Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Thornton and Baroness Stedman-Scott

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

[Baroness Thornton (Lab)]

My Lords, I have added my name to Amendments 31 and 48 from the noble Baroness, Lady Jolly. Apart from supporting the amendments and regarding the approved mental capacity professional as an issue of great importance in the Bill, I did so to be able to ask a few questions.

It might be simply that I do not understand, but my concern is this: how will the person who cannot object, but who needs to object, do it? The Bill states that people can automatically access the approved mental capacity professional if they object, but what happens for the person who cannot object but probably ought to? Who decides that a person’s family or those around them will be consulted to make sure that, if there is a need for an objection, it is heeded, which then puts them in the right place to access the AMCP? Those concerns have been expressed by lots of our colleagues in different ways. It is still not clear to me how that will happen. How will that person be protected under those circumstances?

[Baroness Stedman-Scott (Con)]

My Lords, I thank all noble Lords for initiating this discussion about approved mental capacity professionals and providing me with an opportunity, for the first time ever, to respond to amendments to a Bill.

[Baroness Stedman-Scott]

I thank my noble friend for that intervention. I have been hugely impressed by the commitment on all sides of the House to interrogate this Bill to make sure that it is fit for purpose and does the right job for the people we all seek to serve.

The amendments from the noble Baronesses, Lady Thornton, Lady Jolly and Lady Finlay, would have the effect of requiring that, in each and every case referred to an approved mental capacity professional, the AMCP would have to explicitly consider whether the case should be referred to the Court of Protection. We are clear that if a person wants to challenge their authorisation in the Court of Protection they have the right to do so. However, part of the reason we are creating the approved mental capacity professional role is so that cases where the person is objecting to the proposed arrangements can be considered outside having to go court, which we expect to be in line with the people’s wishes. It is always good to remind ourselves—as has been done many times during today’s business—of what we are trying to achieve and what we are trying to avoid. If we can avoid going to court, as has already been said, but serve people well, then we will have achieved something.

I am conscious that we do not want to create a situation where approved mental capacity professionals defer their responsibility to the Court of Protection and individuals have to undergo court procedures unnecessarily, particularly as we know this can be burdensome for people. In the short debate about this group of amendments, we have all agreed that we should avoid court at all costs, not only fiscally but because of the burden, stress and blockages that it puts into the system. However, I would like to reassure noble Lords that the responsible body has a responsibility to ensure that individuals who want to bring a challenge, in line with their Article 5 rights, have access to the Court of Protection, and the approved mental capacity professional would be important in identifying where this will be the case.

The amendment of the noble Baroness, Lady Barker, would have the effect of requiring the approved mental capacity professional to meet with the cared-for person unless there is agreement with consulted persons that it is not necessary or appropriate to do so. We are clear that our intention is for approved mental capacity professionals to meet with the cared-for persons in almost all cases. Exceptions would be extreme circumstances, such as if the cared-for person is in a coma or clearly expresses a wish that they do not wish to meet with the approved mental capacity professional. I am sure that noble Lords agree that in these exceptional cases it is right that the approved mental capacity professionals do not meet the person.

To reflect this, we have imposed a duty to meet the person where it appears to the approved mental capacity professionals to be appropriate and practical to do so. I understand that the intention of the amendment is to limit the circumstances in which an approved mental capacity professional does not meet with the cared-for person. However, I am conscious that there could be situations—for example, where the AMCP and all consultees bar one agree that it was not necessary or appropriate to meet the person. However, if one consultee did not agree, it would mean that one consultee would effectively have a veto and the AMCP would be required to meet the person. We will ensure that guidance regarding that rare circumstance where it is not practical and appropriate is included in the code of practice.

The amendment of the noble Baronesses, Lady Barker and Lady Hollins, and the noble Lord, Lord Hunt of Kings Heath, requires the person completing the pre-authorisation review, where this is not an approved mental capacity professional, to meet with the cared-for person regardless of whether this is appropriate or practical. We appreciate that there may be circumstances—

[Baroness Thornton]

I am not sure whether my question has been answered so I will repeat it. Does this mean it is automatic that the cared-for person will see the AMCP? Is that what the noble Baroness is saying? She has started tying me up in knots. Will it be automatic? Except, obviously, in the cases that have been mentioned, is that what will happen?

[Baroness Stedman-Scott]

Let me confirm that they will not automatically meet with the AMCP.

[Baroness Thornton]

In that case, who takes the decision?

[Baroness Stedman-Scott]

I was saving my answer to that question for the end of my speech, but as the noble Baroness is pushing me, I shall respond now. Since I have been in this House I have always been advised that when you do not know something, you fess up to it. So I have to tell the noble Baroness that I cannot answer that question right now unless someone to my left has a magic piece of paper that will get me out of jail free on this one. More seriously, I will come back to the noble Baroness because it is a very pertinent question, if that is acceptable to her.

[Baroness Thornton]

Thank you.

--- Later in debate ---

[Baroness Thornton]

That is a very good point. I will speak to my Amendment 44A, which is in this group. My amendment provides for a pre-authorisation review to be carried out by an approved mental capacity professional if the cared-for person is in an independent hospital and receiving mental health assessment or treatment. Where a person is in an independent hospital for the purposes of assessment and treatment for mental disorder, they may need to come under the liberty protection safeguards, and there must be an independent assessment by an AMCP.

I am concerned about the lack of independent assessment and oversight to guard against conflicts of interest in these settings. It is an issue that I know that organisations supporting people with learning disabilities and autism—Mencap and others—are also very concerned about. It is recognised that too many people with a learning disability and autism are stuck in assessment and treatment units and other in-patient settings due to the lack of the right support in the community.

Following the learning disability abuse scandal at Winterbourne View hospital, the Government and NHS England promised to tackle this issue and reduce the number of people with a learning disability and autism in these settings. Through their Transforming Care programme, they have committed to developing the right community support to reduce the number of in-patient beds. However, to date there has been little reduction in the number of people in these settings. Often, high levels of restrictive practices are used in these settings. It is recognised that children, young people and adults with a learning disability and/or autism in in-patient settings are at risk of overmedication, restraint and being kept in solitary confinement, as we have seen in the press in the past couple of days.

The average length of stay for assessment and treatment is nearly five and a half years. The Learning Disability Census 2015 stated that 72% of people in in-patient units had received antipsychotic medication, but only 29% were recorded as having a psychotic disorder; 56% had experienced self-harm, an accident, physical assault, hands-on restraint or being kept in seclusion. A recent shocking BBC “File on Four” programme revealed highly restrictive practices in these settings. It had obtained information that there had been a large increase in the use of restrictive practices between 2016 and 2017. This is of great concern.

According to the latest NHS digital data, 2,375 people with a learning disability or autism are in in-patient settings. Of those, 1,045 are in independent hospitals. The data show that currently, most are detained under the Mental Health Act, but of course there are people who are under DoLS in these settings, and who will be under the liberty protection safeguards in these settings in future. It is vital that there are robust independent assessments for people in these settings who may fall under the liberty protection safeguards. It is therefore essential that there is a requirement for an AMCP to undertake an independent assessment in these situations.

Can the Minister clarify: under the liberty protection safeguards, who will be responsible for signing off the LPS authorisations for people in independent mental health hospitals?

[Baroness Stedman-Scott]

My Lords, many exam questions are coming out this evening. Let us hope we can answer them to your Lordships’ satisfaction.

[Baroness Thornton]

We want to ensure that the noble Baroness gets the full context of what it is like dealing with amendments in Committee.

[Baroness Stedman-Scott]

I appreciate that very much; I am touched and can confirm that you have passed that exam with flying colours.

This is clearly another important element of the Bill, and I thank everyone for their contributions. I pick up the point about independence in the system, and have always been of the view that when you have situations like this, some independence is greatly helpful. Without wishing to make you laugh or belittle what we are trying to do, I say that I have just spent some time in the States and was subject to the awful rigours of President Trump and the Kavanaugh situation. I can tell you there was no independence there whatsoever. So I am absolutely at one with all noble Lords about independence when making judgments and trying to help people improve their lives.

I think the noble Baroness, Lady Hollins, made a terribly important point. Where somebody is having something explained to them and does not feel comfortable objecting, or feels the environment is not right—I doubt there is one of us who has not been in that position at one time—it is horrible. We have to make sure the environment is correct and healthy for people to do so.

I think the points the noble Baroness, Lady Barker, made, in referring back to the evening exam question asked by the noble Baroness, Lady Thornton—how do people know?—have to be answered. I take on board the point raised and think we must get to the bottom of that. However, I can tell you that approximately 30% of people do object to their DoLS review, if that is helpful. Also, the noble Baroness, Lady Barker, raised an important point about evidence base. In a job once, someone wanted me to get the evidence for what we thought we were doing, and I was terribly nervous about it because I thought I would be out of a job. Actually, when we got an independent group in to look at it, we were just blown away by the evidence, which you could not argue with. I know it is costly to gather evidence, and I have no idea if it is practical or realistic here, but I have no doubt the case will be stronger one way or the other for having some evidence. The noble Baroness, Lady Finlay, made numerous excellent points today, but the independence and the review is what is resonating in my mind. I am glad to confirm to the noble Baroness, Lady Barker, that harm to others is included.