Mental Capacity (Amendment) Bill [Lords]

Debate between Caroline Dinenage and Catherine West

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

[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.

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[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.