Mental Capacity (Amendment) Bill [Lords]

Caroline Dinenage Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 12th February 2019 Commons Chamber

[The Minister for Care (Caroline Dinenage)]

I am here today to prove my mettle.

I will start by stating the obvious: our liberty is our most fundamental human right. The challenge today is that the current system of deprivation of liberty safeguards no longer provides protection to all the vulnerable people entitled to it. The system has proved to be overly bureaucratic and inefficient to apply, and case law has resulted in article 5 of the European convention on human rights being understood in a very different way, and this has, in effect, widened the definition of deprivation of liberty eighteenfold. The result is a long backlog of applications that has built up over time such that today about 125,000 people may be subject to a deprivation of liberty without formal authorisation.

The Bill introduces a new system—the liberty protection safeguard—based on work of the Law Commission that involved more than three years of consultation and consideration. It is designed to provide robust protections and to be simpler so that protections may be afforded quickly and effectively to those who need them. It is absolutely right that any proposed changes to the protection of some of the most vulnerable people in our society be scrutinised closely, however, and I am grateful for the close examination of the Bill by hon. Members and noble Lords during the Bill’s passage here and in the other place.

I thank the hon. Member for Rhondda (Chris Bryant) for raising the issue of how liberty protection safeguards will work for people who have a brain injury or may need to be deprived of their liberty while receiving care or treatment. I also thank him for his chairmanship of the all-party group on acquired brain injury. He does an outstanding job and is a great advocate for the group.

A leading charity in this area, Headway, reports that every 90 seconds someone is admitted to a UK hospital with an acquired brain injury or related diagnosis, such as trauma, stroke, tumour and neurological illness, and many of these will require some form of rehabilitation. For some people, this can be a lifelong need. Having met the hon. Gentleman yesterday to discuss his concerns, I understand that neurorehabilitation can in some cases help people to regain capacity over time and that his amendments are intended to account for this and to ensure that a deprivation of liberty occurs only when strictly necessary.

I would like to provide some reassurance that the first principle of the Bill is that a deprivation of liberty should occur only where it is considered essential and where authorisation conditions are met. I can assure the hon. Gentleman that we have considered carefully how this model will work for this group of people and are confident that the reformed model will embed consideration of deprivation of liberty into the earliest stages of care and treatment planning so that from the outset these arrangements will work alongside neurorehabilitation therapy and adhere to the less-restrictive principle of the Mental Capacity Act 2005.

[Norman Lamb (North Norfolk) (LD)]

I understand the Minister’s concern not to impinge on the rights of disabled and elderly people, but is she not concerned that more than 100 social care and disability organisations have written to her raising continuing concerns, including about the Bill adversely affecting the rights of people who rely on care and support services. Does she think they are wrong, or does she think they have legitimate concerns that still need to be properly addressed?

[Caroline Dinenage]

Of course, any organisation representing these vulnerable people that raises concerns deserves to have them listened to, and I am sure that the vast majority are legitimate concerns, which is why we have been listening so carefully up until this point. The right hon. Gentleman will know how many amendments we have made in the other place, in Committee and today.

We will continue to listen and collaborate as we deal with the code of practice, about which I shall say more in a moment. A working group of third-sector organisations is helping us to put the document together so that it is not rushed. It is not being prepared for the purposes of Parliament, but it will come before Parliament. Following a wide public consultation, both Houses will vote on it. That collaboration has been and will continue to be important: it is not the end of the conversation, but very much part of it.

[Catherine West (Hornsey and Wood Green) (Lab)]

May I pursue the intervention from the right hon. Member for North Norfolk (Norman Lamb)? Is the Minister satisfied that the definition of the deprivation of liberty will not lead to litigation in the courts? Some constituents have written to me saying that the proposed changes could open a legal can of worms. Can the Minister reassure me that this will not end in expensive litigation, either for constituents or for the Government?

[Caroline Dinenage]

I do not think it is ever possible to say that. This particular area of law has always been open to legal challenge. We decided to include a definition because so many stakeholders, as well as the Law Commission and Members of the other place, thought it essential, but the wording is very specific.[Official Report, 13 February 2019, Vol. 654, c. 7MC.] It refers to what does not constitute a deprivation of liberty rather than what does, because we did not want to leave out accidentally something that could open up a legal challenge further down the line. This is where the code of practice comes into its own. It will include case studies and examples, so that those affected by the Mental Capacity Act will have a better understanding of how it works for them.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

The Minister has just mentioned case studies, and she has mentioned them before. She has circulated case studies to a few people, but they were not circulated to me or to any other members of the Committee, which I think was very discourteous. We keep hearing about things that are in the distance—over there—and will come together at some point, but those case studies have not been circulated, and they should have been.

[Caroline Dinenage]

I think that there must be some confusion. The case studies will be part of the code of practice. They will be gathered together in the document, and third-sector organisations will contribute to ensure that we cover every cohort. We must bear in mind that we are trying to cater for wildly different groups of people. The document will have to cover the young person with an acquired brain injury to whom the hon. Member for Rhondda referred, a 16-year-old who has had a learning disability since birth and the 97-year-old with dementia. It must not be the box-ticking one-size-fits-all exercise for which the current legislation provides.

We are aware that mental capacity assessments may be of particular concern to the group of people mentioned by the hon. Member for Rhondda. Assessing the capacity of people with acquired brain injuries can be particularly challenging, and will require skilled and careful consideration. Government amendments 28 to 37, which I shall discuss later, outline our intention to publish regulations in order to ensure that the assessors have the appropriate knowledge and experience.

We agree that the likelihood of capacity to fluctuate should be ascertained during the assessments, and we will expect that to be considered in the authorisation, in the length of authorisation and in the frequency of reviews. Fluctuating capacity is complex and fact-specific and deserves in-depth and detailed guidance, which is why we will include the details in the code of practice. I appreciate what the Opposition amendments are trying to do and I fully agree with their spirit, but I hope that my commitment to work with others on the code has given the hon. Gentleman and other members of the all-party parliamentary group the reassurance that they need.

Through the scrutiny of the Public Bill Committee and the ongoing engagement with stakeholders, we have identified a number of areas in which the Bill could be strengthened further. As I have said before, I firmly intend to introduce a more effective, efficient system of robust safeguards, moving away from the one-size-fits-all approach that no longer works. I am committed to doing this in a very collaborative way, and where possible to identify legislative improvements that can be made to work. I am committed to looking at this again, and as a result a number of Government amendments have been tabled that improve the Bill and the way in which liberty protection safeguards work.

Amendment 5 aligns the definition of a care home manager in Wales with that in England. The Bill as currently drafted defines care home managers in Wales as a registered manager. This amendment changes that so that it is linked to the registered service provider. Amendments 7 to 23 will remove any perceived conflict of interest where a deprivation of liberty occurs in an independent hospital. Under amendment 14 the responsible body in cases where arrangements are mainly carried out in an independent hospital would be the local authority in England and in Wales the local health board for the area in which the hospital is situated. This removes any potential misuse of power or conflict of interest in independent hospital settings. Amendment 22 outlines that in England the responsible body is the local authority responsible for the education, health and care plan or the care plan under the Care Act 2014. If a person does not have one of these, the responsible body is that in the area where the hospital is situated.

[John Redwood (Wokingham) (Con)]

What provision does the Minister think should be made in the code for the families? Often the adult children or the parents know these people extremely well and have very caring approaches, and they may have wisdom to inform the decision, but there might be the odd occasion when the family member has their own agenda and not that of the vulnerable person. So what should the role of the family be?

[Caroline Dinenage]

The role of the family is much greater in this amended legislation than it is currently. A number of families have told us through our work on this Bill that they feel very disenfranchised by the current system. For example, in the new system a family member or a loved one can be an approved person.[Official Report, 13 February 2019, Vol. 654, c. 7MC.] That would be the person’s advocate through the process. That method brings family members and loved ones much closer into the decision-making around this whole system.

[Jim Shannon (Strangford) (DUP)]

I received some correspondence from Age Concern, as the Minister knows. It wanted to raise two specific issues; I spoke to the Minister about this, but I want to raise it again to have it recorded in Hansard. The issues are the definition of the deprivation of liberty, which I understand the Government are including in the Bill, and access to advocacy. I reiterate, too, the point made by the right hon. Member for Wokingham (John Redwood): the importance of having family and loved ones as part of the process. We must not disenfranchise them; if we do that, we are doing this wrong. So will the Minister confirm that those things are in place?

[Caroline Dinenage]

Yes, that definition is included in the Bill, and it is also expected that people will have an advocate. That is an approved person; it can be a family member or loved one or it can be an independent mental capacity advocate, or indeed both if the family do not feel they are fully equipped to be able to support their loved one.

[Jim Shannon]

So the wishes and feelings of the loved ones and their families are at the heart of the Bill?

[Caroline Dinenage]

The wishes and feelings of the vulnerable person are at the centre of the Bill, and the wishes and feelings of their family will definitely be taken into consideration if their family is the approved person. We must always leave a little space in case the person does not want their approved person to be a family member for whatever reason.[Official Report, 13 February 2019, Vol. 654, c. 8MC.] The wishes and feelings of the individual must be at the heart of this, and that was at the heart of the original Mental Capacity Act 2005.

[Mrs Moon]

Does the Minister agree that one of the most essential things everyone should do while they are well is make sure they take out an enduring power of attorney that names the person they want to oversee their health and wellbeing should they be in a situation such as this? Also, many families are intimidated into making bad decisions out of fear that the care home might say, “If you don’t do as we say, or if you complain, move your parent.” Giving power into the hands of care home managers is a very dangerous situation.

[Caroline Dinenage]

As a Justice Minister, I was responsible for lasting powers of attorney and we spent a lot of time trying to convince people to make those sorts of decisions for themselves as early as possible.

[Several hon. Members rose—]

[Caroline Dinenage]

I am going to make little progress now because I have a lot more to say and I know that other Members want to speak as well.

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[Paula Sherriff (Dewsbury) (Lab)]

What assurances can the Minister give that the regulations will be genuinely co-created with practitioners and cared-for people? If they are not, how can we be sure that the amendments are not a way of clandestinely watering down the protections of the Bill?

[Caroline Dinenage]

The Bill is very clear about the skills and qualifications necessary for those carrying out the assessments, but the code of practice that goes alongside the Bill will be carried out in partnership. We already have a working group made up of third sector organisations that are working to ensure that the statutory document that goes alongside the Bill is as robust as we can make it.

[Melanie Onn (Great Grimsby) (Lab)]

I would like to thank the Minister for meeting me earlier to discuss the Bill. She was very generous with her time. On the question of the code, does she envisage that there will be training on the code for these professionals? If so, how long does she think the training will take, and when will it be properly in force for local authorities to utilise?

[Caroline Dinenage]

Yes, we envisage that there will be training and we will be working with partners such as Skills for Care to look at the best ways of implementing that sort of support.

[Catherine West]

Could the Minister outline the role of care staff in preparing the documentation and making ready for the assessments, as opposed to the role of the responsible body—the local authority—that will make the assessment?

[Caroline Dinenage]

I am actually coming to that very section of the Bill now.

We are proposing that a review of an authorisation will be completed by an approved mental capacity professional when an objection is raised by someone with an interest in the cared-for person’s welfare. It is vital that objections can be raised not just by the person themselves but by others who have an interest in their welfare. This could be a member of the care staff, a close friend or a family member. The Government amended the Bill to clarify that objections can be raised at a pre-authorisation stage, and these new amendments clarify that objections can be raised at any time throughout the authorisation and can lead to a review of the ongoing need for deprivation of liberty.

Amendments 39, 40 and 42 relate to authorisations that need to vary in order to prevent them from ceasing because small variations need to be made. Under the current deprivation of liberty safeguards system, an authorisation is tied to one specific location. This creates a situation in which a person has multiple authorisations if they need to move between settings. If a person is in a care home and has a planned stay in hospital, for example, a new application has to start from scratch. The Law Commission recommended that authorisations should be able to cover more than one setting to remove that duplication. There is an exception if someone needs to go into hospital in an emergency, when variations can be made without a review taking place first, but one should be held as soon as possible afterwards. In some cases, the responsible body will change even though the person still resides in the same location. For example, a care home resident may become eligible for NHS continuing healthcare, but their location and care will not change.

Opposition amendment 49 seeks to require the responsible body to carry out the consultation required by the Bill in every case, removing the ability of the care home manager to complete the consultation. We are clear that it is not appropriate for certain functions to be conducted by the care home manager, which relates to what the hon. Member for Hornsey and Wood Green (Catherine West) was saying. The Bill explicitly prevents anyone with a prescribed connection to a care home, which will be set out in regulations and will include care home managers and staff, from completing the assessments required for an authorisation and the pre-authorisation review. We are clear that decision making lies with the responsible body, not the care home manager.

Consultation is another matter. We expect, as part of good care, that care providers are consulting with the people in their care, and with those with an interest in that person’s welfare, to establish their needs, wishes and feelings. That applies regardless of whether someone is subject to a liberty protection safeguard and should happen on an ongoing basis. Having care home managers complete the consultation required by the Bill is simply building upon current good practice. The Bill has clear safeguards for that purpose. Objections do not need to be raised through the care home manager. They can be raised directly to the responsible body by the person or by someone interested in their welfare. If there are concerns about the care home manager’s ability to complete the consultation required under the Bill, the responsible body can decide to take on the care home function and complete the consultation itself.

[Liz Twist]

Many hon. Members will have had a large amount of correspondence from constituents on this matter. Does the Minister accept that there is huge concern about the operation of the provisions and about the role of care home managers more generally? The amendments seek to address that concern, but that feeling remains.

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[Caroline Dinenage]

I accept that there were a number of concerns, but we made changes to say that care home managers would not in any way be responsible for authorisation or for pre-authorisation reviews.

[Several hon. Members rose—]

[Caroline Dinenage]

I am afraid that I will not take any more interventions because Mr Deputy Speaker might fall out with me entirely. In short, care home managers will be responsible for consultation, which is already part of good care.

Amendment 50 would require an approved mental capacity professional to complete the pre-authorisation review, where care home arrangements are being authorised and where the care home manager provides a statement to the responsible body. The Law Commission recommended the creation of the AMCP role and also recommended that their use should be focused on those cases where their input is needed. The commission recommended that AMCPs should consider cases where an objection is raised and the Bill does that. The Bill also allows other relevant cases to be referred to an AMCP. We expect, for example, cases where there are complex circumstances, or particularly restrictive practices are proposed, to be referred by the responsible body to an AMCP. We have also specified that an AMCP must carry out the pre-authorisation review in independent hospital cases. However, we agree with the Law Commission that not every case should be considered by an AMCP. By having a targeted system, with a greater focus on more complex cases, we can ensure that people receive the protection to which they are entitled.

Turning to amendment 51, I thank hon. Members for raising advocacy, about which we spoke at length in Committee. Advocacy is of the utmost importance for ensuring that the voice of the person is heard. That is why this Bill creates a presumption of advocacy for everyone who is subject to arrangements under liberty protection safeguards. During our engagement with stakeholders, many people and their families told us that the DoLS system was something that was done to them without family involvement. That is why this Bill introduces the appropriate person role described by the Law Commission. Family members and those close to the person will be able to be an appropriate person and provide representation and support. We recognise that that role can be challenging, which is why it will be conducted only by those who are willing to do it. Otherwise, people will be able to request an independent mental capacity advocate to support them in providing that important representation.

Like Opposition Members, we want to ensure that people receive advocacy, but we recognise that we should not impose it on people, nor should it become a formality without real effect. Our Bill already delivers on amendment 51.

[Norman Lamb]

Will the Minister give way?

[Caroline Dinenage]

I am afraid that I cannot take any more interventions at this stage.

Our Bill allows the person themselves to request an IMCA from the responsible body if they have the capacity to do so, and it explicitly states that an appropriate person can request an IMCA or that the responsible body should appoint an IMCA if it believes that the appropriate person having the support of an IMCA would be in the cared-for person’s best interest.

I agree that the appropriate person has a challenging role with vital duties to ensure that the person exercises their rights, and we want to work with others in the sector to establish how best to support them in this role. There is existing provision in the Bill to address the concerns raised by amendment 51. In some areas, the amendment adds uncertainty and over-complication.

This Bill is about protecting vulnerable people and replacing a one-size-fits-all system.

[Dr Sarah Wollaston (Totnes) (Con)]

I thank my hon. Friend for giving way and for listening to many of the concerns that have been expressed about the Bill, as shown in the Government amendments. How are we going to deal with the extraordinary backlog of cases, which has left over 125,000 people without protection? The safeguards she has set out will stop this being a rushed process, but will she say something about the backlog?

[Caroline Dinenage]

The backlog of 125,000 people without the safeguards they need, with their families lacking reassurance and with the people who care for them lacking legal protection, is an enormous concern. That is why, during the long period in which we will set out the code of practice, we will be supporting local authorities to go through those backlogs. From day one, when the system is implemented, any new applications and those still in the backlog will be processed using the new system.

With grateful thanks for your patience, Mr Deputy Speaker, I will now sit down. This new system puts individuals at its very heart, and it removes the one-size-fits-all, box-ticking exercise we have unfortunately come to live with under the current system.

[Several hon. Members rose—]

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[Barbara Keeley]

I absolutely agree with that. Local councils face a serious resource issue, and we see a pressing of this role away to care home managers. I have got some examples with me, but I do not know whether I will have time to go through them. However, we can see that there will be a strong temptation in local councils simply to presume that the care home manager is right. We have to recognise that over-stretched professionals in local councils will sometimes simply accept the word of care staff without fully investigating the case.

In the Public Bill Committee, I talked about the recent case of Y v. Barking and Dagenham. This was the case of a young man who was placed in an inappropriate care home. Initially his parents were satisfied with his placement, but over time the quality of his care deteriorated. We hear a lot and have great concerns about restraint. That young man was restrained in that care home 199 times in two years and suffered significant harm. Y eventually got out of that placement, following a court-appointed guardian visiting and raising concerns, but it took the intervention of somebody outside the care home—that is the key thing.

[Caroline Dinenage]

The hon. Lady is making a powerful case and she talked about many such cases in Committee. Does she agree that this shows exactly why the DoLS system needs overhauling? It is not offering the required protections for vulnerable people, which is why this Bill is so urgent.

[Barbara Keeley]

I could not disagree with the Minister more, because what she is doing is putting people into the lion’s den. I do not know whether she is listening to me, but I am reading her a case where the difficulties arose because the local authority listened to care staff and did not listen to the parents’ objections at all. That is the difficulty. Under the new LPS system, that young man would not have had any safeguards or protection, because the care home staff would have been the people sorting out his authorisation.

[Caroline Dinenage]

Under the new system, family members and parents will be listened to, because they will be the approved person, the representative and the advocate. Their voices will be heard, which is not happening currently.

[Barbara Keeley]

It is not helpful if the Minister and I argue about this. We have had this argument enough times in Committee. She just needs to see that there is a level of concern. I am quoting a case where significant harm was done to a young person in a care home because the parents were not listened to and the care staff were.

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[Mr Speaker]

I can now inform the House that I have completed certification of the Bill, as required by the Standing Order. I have confirmed the view expressed in my provisional certificate issued on 11 February. Copies of my final certificate will be made available in the Vote Office and on the parliamentary website.

Under Standing Order No. 83M, a consent motion is therefore required for the Bill to proceed. Copies of the motion are available in the Vote Office and on the parliamentary website and have been made available to Members in the Chamber. Does the Minister intend to move the consent motion?

[Caroline Dinenage]

indicated assent.

The House forthwith resolved itself into the Legislative Grand Committee (England and Wales) (Standing Order No. 83M).

[Dame Eleanor Laing in the Chair]

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[Caroline Dinenage]

I beg to move, That the Bill be now read the Third time.

Our liberty is the most fundamental of our human rights. By passing this Bill, we can be proud that we have helped to promote the human rights of our country’s most vulnerable people and increased access to protections for the 125,000 individuals who are being deprived of their liberty and are not receiving the safeguards they deserve. That means 125,000 people whose families do not have the peace of mind that their loved ones are being protected, and 125,000 care providers who do not have the requisite legal protection.

Members of both Houses have contributed to the discussions and debates on this Bill, for which I am extremely grateful. We have made changes in both Houses to ensure that the liberty protection safeguards system introduced by the Bill does everything possible to protect human rights—to give a voice to the person and those close to them—while also ensuring that the system is targeted and not cumbersome to people, their families and our health and care sector. I committed from the outset that we would collaborate on this Bill, listen and take on board all the ideas and feelings of stakeholders and Members from both Houses, and many of the amendments we have put forward today are exactly in that collaborative spirit.

[Dr Poulter]

I thank my hon. Friend for the conciliatory way in which she has gone about dealing with this Bill, engaging with colleagues on both sides of the Houses, and putting forward some good and sound amendments to get the Bill to a better place. However, on the issue of funding, which was raised during the debate earlier, if we are going to make social care legislation or legislation of this sort appropriate and have the right safeguards in place, we need local authorities to have a better funding settlement. Is that something she can take away and raise with the Secretary of State for Housing, Communities and Local Government?

[Caroline Dinenage]

My hon. Friend raises a very important point. I am grateful to him for all his feedback on this Bill, because it is very helpful to be able to speak to somebody from a medical background to understand how such a Bill will work in practice at the sharp end. We have given councils access to £10 billion over this three-year period, which just shows the scale of the issues we are facing in adult social care. The Green Paper that will be published shortly will go further in setting out the long-term sustainability of the sector.

As we have heard today, there is no question but that the current DoLS system is failing. In 2014, a House of Lords Committee identified the system as being complex and bureaucratic, and since then the situation has only got worse. An increased number of cases means that local authorities are unable to process all the applications. With more than 48,000 people now waiting over a year, we cannot risk people being subject to overly restrictive health and care practices. This new system will enable quicker access to safeguards, meaning that we can ensure less restrictive practices are being used.

The Government tasked the Law Commission with reviewing the DoLS system and recommending improvements. After more than three years of careful work and consultation, it published its report, which stated the urgent need for reform. That was followed by a report from the Joint Committee on Human Rights, which also recommended having a more targeted system by focusing resources on those who are the most vulnerable or those who have the most complex circumstances, and on cases where objections have been raised. Coupled with this, we have ensured robust safeguards in the system, including independent review and oversight, alongside access to representation and support.

I am grateful to all our partners who have worked with us on this Bill. The input of third sector groups, those who work in the health and care sector and of course those who receive safeguards themselves has all helped to shape our Bill for the better. The Law Commission was absolutely right when it said that DoLS needed to be replaced as a matter of urgency, and that is why we have brought this legislation forward now. We cannot continue with the current system. We are proud to bring forward the Law Commission’s recommendations in this Bill, and we are proud to reform the system and introduce a less bureaucratic, more personalised approach that will work better for people, their families and professionals. I commend this Bill to the House.