing the responsible body, and I have great sympathy with their intention.

We know that those in independent hospitals often have particularly complex needs, especially those being assessed or treated for mental disorders. The noble Baroness, Lady Thornton, said we need a solution, but I think there is a different solution, which could improve—if I dare say so—on the amendments tabled by the noble Baronesses. Rather than changing the responsible bodies, it would be even better if we required an AMCP to complete the pre-authorisation review in such cases. We know that the AMCP is a registered professional, accountable to their professional body, and that they would meet the individual, and any other interested parties, in person. The Government believe that independent hospitals would benefit from AMCP involvement, and therefore our intention is to bring forward an amendment, or amendments, as required, in the Commons to deal with this issue and make sure that there is such a role for the AMCP in all deprivation of liberty cases.

[Baroness Thornton]

If I might set this in the vernacular, one of the reasons that we have been so concerned about the conflicts of interest and powers for the care home manager is that we wonder how anyone can be sprung, as it were, from the situation in which they find themselves. How would an AMCP do that? How could they be liberated from the situation they are in if the deprivation of liberty power remains with the chief executive or manager of the private hospital?

[Lord O’Shaughnessy]

The reason is that although the deprivation of liberty would take place in that institution, every single case would be examined by an AMCP. The pre-authorisation review and scrutiny would be carried out by the AMCP. They would have the ability to examine the case, to speak to the person and all other relevant interested persons, and to challenge, if necessary, the circumstances of the deprivation of liberty or the care that had been put in place.

To take the hierarchy of decision-making in a care home, for example, the arrangements are made by, but not carried out by, the care home manager. They are referred to the responsible body for preauthorisation review, and if there are concerns of a problem at the level of the responsible body—an objection on behalf of the person or on behalf of somebody who cares for or is connected to them—it would go immediately to the AMCP. In a sense, this vaults the decision-making process beyond the responsible body and, as the noble Baroness, Lady Finlay, pointed out, there are particular issues over which body ought to take responsibility and go straight to, effectively, the last port of call before the Court of Protection. It provides that degree of oversight and challenge in these cases.

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[Baroness Finlay of Llandaff]

I endorse the comments of the noble Baroness, Lady Barker, in moving this amendment. One of the reasons that it should be in the Bill is that we have been trying to have the cared-for person at the heart of our deliberations, and the wording here is completely compatible with other parts of the Mental Capacity Act.

There is a terrible tendency when people look at the least restrictive option to also think about what might be convenient for them. The least restrictive option might not be the easiest, and might mean that staff have to behave in quite a different way. By wording these two amendments in this way, we are looking at the risk of harm to the person specifically, and are keeping the person at the heart of this. There always will be a risk that decisions will be contested in court and will need to go to court, and an application to the court may be judged specifically against that test, because it is in the Bill. If it is in the code of practice, there is a real danger that it could be downgraded.

[Baroness Thornton]

I put my name to this amendment, and we on these Benches very much support the intention behind the amendments in this group.

I bow to the fact that the noble Baroness, Lady Barker, has lived and worked with this for a very long time indeed, has reviewed the Mental Capacity Act and was very influential in the way it was formed. There has been a lot of discussion with stakeholders about this group of amendments and how we can best express “necessary and proportionate” in a way that will strengthen the Bill and prevent harm to the cared-for person. These amendments do that, providing clarity. Again, as I mentioned in the previous debates, because this is to do with protection and powers, it has to be in the Bill and not the code of practice. I hope that the Minister will agree to the amendments, because it is probably the best way forward, and that he will end this discussion in harmony and agreement.

[Lord O'Shaughnessy]

As the noble Baroness knows, I am all for harmony and agreement.

I thank the noble Baronesses for laying these amendments, and I accept the point made by the noble Baroness, Lady Barker, about her gracious acceptance of the role of the best-interests test. I recognise that she has some serious concerns about this legislation, which I take seriously. I have been determined to work closely with her, and I am grateful for her reciprocation in that process as we have moved ahead.

These amendments seek to specify that the necessary and proportionate assessment must be undertaken by reference to whether an authorisation is needed explicitly to prevent harm to the person. We know that an assessment of whether the arrangements are necessary and proportionate is key to ensuring that liberty protection safeguards will afford people their protections and human rights, and is a requirement of the European Convention on Human Rights. There are many factors which would need to be considered in the necessary and proportionate assessment, including the wishes and feelings of the person, whether any less restrictive measures can be put in place and the risk of harm. That is the issue that is the subject of these amendments.

Importantly, these amendments raise the issue of considering risk of harm to the cared-for person during the assessment by including that expressly and explicitly in the Bill. However, my concern is that that may be at the cost of other factors that ought to be properly considered during the assessment process. If these amendments are passed, one of the factors which may not be properly considered in the assessment process is the risk of harm to others, which the Law Commission said should be explicitly considered within a necessary and proportionate assessment, as well as risk to self. There are cases currently under the DoLS system where the risk of harm to others is an important factor in the justification for deprivation of liberty, such as a person with Lewy body dementia who may need restrictions in order to prevent harm to people in the community.

Furthermore, ensuring that no harm could come to a person is in some cases intertwined with ensuring that no harm comes to others. For example, there could be a retaliatory attack as a result of harm caused by a person to someone else. These amendments would mean that by focusing solely on harm to self in the Bill, it could be more difficult for assessors to make those balanced decisions. I therefore have some concerns about the amendments tabled by noble Baroness, as they could perpetuate the current confusion surrounding cases that involve some degree of harm to others. They could also lead to an increased use of the Mental Health Act, since the liberty protection safeguards might be interpreted as being ruled out in all harm-to-others cases. We would not want to see the Act used in this way.

Therefore, in the spirit of consensus and moving forward, I have carefully considered whether the Bill should be amended—or whether the Government could support such amendments—to explicitly set out inclusion of the risk of harm to the person. I am afraid I am going to disappoint noble Lords by saying that it would be better set out in the code of practice. I emphasise that we have considered the issue in detail, and we believe that the code of practice has sufficient force. On that basis—although I know that she will not do so—I encourage the noble Baroness to withdraw her amendment.