Mental Capacity (Amendment) Bill [Lords]

Liz Twist Excerpts

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

[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.

--- Later in debate ---

[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.