Mental Capacity (Amendment) Bill [HL]

Lord Touhig Excerpts

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

[Lord Touhig (Lab)]

My Lords, a recent report by the Joint Committee on Human Rights called for a statutory definition of what constitutes a deprivation of liberty. The Bill does not offer such a definition. If it did, we would have clarity for families and front-line professionals; without it, there is a risk. We are reminded in an excellent paper from the Library that the Law Commission, which reviewed the existing legislation, concluded that the deprivation of liberty safeguards failed to offer sufficient protection of the rights of those deprived of liberty. Indeed, all too often, according to the report, it had been “theoretical and illusory”.

The Bill widens the number of living arrangements that are covered by the current deprivation of liberty safeguards system to include any setting. For it to apply, an individual must be aged 18 or over, lack capacity to consent to the living arrangement and be of unsound mind. To be authorised by a council or hospital, the living arrangement must be “necessary and proportionate”. There are also proposals for consultation on the living arrangements and for a “pre-authorisation review”. Assessments under the proposals will be carried out by councils or hospitals unless the individual lives in a care home, in which case it would be carried out by the care home manager. The last criterion would include autistic people who live in residential care. In a response to the Law Commission, the National Autistic Society, of which I am a vice-president, welcomed the attempts to create a simplified administrative regime that could tackle the significant delays in the current system.

However, many concerns remain. In its current form, the Bill does not adequately secure the rights of autistic people. Under the current deprivation of liberty safeguards system, a deprivation of liberty needs to be in an individual’s best interests for it to be authorised. The Bill moves away from best interests. Why does it do that? Instead, to be authorised, a living arrangement must be “necessary and proportionate”. The new criteria risk losing sight of what is best for the individual and what the individual wants. Let us be wary of enacting legislation that pays scant regard to the individual, in particular an individual who, in the context of the Bill, is perhaps the most vulnerable in society.

There is a duty to consult on care arrangements. The Bill says that the purpose of this consultation is to ascertain the individual’s wishes. However, the list at paragraph 17(2) of Schedule 1 omits the individual altogether. Although an autistic person might lack capacity to decide about living arrangements, their preferences or wishes should be an important factor in any decision about their lives. I am not sure what a decision-maker is expected to do with the results of this consultation. It is not made clear whether this is part of a determination that an arrangement is “necessary and proportionate”. This needs to be clarified. I hope that it will be.

The National Autistic Society echoes concerns expressed by Mencap that this removes the rights of deputies or lasting powers of attorney to refuse the authorisation of a deprivation of liberty. Overall, the lack of inclusion of best interests, the lack of interest in trying to ascertain what the individual wants and the removal of the rights of deputies or lasting powers of attorney is most definitely a backward step in putting the individual at the centre of any decision-making process. The Bill surely should enshrine individuals’ best interests, as did the Law Commission’s proposals. The role of these interests within a determination about a deprivation of liberty must be clarified and I hope that it will be.

A pre-authorisation review is required in the Bill to agree to a deprivation of liberty. It says that this should be carried out by someone who is not involved in day-to-day care of the individual. However, the wording causes me concern. As drafted, it is not strong enough to secure independence. It will be carried out by an independent approved mental capacity professional only if it is reasonable to believe that the individual does not want to live in that arrangement. It is unclear how the reasonableness of this will be determined. The wording is too weak to secure the rights of autistic people who might lack capacity. Even more astounding, there is no duty whatever for the person carrying out a review to have met the individual whose case this person is reviewing. This simply cannot be right. The Bill must require independent reviews by an approved mental capacity professional in all circumstances.

If an individual resides in a care home the Bill’s requirements to carry out an assessment and consultation fall to the care home manager. While this would relieve some of the administrative burden on councils and hospitals, the National Autistic Society is concerned, and rightly so. First, the administrative burden will simply shift to care home managers, who are already stretched and may not have received the training needed to carry out these tasks. Secondly, the process in the Bill does not adequately safeguard against these assessments being, in effect, rubber-stamped by councils and hospitals, particularly while the duties around pre-authorisation reviews are so weak. This could lead to a conflict of interest, whereby care home managers are de facto authorisers of deprivations of liberty. The Government should consult more widely on this. Surely we need much more consultation.

The Bill requires that an authorisation can last up to 12 months. At the end of this period, it can be renewed for another 12 months or less. However, subsequent renewals may last for up to three years. Under the Care Act 2014, reviews of care and support plans should take place annually. Any deprivation of liberty should be considered within these reviews. It would be far more appropriate to allow for ongoing renewals of up to one year, to align more closely with care and support planning. I hope the Bill might be amended so that we can provide for 12-monthly reviews.

All individuals and their appropriate person should be able to access support from an independent mental capacity adviser with the right skills to challenge unnecessary deprivation of liberty. This is currently not in the Bill. Rights to independent mental capacity advisers should be extended to cover all individuals.

There is much to be concerned about in this Bill. I really hope the Government are in listening mode. They certainly need to be.