Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

2nd reading (Hansard): House of Lords
Monday 16th July 2018 Lords Chamber

Moved by

[Lord O'Shaughnessy]

That the Bill be now read a second time.

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

My Lords, treating people with respect and dignity, no matter what their disability or condition, are touchstones of our civilised society. Those are virtues that we all seek to promote, but sometimes, even with the best intentions, they do not always materialise. For that reason, the Government have now introduced legislation to reform and improve the current deprivation of liberty safeguards system. It is fitting that we do so in the month when we celebrate the 70th anniversary of the NHS, an institution founded on those and other virtues, which have sustained it as one of the most successful and respected health and care systems in the world.

Deprivation of liberty safeguards seek to empower and protect vulnerable people in our society by ensuring that any deprivation of the liberty of people who lack capacity is always in their best interests. It is a step that is never taken lightly and always with the intent to prevent harm to the individual. Even in cases where a person who lacks capacity is unable to make decisions, there is an express duty for all involved to consider their views and wishes as far as they can be determined. Despite the existence and undeniable necessity of these protections in our society, the deprivation of liberty safeguards system as it stands today is overly technical and legalistic, placing significant burdens on people and their families. It too often fails to achieve positive outcomes for those at the heart of this process, and we too often hear that individuals, families and their carers are experiencing a process that feels “done to them” rather than with their full consent and engagement. People’s voices, and those who care for them, are not being heard; this needs to change.

What is more, report after report has provided strong evidence of the strain the system is under and of unacceptable inefficiencies. It is costly and cumbersome, and in its current state is unable to process all the necessary applications to protect human rights. Last year, reports showed that more than 108,000 people were awaiting a deprivation of liberty safeguards application; again, this needs to change.

Many noble Lords have worked hard on this issue for years, and I would like to take the opportunity to thank them for continuing to shine a light on a system in urgent need of reform. In 2014, a House of Lords Select Committee published a detailed report which concluded that deprivation of liberty safeguards were “not fit for purpose”. Again in 2017, the chair of the National Mental Capacity Forum, the noble Baroness, Lady Finlay, for whose tireless commitment I am especially grateful—and I am delighted to see that her train got her here in time—reported that the current system was overly complex, excessively bureaucratic and costly. More recently, the Independent Review of the Mental Health Act: Interim Report, led by Professor Sir Simon Wessely, stressed the need for,

“an appropriate calibration between resources spent on delivery of care and those spent on safeguards surrounding the delivery of that care”.

We have listened and, following a Government commission, in March 2017 the Law Commission published a review of the deprivation of liberty safeguards and Mental Capacity Act. Over three years, the Law Commission sought views from a breadth of stakeholders, exposing the system’s struggles as well as looking at the process from a user’s perspective. The evidence, analysis and recommendations, drawn from across the system, have provided further impetus for reform. In March this year, the Government published their response to the report, accepting in principle the Law Commission’s model. Since the publication of the Law Commission’s review, the Government have continued to work closely with stakeholders and we have listened carefully to them to build on that model, streamlining it to focus on the crucial protections that this Bill seeks to mandate.

The Bill will reform the process so that it is less burdensome on people, carers, families and local authorities. Not only will it ease financial burdens throughout the system, creating significant savings of more than £200 million a year which will mainly fall to local authorities, but according to the Law Commission, it will also relieve local authorities of the significant legal liability burden of more than £408 million by removing the backlog of deprivation of liberty safeguards applications. It will introduce a simpler process with increased engagement with families and other carers, and afford swifter access to justice. It will ensure that any restrictions are proportionate and help to support cared-for persons to live as freely as they can by protecting their liberty. It will allow the NHS rather than local authorities to authorise the deprivation of liberty arrangements for its own patients, enabling a more streamlined and clearly accountable process in which the NHS has a clear role in helping to afford people their rights.

The Bill will make sure that consideration of restrictions on people’s liberties will be part of their overall care planning and considered from the earliest stages, rather than a bolt-on afterthought as under the current system. The Bill will also eliminate repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment. In the words of Law Commissioner Nicholas Paines QC:

“This new legislation … will go a long way towards addressing the flaws of the current system and better protect the most vulnerable in our society”.


The president of the Association of Directors of Adult Social Services, Glen Garrod, has also indicated support for the Bill, observing that:

“Once enacted, it is hoped that this law will help ensure the protection of liberty of all people who lack mental capacity more effectively and efficiently than under the present Deprivation of Liberty Safeguards”.


Finally, before beginning debate on the Bill, I want to recount the seminal case study that underlines the importance of the legislation before us. It illustrates the role that this law plays in our society when protecting and empowering people. It illustrates the need to put individuals, carers and family members at the heart of a system, and reminds us that the framework fundamentally exists to ensure that vulnerable people are cared for and looked after. A man—HL—came to live with Mr and Mrs E, his carers, under a resettlement scheme from Bournewood Hospital, where he had lived for 32 years. HL’s carers found it rewarding to see him benefit from living in a family setting. Gradually, he became more confident and progressed beyond all expectations. HL would attend a day centre once a week, to which he travelled with the centre’s transport.

However, on one occasion, the usual driver did not collect him from home. Rather than taking him straight to the day centre as normal, the driver took a different route. HL became increasingly agitated. The next thing Mr and Mrs E knew was that HL had been taken back into hospital and detained there. As HL cannot speak, he was unable to object. Mr and Mrs E were not allowed to visit him, apparently in case he wanted to leave with them. When HL returned after various legal proceedings he was “in a terrible state”, in the words of his carers. Eventually, a legal case brought to the European Court of Human Rights found that HL was being deprived of his liberty without the necessary legal safeguards. This ruling triggered the introduction of deprivation of liberty safeguards in 2009. The story emphasises the importance of this system and that a rights and person-centred approach is needed to deliver better public services for everyone. Up to 2 million people in our society have impaired capacity, so many of us in this Chamber will have had direct experience of it among our family and friends. It is essential that the system affords the necessary protections for the most vulnerable people.

To conclude, we have an opportunity to transform the deprivation of liberty safeguards process, improve access to human rights, support families, carers and individuals and reduce pressures on the health and care system. We have an opportunity to bring about change and I look forward to working with noble Lords to make sure that we use this opportunity to improve the welfare of some of society’s most vulnerable people. I beg to move.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

2nd reading (Hansard - continued): House of Lords
Monday 16th July 2018 Lords Chamber

[Lord O'Shaughnessy]

My Lords, I thank all noble Lords for an incisive, illuminating, at times technically complex but always wise debate, which has been a credit to the House. I will attempt to answer as many questions as I can. I will not try to cover all of them as we actually would be here all night, but I will have time to explore the major categories of issues. I hope noble Lords will indulge me as I do that.

I welcome my noble friend Lady Barran and congratulate her on a very passionate and moving speech. It is clear that she has already been a force for good in the world and we look forward to her bringing her singular qualities to the stage which she now fills with such great authority. I hope noble Lords also noticed the attendance for the first part of the debate of my honourable friend the Minister for Care, Caroline Dinenage, who obviously takes a close interest in this. She was at the briefing and we are working closely together to try to get the right Bill through this process.

I think the general tone of the debate was that there is a strong desire to reform the DoLS system and to end, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, pointed out, the lawlessness and the highly unsatisfactory current situation. My noble friend Lady Barran brought this to life. The truth is that the current system has overwhelmed local authorities and others. As the noble and learned Lord, Lord Brown, pointed out, Cheshire West has extended the definition to whom this should apply, such that the backlog of cases is now extraordinary. The only consequence of that is a denial of access to justice. The challenge we have in the Bill is to make sure that we do not have access to justice just in theory but that it actually happens, and it cannot happen if more than 100,000 people are getting it in theory but not in practice.

As somebody who was new to this before preparing for the Bill, the situation almost sounds too good to be true. We are going to extend the number of people who have access to safeguards but we are also going to stop the system being overwhelmed and save money. This is achievable because it is about introducing a proportionate system that reflects the needs and wishes of the people whom it is there to protect, rather than having a maximalist approach that in theory applies to everyone but in reality does not and is sometimes random in its application, which is clearly unacceptable.

As many noble Lords have pointed out, the system that we need to create must be patient-led. It needs to have proper oversight and to deliver that access to justice which we have discussed. Clearly, if, as the noble Baroness, Lady Finlay, pointed out, only one in 20 have benefited from the current system, it is highly inefficient. As many noble Lords also pointed out, there is a huge urgency here.

Many noble Lords pointed out the benefits of the new system. I will come to some of the challenges but, ultimately, this is about making sure that caring organisations take a more active role in the assessment of deprivation of liberty. Where they do so and integrate it into their care planning, we will provide a proper system of oversight and support for individuals deprived of their liberty in general but, specifically, for those who object, or whose families who care for them object. That is ultimately what we are trying to do and it is the intention of the Bill.

Several noble Lords, including the noble Baronesses, Lady Jolly, Lady Greengross and Lady Thornton, asked about our consultations to date. There have been very wide consultations but this debate has shown that there is much work to be done over the summer, not just with noble Lords but with stakeholder groups, to ensure that we are not only explaining the consequences of what is proposed—I think there are still some misunderstandings about that—but able to demonstrate the benefits and, critically, learn how we can further improve what is proposed.

I turn to some of the issues raised. Several noble Lords including the noble Lord, Lord Touhig, the noble Baronesses, Lady Barker, Lady Finlay, Lady Greengross and Lady Tyler, the noble and learned Lord, Lord Brown, and the noble Baroness, Lady Murphy, talked about the absence of a statutory definition. I can tell the House that we are aware of that and are listening particularly to the recommendations of the Joint Committee. However, the debate demonstrated some disagreement over the right way forward. There are various options, such as definitions in the Bill or through a code of practice, but we clearly need to get to an answer in order to proceed.

We have talked about wanting a system that has the person’s wishes and best interests at the heart of the process. That was raised by the noble Lord, Lord Touhig, and endorsed by the noble Baronesses, Lady Barker, Lady Finlay, Lady Greengross, Lady Meacher, Lady Browning and Lady Hollins. It is absolutely right for us to be clear that there is no watering down of the interests of the individual concerned through this process. As the noble Baronesses, Lady Barker and Lady Finlay, pointed out, capacities can fluctuate; as the noble Baronesses, Lady Browning and Lady Hollins, pointed out, they can also be varied—strong in one area and weak in another. Any system needs to take account of that and I can tell the House that it is absolutely not our intention to water down the role of a person’s expressed wishes. The best interest test still applies absolutely in the care setting, but the necessary and proportionate test is to account for those cases where a person may wish to do something regarding their liberties which is contrary to their best interests for their individual care. Striking that balance and making sure that there is proper oversight, with proper advice for people who are unable to enunciate their own wishes, is at the core of getting the Bill right.

As noble Lords have also pointed out, getting the Bill right is actually about getting a statutory code of practice right. It is out of date and there is a degree of urgency about improving it. I will return to that in a moment but, in talking about the statutory definition, I will finish on the power of attorney and the role of families. They still have primacy under the Mental Capacity Act, the principles underpinning which still apply. It will not be possible to deprive a person of liberty when the attorney acting on their behalf has stated that their best interests are served otherwise. I want to make that clear but it is something that we will need to explore and explain better. Attorneys will be part of the group that is to be consulted, and the Bill creates an explicit requirement for further consultation with families. Family members can also act as appropriate persons, so I think there is a greater strengthening of the role of those acting on behalf of a person deprived of their liberty in the process of scrutinising that and making sure that it is done appropriately.

[Baroness Barker]

If this matter is unclear to some of us who can claim to be fairly well informed on it, clearly, there has been a communication problem. Might I suggest to the noble Lord that it would be enormously helpful—as it has been in similar situations—to have a copy of the Act, as amended by the Bill, for us and interested parties to look at? Believe me, it makes the whole business a great deal clearer and easier to understand.

[Lord O'Shaughnessy]

That is an excellent suggestion. I should be clear: any confusion comes from a failure to communicate on our behalf, rather than there being any suggestion that noble Lords who are extremely expert on this do not understand what is proposed. There is a need to explain better exactly how all this will work in practice.

Obviously, the system depends on the quality and independence of the reviews, assessments and authorisations that take place; that issue was particularly raised by the noble Lord, Lord Touhig, and the noble Baroness, Lady Hollins. There were also questions asked by the noble Baronesses, Lady Tyler, Lady Murphy, Lady Jolly and Lady Thornton, about the capacity of those carrying out assessments in local authority care homes, the NHS and so on to do them properly and in a way compliant with the law. I agree with noble Lords that in the coming weeks we will need to set out much more clearly how that independence support and those assessments will be staffed and provided, making sure that there are sufficient resources and proper training. I am reassured that training in the implications of the Mental Capacity Act is part of medical training, and that there are Health Education England resources for that. Clearly, all that will need to evolve as we go through this process and the Act itself is amended.

The noble Baronesses, Lady Barker, Lady Greengross, Lady Tyler and Lady Murphy, and the noble and learned Lord, Lord Brown, asked about the interaction with mental health legislation and whether we should have delayed publication. The noble Baroness, Lady Tyler, described a tension between the two Acts. We are conscious of the interface—that is the term used—but there is an urgency to reform the system, notwithstanding its interaction with the Mental Health Act. We do not yet have a timescale on completion of the review and any subsequent legislation that might be required. There has been lots of talk about the work to reform—the committee, the Law Commission, the Joint Committee and so on—and we need to get on with this, cognisant all the time that subsequent changes may need to be made once we have the outcome of the Mental Health Act review. It is not in my gift to promise time for legislation in the future but we are cognisant of the need to make sure that our interface works, once we have the review itself completed.

Several noble Lords asked why the Bill does less than the Law Commission. We could spend a lot of time going through that, but I do not propose that we do so at this point. We can achieve non-legislatively several of the Law Commission’s proposals; it is made up of lawyers, so they prefer law but there are other ways of doing things. One of the key issues raised is the Bill’s not applying to 16 and 17 year-olds. There is clearly an important interplay here with the education, health and care plan process, but I have listened to noble Lords on the subject today and shall reflect on whether we can do something about it.

The code of practice was raised by the noble Baronesses, Lady Finlay and Lady Greengross, and my noble friends Lady Barran and Lady Browning. Getting it up and running quickly is critical. Detailed work is going on, and we need to be very specific in it to provide reassurance about how it will work. Unfortunately, I do not have a timetable yet for its production, but I will endeavour to get hold of one. We need to make sure that its implementation is properly resourced. The CQC will continue to inspect its implementation, so there will still be that quality oversight.

A few other issues were raised. Many noble Lords referred to “unsound mind” being an unhelpful and, frankly, out-of-date phrase. I do not disagree. The concern here is the interaction with the jurisprudence and the ECHR itself. If we were to move on that—I make no commitment at this point—we would need to think it through very clearly, but I would like to explore it.

The noble Baronesses, Lady Barker and Lady Jolly, asked about legal aid. I can confirm that it is, and will still be, available on a means-tested basis. The noble Baroness, Lady Meacher, and my noble friend Lady Browning asked about advance consent—an issue that the Law Commission also raised. Again, there is an important distinction to be made here between an advance decision to refuse treatment, which will continue to be respected and is untouched, and advance consent to a future deprivation of liberty. Although that was in the Law Commission report, officials engaged in the process indicated that this did not receive support from families. There was a concern that you could sign yourself up to being deprived of your liberty at some point in the future, so it did not garner support. Perhaps it was the wrong subset or sample of people; nevertheless, we need to consider the best way forward on that.

Finally, the noble Baroness, Lady Thornton, asked about the equality impact assessment. I do not have an answer at this stage about why it was not carried out but I will endeavour to get one.

To conclude, I hope that I have been able to summarise the main issues and topics. Clearly, there are some very big questions that still need to be answered, but I return to the point that my noble friend Lady Browning made, which is that we need to solve the problems this time. We cannot introduce another Bill or piece of legislation that just creates a problem three years down the line. It is not just about the Bournewood gap; it is about making sure that we avoid, and do not create, any other gaps. The words “nightmare” and “disaster” have been used to describe the current system, and that is why we need to act now, but clearly we need to act in such a way that we do not create another problem further down the line.

It has been clear from this debate that there is still much work to be done to provide the right kind of reforms that we all want to see. Looking at the Chief Whip, I am sure that we will have adequate time in Committee to make sure that the Bill is in the best possible shape. We saw a nod of the head from the chief, so that is good. This debate has demonstrated—the noble Baroness, Lady Thornton, said as much—that there is no group of people better qualified to improve this legislation and make sure that we get the right reforms. I look forward to engaging with noble Lords and others throughout the coming months to make sure that we can achieve that and deliver a Bill that provides for people deprived of their liberty the fair and proportionate access to justice that we all want to see.

Bill read a second time and committed to a Committee of the Whole House.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

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

[Baroness Barker (LD)]

My Lords, I apologise for being slightly late. I was taken by surprise at the swiftness with which we concluded our previous business.

I thank the noble Baroness, Lady Finlay of Llandaff, for many of the points that she made in her speech. It took a lot of work to get the concept of an advance statement on wishes into this legislation, and I, like her, regret that it has not been more widely adopted or accepted, particularly by the medical profession. She will know that when the Select Committee reviewed the legislation, one of the biggest disappointments was the extent to which the Mental Capacity Act had not been understood by the medical profession. She will perhaps remember that when representatives of different parts of the medical profession come to talk to us, they began by saying that in an A&E department it is extremely difficult to work out somebody’s advance decision. We knew that when we passed the initial legislation, but that legislation was not meant solely to take its lead from that; it was meant to apply to a whole range of matters just within medicine. It is a shame that the medical profession still relies on a very conservative interpretation of the existing legislation and takes a read-out from emergency situations when it really should not, as there is plenty of time to discuss with the person what is happening and to understand their previously stated wishes and feelings.

I am glad that the noble Baroness has raised this issue. She is right that at the heart of the Bill is a fundamental change from the Mental Capacity Act. There will no longer be a whole series of decision-specific assessments of people who lack capacity, and that is not something that I object to. Over the last few years while this legislation has been in place, we have quite often found people being subjected to unnecessary assessments. It is quite clear that when somebody has a medical assessment for advanced dementia, say, they will not have the capacity to make the same decision, even though they go to live in a different place. I accept that it is possible to make a decision of a lack of capacity and to carry that forward throughout a person’s care. What I am not clear about, though—given that people will be subject to fewer assessments, and therefore be less likely to have changes in their conditions brought to light—is the extent to which that will interplay with somebody’s statement of advance wishes. I would rather like it if the Minister, in his response, could talk about how that will work.

I agree with the noble Baroness, Lady Finlay. The safeguards on liberty and safeguarding have been thoroughly confused by many people. That is fundamental. Whether we turn this around from safeguards against deprivation of liberty or safeguarding the liberty of somebody, I do not think that anything I have seen in the Bill has yet addressed that fundamental misunderstanding. In fact, in some cases, it probably compounds it. I want to put that on record as we discuss the many issues the noble Baroness, Lady Finlay, has introduced so well.

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

My Lords, I thank the noble Baroness, Lady Finlay, for her amendment and the noble Baronesses, Lady Thornton and Lady Murphy, for their amendments. I am delighted that the noble Baronesses were able to make it on time so that we could start on our deliberations of what are clearly very important issues.

The purpose of these amendments is to clarify that a liberty protection safeguard authorisation cannot override a valid decision to refuse care or treatment by the donee of lasting power of attorney or a court-appointed deputy or contained in a valid advance decision to refuse treatment. The comment that the noble Baroness, Lady Finlay, made at the start of the debate, about conflict and avoiding conflict by recognising valid decisions where they have been made, was very important. I hope that all noble Lords know that the intention of the Bill is to enhance the role and agency of those deprived of their liberty and those with an interest in the care and welfare of that cared-for person. That is why this debate on the first grouping of amendments is so important.

This debate gives me the opportunity to clarify and confirm that the Bill does not allow a decision to be made that conflicts with that made by a donee of a lasting power of attorney or a court-approved deputy’s valid, best interests decision. I am glad of the opportunity to do that. Section 6(6) of the Mental Capacity Act already provides for this, and the Bill does not change that. Therefore, an authorisation under the liberty protection safeguards could only be given if it was in accordance with a valid decision—namely, one that is authorised in the lasting power of attorney—by the attorney or deputy.

The Bill also does not change the current position regarding advance decisions to refuse treatment, and those will remain an important part of care planning. I absolutely recognise the important role that the noble Baroness, Lady Barker, and others in this House played in introducing that. I assure all noble Lords that there is neither the intention nor action in the Bill to water down the power and validity of those in any way. If a person has made a valid advance decision to refuse medical treatment, that treatment cannot be given and it would not therefore be possible to deprive someone of liberty in order to provide it. We intend to give further explanation of the legal position in the code of practice. I hope that that answers some of the key issues raised by the noble Baronesses, Lady Finlay, Lady Thornton and Lady Murphy, in their comments.

Those comments were echoed by my noble friend Lady Browning, and she is quite right to discuss the importance of support for those with communication difficulties so that they are able to enunciate the kinds of decisions and indications of future treatment that would adhere to their own wishes. We will return to this issue later in Committee, particularly when we get on to the issue of IMCAs—the advocates—but she is right to reiterate the point made in the proposed amendments that those acting on behalf of the cared-for person, whether they are the family, have an interest in care or have been formally appointed to do so, are, in the end, responsible for taking those decisions on behalf of that person, and their decisions should be respected, as the noble Lord, Lord Cashman, pointed out.

The fundamental question that underpins these amendments is: why is the Bill not explicit on these issues when, as the noble Baroness, Lady Thornton, pointed out, the Law Commission’s Bill is? Because there is no change in the current position, there is therefore no reason to outline what is already the case. Nothing is changed about what is already in the Act by what is being proposed through this Bill. Therefore, there is no need to reiterate what is already the case and will not be changed. I hope through the course of this debate that we have aired this issue. It is one that the Government agree with and, in the way that the Bill is structured, I can confirm to the Committee that there is no change in the status quo about the validity of those decisions.

With those reassurances, I hope that the noble Baroness is prepared to withdraw her amendment. I recognise that there is great concern, not least among many of the campaign groups, service providers, commissioners and others who are implementing these rules and laws every day, and they need to know that there is consistency. As we move between now and Report, I am more than happy to meet with noble Lords and others to discuss these issues and make sure that we can give every reassurance so that they can be sure that the law as it stands today has not changed and will not change as a consequence of this Bill.

--- Later in debate ---

[Baroness Thornton]

I am grateful to my noble friend for tabling this clause stand part. It was necessary for a number of reasons. I am also grateful for the contributions that have been made because they bear out the reason why it was important to put down this debate. The first reason has been alluded to by many noble Lords and is the very unsatisfactory scheduling of the Bill. It means that noble Lords and stakeholders have not had sufficient time to consider the Bill and all its amendments for today. The vast majority were put down last week, and the Marshalled List became available yesterday. It was difficult for anybody to see whether the tabled amendments probed the Bill sufficiently and made all the improvements that noble Lords deemed worthy of consideration.

There is a lesson here about scheduling: if you have the Second Reading immediately before a recess, a sufficient number of sitting days must be given to allow noble Lords to table amendments and have the necessary discussions with stakeholders and each other. Getting almost 100 amendments tabled from a standing start when the House rose is pretty good going, and I congratulate noble Lords across the House for that. Some of us were emailing each other and the Public Bill Office from the poolside or the middle of fields during the Recess. However, people are playing catch-up, which does not bode well for a thorough-going scrutiny.

I congratulate the Bill team for managing to talk to noble Lords during the Recess, but in some ways they must have had an unsatisfactory time as well because we did not have the full list of amendments until Friday evening. As many noble Lords have said—it is clear from my mailbox too—in the last two or three days stakeholders are also playing catch-up and are expressing great concern about some aspects of the Bill. In a way, the frustration that that has raised is why my noble friend has tabled his amendment to oppose the clause stand part. That allows us not only to mention things that are not covered in amendments but to raise these points.

From my point of view, and from these Benches, depending on what the Minister says in his reply, we might need to raise issues of scheduling and time to consider some of the serious implications of the Bill, and possibly table amendments at the next stage that address some of the concerns raised in this debate—particularly the issue of care home managers. Notwithstanding the issues raised by the noble Baroness, Lady Finlay—she may well be right about people understanding the processes in the Bill—that does not alter the fact that we do not know who will authorise or whether it will work.

This links to my second point, which is about consultation. I would like to know where the care home manager’s role in this came from. It happened between the Law Commission draft Bill and this Bill. Suddenly, the care home manager is it, and I think that that might probably have been a surprise for some people—certainly for the noble Baroness, who did not hold back in her views about care home managers. On the consultation issue, it is clear from the Law Commission report that it did extensive consultation, leading to the creation of its draft Bill. There were something like 83 nationwide events and 583 written responses from interested persons and organisations. Some of those events were very significant indeed, with many stakeholders. Where did the issue of the role of care home managers come from? I should like the Minister to share that with us, as he must be aware of the level of disquiet about the expectations and the responsibilities that would have to be assumed by care home managers for the assessment required to authorise the deprivation of a person’s liberty when the person lives in their care home.

I also want to know the view of the CQC on this proposal. What is the view of the care providers, the ADASS and the LGA? They are all key stakeholders in that decision. I should be grateful to have the Minister’s take on the view of those important organisations on this proposal. I could not find the issue among the material circulated by the Minister or, indeed, in the letter he sent, which I found useful and informative.

My noble friend has done the House a favour in raising these issues and allowing a large number of questions to be asked at this stage, which might inform the next day’s discussion in Committee, the next stage of the Bill and perhaps also the discussions that we will need to have in the coming weeks.

[Lord O'Shaughnessy]

I start by agreeing with the noble Lord, Lord Hunt of Kings Heath, that of course extensive scrutiny is deserved for legislation of this kind, which we have achieved both at Second Reading and, for those who could not be there, in the second Second Reading debate that we have just had. That scrutiny is obviously reflected in the 100 or so amendments that have been tabled. It is worth using this opportunity, as the noble Baroness, Lady Finlay, did to some extent, to remind ourselves why we are here pursuing this legislation.

The noble Baroness, Lady Barker, asked why now? Well, in 2014, the House identified that the DoLS system was not fit for purpose and the Government tasked the Law Commission with completing its report into DoLS. It recommended that the current system needed to be replaced as a matter of pressing urgency. I will come on to the point about the discrepancies between the two approaches but, nevertheless, that was its view. The Government stated that we would do this as soon as parliamentary time allowed—part of the issue around scheduling is indeed “when parliamentary time allows”. It is important to use opportunities when they arise to do important things, even if it means that people have to work during the summer or holidays. I realise that that is not always ideal, but the scheduling, for example, of Committee over a long period—and we will then need to think about Report—should give lots more time for these kinds of discussion. I reassure noble Lords that we want to have and are open to those discussions.

The model that we have created is based on that developed by the Law Commission and, like the Law Commission, we want to increase the protection of some of the most vulnerable people in society, to protect their rights, not just in theory but in practice, and to improve access to justice. I confirm to noble Lords that we have worked and continue to work with a range of stakeholders to build on the Law Commission’s model and to produce a streamlined system. “Streamlined” is an important way of describing this, because the noble Baronesses, Lady Jolly, Lady Barker and Lady Murphy, talked about cost-cutting. This is in fact about creating a system that has the effect that we want with the budget that it is given; that is the point. As we know from the backlog, lots of people are being denied access to justice because of a system that is disproportionate in its application. That is what we are trying to solve, so that those cases that really do deserve the highest level of scrutiny are able to receive it. That really is at the heart of what we are trying to do. I emphasise that Nicholas Paines, the Law Commissioner who led this review, said that this Bill,

“will go a long way towards addressing the flaws of the current system and better protect the most vulnerable in our society”.

I would not claim at this point in the proceedings that it is perfect. I am sure that we can improve it, but it is important that we are doing it, that we are doing it now and that it has support from the Law Commission itself.

More recently, the Independent Review of the Mental Health Act: Interim Report, which was referenced by the noble Baroness, Lady Barker, and led by Simon Wessely, stressed the need for an,

“appropriate calibration between resources spent on delivery of care and those spent on safeguards surrounding the delivery of that care”.

That is what we are trying to achieve through this process. I reassure the noble Baroness, Lady Tyler, who was quite right to talk about the interaction and interface between the two Acts and how they operate that, while we are taking this opportunity to act now while we can, if there are future recommendations that mean there have to be further changes, we would be open to those. This will not be the last opportunity to make sure that the interface between the two Acts, once the reviews have been completed, could be amended, if that is what is necessary. It is important that we have acted now and that those 108,000 people currently in the backlog will have swifter access to justice—that is the main argument. That is my Second Reading speech summarised and repeated.

From what the noble Lord, Lord Hunt, has said, I do not think that he wants to remove this clause, not least because it would remove the new system while not stopping the repeal of the current system, and nobody wants that. At the heart of what the noble Lord spoke about is this focus on care homes, which I think is worth dwelling on. The system has been carefully designed to ensure that there is independence and proper accountability. Care homes will not authorise any applications. That will fall to a wholly independent responsible body—the local authority.

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[Baroness Thornton]

I understood that the Minister said “escalate”, which means that something changes. Perhaps when he is answering the question of the noble Baroness, Lady Barker, he could also explain the word “escalate”.

The Government may need to think about carrying out some form of assessment of the appropriateness and suitability of care home managers to undertake this task. If that has not been done, perhaps it needs to be done in the next month or so.

[Lord O'Shaughnessy]

In answer to the noble Baroness’s question, the point that I was making is not that the role of the care home manager will not change but that they are not being asked to do something of which they have absolutely no experience or responsibility for at the moment. As the noble Baroness, Lady Finlay, pointed out, care home managers are already required to make applications and to consider capacity and restrictions, so they already have a role. The distinction is that, as the Bill sets out, the assessments can be made within the care home itself—of course, not by a person with direct responsibility for care. That is one of the issues, of avoiding conflict of interest. In all cases, those will be authorised by the local authority. If there is any reason, through that authorisation, for concern—for example, of conflicting views between the person cared for and their family—then the AMCP, the mental capacity professional, will have the opportunity to decide on the right course of action. That is what I meant by escalate—not that there is a choice of whether to escalate authorisation to the responsible body, as that will happen in all cases, but that there is a further opportunity for consideration by an AMCP if there is any sense of this happening. We will explore in more detail in future groups whether there is a reason for further investigation, including, of course, speaking to the cared-for person, their family and others.

[Lord Hunt of Kings Heath]

With regard to what is going to be a desktop exercise, the question then arises as to how the local authority will know that there are concerns. On conflicts of interest, it seems that the job of the care home manager is to make sure that their home is filled. There is a fundamentally wrong issue here. The initial assessment will be done by someone with a financial interest in its outcome. It is wrong.

[Lord O'Shaughnessy]

Perhaps I may say that to some extent we are getting ahead of ourselves, because we will explore these issues in further amendments. There is clearly already a system in place, which will continue and will be enhanced, to make sure—whether it is through family members and others with an interest, or, as we have discussed before, through those with a lasting power of attorney—that those who have an advocate working for them are able to register their concerns, objections or whatever it is through the process. So it is not simply the case that the care home manager would be able to wrap up the entire discussion and not let any other point of view be heard—quite the opposite. And, as I said, we will discuss that in further detail.

On training issues, addressing the second point talked about by the noble Baroness, Lady Thornton, she is quite right. That is precisely why I said that it is important for us, the Government, to explain, on the basis of consultation with the sector, what will be required to make sure that those who will have these extra responsibilities will be able to exercise them properly. We will discuss that outside this Chamber. I know that noble Lords want to make sure that, where there is a proposed change, even if they still require some reassurance about the benefits of such a change, it will be implemented properly. Clearly, that has big implications for training, capacity and so on. So we will take that away and make sure that we are able to provide more detail on it.

Clause 1 agreed.

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[Lord Touhig]

My Lords, the Law Commission supports this and I certainly support the amendment as tabled by my noble friend Lady Thornton. Including 16 and 17 year-olds would offer some legal protection for organisations such as the National Autistic Society, of which I am a vice-president. We do a huge amount of work with young adults and strongly believe that this is important for them—for their work and for their future. This was raised during Second Reading by a number of people—I was one of those who raised the matter. The Minister indicated that he would look at it and, indeed, in a letter from him on 24 July, he said:

“During my speech I indicated that I would like to reflect on the matter of how the model could fit with 16 and 17 year old young people”.


Perhaps, when he gets up, he will have some good news for us.

[Lord O'Shaughnessy]

I would like to thank the noble Baronesses, Lady Thornton and Lady Murphy, for tabling these amendments, which seek to apply the liberty protection safeguards to 16 and 17 year-olds in the same way that they apply to adults. Noble Lords have been absolutely right to point out, as they did at Second Reading, that in the Government’s response to the Law Commission report, we accepted in principle that 16 and 17 year-olds would be included in the new liberty protection safeguard system. I know that noble Lords are motivated not just get to get this right in general but also, as the noble Baroness, Lady Thornton, said, in relation to specific cases that are known to them, sometimes very close to home. I understand and sympathise absolutely with the desire to do that.

The noble Lord, Lord Touhig, is also right to say that it is something I said I would consider and would seek to bring further news. We are still considering this very actively. What is clear even from this brief debate is that, as the noble Baroness, Lady Tyler, pointed out, there are some critical interactions that we need to get right with other bits of the system. These include the role of parents, how the safeguards would apply to looked-after children, and interaction with processes such as the education, health and care planning processes for those with special needs and disabilities. As the noble Baronesses, Lady Murphy and Lady Thornton, reminded us, we need also to be mindful of the current court case.

At this stage, I repeat and underline our commitment to make progress and to offer the best possible protection for this group of vulnerable young people. Proper scrutiny and detailed thought is required, and that thought is ongoing. I recognise the arguments for including this group. Like all noble Lords, I want to make sure we get this right and get the interactions right, so that they do not end up being fixed subsequently by the courts, as the noble Lord, Lord Hunt, pointed out in a different context.

Our intention is to use the time between now and Report to continue having those discussions, both with noble Lords and with stakeholders throughout the sector, to make sure we can get this right. On that basis, having given the commitment that we will work hard to do what we can between now and Report to get the right outcome, I hope the noble Baroness will be prepared to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for that. What can I say but, “Thank you, and let us hope so”?

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[Baroness Thornton]

These Benches support the amendment. As the noble Baroness, Lady Tyler, and others have said, the reference to unsoundness of mind is offensive to those with learning disabilities, dementia and brain injuries and their families. The noble Baroness, Lady Barker, has just demolished all the legal arguments for including the phrase in the Bill, and indeed a lot of organisations, including the Royal College of Psychiatrists, say that it out of place in today’s society. The GMC argues that it is not clear what added protection or benefit is achieved by using the term. VoiceAbility says that “unsound mind” is not used in modern psychiatry and that it could lead to debate in disputes. Therefore, I hope that the Minister will be as agreeable about this amendment as he was about the last one.

[Lord O'Shaughnessy]

I do hate to disappoint. I thank the noble Baronesses for introducing this point. We discussed it at Second Reading and I have huge sympathy with the concerns about this kind of language. Frankly, it is not the kind of language that we use. As the noble Baroness, Lady Murphy, pointed out, she has not diagnosed anyone as being of unsound mind for decades. It is a throwback and we are in the process of destigmatising mental health issues, as the noble Lord, Lord Cashman, pointed out. That is an endeavour that we are engaged in earnestly together. However, it is important to distinguish between the operational language used in care and the language used in the courts, and I want to discuss that.

This is not just about semantics; it is about terms that have established legal precedent and a jurisprudence based on their interpretation. It is worth discussing the consequences of deviating from a term that is in current use because of its role and the fact that the phrase is used in the European Convention on Human Rights. As the noble Baroness, Lady Tyler, pointed out, the term has not changed since the 1950s and the creation of the ECHR, and it has subsequently been used by the Strasbourg court. There is a risk, and it is worth recognising, even if it is one that noble Lords might be prepared to contemplate. The risk is that a different expression such as the one proposed by the noble Baroness, Lady Tyler—it is a perfectly reasonable starter for 10, as I think she called it—could create a gap for some people who need access to liberty protection safeguards but do not meet the criteria of having a disorder or disability of mind, although they would have met the criteria of unsound mind.

It is important to note that the Law Commission used this language. We have been accused of deviating from the Law Commission Bill but it used this language and we have copied it to ensure that the liberty protection safeguards are compliant with the ECHR and that there is no gap with people not being covered. This could include people with learning disabilities, brain disorders or disorders of consciousness. In essence, the problem here is not this Bill. In a way, the Bill has a problem because of the language that has not been changed since its creation in the ECHR.

Therefore, although I agree with the sentiment behind the amendment, new terminology would risk creating a gap for people between the ECHR and this proposed law, and we are all concerned to avoid such gaps. Any gap would require people to have recourse, instead, to the Court of Protection. Therefore, it is not the case that people would have no recourse; they would have recourse to the Court of Protection, but we know that the people being cared for and their families and carers can find that an intimidating and difficult process.

It is also important to note that the Court of Appeal has indicated that some people with certain forms of learning disability might not be considered mentally disordered under the definition put forward by the noble Baroness but would still be considered of unsound mind for the purposes of the convention. That is another reason why there is a risk of a gap. For example, there is a particular risk that some individuals with brain injuries, or certain disorders of consciousness, might fall within the gap.

At Second Reading I did say, earnestly, absolutely and honestly, that I wanted to take this away and consider it, because of the frankly unsatisfactory nature of the term when it comes to modern practice. We have also listened to the contributions of a range of stakeholders—a number of people are of course very interested in this, and not just in this House—and to the contributions of the Joint Committee on Human Rights to see whether it is possible to use better language. I know this is not something the House will welcome, but I have concluded that, although the term is regrettable, there is a risk in using alternative language of creating a gap. Between those who would be captured under the definition suggested by the noble Baroness, Lady Tyler—or, indeed, potentially any other definition—and those currently captured under the terminology “of unsound mind”—

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[Lord O’Shaughnessy]

I am glad that we have had a subsequent opportunity to discuss this. I would like once again to restate that I personally, and government Ministers, officials and others, do not find this comfortable language. I know that the noble Baroness, Lady Watkins, did not mean it this way, but this is absolutely not a case of trying to take us back to the 1950s. In proceeding with this legislation, we have to make sure that people who currently get protection do not lose it. I know that we all agree that we do not want that to happen. If you like, that is the goal; the law is the means, if I may say so to the noble and learned Lord, Lord Woolf. The key is making sure that we have the terminology that will reflect that we do not want people falling through the gap. It is perfectly reasonable to ask, “What is the nature of this gap?”

The Court of Appeal in G v E said that a gap would arise. Our understanding and advice from lawyers is that current case law indicates that there might be individuals—I do not have specific details of the kind of conditions from which those people might be suffering. It is worth pointing out that the Court of Protection also uses the term “unsound mind” at the moment. It is a term that is clearly operable in a legal context but which has become inoperable in a medical context. That is the challenge we face and which we have explored in this discussion and at Second Reading.

We have given this very careful consideration. We need to be incredibly conscious of not creating that gap. However, I also understand that noble Lords would like to see more evidence of two things. First, there is the reality of the gap: who, what kinds of people and what situations? That is a perfectly reasonable thing to ask. Secondly, has there been further exploration of alternatives to what we all agree is an outmoded and regrettable phrase? I am absolutely prepared to commit to do that between now and Report, because I share noble Lords’ intentions that we should make sure both that we move with the times and that we do not remove protections from people currently entitled to them, or who would have been entitled to them, in the future. On that basis, I hope the noble Baroness might be prepared to move on from her starter for 10 and withdraw the amendment.

[Lord Woolf]

In the list of people whose help the Minister is going to seek, may I suggest that parliamentary counsel be invited to consider whether it is possible, through the use of language in the Bill, to ensure that there is no gap?

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[Lord Woolf]

Perhaps I may respond by giving one lawyer’s view on the matter referred to by the noble Baroness, Lady Thornton. I should put on the record that I am a member of the Joint Committee on Human Rights and therefore was a party to the report, and of course I support it.

When the opportunity arises to deal with a situation where it is clear that a decision of the Supreme Court has had consequences which may never have been anticipated, it would sometimes be helpful if the judges had the opportunity to look at the matter again. If the sort of steps so ably advocated by the noble Baroness, Lady Murphy, were taken, I would suggest that serious consideration should be given to them as they could have a beneficial effect from the pragmatic point of view as well as on the point of principle.

I am sorry, but I ought to have added that I have a relative who could be affected by this legislation, and I declare that.

[Lord O’Shaughnessy]

I am grateful to all noble Lords who have spoken to their amendments, which have produced this discussion on the application of the liberty protection safeguards. Indeed, the noble Baroness, Lady Murphy, said that this goes to the heart of why we are here in the first place. I know that she has long-standing concerns about the DoLS system both in its application and the scenarios where it may or may not be appropriate, to whom it should best be applied and so on. I know that that is what has motivated her attempt in this amendment. She and others, including the noble Baroness, Lady Thornton, have said that this is the start of a process.

The first amendment in the name of the noble Baroness addresses the circumstances in which the authorisations could be given in a care home or supported accommodation environment, and people deprived of their liberty as interpreted in the Cheshire West case. As the noble and learned Lord, Lord Woolf, pointed out as a member of the committee, the Joint Committee on Human Rights has recommended introducing a statutory definition of the deprivation of liberty in its report The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards. I can tell him and all noble Lords that we are considering its findings closely. Many noble Lords have expressed a desire, whether in the form set out in the amendments in this group or otherwise, to explore the possibility of including a statutory definition in the Bill. Following this discussion, that is something I should like to consider further. It is worth stating, however, that there are risks in doing so because it means that to change a definition requires primary legislation. Noble Lords are much more knowledgeable about and aware of those risks than I am, but nevertheless it is something that warrants further consideration.

I am also sympathetic to the sentiment expressed by the noble Baroness, Lady Murphy, about the state involving itself unnecessarily in family and private life while also being mindful of making sure, as we all are, that individuals are not denied the safeguards they need and that we are complying with our obligations under Article 5 of the ECHR. The effect of her amendment would be to limit the circumstances in which arrangements giving rise to deprivation of liberty in a care home or in supported accommodation can be authorised under the liberty protection safeguards, but of course that would mean that such arrangements would still have to be authorised by the Court of Protection. We have already discussed how that can be burdensome and expensive for families. It is for that reason that domestic arrangements were included in the deprivation of liberty safeguards. Given that, while in general I would like to have a further discussion around definitions, there is a problem with the definition that the noble Baroness has provided because of its application in that case.

[Baroness Murphy]

Perhaps I may just say that the amendment is my first stab at the issue with no help in creating it or any legal consultation. My next will be a lot better.

[Lord O’Shaughnessy]

I am sure it will be and I look forward to seeing it.

As she pointed out, the noble Baroness has a second amendment which makes the point that the steps taken to deprive a person of liberty, life-sustaining treatment or a vital act should be of benefit to that person, and of course we all agree with that. But as the noble Baroness, Lady Finlay, pointed out, before any authorisation is made or arrangements take effect, a decision will first need to be taken that the care or treatment is in the person’s best interests in accordance with Section 4 of the Mental Capacity Act 2005. It is important to note that this amending Bill does not change it, so that will continue to be true if the Bill before us in this House is taken forward as it stands. The legislation is already clear that if actions are taken to deprive someone of their liberty in these situations, it must be to the benefit of the cared-for person. That was at the heart of the amendment spoken to by the noble Baronesses, Lady Jolly and Lady Thornton, so I want to take this opportunity to say that that provision continues to exist because the best interests test foreruns the subsequent necessary and proportionate test, which we will explore in a subsequent group.

On the point made by the noble Baroness, Lady Finlay, about limiting the time for the duration of authorisation of the steps necessary for life-sustaining treatment or vital acts, the intention, as she will know better than me, is to move consideration of the deprivation of liberty to earlier in the planning stage. Nevertheless, there will be cases where it needs to be applied in an emergency situation. I do not need to bring that to light because other noble Lords have done so. Her amendment, which I think is probing, would require authorisations to be renewed every seven days. She will know that there are limited periods at the moment, but unfortunately they are not always adhered to. If we are honest, they can become a target rather than a limit, and I think that is what is happening. We need to make sure that we have a system which gives providers greater clarity but does so in a way that is more sophisticated than could be achieved in legislation. I therefore agree with her that the code of practice is the right vehicle for that because it will be able to outline the different circumstances and scenarios and thus give a much richer picture of the kind of situations and principles that ought to be considered.

This has been a very useful debate and, as I have said, I should like to take some time between now and Report to consider the opinion expressed by noble Lords and in the report of the Joint Committee about the benefits of a statutory definition. Having started that discussion, which is obviously the phrase of the evening, I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Murphy]

My Lords, I am grateful to the Minister for his positive response to the ideas if not to the amendments themselves. We will return to this at the Report stage, as he has said, and I hope that we may have forthcoming from those associated with the Joint Committee on Human Rights some support at that point for the further debates in this area. With that, I beg leave to withdraw the amendment.

--- Later in debate ---

In summary, the amendments ensure that the wishes and feelings of the person concerned, if ascertained, must be reflected in any decision about their care. If any one of us or anyone in our families were in such a situation, would we not want that for ourselves and them?

[Lord O’Shaughnessy]

I am very grateful to all noble Lords who have contributed to the debate for their desire to be brief, which I know was shared by others who have not been part of the discussions on the Bill, but it is also important to be comprehensive in discussing these issues because, as pointed out by the noble Lord, Lord Touhig, the best interests of the people being cared for is what this is all about.

I know that this is an issue for noble Lords; it was raised at Second Reading and has been raised again in this debate. It is important to state that best interests decision-making for care and treatment remains fundamental to the Mental Capacity Act. In a way, it is the founding stone around which the rest is built. The liberty protection safeguards sit under the aegis of the Act. The Bill does not change that. One request made by noble Lords at Second Reading was for us to publish the Act as amended by the Bill. We have done that; I understand that it is in the Library. I can make sure that a digital copy is circulated, and I will make sure that it is sent to all concerned. Clearly, understanding the flow of how it is read in not just legislation but the code of practice is critical. I want to make that clear and I understand that important desire.

Under the current system, there are two different best interests tests: one exists under Section 4 of the Mental Capacity Act—the decision, usually made by a clinician, to provide care or treatment—and a second, separate, additional one falls within the tests required for the DoLS system. The Law Commission recommended that the DoLS tests be replaced with a necessary and proportionate test. In that sense, we are following where it led. Prior to a liberty protection safeguards authorisation being considered, the decision will need to be taken, normally by a clinician, that the care or treatment enabled by the arrangements is in the person’s best interests. As I said, that will apply under Section 4. Subsequently, it must be demonstrated that the arrangements to enable that care and treatment are necessary and proportionate. Of course, that is the single test applied by the liberty protection safeguards; it is a secondary test following a consideration of best interests.

The current requirement that the deprivation of liberty must be necessary, proportionate and in the person’s best interests is instead replaced by a single, primary best interests test in an attempt to avoid confusion and conflict—the word used by the noble Baroness, Lady Finlay, at the beginning of the debate—between two determinations. The focus of the second-stage test on what is necessary and proportionate is an attempt to remove this confusion. It is not an attempt to downgrade in any way the primary and prior importance of a person’s best interests being taken into consideration.

As well as giving that assurance, I want to pick up on the point made by the noble Baroness, Lady Finlay, that avoiding risk to the cared-for person will form part of the necessary and proportionate test. There is already a principle in the Mental Capacity Act to use less intrusive arrangements, which will continue to remain, unamended, an important principle in the new model. As was brought to light by the noble Baroness, Lady Finlay, and other noble Lords, the application of “necessary and proportionate” requires a degree of granularity that makes it difficult to overdetermine in legislation, and that is the reason why the code of practice is so important. That is why it will contain a range of scenarios, principles, circumstances and so on of what the application of a necessary and proportionate test should look like.

I hope that I have been able to assure noble Lords, whose considerations I take very seriously, that best interests are foremost in our minds and will remain so in the legislation, unamended by the changes brought in by the Bill. Clearly, I want to make sure that this sentiment and its legal power are understood by all concerned, particularly if there is concern in the wider sector. As I said, I do not believe that a second test is necessary; as said by the Law Commission, it could be counterproductive. It is important that we make sure of a clear understanding of the primacy of the best interests test. I would like to explore that with noble Lords to make sure that it is properly understood by all; we can do that between now and Report. On that basis, I hope that the noble Baroness will be prepared to withdraw her amendment.

[Baroness Barker]

I thank the Minister for his helpful response. As we begin to get to the heart of the debate, he will understand that he and the Bill team can perhaps see the Bill as a whole, but the rest of us are struggling to do so. Therefore, we have to test individual elements of it, perhaps to a greater degree than he may think is warranted. None the less, it was helpful of him to put those statements on record. With that, I beg leave to withdraw the amendment.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

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

[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 ---

[Lord O'Shaughnessy]

I take the points that the noble Baroness is making. Obviously we will discuss this further. But it is important to reflect on the new duty to consult. It is not a duty to consult everybody but the person, so it is not fair to say that there has not been an earnest attempt in the Bill to make sure that the person is fully consulted in the necessary and proportionate test, even if the noble Baroness does not like the precise way that that has been done. It is important to set that out.

[Baroness Thornton]

It is a spectacular omission not to mention the very person whose liberty is being restricted. I ask the Minister and the Bill team to remind themselves of Articles 5 and 8 of the UNCRPD, which mandate such consultations.

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[Lord Touhig (Lab)]

My Lords, I am very pleased to follow the noble Baroness. I think she made her maiden speech at Second Reading; it was an important contribution. She has sat through this debate and made a few important points. We certainly welcome her and look forward to further remarks from her as we proceed with our considerations.

I support the amendment in the name of the noble Baroness, Lady Hollins, addressing as it does concerns expressed by me and other noble Lords at Second Reading. The Bill provides a different route of authorisation for a deprivation of liberty when a cared-for person lives in a care home. In this circumstance, it places a new duty on care home managers to carry out the assessments and consultation prior to authorisation. I echo the noble Baroness’s concerns that this creates a conflict of interest. We have already considered some of these aspects earlier but none of us needs make any apology for coming back to it because it is so very important. Care home managers will have an important insight into an individual’s needs and they should be included as a source of information, but a responsibility to carry out the assessment requires more than simply providing information. It is a different skill set from their expertise as a provider.

Furthermore, care home managers are not independent and although they are not responsible for granting the overall authorisation, the contents of those assessments will be key to local authorities’ overall determination. This is particularly important where there are concerns about weaknesses in the pre-authorisation review outlined in Clause 18. That clause does not, as drafted, secure the independence of the person carrying out the review. It does not ensure that a rigorous review is carried out. As it stands, it risks the pre-authorisation review. The overwhelming majority of care home managers would undertake their duties honestly and assiduously.

However, we have to face facts. This Bill, as drafted, leaves the door open for a dishonest assessment, and we have to speak plainly about it. That should concern this Committee as we are debating the system of legally depriving some of the most vulnerable people of our society of their liberty—nothing can be important than that. Furthermore, it is unclear what assessment the Government have made of the burden this would place on the care home managers. This will account for more of their time, which is scarce in any event. It will also add new complexities to their role; perhaps the Minister might want to further tell us how the Government envisage a proper training programme and what resources will go alongside it to allow them to perform these new duties.

The concerns I have outlined are widely held. They have been expressed not just by me but also by a number of charities. It should be noted that the amendment before us has the support of the National Autistic Society, of which I am a vice-president, Age UK, the Alzheimer’s Society, the British Institute of Human Rights, Liberty, Mind, Rethink Mental Illness, the Royal Mencap Society, Sense, and VoiceAbility —we could go on. They have also been expressed by the Law Society. Those concerns are also held by professionals.

A survey carried out on the Government’s proposals by Community Care and Edge Training & Consultancy asked professionals whether they agree with the proposals that care home managers would carry out assessments. An overwhelming majority—86%—disagreed. My goodness, we could have those votes in some elections. It is certainly a very powerful message. That question also provoked the highest number of written comments and these are relevant to our debate. One said: “This is the most obvious concern with the new proposals: there is a direct conflict of interest with the provider”. Another said: “Where is the independent viewpoint?” A third said: “This process will be a waste of time at all levels if the initial process is not completed thoroughly”.

It is right that we subject this aspect of the Bill to thorough scrutiny. It was not part of the draft Bill produced by the Law Commission and therefore has not been spoken about and debated at length, as have other aspects. It has gathered significant criticism too, and we should be prepared to listen to that criticism. Therefore, the noble Baroness’s amendment strikes a very sensible balance. It ensures the independence of the assessment process, it alleviates some concerns about the independence of the pre-authorisation review, and it also secures the important role of care professionals in providing vital insight into the individual’s needs. I echo the noble Baroness’s requests for the Minister to give us his views on the conflict of interest that arises from this clause, and whether we may instead consider ensuring that any assessment is carried out by someone independent of the care home. This is a very important matter which we will be coming back to a lot, I am sure.

[Lord O'Shaughnessy]

My Lords, I am grateful to the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt, for tabling these amendments and to all noble Lords who have given us the opportunity to explore what is obviously emerging as a critical part of the proposals in the Bill. As noble Lords have said, the amendments would remove the inclusion of care home arrangements from the Bill—that is, the duty of care home managers to arrange the various assessments—and instead substitute a duty on the responsible body to carry out those assessments while involving the care home manager in such cases.

In 2014, this House found that the DoLS process was bureaucratic and overly complex and that is what we are trying to address. We are trying to create a streamlined system that does not—the noble Lord, Lord Touhig, is right to warn that it should not—open the door to dishonest assessment, but rather make sure that everybody gets an appropriate assessment of whether their deprivation of liberty safeguards is in their interests, necessary, proportionate and so on. That is what we are seeking to do. I want to spend a bit of time going into this issue because I think there is a misunderstanding about what is proposed by the Bill.

Under the arrangements in the Bill, in care home cases, the care home manager would be responsible for arranging the assessments for the responsible body—not necessarily carrying out, but arranging; I will come to who carries them out in a moment. This would ensure that existing assessments and assessors who know the person best can be used where appropriate. Noble Lords have asked who will be carrying out these assessments. I will explain that in a moment.

--- Later in debate ---

[Baroness Hollins]

I asked about the difference between care homes and supported living and just that conflict.

[Lord O’Shaughnessy]

I will briefly come to that. In supported living arrangements, the local authority, the CCG or the local health board would arrange the assessments. It would automatically be that body, as opposed to the supported living provider. I hope that will provide the reassurance the noble Baroness is looking for. It would be the commissioning body in that case.

[Baroness Hollins]

It may be that a lot of the thinking has been done around elderly people and people with dementia as opposed to people with learning disabilities. In the learning disability world, there has been such encouragement towards supported living that they are often within the same organisation, even within the same setting. It seems very strange that you would have a manager who ends up being responsible for a care home, where they have the responsibility, and for supported living, where somebody else has the responsibility.

[Lord O’Shaughnessy]

I am grateful to the noble Baroness for clarifying that. I will seek to understand the implications of the Bill for those cases, and I will make sure that I write to her and all noble Lords with an explanation of what is envisaged.

[Baroness Finlay of Llandaff]

I hope the Minister will forgive me because we are now on an incredibly important part of the Bill. If we can get together and work through it, I wonder whether we need to look at a way that a specific person from the local authority—I gather that it happens in some parts of England and Wales but not everywhere—has a link to different care settings and gets to know them well. We are talking about the people we know about, but the people who are most vulnerable are those we do not know about, who have not been notified into the system. If that person knows a place and the quality of the care there, they may be inclined to have a lighter touch there than on places where there has perhaps been a turnover of staff, a change of management, and so on. They may feel that they want to do some face-to-face assessments to verify the quality of the care being provided—not in the CQC role, but in terms of the care delivered to the person who has impaired capacity.

I put that out there now because I am sure that this debate is being watched and monitored. It might be interesting to see whether we get any feedback on some of the points we have raised during the debate, because so many people have expressed concern and want to know what we are saying.

[Lord O’Shaughnessy]

I shall give just a brief response to that. It is a good idea. The Government think that the proposals for care homes, how they will carry out commission-needs assessments and the process for reviewing and authorising where necessary are a critical part of creating a more proportionate system that does what it says it will do, rather than the current system, which says it will do a whole bunch of things and then does not actually do them. That is where we want to get to.

I am being robust, as it were, in defence of the model. I want to explain—I think noble Lords are enthusiastic about this—how this will work in practice with the kinds of people who are most likely to be in the most difficult situations, so there is a clear understanding of the safeguards that exist to prevent conflicts of interest, provide independent oversight, make sure there is advocacy to support, and so on. It is clearly the case that there is not yet that understanding, and we need it to proceed.

[Baroness Barker]

I thank the Minister for his explanation, which has been very helpful. Over the next few weeks, while he is seeking to give further clarification, I wonder whether it would be possible to explain this. One of the Government’s arguments is that the consideration of deprivation or the safeguarding of liberty should come much earlier in the care planning process. Most care is commissioned, most of it by local authorities. Can the Minister explain—perhaps not now at this late hour—how the commissioning of services will change to reflect the new system?

[Lord O’Shaughnessy]

There is a useful flowchart that exemplifies it and brings it to life. I will make sure that it is shared. I agree that we need to find ways of bringing it to life, and that is something we can do outside this Chamber.

[Baroness Hollins]

My Lords, I am most grateful to the Minister for his reassurance that the care home manager’s responsibility is only to arrange the assessments. The Mental Capacity Act is so important that we have to be sure that we do not make it worse. It is a good Act, and the main problem identified in the Post-legislative Scrutiny Committee was that it was not well understood. It is emerging that the stakeholders are not understanding what is intended. We should be trying to make it easier to understand and operate, not more complicated.

The noble Lord spoke of trying to legislate for a streamlined process. I am rather worried about legislating for some of these matters, and I am beginning to think that some aspects need to be in regulations rather than in the Bill, just to make things as simple as possible, but also amendable without having to come back to primary legislation. I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Touhig]

This is a very small but very important amendment. Having spent 27 years in newspapers and publishing, I constantly came across issues and stories where people were having all sorts of difficulties, public services failed and systems failed because of lack of information. Certainly from my time as a councillor, as an MP and as a Minister, I passionately believe that we must be open and transparent and must share information. That is key to this part of the Bill, and we certainly strongly support the points made by the noble Baroness.

I do not intend to detain the House more than that, other than to say that the noble Baroness, Lady Finlay, may not be aware that, when I was a Wales Office Minister and she was a new Member of this House, she terrified my officials. They would come in and say, “Minister, it’s that Baroness Finlay again; she wants information on so and so”. She is pursuing her quest for information even today, which I think is very important and valuable. We strongly support her efforts in this area.

[Lord O'Shaughnessy]

I am grateful to the noble Baroness for tabling this amendment and to the noble Lord, Lord Touhig, for endorsing it. I will not detain the House other than to say that, clearly, the intention to make sure that there is not a discrepancy and, where there is, that there is a flag, is one that we share. We need to be alert to any issues of concern that would warrant further investigation, or indeed referral to an AMCP.

This is something that I think best sits within the code of practice, and I can confirm and commit that instructions along these lines will form part of the code of practice, as well as many other examples of where an authorising body should be seeing signs of concern. I am grateful for the opportunity to confirm that, and I hope that reassures everyone.

[Baroness Finlay of Llandaff]

I am grateful to the Minister and to the noble Lord, Lord Touhig, for his remarks in support—including his humorous ones. On the basis of that, I beg leave to withdraw the amendment.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Monday 15th October 2018 Lords Chamber

[Baroness Barker (LD)]

My Lords, I wanted to respond in part to the points made by the noble Baroness, Lady Murphy. The original legislation was brought in on the basis of agreement across all parties in the House; so, too, was the report which reviewed the workings of the Mental Capacity Act. There was a unanimous view that DoLS need to be revised; they are not working.

It is interesting that many of the criticisms that have come to light in recent months have been from people who do not defend the current system but who have grave concerns not just about capacity but about some basic assumptions being made—not just about the role of care managers but about how the arrangements will work in practice. There is a quite legitimate view that the legislation will not solve the problem nor necessarily deal with a backlog; it will just shove it somewhere else. We need to think our way carefully through that because, as I will go on to say in debates on later amendments, there is no doubt that there is a watering down in the legal protections proposed by the Government. The noble Baroness and the noble Lord, Lord Hunt, are therefore right that we should examine in some detail exactly what the Government are proposing, because up until this point it has been quite difficult to understand it.

I thank the Minister for sending his letter of 4 October —he did so in the characteristically open and respectful way in which he treats this House. However, I want to ask a question which is germane to what the noble Baroness, Lady Finlay, is trying to achieve in her amendment. The letter states:

“Care home managers will be responsible for arranging the assessments that are needed for the authorisation. In most cases, they will use assessments that have been completed by a social worker or a medical professional or others as part of the care planning process. This means we will reduce the duplication that exists in the current DoLS system and ensure that people access the safeguards they need”.


Exactly what assessments is the Minister talking about? DoLS assessments are different from assessments under the Care Act. It would be very helpful if he could say that, because it is one of the fundamental assumptions that we are all working to and which may turn out to be incorrect.

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

My Lords, I want first to thank noble Lords for their amendments and for their contributions to the debate. Reflecting on our first day in Committee and on Second Reading, it seems to me that an enormous number of the questions with which we are dealing are about the creation or definition of a new role for the care home manager—a number of the amendments that we will consider today deal specifically with it. I shall deal with those and the many questions that noble Lords have asked.

Given that it has been more than a month since we had the first day in Committee, I would like to reflect on some of the other issues that were discussed on that first day to demonstrate that there has been some progress. I will also explain why, although we are undoubtedly dealing with some difficult and complex issues that we know we have to get right, I am confident that if we work together, we can do that. I am quickly going to pick three issues in respect of which there has been some progress.

The first issue that was raised is extending the scope of the Bill to include 16 and 17 year-olds. I said in Committee that we would look at that and I can tell noble Lords that we will bring forward proposals to include that group in the scheme. I will also reflect on the points made by the noble Lord, Lord Hunt, and the noble Baronesses, Lady Thornton, Lady Finlay and Lady Barker, about the role of the cared-for person being front and centre. In fact, that was the one obligation to consult that was not translated from the Law Commission report into the Bill. Clearly, if we want to get the improvements that we want to see, it is essential that that person’s wishes and feelings about proposed arrangements be at the heart of the model, so we will ensure that the Bill reflects this.

[Baroness Thornton]

I am very pleased to hear what the Minister is saying, but he and the Bill team need to talk to the stakeholders because they do not feel heard. In particular, they do not feel heard on this issue. I am counselling the Minister that it is not good that the stakeholders are coming to all of us and do not feel heard.

[Lord O'Shaughnessy]

I am sorry to hear that that is the perception. I know that the team is engaging with stakeholders and, clearly, we will do better. I take the noble Baroness’s advice very seriously. As I said, we will make sure that the Bill reflects the need to consult the cared-for person. We have also taken on board the comments about the phrase “of sound mind”, which is used in one of the amendments later on. That is one reason why we might want to reconsider it. I know that there is a great concern that the language is inappropriate and that creating a new definition might create a gap, but, having looked at this further, we think we would be able to change this language and carry out various other work to reduce the gap to a minimum. That is something that we intend to bring forward, so I hope that that will be welcomed by many people.

I only give those examples to demonstrate that we are making progress as we go along. Perhaps noble Lords will say that we should have done this beforehand, but we are where we are, and we are trying to fix a creaking system and are using our best endeavours to do that. As the noble Baroness, Lady Finlay, pointed out, the latest data suggests that the situation is getting worse, not better. There were a total of 227,400 DoLS applications received in 2017-18 and 125,000 people in the backlog, 48,000 of whom have been waiting for more than a year already. In 2013-14, when the House found the DoLS system in need of reform, there were just 12,400 applications. We know the reason for that leap, but it suggests that this problem is not sorting itself out and it is urgent that we address it. Clearly, that is what we are all endeavouring to achieve in this process.

It is for that reason that I come to the role of the care home manager. That is obviously a critical role to avoid duplication and to ensure that cases that are relatively straightforward can be dealt with at a level that is close to the person being cared-for can be integrated into care planning without involving referrals upwards-even though there will continue to be reviews by responsible bodies and the opportunity for the AMCP to intervene where there is any cause for concern. To make sure that this is a manageable process, it is integrated into care planning. I still believe that that is the right model. We need to determine how this model can be developed and delivered in a way that overcomes the very many concerns, many of which I have sympathy with, that have been expressed in this debate and will I am sure be expressed this afternoon in other debates. The onus is on the Government to lead that process and put as many of those concerns to bed as possible while, as I have said, protecting the model because it gives us a way out of the duplication and backlog that we have now.

I want to address some specific issues raised in regard to care managers. For example, the noble Lord, Lord Hunt, and others raised the point about care home managers being responsible for arranging assessments but not generally for conducting them. In response to the question from the noble Baroness, Lady Barker, that will be the case for all assessments—DoLS assessments and assessments regarding care planning—and it will include determining whether arrangements are necessary and proportionate. However, although those managers have a responsibility to arrange the assessments, the Bill allows for them to be conducted by others involved in the person’s care, who must have a medical qualification or be suitably trained, as will be explained in the code of practice. So while there is that responsibility to arrange the assessments, those assessments will be carried out by somebody other than the care home manager, except in nursing homes, for example, which might be run by a nurse with a suitable qualification. It would be somebody with the appropriate training to ensure that whatever kind of assessment it is, it can be carried out properly.

I understand that that still leaves a small set of assessments which a care home manager could both arrange and carry out, because they had suitable training. If noble Lords are still concerned about the appropriateness of that kind of activity, I would be absolutely willing to discuss how we can minimise any concerns about conflicts of interest. However, as the noble Baroness, Lady Murphy, pointed out, such conflicts of interest happen all the time and we rely on regulation—

[Baroness Thornton]

The noble Baroness, Lady Murphy, is quite right that people such as her good self have to manage conflicts of interest all the time and they do it superbly, but such a conflict of interest is actually to do with profit and earning money. It is to do with keeping capacity in the care home, which creates a profit for that company. It is quite different from a conflict of interest involving what kind of medicine a doctor might prescribe, for example. It is directly due to the fact that a care home manager’s job is to keep their care home as full as possible, so that it continues to make money. Some of them are in not-for-profits and some are in for-profits, but it is an absolutely different kind of conflict of interest.

[Lord O'Shaughnessy]

As the noble Baroness says, there are conflicts of interest of various kinds; the important point is that there are protections against any conflict of interest. Typically, those will be through the regulatory authorities, whether the professional bodies or the CQC, which of course inspects all care homes and has found that 80% of them provide good or outstanding care. I believe that there are systems within the current regulatory framework that will provide for that oversight and prevent conflicts of interest. There is also the fact that the responsible body will carry out the reviews and that there is an opportunity to refer to an AMCP.

[Baroness Barker]

My Lords, the Minister has made several points, each of which needs to be gone over with great care—but I want to take him back to one of them. In his letter of 4 October, he said that the Bill is explicit that a necessary and proportionate assessment must be completed by someone who is suitably qualified and that case law establishes who is qualified to conduct other assessments. However, that is not actually so. What the Bill says in paragraph 16 of Schedule 1 is:

“The determination required by this paragraph is a determination that the arrangements are necessary and proportionate … The determination must be made by a person who appears—(a) to the care home manager, if the arrangements are care home arrangements, or (b) to the responsible body … to have appropriate experience and knowledge”.


So that wording does not say that it has to be a medically qualified person, and I am not sure whether case law establishes that a capacity assessment must be carried out by a nurse or a social worker. Under the Mental Capacity Act, you get best interest assessors who are not medically qualified; that relates to an amendment tabled by the noble Baroness, Lady Finlay. I suggest to the Minister—and I will suggest this quite a lot—that it should be in regulations rather than in the code that the minimum standards for completing assessments should be made.

On the first day in Committee the Minister said:

"Care home managers are already required to make applications and to consider capacity and restriction. Effectively, the new model recognises what they are doing but also allows for a further escalation”.—[Official Report, 5/8/18; col. 1829.]


At the moment care home managers do not make many of the assessments. They do not do capacity assessments. They do not make decisions about whether somebody is objective. It is not up to them whether an advocate comes in to see somebody. It is taking the truth to its outer limits to liken what happens now to what is intended under LPS.

When the Minister uses the word “escalate”, what is clearly understood not just by noble Lords but by stakeholders is that many of the protections, such as access to an advocate or to an AMCP, have deliberately been weakened in the Bill from what they are under DoLS. So I do think the Minister is somewhat overstating the case. That is what has given rise to many of the fears that have been expressed by a remarkably wide range of stakeholders. I therefore take some issue with what he said.

[Lord O’Shaughnessy]

We believe that case law does establish that suitably qualified people need to be appointed. Clearly that is something we need to continue to discuss to persuade the noble Baroness that that is the case, but that is our understanding. As she pointed out, “suitably qualified” can include medical and other qualifications.

On care home managers’ capacity, they are of course carrying out some assessments. The intention is they will carry out more assessments. I agree with the noble Baroness on that point. The point that the noble Baronesses, Lady Barker and Lady Thornton, raised was about the capability and capacity of this group of people to carry out these roles. On our previous day in Committee I committed to explain how we would ensure that that group of people had the requisite training and skills to carry out these kinds of assessments.

The noble Baroness made a point about weakened access. I want to update the House on our thinking about making sure that the person is consulted. We are trying to create a more proportionate system such that, where all those concerned with the care of a person are content that the arrangements have been properly put in place, it does not need to be escalated and reviewed by an AMCP or similar person. The problem we have at the moment is that the system takes every decision to the highest possible level. This is not about weakening access but about trying to have a proportionate system and also about making sure—we will debate this further tonight—that at every stage there are the right opportunities to seek advocacy support and to refer concerns so that an AMCP or responsible body can intervene and review a case if necessary.

Unless we find a way to deliver a more proportionate system we will simply be re-enacting the system we have now, which is not working. This is why I am so keen to work with noble Lords to make sure that we can determine the proper role and responsibilities of, and checks and balances on, care home managers so that we can get the system right and deliver a reform that saves money, enables more people to have their cases reviewed and enables us to make sure that people are protected, which is what we want to do.

[Lord Hunt of Kings Heath]

The Minister read out a list of safeguards that will still be in place despite the streamlined nature of the Bill. The issue I have with that is that the care home manager seems to act as the gatekeeper to many of them. I hear what he says about a streamlined approach, which I agree with, and I also hear what he says about the people who will do the assessment. But there is still a real issue about why the care home manager, of all people, is the person overseeing this whole process. If the Government are really willing to sit down and talk about how to achieve a streamlined programme but continue with some of the essential safeguards that are in the Bill at the moment, clearly the role of the care home manager has to be looked at seriously.

I am not really hearing from the Government whether they are seriously prepared to debate the fundamental construct that they have come forward with. It seems to me that they dreamed up an answer to the problem but did not consult fully—they had selective consultation where individuals were picked off—and the result is that they do not now have consensus support, and the Bill is in trouble because of that.

[Lord O’Shaughnessy]

I say to the noble Lord, as I have said to all noble Lords from the beginning, that we are determined to reform the system so that it delivers what it ought to for people who are being deprived of their liberty. The Government believe that the care home manager, the person ultimately responsible for the care planning and delivery for individuals under their care, must have a central role in arranging assessments when someone has been deprived of their liberty.

I say to the Committee that, given that so much of the success of the Bill will revolve around our ability to define this role properly and to ensure that there are appropriate checks and balances and appropriate training so that it delivers the capacity and capability that noble Lords have talked about, I want to work with stakeholders and noble Lords to ensure that we can do that. I think that is both possible and desirable, but I also recognise that it is not something we have yet achieved. I hope that as we go through our deliberations today and next week, and as we look forward to Report, that is something that we will be able to deal with so that the consensus that the noble Lord talks about currently being absent is something that we can build. On that basis, I hope the noble Baroness will feel able to withdraw her amendment.

--- Later in debate ---

[Baroness Tyler of Enfield (LD)]

I have a fair degree of sympathy with the sentiment behind this group of amendments. It is right that the Committee looks at what an appropriate role for the care manager might be. We have not got it right yet and it is clear from the debate so far, and the representations received from the sector and from people who deal with this day to day, that there must continue to be some sort of more independent element in the assessment. It cannot simply all come down to the care manager. However, I equally have some sympathy with the idea which was partly behind the Bill. We need better integration between care planning and the difficult decisions that have to be made about deprivation of liberty.

That is why we must explore further what an appropriate role might be. I am not quite sure what it is. Is it simply making referrals or some sort of co-ordination? I share the concerns of other noble Lords about dilution of safeguards, conflicts of interests and all that, but equally we must make sure that the care manager has an appropriate role and is not left out of the picture. We are talking about a very important sentiment.

I welcome what the Minister said in response to the previous group of amendments about the position he has now come to on including 16 and 17 year-olds and putting the cared-for person at centre stage to ensure that they are part of the consultation. I particularly welcome what he had to say about changing the language of unsound mind.

[Lord O'Shaughnessy]

I thank noble Lords for a concise but incisive debate on this group of amendments. As the noble Baroness, Lady Thornton, said, this is really about the role of those organising assessments for the deprivation of liberty and about who is responsible for pre-authorisation reviews. As has been mentioned by the noble Lords who tabled them, many of these amendments specify that pre-authorisation reviews must be completed by someone who is not employed by an organisation involved in the day-to-day care of the cared-for person or in providing any treatment to that person.

Paragraphs 12 and 13 of the schedule outline that, in all cases, arrangements must be authorised by the responsible body, which is either a local authority, hospital manager, CCG or local health board. It is our intention that only the responsible body, or an individual working on their behalf, will conduct the pre-authorisation review. Currently, senior social workers will often review DoLS applications when they are received. Similarly, we expect that, under the liberty protection safeguards, those for care home cases will be completed by a senior social worker. There are circumstances in which the responsible body is also the organisation that delivers the day-to-day care of treatment—and that is one of the concerns raised about conflicts of interest. This will usually be the case when NHS organisations are the responsible body, but it will also be the case for authorisations in local authority-run care homes.

Unfortunately—although I understand the motivation behind them—the amendments tabled by the noble Baronesses, Lady Jolly, Lady Thornton, Lady Murphy, Lady Barker and Lady Finlay, would make it harder to satisfy the pre-authorisation review requirement where the responsible body also delivers the day-to-day care and treatment; this would be especially so for smaller NHS bodies such as some trusts and CCGs. It would mean such bodies having to hire people from outside organisations specifically for the role, which could introduce complexity and lead to delays.

[Baroness Thornton]

I hate to interrupt the Minister, but I think he might be answering the next group of amendments. I am not sure—perhaps he is answering both groups together—but it feels as though he is answering a speech I have not yet made.

[Lord Cashman (Lab)]

My Lords, before the Minister gets to his feet, I want to thank the noble Baroness, Lady Finlay, for that clarification. Precisely those concerns about the role of the care manager and the care home were put to us when we met 30 or so representatives from the different services. They also dealt with the potential conflict of interest. As was said earlier by the noble Baroness, Lady Murphy, there are always conflicts of interest in professional fields. Here, we are dealing with a conflict of interest around someone’s deprivation of their liberty, and we need to get it absolutely right. With that clarification, I say that the amendments make us think again about precisely how we can deal with the backlog and how we can be effective but give the individual the rights and protections they deserve.

Finally, I also thank the Minister for his early intervention and assurances around the inclusion of 16 and 17 year-olds and on the phrase “unsound mind”, which I raised during our first day in Committee. I hope that I have not detained him from his notes.

[Lord O'Shaughnessy]

I am grateful to Members of the Committee for their sympathy and for giving me breathing space. I was flustered by flipping forward and almost missing out this group of amendments.

As the noble Baroness, Lady Finlay, said, the issue of concern is the distinction between the person who is responsible for somebody’s care and the person who manages a care home—they are of course different. What we are trying to get right here—I understand that this is what the amendments are exploring—are the relevant responsibilities of those people, bearing in mind that we want to integrate liberty protection safeguards into the process of care planning.

The noble Baroness, Lady Barker, knows huge amounts about this topic and I very much respect her opinion. She pointed out that DoLS assessments are different from assessments under the Care Act. There are some overlaps. As she will know, there are similar questions or parts in both assessments concerning consent, for example, but she is right that they are different types of assessments. I want to explore whether her or indeed the Committee’s concern is that those assessments should not be carried out by care home managers or whether—a more positive view—they should be carried out by certain types of professional. Those are subtly different points. Perhaps I may give her the opportunity to respond in a moment, as I am really keen to explore this matter.

Clearly, we are trying to make sure that those who have the professional expertise to carry out certain types of assessments do so. Equally, we are trying to make sure that a co-ordinating body has responsibility for ensuring that these assessments are carried out in a proportionate way and are included with care assessments in an overall care plan, with people being answerable to the relevant regulatory bodies. If the noble Baroness would not mind, I would be grateful if she, along with other noble Lords, gave her perspective on that. I want to make sure that we determine the appropriate role of the care home manager.

[Baroness Barker]

I thank the Minister very much for that because it enables me to point out something that I am sure he and all noble Lords know—that, when it comes to deprivation of liberty, the body which is ultimately responsible for that in court is not the care home but the state body, which would be the NHS body or the local authority. The Minister said that responsible bodies currently receive from care homes the referral forms and then do a desk-top assessment of those. Yes, they do that; however, they do it in the knowledge that the person will be seen by a qualified person. The problem with the Bill as it stands is that that is not an automatic assumption that a responsible body can make because of the gatekeeping role of the care home manager.

--- Later in debate ---

What I am trying to say is that those assessments should be made by a professional. I agree with the noble Baroness, Lady Finlay, that care home managers will, by necessity, have only some of the information needed to make it. It is therefore right that there should be greater involvement of someone experienced in care planning. I also want noble Lords to be aware that there will be a group of people for which there may have been no care planning: those who are self-funding. We need to get the right people aligned in the right process at the right time. That is, I think, what a number of noble Lords are trying to probe.

[Lord O'Shaughnessy]

That is helpful, and I am sure the noble Baroness, Lady Finlay, will respond to those comments from her perspective. The noble Baroness goes to the point of the noble Baroness, Lady Tyler, about making sure we get the definition of the role of the care home manager right and the various types of case studies. As the noble Baroness said, there are self-funders, those in local authority-funded homes, those in homes funded by the NHS and so forth. In a sense, that is the point I was trying to make in the first group of amendments as I realise that we have not clarified that to a sufficient degree so as to put people’s minds at ease that what we are proposing is appropriate and deals with people’s concerns or exposes those concerns as being well founded and then enables us to do something about it by the time we come back on Report.

I apologise again for the false start in my response. However, this has been a useful debate and I am keen to hear the reflections of the noble Baroness, Lady Finlay, as, I hope, she withdraws her amendment.

[Baroness Finlay of Llandaff]

I thank the Minister; I am very grateful to him. If I have understood it correctly, the noble Baroness, Lady Barker, supports my Amendment 30A, which requires that a registered professional—who, if they really get it wrong, would lose their registration—who has responsibility for the care plan and appropriate experience and knowledge, should make the determination. In other words, it is not good enough just to be a professional. I go back to the example of people with a head injury, who need a highly specialised assessment and overview so that a lead can be taken on the care planning process.

--- Later in debate ---

[Lord O’Shaughnessy]

My Lords, I thank all noble Lords who have tabled amendments in this group. I am grateful for what has again been a high-quality and well-informed debate.

I want to deal with the main issue raised by the noble Baroness, Lady Jolly, at the beginning of her comments, which is the subject of the amendment in the names of the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton. The amendment would clarify in the Bill that a pre-authorisation review cannot be completed by a care home manager, who would be excluded from such a role. I am happy to assure all noble Lords that the role of care home managers in the new system is to provide the statement to the responsible body and, where necessary, to arrange assessments—as we have discussed. Their role is not to authorise arrangements. It would not be appropriate for care home managers to complete pre-authorisation reviews. I assure the Committee that we will make sure that the Bill reflects this. I hope that is at least one brick in the road towards defining the proper role for care home managers. In these amendments we are discussing the degree of independence and making sure that we minimise conflicts of interest.

A later amendment in the name of the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, specifies that the person who completes a pre-authorisation review should also be qualified as a medical practitioner, nurse, social worker, speech therapist, occupational therapist or other profession as may be specified in regulations. I assure noble Lords that we would expect people from those professions to take on this role. That will be specified in the code of practice.

There is also a specific requirement that the pre-authorisation review be completed by somebody not involved in the day-to-day care of the person or delivering treatment to them. That is another safeguard.

Amendments in the names of the noble Baronesses, Lady Jolly, Lady Thornton, Lady Murphy, Lady Barker and Lady Finlay, would make sure that smaller NHS bodies sought external people to carry out reviews. I understand the motivation behind them, but I am concerned that they would introduce complexity and lead to delays. The issue is resolvable within the system proposed because of the independence and quality of AMCPs, or approved mental capacity professionals—referred to the by noble Baronesses, Lady Murphy and Lady Finlay. They will consider all applications to authorise a deprivation of liberty where it is reasonable to believe that the person objects to proposed arrangements, or in other complex cases. Reflecting on a point made by the noble Baroness, Lady Thornton, we may need to provide more detail and studies of the kind of cases that we are talking about or envisaging, where an AMCP would be involved in the review. I take very seriously the point made by the noble Baroness, Lady Thornton, about the consequence of that, given that the responsible body will have the legal duty to ensure that it is carried out properly. I find that reassuring because it will not be a tick-box exercise: it will need to make sure that the assessments have been carried out properly. That was one of the questions put by the noble Baroness, Lady Meacher, when she asked about the access of the responsible body to such assessments. It will mean that that body will probably err on the side of caution, but it will also mean that we will have a more proportionate system than we do now. That is to be welcomed. Those AMCPs, as has been pointed out, could be salaried professionals within a local authority; they might even be close to commissioners, but their role will be independent, just as best-interests assessors are independent, and they will be responsible to their own professional bodies. That is something in the system on which we can rely.

The noble Baroness, Lady Meacher, and other noble Lords mentioned advocacy, and I know that we will be turning to that later. It is important to state—not only as I did at the beginning of the first group about making sure that the person involved is properly consulted—that they have the right to request a review, that they have access to representation from an independent mental capacity advocate or another appropriate person, and that ultimately those responsible for their welfare and care can challenge the authorisation in the Court of Protection.

I know that there are a couple of outstanding issues. The noble Baroness, Lady Jolly, asked if we could look at fee levels and that is certainly something that I will look at. The noble Baroness, Lady Meacher, asked how IMCAs are paid for. That is currently allowed for in the Mental Capacity Act and that is not changed by this Bill, but I will write to her to clarify that.

I hope that this response—particularly about the role that care home managers will not play in preauthorisation reviews—provides reassurance that we are conscious of the need to provide that independence in the system to reduce, and indeed remove, conflicts of interest and perceptions of conflict of interest wherever possible. As ever, as has been the theme of today, I continue to want to work with all noble Lords to ensure that we determine that the system, which still has great merit, is able to respond both to the needs of the people who are being cared for and to any concerns on behalf of those people from their families and stakeholders that there are conflicts of interest. I believe that the pieces of the puzzle are coming together, but I am conscious that we need to continue working together to complete it. On that basis, I hope the noble Baroness will feel able to withdraw her amendment. I look forward to further discussions on this topic to make sure that we are able to introduce as much independence as possible into the system.

[Baroness Jolly]

I thank the Minister for his remarks. The only point I would like to make at this stage is about the use of the code. The code offers something that might not be permanent, whereas anything that goes into legislation is permanent, so I would just be wary of that. I will study Hansard carefully, but for the moment I beg leave to withdraw the amendment.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 15th October 2018 Lords Chamber

[Baroness Stedman-Scott (Con)]

My Lords, I thank all noble Lords for initiating this discussion about approved mental capacity professionals and providing me with an opportunity, for the first time ever, to respond to amendments to a Bill.

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

Hear, hear.

[Baroness Stedman-Scott]

I thank my noble friend for that intervention. I have been hugely impressed by the commitment on all sides of the House to interrogate this Bill to make sure that it is fit for purpose and does the right job for the people we all seek to serve.

The amendments from the noble Baronesses, Lady Thornton, Lady Jolly and Lady Finlay, would have the effect of requiring that, in each and every case referred to an approved mental capacity professional, the AMCP would have to explicitly consider whether the case should be referred to the Court of Protection. We are clear that if a person wants to challenge their authorisation in the Court of Protection they have the right to do so. However, part of the reason we are creating the approved mental capacity professional role is so that cases where the person is objecting to the proposed arrangements can be considered outside having to go court, which we expect to be in line with the people’s wishes. It is always good to remind ourselves—as has been done many times during today’s business—of what we are trying to achieve and what we are trying to avoid. If we can avoid going to court, as has already been said, but serve people well, then we will have achieved something.

I am conscious that we do not want to create a situation where approved mental capacity professionals defer their responsibility to the Court of Protection and individuals have to undergo court procedures unnecessarily, particularly as we know this can be burdensome for people. In the short debate about this group of amendments, we have all agreed that we should avoid court at all costs, not only fiscally but because of the burden, stress and blockages that it puts into the system. However, I would like to reassure noble Lords that the responsible body has a responsibility to ensure that individuals who want to bring a challenge, in line with their Article 5 rights, have access to the Court of Protection, and the approved mental capacity professional would be important in identifying where this will be the case.

The amendment of the noble Baroness, Lady Barker, would have the effect of requiring the approved mental capacity professional to meet with the cared-for person unless there is agreement with consulted persons that it is not necessary or appropriate to do so. We are clear that our intention is for approved mental capacity professionals to meet with the cared-for persons in almost all cases. Exceptions would be extreme circumstances, such as if the cared-for person is in a coma or clearly expresses a wish that they do not wish to meet with the approved mental capacity professional. I am sure that noble Lords agree that in these exceptional cases it is right that the approved mental capacity professionals do not meet the person.

To reflect this, we have imposed a duty to meet the person where it appears to the approved mental capacity professionals to be appropriate and practical to do so. I understand that the intention of the amendment is to limit the circumstances in which an approved mental capacity professional does not meet with the cared-for person. However, I am conscious that there could be situations—for example, where the AMCP and all consultees bar one agree that it was not necessary or appropriate to meet the person. However, if one consultee did not agree, it would mean that one consultee would effectively have a veto and the AMCP would be required to meet the person. We will ensure that guidance regarding that rare circumstance where it is not practical and appropriate is included in the code of practice.

The amendment of the noble Baronesses, Lady Barker and Lady Hollins, and the noble Lord, Lord Hunt of Kings Heath, requires the person completing the pre-authorisation review, where this is not an approved mental capacity professional, to meet with the cared-for person regardless of whether this is appropriate or practical. We appreciate that there may be circumstances—

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[Baroness Hollins]

My Lords, these amendments in the name of the noble and learned Lord, Lord Mackay, and myself are about mediation, conflict and decision-making. It is a complex area and made more complicated now that the Bill is being extended to 16 and 17 year- olds. Rather than taking time in your Lordships’ House this evening, I believe the noble and learned Lord, Lord Mackay, would prefer to discuss this matter with the Minister and decide whether the Bill is the right place to progress this issue. I am grateful to the Minister for already having agreed to discuss it. I reserve the right to return to this on Report if no progress is made.

[Lord O'Shaughnessy]

We have had a discussion about the issues under consideration here, which are in some ways prompted by the experience of the Gard family and their son Charlie; we are all aware of the tragic circumstances at the end of his life. We agree with the noble Baroness and my noble and learned friend that these are incredibly important issues, and we are grateful to them for tabling the amendment. However, I think this would be best pursued outside of the confines of the Bill. I give her my commitment to do that; I am keen to work with her and with all noble Lords who have a particular interest in this issue, to ensure we come to the right conclusion. On that basis, I am sure she will withdraw the amendment.

--- Later in debate ---

[Baroness Finlay of Llandaff]

It might be of assistance if I intervene here. If the noble Baroness is referring to amendments in the group beginning with Amendment 58A, I understand that if she does not speak to them now, they can be dealt with in the next group.

[Lord O'Shaughnessy]

I am no expert in parliamentary procedure but my understanding is that, as they come after the amendment we are considering now and indeed the one that we would consider next, they can be retabled.

[Baroness Barker]

I am grateful. I will do that.

[Lord O'Shaughnessy]

I am grateful to the noble Baroness, Lady Finlay, for initiating this discussion. Clearly the purpose of her amendments is to make sure that an authorisation cannot be renewed if it wholly or in part ceases to have effect. In some cases, an authorisation will not be renewed if in part it is no longer valid, but there might be other cases where minor changes to the restrictions are needed and that should not prevent an authorisation being renewed. We want to provide further detail in the code of practice and I would appreciate the opportunity to work on that with her.

The noble Baroness has also tabled amendments outlining that authorisation records should detail when arrangements are not authorised or if they are authorised with conditions, and that in care home cases responsible bodies should consider other relevant information, as well as information provided by the care home manager. I can tell her that in some cases if arrangements are not authorised, it might be useful to include them in the authorisation record. However, given the debate that we had on the previous grouping about the general trend towards the inclusion of data or information within records that are then made available to patients, their families and so on, I want to reflect on whether they should always be included and I will come back to that on Report.

The Bill allows the responsible bodies to consider information other than that provided by the care home manager, and further detail on the circumstances and kinds of information will be provided in the code of practice. On that basis, I hope that the noble Baroness is reassured and will feel able to withdraw her amendment.

[Baroness Finlay of Llandaff]

I am most grateful to the Minister for that clarification. I agree that some parts of this would be better in the code of practice than in the Bill, particularly because they might need modification as experience develops. If they are in primary legislation, we are effectively stuck with them for a time, whereas otherwise they can be altered. Therefore, I beg leave to withdraw the amendment.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Baroness Thornton (Lab)]

I thank the noble Baronesses, Lady Barker and Lady Tyler, for tabling this amendment. I agree with the remarks of the noble Baroness, Lady Barker, about the state of the Bill. I am rather—“disappointed” may not be quite the right word—surprised that the noble Baroness, Lady Murphy, who has brought discipline to the House to focus on good legislation and how it should work, is suggesting that we have to have something, so this is it. I really hope that that is not the case and that this Committee will have revealed to the Minister, and particularly to the Bill team, that many elements in the Bill need clarification, need to be changed and can be improved. That is our job, and the noble Baroness, Lady Barker, is highlighting but one of those elements. In fact, the amendment that I am due to talk about next refers to the difficulties that the Bill has brought and the differences between the Mental Health Act and the Mental Capacity Act.

The last month or so has been very revealing. The Bill was sold to us as something really quite simple that was going to streamline things, get rid of the backlog, save some money and so on, and it really needed only one day in Committee. That is certainly how it was sold to me on these Benches and, I am sure, to other people in the House. In fact, what has happened over the last couple of months is that all the stakeholders and people who are writing to us are saying, “No, this will not do. This Bill does not work. It is dangerous and difficult”. It needs clarification, and these amendments highlight the areas that need it. We are going to move on to other areas that need clarification and which will certainly need amendment. This is an important and legitimate question to ask about the Bill.

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

My Lords, I thank all noble Lords—I keep saying “noble Lords” but it has really been noble Baronesses, so I will switch my language—who have both tabled amendments in this group and spoken to them.

Before I come to the substance of the amendments, I shall say two things. First, I agree with the noble Baroness, Lady Murphy, that there is an urgency. To use the words of the Local Government Association, “the current system is unable to ensure there is adequate protection for human rights”. That is the reality of the situation that we find ourselves in at the moment.

Secondly, views about the perfection or otherwise of the Bill will vary across the House, but I hope that in the two days of Committee prior to this one I was able to demonstrate that the department and Ministers are absolutely committed to improving the Bill in any way that we can during its passage through Parliament, especially in this House where there are so many experts. I really think we have made some progress. I realise that that will not be enough to satisfy everyone and there is clearly much more to come—care home managers are clearly a big area of work that we need to focus on—but we have made some progress. I encourage noble Lords to continue in that mindset because I think we can reach a good outcome that deals with the fact that, as Age UK says, the system leaves,

“many highly vulnerable older people languishing without any legal protection at all”,

something none of us can accept. We stand ready to undertake that work, as noble Lords know, and I know they do so too.

I turn to the amendments in this group. Amendment 55, tabled by the noble Baronesses, Lady Barker and Lady Tyler, outlines the circumstances in which an authorisation ceases to have effect, particularly noting that authorisations should end if they conflict with a valid decision of a court-appointed deputy or a donee of a lasting power of attorney. The amendment also states that an authorisation would not cease to have an effect if a person’s capacity fluctuated, and would create regulation-making powers to define what constitutes fluctuating capacity.

Section 6(6) of the Mental Capacity Act already provides that action cannot be taken that conflicts with a lasting power of attorney or a deputy’s valid decision, and I can confirm that the Bill does not change that. This means that an authorisation can only be given if it is in accordance with a valid decision, so I hope I have provided reassurance on that front.

I can also confirm that if it emerges that an authorisation conflicts with a decision of a donee of a lasting power of attorney or by a court-appointed deputy, a review should be arranged under paragraph 31 of the Schedule. In particular, it will need to be considered if the attorney or deputy has valid and applicable powers to make this decision, and if the deprivation of liberty authorisation continues to be necessary. That means that in the event of such a conflict, the authorisation ceases to have effect. I hope that provides reassurance to the noble Baronesses on that point.

The noble Baroness, Lady Tyler, focused particularly on fluctuating capacity. I agree that an authorisation should not necessarily cease to have effect if a person’s capacity fluctuates and there are short periods of lucidity. That is currently the case under the DoLS system and I can confirm that it will continue under the liberty protections safeguards. However, as the noble Baroness, Lady Finlay, brought to life, it is very difficult to define either “fluctuating” or “short”, particularly in legislation. For that reason, we do not think regulation-making powers are appropriate; we believe this would be better dealt with through a code of practice, which would allow for more detail and more regular updating but would also allow the use of case studies to bring examples to life. We plan to give much more detailed guidance in the new code of practice, and I reassure noble Lords that we will be working with the sector in order to produce it.

Amendments 56 and 58 from the noble Baronesses, Lady Barker and Lady Tyler, relate to the thorny issue of the interaction between mental health and mental capacity legislation. They would mean that an authorisation had effect in relation to arrangements that were not in accordance with mental health requirements. As noble Lords know, mental health requirements are conditions placed on Mental Health Act patients living in the community. Currently, DoLS authorisations no longer have effect if a person is subject to arrangements or conditions under the Mental Health Act and that authorisation would be in conflict. This means that the terms of a DoLS authorisation cannot conflict with those of, for example, Section 17 leave of absences. The Bill has been drafted to reflect the interaction that currently exists between the Mental Health Act and the Mental Capacity Act.

The review of the Mental Health Act has been mentioned in this debate. The review, chaired by Sir Simon Wessely, has been considering, among other things, the interaction between these two pieces of legislation. I know the noble Baroness, Lady Barker, has sincere concerns about the nature of that interaction and about why we are bringing forward this legislation now. My short answer is that urgent reform is needed for the reasons that we have set out, including the quotes that I have given. The contribution from the noble Baroness, Lady Meacher, was helpful, and I have put in my notes that I need to speak to Sir Simon Wessely myself to understand his perspective. However, if I have understood correctly, regardless of the timing of his report, the process of implementing his proposals will take some time to do properly. In our view, it is not right to wait until that has been perfected before we try to deal with many of the issues under consideration in the Bill in the light of the current inefficiencies of the DoLS system. It is for that reason that we want to push ahead. As I have said, I will take it upon myself to speak to Sir Simon Wessely and get a real understanding of his expectations on timing, and to try to understand from his point of view the scale of the interaction between these two pieces of legislation so that we really know what is at stake.

I think the noble Baroness herself said that the amendments are essentially probing. She will know that the effect of them would be that two authorisations could be live at the same time. I am confident that that is not what she is proposing, not least because it would have the perverse effect of requiring people to be in two places at once, so I know she was using this as an opportunity to discuss this question. As I said, it is important that we move ahead for the reasons that we have discussed, notwithstanding that the Government will of course consider incredibly carefully the findings in Sir Simon Wessely’s report and what action is required to implement his recommendations.

On a couple of occasions the noble Baroness, Lady Barker, referred to the consideration of harm to others. I am told that harm to others can be considered under the current DoLS system, so what is proposed is not a change from the current system. However, I will pick that point up with her offline so that we can really get to the bottom of it and ensure complete clarity to a degree that satisfies her. I hope that on that basis, the noble Baroness feels able to withdraw the amendment, and I look forward to discussing more of these issues throughout the evening.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My Lords, I have three amendments in the group designed to remove any ambiguity about authorisations, in that an authorisation would fall if it partly fell—in other words, if the person’s condition had either improved or changed to such an extent that the plan in place was no longer applicable, even in part, that would warrant a complete review. I accept that it would have to be a light-touch revision, because some things might not have changed, but I am not comfortable with simply allowing it to be reviewed and people to say that these parts of the condition no longer apply.

Amendment 58C is to stress the need for evidence to be supplied to support statements. I hope that the Minister will be able to provide me with some assurance. That evidence might come from photographs, video recordings of behaviour or whatever. That may be quite different to the written word. I worry that one person’s observed written word may not adequately portray a picture, particularly where the cared-for person has become withdrawn. Someone might interpret that as their being compliant, when actually they may be deeply unhappy. A broader direct recording of the person could be helpful.

I tabled Amendment 62A because I was concerned that the care home manager might be in the process of arranging for adaptations to be made to meet the cared-for person’s needs in line with that person’s wishes and feelings, and that the Bill’s wording does not provide enough flexibility to consider the arrangements to meet the individual’s needs.

[Lord O'Shaughnessy]

I thank the noble Baronesses for tabling their amendments about renewals. I deal first with Amendment 58A, moved by the noble Baroness, Lady Thornton, which, as she said, would have the effect of meaning that authorisations cannot be renewed for longer than 12 months. As she pointed out, this would go against the Law Commission’s recommendation, which was that there could be circumstances under which renewals took place for up to three years, particularly following an initial review after up to 12 months and if it was unlikely that there would be a change in the person’s condition.

These three-year renewals are in place so that those who are in a stable condition and unlikely to recover are not subjected to annual assessments. The Bill does provide the safeguard—referred to by the noble Baroness—which ensures that an authorisation would need to be reviewed if there is a change. We would also want to make sure that there are appropriate reviews of arrangements when annual reviews under the Care Act take place. It would be up to the responsible body to set review periods. In care home settings, the care home manager must report to the responsible body on any reviews that have been carried out. As the Bill stands, there are significant safeguards to prevent abuse or lack of care of the vulnerable person.

All that being said, I know how strongly noble Lords and stakeholders feel about this issue. The noble Baroness, Lady Thornton, made a valid point about aligning the review process with the terms set out under the Care Act. I would like to give further thought to this, particularly in the context of the discussions which will be taking place about the proper role of the care home manager. There is clear concern about a proper system of oversight and regular review where responsibility has been devolved to the care home manager. If the noble Baroness will allow me, I will follow that up after this debate.

Amendment 58B, tabled by the noble Baroness, Lady Finlay, considers an authorisation ceasing to be renewed if it has lapsed wholly or in part. We will want to give further consideration to that. As discussed earlier in Committee, there are circumstances under which one might be happy for an authorisation to continue after a very minor change. That might be the proper process to align this to, and I want to give further thought to this.

Amendment 58C asks that, when deciding whether to renew authorisations in care home cases, responsible bodies should consider other relevant information, as well as that provided by the care home manager. I can confirm that the Bill does allow responsible bodies to consider information other than that provided by the care home manager. That would, inevitably, be in other formats too. We will set out more detail on that in the code of practice.

Amendment 62A would add the word “arranging” to the scenarios in which the care home manager was required to notify the responsible body that an IMCA should be appointed. The amendment intends to make sure that that happens at the earliest stage, including when the assessments are being arranged. That is what the word “proposing” in the Bill achieves. We are satisfied that the language currently in the Bill means that care home managers would be looking at this issue when they are beginning to propose an authorisation, which is the earliest point at which planning for, arranging or bringing together the assessments would take place. I would be happy to demonstrate what underpins our belief that this is the case. I do understand what the noble Baroness is driving at; it is something which we are trying to achieve.

On that basis, I hope that the noble Baronesses are willing to withdraw or not move their amendments.

[Baroness Thornton]

I thank the Minister for his answer. I am encouraged that we are going to continue the discussion on this issue. Apart from anything else, I will need quite a lot of convincing that the Bill provides the right kind of protections to allow a period of three years, as currently stated.

On the amendments tabled by the noble Baroness, Lady Finlay, I was reminded when reading the letters the Minister has written to noble Lords, and the record of the previous two days in Committee, that we need to clarify the meaning of “care home manager”. Or is it “care manager”, an expression which he has also used? I do not want an answer to that now, but I put it on the table as one issue which we need to clarify in our discussions and in the Bill. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Thornton]

I will add to the questions that have already been asked of the Minister: who is going to pay for this? Training is very expensive and I was waiting for the noble Baroness, Lady Jolly, to ask that question but she did not, so I am asking it. As I recall from the impact assessment, I am not sure that there is a large sum of money in there for the amount of training that might be necessary to ensure that this Bill is properly enacted.

[Lord O'Shaughnessy]

I thank the noble Baroness, Lady Finlay, for tabling these amendments and precipitating this discussion. I will move straight on to the substance of the amendments. Amendment 61 provides that local authorities must make arrangements for a named person to be in charge of training and revalidation of approved mental capacity professionals and that local authorities must make arrangements for contracts with neighbouring local authorities and health bodies as required.

On the issue of approvals and training, the Bill is clear that local authorities must approve individuals to become AMCPs, and regulations under paragraph 33 will make provision around training, qualifications and other eligibility criteria. The question of what kind of training there should be and who pays is something that we discussed at some length on the last Committee day. That was more in relation to care home managers, which was primarily the focus of the questions of the noble Lord, Lord Hunt. The same read-across applies to AMCPs as well. On that occasion, I committed to bringing forward more details of what the training would look like. I also confirmed that, in England, Health Education England and ADASS would be responsible for working with Skills for Care, and Social Work England. Those are the bodies that would be responsible for overseeing and designing the training. The noble Baroness, Lady Jolly, asked about the rights of individuals. Of course, that would be the centrepiece of any training programme to make sure that those rights are properly respected.

On the specific question about local authorities naming an individual, I say that the Bill does not prevent them doing so. It is something that they are able to do and, in our view, it does not need to be set out in primary legislation. There is no such requirement for best-interests assessors or approved mental health professionals, I understand, and that has not caused any difficulties in practice. To that extent, we can mimic the arrangements in place there.

Making arrangements with other local authorities is again not precluded by the Bill. Clearly, that is something that local authorities will want to do, depending on the arrangements they have commissioned in care across different authorities. I can confirm that we will provide guidance on this in the code of practice.

Amendment 61A adds to the criteria that must be met for a person to become an AMCP. They must be,

“a registered professional, with a minimum of three years clinical experience”.

A list sets out whom that could include; that list has been added to by one tonight, which in some senses exemplifies the nature of the problem. I completely agree with the noble Baroness: we need to set out not only the kind of professionals but the kind of qualifications and experience. There has to be a balance and a mix between all of those. That will be set out in regulations. The noble Baroness, Lady Barker, asked about the proper place to set out the rigidity or robustness, and we believe that the appropriate place would be in regulations, which provide a degree of flexibility that would not apply if we enshrined this in primary legislation. That is why we are proposing the approach of defining the groups that should be acting as AMCPs.

[Baroness Barker]

How many cases have been taken to the Court of Appeal on the basis of regulations not being observed, as opposed to something in an Act? I do not expect an answer now, but I would like to know.

[Lord O’Shaughnessy]

I am afraid that I do not know, but I will write to the noble Baroness and circulate the letter to all noble Lords.

To conclude, I hope that I have provided the noble Baroness, Lady Finlay, with the reassurances that she was looking for and that she will be prepared to withdraw her amendment.

--- Later in debate ---

[Baroness Thornton]

My Lords, we on these Benches very much agree with the purport of these amendments, which again bring to light some of the ambiguities in the Bill and some of the rights that are not properly respected by it. Over the next period the Minister will not only need to give us a theoretical answer but have to answer things such as the question about Winterbourne View, and look at the hard examples of real experience which some of us have been receiving in our postbags over the last month. We will need to return to this over the next few weeks, and possibly even at the next stage.

[Lord O'Shaughnessy]

I am grateful to all the noble Baronesses for their amendments and for speaking in the debate on this group. Let me begin with a statement of principle. I accept the challenge from the noble Baroness, Lady Thornton, that we need to move from principles to practicalities, or in our case to the appropriate legislation. There is genuinely no attempt in the Bill to restrict people’s access to independent advocacy. As has been clearly voiced, not only in this Chamber but elsewhere, there is a concern that that will be the effect of what is proposed, and that is something that we need to deal with. But let me say at the beginning that that is not the intention. It must be the case that anybody who needs support to navigate these difficult and complex situations must be able to find the right support for them. I will explain why the Bill is as it is in a moment, but let me at least give that statement of principle at the beginning.

I will deal now with the specific amendments in this group. Amendments 63 and 64 aim to ensure that the Bill is robust on the appointment of the IMCA. I completely agree that it is vital that the care home manager notifies the responsible body that an IMCA should be appointed. That is required by the Bill. However, I know that there is great concern about the impartiality of this person and a requirement for strengthening in this regard. It is also our position that a responsible body will be able to appoint an IMCA if there is a request by, for example, a family member or the person themselves, or if there is a disagreement with the notification given by a care home manager. I am considering how we can make the Bill clearer in that regard. As we home in on the issue of the incentives for the care home manager to follow best practice, as we would want, I am aware that we need to do more work on this to get it right.

[Lord Hunt of Kings Heath]

My Lords, that is a very helpful comment but will the Minister pick up the point that part of the problem is that the care manager is not only the co-ordinator but often the gatekeeper to the protections that noble Lords wish to see included? Take, for instance, the definition of “relevant person”. It seems to me, looking at this afresh, that far too much authority is being given to the care home manager in relation not just to co-ordination but to the protections.

[Lord O'Shaughnessy]

I thank the noble Lord for that intervention. The debate we had last week was very much around the proper role for the care “home” manager—I take on board the rejoinder from the noble Baroness, Lady Thornton, about the specificity of terms. I do not want to rehash that debate, save to say that the care home manager model is the right one going forward, while recognising, as I did last week—here I agree with the noble Lord’s point—that there are a lot of concerns about conflicts of interest, training, the degree of responsibility and other things.

In this case, we are talking about notification of the appointment of an IMCA, where there is real concern that there is an element of marking your own homework. That is not what we are trying to achieve: we are trying to achieve the consideration of deprivation of liberty at the earliest possible point in care planning by somebody who is responsible for organising—although in lots of cases not personally delivering—that care. We are trying to deliver a more proportionate system than the one that we know is currently failing. As I committed to in last week’s Committee debate, I want to get that right. If we cannot get it right, the risk is that we end up replicating the system that we have now, which would be in nobody’s interests. I hope that, by restating that, I have satisfied the noble Lord.

Amendments 68, 71 and 72 relate to the criteria for appointing IMCAs. The Bill currently states that an IMCA should be appointed if a person has capacity to consent to being represented and supported by an IMCA and makes a request to the relevant person, and there is no appropriate person available. It also states that a cared-for person should be supported by an IMCA if the person lacks capacity to consent and being represented by an IMCA is in their best interests and there is no appropriate person in place.

I recognise the concern expressed by the noble Baronesses, Lady Barker and Lady Thornton, about the term “best interests”. Let me state again the intention that, in the vast majority of circumstances, we expect it would be in a cared-for person’s interests to receive representation and support from an IMCA or appropriate person. However, there may be a small number of circumstances where that is not the case. For example, if a person is adamant that they do not want this sort of representation, and has refused advocacy support in the past, it would not be right to impose such an advocate on them. If we remove the best interests consideration, we risk a situation where responsible bodies can override the past and present wishes of the person.

[Baroness Barker]

I thank the Minister for that explanation. Given that the Bill as drafted is essentially a “get out of jail free” card for bad care home owners, the Government must have a really good evidence base to have come forward with a proposal as sweeping as that. I wonder whether the Minister can share with us the evidence that has led to the Government putting this in the Bill. It really should be quite convincing, given that it has got to this stage. It would be helpful if he would let noble Lords see that evidence.

[Lord O'Shaughnessy]

I am happy to discuss the issue with all noble Lords, as I have said in the past. I return to where I started: the intention of this approach is to make sure that independent advocacy is not imposed on someone who genuinely does not want it. It is not to provide a “get out of jail free” card for poor care home managers. If that is a concern, I take it very seriously, but it is not the intention of the Bill. However, if it is the case, something needs to be remedied. Let me assure noble Lords that I will make best efforts to do so as we move forward from Committee.

This has been a very useful discussion. In some sense it has provided a degree of continuity from our discussion last week, while moving on to the issue of advocacy, which we will clearly explore further. I hope that, with the reassurances I have given at this stage, the noble Baroness will feel able to withdraw her amendment.

[Baroness Finlay of Llandaff]

My Lords, this debate has been extremely interesting and, in many ways, gets to the nub of some of our concerns. In looking at the Bill, one thing I have tried to do is to benchmark its procedures to see how they would work. I was involved in prosecuting appalling care in EMI homes. I am trying to see how we could have discovered sooner that there were problems there.

I share the concern about the care home manager having too much power. Having said that, I have found the Minister’s answers today reassuring, as they were on the second day in Committee. I suggest, however, that the number of objectors will be very few, because many of these people have such impaired capacity and are not in a position to object—it may be other people who speak up on their behalf.

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[Lord Touhig (Lab)]

My Lords, these amendments go some way to ensuring that a cared-for person is not left without an independent mental capacity advocate or the support of an appropriate person. Much of the Bill as it stands represents what I think is a real assault on human rights. For heaven’s sake, we should be listening to the contributions of the noble Baronesses, Lady Hollins, Lady Barker and Lady Finlay, and that of my noble friend Lord Hunt. He has shared with me the email from the carers of HL and it is very powerful. My father was a miner and he would have said, “This is the experience from the coalface”. We can take this as an important contribution to understanding the difficulties that families face when they have to deal with the issues we are discussing.

Amendment 66 would give a local authority discretion to appoint an appropriate person or an independent mental capacity advocate without notification from a care home. Mencap and others have argued most powerfully that this amendment would minimise the risk of conflict of interest. That is important, as we have seen in other debates. It would mean that a care home arrangement could be more easily challenged and subject to scrutiny. Is not challenging and scrutinising what we do every day in this House? We challenge and scrutinise legislation brought forward by the Government; that is our role. Why would we deny that opportunity to the vulnerable people we are talking about in this Bill?

As it stands, the process for deciding whether to appoint an appropriate person or advocate requires a series of capacity assessments and best interest decisions made by the responsible body or the care home manager, even though both convention and domestic law have made it clear that there is no place for best interests in Article 5 appeal rights. Unless we effect change, this Bill will pass into law and we will see a cared-for person without the appropriate support of either an independent mental capacity advocate or an appropriate person—and that at a most crucial time in their life. That cannot be right. Amendments 76 and 77 are important if we are to ensure that the appropriate person gets the support they need for the role they have undertaken. We have had several long and important debates during the passage of the Bill. These amendments are reasonable and surely the Government must now start to listen.

[Lord O’Shaughnessy]

I thank all noble Lords who have put their names to these amendments and given us the opportunity to carry on what has been a very good discussion so far about the important role of IMCAs and, indeed, appropriate persons as well. I shall deal first with Amendments 65, 66, 67, 69, 70 and 76 as they relate to the circumstances under which a person can request an IMCA and under which an IMCA can be appointed.

As I said in the previous debate, it is our intention not to have any reduction in advocacy or support as a consequence of the Bill. Indeed, it is our position that a responsible body should be able to appoint an IMCA if there is a request by a cared-for person or family member and either a care home manger has not provided notification or the responsible body disagrees with the notification given. As I also said then, I recognise concerns that the circumstances under which an IMCA can be appointed would be narrowed as a consequence of the Bill, which is not something we want to happen. I do not want to rehearse the entire debate we had last time other than to say that it was a good one. I have assured noble Lords about what I want to take away from that, which is to consider the appropriate way in which we can go forward with the role of the care home manager while making sure that all concerns about restrictions to advocacy and so on are adequately put to bed.

I want to make a point on Amendment 75, which falls into this set of amendments, about why the term “relevant person” is used. I am not quite sure why, specifically; rather, I have an idea, but I do not want to get it wrong. It would be safer for me to write to the noble Baroness, Lady Barker, about why that phrase is used and circulate it to noble Lords. Certainly, this is already a complex piece of legislation with lots of terms and jargon; for goodness’ sake, let us not increase that, if at all possible.

I want to take up the challenge from the noble Baroness, Lady Barker, on rights to information. During the previous debate, I tried to make it clear that we will set out the right to information but rights to information—not rights to request it—have been strengthened by a variety of legislation, some of which has nothing to do with the care of people lacking capacity. I also said last time that we are reviewing the Bill to see if it needs to be revised to achieve the outcome that the noble Baroness wants. I know that she is concerned about this, but work is under way to try to resolve this issue.

Moving on, we have not previously discussed the term “appropriate person”, which relates to Amendments 73, 74, 77 and 80. This is a good opportunity to speak about the important role of the appropriate person in the new model. As noble Lords know, under the DoLS system the relevant person representative—we are getting into difficulties of language—can be a family member, a paid role or even an advocate. That can unnecessarily give rights to two separate advocates. There has been confusion about the purpose of the RPR and how it differs to advocacy. Our intention is that the appropriate person role will be clearer, not least because it is a familiar part of the Care Act, where the appropriate person facilitates the person’s involvement in the care process.

Obviously, that person provides a vital safeguard for the cared-for person. They are appointed to represent and support the cared-for person, ensuring that the person’s rights are protected and that the person is fully involved in decisions. As I said, that is already established under the Care Act for the purposes of caring. The role of appropriate person can be fulfilled by a family member, someone close to the cared-for person, someone with lasting power of attorney or a volunteer. I know from previous discussions how keen noble Lords are to make sure that the voice of the person is central to discussions about their care and the deprivation of their liberty. Clearly, the appropriate person has an essential role here.

The noble Baroness, Lady Hollins, asked specifically about the question of a right to act. It is all very well appointing somebody—they also have to be willing to be appointed—but when appointing an appropriate person or recognising one, the responsible body has to be confident that the appropriate person is prepared to act. Indeed, that is part of their appropriateness. Otherwise, an IMCA should be appointed. That satisfies the noble Baroness’s question at the beginning about an appropriate person being appointed, but not about what happens if they lapse or the process by which they, or their appropriateness, would be reviewed. As it stands, I will need to reflect on that further to explain it to her. The process may well happen through the regular reviews, but I need to take that question away and think about how we provide reassurance that the appropriate person is in a position to act and wants to do so. Clearly, if an appropriate person, not an IMCA, was appointed but not prepared to act, the cared-for person would lapse into a situation where they did not have somebody in their corner, which we are all trying to avoid.

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[Baroness Hollins]

My Lords, these amendments are examples of the long and complicated amendments which I think could end up going wrong, because they are trying to cover quite a lot, which will probably become gold-plated and give rather too much weight to the legal profession. I do not think that what Sir Simon Wessely planned to do is relevant here, because it is not really about mental illness but about dementia. If that is the case, people may not be in a position to change their mind at a later date, so these amendments are very complicated and probably rather unwise.

[Lord O’Shaughnessy]

I am grateful to the noble Baroness, Lady Thornton, for introducing this clause stand part debate. We had a chat earlier, so I shall not formally respond to her but instead deal with the amendments as laid, if that is all right with everybody. Clearly, these are very important issues that need to be dealt with properly.

Amendment 84 would allow individuals to provide advance consent to arrangements enabling care or treatment that would otherwise amount to a deprivation of liberty. As noble Baronesses have commented, the Law Commission recommended that provision should be made in the Bill to allow this. This would mean saying that cared-for people entering certain settings, such as hospitals and end-of-life care, where the arrangements are predictable and time limited, would not be required to undergo additional assessments if they needed to be deprived of their liberty. In the Government’s response to the Law Commission, we agreed that people should have choice and control over future decisions being made on their behalf, but we said that we needed to look at the detail of this specific proposal. I understand that there is enthusiasm among some noble Lords for such a recommendation, particularly, as has been said, as a way of alleviating unnecessary assessments for those in palliative and end-of-life care.

On palliative care, before I get on to more general concerns, I think it is important to note that the Government have issued some guidance about consent in the context of palliative care in the last few weeks of life. I realise that this talks only about one part of the time period that we might be talking about. The guidance says that if an individual has capacity to consent to arrangements for their care at the time of their admission, or at a time before losing capacity, and does consent, this consent would cover the period until their death, hence there is no deprivation of liberty. However, the guidance is also clear that this consent would no longer be valid if significant extra restrictions were put in place, after this point, to which the person had not consented. So there is a situation that pertains to people right at the end of life and provides some opportunity for challenge if restrictions change.

If we extend that time period out, not just to weeks but to months and years, it has been brought to light in this debate that, while there is a desire to make sure that a person’s advance consent is taken seriously and given legal force, concerns have also been raised, not least by the noble Baroness, Lady Finlay, about extending the application in such a way that it could actually deprive people of their protections and human rights. These are clearly concerns that we need to take seriously.

Concerns have also been expressed to the department, in engagement with stakeholders, that the inclusion in statute law of advance consent to being deprived of liberty might imply that there is an expectation that people should have an advance statement of wishes in place, and that people may be pressured into making an advance statement. I take the point made by the noble Baroness, Lady Murphy, that in some ways planning for the future may be a good thing but, equally, we do not want to force people to plan for the future when their desire is not to. We protect the right of people to make bad decisions; that is an important part of a person having a sense of agency and autonomy. Concerns have been expressed that that would be put in danger and people would feel pressured to do something that they might not wish to do.

Clearly, the Law Commission made this recommendation with highly laudable aims. However, we have concerns and are not yet convinced of the merits of the amendment. We have tried to deal with some of the issues around integrating planning through the creation of a system based on the production of a care plan. We have talked about the inclusion of a statement of wishes. I would like to know more about the proposal of the noble Baroness, Lady Barker, about advance statements of wishes. I would like to follow that up and understand it a bit better. The process we are envisaging would allow the inclusion of advance decisions to refuse treatment as part of future care planning. That is not affected by what we are discussing here but that would be allowed. We are not convinced of the merits of the amendment—indeed, we have some concerns about the implications of it—but I would be keen to understand a bit more about previous discussions of this topic and whether there are other ways to provide that sense of agency for the person who will be cared for without producing undue pressure on them or legal force in a way that would go against their interests and, in legal terms, their human rights.

Amendment 85 would create a new civil court remedy against some private care providers, including non-NHS hospitals and private care homes, if they have deprived someone of their liberty unlawfully. Again, this provision was proposed by the Law Commission. However, we do not believe that a new legal remedy is required. There is already an ability to seek damages under the Human Rights Act on the basis of a breach of Article 5 and usually Article 8. This is available in private cases, where a private care provider is depriving a self-funder of their liberty unlawfully. A remedy could be sought against the public authority responsible for the deprivation. Obviously, we need to hold private care providers to the same standards that we hold public care providers to. There are already a number of mechanisms that allow for this, and the law provides for them. There is the criminal offence of false imprisonment, as well as the existing law of false imprisonment for civil claims. So people can already bring legal action against private care providers.

On top of this, the Care Quality Commission in England and the Care Inspectorate Wales would also ensure compliance with the liberty protection safeguards. Clearly, they have a range of enforcement actions available to them that apply to the public and private sector alike. Furthermore, as commissioners, local authorities will—and do—have a role in ensuring that private care providers fulfil their legal duties. The Government believe that sufficient levers are already in place and that the creation of an additional civil route could increase care providers’ insurance costs at a time when, as we all know, we are working hard to make sure that there is funding in the system to provide adequate and good-quality social care to everybody who needs it.

I understand and agree with the desire to hold private providers to the same standards that we hold public providers to, but we believe there are existing remedies within the system and there is no need to require or implement new ones. On that basis, I hope the noble Baroness will not move her amendments.

[Baroness Thornton]

I thank the Minister for that detailed response and the noble Baronesses, Lady Murphy and Lady Barker, for their support. I did not intend to alarm the noble Baroness, Lady Finlay. I thought we might be veering into discussions the House has had on many occasions about advance consent for various things. I do not think we want to go there, but I was beginning to get the feeling of “Doctor knows best” when we were having that discussion.

I am not certain that the care plan works. The Law Commission had very good reasons for putting what are now Amendments 84 and 85 into the draft Bill that it brought forward, which were to do with the fact not that its people are lawyers but that it had consulted very widely with stakeholders and people involved in the care system. These are the conclusions that it came to, so I will read carefully what the Minister has said about this. Maybe we can include these amendments in our discussions and decide whether we need to pursue them further at the next stage of the Bill.

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[Baroness Finlay of Llandaff]

It could have wide-reaching consequences, but a lot of people who have lost capacity and are in a state of high dependency are already in nursing homes, so they are already being cared for in the system and may be subject to deprivation of liberty. Some of them have long-term continuing funding for their care, but they have been there for a long time and the donee, who is managing all their affairs and advocating on their behalf, is very concerned about their welfare in the event of them failing.

[Lord O’Shaughnessy]

I am grateful to the noble Baronesses and the noble Lord, Lord Hunt, for tabling amendments in this group. I am very aware of the complexity of this issue. For a lay person such as me, some of the terminology can be confusing. I will do my level best to be as clear as humanly possible, but if I fail in that endeavour I will write to noble Lords and explain better what I am attempting to explain now.

The effect of Amendment 83, as the noble Baroness, Lady Thornton, said, would be to confirm in law that a donee of a lasting power of attorney or a deputy appointed by the Court of Protection was unable to consent on a person’s behalf to a deprivation of liberty. If they could provide such consent, the person would not be considered to be deprived of their liberty and no safeguards would need to be provided.

The Law Commission report stated that it was already the position in law that a donee or deputy could not consent to a deprivation of liberty. We confirmed in our response to the Law Commission’s report that the Government agreed with its view on the current legal position, and the Bill does not change the current situation. While the Bill creates a duty to consult with any donee of the lasting power of attorney or a deputy, it does not enable a donee or deputy to consent to the deprivation of liberty on behalf of the cared-for person. In other words, under this Bill the cared-for person would still be deprived of their liberty in those circumstances and would still need to be provided with safeguards to satisfy Article 5, which is of course the whole purpose of DoLS and liberty protection safeguards. In that sense the amendment, with which we agree, would serve only to duplicate existing legislation and is not necessary. I hope I have provided an adequate explanation to noble Lords, but obviously I am willing to set out in more detail exactly why we believe the current situation is not changed by the Bill as it stands.

I turn to the amendments in the name of the noble Baroness, Lady Finlay. Amendment 83ZA would require the Office of the Public Guardian to provide documentation, which may be in electronic form, to identify the donor and donee or donees of a lasting power of attorney and to recall the documentation if the donee’s power is revoked. As the noble Baroness pointed out, this is designed to make it easier for attorneys to provide proof of the existence of a registered LPA. It is right that there ought to be a robust system of proving that there is a valid power. My understanding is that the Ministry of Justice and the Office of the Public Guardian are actively considering how to offer a digital means of providing evidence of a valid LPA, and we expect to bring forward proposals in due course. I am happy to pursue that further with colleagues in that department and that office to understand greater details of their plans and to share those with noble Lords if they are forthcoming, which I hope that they will be.

Amendment 87E, in the name of the noble Baroness, Lady Finlay, would allow the donee of a lasting power of attorney to nominate someone to replace them if they were no longer able to fulfil their duties—I think that means if the lasting power of attorney was no longer able to fulfil their duties—while Amendment 87G would allow a replacement attorney to be nominated by the donor at the time of registering the LPA to take over the power if the donor decides to remove the power from the donee.

I do not need to reiterate to noble Lords just how critical it is to get the law and the rules in this area right; as the noble Baroness, Lady Watkins, pointed out, the rules around this would not apply only to this Bill. It is worth pointing out that there is provision in the original Mental Capacity Act to allow a person making a lasting power of attorney to nominate a replacement in the event that their attorney is unable to continue, but I think the point that the noble Baroness, Lady Finlay, was getting at is that there is a slight chicken and egg situation here: at the point where they no longer have capacity but the person whom they have previously appointed is no longer able to fulfil their role or the cared-for person no longer wants them to do so, they cannot go back in a time machine and appoint someone else—in other words, they cannot know what they do not know. I have just made things really clear by getting all Donald Rumsfeld about it all.

Having said all that, I want to consider if there is a way of unlocking that paradox, but clearly the implications of that would go well beyond the remit of what we are discussing here. I do not want to make any promises that it is not in my power to keep. I would appreciate the opportunity to explore this further so that we can consider how to give the donor more opportunities to have a sense of choice and agency as they think ahead to the future. I would have thought that we must be able to provide for that without creating extra complications. I look forward to taking that up with the noble Baroness and other noble Lords who are interested in the topic. On that basis, I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for that detailed answer. As usual, the noble Baroness, Lady Finlay, has raised some interesting challenges. In my family, someone who had enduring power of attorney died at the point they were needed. We were in a ridiculous and complex situation—resolved by good will, but the law did not help us. This is therefore a serious matter.

I understood what the Minister said about the power of attorney, and I will read his response. It sounded to me as though it was probably reasonable, so I beg leave to withdraw the amendment.

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[Baroness Jolly (LD)]

I want to make a couple of points, but I first draw the attention of noble Lords to my interests in the register relating to learning disability. It is interesting how to read this amendment. I looked at it and thought about individuals in domestic settings, and the charity that I chair does just that. We put four or five individuals into a domestic setting. A proportion of them will have a DoLS. If noble Lords go into the house, it looks just like an ordinary home. Each resident pays rent and would consider it very much their home. Carers offer 24-hour support and locks are well and truly in evidence. Over the weekend, I asked our director of operations what proportion of the people we support were subject to DoLS, and she said thousands. It is just the norm.

I understand that the noble Baroness’s intention was to take this into a family setting where there is mum, dad and a child who may well be an adult—certainly, we see parents in their 80s caring for their children with a learning disability who may be in their late 50s or late 60s, and the parents are at their wits’ end. All that fits with this amendment so, whatever its merits, the wording needs to change but it is certainly worth pursuing.

[Lord O'Shaughnessy]

I am grateful to the noble Baronesses for leading this debate. Obviously, the bulk of the debate focused on Amendment 87C, which would exclude people residing in domestic settings, and we have discussed the merits of that approach. The noble Baroness, Lady Meacher, gave a thorough exploration of alternatives to the LPS system in a domestic setting. The noble Baroness, Lady Murphy, gave a passionate defence of the role of families in caring, which was perhaps accentuated by the noble Baroness, Lady Wilkins, talking about the need to avoid overzealous application of any new provision of deprivation of liberty safeguards. My noble friend Lady Barran talked particularly about the group of people who lack a care plan and their interaction with the care system if they go temporarily into a care home. For me, all that brought home that we have further work to do on the appropriate system that applies in a domestic setting, to put it shortly.

It was helpful that the noble Baroness, Lady Barker, told us the story about the vulnerable person. We all agree that something needs to happen in that case to check the actions of the family or help the family to do better. They may just not know what to do or be at their wits’ end—who knows? We can imagine how easy it is to fall into those situations not out of intention but out of pressure and circumstance. That debate highlighted how important it is to get that right. I absolutely want to avoid intrusion where it is not necessary, but equally we need to ensure that those people deprived of their liberty receive the proper protections due to them under Article 5 of the ECHR. This is an issue that clearly needs more work. The amendment was not designed to perfect the solution but rather to start the conversation, and it is absolutely one that we will take through with noble Lords.

I turn briefly to Amendment 83B, moved by the noble Baroness, Lady Thornton, which seeks to introduce a legal presumption that a person should give evidence in all Court of Protection proceedings. Obviously I agree with her about the importance of this issue. She called it a reasonable point and I think it more than reasonable. It is essential that in any court proceedings a person’s rights are protected and that the cared-for person has the opportunity to give evidence to the court in any case concerning the deprivation of liberty. I am happy to be able to confirm that this is already reflected in the Court of Protection rules. The court’s overriding objective under the rules is to deal with cases justly and at proportionate cost. They expressly include ensuring that the person’s interests and position are properly considered and that the parties are on an equal footing. A new set of rules was introduced less than a year ago. They include changes to ensure that a person is able to participate in proceedings. Specifically, rule 1.2 requires the court to consider in every case how best to secure the cared-for person’s participation. It sets out a range of options including the cared-for person addressing the court directly, indirectly or with support from a representative, a litigation friend or an accredited legal representative. I hope that that provides the noble Baroness with the clarification that she was looking for and that she will feel able to withdraw her amendment.

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[Lord Touhig]

My Lords, this group of amendments covers a range of things that need to be done before the commencement of the Act, and steps that should be followed later, as proposed by my Amendment 92. Noble Lords have made powerful arguments in favour of their amendments. In view of the lateness of the hour, I will confine my remarks to Amendment 92, tabled in my name, with the support of the noble Baronesses, Lady Tyler and Lady Jolly.

Amendment 92 would see two independent reports commissioned by the Government to be laid before Parliament within two and four years of the Act becoming law. The reports would provide a valuable update on how implementation was proceeding and would highlight areas for improvement. It has often been said that the Mental Capacity Act is a good piece of legislation that has been poorly implemented. If we want to see this Bill strengthened in all the areas we wish it to be, we will also need to monitor its implementation extremely closely, not least because the legislation affects some of the most vulnerable in our society and concerns their freedoms. Hundreds of thousands of people across England and Wales will be affected.

The amendment is modelled on the independent reviews that have accompanied the introduction of personal independence payments. The proposed report could look at a number of things: first, that decisions on whether someone’s liberty is restricted are truly being made in the best interests of the individual and not in the interests of providers or commissioners; secondly, that training is effective and ongoing and reinforces the rights of the individual; thirdly, that families and carers are involved and consulted as appropriate; and, fourthly, that advocacy is available to all who need it and is delivered effectively and impartially. Some very powerful arguments have been made in this short debate. I hope that the Minister will listen and that the Government will respond positively.

[Lord O'Shaughnessy]

My Lords, I am grateful to all noble Lords who have tabled amendments in this group. We have had a wide-ranging debate on areas where they would like to see various enactments, changes, reports and so on, before commencement and following implementation. I will attempt to deal with them thematically.

Amendment 86 requires that before commencement the Government must publish the code of practice and our response to the Mental Health Act review. Amendments 93 and 94 update Clause 5 to reflect this. I am happy to confirm that the Government will have published both of these before the new system commences.

Amendment 87 requires that the effectiveness of the Act is reviewed and a report laid in Parliament within a year of the Bill coming into force. As the noble Lord, Lord Touhig, just pointed out, Amendment 92 requires the Secretary of State to commission two independent reports on the operation of the new liberty protection safeguards scheme two and four years after the new system comes into force. Again, I am happy to assure noble Lords that the Government routinely conduct post-legislative scrutiny for all new Acts. The relevant guide says that within three to five years of Royal Assent the Government will be required to submit a memorandum to the relevant departmental select committee with a preliminary assessment of how the Act has worked in practice. I am happy to confirm that the Bill will receive such scrutiny and the Health Select Committee will be informed.

Amendment 87A, in the name of the noble Lord, Lord Hunt of Kings Heath, details requirements regarding a number of topics. As he pointed out, a number of these have already been addressed in our debates, including unsound mind, issues around advance consent, the availability of non-means-tested legal aid, and others. We have had a debate on the rules and guidance around IMCAs, which we are clearly going to take forward. He focused on tribunals. The Government are reviewing the courts and tribunals system but that review has not concluded. We are not proposing to change the position on the Court of Protection hearing challenges to liberty protection safeguards in the Bill precisely because there is not yet an opinion or a policy change from the Government with regard to a proposed new system. He also asked about the cost implications, which are outlined in our impact assessment, as he will know.

The noble Lord’s second amendment, Amendment 87B, seeks to make the CQC the regulator for the liberty protection safeguards. The Bill allows for bodies to be prescribed to report and monitor the scheme and it is absolutely our intention that the CQC takes on this role in England. It clearly has an important role in oversight of the new system, although we are concerned that his amendment would introduce additional layers of regulation. It should also be pointed out that the CQC is an England-only organisation; in Wales, the overseeing regulators are expected to be Healthcare Inspectorate Wales and Care Inspectorate Wales, which will both take on this role.

Amendment 87D was tabled by my noble friend Lady Barran and the noble Baroness, Lady Finlay. It would require responsible bodies to consider criteria to be published by the Secretary of State around best interests and the least restrictive option before authorisations are approved under the liberty protection safeguards. These are of course absolutely key principles of the Mental Capacity Act, and responsible bodies will have to consider them as part of any authorisation. As I have set out in previous debates, these factors already form part of the necessary and proportionate assessments, as well as other factors such as considering the wishes and feelings of the person. We will explain in the code how this assessment should be carried out and the factors that assessors should have regard to. I am grateful to my noble friend for some suggestions in that regard and I have just confirmed that the code would be published before commencement of the new scheme.

Amendment 87F, in the name of the noble Baroness, Lady Tyler, would remove the power of the Court of Protection to call for reports from local authorities and NHS bodies in cases relating to a cared-for person under the schedule. We think it is important, as I am sure she does, that the Court of Protection has access to such information but I heard the story that she told about an undue burden. I am certainly happy to commit to her that I will speak to colleagues in the Ministry of Justice to see whether there is any way that this process can be improved without removing the ability of the court to access the information it needs to make proper determinations.

Amendment 92A, in the name of the noble Lord, Lord Hunt, seeks to ensure that the liberty protection safeguards do not apply to any existing or pending DoLS authorisations. I can confirm that existing DoLS authorisations can continue until they are due for renewal or review. Clearly, depending on the final outcome of the Bill, the frequency with which those are renewed or reviewed will mean that there will be a steady stream of DoLS authorisations coming under the liberty protection safeguards in future, for those that are rolled over. Careful work will clearly need to be done with the sector to ensure that a tsunami of new authorisations does not happen but allowing for authorisations to continue under the previous system, until they can reach review or renewal, should go some way toward mitigating that risk.

Finally, Amendment 88, tabled by the noble Baroness, Lady Tyler, states that regulations should be subject to the affirmative parliamentary procedure and a consultation requirement. We have of course asked the Delegated Powers and Regulatory Reform Committee for its opinion on the regulation-making powers within the Bill and it has accepted that the negative procedure provides appropriate parliamentary oversight. As the Committee knows, we go against the DPRRC’s recommendations at our peril.

I apologise for detaining the Committee for six or seven minutes but I wanted to be thorough. I hope that I have been able to give the reassurances that noble Lords were looking for about the safeguards that we will put in place before commencement and the reviews of effectiveness to ensure that the system is working as intended. I hope that noble Lords will feel able to withdraw or not move their amendments.

[Baroness Jolly]

I thank the Minister and others who have spoken on this group. We all want to ensure that the new mental capacity Act—presumably of 2019—works and that the Department of Health and Social Care monitors its implementation. I know that we on these Benches look forward to working with the Minister and others between now and Report to ensure that the Bill is actually fit for purpose. I gently suggest that a longer time gap than is usual between Committee and Report might be needed. I guess that those conversations might need to be held with the usual channels but, in the meantime, I beg leave to withdraw my amendment.

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[Lord Touhig]

My Lords, I have spoken several times in Committee about my concern that the Bill as it stands is an assault on human rights. I have also mentioned in past debates that I am proud of the reputation of the all-party British delegation to the Parliamentary Assembly of the Council of Europe, so ably led by Sir Roger Gale, which has a proud record of defending human rights in that body. Article 5 of the ECHR protects our right to liberty and security. It focuses on protecting individuals’ freedom from unreasonable detention as opposed to protecting personal safety. As a result of Article 5, your Lordships and I have a right to personal freedom. That means we must not be imprisoned or detained without good reason. The Bill before us is about the quality of life, and the care and the respect of some of our most vulnerable fellow citizens. This amendment is about giving our fellow citizens, who may not have the capacity to defend themselves in the way that we take for granted, the same rights that we enjoy.

[Lord O’Shaughnessy]

My Lords, this is a good way to finish our Committee proceedings. I thank the noble Baroness, Lady Thornton, and the noble Lord, Lord Touhig, for tabling the amendment, and I thank the noble Baroness, Lady Barker, for speaking to it.

Clearly, not only ought it to be the case that the Bill is compliant with Article 5 of the European Convention on Human Rights, but it is also important to make it clear, as I did at the point of the introduction of the Bill, that its provisions are compatible with Article 5. As noble Lords will know, and as becomes painfully clear when you become a Minister and you see your name on printed Bills giving these kinds of reassurances, that is a process that we need to go through before introducing legislation. Clearly, there are still concerns about whether the Bill can be improved in giving force, as the noble Lord pointed out, to the rights under Article 5. Nevertheless, it is my view that the Bill is compatible with the ECHR.

Furthermore, because of Section 3(1) of the Human Rights Act 1988, primary and subordinate legislation must be read and given effect to in a way that is compatible with convention rights. It is already the case that the Bill must be read and given effect to in a way that is compatible with Article 5. My concern with the approach here is therefore not so much one of repetition but one of partiality because it only talks about Article 5. There is therefore a risk that if we implied that this legislation had only to comply, or had a special duty to comply, with Article 5 of the convention rather than the whole convention, that would not reflect our responsibilities under the Human Rights Act. Indeed, it could downplay critical protections that exist in the ECHR, such as the Article 8 rights to family and private life. So while I understand the motivation behind tabling the amendment and using it as an opportunity to rehearse some of the desire to improve the actions that will safeguard the liberty and security of the person, I do not think it is right to put such a clause in the Bill precisely because the Government have a broad responsibility to ensure not only that the Bill is compliant but that it is read and given effect to in a way that is compatible with all convention rights.

I hope that has provided reassurance to noble Lords that our intention, and indeed our obligation, is to provide not only for those Article 5 rights but for all other rights that apply under the ECHR. I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for that answer, and for his recognition that the reason for tabling the amendment at this point in the Bill was to allow us to say that these were the issues we needed to address, as the noble Baroness, Lady Barker, and my noble friend Lord Touhig outlined. I am pleased that the Minister has acknowledged that. I beg leave to withdraw the amendment.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

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

Moved by

[Lord O'Shaughnessy]

1: Schedule 1, page 5, line 26, at end insert—
“Part 8 contains transitory provision.”

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

My Lords, before I introduce this first group of what I hope are uncontroversial and technical amendments, I want to express my sincere thanks to all noble Lords who have been involved in a good deal of hard work between Committee and today in order to get the Bill into better shape. When we set out on this process at Second Reading, noble Lords had some concerns about the Bill, which crystallised in Committee. I think we have made a good deal of progress since then, which could not have happened without their contribution. I hope we are able to make similar degrees of progress today.

The amendments in this group straightforwardly make technical changes to the Bill. Amendment 1 reflects that transitory, or temporary, provision related to 16 and 17-year olds will be included in a new Part 8 of the schedule. Amendment 10 inserts a definition of “clinical commissioning group”. Amendment 148 removes an unnecessary provision regarding statutory instruments from the Bill. Clause 5(3) reflects that regulations under Clause 5 will be made by statutory instrument. However, Clause 5(7) already provides that regulations under Clause 5 are to be made by statutory instrument, so the words in Clause 5(3) are superfluous. I hope everyone can follow that—I promise it is straightforward and technical. On that basis, I beg to move.

--- Later in debate ---

[Baroness Thornton]

My Lords, I thank the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for bringing forward the amendments. I can see that the Government have a decision to make about which way to go on them.

Listening to the Joint Committee on Human Rights is always a good idea. We discussed a statutory definition during the previous stage of the Bill, when the Minister repeated that he,

“should like to take some time between now and Report to consider the opinion expressed by noble Lords and in the report of the Joint Committee about the benefits of a statutory definition”.—[Official Report, 5/9/18; col. 1849.]

I understand why the noble Baroness, Lady Finlay, is thanking the Minister already but it may be slightly premature. I know what she means, but let us wait until the end of the next day and a half. It is important that the Minister shares with us now where that thinking has led him.

[Lord O’Shaughnessy]

My Lords, I am more than happy to do so. I express my gratitude to the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for tabling their amendments and for precipitating this incredibly important debate. As has been set out, Amendment 2, moved by the noble Baroness, Lady Tyler, states that the liberty protection safeguards apply only to,

“arrangements which give rise to the deprivation of the cared-for person’s liberty”,

when,

“the cared-for person is subject to confinement in a particular place for a not negligible period of time … and … the cared-for person has not given valid consent”.

The amendment explains that someone is confined when they are,

“prevented from removing himself or herself permanently … and … the dominant reason for the deprivation of liberty is the continuous supervision and control of the cared-for person, and not treatment for their underlying condition”.

Amendment 4, tabled by the noble and learned Lord, Lord Woolf, also states that a deprivation of liberty for the purposes of liberty protection safeguards is where,

“the cared-for person is subject to confinement in a particular place for a not negligible period of time … and … the cared-for person has not given valid consent to their confinement”.

The amendment goes on to define “valid consent”, stating in particular that valid consent has been given when,

“the cared-for person is capable of expressing their wishes and feelings … has expressed their persistent contentment with their care and treatment arrangements … there is no coercion involved in the implementation of the … arrangements”,

and it is,

“confirmed in writing by two professionals, one of whom must not be involved in the implementation of the cared-for person’s … arrangements”.

The intention behind the amendments is to create a statutory definition of the deprivation of liberty, as has been discussed. I note that the amendments were influenced by the work of the Joint Committee on Human Rights, which I both applaud and welcome. We are aware, and the Law Commission’s consultation confirmed, that there is real confusion on the ground over the application of the so-called acid test and determining whether a person has been deprived of their liberty. In some cases, that has led to blanket referrals and applications for authorisations being made where there may be no deprivation of liberty at all.

As the noble Baroness, Lady Thornton, pointed out, I promised to think about this issue and we have given it a great deal of thought. Like other noble Lords, we have reached the conclusion that deprivation of liberty should be clarified in statute. However, we want to get the definition right and make sure that it is compatible with Article 5 of the ECHR. I agree that the aims of the amendments are laudable. As I said, the Government support providing clarity in the Bill. However, as I am sure all noble Lords appreciate, this is a complex and technical issue, and we have to make sure that any amendment is compliant with Article 5.

The noble Baroness, Lady Thornton, pointed out one particular concern around the use of the term “not negligible … time”. The point I want to make is much more technical, but it serves to introduce how difficult this issue is. I hope noble Lords will bear with me as I explain it; it is incredibly important. We believe that the amendments tabled by the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, would not have the intended effect of defining deprivation of liberty, but would instead limit the application of liberty protection safeguards to those who fall within the respective definitions.

Section 64(5) of the Mental Capacity Act defines “deprivation of liberty” as having the same meaning as in Article 5. The definitions in the amendments would not change this. Deprivations of liberty that fall outside those definitions would still be deprivations of liberty under Article 5, and would still need to be authorised in accordance with Article 5. However, because the liberty protection safeguards would not apply, authorisation would instead need to be sought in the Court of Protection, which, as we know, can be a cumbersome and distressing process for persons and their families, and would have significant cost implications for public bodies and the court system

Furthermore, the amendment tabled by the noble and learned Lord, Lord Woolf, although closely resembling the proposal put forward by the JCHR, also seeks to determine what valid consent would mean, and we are worried that that would not work in the way intended, because the definition is very broad. Its consequence could be that a significant number of people currently subject to DoLS authorisation would be caught by the definition and excluded from the liberty protection safeguard system, and tens of thousands of people might need to seek authorisation from the Court of Protection. Again, I do not believe that anyone would want to see that outcome. I notice that the noble and learned Lord is shaking his head, so clearly there is some disagreement on this point. I use it, however, to illustrate that there is a concern that we get this right.

[Lord Woolf]

I was shaking my head because I do not want to see what the Minister suggested might be a consequence.

[Lord O’Shaughnessy]

I will come to that. I am using that technical point to illustrate that there are concerns with the amendments as laid. We recognise the importance of this issue and the strength of feeling on it in the House. As I have said, I see merit in the argument for having this defined in statute, and I am sympathetic to that point of view. I can therefore give noble Lords some assurance, and confirm today not only that we are working on this matter, but that we intend to bring forward an amendment in the Commons to give effect to a definition. We want to work with all noble Lords and other stakeholders, and of course the JCHR, to ensure that we can table an effective amendment that achieves our shared aims and gains the level of consensus that we all want to achieve, and that we shall be able to lay it and have it agreed during the Commons stages of the Bill. I hope that in providing that commitment, I have been able to reassure noble Lords of the strength of our intentions. We absolutely want to do this, and we want to get it right. I still think it will take a bit more time, but I know that, working together, we can achieve that.

[Baroness Barker (LD)]

I thank the Minister very much for his response to the amendments tabled by my noble friend Lady Tyler and the noble and learned Lord, Lord Woolf. I acknowledge that he has listened to the arguments made in this House over the past few weeks. I understand why he cannot make a commitment to come back within the timescale of the Bill in this House. This is an important matter, and many different people have a great deal of expertise, practical knowledge, legal knowledge and so on, to put into the process of coming up with a definition, which will be extremely difficult.

Would the Minister therefore be so good as to write to noble Lords as soon as he can, setting out the timetable of the work the department intends to undertake and the people they intend to involve in discussions, which I hope will include practitioners, stakeholders and academics, medical experts and so on, as well as Members of your Lordships’ House who have reviewed the operation of the current law and found it deficient? Could he do that as soon as possible so that, when we come to consideration of Commons amendments when the Bill comes back to this place, we will be able to give this subject the attention it merits rather than the rather perfunctory consideration that we usually have to give to arguments that come back to us within a very technical parliamentary framework?

[Lord O’Shaughnessy]

I am happy to give that commitment, bearing in mind that there is always uncertainty about the timing of Bills’ progress but, in terms of the work we will do to come up with the definition, I am more than happy to do that and to include estimates—I see the Chief Whip coming into the Chamber—of the timing of the further parliamentary stages.

[Baroness Tyler of Enfield]

I thank the Minister for his full and helpful reply. This has been a good and important debate to start this afternoon’s debate. I am grateful to the Minister for agreeing to look at this. He has twice confirmed the Government’s position, which is that it is important that the definition is clarified and contained in the statute. That was the purpose of my amendment. He is right to say that this is complex and technical and that we need to get it right. I fully understand that that needs a bit of time. Although at one stage I hoped that this might be able to come back at Third Reading, I fully understand why he said that the Government will lay an amendment in the Commons stages, and I support my noble friend Lady Barker in her request for a letter setting out the timescale of the work and who will be involved. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Thornton]

My Lords, we on these Benches recognise that the noble Baronesses, Lady Meacher and Lady Murphy, have been persistent in raising these issues throughout the course of the Bill. They are absolutely right that these issues have to be addressed and that they are not covered adequately; the briefings we have had suggest that they are not. The reason that possibly we have not been able to develop enough of a head of steam on this is that we have been focusing on other issues in the Bill, which we will come to. The Minister may not be able to resolve this immediately, but I hope that he will recognise its importance and bring forward a solution.

[Lord O'Shaughnessy]

I express my gratitude to the noble Baronesses, Lady Meacher and Lady Murphy, for tabling this important amendment. As the noble Baroness, Lady Meacher, pointed out, the effect of the amendment would be to ensure that liberty protection safeguards do not apply to a deprivation of liberty in a domestic setting, and that these should be dealt with under the Care Act. It further states that the schedule does not apply where the dominant reason for the deprivation of liberty of a person is for an underlying condition under the Mental Health Act.

The effect of the amendment as tabled would mean that people deprived of their liberty in domestic settings could not have that authorised through the liberty protection safeguards or the Court of Protection. Instead, their case would fall to be dealt with under the Care Act 2014. I appreciate that the intention is that in most cases deprivation of liberty would be avoided through care planning and safeguarding under the Act. But nevertheless, in some cases there will need to be an authorisation of a deprivation of liberty in domestic settings.

I absolutely sympathise with the noble Baroness’s intention to reduce wherever possible intrusions into family life; as the noble Baroness, Lady Thornton, pointed out, that has perhaps not been given sufficient time during the passage of the Bill so far, although it is nevertheless a significant issue. However, we have a concern with regard to the amendment as laid in that the Care Act does not in itself provide adequate Article 5 safeguards, and to rely on such a process could result in a real risk of incompatibility with convention rights.

--- Later in debate ---

Moved by

[Lord O'Shaughnessy]

5: Schedule 1, page 6, line 2, leave out “18” and insert “16”

[Lord O'Shaughnessy]

My Lords, as we move on to this group of amendments, which deals with the extension of liberty protection safeguards to 16 and 17 year-olds, I thank all noble Lords for reminding us from Second Reading onwards of the absence of this provision when compared with the Law Commission’s report. Of course, we had accepted in principle that we wanted to move on this issue, but we needed to resolve some complexities about how it should apply. We have now done so and have brought forward amendments. I am grateful to all noble Lords, stakeholders and others who have contributed to this process.

Let me just outline in more detail what these specific amendments cover. Amendment 5 extends the liberty protection safeguards system to 16 and 17 year-olds.

Amendments 20 and 22 take into account the different legislative arrangements already in place for cared-for people aged 16 to 17. This group of young people are likely to have either an education, health and care plan—an EHCP—in England, or an individual development plan—an IDP—or statement of special educational needs in Wales. Amendment 21 provides that, for those cared for in the community, the same local authority that maintains their plan will act as the responsible body for liberty protection safeguards. If the person has neither of these plans, the responsible body will be the local authority that is providing accommodation for the person, or otherwise named in a care order; in any other cases, it will be the local authority for the area in which the arrangements for that young person are mainly undertaken. This provision aims to provide continuity for the person and to make the process less burdensome for them and their family. The local authority in these cases will know them best and have more knowledge of their circumstances and will therefore be able to make sure that the arrangements are the most appropriate.

Those aged between 18 and 25 and in the scope of LPS may also have an education, health and care plan or an individual development plan. Amendment 19 clarifies the responsible local authority for this group. Amendments 7 and 18 state that the responsible body for those aged 18 to 25 should be the same local authority that maintains the education, health and care plan or individual development plan. This will provide clarity and consistency in their arrangements too.

Amendment 22 has the effect of clarifying who the responsible local authority is if none of the other specific provisions applies for those aged 16 and 17. Those 16 and 17 year-olds who are cared for mainly in hospital settings will have the same responsible body as those who are 18 or over, which is the NHS trust, local health board or CCG.

Amendment 23 defines education, health and care plans and individual development plans.

Amendment 134 makes provision in Wales for the transition to the new system, to support children and young people with special educational needs or additional learning needs. We are continuing to consider, in conjunction with the Welsh Government, whether all the cohorts in Wales are captured under the current amendments. If there is a need to do so, we will come forward with new amendments in the other place in order to capture other cohorts, if they are identified.

Although liberty protection safeguard authorisation records will be stand-alone documents, we have listened to advice from noble Lords and will make it clear in the code of practice that information in the LPS authorisation that is relevant to meeting a young person’s special educational needs or additional learning needs should be included in their EHC plan or IDP—sorry for the acronyms.

Over recent months, we have worked together across government and with stakeholders to develop these amendments so that the new system complements and strengthens existing safeguards for 16 and 17 year-olds who lack capacity and who must be deprived of their liberty for care and treatment purposes. I hope that these government amendments address the concerns raised by noble Lords. I thank them again for raising them and for contributing to the development of these amendments. I beg to move.

--- Later in debate ---

Moved by

[Lord O’Shaughnessy]

6: Schedule 1, page 6, line 4, leave out “is of unsound mind” and insert “has a mental disorder”

[Lord O’Shaughnessy]

My Lords, the amendments in this group have been tabled to remove the references to “unsound mind” from the Bill. As was made very clear in discussions at Second Reading, in Committee and outside this House, we all agree that the expression “unsound mind” is outdated and, as the noble Baroness, Lady Murphy, reminded the House, it is not clinically relevant. Noble Lords have made it clear that they want to change this language and that it should not be used in the Bill.

It is worth remembering that “unsound mind” is the language used in Article 5 of the ECHR. It was included in the Law Commission’s draft Bill and we brought it over to our Bill because we were concerned about creating a gap in which some people who were entitled to Article 5 safeguards would not have access to the liberty protection safeguards and would have to have their arrangements authorised in the Court of Protection. The Government took the view that it would be unfair to deny people access to the protections provided by the liberty protection safeguards, particularly as we know court processes can be cumbersome for them and their family. However, noble Lords and the Joint Committee on Human Rights recommended that further thought be given to replacing “unsound mind” with a medically and legally appropriate term and this is what we have done.

The Government have reflected on the debate in this House, particularly the expert legal insight provided by the noble and learned Lord, Lord Woolf—who is not in his place at the moment—whom I thank. Having done this, we are comfortable that we can use alternative language that is unlikely to create a significant gap. If people do fall out of this definition, they will still have recourse to the Court of Protection to authorise deprivations of liberty, although we expect the number of these cases to be very few. To achieve this, Amendment 6 removes the reference to “unsound mind” from the arrangements to which the liberty protection safe- guards apply and replaces it with “mental disorder”. Amendment 12 provides that “mental disorder” has the same meaning as under Section 1(2) of the Mental Health Act which is,

“any disorder or disability of the mind”.

This is also consistent with the approach under the current DoLS system and is therefore well understood by practitioners.

We considered other approaches, such as using the definition of a lack of capacity in Section 2 of the Mental Capacity Act, which refers to an,

“impairment of, or a disturbance in the functioning of, the mind or brain”.

However, we concluded that this definition was too broad for the purposes of Article 5(1)(e), which permits the deprivation of liberty only on the basis of unsound mind. For example, the Section 2 definition could mean that people who are unconscious or have a brain injury, without psychiatric symptoms, might be able to be deprived of their liberty under the liberty protection safeguards scheme.

Amendment 12 removes the definition of “unsound mind” from the Bill. The noble Baronesses, Lady Thornton and Lady Jolly, have tabled Amendments 25 and 50, which instead use the phrase,

“has disorder or disability of the mind”.

These words are also taken from the definition in the Mental Health Act and I believe the amendments are intended to have the same effect as the Government’s. Now that the Government have moved on this, I hope they will feel that to be the case. Finally, Amendments 14, 26, 51, 131, 132 and 133 update other parts of the Bill to reflect the removal of “unsound mind” and the substitution of “mental disorder”.

I end by thanking noble Lords for the robust debate on this issue. I have very much had my mind changed on this and give reassurance that people will not fall through the gap. We have got to a good position, which provides the kind of protection that we want while also getting rid of a phrase with connotations that none of us is happy with. On that basis, I beg to move.

--- Later in debate ---

[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.

[Lord O’Shaughnessy]

I thank all noble Lords for their support for these amendments. I also thank the noble Lord, Lord Touhig, for sharing with us that story. It brings into sharp perspective the consequences of language and culture in the way that people are treated. We are trying to move to a more compassionate and comprehensive system of helping people who reach mental health crises. I appreciate him sharing that story, which was very moving.

Perhaps I may deal quickly with the questions raised by noble Lords. The noble Baroness, Lady Finlay, asked whether long-term brain injuries would be included. The answer is that they would. The reference that I made was to the potential short-term impacts, which we would not necessarily want to capture in this definition. On her question about palliative care, my understanding—I will certainly confirm it, as I have not seen the letter—is that it still applies. I think that is the reassurance she was hoping to get.

In relation to the question raised by the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt, about the assessment of a condition by a doctor, case law requires that such an assessment should be carried out by somebody who has objective medical expertise. In practice, that means a registered physician. Therefore, that reassurance already exists in jurisprudence, but I accept the importance of the point raised—that, perhaps except in an incredibly rare emergency, that kind of diagnosis should always be made by somebody with that level of competence or skill qualification, however you want to define it. I will write to noble Lords explaining the position as it stands in law and why we think that it gives the protection and reassurance they are looking for. We can then perhaps follow that up with a discussion if there are any remaining concerns. I certainly agree that this is an important issue.

I hope that I have dealt with noble Lords’ questions and I thank them again for their support and the challenge that has got us to this point of moving forward.

Amendment 6 agreed.

Moved by

[Lord O'Shaughnessy]

7: Schedule 1, page 6, line 42, after second “arrangements” insert “, in relation to a cared-for person aged 18 or over,”

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Moved by

[Lord O'Shaughnessy]

8: Schedule 1, page 6, leave out line 45 and insert “care home arrangements,”

[Lord O'Shaughnessy]

My Lords, we now come to the largest group of amendments on the issue that has perhaps taken up most of our attention in the progress of the Bill so far, and quite right too.

The government amendments in this group relate to ensuring that care home managers have an appropriate role in the liberty protection safeguards system that we are seeking to implement. You would have to have had ears of cloth not to have heard the concerns raised by noble Lords and stakeholders throughout the passage of the Bill about the proper role of care home managers. I agree that we must be absolutely clear at this stage in legislation about what is the right role for those care home managers. I also agree that there should be no scope for any conflict of interest—not when we are talking about the safety and care of very vulnerable people—and that we should ensure that all assessments are completed by those with the appropriate experience and knowledge. Furthermore, people should always have confidence that they will have access to independent support and representation.

I will shortly address the specific amendments in this group. Before I do so, I would like to draw noble Lords’ attention to other germane government amendments, which we will deal with on the second day of Report but which are important to consider in the round with the amendments in this group. Those include proposals that we have made to ensure that only responsible bodies can arrange the pre-authorisation review and that care home managers will be explicitly excluded from completing the pre-authorisation review. This is important because pre-authorisation should not confirm poor care planning or perpetuate a system where someone is receiving care in an inappropriate setting. The amendments that we have laid and which we will deal with on the second day will counteract any incentive the care home manager might have to ensure that a resident stays in a care home inappropriately. We are also determined to make sure that the care home manager cannot act as a gatekeeper to the IMCA appointment, and we have laid amendments accordingly.

There has been a great deal of discussion about the role of care home managers in authorisation. I have strongly and deeply considered noble Lords’ concerns in the context of what we know works now in the current system. There is a desire to make sure that the liberty protection system that we intend to introduce builds on what works and changes what does not. Under the current DoLS system, care home managers have the role of identifying that someone may lack capacity and need restrictions as part of their care. In practice, they must complete form 1, which brings together all of the current assessments for a person. This is then sent to local authorities, which appoint a best-interest assessor to conduct a further assessment ahead of providing the authorisation. This is an appropriate role for care home managers to undertake, and is the role we are proposing and clarifying through our amendments.

Amendment 30 requires the responsible body to make a decision on whether it is content that it is appropriate for the care home manager to carry out the relevant functions prior to authorisation, including arranging assessments and carrying out consultation. Amendment 90 applies this decision to reviews as well. This is an important change because it provides additional protections in cases where there may be concerns about a particular provider and its capability for conducting its role, and it allows responsibility to take on all the relevant functions in these cases. There may also be cases where there are no concerns about quality of care, but there may, for example, be particularly strong social worker involvement and it may make sense for them to take on those functions.

This power to remove the care home manager from the process can be enacted at any point, and we would expect it to be done at the earliest possible point, particularly if there are concerns. We will use the code of practice to set out the detail so that it is applied consistently by different local authorities, with clear criteria for the responsible body to make a decision on whether to retain responsibility for the relevant functions. In the case of care home residents, this significantly strengthens the role of local authorities in terms of oversight, intervention and supporting the quality of the operation of the scheme. If the responsible body has decided that the care home manager should be responsible for providing the statement and carrying out the other functions, the care home manager will bring together the information, evidence and assessments needed for the responsible body to make a decision on whether to authorise the liberty protection safeguard. In many cases, this will bring together recent valid assessments that can be used for this purpose.

As has been said previously, care needs change over time. We recognise that putting hard and fast rules on the validity and timeliness of assessments would not recognise the reality of what happens. That is why we will set out in the code of practice what we would expect to see in terms of valid and up-to-date assessments. The Bill also enables the responsible body to step in, if they are not confident in the validity of the assessments, by refusing to authorise the arrangements. Let me be clear that all the assessments would involve consultation with the person. In addition, the Bill will require the care home manager, or the responsible body, to complete the consultation with the person and other interested persons.

Some noble Lords have stated their concern that there is a potential conflict of interest if care home managers were to conduct assessments. The Government agree that there is a potential financial conflict if care home managers were to complete assessments for people in their own care homes, particularly when it comes to considering whether there are less restrictive alternatives. Amendment 52 explicitly excludes care home managers or others from undertaking the assessments if they have a specified connection to the care home, in particular if there is a financial connection. This will be set out in regulations. We will use the regulations to ensure, in England, that care home staff are not able to conduct assessments where they have a potential financial conflict of interest and the Welsh Government will have the power to do the same. Doing this in regulations allows us to provide the necessary detail, given the complexity of the care home sector, to ensure that there are no loopholes. For example, we would not want someone who works in another care home run by the same company to conduct the assessments.

Noble Lords have rightly asked questions about who undertakes the assessments and in particular why there were no clear requirements on the expertise of those who undertake capacity and medical assessments. That refers tangentially to the issue raised by the noble Baroness, Lady Hollins, before. Although that is already provided for in binding Article 5 case law, I have been persuaded that more clarity is needed. Amendment 52 clarifies that capacity and medical assessments must be carried out by someone with appropriate experience and knowledge. Capacity assessments should be completed by a registered professional such as a nurse, social worker or occupational therapist, and medical assessments must be completed by a physician. We will set out in the code of practice the experience and knowledge that we would expect to see for those undertaking assessments.

On the point about experience and knowledge, Amendment 53 tabled by the noble Baroness, Lady Finlay, would have the effect of requiring that the person who conducts the assessment has the appropriate skills and knowledge. The noble Baroness is absolutely correct that the person who completes the assessment should have the necessary skills to be able to conduct the assessment. Amendment 52 already provides for that within the description of experience and knowledge and we would expect that to cover the necessary skills. We will define that in the code of practice so that it explicitly describes the skills, using the term “skills” and describing the kinds of skills that ought to be required of the person carrying out assessments.

There are also some minor amendments that clarify definitions of care home manager and responsible bodies. Amendment 8 updates the definition of care home manager. Amendment 9 corrects the definition of care home manager in Wales. Amendments 11, 15 and 24 set out a definition of English and Welsh responsible bodies. Amendment 17 removes the definition of local health board as it is now superfluous.

I hope that noble Lords have had a reasonable chance to examine all the government amendments in this group. They have been carefully crafted to reflect to the best possible extent all the concerns set out by noble Lords at Second Reading and in Committee to remove any concerns about conflict of interest and make sure that care home managers are not, to coin a phrase, marking their own homework. They have an important role in organising assessments, but it is effectively an administrative function with proper oversight, and assessments will be carried out by those with the proper qualifications, expertise, skill and knowledge. I beg to move.

[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.

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[Baroness Thornton]

My Lords, I am grateful to the Government for tabling this suite of amendments which, as they say, change the position of care home managers from the original proposal to give them a significant role in applying the liberty protection safeguards—the scheme that is to replace DoLS in care homes. As the Minister said in his comprehensive introduction of this large group, they are a combination of technical amendments and others which are very important indeed. The amendments headed by government Amendment 30 are particularly relevant because they give the responsible body the ability to decide in certain circumstances to take over the authorisation functions in care homes in certain settings. The Government have said that they will set out the details in the code of practice. I shall return to the issue of the regulations and the code of practice in a moment.

Government Amendments 52 and 66 are equally important because they deal with conflicts of interest. The Government have said that the regulations will set out in detail the prescribed functions. I just want to ask a technical question. We do not quite understand why Amendment 78 has been severed from Amendment 73, which it seems to sit with; they are kind of twins and need to be taken together. I realise that we will be dealing with Amendment 73 next week, but they are very important amendments which give regulation-making powers, allowing the appropriate authority to make provisions about what constitutes a connection with a care home. They are also about conflicts of interest.

Amendment 90, as the noble Lord has said, gives the responsible body the ability to decide on the renewal of authorisation functions in care home settings. Listening carefully to what the Minister said when he introduced these amendments, one of the issues they raise is what goes in regulations and what goes in the code of practice. This has been a theme that we have discussed all the way through. It seems to me very important—and I seek reassurance from the Minister on this—that what goes in regulations is matters relating to powers and protection of the individual, and what goes in the code of practice is how those are carried out. Both are very important documents and it is important to address this, so that the right things go in regulations and the issue is comprehensively covered.

It is clear from the debates we have had throughout consideration of the Bill that we welcome the change of heart on policy. Some clarification and explanation will still be required as we move forward, but this suite of amendments does address the important issue of conflicts of interest in the powers of the care home manager and puts the interests of the cared-for person at the heart of the Bill, as they should be. It was clear from the beginning that this issue is of huge concern to all stakeholders on the Labour Benches, as well as across the House. That is why we submitted the suite of amendments early after Committee—strong amendments which addressed and fundamentally changed the role of the care home manager.

Noble Lords will see that the next group of amendments in the list are mine and are supported by the noble Baronesses, Lady Jolly and Lady Watkins. I thank them most sincerely for their support very early in this process. We went through the Bill and removed reference to, or significantly changed the role of, the care home manager. This group starts with Amendment 13, which I would like to assure the Minister, as I did the Bill team, I will not be moving today. These amendments were designed to specify the responsibilities of what we called the “nominated body”—in other words, a qualified body nominated by the responsible body in relation to the authorisation of care home arrangements. That suite of amendments makes it clear that the care home manager’s role is to co-ordinate the required information, determinations and assessment, rather than to carry them out. I am very glad that the Minister used almost exactly those words. What we call the nominated body will be designated by the responsible body. All the subsequent amendments in this group take powers away from the care home manager and replace them.

I was in the Minister’s place many years ago. Seeing these amendments coming down the track with support from across the House—and, indeed, the amendments tabled by the noble Baroness, Lady Finlay, which were sometimes even more radical in their intent—the Minister, the Bill team and his advisers were very wise to take a second look when one considers that all the stakeholders took the same view, without exception, I think. I agree with the noble Baroness, Lady Barker, in that I regret that we met such obduracies, which is what they felt like from our point of view, from the Government in the early stages of the Bill about the role of the care home manager. That meant that we did not spend enough time on other issues that we should have addressed. We did not spend enough time on CCGs, the NHS and the place of local councils in delivering the new arrangements, as my noble friend Lord Hunt mentioned. We did not spend enough time examining the funding and resourcing of the new arrangements. The Minister got off quite lightly on those issues; I am sure that my honourable friends in the Commons will make up for where we lack in this area.

The test of the amendments is whether they fulfil the aims of the suite of amendments we tabled all those weeks ago. We are applying that test today. Can the Minister confirm that the government amendments would give the responsible local authorities the option of giving these roles to the care home manager or taking the responsibilities on themselves and, most importantly, that the care home manager will no longer be responsible for notifying the responsible body whether an IMCA should be appointed in any case? In Amendment 78, it seems that care home managers would not be able to commission anyone with a prescribed connection to the care home. That is to be welcomed.

As far as we are concerned, these amendments are lacking on the issue of—is it the AMPS?

[Lord O’Shaughnessy]

The AMCP.

[Baroness Thornton]

Thank you. I always get those initials wrong. We will discuss that issue tomorrow. As far as we are concerned, the amendments go a long way to meeting the issues that we have raised throughout the previous stages of the Bill. I am grateful for that and I offer them our support.

[Lord O’Shaughnessy]

I am grateful for noble Lords’ support for this group of amendments. I might say that I recognise a juggernaut when I see one coming, but this was about not just the force or number of the amendments—or, indeed, the length of them—but the force of the argument. During this process, we have established the critical point that the care home manager has an important role in the new system, because we want to provide a more proportionate and flexible system, but equally that cannot put them in a position where they have too much power. That would compromise the rights of the people being cared for, who are obviously very vulnerable. The amendments in the names of the noble Baronesses, Lady Finlay and Lady Thornton, gave us some idea of where noble Lords were headed and gave us some sense of shape and direction about where we ought to go to. We have made great progress, and I thank noble Lords for not just their input but their patience throughout this process. It has been trying and challenging for all of us at times, but we have made some great changes that will put the system on a much better footing.

I want to deal with the specific issues raised by various noble Lords. The noble Baroness, Lady Finlay, asked about speech and language therapists. In describing the amendments, I talked about professions “such as” those; she is right that I did not name them specifically. We need to consider which professions are included; clearly, we will want to consult relevant groups and noble Lords on that. Of course, we will make sure during that process that such professionals have the knowledge, skills and expertise that the noble Baroness is looking for. On skills, I recognise that she is disappointed; I hate to disappoint her. I think that this is an issue of semantics. Offline, I can provide assurance on what she is looking for, which is not a superficial case of whether these professionals have a certain degree or are a member of a certain professional body so that boxes can be ticked and we can go ahead. That should be avoided because it will not serve us very well.

The noble Lord, Lord Hunt, asked about the role of local authorities. In the amendments, we have made it clear that the local authority has a prior role in making a judgment about the providers in its area. That was not clear in the Bill before—the noble Baroness, Lady Thornton, asked about that role as well—and it is an incredibly important judgment, because local authorities will need to be in a position to look across their provider network and see who they are clear and confident will be able to make such decisions and who will not. To take up the point made by the noble Lord, Lord Touhig, that will be set out in the code of practice. I will come to his point about stakeholders later. The most important thing is that this is a prior power, to be exercised by the responsible body.

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Moved by

[Lord O'Shaughnessy]

9: Schedule 1, page 7, leave out lines 4 to 6 and insert—
“( ) in relation to Wales, the person who manages the care home service, within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2), at the care home, by virtue of regulations made under section 28 of that Act;”

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Moved by

[Lord O'Shaughnessy]

14: Schedule 1, page 7, leave out lines 21 and 22

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[Lord O’Shaughnessy]

My Lords, I first thank the noble Baronesses for tabling their amendments and giving us the opportunity to debate, as the noble Baroness, Lady Barker, pointed out, an incredibly important issue. We have heard examples of individuals and institutions where there have been tragic cases of people deprived of their liberty in independent hospitals, and these amendments have given us the opportunity to think about the best way forward to make sure there is proper oversight and authorisation in such cases.

Amendment 16, tabled by the noble Baronesses, Lady Barker, Lady Finlay and Lady Meacher, makes the designated NHS trust the responsible body in independent hospital cases. The amendment tabled by the noble Baroness, Lady Thornton, would make the CCG or local health board the responsible body where a person is accommodated in an independent hospital for the assessment of mental disorder.

As the noble Baroness, Lady Barker, and other noble Baronesses pointed out, stakeholders have raised this issue on many occasions. They have raised concerns about the level of scrutiny in these independent hospital cases. The Bill, as it stands, provides that in most cases the managers of independent hospitals are responsible bodies, meaning that they authorise arrangements carried out mainly in hospitals. The amendments seek to address this by changing the responsible body, and I have great sympathy with their intention.

We know that those in independent hospitals often have particularly complex needs, especially those being assessed or treated for mental disorders. The noble Baroness, Lady Thornton, said we need a solution, but I think there is a different solution, which could improve—if I dare say so—on the amendments tabled by the noble Baronesses. Rather than changing the responsible bodies, it would be even better if we required an AMCP to complete the pre-authorisation review in such cases. We know that the AMCP is a registered professional, accountable to their professional body, and that they would meet the individual, and any other interested parties, in person. The Government believe that independent hospitals would benefit from AMCP involvement, and therefore our intention is to bring forward an amendment, or amendments, as required, in the Commons to deal with this issue and make sure that there is such a role for the AMCP in all deprivation of liberty cases.

[Baroness Thornton]

If I might set this in the vernacular, one of the reasons that we have been so concerned about the conflicts of interest and powers for the care home manager is that we wonder how anyone can be sprung, as it were, from the situation in which they find themselves. How would an AMCP do that? How could they be liberated from the situation they are in if the deprivation of liberty power remains with the chief executive or manager of the private hospital?

[Lord O’Shaughnessy]

The reason is that although the deprivation of liberty would take place in that institution, every single case would be examined by an AMCP. The pre-authorisation review and scrutiny would be carried out by the AMCP. They would have the ability to examine the case, to speak to the person and all other relevant interested persons, and to challenge, if necessary, the circumstances of the deprivation of liberty or the care that had been put in place.

To take the hierarchy of decision-making in a care home, for example, the arrangements are made by, but not carried out by, the care home manager. They are referred to the responsible body for preauthorisation review, and if there are concerns of a problem at the level of the responsible body—an objection on behalf of the person or on behalf of somebody who cares for or is connected to them—it would go immediately to the AMCP. In a sense, this vaults the decision-making process beyond the responsible body and, as the noble Baroness, Lady Finlay, pointed out, there are particular issues over which body ought to take responsibility and go straight to, effectively, the last port of call before the Court of Protection. It provides that degree of oversight and challenge in these cases.

[Baroness Meacher]

A concern is that a lot of these people lose touch with their communities and families—they are often a long way from them. Is the assumption here that if somebody objects, then the AMCP would get involved, but that otherwise the hospital management might remain responsible?

[Lord O’Shaughnessy]

That is a perfectly reasonable question, but the AMCP would absolutely look at every case. There would not need to be an objection raised. I was just explaining the hierarchy for non-independent hospital cases. It would be, in a sense, going to the second-highest port of call for scrutiny that we are considering in other cases to highlight the seriousness of it. There would not be that gatekeeper point which the noble Baroness is worried about.

[Baroness Finlay of Llandaff]

How would we be clear that we knew about all the people who had a deprivation of liberty, if we are depending on that independent hospital to notify and call in an AMCP? That AMCP may be one with whom they end up having an uncomfortably close or cosy relationship. How could there be a degree of independence, when the person signing it off as the responsible body would still be the one with a vested interest in keeping their beds full and their income going, which was the very thing that concerned us about the care home? Is the Minister prepared to meet us and discuss this outside? I understand the intention to have everyone assessed by an AMCP, but I am worried that if we leave it to go to the Commons, some of the concerns that have been raised here may not get carried over.

[Lord O’Shaughnessy]

Absolutely—I would be more than happy to do so. I have tried to demonstrate our intention to deal with the issue, but we remain open-minded about the best way to do it. We have concerns with the amendments as laid—we were trying, if anything, to turbo-boost the approach. I recognise that the noble Baroness is concerned about an overfamiliarity between individuals, which she is trying to make sure that we avoid. There may be other concerns with the model that we are considering. I am more than happy to take that offline, and that would be a very fruitful discussion.

[Baroness Barker]

I am grateful to the Minister for his response, which I will need to think about long and hard. One thing that noble Lords will have to take into consideration is whether an AMCP would have the power to refer a case to the Court of Protection if they felt it necessary. That would be a big factor. I listened very carefully to the Minister, who used the term “hospital manager”. He will know that it has a particular meaning in the Mental Health Act. I have no crystal ball, and neither do other noble Lords, but were the role of the hospital manager in the Mental Health Act to be something on which the forthcoming review sought to make a decision, then would this not be another case for our looking in detail at the synchronisation between this legislation and the Mental Health Act? I welcome the Minister’s response. There is a bit more work to do, and considerable constructive welcome for continued work. With that assurance, I beg leave to withdraw.

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Moved by

[Lord O'Shaughnessy]

17: Schedule 1, page 9, leave out lines 9 to 11

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Moved by

[Lord O'Shaughnessy]

26: Schedule 1, page 10, line 7, leave out “is of unsound mind” and insert “has a mental disorder”

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[Baroness Thornton]

I put my name to this amendment, and we on these Benches very much support the intention behind the amendments in this group.

I bow to the fact that the noble Baroness, Lady Barker, has lived and worked with this for a very long time indeed, has reviewed the Mental Capacity Act and was very influential in the way it was formed. There has been a lot of discussion with stakeholders about this group of amendments and how we can best express “necessary and proportionate” in a way that will strengthen the Bill and prevent harm to the cared-for person. These amendments do that, providing clarity. Again, as I mentioned in the previous debates, because this is to do with protection and powers, it has to be in the Bill and not the code of practice. I hope that the Minister will agree to the amendments, because it is probably the best way forward, and that he will end this discussion in harmony and agreement.

[Lord O'Shaughnessy]

As the noble Baroness knows, I am all for harmony and agreement.

I thank the noble Baronesses for laying these amendments, and I accept the point made by the noble Baroness, Lady Barker, about her gracious acceptance of the role of the best-interests test. I recognise that she has some serious concerns about this legislation, which I take seriously. I have been determined to work closely with her, and I am grateful for her reciprocation in that process as we have moved ahead.

These amendments seek to specify that the necessary and proportionate assessment must be undertaken by reference to whether an authorisation is needed explicitly to prevent harm to the person. We know that an assessment of whether the arrangements are necessary and proportionate is key to ensuring that liberty protection safeguards will afford people their protections and human rights, and is a requirement of the European Convention on Human Rights. There are many factors which would need to be considered in the necessary and proportionate assessment, including the wishes and feelings of the person, whether any less restrictive measures can be put in place and the risk of harm. That is the issue that is the subject of these amendments.

Importantly, these amendments raise the issue of considering risk of harm to the cared-for person during the assessment by including that expressly and explicitly in the Bill. However, my concern is that that may be at the cost of other factors that ought to be properly considered during the assessment process. If these amendments are passed, one of the factors which may not be properly considered in the assessment process is the risk of harm to others, which the Law Commission said should be explicitly considered within a necessary and proportionate assessment, as well as risk to self. There are cases currently under the DoLS system where the risk of harm to others is an important factor in the justification for deprivation of liberty, such as a person with Lewy body dementia who may need restrictions in order to prevent harm to people in the community.

Furthermore, ensuring that no harm could come to a person is in some cases intertwined with ensuring that no harm comes to others. For example, there could be a retaliatory attack as a result of harm caused by a person to someone else. These amendments would mean that by focusing solely on harm to self in the Bill, it could be more difficult for assessors to make those balanced decisions. I therefore have some concerns about the amendments tabled by noble Baroness, as they could perpetuate the current confusion surrounding cases that involve some degree of harm to others. They could also lead to an increased use of the Mental Health Act, since the liberty protection safeguards might be interpreted as being ruled out in all harm-to-others cases. We would not want to see the Act used in this way.

Therefore, in the spirit of consensus and moving forward, I have carefully considered whether the Bill should be amended—or whether the Government could support such amendments—to explicitly set out inclusion of the risk of harm to the person. I am afraid I am going to disappoint noble Lords by saying that it would be better set out in the code of practice. I emphasise that we have considered the issue in detail, and we believe that the code of practice has sufficient force. On that basis—although I know that she will not do so—I encourage the noble Baroness to withdraw her amendment.

[Baroness Barker]

I thank the Minister for his reply. The problem that I have is that it leaves the guidelines for decisions to deprive people of their liberty because of harm to others in a code of practice, not the legislation. I do not believe that that is the right place in which to make that law. I absolutely accept that it is sometimes necessary to make a decision about a deprivation of liberty, and that part of that decision-making might be about the risk the person poses to others. However, that should not be determined in legislation fashioned on a set of principles and practices that are about harm to self, which is what the Mental Capacity Act is all about. A substantial judgment that will impact on people’s lives is buried away in a place where it is very unlikely ever to rise sufficiently up the scale of legal concerns or ever to be tested in court. That is my problem; that is what I think is wrong. It is therefore important that we in this House make a statement now to the Government about the importance of this issue, so I would like to test the opinion of the House.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 27th November 2018 Lords Chamber

Working together, we have made considerable progress on this Bill. Strengthening the Bill to uphold key rights and protections is vital. We know there is widespread concern, and unanimous support for information rights to be included in the Bill from the key charities, stakeholders and experts in this field, as the noble Baroness, Lady Watkins, spelled out. The Minister’s letter of 15 November asserts that the case for the “best” and “accurate” way of spelling out information and rights to access information is in the code of practice and, so far, his response to debates on this issue have just restated this belief, without addressing the compelling arguments that noble Lords have put forward. We need the rights outlined in Amendment 29 to be included in the Bill, where they would have full legal force.

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

My Lords, I first thank the noble Baroness, Lady Watkins, for introducing this group of amendments, both for her own speech and for representing the noble Baroness, Lady Hollins, as she does. I thank all noble Lords for their contributions. These amendments clearly relate to providing information to the cared-for person, which is a critical issue that we have debated throughout this Bill.

Amendments 49 and 85, tabled by the noble Baroness, Lady Finlay, require that the authorisation record must be provided to the cared-for person, or their representative, their donee of lasting power of attorney, or a court-appointed deputy, and also to the team providing care in the person’s place of residence. Amendment 83, tabled by the noble Baronesses, Lady Barker and Lady Thornton, specifies that the authorisation record must also include details of how the deprivation of liberty, or its effect on the person, will be reduced. I will deal with Amendment 29, the first amendment in this group, shortly.

I introduce these amendments in order to talk about less restrictive care. Less restrictive care is a central aspect of the new liberty protection safeguards, as a result of the necessary and proportionate assessment. This was emphasised by the Law Commission in its final report, which concluded that,

“integral to the question of whether the deprivation of liberty is proportionate (as well as necessary) is consideration of whether there is a less intrusive alternative”.

Less restrictive care is also a vital principle of the Mental Capacity Act—as set out in Section 1(5)—and therefore should be considered at all stages of the process. It is already considered as part of the current DoLS system.

Given the abiding role of “best interests”, as discussed in the last day of Committee, as a principle of the Mental Capacity Act, it does not need to be restated in the Bill. Indeed, our belief is that the liberty protection safeguards scheme will drive less restrictive care, as it will require the responsible body to specify a programme of regular reviews. This review should be triggered if there is a significant change in the cared-for person’s circumstances. Critically, this means that if there are practicable, less restrictive alternatives available, the authorisation will cease to have effect as the arrangements will no longer be necessary and proportionate.

Amendment 86, tabled by the noble Baronesses, Lady Hollins, Lady Thornton, Lady Jolly and Lady Watkins, would require the responsible body to ensure that the cared-for person, appropriate person and IMCA, or independent mental capacity advocate, are given a copy of the care plan as soon as possible and those consulted with should be provided with a copy unless there is good reason not to do so. As has been mentioned, this was discussed at every stage of the Bill, in the Chamber and outside it. I agree that it is vital that relevant people are given full information about the authorisation and the rights of a cared-for person, including rights to review and to challenge authorisation.

The key point, and the reason why we do not support these amendments, is that this is already the case in law, which clearly provides that people must be given appropriate information. This is required by Article 5 of the ECHR, as enacted into UK law by the Human Rights Act. Article 5(2) sets out that everyone deprived of their liberty must be informed promptly and in a language that he or she understands. This should set out the reasons for the deprivation of liberty. Where a person has been informed of the reasons, he or she may apply to a court to challenge the lawfulness of their detention in accordance with Article 5(4). It is plain from the wording of Article 5(2) that the duty on the state is to proactively provide specific information to the individual or their representative. Whether the information provided is sufficient must be assessed depending on circumstances, but, as a minimum, people must be given information in simple, non-technical language that they can understand.

It is also worth noting that the Law Commission’s draft Bill did not explicitly outline what information should be provided. The Government took forward the Law Commission’s approach, as we have been encouraged to throughout by noble Lords, because we are satisfied that Article 5 makes it clear that a person has the right to information. So while I have carefully considered whether the Bill should be amended to explicitly state what information should be provided, I believe that it would be better to set out specific details in the code of practice.

On the specific point from the noble Baroness, Lady Barker, about statutory codes of practice having to sit within a framework of law, the Human Rights Act, which enacts the ECHR into British law, provides the route into law. Therefore, I believe that the code of practice is the appropriate place and has that anchor in statute. Furthermore, it is appropriate to set this out in the code of practice because it will allow us to fully and accurately capture the detail of all the people who should be provided with information, exactly what information should be provided and how, and to be able to amend it without having to amend primary legislation over time.

One of the problems with the original DoLS legislation is that it is overly prescriptive. Indeed, this House found in its post-legislative scrutiny of the Mental Capacity Act that the provisions for DoLS were “overly complex”. These amendments set out, for example, who should be provided with the authorisation records, but they exclude others who might need the care plan, such as members of the care team providing support in the community, not in the person’s place of residence. We believe it is precisely that level of detail that is better set out in the code of practice.

Amendment 29, tabled by the noble Baronesses, Lady Hollins, Lady Thornton, Lady Jolly and Lady Watkins, specifically seeks to address this point. This amendment outlines that a person must be fully informed of their rights and ensure that appropriate persons and IMCAs understand their rights and duties. Further to this, Amendment 88, tabled by the noble Baroness, Lady Barker, would require the cared-for person and their representative to be informed, in addition to any person likely to be carrying out the arrangements, if their authorisation ceases to have effect.

I absolutely agree that it is vital that people are informed of their rights. Let me be clear that this Bill does not take away or amend any rights. Article 5 is already clear that people have a right to information. However, we want to use the code of practice, rather than the Bill, to outline how this applies. As I said, this is so that we can provide a level of detail there that would simply not be appropriate in the Bill. We would also use the code to detail, for example, the role of the IMCA and/or the appropriate person’s role in the provision of information and ensuring that people are supported in understanding their rights.

In closing, I want to address Amendment 87 which supports, as it were, this set of amendments. As the noble Baroness, Lady Finlay, pointed out, Amendment 87 would require an approved mental capacity professional to complete an investigation where the relevant parties disagree over any aspect of an authorisation. If agreement is still not reached, it would require independent mediation. I agree with her that it is vital that the new system of liberty protection safeguards ensures that the voice of the person is heard and that there is an appropriate level of scrutiny in all authorisations. That is why we have been explicit that the person must be consulted with, as we will discuss later, and why, as a result of government amendments brought forward after listening to noble Lords, if there is no appropriate person acting as a representative, there is now in effect a presumption that an IMCA should be appointed. Again we will discuss that later. It is also why we have tabled amendments to remove conflict of interest and to make clear who should and who should not carry out pre-authorisation reviews.

So while the Government recognise the important role that mediation plays within the NHS, we do not believe that it is necessary to make it a compulsory feature of the system. There are fantastic systems of mediation already available, through private, public and charitable sectors; indeed, the noble Baroness gave us an example of a further initiative in this area. It is worth noting, on this point, that the Mental Capacity Act code of practice already provides guidance about mediation. In answer to her specific question, while we do not think it is necessary to have it in the Bill, I can confirm that guidance on the use of mediation will be in the code of practice and we will make sure that that is as up to date as possible and comprehensive in taking account of new schemes.

I will finish by saying that while I applaud and recognise the importance of the right to information, not just for the cared-for person but for everybody representing them, the Government’s view is that this is already adequately accounted for in law, so we do not need to set it out in the Bill. Indeed, it may be counterproductive to do so, by not being able to be comprehensive of every category of person. For that reason, I fear that we are not able to support these amendments.

[Baroness Barker]

Can the Minister confirm that, if the amendment in the name of the noble Baroness, Lady Watkins, is passed, it does not preclude the Government from setting out anything they like in the code of practice, at considerable length, to explain the detail of what information should be conveyed to whom and how? Does he agree that it might be helpful to have her amendment in the Bill, if only to bridge the rather large chasm between Article 5 rights and the code of practice? Would her amendment not be rather helpful?

[Lord O’Shaughnessy]

On the noble Baroness’s first point, of course there is nothing to stop us setting out anything in the code of practice. The concern would be whether there would be a clash between what was set out in the Bill and what was set out in the code of practice or in Article 5. That is one of our concerns and it is for that and other reasons that unfortunately we are not able to support that amendment.

[Baroness Finlay of Llandaff]

Does the noble Lord agree that one of the differences here between Article 5 rights normally and this group of people is that these are people who lack capacity to make their own decision, which is why they are being deprived of their liberty? They are particularly vulnerable and unable to speak up for themselves and depend on others. Therefore, if we have something in the Bill—and it may be that the wording in Amendment 29 is not right—brought back by the Government at Third Reading, we would know that there is an explicit right to information to be given to people when they lack capacity, as well as giving it to people when you have done everything to confirm that they have capacity for it.

[Lord O’Shaughnessy]

I recognise the point that the noble Baroness is making. As I said, our belief is that the rights that currently exist, and are in no way amended or reduced as a result of the Bill, provide what she is asking for. Unfortunately, I am not able to give a commitment that we will be able to return to this issue at Third Reading.

[Baroness Watkins of Tavistock]

I thank the Minster for his reply and thank all noble Lords who have spoken in support of this group of amendments. I do not believe that the Minister’s reply gives us sufficient security that if the information is contained only in the associated code patients and their families will be protected in the way that we have outlined. We firmly believe that the issue of information and, in particular, its provision in advance need to be in the Bill. It is therefore important that the House makes a statement to the Government about this issue, so I would like to test the opinion of the House.

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Moved by

[Lord O’Shaughnessy]

30: Schedule 1, page 10, line 9, at end insert—
“11A_ The responsible body may authorise arrangements—(a) under paragraph 12, if the conditions in that paragraph are met, or(b) under paragraph 13 if—(i) the arrangements are care home arrangements,(ii) the responsible body decides that authorisation should be determined under that paragraph instead of under paragraph 12, and(iii) the conditions in paragraph 13 are met.”

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Moved by

[Lord O’Shaughnessy]

31: Schedule 1, page 10, leave out lines 10 and 11 and insert “The conditions in this paragraph are that—”

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[Baroness Barker]

My Lords, like the noble Baroness, Lady Finlay, I do not intend to pay much attention to many of the amendments in this group because the Government made significant moves last week in relation to the role of the care home manager.

In relation to Amendment 121, I take this opportunity to raise again an issue I mentioned during our deliberations last week. There has been a great deal of talk about the Bill and the code of practice, but there has been very little said about regulations under the Bill. In particular, very little has been said about the functions of IMCAs in representing and supporting people under the schedule which are a bit different from the role of the IMCA in other circumstances under the rest of the Mental Capacity Act. Unlike DoLS, the Bill does not make detailed provisions for this or any regulations.

Can the Minister confirm whether amendments will be forthcoming in this area in relation to the functions of IMCAs? Specifically, will the Government look at amendments in relation to Section 35 of the Mental Capacity Act to place a clear duty on the responsible authority to make arrangements to enable IMCAs to be available and to represent and support cared-for persons under paragraph 36 of Schedule 1 to this Bill and in addition to support the appropriate person to fulfil their functions under paragraph 37? Can the Minister also confirm that the existing regulation power under Section 36 of the Mental Capacity Act will be extended to reflect the IMCAs’ function under the schedule?

A particular concern that has been raised with us by stakeholders is that there is no current reference in paragraph 36 to maintaining contact with the cared-for person and supporting their rights under the schedule. Given that the intention is that under the Bill authorisations will be made for much longer periods than was intended under the original Bill—longer than 12 months—it is rather important that someone who is acting in the role of an IMCA continues to have an ongoing involvement with that person. I understand why on this occasion it may not be entirely appropriate to put that in the Bill, but it is an issue of such significance that it might well come under the aegis of regulations.

[Lord O’Shaughnessy]

I thank the noble Baronesses for speaking to the amendments in this group. Before I deal with their questions, I say to the House that I take note of the significant margin in the vote on the previous group of amendments. That is something that the Government will reflect on.

I am grateful for the recognition by the noble Baronesses of the progress that we made on the last day of Report in defining the care home manager much better. I am grateful to everyone who has contributed to that process; we have made progress.

I turn to the specific questions posed by the noble Baroness, Lady Finlay. She asked about determining that arrangements are necessary and proportionate and inspecting proposals, conditions and indeed the care plan. The preauthorisation reviewer—as we are about to discuss, we are tightening up who can carry out that role—will thoroughly scrutinise arrangements and need to satisfy themselves that they are necessary and proportionate. It is also worth saying that in making the determination they have the power, if they so wish, to meet the person to determine that, which clearly is important. There is another critical matter, although we will come to this when we talk about conditions so I do not want to pre-empt that discussion too much: in making an authorisation, the responsible body can also then set a timetable of regular reviews to take place so that there is a process of ongoing review to ensure that the “necessary and proportionate assessment” test is always being passed.

We also said—this deals slightly with one of the points that the noble Baroness, Lady Barker, was making—that if the responsible body is not satisfied that the care home manager is capable of fulfilling this function, they can take on the role of organising assessments themselves. That is, to use the phrase that we coined last time, a backstop that provides some reassurance that any variable quality in provision should not affect the process by which assessments are made and organised and the preauthorisation reviews carried out.

It is absolutely the case that responsible bodies will be able to demand to see care plans and care and support plans as part of their deliberations. That is something that they can ask for, and we would expect that they will be provided because the whole point of the process that we are trying to move to is that decisions on and circumstances around deprivations of liberty are actually integrated into care planning and therefore ought not to be divisible in that sense. I hope that that provides reassurance, but if I can provide more by follow-up, I shall be happy to do so.

The noble Baroness, Lady Barker, asked some specific questions, which I shall need to consider, on the regulation-making power. I do not want to get that answer wrong without considering it, but we can meet in the coming days to ensure that she is reassured on that. A group of government amendments about IMCAs that we will discuss later provides greater reassurance on their role, in that, if they are agreed to, there will be a presumption in favour of an IMCA, removing the gatekeeper role that we have discussed. Also, the preauthorisation review will be carried out only by a responsible body, which must apply that presumption of access to an IMCA, so there will be much greater rights to advocacy on an ongoing basis.

The noble Baroness makes an excellent point about maintaining contact. As we move to a system of regular reviews, it is important to make sure that someone is alongside the cared-for person who can flag up any problems—for example, that a less restrictive care option is available, or that there is an objection. As we discussed, passive objections can materialise many weeks or months later. That ongoing role is clearly very important, whether it is for the IMCA or the appropriate person, the family member, or whoever. I give her the commitment that we will determine that in the code of practice.

I hope that I have answered the questions from both noble Baronesses and that on that basis, the noble Baroness will feel comfortable withdrawing her amendment.

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Moved by

[Lord O’Shaughnessy]

34: Schedule 1, page 10, line 23, after “review” insert “, arranged by the responsible body,”

[Lord O’Shaughnessy]

My Lords, the amendments in this group relate to the vital preauthorisation review process in the liberty protection safeguards system, which we have discussed on many occasions. Our intention, which is now clarified by the amendments, is that every application will undergo a preauthorisation review arranged by the responsible body and conducted by someone who is not involved in the day-to-day care or treatment of the person. That must happen before any authorisation can be given.

As we know, this review is essential, not only because every application will undergo one, but because it provides an early opportunity to address situations where someone may be receiving poor care or care in an inappropriate setting, or who are subject to poor care planning. This preauthorisation review, arranged by the responsible body, provides separation between those who will authorise the arrangements and those who carry them out.

Amendments 34 and 40 clarify that the preauthorisation review must be arranged by the responsible body. This was always the Government’s intention, but we are now being explicit about it. These amendments serve to reinforce the role of the responsible body under the liberty protection safeguards system, ensuring that all proposed arrangements undergo independent scrutiny.

We also expect the individual completing the preauthorisation review to consider issues which should act as red flags, such as if there has been inadequate consultation or a provider is seeking authorisation for particularly restrictive arrangements. This provides further protection for cared-for people in cases where the application falls short or has not been as thorough as it ought to have been. We will also expect the person completing the preauthorisation review to meet the person where necessary.

We are determined to work with the sector and set out the detail of how this is applied in a code of practice. This will set out when we expect preauthorisation reviewers to take further action and ensure that the code is consistently applied by different local authorities—an issue that has been raised before. Building on amendments tabled last week, this significantly strengthens the role of local authority oversight and intervention, and ensures the good quality of the new scheme.

Noble Lords will note that the amendment states the responsible body must “arrange” rather than “conduct” the preauthorisation review. The reason for this is to ensure that the person undertaking the review is not doing so as a representative of the responsible body. They must make their own professional decision. This is particularly important in cases where the responsible body also provides the care: for example, where the NHS is the responsible body.

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[Baroness Thornton (Lab)]

My Lords, I agree with the noble Baroness, Lady Barker, and welcome these amendments. As the Minister said, they are very important and deal with the issues of conflicts of interest and the preauthorisation review. I congratulate the Minister on navigating us to this point, and certainly we will be supporting the amendments.

[Lord O’Shaughnessy]

My Lords, I am grateful to the noble Baronesses for their support. Of course, navigation of any ship requires a good crew, and I feel that we have one. I am very grateful for that support.

Amendment 34 agreed.

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[Baroness Thornton]

My Lords, I will speak briefly to Amendment 46, which is in my name and supported by the noble Baroness, Lady Barker. It provides that the care home manager, or any person interested in the cared-for person’s welfare, is responsible for being satisfied that an AMCP should carry out a pre-authorisation review. The Committee has already discussed this and the important safeguards which we will be seeking come under Amendment 76A. Some of the important matters raised by the noble Baronesses, Lady Finlay and Lady Barker, have been addressed by the Minister in the Government’s amendments. I look forward to his reply.

[Lord O'Shaughnessy]

I am grateful to the noble Baronesses for tabling these important amendments. It is critical to get right the role of approved mental capacity professionals and when they should review cases under the liberty protection safeguards system. AMCPs will be a vital part of the system. They will be qualified, knowledgeable and experienced professionals. It is intended that they will act independently, both of the care provider and the responsible body, and that they will make a determination on proposed arrangements after meeting the person and reviewing relevant information.

Amendment 35, tabled by the noble Baroness, Lady Finlay, explicitly prevents the responsible body overriding a determination of the AMCP. The responsible body is responsible for approving the authorisation, but an AMCP is required to complete the pre-authorisation review if it is reasonable to believe that the person objects to the arrangements. The AMCP can also conduct the pre-authorisation review in other cases. Where an AMCP conducts the pre-authorisation review they will determine whether the authorisation conditions are met.

The critical issue here is the consequences of the AMCP determining that the authorisation conditions have not been met. We are absolutely clear that the responsible body should follow the AMCP’s determination, and indeed any responsible body that did not do so would be taking on a significant legal risk. The responsible body might believe that it has a good reason to disagree with the AMCP’s assessment, but in that case the proper course of action would be to discuss this with the AMCP. If the responsible body then tried to override the AMCP’s decision, we would expect the AMCP to raise concerns—first, with the responsible body itself. If the local authority is the responsible body, the concern can be escalated to the Local Government Ombudsman, and if a CCG is the responsible body, it can be escalated to the regional director of commissioning in NHS England. Concerns regarding NHS organisations and independent hospitals can also be raised directly with the CQC in England or Health Inspectorate Wales. Therefore, I hope that noble Lords are reassured that mechanisms are in place to stop any unjustified behaviour on behalf of responsible bodies.

Amendment 77, tabled by the noble Baronesses, Lady Barker, Lady Finlay and Lady Jolly, makes explicit that a pre-authorisation review must also be conducted by an approved mental capacity professional if relatives or those with a genuine relationship to the person object to the arrangements, if there is restriction on contact, if the care home manager or responsible body considers the case to be exceptional, or if the arrangements are for mental disorder or the arrangements include covert medication.

The Government agree that families and carers play an important role in liberty protection safeguards. As the people who know the cared-for person best, they will often know what the person’s wishes and feelings are and whether they do, or would, object to what is being proposed. The Bill already states that a pre-authorisation review must be completed by an AMCP if there is a reasonable belief that a person objects to residing in or receiving care and treatment at a particular place. We are clear that an objection raised by someone with an interest in the cared-for person’s welfare can also give rise to a reasonable belief that the person objects, and this will be confirmed and clarified in the code.

We all agree that deprivation of liberty is a serious matter, especially when accompanied by measures such as high levels of restriction, covert medication and restrictions on contact. Such measures should be put in place only following a best-interests meeting and in some cases will require a court application. This is confirmed in the current MCA code of practice and will continue to be a key aspect of the new code.

I agree that in some circumstances such cases should be considered by an approved mental capacity professional. The Bill expressly allows for a pre-authorisation review to be completed by an AMCP in other cases, as is clear from paragraph 19(1). However, although the Bill is clear about how the lodging of an objection will lead to a review by an AMCP, I have heard clearly from noble Lords and stakeholders that there is a concern about referring appropriate cases to an AMCP. I hope that noble Lords will be glad to hear that I have been persuaded that we need to clarify on the face of the Bill that other cases can be referred to an AMCP.

In the previous day on Report, I stated that we would revisit, in the Commons, the issue of referral to AMCPs, specifically regarding those in independent hospitals. I can now confirm we will be looking at this issue more widely, including the specific concerns raised in the debate and in the amendment, as part of our considerations for government amendments in the other place. I look forward to working with all noble Lords to make sure that we get this right.

I turn briefly to Amendment 46 in the names of the noble Baronesses, Lady Thornton and Lady Barker. The amendment would mean that in care home cases the statement to the responsible body must indicate whether any person interested in the person’s welfare is satisfied that the person does or does not object. I understand that the intention here is to create a mechanism for those with an interest to be able to raise objections. I have already said that the Bill specifies that the statement must reflect any consultation that has been completed with those with an interest in the cared-for person’s welfare, and our later amendments will also make it explicit that that includes the person themselves under the “duty to consult” government amendments. The IMCA and the appropriate person will also have a role in reflecting these concerns.

To conclude this group of amendments, Amendment 104 states that a review is triggered if a person with an interest in the cared-for person’s welfare has raised concerns. As I said, that will be the case. Amendment 109 would change the Bill to reflect the effects of Amendments 34 and 104.

I hope that in answering points raised on these important issues, I have been able to give two kinds of reassurance. The first is that the process of triggering a review will be clearly set out. The Bill as it stands, as well as amendments that we are making, will mean that anybody with an interest in a person’s welfare will be able to trigger a review and that will lead to a consideration by an AMCP. Secondly, in the rare cases where there is a dispute between an AMCP and a responsible body, there will be avenues to escalate such a disagreement to mediation and resolution.

Furthermore, we are determined to get the role of the AMCP right. We think it is necessary to go beyond specifying that those in independent hospitals can see an AMCP and to think of other cases as well, and we are intending to bring forward amendments at the Commons stages of the Bill. I hope that that provides the reassurance that the noble Baronesses are looking for and that the noble Baroness, Lady Finlay, will be prepared to withdraw her amendment.

[Baroness Finlay of Llandaff]

I think I can speak on behalf of all noble Baronesses who had their names on these amendments. We are most grateful to the Government for listening and find all that the Minister said in his speech in response to this group of amendments reassuring and positive. We look forward to working with the Government as these new criteria evolve. I beg leave to withdraw the amendment.

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Moved by

[Lord O'Shaughnessy]

36: Schedule 1, page 10, leave out line 33 and insert “The conditions in this paragraph are that—”

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Moved by

[Lord O'Shaughnessy]

40: Schedule 1, page 11, line 1, after “review” insert “, arranged by the responsible body,”

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Moved by

[Lord O'Shaughnessy]

41: Schedule 1, page 11, line 9, after second “statement” insert “in writing”

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[Lord O'Shaughnessy]

My Lords, the amendments in this group provide clarification regarding the form of the statements provided by the care home manager to the responsible body. I thank noble Lords and others outside the House who highlighted some issues that these amendments attempt to address.

Amendments 41 and 96 outline that the statements provided by the care home manager to the responsible body under paragraphs 14 and 28 must be in writing. This issue was rightly raised by the noble Baroness, Lady Barker, and others at Second Reading and in Committee. It has always been the Government’s intention that the statement be a written one, and I gave assurances to noble Lords during Committee that the Bill would be updated to be explicit on this.

Passing these amendments, although they are simple and straightforward, is important, because it will mean that care homes are not able to provide statements over the telephone, as sometimes happens now. This is a valid concern about the future system. The amendments will help to ensure the quality of assessments and pre-authorisation reviews, and that there will always be a written record of the basis for decisions. It is vital that statements be in writing in order for a thorough pre-authorisation review to be completed and for proper evidence of assessments and consultation to be provided.

Under the current DoLS system, care homes are required to complete a “form 1” when making an application. We envisage that under the liberty protection safeguards there will be a similar form, updated and tailored to the new system. I hope this amendment makes it clear to all noble Lords that the Government do not want to see any weakening of safeguards as a result of our reforms.

Amendments 47 and 59 clarify that the necessary and proportionate test is based on an assessment, and that the care home manager’s statement under paragraph 14 must be accompanied by a record of that assessment and a record of the medical and capacity assessments. This was always the Government’s intention. Its omission was a simple drafting error, for which I apologise and which we are now rectifying.

I hope noble Lords will be able to support these minor but vital amendments, which will clarify how the system works in practice. I beg to move.

[Lord Touhig (Lab)]

My Lords, at Second Reading I said that there was much to be concerned about in this Bill and that I really hoped the Government would be in listening mode. For the most part, the Government have listened and have made improvements, thanks to the willingness of the Minister and Bill team to listen and to the hard work and commitment of noble Lords on all sides of the House, who have pursued improvements with all the energy they could command.

Government Amendments 41 and 96, requiring a care home manager to provide a written statement to the responsible body to authorise and renew arrangements, seem pretty obvious. Most of us would think that it is common sense to provide a statement in writing, but my late mother would often lament that I would find that, in life, sense is not that common. We certainly welcome these amendments.

The same applies to Amendments 47 and 59, which will ensure that the determination that arrangements are necessary and proportionate is to be made in an assessment, and that a record of this assessment must accompany the statement from the care home manager to the responsible body before an order to authorise arrangements is made. This is also most welcome. On this side, we certainly welcome these amendments.

[Baroness Barker]

My Lords, I also welcome these amendments and want to make a brief observation. Since the summer, like many other noble Lords, I have spent a great deal of time talking to practitioners and stakeholders. If one were to try to thoroughly amend and improve the DoLS and LPS systems, you would start not with the role of the care home manager but with the paperwork and the bureaucracy. Before the code of practice is written, the Government would do well to spend some considerable time talking to local authorities and practitioners about paperwork and communication, because that is perhaps the biggest cause of the backlog of people who have yet to have a proper assessment.

I hope that the Minister will take on board what noble Lords have said on this matter. It is not a commitment to the current way of doing things; rather, although noble Lords are committed to ensuring that people are sufficiently informed, we are not averse to changing and modernising the systems to make them work more efficiently.

[Lord O'Shaughnessy]

I am grateful to the noble Lord, Lord Touhig, and the noble Baroness, Lady Barker, for their support for these amendments.

I want to reflect on the last point made, which is very important. The reference is to a written statement, which tends to bring to mind a piece of paper, but of course what we are really talking about are digital records. A great deal of thought has to be put into whether a paper system—or digital records—passing back and forth is the best way to go about this, or whether we can make a technological intervention. That is particularly true if we want these authorisations to be much more dynamic, so that their consistency and application can be assessed over time. There might be technological interventions we can make to make that process easier. I take that advice on board. We will absolutely talk to local authorities, cared-for people, their representatives, charities and others in making sure that we do it right. Noble Lords will be aware that the Secretary of State is a true technophile, and I imagine he would relish the opportunity to inject a bit of innovation into this area to make everyone’s life easier. I will take that point forward.

Amendment 41 agreed.

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Moved by

[Lord O'Shaughnessy]

43: Schedule 1, page 11, line 18, at end insert “and”

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Moved by

[Lord O'Shaughnessy]

47: Schedule 1, page 11, line 32, leave out “paragraph 15” and insert “paragraphs 15 and 16”

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Moved by

[Lord O'Shaughnessy]

51: Schedule 1, page 11, line 44, leave out “is of unsound mind” and insert “has a mental disorder”

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Moved by

[Lord O'Shaughnessy]

52: Schedule 1, page 11, line 44, at end insert—
“(1A) An assessment must be carried out by a person who appears to the relevant person to have appropriate experience and knowledge.(1B) But if the arrangements are care home arrangements and authorisation is being determined under paragraph 13, an assessment may not be carried out by a person who has a prescribed connection with a care home.(1C) Regulations made by the appropriate authority under sub-paragraph (1B)—(a) may make provision about a connection of any kind (financial or otherwise), and(b) may make different provision for assessments under paragraph 15(1)(a) and paragraph 15(1)(b).(1D) The “appropriate authority” means—(a) where the assessment is in relation to an authorisation by an English responsible body, the Secretary of State, and(b) where the assessment is in relation to an authorisation by a Welsh responsible body, the Welsh Ministers.”

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Moved by

[Lord O'Shaughnessy]

54: Schedule 1, page 11, line 46, leave out from “appears” to end of line 1 on page 12 and insert “to the relevant person”

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Moved by

[Lord O'Shaughnessy]

57: Schedule 1, page 12, line 3, leave out “care home manager or responsible body” and insert “relevant person”

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[Baroness Tyler of Enfield (LD)]

My Lords, I reinforce what has been said about the importance of conditions and the difference that they can make to both quality of life and the tolerability of the regime to which the looked-after person is subject. I read about how some of the conditions might be things such as helping the looked-after person to sit in the care home’s garden every day or be taken out once a week, as well as how vital these conditions are to ensuring that the decisions taken are the least restrictive. We can all relate to these important things. It is important that there is provision for such conditions to be set out.

[Lord O’Shaughnessy]

I thank the noble Baronesses for introducing their amendments and giving us the opportunity to discuss this important issue. I will set out why the Government have taken a different approach and attempt to explain it.

It is not that we do not think conditions are important. The use of conditions should be baked into the care plan and the arrangements put forward for authorisation, rather than being added only at the point of authorisation. This is not to say that the conditions—let us call them the elements of the arrangements—pointed out by the noble Baroness, Lady Tyler, and other noble Baronesses are not critical. Obviously, they are critical to making sure that the elements are the least restrictive. This is about when they are put in place in the care planning and authorisation process. I shall explain our approach, which I hope will satisfy noble Lords, but we can see whether further discussions are required.

I will deal with the amendments in order. Amendment 61 states that it should be determined by the responsible body,

“that the arrangements will continue to be necessary and proportionate for the period of time for which the arrangements are sought”.

We absolutely agree that this should form part of our model and I confirm that this will be considered by the responsible body.

Furthermore, under the Bill, the responsible body is required to specify a programme of regular reviews at the point of authorisation. In a sense, it gets to specify at the point of authorisation how frequently reviews should take place, to seek whether changes in arrangements or other changes have taken place. This means that the care home manager—or the responsible body, if it is carrying it out directly—will be continually required to consider whether arrangements are necessary and proportionate. That is baked into the system we are introducing.

Amendment 67 specifies that conditions can be put on authorisations and, of course, conditions exist under the current DoLS system. However, with the backlog, by the time they come into force, it is often too late, because the person has been subject to the arrangements for some time before the conditions can be applied. In developing the liberty protection safeguards system, we have taken a different approach; for that reason, conditions have not been included in the Bill. Again, it is worth pointing out that this is consistent with the approach adopted by the Law Commission, which concluded that conditions, as currently provided for under the DoLS system, were not necessary under its new scheme. The Law Commission’s final report states on page 112 that, instead of DoLS conditions, the scheme,

“focuses on particular arrangements and what will be authorised are very specific arrangements. Further, it is only arrangements which result in the minimum amount of deprivation of liberty possible that will be authorised, otherwise the necessary and proportionate condition will not be met. So the arrangements will need to be described in a way which builds in any conditions”.

In other words, arrangements under the Bill can be detailed in such a way as to have the same effect as conditions. For example, the authorised arrangements could include enabling the person to be taken out on trips with one-to-one support, or their care plan could specify that additional staff should be provided to enable the person to be taken out more frequently.

It is our view that doing this provides greater protections for the person. This approach means that conditions—or, if noble Lords prefer, specific arrangements—are considered as part of care planning, before an authorisation is sought, rather than being bolted on afterwards. Rather than being something that happens after the person is deprived of liberty, they would be an integral part of care planning, with the proposed arrangements submitted to the responsible body for review.

Notwithstanding this approach, I know the noble Baroness, Lady Barker, is keen to have a statement from me about current practice, under which a DoLS lead, or best-interests assessor, can insist that deprivation of liberty is authorised only if stated conditions are made. We are not proposing to change the ability of the responsible body, whether the responsible body itself or an AMCP, to make conditions as part of an authorisation. It will still be possible for that to happen. We are trying to ensure that the decision on appropriate conditions is made earlier in the care-planning process, so that they are incorporated into the arrangements that are then put to the responsible body for review, rather than being added when the review takes place. Failure to comply with these conditions, specifically because they have been within the authorisation, would mean that the authorisation would cease to have effect, and must be reviewed. There we come to the ongoing important role that appropriate persons, IMCAs and others will have, in making sure the person is supported, so that if there are any changes in their condition, or their circumstances, a review is triggered.

I recognise this is a fiendishly complicated thing to describe, and I have probably done a fairly inadequate job of it. However, I strongly believe that, in making this change, we are not trying to remove conditions, but move the concept of applying conditions to earlier in the care-planning process. That is the right thing to do. The responsible body will continue to be able to add subsequent conditions if it feels it is necessary for an authorisation. I genuinely believe that is a better system. Clearly, the proof of the pudding will be in the eating. On how this will happen in practice, there will need to be clear guidance and training to make sure that people are trained to do this, both at the care home, and in other NHS bodies, and to make sure that reviewers are capable of assessing such arrangements and making their own subsequent conditions, if they feel it is necessary. That guidance and training is something we aim to provide, of course.

I hope I have explained why we take the point the noble Baronesses made in tabling these amendments very seriously, and shown that the system allows for it. It puts this consideration earlier in the planning process, we hope with better effect. We have been guided by the Law Commission’s approach in this way. I hope this has been persuasive, but if further discussion and elaboration is needed, I would be more than happy to give it following today’s debate.

[Baroness Barker]

I thank the Minister very much for his response. We are arguing not about two opposites but about a gap that I am trying to close, the answer to which lies in why conditions happen. They happen not necessarily because of any failure of care planning, which I think the Minister is talking about, or to improve care planning, but because in real life people end up being cared for in a particular place. Things to which they object or limitations in their care become apparent at the point at which someone goes to do the authorisation.

I am all in favour of improving personalised care planning and so on, but the one thing that DoLS and best-interests assessors have been absolutely united in saying is that this makes a practical difference when they go to see people. I am very happy that the Minister said that it would still be the responsibility of a responsible body to make sure that conditions are being met, and that, if they were not or if it became apparent that further conditions needed to be put in place, they would still be able to do so. With that reassurance, I am content that we have probably closed the gap that I was trying to close. On that basis, I am willing not to press the amendments.

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Moved by

[Lord O’Shaughnessy]

63: Schedule 1, page 12, line 12, at end insert—
“( ) When making a determination under this paragraph regard must be had (amongst other matters) to the cared-for person’s wishes and feelings in relation to the arrangements.”

[Lord O’Shaughnessy]

My Lords, before introducing these amendments, I thank the noble Baroness, Lady Barker, for accepting my explanation on the previous group. I am conscious that we need to explain this in more detail, but I am grateful to all noble Lords and to the noble Baroness, Lady Thornton, for not pushing this point. This is something that we can clarify to get to a better system.

The amendments in this group are clearly central to the Bill, because they are all about putting the cared-for person at the centre of the new liberty protection safeguards. Noble Lords have been at pains to highlight a concern that the cared-for person is not listed explicitly as a person to consult. That has clearly always been our intention, but it is nevertheless quite right that that should be explicit in the Bill.

Amendment 71 clarifies that the cared-for person must be consulted as part of the consultation under new paragraph 17. Amendment 63 sets out that the person’s wishes and feelings must be considered as part of the determination that the arrangements are necessary and proportionate. Amendments 110 and 111 update other parts of the Bill to reflect the new explicit consultation requirement and to make some other minor drafting changes.

The consultation required by the Bill is important in establishing the cared-for person’s wishes and feelings, and identifying objections to the arrangements. It is also an important way of involving the person and their families in the process, and making sure that the liberty protection safeguards authorisation is something that happens not just to them, but with them. It has always been our position that the person should be consulted, but it is quite right that we set this out explicitly. Through these amendments we have also been explicit that the person’s wishes and feelings must be considered as part of the necessary and proportionate determination.

Briefly, Amendment 68, tabled by the noble Baronesses, Lady Finlay and Lady Jolly, would also ensure that this point is considered. I hope they will feel that the Government’s amendments have dealt with their issues and that they will feel happy not to press their amendments.

[Baroness Finlay of Llandaff]

I am looking to the noble Baroness, Lady Jolly, because I am sure she will agree with me. I am grateful and happily give way to the government amendment, which does what we wanted to do. We will not do anything with our amendment. I thank the Minister for his clarifications.

[Lord O’Shaughnessy]

I thank the noble Baroness for her agreement. I beg to move.

Amendment 63 agreed.

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Moved by

[Lord O’Shaughnessy]

65: Schedule 1, page 12, line 15, after “arrangements” insert “and authorisation is being determined under paragraph 13”

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Moved by

[Lord O’Shaughnessy]

69: Schedule 1, page 12, line 21, after second “arrangements” insert “and authorisation is being determined under paragraph 13”

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Moved by

[Lord O’Shaughnessy]

71: Schedule 1, page 12, line 24, at end insert—
“(za) the cared-for person,”

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Moved by

[Lord O’Shaughnessy]

73: Schedule 1, page 13, line 3, leave out from “must” to end of line 5 and insert “not be by—
(a) a person who is involved—(i) in the day-to-day care of the cared-for person, or(ii) in providing any treatment to the cared-for person, or(b) a person who has a prescribed connection with a care home.”

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[Baroness Barker]

My Lords, it has been a concern of all noble Lords who have taken part in discussions on the Bill that a person could be deprived of their liberty without seeing an appropriate professional at any time. We have argued back and forth about the extent to which access to an appropriate professional should be universal, automatic or whatever.

With this amendment, the noble Baroness, Lady Finlay, and those of us who have attached our names to it are trying to ensure that where the people who are most closely associated with a person have a genuine and deep concern—I imagine it would be a shared concern—but not necessarily a formal role, they can alert a professional to come in and make an assessment. We are trying to close a loophole that we think is still there.

If we can do that, we will be well on the way to doing what the Minister has indicated the Government are trying to do: to make the most effective and efficient use of professional resources amid a level of demand which we know cannot currently be met. We have moved some way from what we would ideally like to see and this amendment represents something of a compromise. I hope we can reach agreement on this last part of the link.

[Lord O'Shaughnessy]

I am grateful to the noble Baronesses for tabling these amendments and giving us the opportunity to debate this very important issue. I will come to Amendment 76A last, because clearly that is the one about which there has been the most debate and, in a sense, has the most import. First, I will deal briefly with the other amendments in the group.

Amendment 81 would require the person who conducts the pre-authorisation review to be a,

“registered health or social care professional”,

with appropriate skills, knowledge and experience. I think and hope that we dealt with that adequately on our previous day on Report. Those qualifications will be set out in the code of practice. Indeed, we might want to go more broadly than we have done historically on this.

Amendment 76 would require that where there is a dispute between the responsible body and the professional who completed the pre-authorisation review, it would automatically go up to an AMCP. I agree that in some cases that would be the right and prudent thing to do. In other cases, it may be able to be resolved between the two parties. Again, we dealt with that before and it is something I want to consider in our deliberations about the kinds of cases that an AMCP would look at.

The debate on Amendment 76A has been helpful in bringing out the core concern here: the role of whistleblowers. We have talked about the cared-for person, their family members, the appropriate person, IMCAs and others, but this is about the people who are doing the caring or who are employed by the organisation or organisations that are doing the caring. It is absolutely right—indeed, the Bill requires—that an AMCP must conduct a pre-authorisation review if there is a reasonable belief. Clearly, a note of concern being raised by a staff member would qualify because they would have understanding and knowledge of the care of that person.

Last week we had a Statement on the Gosport inquiry, in which the health system not listening to whistleblowers was critical in these issues not being dealt with for years and people losing their lives as a consequence. As the Government said in response to that, we are working with BEIS—the department with responsibility for such legislation—to see if there is anything we can do to strengthen the rules around whistleblowers. I take very seriously the concerns that have been raised by noble Lords. As I said, with Gosport and indeed many other instances, whether they involve one person or, sadly, dozens of people, this kind of issue crops up again and again. I understand its importance.

The concern I have at this point actually relates to the drafting. Because it would provide an automatic trigger, rather than one that gave some consideration to the seriousness of the case, there is a risk that it could be abused or that frivolous cases could be raised and put to an AMCP when it was not really justified. That is, in a sense, an issue with the drafting

I want to deal with this if we can. My suggestion, if noble Lords are willing, is to meet between now and Third Reading to discuss this topic—as well as any others we want to discuss, of course—to work out the right approach. This would enable us to get to the bottom of it, work out what is right and think about that in the context of other whistleblowing issues, of which we are all aware. It would ensure that if we all agree on the need to legislate, we can agree on what that ought to look like. Again, I emphasise the importance with which I regard this issue. I hope and believe that we can do something in the coming days to deal with it in a way on which we all agree, while having the effect that we want. On that basis, I hope that the noble Baroness is prepared to withdraw her amendment.

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[Baroness Thornton]

May I seek clarification from the Minister? He said that he would come back to Amendment 76A. Is this about Amendment 76 or Amendment 76A?

[Lord O'Shaughnessy]

It is Amendment 76A.

[Baroness Finlay of Llandaff]

I am grateful to the noble Baroness, Lady Thornton, for clarifying on the record that we are talking about Amendment 76A. With the caveat that the meeting will include all of us who have been involved in and feel so concerned about this matter, I will withdraw the amendment, knowing that we will bring something back at Third Reading in this House and not leave it to the code of practice or the Commons. I beg leave to withdraw the amendment.

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Moved by

[Lord O'Shaughnessy]

78: Schedule 1, page 13, line 15, at end insert—
“( ) Regulations made by the appropriate authority under sub-paragraph (1)(b) may make provision about a connection of any kind (financial or otherwise).( ) The “appropriate authority” means—(a) where the pre-authorisation review is in relation to an authorisation by an English responsible body, the Secretary of State, and(b) where the pre-authorisation review is in relation to an authorisation by a Welsh responsible body, the Welsh Ministers.”

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[Baroness Thornton]

My Lords, the next three amendments form a suite and, following our discussions with stakeholders, these are issues that we would like to discuss. The noble Baroness, Lady Barker, and I have shared the tabling of these amendments, which do not directly address the central and overarching question of where so much of the care home manager’s responsibility will lie. In a way, we have addressed that issue and amended the Bill accordingly. The amendments concentrate on strengthening the rights of the cared-for person, which have to be at the heart of any system for giving and reviewing authorisations, by ensuring that their voice is heard within consultations at every stage of the process. Amendment 82, which is in my name and that of the noble Baroness, Lady Barker, would start this process by ensuring that there is a meeting “with the cared-for person”. I beg to move.

[Lord O’Shaughnessy]

Before I address this amendment, I again thank noble Lords for their willingness to talk further on Amendment 76A so that we can reach the right conclusion.

The noble Baroness, Lady Thornton, quite rightly talked about the role of Amendment 82 being to make sure that the cared-for person has rights and that they are at the centre of the authorisation process. Of course, that is absolutely right. The reason why we have not taken the approach that the reviewer should meet all people in the system is because we want to provide a more proportionate system that nevertheless contains significant safeguards so that if there are any concerns about the nature of a review then not only would the reviewer, whether a responsible body or an IMCA, meet the person but there are opportunities for escalation beyond that.

Let me be absolutely clear that in cases where the person objects to the arrangements, the Bill already requires AMCPs to meet the person, where practicable and appropriate, when they complete the preauthorisation review. This amendment would require a face-to-face visit in all preauthorisation reviews, not only those completed by an AMCP, regardless of whether it is appropriate or practicable to do so.

I of course appreciate there will be circumstances where it is right and proper for the person conducting the preauthorisation review to meet the person, even in cases where the review is not completed by an AMCP. That is not precluded by the Bill. Indeed, it would be our expectation in some cases that that would happen. For example, if the person completing the preauthorisation review is concerned that adequate consultation has not taken place or if there is a question over the validity of any of the assessments provided, we think it right and proper for the person conducting the preauthorisation review to meet the cared-for person. Details about that, including scenarios, will be set out in the code of practice.

However, we also want to make sure that the system is proportionate. One of the problems we have at the moment is that it is not proportionate, and that is why we have a backlog. There are straightforward cases. For example, when someone who consented to living in the care home subsequently loses capacity and there is no reason to suspect that they would object to continuing to live in the care home, a meeting with the cared-for person would be very unlikely to change the outcome. In such cases, the person may have already undergone an assessment process and the person will also have access to representation—we are about to come on to IMCAs. Unless there are concerns about the validity of the assessments, it would not normally be necessary or proportionate to meet the person who, after all, had agreed to live in the care home.

A further potential effect of this amendment would be to require the person completing the preauthorisation review to meet the cared-for person, even if the person refuses. This is a topic we have discussed before. We do not think it goes with the ethos of the Mental Capacity Act, particularly in cases where someone has expressed a desire not to do so. It is important to stress that that is not just our conclusion but is also the conclusion of the Law Commission after its work. We believe that a targeted approach will be much more effective in making sure that those safeguards are in place.

While I understand the noble Baroness’s desire for reassurance that the cared-for person will be met, I do not think it would be appropriate in all cases. We have been clear during the passage of the Bill in the amendments that we have laid, and as we will specify in the code of practice, that there will be many circumstances when it is appropriate to do so but equally there will be circumstances when it is not appropriate. Therefore, we do not think it would be right to have a blanket application of this approach of the preauthorisation reviewer meeting the cared-for person. I hope that on that basis the noble Baroness will feel reassured and will withdraw her amendment.

[Baroness Barker]

During our deliberations the Minister has several times talked about people being forced to meet an IMCA or an AMCP when they do not want to. We have asked him to supply evidence of that. He has not yet done so, even though we are at this stage in our deliberations. Clearly this is a matter that may well return at a further stage in the Commons. I ask him again please to write to noble Lords with that evidence.

[Lord O’Shaughnessy]

I would be more than happy to do so.

[Baroness Thornton]

I thank the Minister for that clarification. It is a question that we felt was worth asking, and I suspect that when the Bill goes to the Commons people will pursue it. I do not think the argument that the noble Baroness, Lady Barker, put forward, that there are people who do not want this and they should not be forced into it, is really the point; the point was about this not happening because it was obstructed by the people taking care of the person. That is the matter that needs clarification. So, on the basis that that will be clear—

[Lord O’Shaughnessy]

Before the noble Baroness withdraws her amendment, I would like to say that that is an important point. I am not suggesting that there are going to be hundreds of cases where individuals do not want to see someone, but it is clearly a possibility. I think we need a more proportional system in order to deal with the backlog and ensure that people are protected, but it also has to have a set of safeguards, whether that is access to representation, making sure that conflicts of interest do not exist among care home managers and, as we are going to discuss in the coming weeks, under what circumstances an AMCP would automatically be activated, in which case of course the meeting would take place. It is those circumstances that ought to give the reassurance that it is not necessary in all cases, rather than saying that there are hundreds or thousands of these kinds of cases where people are refusing. I think that will be the exception rather than the rule.

[Baroness Thornton]

I thank the Minister for that. I beg leave to withdraw the amendment.

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[Lord O'Shaughnessy]

I am grateful to the noble Baroness for moving the amendment and the other noble Baronesses who have spoken to it. The example given was very illuminating, and I rather like the idea of that happening automatically if you leave a vacuum cleaner in someone’s room. I might try that with my children and see what happens.

The key point here is that we want the least restrictive arrangements necessary to provide for the person’s ongoing care. That is the animating idea behind the liberty protection safeguards system. We believe that the effect of the amendment is catered for through the “necessary and proportionate” test. Let me explain that. When the Law Commission published its final report on this, it concluded that,

“integral to the question of whether the deprivation of liberty is proportionate (as well as necessary) is consideration of whether there is a less intrusive alternative”.

So consideration of whether an ongoing restriction continues to be necessary and proportionate is already baked in.

As I said, the nature of the authorisations to be given by the responsible body under the new system will instigate a system of regular reviews. To give an example, it might stipulate a review for someone with fluctuating capacity, where there is reason to believe that a review might be required after a period. The system being set up enables regular reviews in a way that provides greater specificity than is the case now.

The noble Baroness, Lady Barker, was concerned that, as the length of an authorisation was extended, although that might be all right for some people, it might not for others. That is a fantastically important point, but in the process of authorisation the responsible body will be able to stipulate more frequent reviews. Our hope would be that that would come from the care home manager or other person organising the arrangements in the process of their care planning, because they will have worked out, by looking after that person, that there is reason for regular review, but it could equally be something that the responsible body attaches as a condition to the arrangements.

The effect is that when less restrictive alternatives are practically available, the authorisation ceases to have effect. It is no longer applicable. As I said, that could be determined by continuous review, regular review or be flagged by anyone—a staff member, a family member or others—with an interest in the cared-for person’s welfare, which would trigger an updated review of the situation to see what less restrictive care was available.

Although I absolutely agree with the intent behind the amendment, the “necessary and proportionate” test is already in the Bill. It provides precisely the effect that the noble Baronesses seek. Indeed, because of the way we are dealing with specific arrangements in the authorisation process, it is something for which the responsible body can stipulate a system of regular reviews. I hope that, on that basis, they will be reassured that we are conscious of the importance of this issue but believe that it is dealt with in the Bill as amended, and that the noble Baroness will feel comfortable withdrawing the amendment.

[Baroness Barker]

I thank the noble Lord very much for those statements. He will understand that, given the state in which this Bill arrived in your Lordships’ House, there was a great deal of genuine concern among stakeholders that the people making the decisions—largely, care home managers—might not be in a position to know what would be a less restrictive option for somebody: to be either in their own home, or supported in the community. In this Report stage, it has been useful to go back over that ground and to put more clarification around the frequency and timing of reviews. That will be a tremendous test for this new system, given the way in which it has been set up for there to be a period of two-year renewals. Nevertheless, at this stage, I thank the Minister and beg leave to withdraw the amendment.

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Moved by

[Lord O’Shaughnessy]

90: Schedule 1, page 15, line 16, at end insert—
“26A_ The responsible body may renew an authorisation—(a) under paragraph 27, if the conditions in that paragraph are met, or(b) under paragraph 28 if—(i) the authorisation relates to care home arrangements,(ii) the responsible body decides that renewal should be determined under that paragraph instead of under paragraph 27, and(iii) the conditions in paragraph 28 are met.”

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Moved by

[Lord O’Shaughnessy]

93: Schedule 1, page 15, leave out lines 28 and 29 and insert “The conditions in this paragraph are that—”

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Moved by

[Lord O’Shaughnessy]

96: Schedule 1, page 15, line 42, after second “statement” insert “in writing”

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Moved by

[Lord O’Shaughnessy]

99: Schedule 1, page 16, line 12, leave out from “means” to end of line 15 and insert “the responsible body unless, in relation to care home arrangements, the responsible body decides the care home manager should be the reviewer for the purposes of this paragraph.”

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[Baroness Thornton]

My Lords, Amendment 103 is in my name and that of the noble Baroness, Lady Barker. It would ensure that the reviewer must carry out a review of authorisations if a reasonable request is made by a person with an interest in the welfare of the cared-for person. This is part of the suite of amendments that stakeholders have put to us about making the cared-for person the heart of the Bill. Care England, along with many others across the sector, wants to be assured that the cared-for person’s voice is heard within the consultations at every stage of the process. This amendment would ease those concerns of the various stakeholders.

Like amendments in previous groups, this amendment would ensure that the cared-for person’s best interests are kept at the forefront of the Bill and not forgotten, and it would play a key role in protecting the cared-for person’s rights. If someone with a cared-for person’s best interests feels that the authorisations are in need of being reviewed and reconsidered, this must happen and therefore would help to protect the cared-for person. I beg to move.

[Lord O'Shaughnessy]

I am grateful to the noble Baroness for moving the amendment. Obviously, it is worth having an opportunity to restate that we clearly agree with her that it is necessary that anybody with an interest in a cared-for person’s welfare is able to trigger a reasonable request or, indeed, an objection on their behalf that constitutes a reasonable belief. That is something that we have discussed in terms of people who are supportive, such as family members, appropriate persons, IMCAs, and so on. Clearly, we have agreed to talk further about the role of whistleblowers and staff members.

I can reassure the noble Baroness that what she is asking for is already contained in numerous places in the Bill. The amendment deals specifically with paragraph 31(3)(b) of Schedule AA1. It is implicit in the description,

“person with an interest in the arrangements”,

that that includes people who have an interest in the cared-for person’s welfare. That is the purpose of the Bill. As I have made clear, any objection from someone who has an interest in the person’s welfare constitutes a reasonable belief, as set out elsewhere in the Bill. I am grateful for the opportunity to return to this issue and hope that I have reassured the noble Baroness that this is absolutely included in the definition.

[Baroness Finlay of Llandaff]

Before the Minister sits down, will he confirm that “interests” does not include the interests of the care home manager, where it may be a cheaper option, and that the interests of the cared-for person are definitely at the centre of the clause as written? I want to be absolutely sure that it cannot be misinterpreted in the future to mean “interests” in a much broader sense than the interests of the cared-for person.

[Lord O'Shaughnessy]

That is a very valid question. We have tried to deal with the conflict issues in other amendments. It is absolutely not the intention that that ought to be misused for the purpose referred to by the noble Baroness. I will need to get specific clarification about the implications of this, but I can reassure her that that is not the intention of it. If it needs to be clarified in a letter to noble Lords and, subsequently, in a code of practice then that is what we will do.

[Baroness Thornton]

This is probably one of the occasions when one can say that this really needs to be clarified in the code of practice. I thank the Minister for his reassurances and for getting them on the record. I beg leave to withdraw.

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Moved by

[Lord O'Shaughnessy]

110: Schedule 1, page 17, line 13, after first “any” insert “other”

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Moved by

[Lord O'Shaughnessy]

112: Schedule 1, page 18, line 13, leave out “Notification by Care Homes and”

[Lord O'Shaughnessy]

My Lords, I come to the critically important issue of IMCAs—independent mental capacity advocates. These amendments relate to the appointment of such people. Representation and support, whether from an IMCA or an “appropriate person”, is an important safeguard and is vital to ensuring that a cared-for person’s human rights are protected throughout the process when they are deprived of liberty.

Many people will be best supported by an appropriate person. This will tend to be a family member or someone who is close to the person. They will often know them, and their wishes and feelings, and are in the best position to provide that person with support and representation. They must, of course, be willing to undertake such a role. However, we know that others will not be in this position and will benefit from having an IMCA to provide that support and representation. For those people, it is vital that they can access an IMCA without impediment and these amendments address this

Amendments 112 and 113 remove the requirement for care home managers to notify a responsible body whether or not an IMCA should be appointed. Amendments 116 and 118 mean that appointment of IMCAs in care home cases is not contingent on notification from the care home. In Committee, I committed to review whether the Bill could make clearer that the care home manager should not act as a gatekeeper to an IMCA appointment. I have done this and these amendments achieve that goal. The responsibility for appointing an IMCA will therefore clearly lie with the responsible body and must be considered from the point that the arrangements are proposed. The responsible body can take into account any evidence in deciding whether an IMCA should be appointed, including a request from the person themselves, a family member or other interested person.

Amendments 122 and 124 in effect introduce a presumption that an IMCA should be appointed if there is no appropriate person, with a very limited exception when having an IMCA would not be in the person’s best interests. Noble Lords and others have raised concerns that the Bill as currently drafted introduces a test that could act as a block on IMCA appointment. The Joint Committee on Human Rights also expressed concern about this issue. Our intent is to ensure that people are properly protected, and we see the role of the IMCA and the appropriate person as essential to the integrity of the system in advocating for and supporting cared-for people and their rights.

We have been pleased to listen to stakeholders and to noble Lords and have amended the Bill accordingly to make sure that, when no appropriate person is in place, an IMCA is appointed unless that is not in the person’s best interests. Circumstances where it would not be in a person’s best interests to have an IMCA would be very rare, as we have discussed, but that might be the case if, for example, a person’s past and present wishes and feelings clearly indicated that they did not want one. We will use the code of practice to outline when these very unusual exceptions would apply.

Turning to the other amendments in this group, Amendment 117, tabled by the noble Baronesses, Lady Finlay and Lady Jolly, would have the same effect as government Amendment 116. In the light of that, I hope they will feel that that deals with the issue they were concerned about. All the other amendments in this group update the Bill to reflect our proposed changes to the IMCA role.

I hope that our amendments have addressed the perfectly understandable concerns of noble Lords on this topic. I am very grateful for their input to making sure that we have been able to move forward on this issue. I beg to move.

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[Baroness Thornton]

I have an amendment in this group which covers the same ground that we have been talking about for the last 20 or so minutes. It is probably not essential to pursue this amendment because the government amendments on this matter seem very comprehensive.

[Lord O'Shaughnessy]

I am sorry that I did not mention the noble Baroness’s amendment—there are so many in this group—nevertheless, I am grateful for her acceptance that we have been able to meet the perfectly justified concerns discussed inside and outside the Chamber during the passage of the Bill.

Perhaps I may deal quickly with the point raised by the noble Baroness, Lady Barker, who asked about conflicts of interest within a responsible body. We would certainly expect authorisation and the IMCA appointments to be in a separate part of the commissioning body. Government Amendment 73, which deals with who should not carry out reviews, includes, in paragraph (b),

“a person who has a prescribed connection with a care home”.

The process of commissioning a care home place for somebody should perhaps be a category that we ought to consider under that provision, and I shall need to reflect on that. That might be the right route to follow, as clearly we do not want to move the conflict of interest to a different part of the process. I will look into that and we will consider how to deal with it. I think we now have the statute to enable us to do so. I will come back to noble Lords on that point. I thank them for their contribution to the development of these amendments and their support for them. I beg to move.

Amendment 112 agreed.

Moved by

[Lord O'Shaughnessy]

113: Schedule 1, page 18, leave out lines 14 to 24

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Moved by

[Lord O'Shaughnessy]

116: Schedule 1, page 18, line 27, leave out from “arrangements” to end of line 33 and insert “are authorised or are being proposed.”

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Moved by

[Lord O'Shaughnessy]

118: Schedule 1, page 18, leave out lines 36 to 39

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Moved by

[Lord O'Shaughnessy]

122: Schedule 1, page 19, line 4, leave out “relevant person” and insert “responsible body”

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Moved by

[Lord O'Shaughnessy]

127: Schedule 1, page 19, line 15, leave out “relevant person” and insert “responsible body”

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Moved by

[Lord O'Shaughnessy]

135: Clause 2, page 2, line 29, at end insert “or”

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[Baroness Thornton]

My Lords, I feel sorry for the Minister that after so much agreement we are now criticising the Bill. However, the reason we have reached a happier state than the one we started off in in July is due to the work of a great many people, including the Minister and the Bill team.

I have put my name to several amendments in this group—I support my noble friend Lord Hunt and the noble Baroness, Lady Tyler, in what they have said—and I shall speak to Amendments 143A and 147A.

In a way, the amendments are part of what should have happened before the Bill reached us; that is exactly right. It is important to note that a coalition of organisations is concerned about what is and is not in the Bill and how it will be implemented. For the record, we have discussed the Bill with at least 44 organisations in the very short time we have had to consider it. They include Mind, the Alzheimer’s Society, Liberty, Learning Disability England, Disability Rights UK, the Relatives & Residents Association, the Care Provider Alliance, VODG—the voluntary sector’s disability group—and many others. We must pay credit to both them and the noble Lords who have worked so hard on this for the fact that we have come to a point where the Bill has significantly changed and been improved.

Echoing what my noble friend said, the amendments ask that the revised codes of practice for the Mental Capacity Act take account of Schedule 1 to the Bill and, prior to the provisions in the Act coming into force, that the code be revised by statutory instrument using the “made affirmative” procedure. Amendment 143A states:

“Before any provisions of this Act other than those which come into force on its passing come into force … the Secretary of State must publish a report detailing which of the provisions of the Act will be consulted on, by whom and by when … publish his or her consideration of the conclusions of the Independent Review of the Mental Health Act … conduct further consultation with vulnerable people, families, charities, providers … publish an equality impact assessment on the impact of the provisions of this Act”.


I would like the Minister to say that the Government have done the equality impact assessment but I have missed it somehow. However, it seems that the Government are duty-bound to consider the impact on people with protected characteristics under the Equality Act. An equality impact assessment is the established way of the Government showing that they have considered the impact on vulnerable groups. That Act begs that this process should have been gone through in preparation for the Bill. I hope that a full equality impact assessment will be conducted and made available to the Commons when it considers the Bill.

[Lord O’Shaughnessy]

My Lords—

[Baroness Jolly]

My Lords, I had not fallen asleep. We are nearly there. I put my name to Amendments 140 to 147A because they are important, although I suspect that they will not make it into the Bill. It is important to have these discussions at this stage.

In Committee, I tabled amendments on the review of the Mental Health Act and the code of practice. I still support them. The request for an equality impact assessment in Amendment 143A in the name of the noble Baroness, Lady Thornton, is the right thing to do. The amendments ask the questions but the issues are still real and important. The amendments also relate to how a future Bill could be handled. Indeed, it helps us to look back to other Bills; I cite the Care Act, for example, where a Committee of both Houses went through the Bill over a prolonged period to ensure that by the time it hit your Lordships’ House, it was worth reviewing.

The Minister has done a very good job of pulling this all together so far; Third Reading is still to come. I understand full well that he will not put any of these amendments in the Bill, but he should take seriously the concerns that they raise from Members of your Lordships’ House.

[Lord O'Shaughnessy]

I apologise for pre-empting the noble Baroness. I take the points raised in these amendments seriously, and I will attempt to deal with them as we go through. I applaud noble Lords for the contribution they have made in improving the legislation before us, but of course it is one thing getting the legislation in better order and another thing putting it into practice. I think that is what has inspired the amendments in this group. I will attempt to deal with them as comprehensively as I can and explain why we will not be accepting them in practice—as the noble Baroness, Lady Jolly, pointed out—although we are dealing with them in spirit.

Amendments 140 and 146, tabled by the noble Lord, Lord Hunt and the noble Baroness, Lady Jolly, require the Government to publish a list of every organisation we have consulted with. The noble Lord expressed concern about our response to his FOI request; as I understand it, there were some technical reasons why that did not elicit the information he was after. However, I hope the noble Lord will have seen the letter I sent following Committee, explaining that we have held over 50 engagement events since March 2017. I outlined the broad range of organisations that the Government have engaged with. That letter has been put in the Library and will be published online in due course.

I will not detain noble Lords by going through that list, but of course I am more than happy to circulate it again; indeed, it has obviously developed over time. We have engaged with care providers, a range of third-sector organisations, the royal colleges, stakeholders in local government, the NHS and the social care sector, and, critically, people who themselves have impaired capacity. That builds on three years of engagement conducted by the Law Commission in drawing up its draft Bill.

Nevertheless, I accept there is concern that we have moved too swiftly and that we have not always taken concerns on board. I know we have come in for some criticism for that, but we moved ahead with this Bill because of the urgent need for reform and because the system is not working. While I do not pretend our approach has been perfect, I and the Government feel it has been necessary to move ahead at pace.

The point I want to emphasise is that, in doing so, we have listened and acted. I am grateful to noble Lords for recognising the changes made as a consequence of challenges and ideas from them and other stakeholders. I also applaud the Bill team for responding and providing government amendments. I am pleased we have been able to move on some incredibly important topics, such as “unsound mind”, 16 and 17 year-olds, the point about IMCAs, thinking about when reviews should be considered by AMCPs, and so on.

As I said, in retrospect and as a lesson for the future, things could perhaps have been done differently. However, I believe we are in a much better place than we were at the start of the process as a consequence of our deliberations.

Amendments 141 and 147, also tabled by the noble Lord, Lord Hunt, and the noble Baroness, Lady Jolly, would require us to publish a plan to ensure that all outstanding deprivation of liberty safeguards applications are settled. The noble Lord is right to worry about this issue and give us the cautionary tale of a too-abrupt switch to a new system and the chaos that can ensue.

On commencement of the new system, existing deprivation of liberty safeguards authorisations will continue until they expire, at which point a liberty protection safeguards authorisation will need to be arranged, or the person should be provided with alternative arrangements that do not amount to a deprivation of liberty—we are seeking less restrictive care wherever possible. Given the length of time for which these authorisations exist, that will provide for a degree of staggering of the case load through the implementation of the new scheme.

On the backlog itself, many local authorities are already working to clear this. Some innovative working models have been introduced and I would be happy to write to noble Lords about them. We are working closely with the LGA and ADASS, as well as the Welsh DoLS network, to provide examples of best practice so that we can move through that backlog and into the new system. There will of course be some outstanding cases as we move from one system to another, particularly if an application is made shortly before the date the new system comes in. We will need special arrangements in place for those, but I reassure all noble Lords that we are working closely with all the people and organisations who will be responsible for implementing the new system to ensure a smooth transition.

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[Baroness Barker]

I just want to be clear: am I right that the code of practice would not be amendable when any debate came? Would it come before this House simply for information purposes?

[Lord O'Shaughnessy]

That would be correct at the point at which it came before the House, but it would be published for consultation before then. There will be an opportunity for everybody—noble Lords, Members of the other place and stakeholders—to consider a draft and to recommend changes. The final product would be laid before Parliament.

We discussed the Mental Health Act review a little bit last week. We await its conclusions. Many of us have had conversations with Sir Simon Wessely about what it is likely to conclude, and about the interaction between the Mental Health Act and the mental capacity Bill when enacted. Since we are expecting its recommendations in the middle of next month—I think the scheduled date is the 12th—we will have an opportunity to consider the review’s recommendations before we move to the new system. Indeed, given that those recommendations will be out at about the time the Bill moves to the Commons, they will clearly be the subject of debate there. The Government will need to respond to those findings as we go through the Commons stages.

Amendments 143A and 147A, tabled by the noble Baroness, Lady Thornton, would require the Government, before the new system could come into force, to conduct public consultation on the Act with vulnerable people and other stakeholders and publish a report on its findings, as well as to publish their response to the Mental Health Act review and an equality impact assessment. I hope that I have dealt with the issue of public consultation, as well as consultation on the code and, equally, on the Mental Health Act review. The noble Baroness is quite right to bring the equality impact assessment to the House’s attention. It was prepared prior to introduction and required amendment following input from the Welsh Government. It will now need to be amended further to reflect the changes made in the Bill. I can commit to publishing the equality impact assessment before the Bill makes it to the Commons so that there will be ample time for consideration before it is debated there.

If the House will allow me, I will finish by thanking all noble Lords for their perseverance and patience during a sometimes difficult and challenging debate. We know that we all want to achieve the same end to our journey; there has been disagreement at times on the right way to get there. I am deeply grateful to all noble Lords for their contributions. The Bill has been immeasurably improved already in its passage through this House. That is a very good thing in itself and will have a very positive impact—notwithstanding the slightly gloomy prospect given by the noble Lord, Lord Hunt—when it goes to the other place and on to implementation.

Once again, I extend my sincere gratitude to all noble Lords. I hope that I provided reassurances on the amendments in this group and that they will feel able not to press their amendments.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the Minister. After such an uplifting response from him I do not want to drag us down again into negative thinking as we move on to Third Reading. I will just say that the problem with selective consultation is that it disfranchises some key respondents, and the problems we had over the summer were a consequence of that; it is a lesson to be learned for the future. I am grateful for the information about the work that has been done on the backlog. It will be important that the sector is clear as to which application falls under which part of the law. It is also very good that we will see the draft code in good time. Will the Minister arrange a briefing for noble Lords, rather than just going through a formal process? That would be extremely helpful.

Finally, Sir Simon Wessely’s review is clearly very important. It is obviously important that there be consistency, and the only thing I would say is that there are lessons for all of us for a future Bill in the way this Bill has been dealt with. There is no doubt in my mind that the issues raised by Sir Simon’s review lend themselves to pre-legislative scrutiny. Pre-legislative scrutiny is not fashionable any more, but my experience with the Mental Health (Amendment) Bill 2007 suggests that it doesn’t half pay off in terms of coherent legislation.

With that, I am very grateful to the Minister for his very full response and I beg leave to withdraw the amendment.

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Moved by

[Lord O’Shaughnessy]

148: Clause 5, page 4, line 20, leave out “made by statutory instrument”

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

3rd reading (Hansard): House of Lords
Tuesday 11th December 2018 Lords Chamber

Moved by

[Lord O’Shaughnessy]

In Schedule 1, page 16, line 12, at end insert—
“(2A) In determining whether either of paragraph (a) or (b) of sub-paragraph (2) applies, the responsible body must consider the views of any relevant person about the wishes of the cared-for person that are brought to the responsible body’s attention.(2B) In sub-paragraph (2A) “relevant person” means a person engaged in caring for the cared-for person or a person interested in the cared-for person’s welfare.”

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

My Lords, throughout the progress of this Bill both the Government and noble Lords have been keen to improve the protections and safeguards contained within the reformed deprivation of liberty safeguards system so that the welfare of the cared-for person is always of paramount importance. It is that principle which lies behind the amendment I have laid for debate today.

The amendment makes it clear that any relevant person who identifies that a cared-for person is objecting to arrangements is empowered to raise the matter with the responsible body and can trigger a review by an independent AMCP. Furthermore, the amendment specifies that the responsible body must consider the views of anyone engaged in caring for the person or a person who is interested in their welfare. Importantly, this amendment is explicit that staff of all kinds can raise concerns, as well as others with an interest in the person’s welfare, and it will support staff and others, such as families or carers, in their ability to do so. I take this opportunity to thank the noble Baronesses, Lady Finlay, Lady Thornton and Lady Barker, and the right reverend Prelate the Bishop of Oxford for highlighting this very important issue on Report, and for working with and meeting me to agree a way forward.

The amendment that the Government are proposing makes it easier for inadequacies in care provision to be addressed more swiftly. Recent issues with Gosport, Winterbourne View, Mendip House and, sadly, many other cases have highlighted how important it is that family, friends and staff feel empowered to raise concerns, and for action to be taken as a result. The amendment means that if a member of staff or a family member thinks that the person is objecting and that that is not being properly considered, they can raise it with the responsible body. That body, which of course is legally responsible for authorising a deprivation of liberty, will be able to use that to judge whether an AMCP should therefore complete a pre-authorisation review. Being able to raise such concerns directly with the responsible body is particularly important as it means that staff and others can raise concerns without having to go through those who may be directly involved in the care or treatment of the person. That will enable people to feel supported and more confident to take such action.

The Bill already requires that an AMCP completes the pre-authorisation review if it is reasonable to believe that the cared-for person does not want to reside or receive care or treatment at a place. However, I agreed with noble Lords on Report that we should have something in the Bill which is explicit about the sorts of things the responsible body must consider when making this determination so that staff and families feel supported in speaking up. That is what this amendment achieves. I should add that the Government are committed to ensuring that the measure created by the amendment forms part of the necessary training and support ahead of the implementation of the new system.

Noble Lords will note that this amendment relates to the pre-authorisation review process. We understand that it will also be necessary to make sure that the ability to trigger an AMCP review is in place as part of the ongoing review process. Due to time constraints, we have not been able to table an amendment on this subject now, but I commit that the Government will return to this issue at the Commons stages of the Bill.

I again thank noble Lords for raising this issue and for working with the Government to produce this amendment. I hope the amendment satisfies the demands that noble Lords rightly made to give family and staff a higher profile in raising issues and to include that in the Bill. I beg to move.

[Baroness Meacher (CB)]

My Lords, I hope the House will indulge me for one or two minutes. I welcome the amendment and have no objections to it at all. However, I note that the Government have not come forward with amendments in relation to three other issues. The first is the risk to others and the interface with the mental health review. It would be helpful if the Minister could give us an assurance that the Government will not seek in the Commons to clarify the interface between this legislation and the mental health review. There is talk of using “objection” as the key criterion, but in my view we also need to consider the risk to others as a possible principle to be considered. Can we have an assurance that the Government will not seek to resolve this issue during the progress of this Bill in the Commons?

The second issue concerns independent hospitals, which we have debated. Although I certainly do not wish to reopen that debate, can the Minister give us an assurance that work will be done in preparation for the Commons stages on the very serious situation in which many people find themselves in independent hospitals? These hospitals are often remote and—if I may say so—not well run. People are incredibly vulnerable in them, often far more so than in homes. An assurance that that will be addressed in the Commons stages would be helpful.

The third issue regards domestic situations. Whatever the Government decide to do in the Commons, can they bear in mind the importance of trying to limit the levels of bureaucracy and, ideally, of not continuing to use the Court of Protection? Again, many very vulnerable carers caring for very vulnerable people do not have the resources to deal with a lot more bureaucracy—they already have a hell of a lot to deal with. Can the Minister respond on that point?

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[Lord O’Shaughnessy]

I am grateful to noble Lords for their acceptance of the amendment. It was tabled as a result of noble Lords’ input and their best endeavours to resolve the situation. It goes part of the way there, as we have discussed, and the Government are committed to solving it as the Bill moves to its Commons stages. There were specific questions on the amendment that I want to deal with. There were subsequent issues but I will deal with the Mental Health Act issues now. I shall leave the other issues until my closing speech because they anticipate what I will say when we come to the final part of the Bill’s passage.

On the amendment, the noble Baroness, Lady Finlay, asked about the code of practice and ensuring that protection is set out in whistleblowing legislation. We will make sure that we do that. As she will know, and as I have discussed before in the House, the Government are committed to doing more on that in the follow-up to the Gosport scandal. That is important. She also made excellent suggestions about the role of the CQC, its inspection framework and making sure that those provisions are well understood, and about helping to train responsible bodies to look for patterns. That is excellent advice, which we shall make sure is reflected in both the code of conduct and the regulatory regime. I think those were the only questions on the amendment.

Perhaps I may mention the Mental Health Act review before I finish on the amendment and move on. Clearly, it is an important piece of work. There are 152 recommendations and it is right that we take time to consider the right way to respond to them. The Government have already taken on board two of those recommendations, but there are many more to consider. One of the questions in front of us, which we have talked about to some degree during the stages of the Bill—and which will clearly come to the fore in the Commons stages—is: what is the right vehicle to deal with the interface between the suggestions that Simon Wessely has made?

There is a difference of opinion in this House about how that should be done. The noble Baroness, Lady Meacher, and others have a contrary view, but we need to solve the problem in front of us—which is that the deprivation of liberty safeguards system is not working—and then, when we have decided what the right thing to do is, to improve the Mental Health Act and its interface with the Mental Capacity Act at that point. It would be precipitous to try to do that now, before we have had an opportunity to consider it properly. In saying that, I do not mean it is not important—quite the opposite. It is so important to get it right that rushing through it could store up problems of a kind that we do not want.

The noble Baroness, Lady Jolly, asked about advocates, their training for the new dividing lines and various other questions. We will have to work through these matters as we consider the right way forward in the Bill. I disagree with the suggestion of the noble Baroness, Lady Murphy, that we should reconsider whether the Bill goes ahead because it is not intended to, and does not, reflect these issues. The Bill needs to go ahead. We know that it will not solve all the problems before us and we will probably need to act again. However, noble Lords will know that it is not always straightforward to get legislative time—let alone at the moment—and we need to take advantage of the opportunity that we have to do something good now and seek to do further good when the opportunity presents itself.

I will reserve my other reflections until my closing speech, when I will attempt to deal with them. Otherwise, I thank noble Lords for their contributions to and support for this amendment. I beg to move.

Amendment agreed.

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Moved by

[Lord O’Shaughnessy]

That the Bill do now pass.

[Lord O’Shaughnessy]

My Lords, I will use the opportunity of my closing speech to offer my sincere thanks to all those in the House who have contributed to the passage of this Bill. I hope that I will not miss out any names from this list, but I want to thank the noble Baronesses, Lady Thornton, Lady Jolly, Lady Tyler, Lady Barker, Lady Wheeler, Lady Finlay, Lady Hollins, Lady Murphy, Lady Watkins and Lady Meacher, as well as the noble Lords, Lord Hunt and Lord Touhig, and the noble and learned Lord, Lord Woolf, for their contributions. I also thank my noble friend Lady Stedman-Scott for her steadfast support. In her first time at the Dispatch Box she was stupendous and set a high bar for future performances. Lastly, I thank my noble friend Lady Barran, who gave us an excellent maiden speech during the passage of the Bill, and congratulate her on her promotion to the Whips’ Office.

I believe that, by working together constructively over the past six months, we have much improved the Bill. In doing so, we have provided a system that will protect much better the 2 million people in our society who have impaired capacity. As noble Lords have brought to life during the passage of the Bill, that is something of which many of us have personal experience. I think that there is broad agreement that the current system does not work and needs to be changed, to put the cared-for person at the centre of it. I also believe that during the passage of the Bill through this House, and in response to suggestions and ideas from noble Lords, we have made some significant improvements. Once again I beg to disagree with the noble Baroness, Lady Murphy. We have not made just superficial changes: rather, some really important changes have been made.

The Bill will now apply to 16 and 17 year-olds as well as those aged over 18. We have carefully designed a role for care homes while eliminating conflicts of interest and being clearer about their role in the system. We have been explicit that the person completing assessments must have appropriate skills and knowledge, and a statement to the responsible body must be written. The Bill no longer contains the outmoded and unwanted references to “unsound mind” and we have also strengthened the provisions around appointing IMCAs, including a presumption that they now will be appointed. I hope that in practice that deals with the concern just expressed by the noble Baroness, Lady Barker. We have also made sure that the cared-for person must be consulted so that their voice is heard in every case, and today we have amended the Bill to enable families and staff whistleblowers to raise concerns much sooner and for those concerns to be acted on.

I should also say that the House has made its own opinion known in defeating the Government on the issue of specifying that arrangements should be necessary and proportionate in order to prevent harm to self, and I can confirm that the Government will not seek to change this position in the Commons. The Government will also carefully consider the amendment passed by noble Lords on rights of information being provided to the person.

The Bill will now move forward to the Commons and I can give some reassurance about several of the issues that noble Lords raised in the last debate. As I say, we have committed to make sure that the amendment passed today will be reflected in the sense of being able to raise concerns at the review stage. We will also provide clarification about referrals to AMCPs, including independent hospitals. That was a commitment I gave on Report and I am very happy to repeat it. It will look not only at independent hospitals but at whether there are other circumstances, and what they ought to be, when a referral to an AMCP ought to be direct.

I should also say a word in response to the noble Baronesses, Lady Meacher and Lady Hollins, about the definition of deprivation of liberty. Again, I can confirm that this is something we intend to deal with in the Commons. I hope the noble Baronesses will be reassured on that. We have achieved a lot, and even if there is more that we wanted to achieve, the contributions of noble Lords have directly influenced the changes that we intend to make in the Commons. So, although it is for those in the other place to pass the amendments, noble Lords should be congratulated on their role in designing them. I hope that they will get support when we move them in the other place.

A further question was asked about the flexibility of reviews by, I think, the noble Baronesses, Lady Hollins and Lady Barker. We will need to consider that. It is worth pointing out that it is a flexibility, not a timeframe, and that it is meant to allow for continuity in situations where the circumstances of the person are not changing. Clearly, safeguards in the system will allow for much quicker reviews if there is a reason for them. Indeed, the amendment we passed today is another way in which such a review could be triggered. So I will certainly take on board the noble Baronesses’ points about flexibility, but I think that there are enough safeguards in the system.

I hope that I have answered all noble Lords’ questions. I am sure that the conversation will continue. There is much work still to do. I thank the hard-working policy team for their engagement in this process, as well as all the stakeholders who have contributed, given us their thoughts, challenged us at times and as a consequence made this legislation better.

I want to end with some reflection. We know that these are difficult and divisive times in our country and in Parliament, but we have shown through the passage of the Bill that we can work together to improve legislation, reform public services and protect vulnerable people. We should all bear that in mind as we move through the days and weeks ahead. With that, I thank noble Lords for their contributions and I beg to move.

[Baroness Barker]

My Lords, I do not want to detain the House but I have one or two important things to say. First, the House owes a debt of gratitude to the ministerial team for their work in getting us to this point. The noble Lord, Lord O’Shaughnessy, should take a great deal of the credit for enabling all the things he listed as achievements of the House, going forward. Obviously, the Bill leaves us in a much better state than when it arrived.

There was one contribution by a Member of your Lordships’ House that we have not acknowledged but should: that of the noble Baroness, Lady Browning. She has not been able to take part in many of our debates but she made an important contribution when she stood up and said that the Bournewood gap still exists. For all our work, it does, and it will continue to exist until such time as we sit down and really consider mental health and mental capacity legislation, including who makes the decisions about who comes under what piece of law. Until we sort out that gap, people will still be deprived of their liberty. We can call it by a different name, but they will be.

I will ask the Minister to reflect on one thing. Nobody came to this legislation believing that DoLS had to be preserved. Everybody knew that it was wrong. Everybody understands that we need to make greater and better use of the limited professional resources for overseeing the lives of people detained for one reason or another. We should listen to the noble Baroness, Lady Browning, and reflect on what else Parliament may have to do over the next five, six or seven years to make sure that the gap is addressed once and for all so that people are not wrongfully detained.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 24th April 2019 Lords Chamber

Overall, I welcome where we have now got to. It would be helpful, however, if the Minister could confirm that the code of practice will be statutory; that it is not voluntary guidance but has standing. I hope she hears the message I have heard from many people, including those on the leadership group. I particularly commend Lorraine Curry, previously the chair of ADASS, who has provided me with a lot of constructive criticism. She reports back now that the profession just wants to get on with it and implement the new system, and do the right thing by the people for whom they have a responsibility. I hope we will see this Bill proceed today.

[Lord O'Shaughnessy (Con)]

My Lords, I want to speak briefly to offer some thanks to everybody who has participated in getting the Bill to this point.

First and foremost, I thank noble Lords. The noble Baroness, Lady Finlay, said that the Bill had been given a bumpy ride. As I was in the driving seat for some of that, I can tell noble Lords that it certainly did feel rather bumpy. However, once we got over the bumps and decided we could work together, we made considerable improvements to the Bill, driven largely, it has to be said, by this House and the expertise within it. The compromise reached on the issue of a code of conduct is a good example of that and reflects extremely well on the process this House has gone through in its desire to reach pragmatic solutions—perhaps there is a wider lesson for politics in that.

I want also to express my thanks to those in the Bill team, who have stuck with this and shown considerable and growing intellectual flexibility as the process has gone on. I am sure all noble Lords would want to thank them for both their input and feedback and the grace with which they have dealt with this.

I thank also my noble friend the Minister. This Bill was one of many passes I gave her when she took over, and she has handled it with great intelligence and grace, as she always does. I am delighted we have got to this point and that she has steered it so safely.

Finally, and most importantly, I thank those affected by this legislation: the cared for and the carers. I am sorry to hear the opinion of the noble Baroness, Lady Murphy, which I take very seriously. I am an optimist naturally, but it is not just my natural optimism that means I cannot agree with her gloomy outlook. I hope she is wrong, and I hope she will not mind my saying so. I believe that through this legislation we have made some positive changes and done some good for the cared for and their carers. I am sure this is a subject to which we will return, but, in the meantime, I hope the lives of those people have been improved by the work we have put in over the past few months.

[Baroness Barker (LD)]

My Lords, it has been a privilege to work again on a subject that we have now worked on several times in this House, from the original pre-legislative scrutiny and original legislation through to the post-legislative report on the implementation of the previous Bill. Apart from anything else, it shows the excellent results that can be achieved from the process that we put into scrutinising legislation and scrutinising its subsequent implementation. In light of all of that, I will say that I take a slightly different view from the noble Baroness, Lady Murphy. I think that we have done a very good job. The problem is that the legislation that came to us was fundamentally flawed, and we could not change that. But we changed the legislation where we could, and those changes will make it better.

The noble Baroness hit on two fundamental issues that are problematic. The first is the nature and scope of the Cheshire West ruling and the second is the lack of understanding of the original DoLS legislation. When it was introduced, the training for professionals—all sorts of different professionals—was lacking. Much of what has happened since has meant that we have fallen into a system that is deeply bureaucratic. A number of professionals are scared to exercise their professional judgment. Consequently, a whole bureaucracy has grown up around DoLS which, had it been introduced in the right way, would not have happened. Therefore, the noble Baroness was right to say that the Law Commission was trying to deal with that issue and could not. I have no doubt that what we have in front of us will not solve the problem. I doubt very much whether it will deal with the backlog of cases, about which people are rightly exercised.

My question is one that we were all concerned about—the resourcing for this. One of the first things that we did when we met the Bill team was to query the resourcing—half a day’s training for some doctors and no need for training for people in care homes. Much of that has got lost as we have gone deeper into the wording of the Bill. Will the Minister talk about the resourcing of training and the implementation of the code of practice? I have no doubt that, in due course, there will be further test cases that will shine a light on the deficiencies of this legislation and we will come back to dealing with the fundamental issue: how do we ensure that someone whose liberty is going to be deprived by an agency of the state can be enabled to understand their rights, and their carers enabled to understand their rights, in order that they and the professionals who work with them can ensure that everything is put in place to minimise the deprivation of liberty? If we had done that properly in the first place, we would not be dealing with the deficient legislation that we are now.

The noble Baroness, Lady Murphy, is right that we have not dealt with it, but I take some hope from a lot of the stramash, to use a Scottish word, that we have been through and the attention that has been paid to all of this by the department, by people in the sector and by the lawyers themselves. This is not the greatest job we have ever done, but what we should do today is put a marker down for the evidence that needs to be collated and gathered for the time in the future when we will, inevitably, return to this subject.