Mental Capacity (Amendment) Bill [HL]

Lord Hunt of Kings Heath Excerpts

Report: 1st sitting: House of Lords
Wednesday 21st November 2018 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I welcome the replacement of “unsound mind”, but I ask the Minister to consider adding a safeguard to ensure that no one has their liberty denied because of a mental disorder without first being seen by a qualified doctor. It is essential that individuals are assessed for a mental disorder and not another condition presenting as a mental disorder, such as delirium or the side-effects of medication, which are common among older people. It is important that consideration is given to whether the disorder can be managed without depriving the person of their liberty. This requires assessment not only of their mental state but of their past and current physical health and medication. The assessment is a core part of this process. It has great significance because it relates to the deprivation of a person’s liberty. Who can carry this out should be stipulated in the Bill rather than in a code of practice. I ask the Minister to reconsider bringing forward an amendment to add this requirement to the Bill.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I support the noble Baroness on the assessments. The Minister’s amendment is very welcome, but clearly the assessment is crucial. My understanding is that in previous debates, as the noble Baroness suggested, he said that the code of practice will set out which competencies will be needed to carry out this assessment. Like the noble Baroness, I ask him to consider, perhaps between now and Third Reading, whether this might be better put in regulations than in the code of practice. I always worry a bit about the use of “competencies”. It is a word now used in many recruitment processes, but what exactly does it mean? Will it be done by a registered medical practitioner with sufficient expertise in this field? If not, what is the justification? The change the Government have made is enormously welcome, but it is very important that we are confident the assessment will be carried out appropriately.

[Lord Touhig]

My Lords, this group of amendments is most welcome. The term “unsound mind” is offensive in the extreme and historically has been used as a form of abuse to demean the dignity of the person to whom it is applied. These amendments mean that this old-fashioned term will no longer be in the Bill and that a phrase with no clinical meaning is rightly removed. Using the same term as the Mental Health Act, “mental disorder”—this link is explicitly made by the Government in Amendment 12—provides better diagnostic clarity.

Amendments 25 and 50 in the names of my noble friend Baroness Thornton and the noble Baroness, Lady Jolly, change “unsound mind” to,

“any disorder or disability of the mind”.

The Minister responded to those points in his opening speech. This is the language currently used under the DoLS in the Mental Health Act and it is to be welcomed.

Perhaps I may share with the House my personal experiences. My late mother suffered two nervous breakdowns in her life. One occurred before I was born, when she was put into an institution, where I do not think she was well treated. Later, she suffered a further breakdown when I was 16 and I had to take the lead, coping with and co-ordinating help and support for her, my father and our family. The consequences of her breakdown that I witnessed were traumatic not only for my mother, who was a loving, kind and thoughtful individual, but for our family, who witnessed times when she seemed to grow away from us.

My mother made a recovery and we all came through it, thanks to the devotion and understanding of our family doctor, our wider family and friends. However, our family experience has given me an understanding of some of the consequences of mental illness for individuals and their families. Families who experience what mine went through need support and understanding to cope, which is why I welcome the amendments.

I have said that the term “unsound mind” is used to cover many things. It is one that personally I find offensive, and I rejoice that those words are being removed from the Bill.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My Lords, there is a tone of disappointment because I welcome all the government amendments, but the role of my amendment to government Amendment 52 was twofold. First, I am disappointed that speech and language therapists were not in that list read out by the Minister, because we had a debate about the importance of communication skills. When communication is impaired, particularly with disorders that affect any part of the speech or throat cycle, it is very difficult to assess someone’s capacity.

I included skills because I worry that experience and knowledge are sometimes just not enough. If the Government insist on “skills” going into the code of practice, I hope that the Minister will be able to confirm that the skills will be assessed and reviewed at appraisal, and that they demonstrate an understanding of the impact of fear—being frightened—on the way the person behaves.

The assessors must have a high level of communication skills and awareness of all the different ways that communication can be enhanced. I hope that they would also have an awareness of the impact of different types of medication on someone’s capacity, because sometimes changing the medication can really improve a person’s ability to make a decision for themselves.

Amendment 53 links to Amendment 74, which is in my name and will come up later. I am concerned that, without strong reassurance, some of these issues could slip by and we could inadvertently end up having superficial assessments of some people and not the thorough and in-depth ones they deserve. The whole principle of the Mental Capacity Act is to empower people to make their own decisions, and we are talking about trying to have the least restrictive option so that we can enhance a person’s liberty as much as possible. If that assessment is not meticulous with the appropriate skills, the wrong judgments could end up being made.

[Lord Hunt of Kings Heath]

My Lords, I realise that in the last group I mentioned general medical practitioners. I ought to inform the House of my forthcoming appointment to the General Medical Council.

We have had a lot to read in the last few days, and are clearly going to have to take a lot of this on trust, but the thrust of the amendments is welcome, and I am grateful to the Minister for tabling them. As he said, they strengthen the role of local authorities and give them a clear remit to intervene where they feel that, for one reason or another, the care home manager cannot discharge the responsibilities given in relation to the authorisation application appropriately.

In the letter that the Minister sent to a number of noble Lords, he set out factors that might be considered by the local authority as a responsible body. These would be:

“Whether the person has a care plan with the responsible body … local intelligence about a local provider of care homes”,


which would suggest that the responsible body takes over the process;

“insight from local commissioners or concerns about performance … sustained absence of a registered manager”—

or presumably when the turnover of managers is high, as it can be; and—

“an increase in concerns raised by residents, their carers or families … a new service or category of care provision, and/or … provision of poor or incomplete statements”.

To me that sounds very comprehensive and welcome.

What arises from this is that the responsible body will have to make a considerable judgment and, to make it, will need a very clear understanding of the care homes in its area. Could the Minister say a little about how he thinks that local authorities might be supported in that role? Clearly, they now have a major role which they have found it hard to discharge, for reasons that have been discussed. It is important they are able to do this in a consistent way.

The Minister mentioned the code of practice. It is a statutory code of practice, which I think means that it must be followed unless the local body has very good reason not to do so. It would be interesting to know what plans the department has for checking with the local authorities—not in a heavy-handed way—how well it is going after time and implementation, and seeing whether there is consistency across the country as a whole.

[Baroness Barker]

My Lords, I too welcome the Government’s change of mind. They started with a very different understanding from ours of the current roles of care home managers, local authorities, best-interests assessors and DoLS assessors. I think we still have a difference of opinion about how life works in practice, but these amendments show a considerable movement, if not complete agreement on that part, and therefore we welcome them. I feel it is right to remind the Minister that when the Select Committee of your Lordships’ House did the post-legislative scrutiny on the Mental Capacity Act and its workings five years after its implementation, there was an overwhelming lack of information and data both in local authorities and throughout the health service. I rather think that we have been perhaps unnecessarily preoccupied in this Bill with who carries out a particular function rather than looking at the way those functions could possibly be streamlined and better audited.

I do not think that the work of a local authority best-interests assessor or a DoLS lead, however they may be termed under the new scheme, is actually going to change that much, but I welcome the attempt here to meet us half way, and I thank the Minister for that. Well, perhaps it is more than half way in terms of our assessment that what was being asked of care home managers was beyond their capacity to deliver. Big questions still need to be asked about their role in the overall scheme. If we had not spent quite so much time on this, we might have been able to look more closely at greater efficiencies in terms of reporting and so on. For the moment, however, I welcome these amendments.