Mental Capacity (Amendment) Bill [HL]

Baroness Watkins of Tavistock Excerpts

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

[Baroness Watkins of Tavistock (CB)]

It strikes me that Amendment 87E would apply not only to this Bill but to other Acts. Does it fit here? I understand the principle of what my noble friend is saying.

[Baroness Finlay of Llandaff]

It could have wide-reaching consequences, but a lot of people who have lost capacity and are in a state of high dependency are already in nursing homes, so they are already being cared for in the system and may be subject to deprivation of liberty. Some of them have long-term continuing funding for their care, but they have been there for a long time and the donee, who is managing all their affairs and advocating on their behalf, is very concerned about their welfare in the event of them failing.

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We must therefore be very specific in view of the fact that these cases are rising, where private and public care providers are telling families what they cannot do. We must guard against this by making it clear in the Bill that it should not apply to domestic settings where normal arrangements are being put in place. We need the sort of arrangements that my noble friend Lady Meacher talked about for those few cases, but we have to restrict it to a few cases under very specific circumstances if we are going to have any domestic arrangements challenged in this way.

[Baroness Watkins of Tavistock]

My Lords, I support the amendment in the name of my noble friend Lady Meacher and the comments that my noble friend Lady Murphy just made. She said that she can speak only for the 900,000 people in this country with dementia—but that is a high proportion. I want to share with noble Lords that everything she said I agree with, as part of a multidisciplinary team but also because over 20 years ago she was my external examiner for my PhD—and I passed. The subject was about supporting people with dementia in the community, so this is close to both our hearts.

I will add a little to this debate. I support the amendment for two reasons. First, at the very least we need to think again about the Bill’s application to individuals in domestic settings; and, secondly, we need to think carefully about how domestic care arrangements can be authorised under a liberty protection safeguard and oversight properly maintained over the period of care—which may be for many years, because I agree that things change over that period. One of the things that can happen is that carers who are very good when you first see them are at the end of their tether three years later and can no longer manage. That is why the Law Commission suggests that the LPS should be integrated into care planning arrangements—but that does require regular review.

It may be feasible to amend the Bill so that the LPS could apply with the safeguarding professions of the Care Act, as my noble friend Lady Meacher has already said. Certainly there is a need to ensure that those who lack capacity are safeguarded when they are being looked after in domestic settings, as, sadly, we know that in a very small minority of cases deprivation of liberty occurs through carers’ lack of knowledge of alternative methods to maintain safety, and in even rarer cases in fact becomes a form of abuse. However, the current Bill, if enacted with a zealous approach by professionals, could become a serious intrusion into families’ rights to provide individualised, possibly slightly idiosyncratic care for their relative, which may be fully consistent with how both parties wish to behave within the confines of their family unit and own home. I therefore hope that we will be able to work with the Minister, and the Bill team as appropriate, to improve the Bill to better balance the rights of people being cared for by relatives in their own home, without unwarranted intrusion into the way in which families support and care for relatives with limited mental capacity, while ensuring that deprivation of liberty is appropriate to safeguard the individual.