Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Wheeler and Baroness Finlay of Llandaff

Report: 2nd sitting (Hansard): House of Lords
Tuesday 27th November 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, Amendments 49, 85 and 87, which are in my name, complement Amendment 29—which, like others, I strongly support. Information to the family and those who care deeply about the welfare of the person is the cared-for person’s safeguard against exploitation or bad care or simply having their needs ignored. It is paramount that families have a role to play in the care planning of their relatives, not least by giving them the option to stay fully informed and to object to the proposed plans if they are unsatisfied.

When an assessment happens at one point it is easy to collate all the information, get it signed off and then forget that every day until the scheduled review is a day to be lived by the cared-for person. If the conditions laid out in the authorisation are not adhered to, if the person is not empowered as much as possible to be both mentally and physically active, gradual inactivity and a slipping decline set in.

The care itself is important. Certainly, quality of care will vary between care homes and within them, but monitoring the care plan is central to ensuring that the cared-for person’s dignity is maintained. Their quality of life depends on how they are treated day in, day out, as well as whether they receive care in a way that enhances their personal dignity or, shamefully, they are treated as though they are of less worth. It is therefore imperative to ensure that the cared-for person is placed at the heart of the LPS authorisation process, which is why I want all those consulted in the initial process, as laid out in paragraph 17(2), to be able to access easily the care and support plan. Being able to apply for it is not enough; many people may not even know that they are able to apply to look at it. Relatives will notice if the care plan states that something is not happening and question why.

The care plan and authorisation record must be available to the cared-for person, enabling them to keep track of what is supposed to be happening. For those with fluctuating capacity or less severe impairments, the sense of control and empowerment that this would give is completely in line with the ethos of the Mental Capacity Act. Where the cared-for person cannot monitor their care plan, they can still know, even in their short-term memory, whether they are getting what they should get. Those with specific responsibilities for the cared-for person’s welfare—such as the nominated representative, the donee of the lasting power of attorney for health and welfare or the court-appointed deputy—must have both the authorisation statement and the accompanying care plan.

The care plan must also be provided to the care team in the cared-for person’s place of residence, because where such a place is supported living, I am concerned that those who provide support and are not on a professional register may find that they are not given all the details. I strongly support Amendment 29, introduced so clearly by my noble friend Lady Watkins. People must know what their rights are and what will happen. This will not be costly; it will be far less costly than the court cases that are likely to come if the requirement to provide information about all aspects of the process and plan is not in the Bill.

Amendment 87 deals with what to do in the event of a dispute. It requires an AMCP to be appointed to explore the reasons for the dispute and assess the situation independently. If agreement cannot be reached, independent mediation must be sought before resorting to the adversarial processes of going to court. A group of family law solicitors has been working for over a year to develop a system of mediation to be used before a court proceeding in the Court of Protection. This type of dispute, where everyone agrees that a solution must be found in the interests of the cared-for person, lends itself well to mediation; it would be swifter, cost less than any court action and be far less traumatic for all concerned. If the principle of dealing with dispute is not in the Bill, can the Minister reassure the House that it will be dealt with in the code of practice?

Before I finish, I urge the Minister to recognise the strength of feeling about people needing to be given information about their rights. If he will not accept these amendments, will he agree to bring the lead amendment in this group back as a government amendment at Third Reading? Requiring adequate information-giving must be in the Bill; it cannot be left to the code of practice, nor deferred to the Commons stages. This is one of the most essential planks in ensuring that the care that should be given is given.

[Baroness Wheeler (Lab)]

My Lords, we on these Benches strongly support the key amendments in this group. Amendment 29, to which my noble friend Lady Thornton added her name, would ensure that the responsible body has a duty to make sure that the cared-for person or the person representing them in an advocacy, professional or other capacity fully understands the rights of the cared-for person for whom deprivation of liberty is proposed, and the rights to challenge. Those rights also include specifically the rights to an independent and professional assessment, to a review of the LPS arrangements, to advocacy and support and to be able to challenge the LPS authorisation in court.

The noble Baroness, Lady Watkins, made a strong case for rights to information to be on the face of the Bill, ably following on from the interventions of the noble Baroness, Lady Hollins, during its previous stages. She spoke on the importance of this issue, particularly in respect to people with learning difficulties, and the need, wherever possible, to take steps to increase the cared-for person’s capacity to understand what is happening to them and to have as much involvement as possible to help them determine their wishes and feelings.