Mental Capacity (Amendment) Bill [HL]

Lord Hunt of Kings Heath Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have added my name to the amendment tabled by the noble Baroness, Lady Hollins. As she eloquently said, the puzzle relates to paragraph 17 of new Schedule AA1 on consultation, which references those who must be consulted. The aim of the consultation is,

“to try to ascertain the cared-for person’s wishes or feelings in relation to the arrangements”,

but the paragraph does not specify that the cared-for person must be consulted. The Minister might just refer me to Section 4 of the Mental Capacity Act and say that it is covered there, but so are the provisions in sub-paragraphs (a) to (e) in paragraph 17(2)—they are all listed in the best interests test. Therefore, the puzzle is why the Government have decided that there should be no attempt, at least in statute, to seek the cared-for person’s wishes and feelings. We are already concerned that these measures are not focused on the interests of the cared-for person; they are about streamlining bureaucracy and saving money, and this rather lends to that suspicion. I hope that the Minister will be able to agree to the noble Baroness’s amendment, because it is a very important symbol of what this is really all about.

[Baroness Thornton (Lab)]

My Lords, this group of amendments tests the proportionate nature of the decisions being taken. Amendment 29 would put the views of the cared-for person at the centre of the assessment and ensure that adequate weight was given to their wishes and feelings. I have not been able to find in the Bill where that is expressed, and that is shocking and surprising. We have to see a clear statutory duty to consult the cared-for person, and the scope of that consultation must include their past wishes, feelings, values and beliefs. I invite the Minister to tell me whether he believes that the Bill as it stands achieves that, because I cannot see that it does. If this amendment is not agreed to, the Minister and the Bill team must think about how they can best make sure that the Bill reflects the need for consultation with the cared-for person.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)]

I thank noble Lords for tabling their amendments and for contributing to a debate that has continued the discussion that we had before dinner. It again gets to the heart of why we are here, which is to make sure that when people need to be deprived of their liberty, it is in their best interests to do so and that the restrictions are proportionate and necessary and so on.

I agree with the spirit of the amendments. It is important that we intend to, and do, safeguard the well-being, wishes and feelings of the cared-for person. Dealing with the first set of amendments, I take this opportunity to reassure noble Lords that the changes being sought are already required by law in several ways.

First, the European Court of Human Rights has made it clear that a decision on whether arrangements are necessary and proportionate must include consideration of the cared-for person’s wishes and feelings about the arrangements. It should also be noted that, as the noble Lord, Lord Hunt, pointed out, wishes and feelings are already a part of the first-stage best interests decision-making under Section 4 of the Mental Capacity Act and I can confirm, as I have done already, that the Bill does not change this. Furthermore, wishes and feelings will also be considered as part of the “necessary and proportionate” test, and the code of practice will provide further detail about how that will work in practice.

Going even further, as has been referenced by several noble Lords, we have created in this Bill a specific requirement to ascertain a person’s wishes and feelings in relation to the proposed arrangements through the duty to consult with anyone with an interest in the cared-for person’s welfare—first and foremost the person themselves, as well as their family, carers, friends, advocates, interlocutors or anybody with a substantive interest in their care. I believe that there is substantial legal protection, force and direction to make sure that the person’s wishes and feelings are considered first and foremost in any of these kinds of arrangements. As this debate has demonstrated, there are clearly lingering concerns that that is not the case, because of the existing framework, notwithstanding the enhancements through the duty to consult that we are introducing. However, I am eager to make sure that it is well understood, and to work with noble Lords so we can make clear that those responsibilities already exist, both in statute and—

[Lord Hunt of Kings Heath]

I understand the Minister’s argument, were it not for the fact that the amendment, in paragraph 17(2)(a) to (d), just copies what is already in the best interests clause. I would argue that, if we are going to copy four of those, why do we not copy the issue about the cared-for person being listened to? The Minister is arguing different points from amendment to amendment on this.

[Lord O'Shaughnessy]

We try to be consistent, but it is not always possible. The noble Lord makes a good point; it is something that I would like to explore further.

Turning to the matter of considering less intrusive arrangements, again this is incredibly important. Case law establishes that the test of whether the arrangements are necessary and proportionate must also include consideration of whether less intrusive arrangements are available and have been fully explored. As we discussed in the last debate, it is already a principle under the Mental Capacity Act. The code of practice will provide further detail about how that will work in practice.

This has been a useful debate, continuing, in some ways, the previous debate on best interests. As we have all agreed, it is important that the person’s wishes and feelings are at the centre of arrangements being proposed. That is certainly our intention through the liberty protection safeguards scheme that we seek to introduce. I want to continue working with noble Lords over the coming weeks to make sure that there is clarity that that is the case. I hope that on that basis, the noble Baroness will be prepared to withdraw her amendment.

--- Later in debate ---

[Baroness Hollins]

My Lords, Amendments 11, 12 and 13 deal with a perceived conflict of interest pointed out by numerous charities and care providers with regard to the role that care home managers are intended to play under the Bill. As drafted, the Bill places a new duty on care home managers to carry out the assessments and consultation prior to authorisation. My amendments would ensure that the duty for carrying out assessments resides with the responsible authority, with a retained duty to involve care home managers in carrying out those assessments.

I raise a puzzle that I have. I have been trying hard to get my head around some of the possible unintended consequences of the way in which we think about care homes and care home managers and the relationship between the different kinds of care and support that are provided. Some services, with great encouragement from local authorities, have been trying to convert their residential care homes into supported living houses. That has been the trend. Often, these new supported living houses are located on the same site as the remaining residential care homes or in the same area but with the same organisation running them and the same chief executive. Sometimes, the registered care home manager is not only the care home manager for the residential side but is also the manager for the supported living homes. They are located on the same site, close together and within the same organisation within the same management structure, but the organisation will have two different systems for authorising the provisions of the Act, which will be very confusing for it.

I wonder whether there might be a perverse incentive for adult social care to reverse its previously encouraged trend towards supported living, to reduce its administrative burden and to register more care homes. This seems to be a backwards step when, in times of personalisation, we want to move more people to settings that are not registered care homes, but are more supported and likely to take note of their personal wishes, if that is not too much of a conundrum. It is one of the real puzzles I have been struggling with over the Bill.

The whole ethos of DoLS was that those making the decisions about deprivation of liberty were independent of those providing care to the person, and that independent assessment is an important safeguard. More specifically, the new arrangements raise concerns that a number of stakeholders have pointed to. For example, it can be easier to care for someone by placing more restrictions on their freedom. It is harder to support them in the least restrictive way possible and to maximise their choice and freedom. We know that health and social care professionals are naturally risk-averse and, if there are some possible risks, they will often choose the perceived safer, albeit more restrictive, option over increasing liberty.

I believe the vision, which is great, is to integrate decisions about liberty protection safeguards and deprivation of liberty into care planning. This means that, at the point of making decisions about placement, decisions about restrictions are also considered, with a view to seeking the least restrictive option. This makes sense, but I do not see how this can happen if the care home is making the determination. It is already a done deal that the cared-for person is going to be in that care home. Their care manager will be looking at the arrangements within the care home. They are unlikely to say that the person would be better off and able to have more freedom in a different setting—for example, a supported living setting. There is a bit of a conflict of interest here.

Currently, the care provider feeds into the DoLS assessment, sharing their expertise as a provider. That is a different role and skill set from making decisions about necessity and proportionality. Consulting with relevant people is a different role from being one of those consulted. The assessments are complex and this new role is being placed on care managers who, by definition, have a different skill set. The sector is trying to deliver care for people who, in many cases, have complex needs and require intensive support to live as independently as possible. I am interested to know what conversations the Minister and officials have had with those upon whom this new duty would fall, as I suspect they will have raised many similar concerns.

Perhaps it is worth reflecting on the judgment by Lady Hale in the Cheshire West case. In speaking about the extreme vulnerability of the people concerned, she said:

“They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the deprivation-of-liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us”.


I wonder whether this paperwork exercise for non-objecting people is what she envisaged as an independent check. In his response, I would appreciate the Minister’s view on whether he sees a conflict of interest here and whether he agrees that the assessment should be carried out by someone independent of the care home, and who that should be. I wonder if we need to make more use of service brokers to do the care planning, listen to the person’s wishes and ensure that the decisions made lead to an effective care plan. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I have added my name to that of the noble Baroness. She has succinctly put forward the case for the removal of care home managers from this important position, and at this point, I am very supportive of that. While we debated this issue earlier, I want to come back to a point raised then. The argument was put that we ought not to worry because the local authority remains the body that approves authorisations; it will provide independent scrutiny and oversight. I have already referred to the fact that the impact assessment treats this essentially and mainly as a desktop exercise, but my advice from Professor Lucy Series of Cardiff University is that unless care home managers themselves indicate that an AMCP referral is required, all the responsible body will be able to make the decision on is the information supplied by those care home managers. She states that that is a very weak independent safeguard, and indeed it is when care managers have a financial interest in these decisions. That is why this arrangement simply cannot be allowed to stand.

The other thing I would point out to noble Lords is the evidence I received on Monday from ADASS, the association of Directors of Adult Social Services. Like everyone else, it supports the overall thrust of the Bill—there is no question about that—but it has some concerns relating chiefly to the expectation that care home managers will be responsible for the assessments required to authorise the deprivation of a person’s liberty. It says that it is in discussions with the Care Quality Commission and the Care Provider Alliance, which both have similar concerns. That answers the point raised by noble Lords about where the CQC stands in relation to this. I am not surprised that the CQC has concerns because of the very difficult challenges it faces in the care sector generally. One has to think carefully about whether adding to its responsibilities is the right course of action.

ADASS has stated:

“Whilst registered care providers have previously been required to assess individuals, to determine that they can meet the person’s needs and to undertake care planning, they have not been required to assess to protect people’s liberty. Planning Care and assessing whether deprivation of liberty is in a person’s best interest when they are unable to decide for themselves are very different things. ADASS therefore believe this to be a new activity, requiring new skills and resources. We have real concerns relating to a) care home capacity, b) care home staff competence, c) perverse incentives and potential conflicts of interest, d) additional cost (for training and additional capacity) and e) whether and how such costs will be resourced”.


Noble Lords who know those at ADASS will know that they do not make such statements without very good evidence. The noble Baroness is proposing in her amendment to take out the reference to care managers, and my assumption is that the role of assessing will be restored to the local authority, which of course was in the Law Commission’s original plan. From what I have heard, surely we have to stick to what the Law Commission proposed.