Mental Capacity (Amendment) Bill [Lords]

Fiona Bruce Excerpts

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

There is still much to do to improve this deeply flawed Bill. I hope that the Minister and other hon. Members will take this opportunity today to improve the Bill by passing our amendments so that we can improve the safeguards for vulnerable people.

[Fiona Bruce (Congleton) (Con)]

I rise to support the Bill and, in particular, to speak in favour of Government amendments 24 and 33.

Before I do so, let me respond to some of the points that have already been made. First, with regard to the timescale in which the Bill is being taken forward, there has been plenty of opportunity for colleagues to look at its details. I draw Members’ attention to the fact that there have been not just one but two detailed reports on this issue by the Joint Committee on Human Rights, one in June 2018—our seventh report of this Session—and then, in October 2018, our 12th report, in which we considered the draft Bill in some considerable detail. At that point, we welcomed the recommendations of the Law Commission. Of course, the Law Commission had itself been some three years in preparing its recommendations, so the Bill can hardly be described as rushed.

[Steve McCabe]

Does the hon. Lady recognise that the Law Commission objects to the fact that its recommendations were not taken up by the Government when they constructed the Bill?

[Fiona Bruce]

I was about to say that the Joint Committee welcomed the Law Commission’s recommendations because they clearly highlighted the need for changes to be made.

As we pointed out in our seventh report, as far back as last June, the Cheshire West case that the Minister mentioned had resulted in a 10-fold increase in the number of DoLS applications. That is why there has been such a backlog. That case placed extreme pressure on local authority resources. Some 70% of the almost 220,000 applications for DoLS authorisations in the year up to our report were not authorised within the statutory timeframe. Consequently, many incapacitated people continued to be deprived of their liberty unlawfully. Those responsible for their care, or for obtaining authorisations, were having to work out how best to break the law. That is completely unacceptable, and it is why this Bill needs to brought forward in a timely way.

There also needs to be, as the Committee recommended in our 12th report, a definition in the Bill. I hear colleagues’ reservations about that definition, but, as we said—I am glad that the Government took up our recommendation—that it is important to give cared-for people and their families, and professionals, greater certainty about the parameters of any scheme so that we can ensure that scrutiny and necessary resources are directed where needed. We said:

“It is undeniable that any definition in statute may be refined by future case law”.

That remains that case. None the less, not to have endeavoured to provide a definition would, we believe, have been wrong.

Having made those preliminary comments, I will speak in more detail about amendment 24 and expand on the remarks made about the importance of family engagement and keeping the family informed. Information for the family and those who care deeply about the welfare of the person is the cared-for person’s greatest safeguard against exploitation and bad care. It is paramount that families have a role to play in their relatives’ care planning, wherever that is desired by the cared-for person, not least by giving them the option to stay fully informed and to object to proposed plans if they are not satisfied.

Families can play an important role in monitoring care if they are given sufficient information. The care itself is important. The quality of care will vary between and within care homes, but monitoring the care plan is essential to ensure that the cared-for person’s dignity is maintained. The cared-for person’s quality of life depends on how they are treated day in, day out and whether they receive care in a way that enhances their personal dignity or whether, sadly, they are treated less well.

Families are well equipped to monitor care, but only if they are kept informed. That is why I support amendment 24, which improves access to information for the cared-for person and their appropriate carers and supporters, which may well include their family. The requirement for information to be

“accessible to, and appropriate to the needs of, cared-for persons and appropriate persons”,

means that the cared-for person is placed at the heart of the liberty protection safeguards authorisation process. Not only that, but now that relatives can be informed about their loved one’s care plan, they will notice if the plan states something that is not happening and question why.

I am pleased to see that the amendment requires the publication of information on the cared-for person’s rights and the circumstances in which it might be appropriate to request a review or make an application to the court. People must know what their rights are and the legal procedures. This will not be costly. It will certainly be far less costly than the court cases that are likely to come if the requirement to provide information about all aspects of the process and the plan are not on the face of the Bill. It will save costs in the long term and ensure that the approved mental capacity professionals act always as they should.

The code of practice will play an important role. It would be helpful to see examples of family members working with the responsible bodies and the care teams to ensure that care plans are being delivered appropriately and are in the best interests of cared-for individuals. I am sure we all want to see that.

I turn to amendment 33. In the JCHR’s 12th report, we indicated that there has been concern as to

“whether care home managers have the necessary skills and knowledge to arrange or undertake the assessments and whether they are sufficiently independent to do so”

and whether care home managers are

“trained and resourced to take on these additional responsibilities.”

It is heartening to hear that the Government have listened and are clearly stating that care home managers and staff should not, and under these proposals will not, complete assessments. It is equally heartening that the Government, having listened to concerns expressed in Committee, are saying that all those doing such assessments must have the necessary skills, knowledge and qualifications—for example, as physicians, nurses or social workers—and that that will be specified in regulations. I want Ministers to put in place appropriate arrangements to assess whether implementation of this element of the Bill is working well—for example, to ensure that specifications of required qualifications and the experience of assessors are kept updated and that the revised system is working well and without difficulty in practice.

Ministers might consider taking up the recommendation in the JCHR’s 12th report that particular vigilance should be exercised by local authorities where care homes are rated by the CQC through an inspection as inadequate or requiring improvement, to ensure that those who are making referrals are properly competent to do so.

--- Later in debate ---

[Fiona Bruce]

The hon. Gentleman keeps talking about human rights, but what answer does he have for the fact that up to 125,000 people are currently being unlawfully deprived of their liberty, in breach of article 5 of the European convention on human rights? That is the problem that the Bill seeks to rectify.

[Mr Dhesi]

I thank the hon. Lady for her intervention, but in terms of human rights, this issue is being raised not just by me, but by more than 100 pre-eminent organisations in the field. The only way to solve that is through funding—that is the only way in which we can lay this matter to rest. The hon. Lady highlighted the 2017 Law Commission review of the deprivation of liberty safeguards, which stated that the current regime is

“in crisis and needs to be overhauled.”

I agree. There is a crisis and the current system cannot cope, but surely the answer is not to replace bad laws with yet more bad laws, and that is what we are in danger of doing.