Health and Social Care

Caroline Dinenage Excerpts

Wednesday 13th February 2019 Ministerial Corrections

The following are extracts from the Report stage of the Mental Capacity (Amendment) Bill [Lords] on 12 February 2019.

[Caroline Dinenage]

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.

[Official Report, 12 February 2019, Vol. 654, c. 802.]

[Caroline Dinenage]

For example, in the new system a family member or a loved one can be an approved person.

[Official Report, 12 February 2019, Vol. 654, c. 803.]

[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, 12 February 2019, Vol. 654, c. 804.]

Letter of correction from The Minister for Care (Caroline Dinenage):

Errors have been identified in the response I gave on Amendment 1 to clause 6.

The correct wording should have been:

[Caroline Dinenage]

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 Joint Committee on Human Rights and Members of the other place, thought it essential”.

[Caroline Dinenage]

For example, in the new system a family member or a loved one can be an appropriate person.

[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 appropriate person to be a family member for whatever reason.

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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—]

--- Later in debate ---

[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.

--- Later in debate ---

[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]

--- Later in debate ---

[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.

Mental Capacity (Amendment) Bill: EVEL

Caroline Dinenage Excerpts

Monday 11th February 2019 Written Statements

[The Minister for Care (Caroline Dinenage)]

I am today placing in the Library of the House the Department’s analysis on the application of Standing Order 83L in respect of the Government amendments tabled for Commons Report stage for the Mental Capacity (Amendment) Bill.

[HCWS1317]

Children with Life-limiting Conditions

Caroline Dinenage Excerpts

Tuesday 29th January 2019 Westminster Hall

[The Minister for Care (Caroline Dinenage)]

Of course, Ms Dorries. It is a great pleasure to serve under your chairmanship. I congratulate the hon. Member for Strangford (Jim Shannon) on securing the debate and on his enduring and passionate commitment to this incredibly important cause.

We heard incredibly powerful speeches from both sides of the Chamber, with lots of great examples of amazing practice in different regions. Some worrying issues were mentioned; I thank the hon. Members for West Ham (Lyn Brown) and for North Tyneside (Mary Glindon) for raising the issue of the life-saving drug that they are keen to get hold of for their constituents. I will of course commit to looking at that with the Secretary of State, but I share the concern of the hon. Member for West Ham that children should never be used as pawns in communications between drug companies and Government organisations.

[Lyn Brown]

May I just press the Minister to agree to the urgent meeting I requested?

[Caroline Dinenage]

Absolutely. The meeting probably would not be with me, because the issue does not fall under my portfolio, but it is really important that the hon. Lady meets the relevant Minister.

The debate has been very broad, and a lot of questions were asked. I will attempt to answer as many as I can, but I commit to writing to hon. Members with all the answers they asked for if I miss any out. Whenever we discuss this issue, we must keep at the back of our minds the powerful point made by the hon. Member for East Kilbride, Strathaven and Lesmahagow (Dr Cameron), despite her throat issues, that at a time of their lives when they are dealing with unimaginable stress and grief, parents should not have to fight for what they need to best care for their children.

The hon. Member for Swansea East (Carolyn Harris) painted a picture of how the world ends when you lose a child. I cannot even begin to imagine that, but it must feel the same to be told that your child may die at a young age. That must, quite simply, be devastating. As the hon. Member for Strangford said, almost 40,000 children and young people aged 19 or under in England live with a life-limiting condition and may need palliative care. Of those, around 1,000 die every year.

As outlined in the NHS long-term plan, we know that children’s palliative and end of life care have not kept pace with the growth in clinical care costs or with inflation. NHS England’s hospice grant programme provides £11 million a year for children’s hospices, which are incredibly valuable. I have spoken before—probably in this room—about my great passion for children’s hospices. That comes from my mum who helped raise money to build Naomi House children’s hospice just outside Winchester, and throughout my twenties she made the whole family partake in a range of humiliating fundraising exercises to raise money for that. I went to visit Naomi House again last year, many years later, and I saw at first hand the incredible, valuable services that it offers, not just for end of life care, but because of its respite and outreach work, which is a lifeline for so many families.

Hon. Members will know the invaluable services offered by children’s hospices, and I was pleased that in the long-term plan additional funding has been made available each year for children’s palliative and end of life care services. I understand the confusion about the different amounts that have been mentioned and issues around that, and Department officials are currently working with NHS England to clarify those numbers and what they mean. I am clear that funding for children’s hospices is vital. We must ensure they get the money they need, and that money must increase from its current levels.

As the hon. Member for Strangford pointed out, there is regional variation in how palliative care is delivered. I know that such care is exceptional in some parts of the country, and many staff up and down the country go above and beyond to ensure that experiences for children with life-limiting conditions, and those at the end of their life, are as good as they can be. We know, however, that there are areas where we need to do considerably more, and NHS England is firmly focused on providing support and challenge to achieve that. Choice at the end of life is a centrepiece of the Government’s drive to improve end of life care, and for choice to be meaningful it needs to be personalised and matched by healthcare services that respond in an effective way that places patients, families and carers at the heart of decision making. We know when we achieve that that we have got it right, but also that we have a long way to go. I pay tribute to the all-party group for children who need palliative care, and charities such as Together for Short Lives, and the work they are doing to take that crusade forward.

[Catherine McKinnell]

I appreciate the commitment made by the Minister that her officials will clarify those figures. Will she also commit to ensuring that children’s hospices do not receive less money as a result of the long-term plan? Can she make that reassuring commitment to everybody watching the debate today?

[Caroline Dinenage]

I know that we are planning to meet next month to discuss this issue in more detail, but my understanding from the announcement in the long-term plan is that there will be an increase in funding for children’s hospices. I would not support a move towards anything other than that, so we are certainly in agreement about the value that children’s hospices offer up and down our country.

In July 2016, “Our commitment to you for end of life care” set out what everyone should expect from care at the end of life, and the actions being taken to make high-quality personalised care a reality for all. NHS England is responsible for delivering that commitment in partnership with key stakeholders through its national end of life care programme board. The hon. Member for Strangford mentioned ensuring that sustainability and transformation partnerships and integrated care systems deliver care in a way that supports their local population. NHS England is already working with Public Health England and the Care Quality Commission to provide bespoke end of life care data and support packs to STP and ICS areas, to help plan for and improve end of life services.

NHS England is developing a new indicator for clinical commissioning groups to measure deaths in hospital after three or more emergency admissions in the final 90 days of life. That sounds like a technical piece of data to collect, but such vital information will help us to understand exactly what care is being delivered, and ensure that we spread best practice and identify areas for improvement.

The hon. Gentleman rightly highlighted the crucial role that leadership and accountability play in commissioning those vital services, and NHS England has and is seeking to improve support for commissioners when funding and delivering children’s end of life care. In April 2017 it made available a new specialist palliative care currency—one for adults and one for children—to support local areas in planning and delivering services, including hospice services. The currency can help local services better understand complexity of care and the investment needed to deliver it. It can be difficult for some commissioners to develop suitable models to meet children’s needs, given that in some geographical areas relatively small numbers are involved. That is why NHS England has established an expert group, which includes Together for Short Lives, to bring together knowledge and expertise in children’s end of life care, consider developing models that are suitable for that incredibly vulnerable group of patients, and set up pilot models of care that will be implemented later this year.

A number of hon. Members mentioned short break services, and access to respite and short breaks is fundamental for many families and carers. Local authorities have a legal duty to commission short breaks, and although the NHS’s role is not statutory but a matter for local commissioners, it may also provide clinical support. Having the reassurance of clinical oversight can often mean the difference between carers taking those much-needed breaks and feeling unable to do so, and it is important that such work is collaborative. A recent report from Together for Short Lives found that 84% of clinical commissioning groups said that they commission short breaks for children who need palliative care—an increase from 77% in 2018. We want to ensure that 100% of clinical commissioning groups make such a contribution so that carers have access to the breaks they need. NHS England provides bespoke data and commissioning support to STP and ICS areas to enable them to plan and deliver effective services, such as short breaks, for children and young people.

Access to and quality of palliative and end of life care goes beyond funding for hospices, and through the long-term plan we are accelerating the roll-out of personal health budgets to give people greater control and choice. We want 200,000 people to benefit from a personal health budget by 2023-24, and that will include things such as provision of bespoke wheelchairs and community-based packages for personal and domestic support. NHS England is expanding the offer of mental health services to people receiving social care support and those receiving specialist or end of life care.

[Julie Cooper]

Does the Minister agree that the 49,000 babies, children and young people who have been diagnosed with life-threatening or life-limiting conditions would all benefit from a personal finance plan?

[Caroline Dinenage]

That is right. The system has to be rolled out carefully because we must get it 100% right. It is a jointly funded and collaborative system, but at the end of 2018 it covered 32,000 people, and by 2023-24 it will cover 200,000 people. That shows enormous progress and commitment, and it will give those who want it more choice and control over what kind of care and support they need to meet their needs.

NHS England is developing a refreshed end of life care core skills education and training framework to standardise training, and the NHS now employs more staff than at any other time in its history. The data does not identify nursing specialities, such as palliative care, but the hon. Member for Eastbourne (Stephen Lloyd) may be interested to know that 648 full-time equivalent doctors are working in palliative medicine, which is 202 more than in May 2010—an increase of 45.2%. NHS England’s long-term plan sets out how it will work with patients, families, local authorities and voluntary sector partners to personalise and improve end of life care.

I will write to the hon. Member for Strangford about NHS pensions and hospices. I was going to mention “Agenda for Change”, but I do not have much time and I wish to leave him time to conclude the debate. I thank all hon. Members who have taken part in this debate. We know there is more to be done to meet our ambition to reduce variation at the end of life and ensure proper support for children with life-limiting conditions and their families.

Social Care

Caroline Dinenage Excerpts

Wednesday 23rd January 2019 Written Statements

[The Minister for Care (Caroline Dinenage)]

Today I would like to update the House on social care funding following the Opposition day debate of 17 October 2018.

Modern society is in the fortunate position where people are living longer and life expectancy for those living with complex health conditions, including disabilities, has dramatically increased. However, with 1.5 million more people aged over 75 expected in the next 10 years, we recognise the pressures this places on the health and social care system and the Government are taking steps to support the sector in responding to these challenges.

In the short term, the Government have given Councils access to up to £3.6 billion more dedicated funding for adult social care in 2018-19 and up to £3.9 billion for 2019-20. This injection of funding is the biggest that councils have ever received and is helping the NHS and social care to support people to live for longer and more independently.

Despite the fact that the NHS is busier than ever before, the majority of patients are discharged quickly. We know that adult social care capacity can become increasingly pressured over the winter months and this can have a knock-on effect on NHS hospitals. This funding is helping to reduce delays, get patients home quicker and free up hospital beds across England for more urgent and acute cases. This is having a tangible effect with delayed transfers of care accounted for 4,580 occupied beds per day in November 2018—a decrease of 2,081 per day against the February 2017 baseline.

The autumn Budget also announced an additional £650 million of new money for social care in 2019-20. This includes another £240 million for adult social care to alleviate winter pressures on the NHS next year and a further £410 million to improve social care for older people, people with disabilities and children. Councils will also benefit from an additional £55 million increase in the disabled facilities grant in 2018-19. This additional capital funding will provide home aids and adaptations for disabled children and adults on low incomes to help them continue to live independent lives in their own homes.

References to £1.3 billion of cuts are entirely misleading as the figure refers only to the revenue support grant which should not be considered in isolation when councils have access to council tax, business rates and other local income to deliver their local services. In fact, funding for local government will increase in real terms in 2019-20. This means more money for councils to deliver for their local communities.

This Government’s actions mean that funding available for adult social care is set to increase by 9% in real terms from 2015-16 to 2019-20 and the additional funding is allowing councils to support more people and sustain a diverse care market.

All councils have statutory duties to look after the vulnerable, elderly and disabled people in their area. The Care Act established a national threshold that defines the care needs that local authorities must meet which eliminates the postcode lottery of eligibility across England. In addition to providing social care services, last year local authorities in England advised over 500,000 people on how to access other services to meet their care needs. This includes services provided by leisure, housing, transport and care providers as well as voluntary groups.

In the longer term, the NHS’s Long-Term Plan is committed to supporting people to age well. As part of this the Government will increase investment in primary medical and community health services by at least £4.5 billion by 2023-24. This will support people to get joined-up, integrated care closer to home and will increase the capacity and responsiveness of community and intermediate care services to those who will benefit the most. Furthermore, the plan recognises the importance of integration between health and social care and commits to upgrading NHS support to all care home residents who would benefit by 2023-24 through the enhanced health in care homes programme, which embeds healthcare professionals into care homes.

The Government have committed to publishing the Green Paper at the earliest opportunity which will consider the fundamental issues facing the adult social care system and present proposals for reform while the social care funding for future years will be settled in the spending review where the overall approach to funding local government will also be considered.

[HCWS1268]

Health and Social Care

Caroline Dinenage Excerpts

Wednesday 23rd January 2019 Ministerial Corrections

The following is an extract from the Adjournment debate entitled Diabetes: Artificial Pancreas on 12 December 2018.

[Caroline Dinenage]

As the right hon. Gentleman said, artificial pancreas devices are an emerging technology that combines continuous glucose monitoring with insulin pumps. One system, the Medtronic 670G system, which he mentioned, was recently approved by the US Food and Drug Administration and a European licence is being pursued.

[Official Report, 12 December 2018, Vol. 651, c. 361.]



Letter of correction from the Minister for Care:

An error has been identified in the response I gave to the right hon. Member for Knowsley (Mr Howarth) in the debate entitled Diabetes: Artificial Pancreas.

The correct response should have been:

[Caroline Dinenage]

As the right hon. Gentleman said, artificial pancreas devices are an emerging technology that combines continuous glucose monitoring with insulin pumps. One system, the Medtronic 670G hybrid closed loop system, which he mentioned, was approved by the US Food and Drug Administration in 2016 and received a Conformité Européenne mark in June 2018.”

Mental Capacity (Amendment) Bill [ Lords ] (Fifth sitting)

Caroline Dinenage Excerpts

Tuesday 22nd January 2019 Public Bill Committees

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

I beg to move amendment 45, in schedule 1, page 19, line 34, at end insert—

“(2) In varying an authorisation, the responsible body may also consider—

(a) whether the cared-for person’s capacity is likely to fluctuate, and

(b) whether any restrictions imposed are necessary to prevent harm to the cared-for person and proportionate to the likelihood of that harm, and are likely to continue to be necessary for the duration of the authorisation.”

This amendment enhances safeguards around the variation of conditions by the responsible body. It indicates that the responsible body should consider whether the person’s capacity may fluctuate, and whether the restrictions which are proposed should be in place for the duration of the authorisation.

It is a pleasure to speak under your chairmanship again, Mr Austin. At least we do not have a boiling hot room to contend with.

The amendment deals with the way fluctuating conditions are addressed under the liberty protection safeguards system. The concept of fluctuating capacity is not expressly addressed or provided for in the Mental Capacity Act 2005, including the deprivation of liberty safeguards. The Mental Capacity Act code of practice recognises the steps that should be taken to support a person with fluctuating capacity to take their own decisions—choosing the time of day at which they are most alert, for instance. However, it does not indicate what should happen where an assessment is required of a person’s ability to make decisions on an ongoing basis about a particular matter. As such, the Law Commission did not consult on fluctuating capacity. However, when it launched its consultation, it received a large number of submissions on the topic.

It is clear that individuals with fluctuating capacity represent a major challenge under the current system. That is unsurprising, as capacity to consent is not a black and white issue. Everyone has varying capacity from day to day and from issue to issue. It is not reasonable to categorise people as entirely having or lacking capacity in all cases. My hon. Friend the Member for Dewsbury gave an example of how that can go wrong in practice.

Our amendment 32 would have required an assessment to be made of whether a cared-for person’s capacity was likely to fluctuate. That would have laid the ground for our amendment 45, which would allow the responsible body to take account of fluctuating conditions in varying an authorisation.

Under the current system, a deprivation of liberty safeguard must be terminated if a person regains the capacity to consent; the Mental Capacity Act makes no mention of what should happen if a person is likely to regain capacity only for a short period. That is not changed in the Bill. Under paragraph 26 of new schedule AA1, the authorisation will end if

“the responsible body believes or ought reasonably to suspect that any of the authorisation conditions are not met.”

That includes the person regaining capacity for any length of time.

There are two ways the issue can be dealt with. The first is that a new authorisation will have to be sought every time someone regains and then loses capacity, but that would dramatically increase the number of applications made. It would place more pressure on approved mental capacity professionals and on the cared-for person, who would be undergoing regular identical assessments. I understand that one aim of the Bill, as we have discussed, is to reduce the backlog of applications for deprivation of liberty. Requiring regular repeated applications for the same individual would not help to achieve that.

The second outcome is that the liberty protection safeguards will not be used properly. For example, in the case of older people with dementia whose condition fluctuates, such assessment might need to be hourly. It would simply not be practical to reapply for an authorisation every time they lost the capacity to consent. A person cannot give advance consent to be deprived of their liberty, so either they will be inappropriately deprived of their liberty through a blanket application or they will not receive the safeguards in the system because no application will ever be made. I reiterate that it does not matter, under the current system, whether a person is perfectly happy with arrangements when they have capacity. The moment that they no longer have capacity to consent, that consent is invalid. They cannot consent to any future arrangements.

Both outcomes leave responsible bodies potentially liable for breaching people’s rights under article 5 of the European convention on human rights. The Law Commission report states:

“it is not acceptable for the legislative framework simply to ignore fluctuating capacity. That exposes health and social care professionals and those authorising a deprivation of liberty to significant legal risk. It is therefore vital that the Liberty Protection Safeguards provide for fluctuating capacity expressly.”

However, the Bill the Government have brought forward makes no provision for fluctuating capacity. Our amendment is aimed at addressing that.

Amendment 45 would allow the responsible body to consider whether the arrangements it is authorising need to be in place for the entire duration of the authorisation it is granting. That would allow authorisations to be granted with specific provision for the arrangements to be suspended while a person has regained capacity. We will return later to what deprivation of liberty means, but that is relevant here. It may be that while someone has capacity, they are free to come and go as they please, with no supervision. But when they do not have capacity, they must be accompanied at all times for their own safety. There is no need for arrangements to require that they be accompanied at all times, regardless of their capacity. Instead, it should depend on their condition on a given day.

This comes back to the amendment moved by my hon. Friend the Member for Birmingham, Selly Oak. In it, he called for arrangements to be authorised only if there were no less restrictive alternatives available. If care providers treat capacity as something that, once lost, remains lost, people will inevitably be subject to unnecessarily restrictive arrangements—not all the time, but for the periods when they have regained capacity. That approach also fails to recognise that people’s capacity can vary without crossing the legal line in the sand. There will be days when someone with dementia can, with a certain amount of support, make the decision that they want to go out for coffee with an old friend, but it may be that, because they cannot make such a decision normally, there is no provision in the arrangements for them to go out. I am sure that the Minister would agree that we do not want over-zealous care managers, concerned about the danger of litigation, to end up unduly restricting a person’s liberty purely because they are treating capacity as a constant. Instead, we must establish a system that recognises the way capacity changes and what that can mean for the cared-for person, and that system should be described in the Bill.

The current system deals with fluctuating capacity through the code of practice. I will be concerned if the Minister says in her response that the Government mean that to continue to be the case. The Law Commission was clear, in its assessment of this legislation, that the code of practice was simply not an appropriate place to deal with this issue. I remind the Minister of the Law Commission’s comment that

“it is not acceptable for the legislative framework simply to ignore fluctuating capacity.”

Bringing individuals with fluctuating conditions within the scope of the Bill would not require them to be deprived of their liberty when that was not appropriate. An authorisation is not an order or injunction to detain the person, and professional discretion should of course be exercised—for example, as to when to take or not take steps to ensure that the person is not allowed to leave, or to bring about their return if they do leave.

Will the Minister cast her mind back to 14 March 2018, the day she published the Government’s response to the Law Commission review of the Mental Capacity Act 2005? On page 6 of the response, she accepted the Law Commission’s recommendations about fluctuating capacity. I should like her to clarify why she accepted them if she had no intention of taking on board the commission’s advice that they be contained in the statutory framework.

The amendment would require a consultation to be carried out before arrangements can be varied to account for fluctuating conditions. In some cases, where capacity fluctuates for short periods, that would be an onerous requirement, but it would also mean arrangements could not be made more restrictive when that might not be appropriate. The amendment does not go as far as the Law Commission wanted to on this topic, so it could be seen as a compromise.

In its draft Bill, the Law Commission set out provision for people to consent in advance of being deprived of their liberty. That would have meant that a cohort of people with degenerative conditions, who foresaw the requirement to deprive them of their liberty, would be removed from the system altogether. The Law Commission also said that

“the giving of consent should generally be regarded as an ongoing state of mind which is required in order for a confinement not to amount to a deprivation of liberty. There will be some who will lack capacity to give such consent for such a substantial proportion of the period covered by the proposed authorisation, and regain it for such brief periods, that it is right to regard them as, overall, lacking capacity to give or withhold consent to the arrangements.”

That is in line with the provisions in the current code of practice. It would codify them in statute, ensuring that the group in question would be adequately covered by the liberty protection safeguards. I do not understand why the Government have not yet taken those suggestions on board. They would ensure that people whose conditions fluctuate are properly dealt with by the new liberty protection safeguards, and close up one of the most glaring holes in the current Act. It seems clear that detaining someone while they have capacity would, at the moment, be a breach of the Act. We need real amendments to the Bill to make sense of the system, rather than yet more promises about a code of practice that we have not yet seen. I acknowledge that the Minister has sent us a list of its contents—but that is not the code of practice.

[The Minister for Care (Caroline Dinenage)]

It is a great pleasure, once again, to serve under your chairmanship, Mr Austin.

I thank hon. Members for raising an important point. We agree that the likelihood of fluctuating capacity should be addressed by the mental capacity assessment. We also expect fluctuating capacity to be considered when the responsible body is deciding to give an authorisation and setting the length of authorisation and frequency of reviews.

I think I set out in my comments on amendment 32 that I am tempted by some of the hon. Lady’s suggestions. However, they do not quite encapsulate the “What then?” of the issue: fluctuating capacity should be considered, but what then? That is why I have concerns. Fluctuating capacity is a complex, fact-specific matter that deserves in-depth, detailed guidance. That is why we will include details of it in the code of practice. We consider that a much better way, allowing examples and real guidance to be set out. That will include the issue of where a person with fluctuating capacity meets or does not meet the authorisation condition of lacking capacity to consent to the arrangements, and whether the authorisation continues in force or ceases to have effect.

The backdrop to the matter is the fact that courts have been considering whether decision makers can take a long-term view in some cases of fluctuating capacity. We expect a judgment from the Court of Appeal soon, in the case of Royal Borough of Greenwich v. CDM. Hopefully, that will give legal guidance on how decision makers should deal with fluctuating capacity. That, of course, will be reflected in the code.

With those assurances in mind, I hope the hon. Lady will feel able to withdraw the amendment.

[Barbara Keeley]

The Minister says she is tempted by the amendment. It is about time, because she accepted the recommendations when she accepted the Law Commission’s report, and I have even read out the date when she did that. The Law Commission was clear in saying that fluctuating capacity is not something that can be dealt with adequately in the code of practice.

Despite the Minister’s having said that she would accept the recommendations, the Government have made no attempt to deal with fluctuating conditions on the face of the Bill. There is a real danger that breaches of the Act will be encouraged because responsible bodies and care practitioners have no proper avenue to pursue if a cared-for person has a fluctuating condition. It is open to the Minister to move an amendment on Report, but we will be putting our amendment to a vote this morning.

Question put, That the amendment be made.

--- Later in debate ---

That is the root and substance of the measure. We need some extra independence in the system—someone who has the responsibility to go in to help, to talk and to try to engage the person, even if they are a bit lethargic. The advocate did that for Jo, and numerous Members have given accounts of that happening. There is a compelling case for switching the default from a best interest judgment to an “everybody” judgment, unless there is a strong reason why the person in question would not want one.

[Caroline Dinenage]

We are, largely, starting on the same page. We all agree that advocacy is of the utmost importance for the cared-for person. The Bill is clear that everyone has a right to an advocate, whether an appropriate person, an IMCA or, in some cases, both. The Bill sets out clearly that, if no appropriate person is available or able to represent and support a person, the responsible body must take all reasonable steps to appoint an IMCA, if the person has capacity and requests an IMCA and wherever a person lacks capacity, unless in very rare cases it is not in their best interest, as my hon. Friend the Member for Halesowen and Rowley Regis mentioned.

I thank hon. Members for recognising in the amendment the wishes of the cared-for person as a condition for appointment, as we would not wish to force advocacy on anyone. The Bill already allows an appropriate person to request the support of an IMCA. However, I am concerned about the way in which that best interest has been discussed today. Best interest is the standard that governs decision making under the MCA. I am concerned that the Opposition are disregarding that in relation to IMCAs. I apologise if I have misinterpreted what hon. Members have said. The core aspect of best interest is the person’s wishes and feelings. That has to be the primary consideration when it comes to rights and IMCAs.

[Barbara Keeley]

Given that the Minister has just expressed her view on how we are presenting our views on best interest, I hope I can summarise the examples that we have given and the view that we are putting forward that it is a subjective judgment. There is a difference with a cared-for person being allowed to have an advocate, as a default arrangement, unless they do not want that, as in some of the cases we have mentioned. The best interest test is at best a subjective judgment. There are many examples where somebody’s best interests have been ignored. That is why we have given many cases; those cases illustrate how incorrectly this test can be applied and how wrong it can go.

[Caroline Dinenage]

I thank the hon. Lady for that clarification. I am really grateful for all the interesting case studies and examples set out today. They show the incredible variety of cases, experiences and issues that the Bill needs to encompass, and the challenges of getting it 100% right. That is why we have to be incredibly careful with carte blanche.

We think it would only be in very rare cases that it would not be in the person’s best interest to have an IMCA or appropriate person representing them. Of course, the default is that they would. If the appropriate person is not fulfilling their duties, there should be an alternative appropriate person in place, or an IMCA should be appointed by the responsible body.

There is a presumption in a case where a person lacks capacity. They have the right to request an advocate, if they have capacity, and that best interest test is to avoid overriding their wishes and feelings in cases where they do not. Families of those who lack capacity have told us that they often feel left out of the process. Allowing them to act as appropriate persons enables them to be involved and provide support. I am sure hon. Members agree that that is a good thing.

The role of appropriate person is an important way of involving those who are close to a person, but is not necessarily a matter of either/or. An appropriate person can request support from an IMCA if they wish, and that will include access to challenge in court. We are expanding rights to IMCAs. Currently they are available only to people in hospitals and care homes. The liberty protection safeguard would expand that to those in the community and supported living.

We have set out the fundamental requirements of who can act as an appropriate person and the code of practice will give further detail. I know there were concerns that an IMCA would make a one-off visit and, once everything was settled, they would never be seen again, but it is clear that an IMCA must keep up ongoing contact outside of review times to ensure that the person’s rights continue to be protected and respected.

[Barbara Keeley]

The Minister said that that is clear. How is it clear? It is not clear anywhere in the Bill that there have to be constant visits. Where is that provision in the Bill?

[Caroline Dinenage]

It is clear in our minds, and it will be clear in the code of practice that hon. Members can approve.

[Alex Cunningham]

Will the Minister indicate what the code of practice will say in that respect?

[Caroline Dinenage]

I cannot give the exact wording because, as I have said, we are engaging with stakeholders and we wish to get the provision exactly right. If I were to provide the wording it would be just the opinion of a politician, and we will all agree that we need the voices of experts, and that the views of those with lived experience of having to support people should be taken into consideration.

[Alex Cunningham]

Will the Minister give way?

[Caroline Dinenage]

I will in a moment, but I also wish to consider those parts of the amendment with which I fundamentally disagree, as that is important. The amendment would require all 16 and 17-year-olds to have an IMCA as well as an appropriate person. I feel strongly that automatically appointing an IMCA for a 16 or 17-year-old would risk freezing out parents from providing representation and support, and parents are often best placed to take such a role.

The hon. Member for Worsley and Eccles South often talks about the desperately distressing case of Bethany and countless others, where parents’ wishes and concerns are not listened to or heeded. We have been clear about giving families a strong role in this model, and we do not want to risk that. As with an appropriate person, a parent or family can request the support of an IMCA, or for their role to be performed by an IMCA.

[Barbara Keeley]

I am surprised that the Minster seems to be referring to an advocate as someone who will get in the way of the parents. When I have met parents—I have met Bethany’s father—a great deal of advocacy is going on. Stakeholders in the Bill help with the provision of advocates—indeed, they themselves provide advocacy and legal support. I know for a fact that Bethany’s father would not have got very far because, as the Minister knows, an injunction against him by his local council tried to prevent him from even speaking about his daughter’s case. People need professional support—parents need it, as do other carers—and I hope the Minister will not categorise the support of an advocate as somehow “getting in the way”. The professionals who make decisions have to be challenged, not advocates who are there to support people and their parents.

[Caroline Dinenage]

The hon. Lady slightly misrepresents what I am trying to say. Of course we have seen numerous examples of how important advocacy can be—it can literally make the difference between people living a happy life that suits their needs, or being kept in a place where they feel unhappy and that does not fulfil those needs. I agree that people should be able to access advocacy, that advocates should be able to work alongside parents, and that if parents feel that they cannot take on such a role, advocates should do that work instead of parents. I also feel, however, that if parents feel that they want to do this on their own and not take on additional advice they should not be forced to, and that is probably the fundamental difference between the Government and Opposition positions. People should be allowed to make decisions for themselves if they wish, and they should not continually be forced to take advice if they do not want to.

We want to make this model person-centric—that is key—and base it on the needs of individuals. By mandating the conditions for IMCA appointments in primary legislation we would once again be prescribing a one-size-fits-all approach that does not consider someone’s individual circumstances, or the wishes and feelings of those involved and their family and loved ones. I hope hon. Members agree and will withdraw the amendment.

[Barbara Keeley]

The Minister seemed to imply—I think she used similar words—that appointing an IMCA will be the default, but that is not the case in the Bill. The Bill states that an IMCA should be appointed if the responsible body is satisfied that being represented and supported by an IMCA is in the cared-for person’s best interests. There is a best interest test there, which will potentially get in the way. With the wrong sort of process going through in independent hospitals, it will be subject to that best interest test. That is how people can end up ignored, festering in situations where they do not want to be.

[Caroline Dinenage]

I am struggling with this, because the hon. Lady is giving the impression that best interest should not be taken into consideration. “Best interest” is basically code for the wishes and feelings of the individual. Is she honestly saying that because a person may be lacking capacity their wishes and feelings should be totally ignored, and they should be given what everyone else thinks is best for them?

[Barbara Keeley]

The Minister knows that that is not an accurate interpretation of what I am saying. We spent a fair amount of time talking about independent hospitals, which are still a massive worry and concern. There is still great concern about the potential role of care home managers, because of the conflict of interest in the case of both independent hospitals and care home managers. There are too many actors in this process who could get in the way and be the people deciding whether a best interest test is met.

Were the best interest assessors the people who are used to this and have been doing this job in local authorities, I would be more comfortable. The Government are trying to give power over the process to care home managers and independent hospitals as responsible bodies, and we disagree with that profoundly, because of the cases that I have brought to the Minister’s attention. I think she and the Government are wrong to put faith in bodies where there is a conflict of interest. That is why I feel so strongly about this.

--- Later in debate ---

[Caroline Dinenage]

I beg to move amendment 11, in schedule 1, page 24, line 3, at end insert “in a hospital”.

This is to provide that only arrangements to enable medical treatment for mental disorder in a hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded from being authorised under the new Schedule AA1.

[The Chair]

With this it will be convenient to discuss Government amendments 12 and 13.

[Caroline Dinenage]

Amendments 11 and 12 are technical and tidy up the provisions in part 7 of new schedule AA1 to the Mental Health Act 1983 that set out the interface with that Act. They provide that liberty protection safeguards cannot be used to recall to a hospital a person who is subject to the Mental Health Act and is residing outside a hospital. If someone is subject to a community power under the Mental Health Act and needs to be recalled to a hospital, that should be done through the Mental Health Act. That is already the case under the current DoLS system, and the amendments ensure that the Bill replicates that. The Bill is already clear that an order made under the liberty protection safeguards cannot conflict with an order made under the community provisions of the Mental Health Act, so if someone is required to reside at a place under a community treatment order, they cannot be required to live somewhere else under the liberty protection safeguards.

Amendment 13 ensures that that principle also applies to other legislation with a similar effect to the community powers of the Mental Health Act. That means that if someone is required to reside in a particular place under equivalent enactments that extend to England and Wales, they cannot be required to be placed somewhere else under liberty protection safeguards. The amendments effectively ensure that liberty protection safeguards are not used inappropriately to complete functions that should be completed using the Mental Health Act, and clarify what we all know: that a person cannot be required to be in two places at once. I hope the Committee supports the amendments.

[Barbara Keeley]

I understand that the amendments are designed to address the interface between the Mental Capacity Act and the Mental Health Act, and to keep that interface exactly the same as it is now. I think this is the point to say that this is not the course we wanted the Bill to take. Amendment 52, tabled in my name and to be discussed later, would delay the implementation of the Bill until the Government have given proper thought to how that interface ought to work. We will not oppose amendments 11 to 13, because I can see that they are intended as technical, drafting amendments and we will treat them as such, but I think this is a missed opportunity.

There is a considerable grey area between the Mental Capacity Act and the Mental Health Act, and in his recent review, Sir Simon Wessely made some valuable recommendations on how that divide could be clarified. At this stage, the Government have not tabled amendments to enact those recommendations, but through these amendments they will instead maintain a deficient set of arrangements. I fall back on what I have said before: I call on the Government to pause the Bill until they have given proper consideration to the interface between the two Acts and can produce a Bill that will not require near-immediate amendment and generate a lot of court cases, as we think this Bill will do.

Amendment 11 agreed to.

Amendments made: 12, in schedule 1, page 24, line 10, at end insert “in a hospital.”

This is to provide that only arrangements to enable medical treatment for mental disorder in a hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded from being authorised under the new Schedule AA1.

Amendment 13, in schedule 1, page 27, line 16, at end insert—

“(g) anything which has the same effect as something within any of paragraphs (a) to (f), under another England and Wales enactment.”—(Caroline Dinenage.)

If arrangements conflict with requirements, conditions or directions imposed or given under certain provisions of the Mental Health Act 1983 those arrangements cannot be authorised under the new Schedule AA1 of the Mental Capacity Act 2005. This amendment provides that arrangements which conflict with requirements, conditions or directions arising from an England and Wales enactment having the same effect as the provisions of the Mental Health Act listed in paragraph 54 also cannot be authorised under the new Schedule AA1.

Schedule 1, as amended, agreed to.

Clause 2

Deprivation of liberty: authorisation of steps necessary for life-sustaining treatment or vital act

--- Later in debate ---

[Alex Cunningham]

I share my hon. Friend’s paranoia. I do not understand why we would put any barriers at all in the way of people’s having a proper assessment within a reasonable time. Detaining someone for 14 days is effectively locking them up for 14 days. It means depriving them of their liberty and there may be no real necessity. An assessment, as quickly as possible, is essential.

Of course, if we allow those authorisations to go on for longer than 14 days or any other reasonable timeframe, we are putting people at risk of abuse, as the Law Society has said. I say to the Minister that we must put vulnerable people first. We must always put the individual first. We must have the safeguards in place, because to do anything else is to risk their liberty, and that is a risk I am not prepared to take. I hope she accepts the amendment.

[Caroline Dinenage]

Clause 2 allows caregivers, in limited situations, to deprive someone of their liberty for a short period of time prior to an authorisation being in place or in an emergency. That can be done only to provide the person with life-sustaining treatment or to prevent a serious deterioration in their condition. The clause enables a care home to place restrictions on the person for their own protection ahead of an authorisation being approved. That interim legal cover will be decision-specific and it will be targeted to life-sustaining treatment and care or to a vital act. Once those acts are completed, the conditions no longer apply and legal cover for depriving someone of their liberty ends.

In that way, the clause replicates clause 4B of the Mental Health Act 2005, already in DoLS. The emergency authorisation system applies in exactly the same way when a court application being made relates to a deprivation of liberty. There is no evidence at this time that it would lead to any lengthy deprivation of liberty, and the provision of the Bill builds on an existing and well-understood provision. The previous system also included an urgent authorisation. That has gone because it was used too often and its time limit was ineffectual.

Under the Bill, the legal cover is provided simply for as long as the life-sustaining care is needed and no longer. It is therefore a limited power and a better safeguard. An emergency is defined as a situation where there is an urgent need to act and it is not “reasonably practicable” to make an application under the liberty protection safeguards to the Court of Protection or under part 2 of the Mental Health Act. It was carefully considered by the Law Commission, which looked at the inclusion of a time limit and decided against it. We agree with its conclusion that a time limit could encourage care providers to aim for the time allowed rather than to adhere to best practice for that case and that person, which is certainly what we have seen in some urgent cases.

Given the seriousness of depriving someone of their liberty, it should be limited to the shortest possible timescale and should reflect the huge range of causes that it can be required to cover. The amendment would create a blunt, one-size-fits-all approach, rather than allowing us to reflect the different approaches called for.

[Steve McCabe]

The Minister cites the Law Commission, but is it not the case that the Law Society recommended this very type of safeguard?

[Caroline Dinenage]

I do not know about the Law Society. The Law Commission was tasked with reviewing the measure—it took three years to do so. The commission took evidence from across the sector and we have used its recommendations as the basis for this provision.

[Barbara Keeley]

It is interesting that the Minister is being so selective about which of the Law Commission’s recommendations she is accepting. I challenged her earlier about a recommendation that she had accepted at the time it was made and which has not been taken further in the Bill. This is a five-clause Bill, which Opposition Members have had to battle our way through. It is not the fifteen-clause draft Bill that the Law Commission brought forward, which had been consulted on. It is rather rich of the Minister at this point, when it suits her, to be quoting the Law Commission’s recommendations and adopting them when she has not accepted them on many other occasions, including the one on which I moved an amendment this morning.

[Caroline Dinenage]

The reason for that is quite simple. The Law Commission’s draft Bill had a whole lot more scope and took into it things that we have not been able to look at as part of this particular revision of DoLS, on which we want to focus. We are painfully aware of the fact that 125,000 people are still in a backlog, waiting for DoLS. They do not have the protections that they need; the families do not have the reassurance; and the people caring for them do not have the protection of the law. That is why, necessarily, this had to be a very narrow Bill. Where possible, though, we have taken the words of the Law Commission to its very heart.

[Barbara Keeley]

I am astonished that the Minister thought it was okay not very long ago this morning to not accept a Law Commission recommendation and then, in her very next speech, put forward such a recommendation as the main reason for turning down an amendment. There is an astonishing lack of logic.

Opposition Members believe that it cannot be right that emergency authorisations have no time limit. There is a concern that it could become easy to drop into using the provision given that there is no time limit on it. We can see how, given how systems are designed, people can get into going to the easiest place. If it is the easiest place to deprive someone of their liberty, that situation can become dangerous.

By failing to include a time limit, the Bill fails to incentivise local authorities and the courts to hear emergency authorisation cases promptly. There is no time pressure on them—they can take as long as they like. Applications can already take too long to process and, without a hard end date, they could drag on for weeks or months. The emergency authorisations contain far fewer safeguards than full authorisations, and as such Opposition Members believe that they should be used only sparingly and for brief periods.

Question put, That the amendment be made.

--- Later in debate ---

The amendment simply seeks to ensure that emergency authorisations do not create a second-class deprivation of liberty. The fact that it is an emergency should not mean that we disregard the rights of the cared-for person, as has happened in the past with fatal consequences for that young man, Oliver McGowan. I am sure that the Minister would agree that that is the case. As such, I hope she will accept our amendment.

[Caroline Dinenage]

The ability to deprive someone of their liberty for a short period of time prior to an authorisation being in place or in an emergency is an important part of this model, as we have discussed. That can be done only to provide the person with life-sustaining treatment or to prevent a serious deterioration in their condition.

I spoke on amendment 16 about how this provision is limited to emergency and life-sustaining treatment or a vital act, and to the time limit that is legally enforced. We agree that the provision of information to the cared-for person and those who care for them is extremely important to help them understand the process and exercise their rights. I have committed in respect of other clauses to look again at information and how quickly and early it is disseminated and distributed. I agree in principle with the information part of the amendment.

My only reservation is that, given the nature of the situation, medical professionals have to work urgently in a short period of time, so the amendment might not be practical in practice. However, I agree 100% with the hon. Member for Worsley and Eccles South that information needs to be given out and that people need to understand what is happening to them and their loved ones, so I will commit to look again at this matter.

We agree, and I confirm that, when people are deprived of their liberty, records will need to be kept and those will need to be available after the event. We will outline the details in the statutory code of practice, including how that information should be shared with others.

The amendment outlines circumstances when objections to deprivation of liberty for the provision of life-saving or sustaining treatment should be referred immediately to the Court of Protection. Under the Bill, all people in those cases will have the ability to challenge emergency authorisations in the Court of Protection via section 16 of the Mental Capacity Act, and it is unnecessary for that to be made explicit again in the Bill. The applications will also operate alongside a full authorisation made under new schedule AA1 where appropriate and, of course, there will be full recourse to the court to challenge those authorisations too. For that reason, the Government cannot support the amendment.

[Barbara Keeley]

I am disappointed that the Minister will not accept the amendment because I have given her a very powerful example of why she should. I had not understood, until I engaged with Paula McGowan recently, how defective the processes were. I know that the Minister has been engaged in that case, so I ask her to think about how it adds to the burden of grief and bereavement for the parents that the processes that should have protected a young person such as Oliver were not engaged properly.

The point about information is important; the McGowans were not informed of their rights or listened to. There was no best interest meeting for Oliver. Had that happened, his parents could have pointed out the danger of the anti-psychotic medication. The Minister has just said that medical and care professionals are busy. That is the problem, is it not? That is how these cases happen—in the busyness of urgent care. The warnings about the medication were just ignored. That is why we very much need information to be given.

Mental Capacity (Amendment) Bill [ Lords ] (Sixth sitting)

Caroline Dinenage Excerpts

Tuesday 22nd January 2019 Public Bill Committees

Question proposed, That the clause stand part of the Bill.

[The Minister for Care (Caroline Dinenage)]

It is a pleasure to serve under your chairmanship once again, Mr Pritchard. Clause 2 relates to the authorisation of steps necessary for life-sustaining treatment or vital acts. This clause is incredibly important. It allows care givers, in limited situations, to deprive someone of their liberty for a short period of time prior to an authorisation being made or in an emergency. This can be done only to provide a person with life-sustaining treatment or to prevent serious deterioration in their condition.

The clause replaces the urgent authorisations that exist under the current deprivation of liberty safeguards system. Urgent authorisations last for up to 14 days in a situation where the need to deprive someone of liberty is urgent. However, providers are left without legal cover when the authorisation runs out and, due to the backlog, the council has not completed the necessary assessments.

We of course want to ensure that there is adequate oversight and that the measure will not be misused to push through unjust deprivations of liberty. Records will need to be kept and provided after the event. The regulators—which, in England, we expect to be the Care Quality Commission and, in Wales, to be Healthcare Inspectorate Wales and Care Inspectorate Wales—can use this to monitor whether adequate care is being given. With that in mind, I recommend that clause 2 stand part of the Bill.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Powers of the court to determine questions

[Barbara Keeley]

I beg to move amendment 18, in clause 3, page 3, line 14, leave out

“whether Schedule AA1 applies to the arrangements”

and insert

“any issue in relation to the application of Schedule AA1”.

This amendment seeks to clarify that all relevant issues pertaining to Schedule AA1 can be addressed by the Court of Protection, for example whether an IMCA should be appointed or an AMCP involved.

It is a pleasure to serve under your chairmanship in this part of the Committee, Mr Pritchard. Amendment 18 may appear to be minor, but it could have significant consequences for the proposed system of liberty protection safeguards. The Bill removes the section of the Mental Capacity Act 2005 that deals with court appeals for deprivation of liberty, and clause 3 proposes a new section in its place.

The Government have made few substantive changes to the power of the Court of Protection. We believe that this is a missed opportunity. The Law Commission said in its report:

“significant reforms should be made to the Court of Protection to ensure that it works for the people who apply to it.”

The fact that the Government have refused to consider this as part of the Bill is another sign, I am sorry to say, that this Bill is being rushed through. Rather than considering this issue in the round, they are simply seeking to reproduce the current deficient system. The people who are subject to the Mental Capacity Act deserve better, so when the Minister replies, can she reassure us that the Law Commission’s comments are being taken on board and that a full review of the Court of Protection will be forthcoming?

At the moment, the Bill gives the Court of Protection a limited set of powers. It can determine whether the liberty protection safeguards apply to the case; it can determine the length of authorisation; it can rule on the arrangements the authorisation relates to; and it can determine whether the authorisation conditions are met. So that hon. Members are clear on that final point, let me remind them what the authorisation conditions are. Paragraph 12 of schedule 1 reads:

“The authorisation conditions are that—

(a) the cared-for person lacks the capacity to consent to the arrangements,

(b) the cared-for person has a mental disorder, and

(c) the arrangements are necessary to prevent harm to the cared-for person and proportionate in relation to the likelihood and seriousness”

of that harm. When the court is asked to rule on whether a liberty protection safeguard should have been granted, those are the only things that it can determine.

The court cannot determine whether a cared-for person should have been given access to an independent mental capacity advocate—we had a very full debate this morning about the role of advocates. It cannot determine whether the case should have been reviewed by an approved mental capacity professional. It cannot determine whether any of the assessors had a conflict of interest that should have precluded them from carrying out an assessment. It cannot determine whether the consultation has been properly carried out. It cannot determine whether the person was given the information that they should have been given. In short, it cannot determine whether any of the safeguards that we have discussed in this Committee were properly applied.

In some cases, the process will be every bit as important as the outcome, and I remind hon. Members of a case I mentioned previously. Ethel, an 85-year-old woman living in a care home, wanted to leave the care home and return to her own home. She was subject to a deprivation of liberty safeguard. With the help of an advocate, she appealed her case to the Court of Protection. Although the court ultimately ruled that Ethel should remain in the care home, the advocate found during the appeal process that the conditions placed on her authorisation had not been read and were not being applied until the Court of Protection made sure those conditions were attached to the authorisation. If the process is carried out improperly, it may be that less restrictive options for the person’s care are not considered. It may be that a strong objection from a close family member, which could have altered the decisions made, is not expressed.

These concerns are widely shared. The Law Society has supported this amendment, as has a wide range of stakeholders, including Mind and Learning Disability England. It is my hope that the Government did not intend to exclude all the vital areas that I have just discussed, but I simply cannot understand why we would not want to give the Court of Protection the widest possible remit in this case. The court is intended to be the final safeguard against deprivation of liberty being used incorrectly or inappropriately, and if we restrict the issues that it can rule on, we blunt its effectiveness. The Opposition do not want to hear, a year or two down the line, of cases in which the responsible body has clearly not followed the correct process but the courts find themselves unable to do anything about it. Our amendment is designed to avoid such a situation ever arising, and I hope the Government will accept it.

[Caroline Dinenage]

I understand that hon. Members want the Court of Protection to consider matters such as whether an IMCA is appointed or an AMCP is involved. That would mean that the court was considering procedural matters regarding the liberty protection safeguards process. The hon. Member for Worsley and Eccles South has asked me about the review of the role of the Court of Protection; she will be aware that the Ministry of Justice is currently reviewing courts in the round, and that review will of course include the regionalisation of the Court of Protection. However, the Bill is clear that the pre-authorisation review must be completed by an approved mental capacity professional in cases in which an objection has been raised. That provides a clear route for arrangements to be considered if that is something the person wishes to happen.

Government amendment 9 is clear that, in independent hospital cases, an approved mental capacity professional must complete that review—that is a duty—and if an independent hospital as a responsible body fails to do that, it would be in clear breach of its responsibilities and could be subject to legal challenge.

With regard to IMCA appointments, the Bill introduces an effective presumption that an IMCA will be appointed by the responsible body if there is not an appropriate person in place, which ensures access to representation. With that in mind, I hope that I have provided reassurances that the system will be robust regarding IMCA appointments and access to AMCPs. I therefore hope that hon. Members are willing to withdraw the amendment.

[Barbara Keeley]

As I said, the amendment seeks to clarify the role of the Court of Protection. It broadens the narrow set of responsibilities in the Bill, giving the court the explicit right to rule on any matter relating to the new liberty protection safeguards. It ensures that the process, as well as the outcome, of authorisations is covered by the court.

Question put, That the amendment be made.

--- Later in debate ---

Question proposed, That the clause stand part of the Bill.

[Caroline Dinenage]

Clause 3 sets out that the Court of Protection can hear challenges in relation to liberty protection safeguard authorisations. The court already considers challenges under the current system, and the Law Commission recommended that it continue to do so under liberty protection safeguards, pending the outcome of a Government review.

In designing the new system, we put safeguards in place to ensure that arrangements would be considered fairly and independently. We know that most people want to avoid courts and tribunals if possible, so it is important that they can access protections without needing to go to the Court of Protection. However, it is also important to us that people who want to challenge their authorisations in court are able to do so, which is why the right to non-means-tested legal aid will be maintained under the liberty protection safeguards system. Cost will not be a barrier to a person’s ability to access the court.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Clause 4

Consequential provision etc

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

Government amendments 14 and 15.

That Schedule 2 be the Second schedule to the Bill.

[Caroline Dinenage]

With your leave, Mr Pritchard, I will speak about amendments 14 and 15 before moving on to the clause stand part debate.

The amendments amend section 36 of the Mental Capacity Act 2005 to ensure that regulations about the functions of independent mental capacity advocates can make provision for advocates appointed under the LPS to support the new role of appropriate person. Amendment 14 also amends sections 38 and 39 of the 2005 Act.

Broadly, the provisions require an IMCA to be appointed when an NHS body or local authority proposes to accommodate a person in a hospital, care home or long-stay residential accommodation and there is no one else to consult about what would be in that person’s best interest. The amendments continue the position under DoLS, so that the duties to appoint an IMCA in sections 38 and 39 will not apply if one has already been appointed under the LPS in relation to the same accommodation. That is to avoid a person having two IMCAs carrying out similar roles. Amendments 14 and 15 also make consequential amendments that reflect the change from the deprivation of liberty safeguards to the liberty protection safeguards.

Clause 4 gives the Secretary of State and Welsh Ministers a regulation-making power to make provision that is consequential to the Bill, including changes to existing legislation. The power will be used to make any necessary consequential changes as a result of the LPS coming into force—for example, to update references to schedule A1, which contains the existing deprivation of liberty safeguards, to references to schedule AA1, where the liberty protection safeguards will be set out.

Finally, clause 4 will introduce schedule 2, which will make minor and consequential amendments that update other legislation to reflect the change from deprivation of liberty safeguards to liberty protection safeguards. I commend the clause and the schedule to the Committee.

--- Later in debate ---

On amendment 54, much of the detail debated during the Committee will be addressed in the code of practice. We have raised our concerns over and over again. Does the Minister agree that legislators, healthcare staff, assessors and advocates—the list goes on—should be fully informed and aware of the code of practice prior to the revisions in the Bill being implemented to give them a fighting chance to prepare? I am concerned that any code of practice will not be subject to the scrutiny that both Houses provide for other pieces of legislation, particularly as this Government do not have a good track record of welcoming scrutiny from other Members or from outsiders. Perhaps the absence of an oral evidence session demonstrates that. There is concern that the code of practice will contain significant flaws and gaps. This morning, the Minister was not even prepared to talk about it in general terms, and said that we would have to wait for the detail and the views of experts and further consultation. I accept that, but we could still have some sort of comment on the general terms of the code.

[Caroline Dinenage]

The hon. Gentleman might be slightly misquoting me. I have spoken in general terms about the code of practice, and have indeed circulated a draft of what will be included in it among hon. Members, as well as what we have committed to including in it as part of the discussions in the House of Lords and during this Committee.

[Alex Cunningham]

It is never my intention to misrepresent anyone. All I am concerned about is that we should have clear detail as soon as possible in order for us to understand what will happen. It is not just for us to understand—it is also for people outside in the world who have to deal with this on a day-to-day basis. The Minister just answered the question I would have posed at the end, so I will not bother asking it.

[Caroline Dinenage]

I thank hon. Members for initiating this discussion. Amendment 52 would delay the introduction of liberty protection safeguards until the Department has fully responded to the report of the independent review into the Mental Health Act.

The hon. Member for Worsley and Eccles South said that I was stubborn. I am sure that a number of people, not least my husband, would agree with that sentiment. I think she would agree that I have committed to looking again. A number of issues have been raised during the Bill’s passage through Committee, not least ensuring that people get information as early as possible—I agree with her on that—and how we can maximise protection for those being cared for in an independent hospital. I am sure she would agree that I would be being equally stubborn if I were to take the amendments on board without giving them careful and due consideration, and without checking the legal ramifications and making sure that we are offering all the protections that we need to. I am sure that the hon. Lady, other Opposition Members and stakeholders will forgive me for making sure that we consider everything thoroughly and properly.

On amendment 52, I welcome Sir Simon Wessely’s landmark report and I am sure that it will very much set the direction for improving the way the Mental Health Act works for thousands of vulnerable people. The Government have already committed to bringing forth mental health legislation when parliamentary time allows, taking that very important report into account. We have already accepted two important recommendations, which will give service users more choice and control, but it will take time for us to consider the rest of the recommendations, of which there are 152. We will respond to the remaining recommendations in due course, but Sir Simon said that the Government would need to consider the “practical implications” of the interface recommendations, and that it would be “problematic” to introduce those recommendations in this Bill.

Hon. Members will be aware that the reforms in the Bill are desperately needed—I cannot repeat often enough that we cannot wait any longer to improve the situation of the backlog of more than 125,000 people who have been deprived of their liberty without authorisation. As much as there are concerns among stakeholders—I have met a number of stakeholders and we will continue to consult them, to take their views on board and to make sure that we work with them at every step of the way when it comes to the code of practice—they also share our concern that 125,000 people have been deprived of their liberty without authorisation, that their loved ones have been deprived of peace of mind and that their care providers have been deprived of legal protection.

[Barbara Keeley]

I have two points to make to the Minister. I remind hon. Members that we have heard examples of authorities—they include mine, that of my hon. Friend the Member for Stockton North and some London boroughs—where there is no backlog and where the local authorities have dedicated enough resource to the situation. Despite the number of DoLS applications increasing since the Cheshire West case, they are dealing with it. Let us not talk in Committee as if it is the same everywhere; it is not. Some local authorities are coping perfectly well with the backlog, and there is no pressure in those local authorities to change to a worse system that will cause a problem.

Secondly, I asked the Minister about the cost of dealing with the backlog, and I hope she will touch on that. She has raised the backlog again and again as a reason for rushing the Bill through. It is not a reason for rushing through a new piece of legislation that is this important. I hope that she will come on to say exactly how the backlog is to be dealt with and what resources will be available to deal with it, because that is an important issue. If the backlog is the reason for doing things this way, how is the backlog going to be dealt with?

[Caroline Dinenage]

Yes, of course I will go on to talk about the transition between the two systems and the backlog. I also say gently to the hon. Lady that she and others may be in the fortunate position where their local authorities have got to the stage where they do not have a backlog—in many cases, that is due to a political decision to prioritise it—but I think all those local authorities would recognise that there is duplication and cost in the system that they could do without. They have had to take very tough decisions to prioritise this issue over other things that they could be spending their money on, when money is tight. I do not think the attitude of, “I’m alright, Jack, there’s no backlog in my constituency,” is a very good one, when 125,000 other people are waiting.

[Alex Cunningham]

I do not have a particular problem with what the Minister is saying—local authorities do want to see reduced costs and to ensure that responsibilities are carried out—but she used the expression I used last week. It was a “political decision” by local authorities such as Stockton to take money from other services and invest them in this matter. Surely local authorities should not have to face that choice. The Government should properly fund our whole social care service, never mind the issues around the Bill.

[Caroline Dinenage]

I agree with the hon. Gentleman—the whole of the health and social care system needs funding, and that is where the additional money for the NHS comes in. The Government have given councils access to more than £10 billion over this three-year period. The fact that they are still struggling shows the scale of the problem. We do not want to waste money on duplication when that money could be valuably spent elsewhere. The desire to streamline the system to avoid unnecessary duplication, which drives costs but does not offer any further protection, is what this is all about.

[Alex Cunningham]

It is has been estimated that the Minister will save about £200 million as a direct result of the changes in the Bill. What will that money be used for?

[Caroline Dinenage]

We have to be careful not to conflate our language. There is no intention to save money on the process. We know that if DoLS were implemented correctly all across the country, as they are in the hon. Gentleman’s constituency, the cost would be £2 billion. However, we are not looking to save money here; we are looking to ensure that it is spent more wisely—not on duplication, but in a way that offers people the protections that they need. This is not a cost-saving exercise; it is about ensuring that money is spent wisely and effectively to offer that protection.

Amendment 53 would delay the introduction of liberty protection safeguards until the Department has published an updated impact assessment and implementation strategy. I thank hon. Members for reminding us of those items, which are important for the successful implementation of the Bill. We are in the process of preparing the updated impact assessment to reflect the amendments made in the Lords. We are keen to make the Bill as successful as possible and to listen to the concerns of those in the other place. We will shortly publish the impact of the amendments made there, and the Government have also made changes to the Bill in this House that will require us to update the impact assessment further.

The noble lord, Lord O’Shaughnessy—I am not sure whether I am allowed to name him—has committed to publishing a training strategy before the Act comes into force. With regard to training, we will work closely with the sector, local authorities and NHS organisations on implementation as part of our strategy, and we welcome Members’ contributions. I completely agree with hon. Members that adequate training for health and social care staff is vital. Ahead of the implementation, we will consider the most appropriate way to ensure that everybody is appropriately equipped.

We have considered training costs as part of the updated impact assessment that we will publish shortly. We know that there will be an impact on transitional costs. We will support the sector and we will deliver training through a workforce development model delivered by and in partnership with Skills for Care, as we do for other things.

With regard to the implementation, ahead of day one we will work with local, national and Welsh DoLS networks in partnership with the Local Government Association and the Association of Directors of Adult Social Services to clear the existing backlog of applications. Those who remain in the backlog on day one will have their applications handled under LPS—a streamlined system that minimises duplication. Existing assessments can be used, if appropriate. For example, there may be no need to commission a doctor to do a new mental health assessment. That efficiency will allow local authorities and other responsible bodies to tackle the backlog effectively.

Cared-for persons who have an existing DoLS authorisation on day one will remain under that authorisation until it expires, after which a new application will need to be made under the new system. Those in settings that newly fall under LPS, such as those in the community, who may have an authorisation from the Court of Protection, will remain under that authorisation until it ends. A new application will then need to be made under LPS. We will work closely with responsible bodies and care providers to ensure that the transition period is as smooth as possible, and that vulnerable people are protected.

Amendment 54 would require the code of practice to be approved and published before the introduction of liberty protection safeguards. That statutory guidance is essential. It will outline the details of how the system should operate and will be a valuable tool for practitioners. The Government are required by section 43 of the Mental Capacity Act to consult when preparing the code of practice.

We are already in the first stages of developing the code. We will work with the sector to co-produce it. I am happy to commit to publishing the code of practice before the scheme comes into force. I also commit to laying the code in draft before Parliament, giving both Houses the opportunity to resolve not to approve it, as section 43 of the Mental Capacity Act also requires.

I hope that I have been able to provide reassurance and that the hon. Member is able to withdraw the amendment.

--- Later in debate ---

Division 27

Ayes: 7

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Labour: 7

Noes: 8

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Conservative: 8

[Caroline Dinenage]

I beg to move amendment 1, in clause 5, page 4, line 25, leave out subsection (9).

This amendment removes the privilege amendment inserted by the Lords.

[The Chair]

With this it will be convenient to discuss clause 5 stand part.

[Caroline Dinenage]

Parliamentary procedure requires a privilege amendment to be included in a Bill that starts in the House of Lords and has financial implications. It is then removed in the House of Commons as a standard procedure.

Clause 5 sets out the territorial extent of the Bill, which is England and Wales. This clause sets out that clause 4, except subsection 6, and clause 5 come into effect immediately on the Bill being passed. The rest of the Bill comes into force on a day nominated by the Secretary of State. Different days may be appointed for different purposes or different areas of the Bill. Clause 5 also gives the Secretary of State a power to make transitional arrangements by regulations. I recommend the clause to the Committee.

[Barbara Keeley]

Government amendment 1 is, of course, entirely uncontroversial. We cannot implement a new system until the Government are authorised to pay for it. I have a question for the Minister, following our conversation about the financial impact of the Bill: in the light of the changes that have been made to the Bill in the past few months, will she give us an estimate of how much expenditure we are being asked to agree?

We will not oppose the amendment, but I feel that members of the Committee should have an idea of what they are agreeing. We definitely need to have the updated impact assessment as soon as possible and certainly before Report stage. It is not acceptable to have an impact assessment that is six months out of date. We want to know how much the new system will cost before the Bill concludes its passage through the House. Only if that happens will we be confident of the amount of expenditure agreed to.

On clause 5 more generally, I am disappointed that the Minister has opposed all our amendments. In particular, I remain concerned about the code of practice, when it is finally produced. I counsel her against trying to rush it through the House, with little opportunity for Members to provide feedback. We have tried valiantly on this Bill Committee to bring up issues of great importance in the Bill, and they need to be listened to.

The Government have said that the new system will not come into force until the code of practice has been published, so there is no real reason not to agree to have the code of practice approved by each House before the Bill is enacted.

I hope the Minister will reflect carefully on what has been said in our debate on the Bill. As is evidenced by the letter from all those organisations in The Times today, the Bill contains significant flaws. It would not be unreasonable for some of our concerns to be addressed before the Government even try to bring in the new system. With that, we will not oppose clause 5 stand part, but we hope the Minister will use the powers in the clause to ensure that the Government get the system right before they roll it out.

Amendment 1 agreed to.

Clause 5, as amended, ordered to stand part of the Bill.

New Clause 1

Meaning of deprivation of liberty

“(1) After section 4 of the Mental Capacity Act 2005 insert—

‘4ZA Meaning of deprivation of liberty

(1) In this Act, references to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the Human Rights Convention and, accordingly, a person is not deprived of liberty in any of the circumstances described in subsections (2) to (4).

(2) A person is not deprived of liberty in a particular place if the person is free to leave that place permanently.

(3) A person is not deprived of liberty in a particular place if—

(a) the person is not subject to continuous supervision, and

(b) the person is free to leave the place temporarily (even if subject to supervision while outside that place).

(4) A person is not deprived of liberty if—

(a) the arrangements alleged to give rise to the deprivation of liberty are put in place in order to give medical treatment for a physical illness or injury, and

(b) the same (or materially the same) arrangements would be put in place for any person receiving that treatment.

(5) A person is free to leave a particular place for the purposes of subsections (2) and (3) even if the person is unable to leave that place provided that if the person expressed a wish to leave the person would be enabled to do so.’

(2) In section 64(5) of that Act (interpretation) for the words from ‘same’ to the end substitute ‘meaning given by section 4ZA.’”—(Caroline Dinenage.)

This New Clause provides the meaning of “deprivation of liberty” for the purposes of the Mental Capacity Act 2005.

Brought up, and read the First time.

[Caroline Dinenage]

I beg to move, That the clause be read a Second time.

The new clause provides statutory clarification in relation to the meaning of deprivation of liberty for the purposes of the Mental Capacity Act. The Mental Capacity Act defines a deprivation of liberty by reference to article 5 of the European convention on human rights. The proposed new clause adopts the same fundamental approach, by anchoring the meaning of deprivation of liberty to article 5.

As Committee members will be aware, the 2014 Supreme Court Cheshire West case changed what was commonly thought of as a deprivation of liberty, resulting in an eighteenfold increase in people entering the DoLS system, and applications are still growing year on year. That resulted in a significant rise in resource use for local authorities and the care sector, resulting in a backlog of over 125,000 people waiting for their applications to be authorised, as I have mentioned on numerous occasions during our debates.

The Law Commission was against a definition of a deprivation of liberty, but noble peers, stakeholders and the Joint Committee on Human Rights have all called for a definition to be included in the Bill, to bring proportionality to this situation and ensure that liberty protection safeguards are appropriately applied. The new clause does that by bringing clarity to prescribing circumstances, or exceptions, that are not a deprivation of liberty. If a person meets the conditions in one of its subsections, they are not being deprived of their liberty and so do not fall under the liberty protection safeguards. These subsections are drawn from case law.

The Department has decided not to include a full definition of a deprivation of liberty because primary legislation needs to be extremely clear and precise, and case law is constantly evolving. That makes it difficult to draft a definition that will remain sufficiently precise, given that the definition may change as case law develops. For that reason, we must be extremely wary of the unintended consequences of including a full definition in relation to such a complex matter. By taking this exclusionary approach, we will enable the definition to remain valid as new cases come forward, as there should be sufficient flexibility within the clause for case law to develop in parallel.

An important point to make Committee members aware of is that the clause would be accompanied by detailed statutory guidance and case studies within the code of practice. Here we would set out scenarios as workable examples of the subsections, to assist practitioners as they determine whether someone is being deprived of their liberty. I would like to assure colleagues that these supporting materials will give the detail and depth required for those in the sector, and local authorities, to identify a deprivation of liberty. We are working with stakeholders already to gather these scenarios in a wide range of settings, including care homes, private domestic settings and supported living. The clause would apply to 16 and 17-year-olds, as the rest of the Bill does, but we recognise that the circumstances of this vulnerable group of people can be different, and that will also be reflected in the guidance.

The inclusion of a clause in relation to consent has been carefully considered, but one has not been included. That is for several reasons. First, to give valid consent, an individual would need capacity, as set out by the Mental Capacity Act. If they have capacity and are consenting to the arrangements, then that automatically cannot be a deprivation of liberty. Secondly, there is not enough in case law to support the validity of de facto consent—that is, consent given by someone without capacity—and I am concerned that it would not be compatible with the Human Rights Act 1998. Above all, we must protect the rights of cared-for people.

The new clause will clarify issues post Cheshire West, it will determine when the LPS should and should not apply, and it will support those planning care in considering the least restrictive options to enable greater freedom for those in their care.

--- Later in debate ---

[Caroline Dinenage]

Is the hon. Lady suggesting that there should not be a definition?

[Barbara Keeley]

No, I welcomed the fact that the Government were trying to put in a definition, but this definition is not fit for purpose. The problem is that, as with everything else in the Bill, it was rushed. At the meeting I had with stakeholders not very many weeks ago, almost everyone in the room had fears about it. Many of them had not even seen it. The process has been wrong.

I made it clear to the Minister what I think the Government should do. They should withdraw new clause 1 and not put it to a vote. They should put the definition out to consultation, and not introduce it again until those involved with the definition are happy with it. Then we can be clear. Pitting a Government decision against decisions of the Supreme Court and the European Court of Human Rights is not wise; it is a knotty problem. I am not a lawyer myself, but I have listened enough to people who are experts in this area to know that it is a problem.

Perhaps I can encapsulate the problem in one final question to the Minister. On the front of the Bill the Secretary of State certifies that he feels it is compatible with the European convention on human rights. Given some of the points that I have just raised about the definition, is the Minister confident that the Bill would still be compatible if we agreed to the new clause?

--- Later in debate ---

[Alex Norris]

I completely agree. To me it is a big, blinking red light that says that perhaps we need to pause and think again. Nothing typifies that more than new clause 1. It is helpful to have a definition in the Bill, and there is broad support for that. I also have some sympathy for its being exclusionary, rather than put in a positive manner, because we know, irrespective of what ends up in the Bill, that it will end up in court.

This is a hotly contested area of case law. It feels a bit like what it must be like to be an American legislator—we are almost waiting for what we do to be tested in court to see if it is okay. I have no doubt, with things as they are currently comprised, that we will be back. I do not know whether it will be a couple of months down the line or a couple of years, but if we carry on we will certainly be back.

The approach laid out by my hon. Friend the Member for Worsley and Eccles South is sensible and proportionate, and it might give us an opportunity to resolve the issue, by sending the new clause, which has appeared between stages, to the sector and asking, “How do you feel about this?” in order to get some engagement. That would give us more time for the lawyers to do their thing too. That seems quite sensible.

It would also give us a chance to take a breath on the whole Bill, and a little more time to see whether we can resolve some of the issues that we have discussed over the last two weeks. Many of the things we as an Opposition have put forward have had merit; perhaps our approach has not always been perfect, but to find better ways to try to address those things would be good for us all.

I will move on to my second concern. If new clause 1 becomes part of the Bill and the Bill becomes an Act, the smoke will come out of this place and send a clear signal: “We know that DoLS doesn’t work and hasn’t worked for a long time. Here is what is going to come next. Here is what we mean by ‘deprivation of liberty’ and here is what you can expect.” I maintain my anxiety that we will have only solved half of the problem, or one of two problems, because it is entirely possible for a big problem—in this case DoLS, the backlog and people’s experiences of that process—to be multifactorial.

No one has contested the fact that the DoLS system did not work and ought to be replaced, but there is a big, yawning and currently unanswered question of resources. I was concerned to hear the Minister say that they are the result of political decisions. I have been in that chair, as the local adult services lead on my council for three years, wrestling with DoLS. Is it a political decision? Yes, maybe it is, in the sense that we are basically trying to juggle whether to deal with assessing new people on their social care needs, assessing whether the needs of people currently in the social care system have gone up or down or, indeed, areas such as DoLS, all of which carry enormous risk to an individual, a local authority and a community as a whole.

In the sense that it is a political choice, it is like saying, “Your house is on fire; are you going to put out the lounge or the kitchen first?” You would just grab the bucket of water and chuck it at it, frankly. There is no political decision in that, or certainly not one of due prioritisation. Ultimately, if we are going to include this new clause in the Bill to set up the new system and legislation to set the new way, we must have absolute clarity that the finances are going to be met. Otherwise, the system will fail and we will, certainly with new clause 1, have elevated people’s expectations. At the moment people expect to be disappointed, because they know the system does not work. Now we are going to tell them that we have a new system that works, and then it will not. I suspect that is why all those eminent organisations have said that it is where it is.

On this point and on others, I feel that we on the Opposition Benches have made strong arguments about ways of improving the Bill, but it is not just us. It is not just partisan knockabout; it is not political. It is not a case where the Government say one thing so therefore the Opposition oppose. We should look at the organisations that are also saying, with flashing lights, “Please stop and have a think about this.” Otherwise, as I say, we will be back.

[Caroline Dinenage]

I think it would be helpful if I began by setting out how we got to where we are, for the sake of clarity, although I know that many hon. Members know this. The case of MIG and MEG and P widened the understanding of the scope of deprivation of liberty safeguards with the Supreme Court decision that:

“A gilded cage is still a cage”.

Even though the cared-for person was happy in their situation, it was still a deprivation of liberty and required a safeguard. The acid test set out by Baroness Hale in Cheshire West had two limbs: first, is the person subject to continuous supervision and control, and secondly, is the person free to leave? We can see that test running through this clause. We cannot directly challenge or go against Cheshire West, as it is the Supreme Court’s articulation of article 5, and our Bill must be compliant with the European convention on human rights. That is why deprivation of liberty continues to be defined by reference to article 5 of the ECHR.

We are confident that the exceptions in subsections (2) to (4) represent existing case law. The clause defines deprivation of liberty in that way, and the subsections are consistent with and drawn from existing case law—for example, as I have detailed, subsections (2) and (3) are based on the Cheshire West acid test. It is unlikely that there will be a mismatch between our clause and the High Court’s view; it may be that the clause is subject to litigation in future, but we are confident that the Government’s approach of providing for situations that would not constitute a deprivation of liberty will give sufficient flexibility for the meaning of the clause to develop alongside case law as that evolves.

Much of the discussion has emphasised how incredibly complex a legal matter this is; the clause must be drafted incredibly carefully to ensure that it is legally compliant. We have worked with other Government Departments such as the Ministry of Justice to develop the clause. We listened to stakeholders and peers during the progress of the Bill through the House of Lords to understand their requirements for a definition and drafted the new clause in a way that would achieve what they wanted legally. Since drafting it, we have shared it with stakeholders to explore its impact. We are consulting a wide variety of organisations to gather case studies, which we will use in the statutory guidance.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

I wonder whether the Minister can explain how, if there was consultation with stakeholders, my hon. Friend the Member for Worsley and Eccles South has that impressive list of organisations with such grave reservations. That suggests the consultation was a bit inadequate.

[Caroline Dinenage]

The decision to put the definition in the Bill was made in the House of Lords. We had to work carefully on the definition. That information has been shared with stakeholders only in the past couple of weeks. The definition is where we have been working most latterly.

Stakeholders have agreed to work with us and to bring forward case studies that we can put in the statutory guidance that will make it very clear how the Bill will work in every instance and for all the different types of vulnerable people we have discussed. That is what we need to provide clarity. Those case studies will demonstrate how the exceptions will apply in different settings and scenarios, provide clarity, and aid practitioners in identifying when one of the exceptions applies. We are working with stakeholders to co-produce that guidance to ensure that it is clear, unambiguous and of real help to those who use it. It would not be appropriate to include that kind of detail in primary legislation. As I have tried to articulate, the new clause needs to be precise and to fit with evolving case law.

[Barbara Keeley]

I constantly get the feeling when I listen to the Minister that she is describing a happy situation that, unfortunately, the evidence suggests does not exist. The notion that she is co-producing the definition with stakeholders is not what stakeholders say. My hon. Friend the Member for Nottingham North and I read out the list of organisations that object to the Bill and the severe comments they have made about it. If the Minister were in fact co-producing parts of the Bill and the definition with stakeholders, they would not be writing to The Times describing the Bill in that way.

[Caroline Dinenage]

We are talking about the definition. I am not saying we have co-produced it with stakeholders, but we have given a copy of it to stakeholders, asked for their feedback and asked them to supply case studies. Some have welcomed it and see it as absolutely necessary to provide the clarity we are looking for.

The Law Commission report shows that overly cautious application of DoLS is unnecessary, but we want an effective system with access to safeguards, as required by article 5 rights. The hon. Lady raised a number of case studies, including Stanev v. Bulgaria, in which Mr Stanev needed permission to leave. We will make it very clear in the code that a person is not free to leave if they require approval or permission. That is also clarified in subsection (5) of proposed new section 4ZA of the Mental Capacity Act.

We intend to set out in the statutory guidance, by reference to case studies, how that should be interpreted. For example, we understand that in care homes, cared-for people are often left unsupervised for many hours of the day yet may still be regarded as being deprived of their liberty. We do not intend to exclude those people without discretion. We will set out in the guidance the circumstances in which someone should be regarded as not being under constant supervision, such as how frequently they are checked and the monitoring that is present. We are also conscious that “continuous supervision” means different things in different settings, and I welcome the contribution of my hon. Friends towards that.

There is also a sliding scale of situations we expect to be excluded by subsection (3)(b) of proposed new section 4ZA. We will expand on that in the guidance in consultation with stakeholders. For example, the place must be one to which the person has a wish to go rather than one solely of staff’s choosing. It is worth pointing out that both limbs of subsection (3) must be met for a person to be excluded by it. For example, if a person is not continually supervised in a care home but is not free to leave temporarily, the subsection does not apply.

Although we aim to bring clarity, we recognise that every case is different. I hope I have articulated that this will be a person-centric system. We do not want a one-size-fits-all approach, which is the problem with the system that we have now. That approach is no longer fit for purpose for such a vastly different and vulnerable group of individuals. With that in mind, I ask that new clause 1 stand part.

Mental Capacity (Amendment) Bill [ Lords ] (Third sitting)

Caroline Dinenage Excerpts

Thursday 17th January 2019 Public Bill Committees

[Alex Norris]

I thank the hon. Gentleman for that intervention, because that point is really important. It is perfectly conceivable that the heart might override the head and parents might be so desperate to keep their family together—which we can all relate to—that they might make decisions that are not the best decisions.

Again, however, that would mean entry into a pre-existing legislative space, in the sense that if a parent were acting negligently, we already have a series of protections for a child in that case. So, if we have what we are talking about today in law and then we have a case of the kind that the hon. Gentleman and I are both talking about, that would tip into a negligence situation, and therefore I think the matter would still be unresolvable in the best interests of the child. So I do not think that anything that we are suggesting here in this amendment would disqualify any of that.

I think the amendment is proportionate: it would just give that extra layer of protection. We understand that the cohort that we are talking about are particularly vulnerable; we understand the impact that this change would also have on parents; and we understand that fundamentally parents will want the best for their children. However, we also understand fundamentally that if a bad decision were being made by a parent, there are other sources to make sure that a young person’s needs are being met.

Actually, when we add all that together, I think the amendment would put in significant safeguards and important protections for both young people and their parents, but without creating a situation where we might unknowingly create some risk and perhaps do some harm.

[The Minister for Care (Caroline Dinenage)]

As ever, it is a great pleasure to serve under your chairmanship, Mr Austin.

I thank Opposition Members for initiating a discussion on this really important matter. Parents, or those with parental responsibility, have a vital role in caring for their children—of course they do—especially when the child lacks mental capacity. We would fully expect that the responsible body took every opportunity to consult parents with regard to their views about arrangements, where it was appropriate to do so as part of the consultation process, and we will make that clear at every stage in the regulations.

However, as the hon. Member for Nottingham North and my hon. Friend the Member for Halesowen and Rowley Regis have said, we have to allow for the very rare occasions on which parents may not have the best interests of their children at heart. That is why we have to be careful about adding this provision to the Bill.

--- Later in debate ---

[Caroline Dinenage]

Absolutely; we completely agree that objections raised by parents about the arrangements should be considered with the utmost care and attention. That is why we have already built those safeguards into the authorisation process. The Bill states that an approved mental capacity professional must conduct the pre-authorisation reviews where it is reasonable to believe that the person objects to the arrangements, and it clarifies that an objection can be raised on a person’s behalf by someone interested in their welfare. For the vast majority of 16 and 17-year-olds, of course, that would include their parents. In those cases we would expect an approved mental capacity professional to consider the objection carefully, meet both the person and their parents, and establish how they feel.

I understand the concerns of the hon. Member for Worsley and Eccles South about how the legislation relates to the Children Act 1989. I can confirm that the advice I have been given is that nothing in the Bill conflicts with that Act, or indeed with any other existing legislation. The hon. Lady may also be aware that the role of parental consent in the deprivation of liberty is currently being considered by the Supreme Court, and of course the Government will closely consider the implications of that judgment when it is handed down. The hon. Member for Stockton North spoke about the consultation on this issue, which of course was part of the Law Commission’s recommendations on the inclusion of 16 and 17-year-olds, and all the aspects of that. They spent three years working on those recommendations and consulted widely with stakeholders, including children’s charities, third-sector organisations, social workers and education providers.

Our view on the amendment is clear. Although almost all parents have their child’s best interests at the heart of everything they do, a tiny minority do not—maybe for good reasons; maybe for reasons of heart over head, as one Member has said today—and those are the children we have to protect. Parents should be at the heart of the process and they must be consulted where appropriate, but the person whose wishes and feelings must be at the dead centre of that process is the individual whose mental capacity is deemed not to be there. I hope that I have been able to provide clarification. On that basis, I ask the hon. Member for Worsley and Eccles South to withdraw the amendment.

[Barbara Keeley]

As I said earlier, it is welcome that the Bill expands eligibility to 16 and 17-year-olds, because it prevents them from slipping through the gaps that the Bill would otherwise create. However, I persist in the view that there are issues with the way the Bill interacts with the Children Act 1989. The difference is that under section 20 of that Act, parents can object to their child’s placement and can also remove their child from that placement.

I gave an example—the case of Y v. Barking and Dagenham—in which parental objections were overlooked by the responsible body. The key point is that there are many other such cases, as I am sure the Minister knows—she probably hears about them even more often than I do. That was a recent case, but it resulted in significant harm. That young person, still a child, was kept in a care home and deprived of his liberty for two years. He was restrained 199 times. He was assaulted by somebody in the care home, but the social worker only listened to opinions from the care home. The amendment is a safeguard, and it is vital that we put it into the Bill to prevent similar cases being enabled by the Bill. I put it to the Minister that she will be enabling more such cases if she does not include this provision on parental objections.

[Caroline Dinenage]

Can I just challenge that? Under the existing Mental Capacity Act 2005 there is recourse to the Court of Protection for the parents. Their views have to be taken into consideration, but if they feel in any way, shape or form that the best interests of their child are not being followed, they have that recourse to the law, and the amendment of the Act does not change that.

[Barbara Keeley]

Indeed, and we will be talking more about the Court of Protection, which is of course an important safeguard. However, parents should not have to have recourse to the court just to express objections and get them listened to. The Court of Protection is a good safeguard, but recourse to the law involves expert advice and all kinds of things. I shall discuss that in relation to a later amendment, but for ordinary people it is a serious matter to take on.

Sometimes the Minister encounters, as I do, parents who are confident enough to challenge things, go to the media and make a stir, but I have just given a strong example where a young person was kept in appalling conditions and was hurt and damaged. Such cases affect a young person’s ability to live in a home or community situation and should be avoided. Two years of detention in an unsuitable home, assault, and being restrained 199 times will surely lead to traumatic stress. That is why I think that the amendment is important, and why we will press it to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Barbara Keeley]

Yes, I agree that my hon. Friend the Member for Birmingham, Selly Oak should not run down his amendment, because it has provoked a useful debate. The purpose of the amendment is to expand the number of people who receive an AMCP review. It goes further than the amendments that I tabled, but we support it in principle, and I hope the Minister will consider it carefully.

[Caroline Dinenage]

I thank the honourable—I seem to be test-driving someone else’s teeth today, Mr Austin. I thank the hon. Member for Birmingham, Selly Oak for raising the issue and facilitating an important discussion. I have absolutely no doubt of his dedication and good intentions in the matter. I wish to offer him some reassurance, because the Bill already requires that an approved mental capacity professional carries out the pre-authorisation review where an objection has been raised. In such cases, authorisation cannot be granted unless the pre-approved mental capacity professional is 100% satisfied that the authorisation conditions are met. Amendment 9 would strengthen this provision, as the hon. Member for Worsley and Eccles South mentioned.

Should an approved mental capacity professional not complete the pre-authorisation review, it would be completed by someone who is not involved

“in the day-to-day care of the cared-for person…in providing any treatment to the cared-for person, or…who has a prescribed connection with a care home.”

We believe that this would ensure that the pre-authorisation reviewer is sufficiently independent. We expect that the review would be completed by professionals such as social workers, nurses or physicians. The hon. Member for Birmingham, Selly Oak talked about the use of the term “appropriate experience”, which is set out very clearly in extensive case law.

[Steve McCabe]

I am grateful to the Minister for that. Why does the wording suggest that the person should “appear” to have the appropriate experience? That does not sound quite as precise to me. Perhaps I am having difficulty comprehending this, but “appears” seems to suggest that there is an element of doubt or vagueness about the situation.

[Caroline Dinenage]

The hon. Gentleman is questioning aspects of legal terminology, on which I am not a huge expert. I am happy to get back to him on that in due course.

The hon. Gentleman referred to my personal family experience. I shall not share my life story, but my uncle’s situation is only the most recent experience that I have had of the whole system. I have far more than one family experience of this, which is why I am very keen to ensure that the Bill not only offers as much protection as it can, but works effectively and is as streamlined as possible. I have seen the effects of the delays not only in my constituency office, but in my personal life.

We have to be super careful not to denigrate in any way our care home staff, which I have spoken about before. So many of them work with great professional integrity. We have to be super careful about saying that a care home cannot be trusted not to interfere in the way the judgment is made. Clause 21 sets out clearly that the review would have to be completed by somebody who is not involved

“in the day-to-day care of the cared-for person…in providing any treatment to the cared-for person, or…who has a prescribed connection with a care home.”

The amendment would move away from having a targeted system, which allows authorisations to be in place more quickly, and would effectively recreate the current DoLS system. We cannot allow that to happen.

The hon. Gentleman talked about detriment to the interests of the individual. At the moment, the biggest detriment to the interests of 125,000 individuals is that they are sitting on a backlog. Some 48,000 have been sitting there for more than a year, which I am sure is not his intention. I cannot support the amendment and I ask him to withdraw it.

[Steve McCabe]

I am prepared to concede that the Minister has offered some reassurance—as a doubting Thomas, I would like an awful lot more. To be terribly honest, I am not that convinced. “Appear” is not a technical legal term; it is a description of the professional who would review a cared-for person’s situation for determination. Clause 18 sets out that the

“assessment must be carried out by a person who appears to the relevant person to have appropriate experience and knowledge.”

There is nothing too technical or legal about that. I say as gently as possible that if I were the Minister, I might go back to my officials and have another conversation about that in order to establish exactly why that wording has been chosen.

The Minister knows the Opposition’s view. She knows the view of quite a number of important organisations that are involved in this work day in, day out. It is probably better if I agree to withdraw the amendment now and take it on trust that the Minister will look further at our concerns. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Caroline Dinenage]

I start by welcoming the fact that we have just heard from the hon. Member for Dewsbury for the first time. It is a great pleasure to hear from her, not least because I can pronounce her constituency far better than Worsley and Eccles South.

I thank hon. Members for tabling the amendments, which I will take in the order in which the hon. Member for Dewsbury presented them. Amendment 32 would place the consideration of fluctuating capacity in the Bill. I agree that the likelihood of capacity to fluctuate should be very carefully assessed under the Mental Capacity Act. Fluctuating capacity should be considered in the authorisation, in the length of the authorisation and in the frequency of reviews. I am very tempted by the amendment, but the problem is, then what? It puts the provision in the Bill, but it does not describe what happens then. To my mind, that opens a whole can of worms.

As my hon. Friend the Member for Halesowen and Rowley Regis said, fluctuating capacity is incredibly complex to diagnose. It is a fact-specific matter that deserves great in-depth and detailed guidance. As such, I do not think it can be considered satisfactorily in one line in the Bill.

[Dr Williams]

I think there is an acknowledgment that whether or not someone has fluctuating capacity needs to be assessed. What is wrong with putting that in the Bill and then dealing with the complexity and the nuance and the “then what?” in the code of practice?

[Caroline Dinenage]

As I say, I am tempted by what hon. Members have said, so I will take this point away and look at it, but we have to consider this matter very carefully. We have to consider whether there are appropriate protections already in the Bill. That point relates to what I spoke quite a lot about on Tuesday—we have to be really careful about the unintended consequences of putting too much in the Bill, because if we then leave something out, we may create the sort of legal loopholes that caused so many problems with the previous DoLS legislation.

[Helen Whately]

The Minister is discussing whether there is already the necessary content in the legislation. Is she referring to the Act that we are amending or the Bill that we are discussing? It might be helpful to clarify.

[Caroline Dinenage]

Both, really. For example, the Bill lays out how every authorisation has a programme of reviews—if there is a change in the circumstances meaning that authorisation conditions are no longer met, the authorisation is no longer valid, and a review is triggered by reasonable request or significant changes in a person’s circumstances—so it is well within the scope of the Bill to address people with fluctuating capacity and to make sure that there is the necessary capacity.

The other issue that I have to take into consideration is that in a case regarding a patient known as CDM, fluctuating capacity has been considered by the Court of Protection, and that is currently being appealed. We are awaiting that decision, which will give useful guidance on how care workers should assess those with fluctuating capacity. That is something we will want to reflect on.

The hon. Member for Dewsbury spoke about the Law Commission and asked why we have differed a little bit from what it recommended. It is simple. The Law Commission had anticipated an entirely separate scheme for fluctuating capacity, adding a hugely complex dimension to this whole piece of work. Under its recommendations, people with fluctuating capacity would be dealt with in a separate authorisation process not directly linked to the main scheme. That is why there is a bit of confusion there.

There will be an awful lot of detail on this matter in the code of practice, which we consider the most appropriate form of guidance, given the level of detail it will require—this is a very serious matter. That will continue the practice under the current deprivation of liberty safeguards system, where the code of practice addresses fluctuating capacity. As I say, the Bill talks about regular assessment, including a limit of a year in the first instance—that is the maximum. The assessments can be set at very short-frequency time periods in order to deal with somebody who might have fluctuating capacity. Statutory guidance will include cases where a person with fluctuating capacity meets or does not meet the authorisation condition of lacking capacity to consent to arrangements, and will cover whether the authorisation continues in force or ceases to have effect.

Amendments 31 and 33 seek to ensure that medical assessments are completed by a registered medical practitioner. I completely agree that the person who conducts the medical assessment must of course be suitably competent, but the Bill already states that a person carrying out a medical capacity assessment must have “appropriate experience and knowledge”. We expect capacity assessments to be completed by a registered professional such as a nurse, social worker or occupational therapist, and medical assessments must be completed by physicians, such as family GPs and other doctors. However, we have to take into consideration that objective medical evidence does not require a registered doctor in all cases. Case law confirms that it can also include psychologists, for example, as was confirmed by the Law Commission.

In addition, to show the complexity of the issue, registered medical practitioners can include doctors who do not currently have a licence to practise. I know the hon. Member for Stockton South will be aware of that, given his knowledge and profession, but we need to consider carefully the law of unintended consequences when thinking about putting that in the Bill. We could be opening up a whole unwanted can of worms. We need to consider carefully whether we allow that particular group to give medical evidence.

It should also be noted that case law on article 5 of the European convention on human rights already requires that a deprivation of liberty must be based on objective medical expertise. The focus is therefore on competence at every stage rather than on qualifications. We are making it clear that all appropriate medical professionals should be included, which includes the speech and language therapists in the case that the hon. Member for Dewsbury spoke about.

I hope I have provided confirmation that medical and capacity assessments will be completed by somebody with the appropriate experience and knowledge to do the job, and that they will have the competence required to make a reliable assessment. I hope that I have provided Members with the reassurance they need to not press the amendments.

[Paula Sherriff]

I am grateful the Minister has agreed to have another look at the requests we have made today, but, in summary, medical and capacity assessments are a fundamental part of the proposed LPS system. They play a crucial role in preventing people from being wrongly deprived of their liberty. I have given examples today of where it is particularly important that the medical assessment is carried out by a registered medical practitioner. The European Court of Human Rights has held that deprivation of liberty on the grounds of unsound mind is permissible only on the basis of objective medical evidence. We need a guarantee in the Bill that medical assessments will be carried out by registered medical practitioners, otherwise we cannot ensure the Bill is fully compliant with European law.

I thank my hon. Friends for their contributions, including my hon. Friend the Member for Stockton South, particularly for his valuable medical experience on this issue, and my hon. Friends the Members for Stockton North and for Nottingham North.

The Law Commission wrote at length on the importance of considering fluctuating conditions. The amendment would ensure that an assessment has to be made of whether a person’s capacity will fluctuate. Without our amendment on fluctuating conditions, we might end up in a situation where anyone with fluctuating capacity is subject to different restrictions, depending on how a particular care setting treats them.

Finally, amendment 33 provides for capacity assessors to have the skills appropriate to carry out an assessment. That is especially important for people who have communication issues, as I outlined earlier. The Minister in the House of Lords said that skills will be covered in the code of practice, but we still have not seen the code. We need assurances in the Bill to ensure that people are not deprived of their liberty simply because an assessor could not understand them.

Question put, That the amendment be made.

Mental Capacity (Amendment) Bill [ Lords ] (Fourth sitting)

Caroline Dinenage Excerpts

Thursday 17th January 2019 Public Bill Committees

[The Minister for Care (Caroline Dinenage)]

I beg to move amendment 5, in schedule 1, page 14, line 6, leave out “prescribed connection” and insert

“connection, of a kind prescribed by regulations,”.

This amendment is to make it clear that a regulation making power is being conferred by paragraph 18(3) of the new Schedule AA1.

[The Chair]

With this it will be convenient to consider Government amendments 6 and 7.

[Caroline Dinenage]

It is a great pleasure to serve under your chairmanship, Mr Pritchard. A warm welcome to the Committee—albeit not quite as warm as it would have been had you been here on Tuesday.

These technical amendments build on important amendments tabled by the Government in the other place. They ensure that a person with a connection to a care home cannot conduct the assessments needed for an authorisation or the pre-authorisation review, and thereby eliminate any potential conflict of interest. It is vital that assessments and pre-authorisation reviews are completed independently. The amendments not only ensure there is no conflict of interest in the process but prevent the approval of over-restrictive arrangements that are in a care home’s interest but not in the best interests of the individual.

The amendments clarify that the definition of a person with a connection to a care home will be set out in regulations; the Bill therefore confers regulation-making powers. That may not have been sufficiently clear in previous drafting, so those connections will be laid out in regulations, which will allow us to provide the necessary detail and ensure that all care home staff and those connected to a care home are excluded from completing assessments and pre-authorisation reviews. Consideration was given to setting that out in the Bill, but we concluded that regulations would better serve our intention of ensuring that we exclude agency staff and others who do not work directly for the care home. I hope the Committee supports these clarifying amendments.

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

It is a real pleasure to serve under your chairmanship, Mr Pritchard. The atmosphere is so much nicer than it was on Tuesday, when we were so horribly hot. You avoided being in a sauna for a few hours.

It is a pleasure to speak to such uncontroversial amendments. We will discuss conflicts of interest further, so I will not say too much now, but I wish to make one comment. The amendments make clear that assessments and reviews should not be carried out by people who have certain relationships with a care home, but I hope the Government take a broad view of the kinds of relationships that should be ruled out. The regulations must not provide that the only people with a prescribed relationship with a care home are its employees. I also hope the Government take an open and consultative approach to drawing up the regulations. Many stakeholders will have strongly held views about the kinds of relationships that should be prescribed, and the Government should ensure that they take all that expertise on board.

Amendment 5 agreed to.

Amendment made: 6, in schedule 1, page 15, line 4, leave out “prescribed connection” and insert

“connection, of a kind prescribed by regulations,”.—(Caroline Dinenage.)

This amendment is to make it clear that a regulation making power is being conferred by paragraph 19(4) of the new Schedule AA1.

--- Later in debate ---

We have said that there is to be no parental override. Okay, but if we do not make the provision we propose and have some sort of clear and obvious sign of parental objections, how else will the parental voice be heard? If we just left that to the memory of the assessor, who might have done the case first time, or to the institutional memory of the provider, with all the pitfalls that we talked about on Tuesday, I do not think that we will have passed the test. When talking about the most vulnerable 16 and 17-year-olds, we will have lost the voices of their parents. That would be a big risk.

[Caroline Dinenage]

I thank the Opposition for raising this issue. As we have heard, the amendment would require that parents’ wishes and feelings about the proposed arrangements for their 16 and 17-year-old child are ascertained. That would be in addition to the main purpose of the consultation, which is to ascertain the wishes and feelings of the cared-for person.

I understand that hon. Members are concerned to ensure that parents’ voices are heard—so, of course, are the Government. Parents have a vital role in caring for their children, especially when they lack mental capacity. We would fully expect the responsible body to consult parents about their views of the arrangement, where appropriate, while ascertaining the wishes and feelings of the person. We therefore believe the amendment to be unnecessary, because parents involved in the care of their child will already be included in the consultation process, where appropriate. I refer Members to my earlier comments on the safeguarding issues that must also be taken into consideration.

The other thing to be taken into consideration, which I mentioned earlier, is the Birmingham case which is being considered by the Supreme Court. That will bring further clarity to parental responsibility for young people lacking mental capacity.

[Barbara Keeley]

I hope that the Minister was listening to the cases that I cited—I know that she has been involved in and heard of those cases, and sometimes met the individuals. Parents, however, were not consulted in desperately difficult and at times tragic circumstances. She knows that Paula McGowan and Oliver’s father were not consulted; in fact, they were ignored. On a number of occasions, I have talked about the case of Y, whose parents were ignored—the social worker just ignored them—to the real damage of that young person, who was held for two years. The Minister says somewhat glibly, if she will excuse me saying that, that parents will be consulted, but they are too often ignored. It seems to me that the working practice of many professionals in this field is to ignore the parents. I do not think that the amendment is unnecessary, because it creates a situation in which we draw attention to the importance of the input that parents can make. I have certainly seen no evidence that that is routinely used at the moment.

[Caroline Dinenage]

I very much take on board the hon. Lady’s concerns, and she knows that I have enormous respect for her work in this field. As she said, I have met with a number of parents involved in these tragic cases—she mentioned Paula McGowan and her son, Oliver. It was not just Oliver’s parents whose wishes and feelings were ignored; it was Oliver’s. In the initial period he said that he could not have the medication that they were giving him, and they still gave it to him anyway. Her point is incredibly valid, but it needs a lot more than this to achieve what we are aiming for. That is why we are bringing forward the consultation on the appropriate training for people who work in health and care settings, on how to be able to communicate with, understand and properly look after people with autism and learning disabilities.

[Barbara Keeley]

I respect that the Minister has taken on board Paula McGowan’s campaign, but how much more powerful would the training of medical professionals and others involved with the care and treatment of people like Oliver be, when it is started, if it could be said in the consultation that they have to listen to the views of the parents? That would be a change, because clearly they are not doing so at the moment.

[Caroline Dinenage]

I completely agree with the hon. Lady. We are making it clear that parental voices must be heard, but we have to be careful about putting anything in the Bill that could create unintended consequences. We have spoken about it before and those safeguarding issues have to be taken very seriously. To our cost, we have learned from previous Bills that a loophole in the law can take the whole policy off in a way that we had not entirely expected. We do not want to recreate that. I hope that with that reassurance hon. Members feel they are able to withdraw the amendment.

[Barbara Keeley]

No, I am afraid I do not. Amendment 34 requires the views of parents to be given particular weight in the consultation process, when the cared-for person is 16 or 17 years old. That is the third of our amendments designed to ensure that 16 and 17-year-olds have proper safeguards. It is necessary, because of the greater safeguards that this age group currently receives under the Mental Health Act. I think there will be a shift in which piece of legislation is used in regard of 16 and 17-year-olds. We cannot have a situation where the safeguards are less under the mental capacity legislation than they are under the Mental Health Act or a court order. We will press this to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Alex Norris]

This debate harks back to what we talked about on Tuesday—the perverse incentives for those providing care to let individuals remain on care packages for their own commercial interests, whether consciously or subconsciously. There is definitely a conflict of interest there. We have not taken previous amendments on that, but at some point I believe a line will have to be drawn stating, “These are the very clear in law protections that we are putting down to ensure there is no conflict of interest.”

It is entirely possible that the code of practice will refer to that and at the first stroke make it clear that it would be highly inappropriate for the assessments or reviews to be done by individuals who have a close connection or employment relationship with the provider themselves. That might be so, but we do not have that code of practice yet, and in any case, it is probably something that would be better in the Bill than in guidance, notwithstanding what the Minister has said previously about the standing of the code of practice.

We know that care facilities have narrow financial constraints. Their finances are tight and, as my hon. Friend the Member for Stockton North says, there is a pressure to provide as cheaply as possible. That is a clear and present danger. To avoid that concern and send a clear signal about those who conduct these types of reviews, now is a good time to put it in the Bill.

[Caroline Dinenage]

I am grateful to the hon. Members who have raised this important issue. I will address each amendment in turn.

On amendment 35, I agree that the independence of the pre-authorisation reviewer is of the utmost importance for ensuring that there is no conflict of interest in the pre-authorisation review. The Bill provides for separation between those who will authorise arrangements and those who will carry them out. The Bill is clear that anyone involved in a person’s day-to-day care or treatment or with a prescribed connection to a care home cannot complete a pre-authorisation review. That was an amendment made to the Bill after discussion in the other place.

[Dr Paul Williams (Stockton South) (Lab)]

Even though somebody might not have a prescribed relationship, informal relationships can develop, as my hon. Friends said. Our concern is that the existence of those informal relationships—they have been described as “cosy”—may well not be precluded by the protections afforded in the Bill.

--- Later in debate ---

[Caroline Dinenage]

That is what we must guard against. It cannot be done in the Bill, because coverage has to be extensive; that is exactly where the regulations that run alongside the Bill come into their own. They will set out how, if someone is working for a care home in a different location but run by the same provider, they will be excluded. They will also take a broader view, encompassing things such as agency staff, volunteers and other areas where people may have very reasonable concerns, as well as, of course, everybody who is employed in the care home.

Another point I want to stress is that the amendment would put hospital trusts, clinical commissioning groups and local health boards in a position where they are unable to arrange for someone in their organisation who is separate from delivering care and treatment to complete the pre-authorisation review. They would instead have to organise someone external, which to me seems a wildly unnecessary and bureaucratic exercise. We trust our NHS staff with our lives every single day. I am sure that is an unintended consequence and that Opposition Members are not saying that we cannot trust our NHS staff to complete those reviews. That is when I talk about unintended consequences of amendments to Bills.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

This is a genuine question: what will the arrangement be for inspecting the work of the people who carry out the reviews? The Minister says that we trust our NHS staff, but we have a whole series of inspection and review processes to ensure that decision makers are complying with the law as intended. I think I asked a similar question the other day about the Care Quality Commission in relation to homes, which she said that she would look at. Will there be some similar oversight or random review process of the work that these people do? That would be one way—not a guaranteed way—of picking up whether there was an unsuitable relationship. At the moment, part of the fear is that we could end up in a situation where these people are set free to do this work, but without any guaranteed oversight of how they carry it out.

[Caroline Dinenage]

I laughed when the hon. Gentleman said, “This is a genuine question,” as if all the others he has asked have not been. I am sure that is not what he intended to suggest.

[Steve McCabe]

If the Minister will forgive me, it is just that she looks as if she does not believe me sometimes.

[Caroline Dinenage]

I think that might just be my natural resting face. I understand what the hon. Gentleman is saying, but it depends who we are looking at. If the pre-authorisation review is being conducted by a local authority for a care home, the oversight of the senior members of the local authority would apply, as well as the Care Quality Commission, which deals with the quality of care homes. If it is something like a hospital, people will monitor other people’s work as happens already within hospitals, CCGs and health boards.

The Bill says that somebody who is involved in the direct care of a particular person cannot mark the homework of another person. In something as big and broad as a local health board, a CCG or a hospital trust, which can be enormous, exclusively saying that there could not be two people, who have never met each other before, looking at each other’s work seems to me a huge leap.

Amendment 36 is designed to prevent anyone with a prescribed connection to an independent hospital from conducting pre-authorisation reviews. I am sure that we can all agree that the pre-authorisation review is critical to the effective operation of the liberty protection safeguards in providing independent reviews of proposed arrangements that may deprive people of their liberty. We are talking about the most precious and vital of our human rights. The reviews have to be conducted by someone independent, who is not involved in the day-to-day provision of care or treatment of the cared-for person. That provides the necessary degree of separation to ensure that the model is compliant with the European convention rights.

By requiring authorisations in independent hospitals to be considered by an AMCP, regardless of whether the individual objects, we add a further level of security and build on other safeguards within the model. The AMCP will meet with the person, complete any relevant consultation and review assessments to decide whether the authorisation conditions are met. They can effectively veto proposed arrangements, if they feel that the proper conditions are not met. AMCPs will be professionals, such as experienced social workers, learning disability nurses and psychologists. Their practice will be regulated by and they will be accountable to their professional bodies—in answer to what the hon. Gentleman said earlier.

[Alex Cunningham]

The Minister just used the expression—I have lost my train of thought. I beg your pardon, Mr Pritchard.

[Caroline Dinenage]

I will take an intervention from the hon. Member for Worsley and Eccles South.

[Barbara Keeley]

I can see the Minister’s drift, but I do not understand how the Bill deals with a person who has a prescribed connection with a care home, but not a prescribed connection to an independent hospital. If it is important to have that in the Bill for a care home, why is it not important to have that in the Bill for an independent hospital?

[Caroline Dinenage]

It is in there—it is in both. In addition we have the AMCPs. As I said when discussed amendment 19, I fully understand hon. Members’ concerns around independent hospitals. I know the hon. Lady shares my concerns, and this matter has been raised by Members across the House. I said to her, in relation to amendment 19, that I wanted to go away and consider it further.

[Alex Cunningham]

I did not realise I was going to have to declare an interest in the Bill, in view of my lapse a few minutes ago. My question is about the reference the Minister made to the AMCP always meeting the person. Does the AMCP meet the person in every circumstance? We tabled amendments because we want everybody to have access to that sort of professional person—not just for them to see a report, but to actually see the person.

[Caroline Dinenage]

Yes, by requiring authorisation in independent hospitals to be considered by an AMCP, we add that extra level of scrutiny and build those safeguards into the model.

Given that I have committed to look at independent hospitals again, as I said in relation to amendment 19, I hope that the hon. Lady is willing to withdraw the amendment.

[Barbara Keeley]

I tried to ask the Minister another question. I do not want her just to go away and think about it. Is she prepared to look at adding the words “independent hospital”? Amendment 36 is a fairly simple addition of a few words. Is that what she is considering?

[Caroline Dinenage]

At this stage, I am prepared to say that I fully take on board and share the concern felt by the hon. Lady and others about ensuring that independent hospitals are not only seen to be above board, but are above board in every way that we can manage. That is why I have committed to looking again at everything that we have said so far to see if there is anything further we can do.

[Barbara Keeley]

I thank the Minister for saying that. She will need to go further and say that she is prepared to amend it on Report. Otherwise we will have to press our amendment to a vote. It is very important. I do not really understand the difference.

Ministers have accepted in the Lords that they want to prevent this important independent review from being conducted by a person with a prescribed connection to a care home. Responsible bodies include independent hospitals. I do not understand. If the Minister is prepared to go away and table a Government amendment we will not press this amendment to a vote. Otherwise, we will.

[Caroline Dinenage]

I appreciate the hon. Lady’s tenacity and dedication to this matter. I am afraid that, at the moment, all I can I say is that I am committed to looking at it again.

[Barbara Keeley]

That was helpful to know, because for us it is unacceptable for an independent reviewer to be employed by the same organisation that delivers care and support. That is unacceptable in a care home and in an independent hospital. The Bill is drafted too narrowly and precludes only individuals who are personally involved in the delivery of care. We certainly need to vote on the amendment. It seems to me to defy logic to have such a provision for care homes, but not to be every bit as cautious about independent hospitals.

Question put, That the amendment be made.

--- Later in debate ---

[Alex Norris]

I have specific trouble with the word “practicable”. From my time in local government—I know things have not got better in the 18 months since then—I would argue strongly that the current assessment workload is not practicable for the individual. Earlier in our consideration of the Bill, my hon. Friend the Member for Birmingham, Selly Oak compared social work case loads when he was active in the profession with what they might be today. Putting in legislation how practicable it is for an individual to go and do an assessment creates the chance of a loophole that does something that we do not intend the Bill to do.

It is striking, as my hon. Friend the Member for Birmingham, Selly Oak said, that the Minister has at all turns been careful about what has been put in the Bill so as not to create future loopholes. We know that traditionally, this area has been tested very heavily in case law and it will be tested again in court. She has been very careful not to put those words in there, but this one is problematic. We know that in a time of rising demand and diminished resources, there will be pressures. To put something in that suggests that if it is just too difficult for a social worker to go and do an assessment, that assessment will not take place, is dangerous. I do not think that is what we are trying to do. I believe that it will lead to a serious problem.

The market for providing very high-need care is not very developed. We are talking about very small numbers of people, so there are not masses and masses of providers. When it comes to all of us being older, there are facilities in all constituencies and communities for older people to have residential care, because it is a high-demand area. The very specific, individualised care packages that involve things such as depriving liberty are not found in every community. Often, we hear horror stories in children’s mental health of people being sent a long way away to find the right facility. Are we then saying that a reassessment might not be practical, because the AMCP is in Nottingham and the care placement is a long way out on the east coast in Lincolnshire? That might not be considered by an individual to be a “practicable” thing to do, so I have a real problem with that word.

If the Government are saying that there are circumstances—my hon. Friend the Member for Worsley and Eccles South mentioned the exchange in the other place—where they are relaxed about an AMCP not seeing an individual face-to-face, I think that is a bad idea, for the reasons detailed by my hon. Friend the Member for Stockton North. If the Government are saying that there are circumstances where they are relaxed about that, they should name them and put them on the face of the Bill and be exhaustive with them, so that we can be clear and test the will of the Committee as to whether we agree.

We need to have a greater sense of what we are saying in respect of dialling back people’s rights to see a qualified professional when they are having their liberty removed. If we are rolling that back, let us be really clear about how we are rolling it back—the exact circumstances and what recourse they might have if they or their carers believe that to be wrong. I think this is out of step with all the discussions we had on Tuesday and this morning. I believe it creates a loophole and we need greater clarification.

[Caroline Dinenage]

I thank those hon. Members who have spoken and tabled these amendments. Amendments 42 and 43, as we have heard, would require an approved mental capacity professional to meet with the person in every case where they are carrying out a pre-authorisation review, rather than—as we propose and as is written on the face of the Bill—where it is “appropriate and practicable”.

The Bill currently states that where an AMCP is carrying out a pre-authorisation review, they must meet with the person where practicable and appropriate. In the vast majority of circumstances it will be practicable and appropriate. This qualification comes from the Law Commission draft Bill, which recognised—we agree with this—that the AMCP will be required to meet with the person in virtually every case. This is an important protection within the liberty protection safeguard system.

[Alex Cunningham]

Will the Minister give way?

[Caroline Dinenage]

Let me make a bit of progress and I will hopefully answer the hon. Gentleman in the process, but if I do not, he can intervene again.

The exceptions where it would not be practicable and appropriate would depend on the circumstances of the case. Things such as workload, cost and distance would not count under the qualification of not appropriate or practicable. It might be not appropriate or practicable, for example, where the person is in a coma and the family has requested that the AMCP does not interview the person, because it would cause distress. Another example is where someone at the very end of their life needs to be deprived of their liberty in their last few days, and they do not want to see an AMCP. In many cases, we feel it would not be appropriate to override the person’s best interests and force them to meet with an approved mental capacity professional.

[Mr Dhesi]

The Minister makes some very good points that I have sympathy with, but why cannot we simply include what she says in the code of practice? Setting it in stone in the Bill gives completely the wrong signal to medical care professionals: it makes it the norm rather than the exception.

[Caroline Dinenage]

I might turn that point round on the hon. Gentleman: we are indeed including it in the code of practice. The Bill states that the AMCP will meet the cared-for person except in the very rare circumstances in which that is not practicable or appropriate. We will set out those rare exceptions, including case studies, in the code of practice—a much better place for them than the Bill, which cannot include such case studies to flesh out what we are trying to achieve.

[Dr Williams]

As the Minister describes it, the assessment will take place unless it is inappropriate or impractical, so perhaps the Bill ought to say that.

[Caroline Dinenage]

I thank the hon. Gentleman for that clarification, but we may be dancing on the head of a pin slightly. To my mind, the meaning of amendment 42 is that in all cases the AMCP should turn up and see the person, whereas we are saying that that should happen in all cases, with some very small exceptions. With that reassurance, I hope that the hon. Member for Worsley and Eccles South will withdraw the amendment.

[Barbara Keeley]

The Opposition believe, as the debate has shown, that the amendment would be a crucial safeguard. We have spent a lot of time discussing the code of practice, which is beginning to seem a bit like a unicorn—it is something out there that might or might not appear and be useful.

The amendment is important because the AMCP will have to be satisfied that the reality of the situation matches what is in the application. I am sorry that we are so often having to doubt care home managers and people working in independent hospitals, but that is only because we come across such appalling cases. Earlier today I cited the case of a young man in a care home who was deprived of his liberty for two years and restrained hundreds of times; other cases include people having their arms broken through the use of restraint techniques. All these things happen, and it does not help if an AMCP is prepared to accept the word of the care staff or the people in the independent hospital—the very people who have used the restraint that broke the arm or caused the damage.

I am afraid that we therefore wish to persist in pressing the amendment. I have made it clear that the meetings would not need to be burdensome, and I fully accept that there are circumstances in which a person doing such work will have to be flexible, but I would expect people with the appropriate knowledge, skills and experience to understand how to deal with an end-of-life care case and with the needs of very vulnerable people.

--- Later in debate ---

[The Chair]

I call the Minister.

[Caroline Dinenage]

Am I speaking to amendments 41 and 40?

[The Chair]

We are debating amendment 40 now, and 41 later.

[Caroline Dinenage]

Thank you for that clarification, Mr Pritchard.

I thank hon. Members for tabling this amendment. I agree that it is vital that where authorisation conditions are not met and the proposed arrangements are reconsidered, the care or treatment that is provided should not deprive someone of their liberty. Arrangements should be more proportionate in such cases. It is essential that the responsible body and others, such as care providers, are notified swiftly. The new model will include a wide range of people with very different circumstances. In some cases, the responsible body should be notified very quickly.

May I seek further clarification?

[The Chair]

May I say, to help the Minister and the Committee, that the amendments 40 and 41 were coupled together due to agreements that were made outside the Committee? The Minister will have an opportunity—probably next week—to speak to amendment 41.

[Caroline Dinenage]

But amendment 40 talks about a 48-hour time limit.

[The Chair]

For the ease of the Committee, if the shadow Minister is happy, the Minister can speak to amendments 40 and 41 if she wishes. She may want to speak again next week, or she might want to let that opportunity go by. For the flow of the Committee—if the Committee is happy—let us do it now and crack on.

[Caroline Dinenage]

I am very grateful for that clarification, Mr Pritchard. I have mixed my contributions on the two amendments together, so I will combine the two, if that is all right with the Committee.

[The Chair]

We are delighted to hear about amendment 41 earlier.

[Caroline Dinenage]

I am sure we all agree that the role of an AMCP is incredibly important in ensuring that cases under liberty protection safeguards are identified as needing to be referred to a Court of Protection, particularly because they will be reviewing arrangements where objections have been raised by the cared-for person or other people on their behalf. We are very clear that if a person wants to challenge their authorisation in the Court of Protection, they have the right to do so.

I assure hon. Members 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, as they currently do under the DoLS scheme. That applies, in particular, where a person should have had their case taken to court for a decision, but for some reason that has not occurred. The Bill does not change that. We agree that we expect AMCPs to communicate the outcome of their review swiftly to the responsible body. That will included cases where cared-for people raise objections that may require referral to the Court of Protection.

However, it is not only AMCPs who may be aware of objections. For example, people may raise matters directly with a responsible body or someone providing care or treatment, who may, in turn, raise concerns directly with the responsible body. Reviewers may become aware of an objection during a review of an arrangement that has been authorised. I am concerned that if we specify in the Bill that AMCPs have that duty, it may be felt that only AMCPs can and should identify such cases. Others, such as healthcare staff, should also be able to raise concerns directly with the responsible body, which can consider whether an application to court is swiftly required.

On amendment 40, I agree that it is vital that where authorisation conditions are not met, the proposed arrangements are reconsidered. The new model will include a wide range of people with different circumstances. In some cases, the responsible body should be notified much sooner than after 48 hours. My big concern is that 48 hours risks becoming a target.

The Bill already provides for people to have access to the court to challenge an authorisation, so if, after a review by an AMCP, a decision is made that the conditions are met but the cared-for person or carer still objects, they could take the case to the Court of Protection for challenge. The amendment also requires that where a cared-for person would wish to object but cannot communicate that, that is notified to the responsible body within 48 hours, as likely requiring a referral for challenge at the Court of Protection.

Finally, that is also why it is important that the LPS assessments are of good quality, and that the consultation takes place with the range of people necessary to identify the person’s wishes and feelings, including family and carers. I hope that I have been able to provide the necessary reassurance and that the hon. Member for Worsley and Eccles South is willing to withdraw the amendment.

[The Chair]

Before I call the shadow Minister, I inform the Committee that the vote on amendment 41—if there is a vote—will be taken next week, although the Committee has agreed to hear representations from the Front-Bench spokespeople on both amendments today. Amendment 40 will be taken shortly.

--- Later in debate ---

As we have already heard, there were calls for the Government to move in the other direction. Sir Simon Wessely recommended that renewal periods should be cut, not extended. A wide range of voices are telling the Government that their proposed period is simply not appropriate, and I cannot understand why the Government have not yet listened. The amendments give them another chance to do so. By limiting the period of an authorisation to 12 months, whether that is the first authorisation or the 10th, we can ensure that nobody is inappropriately deprived of their liberty for long periods.

[Caroline Dinenage]

I thank the hon. Members who have tabled the amendments on authorisations up to three years. I stress that this was a recommendation of the Law Commission, in particular for people with long-term progressive conditions from which they are unlikely to recover. It was suggested because many people and their families told the Law Commission, throughout its extensive consultation and work, that they felt that starting the process from scratch every year was unnecessary and cumbersome.

I should also stress that the three-year authorisation period starts only after there have been two one-year authorisations, and the periods set are maximums, not minimums or targets. The Bill does not prevent a responsible body from approving an authorisation for the period set out in the amendment if that is appropriate. Furthermore, the responsible body is required to specify a continuous programme of reviews. If a person’s circumstances change significantly, the authorisation will be reviewed and may be found to no longer be valid. That could easily be the case with somebody with dementia, as has already been highlighted. In that way, I believe that the provision actually brings in additional safeguards.

I hope that has provided clarification and I ask hon. Members to withdraw the amendments.

[Steve McCabe]

My amendments were probing amendments, so I do not wish to push them to a vote. I hope the Minister will reflect again on what I said about monitoring how the detention periods are used, because I fear there is a greater risk here than people may have anticipated. I beg to ask leave to withdraw the amendment.

[Barbara Keeley]

Can I just make a couple of points? There is near unanimity in the sector that three years for renewals is too long. Even the Alzheimer’s Society is worried about the impact it could have. The power on renewals lies with the managers of independent hospitals or care homes, who are people with a vested interest in renewing the authorisation and keeping the cared-for person as a client. In the amendment, we suggest a 12-month period, which would allow the renewal process to be built on the all the other assessments that cared-for people undergo annually as part of their care programme. That would avoid the process placing an excessive burden on them.

[Caroline Dinenage]

I am sorry for pushing everybody’s patience, but I need to clarify something the hon. Lady said. I am sure she said it inadvertently. She said that a care home manager can renew an authorisation. That is not correct. Only a responsible body can renew an authorisation and only when the responsible body is satisfied that the conditions continue to be met.

[Barbara Keeley]

The point remains for independent hospitals. In other amendments, we have tried to move that independent hospitals are not responsible bodies, but the Government did not accept those amendments.

Amendment, by leave, withdrawn.

Amendment proposed: 44, in schedule 1, page 18, line 24, leave out from “less” to end of sub-paragraph (1)(b).—(Barbara Keeley.)

This amendment limits the period of renewal of any authorisation to twelve months.

Question put, That the amendment be made.