Mental Capacity (Amendment) Bill [Lords]

Chris Bryant Excerpts

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

[Chris Bryant (Rhondda) (Lab)]

I beg to move amendment 1, page 5, line 10, at end insert—

“(3A) Before making any regulations under subsection (3)(b), the Secretary of State must lay before Parliament a report on—

(a) the likely effects of the provisions of this Act on persons undergoing rehabilitation for brain injuries, and

(b) the interaction between the provisions of this Act and the processes for prescribing for brain injury rehabilitation therapy.”

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

With this it will be convenient to discuss the following:

Government amendments 5 to 32.

Amendment 2, in schedule 1, page 15, line 24, at end insert—

“(d) the effects of any treatment undergone by the cared-for person, including prescription brain injury rehabilitation therapy.”

Government amendments 33 to 37.

Amendment 49, page 16, line, leave out from “out” to the end of line 16, and insert

“by the responsible body.”

This amendment would require the responsible body to carry out the consultation in all cases.

Government amendment 38.

Amendment 50, page 17, line 13, at end insert—

“(ca) the arrangements are being authorised under paragraph 16 of this Schedule, or”

This amendment would require an AMCP to review all cases where the responsible body is authorising arrangements based on a statement provided by a care home manager.

Government amendment 39.

Amendment 48, page 18, line 21, at end insert—

“Authorisation charges

24A No charges may be made in relation to the steps taken in determining whether the responsible body may authorise the arrangements for the cared-for person.”

Amendment 3, page 18, line 35, at end insert “or

(c) at the end of a period of prescription brain injury rehabilitation therapy undergone by the cared-for person.”

Amendment 4, page 20, line 4, after “met” insert

“taking into account any treatment to be undergone by the cared-for person, including prescription brain injury rehabilitation therapy.”

Government amendments 40 to 46.

Amendment 51, page 23, line 1, leave out paragraphs 39 and 40 and insert—

“39 (1) The responsible body must appoint an IMCA to represent and support the cared-for person if–

(a) one or more of sub-paragraphs (2), (3), (4) or (5) applies, and

(b) sub-paragraph (6) does not apply.

(2) The cared-for person makes a request to the responsible body for an IMCA to be appointed.

(3) The responsible body has not identified an ‘appropriate person’ to support and represent the cared-for person in matters connected with the authorisation.

(4) The responsible body has identified an ‘appropriate person’ to support and represent the cared for person in matters connected with the authorisation, and they have made a request to the responsible body for an IMCA to be appointed.

(5) The responsible body has reason to believe one or more of the following—

(a) that, without the help of an IMCA, the cared-for person and any appropriate person supporting and representing them would be unable to understand or exercise one or more of the relevant rights;

(b) that the cared-for person and any appropriate person supporting and representing them have each failed to exercise a relevant right when it would have been reasonable to exercise it;

(c) that the cared for person and any appropriate person supporting and representing them are each unlikely to exercise a relevant right when it would be reasonable to exercise it.

(6) The cared-for person objects to being represented and supported by an IMCA.

(7) A person is not to be regarded as an ‘appropriate person’ to represent and support the cared-for person in matters connected with this schedule unless—

(a) they consent to representing and supporting the cared-for person,

(b) they are not engaged in providing care or treatment for the cared-for person in a professional capacity,

(c) where the cared-for person is able to express a view about who they would like to represent and support them, the cared-for person agree to being represented and supported by that person,

(d) where the cared-for person is unable to express a view about who they would like to represent and support them, the responsible body has no reason to believe that the cared-for person would object to being represented and supported by that person,

(e) they are both willing and able to assist the cared-for person in understanding and exercising the relevant rights under this Schedule, including with the support of an IMCA if appropriate.

(8) The ‘relevant rights’ under this schedule include rights to request a review under Part III of this Schedule, and the right to make an application to the court to exercise its jurisdiction under section 21ZA of this Act.”

This amendment would broaden the provision of advocacy, ensuring that advocates are provided as a default unless the cared-for person does not want one.

Government amendment 47.

[Chris Bryant]

I will speak to amendment 1 and the three other amendments in my name and the names of several colleagues.

I want to start with enormous praise for the national health service, which in many cases makes the key decisions on everything that we will talk about today. Sometimes those are very difficult decisions, including for families, and they need to be managed with care and sensitivity. Ensuring that we have the right law in place to enable clinicians to make the right decisions is vital. I was on the Public Bill Committee for the Mental Health Act 2007 under the Labour Government, and I remember many of the rows and difficulties then. Ensuring that legislation fits the complicated circumstances of real life is not all that easy, and in particular, the definition of what might be proper treatment is not readily come by.

Often lobbyists get a really bad press. My experience of lobbyists in this field is entirely positive, including those working for the pharmaceutical industry, who do an amazing job in providing new drugs that can save people’s lives and manage their conditions much better, and the many charities in this field. When lobbyists are decried, I sometimes want to point out that they play an important part in ensuring that Members of Parliament know exactly what they are doing when it comes to legislation.

All the amendments that I have tabled relate to acquired brain injury. I am aware that several other colleagues who are members of the all-party parliamentary group on acquired brain injury are here today. I do not want to make an apology for that, but I want to explain why I have tabled these amendments. It is partly because I believe that acquired brain injury, though recognised and understood by some, is something of a hidden epidemic in Britain.

Something like 1.4 million people in this country are living with an acquired brain injury. A new person presents at accident and emergency with a brain injury every 90 seconds. Many of these injuries have lasting effects that are completely invisible to an ordinary member of the public. For instance, the person standing in front of us in a queue who is being difficult might look as if they are drunk or just being difficult, but they may have a brain injury. We would have no idea, and the person feels trapped and finds the situation as difficult as we do. The more we come to an understanding of acquired brain injury in this country, the better.

There are many different causes of brain injury, including road traffic accidents, accidents about the home and stroke. One cause that has been brought home to me recently is carbon monoxide poisoning. Not only the high level of carbon monoxide poisoning that follows an incident, but a sustained low level of carbon monoxide due to poor central heating systems or facilities or something like a Calor gas burner in a home, can end up causing a long-term brain injury. This particularly affects some of those who live in the worst housing in the land, and who are the poorest and least able to afford, for instance, to have their boiler mended or assessed every year.

[Mrs Madeleine Moon (Bridgend) (Lab)]

Is my hon. Friend aware of the problem that some members of the armed forces face with acquired brain injury? It may be because they were involved in or close to the explosion of an improvised explosive device, or because they had a gunshot wound, when the head covering was hit but not penetrated, and the shock can lead to acquired brain injury.

[Chris Bryant]

My hon. Friend makes a very important point. I know the role she has played, in particular in the all-party group on the armed forces, and of course in the NATO Parliamentary Assembly. She is absolutely right, and there are sometimes coup and contrecoup elements of damage to the brain. There is also some evidence to suggest that some people diagnosed with post-traumatic stress disorder have actually been suffering from a brain injury.

Interestingly, the Ministry of Defence has done some of the most innovative work in relation to brain injuries—physical brain injuries, as it were—and it has been able to transfer some of the skills and research involved in that work to the wider population, which is all to the good. However, I think that the way in which the mind sits inside the brain and the brain sits inside the skull is one of the areas of research that is still underdeveloped, and we still need to do a great deal more about it.

Other causes include brain tumours and chronic traumatic encephalopathy, where somebody may have had a series of relatively minor concussions. There is a complete misunderstanding of what concussion actually involves, particularly in sport. This might be leading to some of the long-term sustained problems of, for example, people in my own constituency who played rugby for many years and had repeated concussions. They may suffer from dementia, depression and anxiety in later life, but have no understanding that that may relate to a brain injury, rather than to anything else.

[Mr Jim Cunningham (Coventry South) (Lab)]

While we are talking about sport, may I say that this does not involve only rugby players? There is now evidence that footballers, particularly those heading the ball, suffer sustained brain injuries. It used to be interpreted as dementia, but it is a lot more serious than that. Has my hon. Friend had any discussions with the Football League about that?

[Chris Bryant]

I have had lots of discussions, some of them more fruitful than others, with the Football Association.

It is wholly to be deprecated that FIFA still will not allow a full substitution for an assessment of brain injury during a match. Ten minutes are needed to do a proper assessment on the pitch, but at the moment only three minutes is available in a FIFA match. There can be no substitution, and it is not therefore in the team’s interests to take the person off the pitch. I think that this must change. If there is one thing that I hope Parliament will say to FIFA about this in the next few months, it is that this must change. People we talk of as heroes, such as Jeff Astle, have died because of heading the ball. If those who are heroes to our young people today end up suffering in later life because of what they sustained in their footballing career, we will have done them a terrible disservice.

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

Does my hon. Friend agree that this applies equally to those who play rugby league, and in fact perhaps more, given the impact that some tackles occasionally have?

[Chris Bryant]

My hon. Friend makes a very good point. One of the things about rugby league and about rugby union, which I know rather better, being from south Wales—[Interruption.] I do not think it is parliamentary to tut-tut from the Chair, Mr Deputy Speaker, if you don’t mind my saying so. The truth is that many of the players today are bigger, stronger and faster, so the impacts may be much more significant than they were in the past. Curiously, when we watch some of the commentary on Twitter and Facebook about matches, we see a kind of rejoicing in the physical pain that people are going through, and I think we really need to roll that back. We need to roll that back so that we are actually caring about the players. Quite often the players themselves will be desperate to go back on. It should not be the player who makes that decision; it should be an independent doctor who makes it. [Interruption.] I think you want to intervene on me, Mr Deputy Speaker.

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

The tut-tut was to say that the hon. Gentleman would benefit from knowing both types of rugby. The only thing I would add, just to help his case, is that in rugby league a player is taken off for a full assessment by a doctor and not allowed back on. That is the benefit on which rugby league is leading the sport.

[Chris Bryant]

I am glad I took that intervention. It is unusual to get an intervention from the Chair, but I think we welcome this new style of chairing.

[Mr Deputy Speaker]

It was a clarification.

[Chris Bryant]

I am tempted to make a point of order! No—you are absolutely right, Mr Deputy Speaker.

The key thing is to have the same protocols for all sports, so that there is the same protection. A child might play rugby league one year and rugby union the next; if there are different protocols, that will undermine the whole system. Incidentally, the point also applies to a whole range of other sports—hockey and ice hockey, as well as American football, in which there is growing interest in the United Kingdom. We should not let the issue be led by litigation, which is what has happened in the United States of America: we should let it be led by the medical science, which is rapidly changing.

--- Later in debate ---

[Mrs Moon]

My hon. Friend is being generous in giving way. One of the things that concern me most is that it is easy to label someone with any form of brain injury—whether dementia, Parkinson’s or anything else—when they also have an infection. What can be seen as difficult behaviour can be misunderstood when it is caused by the infection rather than by any acquired injury or illness.

[Chris Bryant]

Yes. People will also attribute bad intention to the person when what is happening is that the short-term memory is simply not functioning properly. For instance, someone with very little short-term memory may find it difficult to turn up on time, as I mentioned earlier. That may be not because they are being lazy, truculent or difficult but simply because their brain does not work in that way. It may mean that their capacity is so diminished that, according to the Bill, they cannot make decisions. Alternatively, it might just be one of the elements that needs to be dealt with—they need to find tricks to circumvent the problem, and medical and clinical professionals can help.

This is why I tabled my amendments. Neurorehabilitation, when done well and on a sustained basis, can take an individual from being low functioning and high dependency, perhaps needing three or four people just to be able to wash themselves, clothe themselves and provide for themselves physically, to a much higher level of personal functionality and much greater independence. I have made that argument from a different place, in the sense that taking someone from needing four people to look after them to just one person coming in once a day for an hour or so could be an enormous financial saving to the taxpayer. That is why neurorehabilitation and the work that has been done in many cases can be so important.

Neurorehabilitation is really important in relation to the Bill. We might be able to take somebody from a place where they are not truly able to make a decision about what treatment they should be undergoing and, according the Bill, deprive them of their liberty, to a place where that would no longer be appropriate. My anxiety is that if there is no incentive in the system to ensure that neurorehabilitation is provided to people, there is a danger that we just discard them and leave them by the side, particularly as we are now talking about a three-year term rather than a one-year term. I think the clauses at the end of the Bill militate in favour of renewal, rather than providing a clear option not to renew at that point.

I have an anxiety that perhaps in some care homes and other places there just might be an incentive to think, “Well, this person isn’t going to get better so we’re not going to do anything to try to help them to get better.” I do not want to give up on so many people. Thanks to what the Government have done with the major trauma centres, we now save about 800 or 1,000 more lives every year following road traffic accidents and the like, but we need to give people quality of life. We do not have enough people working in this field. We need to recruit many more people. If 20 people were inspired by what we are talking about today to go and work in that field—there are so many high rewards for people working to take people from high dependency to low dependency—that would be a success in itself.

[Liz Twist (Blaydon) (Lab)]

Does my hon. Friend agree that the all-party group inquiry heard some remarkable examples of people who have gone through the pathway with neurorehabilitation prescriptions and are increasingly able, with great work and support on everyone’s part, to carry out many functions?

[Chris Bryant]

Absolutely. One key thing that we saw repeatedly—this is an issue for the Bill, I think—was the fluctuating nature of some brain injuries. For instance, fatigue is a very common feature of many brain injuries. I do not mean just feeling tired because you are sitting at the back of a debate in the House of Commons and somebody is wittering on for far too long and you fall asleep, but real, genuine fatigue. I mean the kind of lassitude that leaves you unable to move from one side of the bed to the other. It is often misunderstood, because it might look like laziness to somebody with a judgmental eye. That lassitude can pass or go through phases and can sometimes be a bit difficult to explain or predict. I am therefore really keen that we ensure, in all the processes in the Bill, that anyone with an acquired brain injury is regularly and repeatedly reassessed so that they have an opportunity to escape. That is important.

[Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)]

The hon. Gentleman is making some good points. The only point I would make to him is that without a deprivation of liberty order—I agree that they should be open to review, and I am sure the Minister will go on to talk about how that can happen—some of the people he talks about may have to be put under the Mental Health Act 2007 due to the fluctuating nature of their capacity. That would be much more restrictive and could lead to them being sent to entirely the wrong places to be cared for. I would just give that caveat and that warning to him about the potential consequences of what he is saying.

[Chris Bryant]

I think the hon. Gentleman has just read, in some weird way, what I was about to say—he has a very special mental capacity of his own if he is able to read my notes from that distance. He is absolutely right, however, and I do not want to drive a coach and horses through the Bill at all. I fully accept that there is a requirement for some elements of it.

I have an anxiety about the pace at which the Bill is going. It is a shame that the code is not yet available, because it would significantly affect how we viewed some of the issues that we are talking about today. All the things in my amendments should probably be in the code, rather than on the face of the Bill—that is what the Minister said to me yesterday, and I should have given her a much harder time, by the way—but why do we not have the code now? We are not going to have it before the Bill receives its Third Reading, and I think that is a mistake. It is not as though we have lots of wonderful business to be getting through.

[Janet Daby (Lewisham East) (Lab)]

A young person in my constituency has contacted me—she has a disability and works for a disabled people’s organisation called Inclusion London—to raise concerns about the speed at which the Bill is going through Parliament. There is a sense of it being rushed through without adequate consultation, which it needs, and with little regard for the people who are likely to be affected by it. Does my hon. Friend agree?

[Chris Bryant]

Yes, I do have that anxiety. I want to be a bit critical of the Government on that, because this is a two-year Session of Parliament and there is no reason why this could not have been done in a proper way. I am slightly conscious that there is not a great deal of time left today, however, so I am keen to bring my remarks to a close.

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

Before my hon. Friend concludes, since the code is going to be so central to the operation of the Bill, and since none of us will have seen it before the Bill concludes its proceedings, does he think that it is vital for the Minister to say today that there will be proper and extensive consultation on the code before it is implemented?

[Chris Bryant]

Yes. The Government have effectively already said that, but to be really nasty, we should have had the code before today, in all honesty, even if it was only in draft form, so that we would be able to see what we are really talking about, and I would then not have been talking about these amendments.

I want to bring my remarks to a close as soon as I can. We need to build in an incentive to make sure that there is proper neurorehabilitation provision for people with acquired brain injuries. All too often, patients and carers in this field feel as though they are being processed. That is not because health clinicians are nastily minded, but because people sometimes end up having to deal with so many different departments that they feel as though they are being pushed from pillar to post. That is why it is really important that the Government strike the right note when it comes to the next stage of introducing the code.

Amendment 1 simply says that

“the Secretary of State must lay before Parliament a report on”

the “likely effects” of the Bill on ABI before it comes into effect. Amendment 2 requires the “relevant person”, who could be somebody managing a care home, to consider

“the effects of any treatment undergone by the cared-for person, including prescription brain injury rehabilitation therapy”

in addition to the length of time since the assessment was originally made. Amendment 3 would mean that an authorisation that was not renewed would lapse after 12 months, after a time specified in the original authorisation, or, as I would like it to be,

“at the end of a period of prescription brain injury rehabilitation therapy”.

I think that is key to making sure that there is an incentive to ensure that therapy is provided. Amendment 4 refers to the renewal of an authorisation and requires the responsible body to take into account

“any treatment to be undergone by the cared-for person, including prescription brain injury rehabilitation therapy”.

I do not think that any of those amendments would do the Bill any harm—no harm at all—and I am feeling a bit more grumpy with the Minister than I was yesterday when I met her, so who knows? We might end up voting on them.

[The Parliamentary Under-Secretary of State for Health and Social Care (Steve Brine)]

It is good to see the hon. Gentleman on his feet, but I hate to see him grumpy. He will have my response to his all-party group next week. I promised him a recommendation by recommendation response to his report, the launch of which I attended, and he will have it next week.

[Chris Bryant]

I am very happy with this Minister, but the other Minister—

[Steve Brine]

She’s nicer than me.

[Chris Bryant]

That is true, but she has to prove her mettle on this. I do not mean that in a nasty way; I simply mean that we want some changes.

[Several hon. Members rose—]

--- Later in debate ---

[Alex Cunningham (Stockton North) (Lab)]

I had hoped to address several of the amendments signed by my hon. Friends and me, because this is a bad Bill with huge opposition across our society. It fails to protect people adequately, meaning they could be locked up without a proper process of assessment and without advocacy support—and that includes 16 and 17-year-old children. The protections for them are also inadequate, as they are for their parents. Time is against me, however, so I will turn straight to amendment 48, which stands in my name and that of my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams).

There is a genuine concern among organisations in the sector that vulnerable people, particularly those receiving private care, may be charged for an assessment or for assessments to be carried out. I know the Minister got a bit fed up with me banging on about funding and about the fact that local authorities such as mine in Stockton-on-Tees have lost millions of pounds in funding and that budget reductions are continuing across health. I have also addressed the tight margins on which care homes operate and the need to ensure the sector remains viable.

We know that the sector is strained financially and might feel it has no choice but to implement fees and charges for the assessment of clients’ mental capacity. The intention of the amendment is to ensure that this does not happen. Several written submissions to the Public Bill Committee raised concerns about the absence of any provision for a fee for medical professionals to provide medical evidence.

This is the right point to refer to the revised impact assessment published by the Government. I and other Opposition Members have been contacted by academics accusing the assessment of perpetuating a myth by saying that GPs will provide diagnostic evidence and conduct capacity assessments for the LPS and that this will have no resource implications. What total nonsense. How has this conclusion been reached? I have not heard from a single body or GP arguing it will have no resource implications—quite the opposite.

The experience of judicial DoLS applications to the Court of Protection seems to be that GPs are very reluctant to provide such evidence, either because they do not feel skilled enough to do so or because they require payment. This means that someone will have to pay a fee for the medical assessment, and there is nothing in the Bill or the NHS charging regulations to prevent it from being passed on to the person themselves.

Evidence shows that that is already happening. Southfield House, a care home in Stockport, was found to be charging residents £250 if they required a deprivation of liberty authorisation. A complaint was lodged with the Care Quality Commission by Edge Training, but it was told in response that that was allowed. What was that £250 for? “An application to the local authority requesting an assessment” appears to cover it—and after that, there was the £125 annual fee. Individuals who are going through what can only be an extremely emotionally difficult process are being charged hundreds of pounds for the luxury.

It is frustrating that the care home is well within its rights to make those charges. A spokesman put it best:

“The social care sector…is currently under huge financial pressure. All tasks from care to admin to facility carry a cost”.

Because the sector is underfunded, the Government consider it appropriate to take financial advantage of the most vulnerable people in society.

I do not intend to press the amendment to a vote, but I think that the Minister must take on board the whole issue of charges. At present, the law gives care home managers and others carte blanche to charge exactly what they want. There are no limitations whatsoever. I ask the Minister, perhaps at the regulations stage, to come back with specific ideas to restrict care home managers and others from exploiting those vulnerable people.

[Chris Bryant]

I was expecting my hon. Friend the Member for Stockton North (Alex Cunningham) to go on a bit longer, but now that I have the Floor, let me say this.

There is quite a bit of consensus, certainly among Labour Members, that there are elements of the Bill with which we are not happy, and I am sure that we will vote on those in a few moments. What the Minister said earlier makes me hopeful that she will do her level best to ensure that the way in which the needs of people with acquired brain injuries can be met will be clearly laid out in the code of conduct. As my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams) said, some of the issues are very specific to them; they are different from those affecting other people in the same category.

The deprivation of liberty is one of the most important issues that Parliament ever has to consider. We all accept that, and it was referred to by both the Minister and my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley). I hope that we manage to get the code of conduct right, at the right time, and that the process we use ensures that as many as possible of the users, patients, carers and organisations that are involved in this matter on a daily basis have a real opportunity to feel that they can own that code. I think that that is the point at which the Minister might manage to assuage some of our concerns, although some Labour concerns are extremely strong.

As I told the Minister yesterday, I do not intend to press my amendment to a vote. She is smiling now. I therefore beg to ask leave to withdraw the amendment.

Question put and agreed to.

Amendment, by leave, withdrawn.

[Madam Deputy Speaker (Dame Eleanor Laing)]

With the leave of the House, I propose to put Government amendments 5 to 37 together.

Schedule 1

SCHEDULE TO BE INSERTED AS SCHEDULE AA1 TO THE MENTAL CAPACITY ACT 2005

Amendments made: 5, page 8, line 6, leave out from “Wales,” to end of line 10 and insert

“the person registered, or required to be registered, under Chapter 2 of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2) in respect of the provision of a care home service, in the care home;”.

This amendment amends the definition of “care home manager”, in Wales, so it will be the person who is the registered service provider. This mirrors the approach taken for England.

Amendment 6, page 8, line 13, at end insert—

““Education, Health and Care plan” means a plan within the meaning of section 37(2) of the Children and Families Act 2014;”

This amendment is consequential on Amendment 22.

Amendment 7, page 8, leave out line 16

This amendment is consequential on Amendment 13.

Amendment 8, page 8, line 17, at end insert—

““independent hospital” has the meaning given by paragraph 5;”

This amendment is consequential on Amendment 13.

Amendment 9, page 8, line 27, at end insert—

““NHS hospital” has the meaning given by paragraph 5;”

This amendment is consequential on Amendment 13.

Amendment 10, page 8, line 46, leave out “Hospital” and insert “NHS hospital and independent hospital”.

This amendment is consequential on Amendment 13.

Amendment 11, page 8, leave out line 47.

This amendment is consequential on Amendment 13.

Amendment 12, page 9, line 15, after “6” insert “(1)”.

This amendment is consequential on Amendment 18.

Amendment 13, page 9, line 16, leave out “a” and insert “an NHS”.

This amendment amends paragraph 6(a) so that where arrangements are carried out mainly in an independent hospital the responsible body for those arrangements will not be the hospital manager.

Amendment 14, page 9, line 17, at end insert—

(aa) if the arrangements are carried out mainly in an independent hospital in England, the responsible local authority determined in accordance with paragraph 8A;

(ab) if the arrangements are carried out mainly in an independent hospital in Wales, the Local Health Board for the area in which the hospital is situated;”

This amendment makes provision for who the responsible body will be for cases where arrangements are carried out mainly in an independent hospital in England or Wales.

Amendment 15, page 9, line 18, leave out “paragraph (a) does not apply” and insert “none of paragraphs (a) to (ab) applies”.

This amendment is consequential on Amendment 14.

Amendment 16, page 9, line 27, leave out “neither paragraph (a) nor paragraph (b)” and insert “none of paragraphs (a) to (b)”.

This amendment is consequential on Amendment 14.

Amendment 17, page 9, line 28, leave out “(see paragraph 9)” and insert

“determined in accordance with paragraph 9”.

This amendment is consequential on Amendment 14.

Amendment 18, page 9, line 28, at end insert—

‘(2) If an independent hospital is situated in the areas of two or more Local Health Boards, it is to be regarded for the purposes of sub-paragraph (1)(ab) as situated in whichever of the areas the greater (or greatest) part of the hospital is situated.”

This amendment provides that, for the purpose of determining who is the responsible body, if a hospital is situated in the areas of two or more Local Health Boards, it should be regarded as situated in whichever of the areas the greater (or greatest) part of the hospital is situated.

Amendment 19, page 9, line 29, after “manager” insert

“, in relation to an NHS hospital,”.

This amendment is consequential on Amendment 13.

Amendment 20, page 9, line 45, at end insert—

(ca) if the hospital is vested in a Local Health Board, that Board.”

This amendment makes provision that the hospital manager for an NHS hospital vested in a Local Health Board will be that Board.

Amendment 21, page 9, line 46, leave out from beginning to end of line 12 on page 10

This amendment is consequential on Amendment 13.

Amendment 22, page 10, line 20, at end insert—

8A (1) In paragraph 6(1)(aa), “responsible local authority”, in relation to a cared-for person aged 18 or over, means—

(a) if there is an Education, Health and Care plan for the cared-for person, the local authority responsible for maintaining that plan;

(b) if paragraph (a) does not apply and the cared-for person has needs for care and support which are being met under Part 1 of the Care Act 2014, the local authority meeting those needs;

(c) in any other case, the local authority determined in accordance with sub-paragraph (4).

(2) If more than one local authority is meeting the needs of a cared-for person for care and support under Part 1 of the Care Act 2014 the responsible local authority is the local authority for the area in which the cared-for person is ordinarily resident for the purposes of that Part of that Act.

(3) In paragraph 6(1)(aa), “responsible local authority”, in relation to a cared-for person aged 16 or 17, means—

(a) if there is an Education, Health and Care plan for the cared-for person, the local authority responsible for maintaining that plan;

(b) if paragraph (a) does not apply and the cared-for person is being provided with accommodation under section 20 of the Children Act 1989, the local authority providing that accommodation;

(c) if neither paragraph (a) nor paragraph (b) applies and the cared-for person is subject to a care order under section 31 of the Children Act 1989 or an interim care order under section 38 of that Act, and a local authority in England is responsible under the order for the care of the cared-for person, that local authority;

(d) if none of paragraphs (a) to (c) applies, the local authority determined in accordance with sub-paragraph (4).

(4) In the cases mentioned in sub-paragraphs (1)(c) and (3)(d), the “responsible local authority” is the local authority for the area in which the independent hospital mentioned in paragraph 6(1)(aa) is situated.

(5) If an independent hospital is situated in the areas of two or more local authorities, it is to be regarded for the purposes of sub-paragraph (4) as situated in whichever of the areas the greater (or greatest) part of the hospital is situated.”

This amendment makes provision as to who the responsible body will be in cases where arrangements are carried out mainly in an independent hospital in England.

Amendment 23, page 11, leave out lines 45 to 47.

This amendment is consequential on Amendment 22.

Amendment 24, page 12, line 19, at end insert—

12A (1) The following must publish information about authorisation of arrangements under this Schedule—

(a) the hospital manager of each NHS hospital;

(b) each clinical commissioning group;

(c) each Local Health Board;

(d) each local authority.

(2) The information must include information on the following matters in particular—

(a) the effect of an authorisation;

(b) the process for authorising arrangements, including making or carrying out—

(i) assessments and determinations required under paragraphs 18 and 19;

(ii) consultation under paragraph 20;

(iii) a pre-authorisation review (see paragraphs 21 to 23);

(c) the circumstances in which an independent mental capacity advocate should be appointed under paragraph 39 or 40;

(d) the role of a person within paragraph 39(5) (an “appropriate person”) in relation to a cared-for person and the effect of there being an appropriate person;

(e) the circumstances in which a pre-authorisation review is to be carried out by an Approved Mental Capacity Professional under paragraph 21;

(f) the right to make an application to the court to exercise its jurisdiction under section 21ZA;

(g) reviews under paragraph 35, including—

(i) when a review will be carried out;

(ii) the rights to request a review;

(iii) the circumstances in which a referral may or will be made to an Approved Mental Capacity Professional.

(3) The information must be accessible to, and appropriate to the needs of, cared-for persons and appropriate persons.

12B (1) Where arrangements are proposed, the responsible body must as soon as practicable take such steps as are practicable to ensure that—

(a) the cared-for person, and

(b) any appropriate person in relation to the cared-for person,

understands the matters mentioned in sub-paragraph (3).

(2) If, subsequently, at any time while the arrangements are being proposed the responsible body becomes satisfied under paragraph 39(5) that a person is an appropriate person in relation to the cared-for person, the responsible body must, as soon as practicable, take such steps as are practicable to ensure that the appropriate person understands the matters mentioned in sub-paragraph (3).

(3) Those matters are—

(a) the nature of the arrangements, and

(b) the matters mentioned in paragraph 12A(2) as they apply in relation to the cared-for person’s case.

(4) If it is not appropriate to take steps to ensure that the cared-for person or any appropriate person understands a particular matter then, to that extent, the duties in sub-paragraphs (1) and (2) do not apply.

(5) In this paragraph “appropriate person”, in relation to a cared-for person, means a person within paragraph 39(5).”

This amendment inserts new paragraphs 12A and 12B of the new Schedule AA1 to require responsible bodies to publish information about authorisation of arrangements under the Schedule and to take steps at the outset of the authorisation process to ensure that cared-for persons and appropriate persons understand the process.

Amendment 25, page 12, line 32, after “practicable” insert

“and appropriate, having regard to the steps taken under paragraph 12B and the length of time since they were taken,”.

This amendment amends the duty in paragraph 13(2) of the new Schedule AA1 for a responsible body to take steps, as soon as arrangements are authorised, to ensure that cared-for persons and appropriate persons understand matters relating to the authorisation, to reflect the fact the body may have already have done that very recently under new paragraph 12B (inserted by Amendment 24).

Amendment 26, page 12, line 33, leave out from “any” to “understands” in line 34 and insert “appropriate person”.

This amendment amends the duty in paragraph 13(2) so that the duty to ensure that cared-for persons and appropriate persons understand matters relating to an authorisation does not also apply to independent mental capacity advocates (who can be expected to understand those matters) in line with the new duty in paragraph 12B (inserted by Amendment 24).

Amendment 27, page 12, line 34, leave out from “understands” to end of line 5 on page 13 and insert

“the matters mentioned in paragraph 12A(2)(a), (c), (d), (f) and (g) as they apply in relation to the cared-for person’s case”.

This amendment aligns the description of matters that must be explained to the cared-for person and any appropriate person with the list of matters in new paragraph 12A (inserted by Amendment 24).

Amendment 28, page 14, line 46, at end insert—

‘(1A) The person who makes the determination need not be the same as the person who carries out the assessment.”

This amendment makes it clear that a determination need not be made by the same person who carries out an assessment. A person could, for example, make a determination based on an assessment carried out previously by a different person (paragraph 18(6) of the new Schedule AA1 allows for this).

Amendment 29, page 14, leave out lines 47 and 48 and insert—

‘(2) The appropriate authority may by regulations make provision for requirements which must be met by a person—

(a) making a determination, or

(b) carrying out an assessment,

under this paragraph.

(2A) Regulations under sub-paragraph (2) may make different provision—

(a) for determinations and assessments, and

(b) for determinations and assessments required under sub-paragraph (1)(a) and determinations and assessments required under sub-paragraph (1)(b).”

This amendment provides power to make regulations setting out requirements which must be met for a person to make a determination or carry out an assessment. The requirements will relate to matters such as knowledge and experience. Different requirements may be set out for a person making a determination than a person carrying out an assessment.

Amendment 30, page 15, line 12, after “the” insert “determination or”.

This amendment is consequential on Amendment 29.

Amendment 31, page 15, line 14, after “the” insert “determination or”.

This amendment is consequential on Amendment 29.

Amendment 32, page 15, line 16, leave out “The” and insert “An”.

This amendment is to make it clear that the assessment being referred to is an assessment on which a determination under the paragraph is made.

Amendment 33, page 15, line 32, leave out “made on an assessment” and insert

“by a person, who meets requirements prescribed by regulations made by the appropriate authority, made on an assessment by that person”.

This amendment is to make it clear that a determination required under paragraph 19 of the new Schedule AA1 must be made by the same person who carries out the assessment on which that determination is based and that person must meet requirements set out in regulations.

Amendment 34, page 15, leave out lines 38 to 44.

This amendment is consequential on Amendment 33.

Amendment 35, page 15, line 46, leave out from “16,” to “by” in line 1 on page 16 and insert

“a determination may not be made”.

This amendment is consequential on Amendment 33.

Amendment 36, page 16, line 7, leave out “assessment” and insert “determination”.

This amendment is consequential on Amendment 33.

Amendment 37, page 16, line 9, leave out “assessment” and insert “determination”.—(Caroline Dinenage.)

This amendment is consequential on Amendment 33.

Amendment proposed: 49, page 16, line 12, leave out from “out” to the end of line 16, and insert “by the responsible body.”—(Barbara Keeley.)

This amendment would require the responsible body to carry out the consultation in all cases.

Question put, That the amendment be made.