Mental Capacity (Amendment) Bill [Lords]

Norman Lamb Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons & Ways and Means resolution: House of Commons
Tuesday 18th December 2018 Commons Chamber

[Matt Hancock]

I want to make a little bit of progress.

For many reasons, the current system is broken. Too many people do not have the protections they need because of a bureaucratic backlog. There are currently more than 125,000 people waiting to be processed, and nearly 50,000 people have been waiting for over a year.

[Norman Lamb (North Norfolk) (LD)]

rose—

[Matt Hancock]

I will give way to the right hon. Gentleman, who did a huge amount of work on this as a Minister in the Department.

[Norman Lamb]

I thank the Secretary of State for giving way. I share his view on the extent to which the current system is broken. He will be aware that the Bill came under substantial criticism in the House of Lords, and that substantial improvements were made to it there. There is a recognition, however, that there is still a long way to go. Will he commit to working with the Opposition parties and to meeting us and interested parties beyond Parliament to ensure that by the end of this process we have an agreed Bill that will actually improve people’s safety?

[Matt Hancock]

Yes, absolutely I will. I know that the right hon. Gentleman met the Minister for Care, my hon. Friend the Member for Gosport (Caroline Dinenage), yesterday to discuss this question. Of course this ought to be a collaborative process. Improvements were made to the Bill in the other place—I shall talk about those in a moment—but we recognise that further improvements could still be made. Ultimately, there is a careful balance to be struck between the need to protect people who do not have the full mental capacity to take care of themselves and the need to ensure that we do not deprive people of their liberty unnecessarily. That is a careful balance, and we should take this forward on the basis of open discussion and deliberation, rather than of a party political ding-dong.

--- Later in debate ---

[Norman Lamb (North Norfolk) (LD)]

I want to start by reinforcing the point that the Bill deals with an issue of profound importance: the deprivation of a citizen’s liberty and the circumstances in which that can be done. That is why it is so vital that the measures are properly and closely examined and scrutinised. This is particularly important when dealing with people who potentially cannot object to the deprivation of their liberty. There is a real need for robust safeguards to be in place to ensure the least restrictive care possible in all cases and to restrict liberty only if that is genuinely in the best interests of that individual.

The system that the Bill seeks to reform is clearly not fit for purpose. The Joint Committee on Human Rights reached that clear conclusion. After the Cheshire West ruling, which actually happened during the period when I was a Minister, we have seen the development of a massive backlog, in particular because of the broadening of the definition of what constitutes the deprivation of liberty. It is therefore imperative that we sort that out. If we think about it, here and now we are routinely flouting people’s human rights. All those people on the backlog waiting list are being deprived of their liberty without proper authorisation. That is intolerable and it is why I resist the idea that we should just stop this process and leave in place the current wholly imperfect system.

When we think about reform, it is vital that we replace a flawed bureaucratic system with an effective robust system with proper safeguards, not another flawed system. It is very important to recognise what turned up in the House of Lords. My colleague Baroness Barker commented:

“This is one of the worst pieces of legislation ever brought before this House.”—[Official Report, House of Lords, 11 December 2018; Vol. 794, c. 1247.]

That was the view of many peers when the Bill first appeared in the House. I pay tribute to peers on all sides. I know my Liberal Democrat team did an incredible amount of work, but they worked with Labour colleagues and, I should say, the Minister Lord O'Shaughnessy. He collaborated with peers on all sides to improve the proposed legislation.

[Barbara Keeley]

The comment from Baroness Barker, who did some great work in the House of Lords, was made on Third Reading; she still described it then as one of the “worst pieces of legislation” that they had seen in the House of Lords.

--- Later in debate ---

[Norman Lamb]

I am grateful to the shadow Minister for her intervention, because I was just coming on to the comments that Baroness Barker added on Third Reading. She said that although it had become better legislation, it was still

“highly deficient, but not as bad as it was.”—[Official Report, House of Lords, 11 December 2018; Vol. 794, c. 1247.]

That, Minister, is not a ringing endorsement of this legislation. That is why it is critically important that the Government do what they say they will and collaborate to improve it, because improvements are absolutely necessary. Our assessment will be at the end of the process: is it workable? Does it genuinely respect and safeguard individuals’ human rights? Does it result in very vulnerable people being better protected than they are under the existing, highly flawed system? On those tests will we decide whether to support the Bill on Third Reading.

My plea to the Minister is, as we have discussed, to meet us well before the Committee stage. Do not rush headlong into the Committee stage. I am alarmed that we are talking about that happening at the end of January, given what else is going on then. Be in no doubt that if we do not sort out the flaws that still exist, I will work with others across the House to make sure that the Bill is defeated on Third Reading, because the stakes are so important.

I want to end by highlighting some of the key issues that need to be sorted out. First, many viewed the impact assessment that was presented to the House of Lords as based on fantasy, even before all the amendments were made there. I understand that it is being updated, but it is really important that it is a credible and robust document and, critically, that, along with the impact assessment, the new system is properly resourced. If it is not properly resourced, people’s human rights will continue to be flouted.

Secondly, there needs to be a published equality impact assessment. There has not been one yet. That is not acceptable. The Government need to get on and publish anything that they have produced. If they have not done the work on it, they need to get on and do that.

Thirdly, there are continuing concerns about really important conflicts of interest of independent hospitals and care home managers, who will still carry out consultations. Independent hospitals, as I understand it, are still able to authorise the deprivation of liberty within the hospital. When financial interests are at stake, there will be those who behave badly and who are prepared to act to keep a bed filled to earn the money from that individual—the “cash cow”, as the shadow Minister suggested. That is why robust safeguards are absolutely critical.

Fourthly, we need a clear definition of the “deprivation of liberty”, and the Minister has indicated that that will be forthcoming.

Fifthly, there are the renewal periods. I understand—the Minister made this point to me yesterday—that we do not want a tick-box exercise when it is clear and obvious to everyone that the arrangements are in that person’s interest, but there is something very concerning about our moving in the opposite direction to what Simon Wessely’s review said should happen with regard to the Mental Health Act 1983, where we would see improved safeguards. Here, however, we are talking about a longer period between reviews and renewals, and that seems to me to be a real concern.

Sixthly, there is the interface with the Mental Health Act—please get this right, because if we legislate and repent later, it will be too late and people will lose out as a result. My final comment is: listen to us, talk to us and talk to the interest groups to make sure that we get this right.

--- Later in debate ---

[Helen Whately]

The hon. Gentleman has made a good point about the support for the Bill. Some Opposition Members have suggested that there is not much support for it, but it is, in fact, widely supported. Yes, there are concerns, with which I shall deal shortly, but, as the hon. Gentleman has said, there is widespread support for improvements in the current system. Those improvements include simplification—less bureaucracy and fewer administrative burdens—and the critically important representation of individuals through the independent mental capacity advocates, which will give them a voice. The frequency of assessments will become more appropriate; as my hon. Friend the Member for Berwick-upon-Tweed (Anne-Marie Trevelyan) said earlier, timings can be inappropriate and excessively burdensome. There is a better choice of language: the Bill removes the term “unsound mind”, which is very stigmatising and completely unnecessary. I am also pleased that the Government have listened to the concerns expressed by some of my constituents about, for instance, potential conflicts of interests for care home owners when a financial interest may be involved.

However, I have three outstanding concerns. First, there is the question of how the amended Act will work for people with severe mental illnesses. The Bill clearly focuses on those who lack capacity because of, for instance, dementia, learning difficulties, autism or brain injuries, but, if I understand it correctly, it could be applied to people with severe mental illnesses. Figures suggest that the current Act is applied to a significant number of people in such circumstances. We know that such illnesses—bipolar disorders, for example—are likely to fluctuate, and that as a result people’s capacity may also fluctuate. That could cause them to be detained and deprived of their liberty when, in fact, they have regained capacity. The Minister in the Lords, Lord O’ Shaughnessy, gave a commitment that that would be addressed in the code of practice, but may I press this Minister to ensure that there are sufficient safeguards in the Bill?

[Norman Lamb]

Does the hon. Lady agree that, given the cohort that could be covered by both pieces of legislation, it is particularly important that the approach be consistent?

[Helen Whately]

I completely agree, and that relates to my second concern, which others have mentioned and which relates to the interaction between the Bill and the 2005 Act. In his review, Sir Simon Wessely suggested that there should be a new dividing line between the two. I hope the Minister will explain how that will work.

My third concern is whether the Bill will address a situation that I suspect many of us have encountered, when elderly people are locked into their homes. When I have been knocking on doors, I have sometimes been told, “Do not knock on that door, because the lady there has been locked in by her family, and she becomes very distressed and upset if someone rings the doorbell because she cannot answer the door and she does not understand why.” This is clearly a completely inhumane way to treat people, but it is happening. People are being detained at home without appropriate safeguards for their safety as much as anything, so I ask the Minister to say whether the Bill can address this problem, or are there any other steps we might take to deal with the issue of people being inappropriately locked in at home and deprived of their liberty?

I appreciate the spirit in which this Bill has been presented to the House, and the willingness of the Government to listen, as they have already shown as the Bill has been going through the Lords. I have listened to Opposition Members, but think there is widespread support for the Bill among interest groups and experts. I look forward to the Government continuing to listen and improve the Bill so that we have a better system sooner rather than later.

Mental Capacity (Amendment) Bill [Lords]

Norman Lamb Excerpts

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

[The Minister for Care (Caroline Dinenage)]

I am here today to prove my mettle.

I will start by stating the obvious: our liberty is our most fundamental human right. The challenge today is that the current system of deprivation of liberty safeguards no longer provides protection to all the vulnerable people entitled to it. The system has proved to be overly bureaucratic and inefficient to apply, and case law has resulted in article 5 of the European convention on human rights being understood in a very different way, and this has, in effect, widened the definition of deprivation of liberty eighteenfold. The result is a long backlog of applications that has built up over time such that today about 125,000 people may be subject to a deprivation of liberty without formal authorisation.

The Bill introduces a new system—the liberty protection safeguard—based on work of the Law Commission that involved more than three years of consultation and consideration. It is designed to provide robust protections and to be simpler so that protections may be afforded quickly and effectively to those who need them. It is absolutely right that any proposed changes to the protection of some of the most vulnerable people in our society be scrutinised closely, however, and I am grateful for the close examination of the Bill by hon. Members and noble Lords during the Bill’s passage here and in the other place.

I thank the hon. Member for Rhondda (Chris Bryant) for raising the issue of how liberty protection safeguards will work for people who have a brain injury or may need to be deprived of their liberty while receiving care or treatment. I also thank him for his chairmanship of the all-party group on acquired brain injury. He does an outstanding job and is a great advocate for the group.

A leading charity in this area, Headway, reports that every 90 seconds someone is admitted to a UK hospital with an acquired brain injury or related diagnosis, such as trauma, stroke, tumour and neurological illness, and many of these will require some form of rehabilitation. For some people, this can be a lifelong need. Having met the hon. Gentleman yesterday to discuss his concerns, I understand that neurorehabilitation can in some cases help people to regain capacity over time and that his amendments are intended to account for this and to ensure that a deprivation of liberty occurs only when strictly necessary.

I would like to provide some reassurance that the first principle of the Bill is that a deprivation of liberty should occur only where it is considered essential and where authorisation conditions are met. I can assure the hon. Gentleman that we have considered carefully how this model will work for this group of people and are confident that the reformed model will embed consideration of deprivation of liberty into the earliest stages of care and treatment planning so that from the outset these arrangements will work alongside neurorehabilitation therapy and adhere to the less-restrictive principle of the Mental Capacity Act 2005.

[Norman Lamb (North Norfolk) (LD)]

I understand the Minister’s concern not to impinge on the rights of disabled and elderly people, but is she not concerned that more than 100 social care and disability organisations have written to her raising continuing concerns, including about the Bill adversely affecting the rights of people who rely on care and support services. Does she think they are wrong, or does she think they have legitimate concerns that still need to be properly addressed?

[Caroline Dinenage]

Of course, any organisation representing these vulnerable people that raises concerns deserves to have them listened to, and I am sure that the vast majority are legitimate concerns, which is why we have been listening so carefully up until this point. The right hon. Gentleman will know how many amendments we have made in the other place, in Committee and today.

We will continue to listen and collaborate as we deal with the code of practice, about which I shall say more in a moment. A working group of third-sector organisations is helping us to put the document together so that it is not rushed. It is not being prepared for the purposes of Parliament, but it will come before Parliament. Following a wide public consultation, both Houses will vote on it. That collaboration has been and will continue to be important: it is not the end of the conversation, but very much part of it.

--- Later in debate ---

[Caroline Dinenage]

I am afraid that I will not take any more interventions because Mr Deputy Speaker might fall out with me entirely. In short, care home managers will be responsible for consultation, which is already part of good care.

Amendment 50 would require an approved mental capacity professional to complete the pre-authorisation review, where care home arrangements are being authorised and where the care home manager provides a statement to the responsible body. The Law Commission recommended the creation of the AMCP role and also recommended that their use should be focused on those cases where their input is needed. The commission recommended that AMCPs should consider cases where an objection is raised and the Bill does that. The Bill also allows other relevant cases to be referred to an AMCP. We expect, for example, cases where there are complex circumstances, or particularly restrictive practices are proposed, to be referred by the responsible body to an AMCP. We have also specified that an AMCP must carry out the pre-authorisation review in independent hospital cases. However, we agree with the Law Commission that not every case should be considered by an AMCP. By having a targeted system, with a greater focus on more complex cases, we can ensure that people receive the protection to which they are entitled.

Turning to amendment 51, I thank hon. Members for raising advocacy, about which we spoke at length in Committee. Advocacy is of the utmost importance for ensuring that the voice of the person is heard. That is why this Bill creates a presumption of advocacy for everyone who is subject to arrangements under liberty protection safeguards. During our engagement with stakeholders, many people and their families told us that the DoLS system was something that was done to them without family involvement. That is why this Bill introduces the appropriate person role described by the Law Commission. Family members and those close to the person will be able to be an appropriate person and provide representation and support. We recognise that that role can be challenging, which is why it will be conducted only by those who are willing to do it. Otherwise, people will be able to request an independent mental capacity advocate to support them in providing that important representation.

Like Opposition Members, we want to ensure that people receive advocacy, but we recognise that we should not impose it on people, nor should it become a formality without real effect. Our Bill already delivers on amendment 51.

[Norman Lamb]

Will the Minister give way?

[Caroline Dinenage]

I am afraid that I cannot take any more interventions at this stage.

Our Bill allows the person themselves to request an IMCA from the responsible body if they have the capacity to do so, and it explicitly states that an appropriate person can request an IMCA or that the responsible body should appoint an IMCA if it believes that the appropriate person having the support of an IMCA would be in the cared-for person’s best interest.

I agree that the appropriate person has a challenging role with vital duties to ensure that the person exercises their rights, and we want to work with others in the sector to establish how best to support them in this role. There is existing provision in the Bill to address the concerns raised by amendment 51. In some areas, the amendment adds uncertainty and over-complication.

This Bill is about protecting vulnerable people and replacing a one-size-fits-all system.

--- Later in debate ---

[Norman Lamb]

I want to speak primarily in support of the amendments in the name of the shadow Minister, the hon. Member for Worsley and Eccles South (Barbara Keeley), and others. However, I want to comment right at the start—I realise this is not the decision of the Minister—about the time we have to debate a Bill that deals with fundamental human rights. I just think it is absolutely outrageous, and we should place on the record our total opposition to the way in which, wholly inappropriately, it has been rushed through.

I should also say that I completely understand the need for reform. I said that on Second Reading, and I acknowledge the Minister’s sincerity on that. I recognise that we breach the human rights of the people who are on a long waiting list for anything to happen to them, but that is no justification for getting it wrong at this stage. Surely we must not weaken the protections for very vulnerable people, yet the organisations that have followed this process all the way through are very clear that that is precisely what we will do.

I just think this is extraordinary: the Government have commissioned a review of the Mental Health Act, and although we have not had the formal response yet, I expect that much of what the review calls for will be supported by the Government, yet the review moves in a diametrically opposite direction to this Bill. The review talks about “rebalancing the system” and about

“a real shift in the balance of power between the patient and the professional”.

The review also talks about

“a right to advocacy based on an opt-out approach.”

That is what the amendments in the name of the shadow Minister seek. This will not, as the Minister implied, force advocacy on anyone; this is about having it as the default option. The Law Commission has called for a right to advocacy as an opt-out approach, yet the Government are resisting it. Why are they resisting it? This reduces the rights and protections of vulnerable people, and for that reason it seems to me that it is unacceptable.

On Second Reading, I said that I would not oppose the Bill at that stage, and I said:

“Our assessment will be at the end of the process: is it workable? Does it genuinely respect and safeguard individuals’ human rights? Does it result in very vulnerable people being better protected than they are under the existing…flawed system?”

At that time, I asked the Minister to meet all of us, including interest groups, before going into the Committee stage. I said on Second Reading:

“Do not rush headlong into the Committee stage.”—[Official Report, 18 December 2018; Vol. 651, c. 744.]

Yet, within a fortnight, we were in Committee, which is exactly what I had urged her not to do.

Then we come to the views of the sector. I mentioned earlier that over 100 organisations, including care providers, disabled people’s organisations and charities, have written to the Minister. They make it clear that reform should not be at the cost of the human rights of people who rely on essential social services. I want to deal, specifically and finally, with the conflict of interest issue. They say in that letter to the Minister that

“serious conflicts of interest will be placed upon care managers who will be in control of key information about assessments and review processes.”

The Law Society—surely we should take its concerns seriously—says of care home managers that

“any task or role they undertake must be completely conflict free”,

and that they should not be arranging or carrying out critical assessments. Care home managers should not be responsible for consultation with the cared-for person. It describes the current process—it is not a past but a current concern about the Bill, as amended—as “deeply flawed”. It says:

“It is not difficult to envisage a vulnerable person being uncomfortable or reluctant to give an honest answer when questioned by the care home manager on their willingness to stay”—

in that care home—

“or their ‘happiness’ in the current placement.”

The Law Society’s concern is also about the capacity of care home managers to undertake this work, given that the whole system is under massive pressure. Bluntly, the quality of care home managers is such—many of them are really good, but some of them are not, frankly, good enough—that we cannot rely on them to undertake this vital work, which goes to the protection of the civil liberties of vulnerable people.

[Barbara Keeley]

On the training that the Minister has talked about and the hon. Member for Congleton (Fiona Bruce) just referred to, I understand from impact assessments that there is half a day’s training for care home managers and two hours of training for social workers. What does the right hon. Gentleman think of that?

[Norman Lamb]

That is clearly insufficient when it comes to the vital task of playing a role in the protection of people’s civil liberties and human rights. That is what the Bill envisages.

Sue Bott, the deputy chief executive of Disability Rights UK, says:

“Given the rare unanimity across the health and social care sector and disabled people’s organisations we urge the Government to delay the Bill and look again at its provisions. It is better to have a co-produced piece of legislation that works for everyone than rush through a new law that, in its current form, will seriously undermine the human rights of disabled people.”

I urge the Minister to listen carefully to that—the “rare unanimity” across the sector. When I was responsible for taking the Care Bill through Parliament, we ensured that by the end pretty much everyone was on board, although it was a slow and sometimes frustrating process.

The Minister will be applauded if she now recognises that these concerns about the amended Bill are not past ones but current ones. If we are to get people on board and ensure that everyone agrees that we are properly protecting the human rights of very vulnerable people, the right thing to do now is pause, before the Bill goes back to the House of Lords, to ensure in particular that the provisions on conflict of interest of care home managers and the rights of advocacy are properly addressed. If the Minister can do that, she will go a long way towards bringing people on board. I am sure that that is what she wants.

[Kevin Foster (Torbay) (Con)]

Given the restrictions on time, I will curtail my speech and take out remarks I might have made; I am conscious that colleagues would also like to speak.

I always agree with the passion of the right hon. Member for North Norfolk (Norman Lamb) on these issues, but I do not agree with his conclusions on aspects of the Bill. I am reassured by the Government amendments, particularly in relation to independent hospitals: such a hospital might have a potential business interest in keeping someone in its service, so it will not at any time judge whether that person needs to be under the deprivation of liberty safeguards.

It is important that we have a modern system; as has been mentioned, the backlog of 125,000 people under the existing system is utterly unacceptable. What standards there are will need to be changed. When I look at the Opposition amendments, particularly amendment 49, I take the Minister’s point that the consultation—actually talking to someone about their views and their care—is part of what we would expect a care provider to be doing. There must be clear, independent safeguards around deprivation of liberty, and the ability to have an independent check. In some cases, it would be better for someone who works with the individual every day to do the consultation, rather than someone literally turning up from the local authority or health board, who may not have had any contact with them. We are talking about people with issues when it comes to interacting and understanding some of the engagement, so I do not see why there should be consultation in all cases. We are talking about consultation, not decision, and I do not see what the issue is with that.

I turn briefly to the amendments moved by the hon. Member for Rhondda (Chris Bryant). The attention he brings to the issue of acquired brain injury is always welcome—particularly in the football world, on the day when an England 1966 hero passed away. The hon. Gentleman mentioned that those from that era often acquired head injuries as a result of heading heavy leather balls, particularly when wet. That is still an issue in football today. I join the hon. Gentleman in saying that the rules should be looked at. If that can be done in rugby without affecting the flow of the game, there is no reason why it cannot be done in football. Similar arguments were advanced in relation to video referees and they are now in place.

I am conscious of the time remaining for others to have their say, so I will just say that I support the Bill and that I do not see the need for the amendments tabled by the Opposition.

--- Later in debate ---

[Barbara Keeley]

It is appalling that we should have had less than two hours for Report stage of a Bill affecting the human rights of some 2 million vulnerable people who lack capacity—and we had less than two hours for Second Reading. Given that there is no appreciable business to occupy ourselves with next week, it is ludicrous that the Government should have forced the Bill through today.

The Bill that we are being asked to pass today is simply not fit for purpose; it simply replaces the current flawed system, which the Minister has just described, with a new one that is actually more flawed. There are a number of issues that we still consider unacceptable. The largest is that the Bill still creates a major conflict of interest in relation to the managers of private care homes. It is simply wrong that a business with a financial stake in seeing a deprivation of liberty authorisation granted can do all the legwork and then just have its recommendation rubber-stamped by the local council.

I hope that care home managers will seek to carry out their new role well, but we know that they are already overstretched. The Bill creates extra pressures.

[Norman Lamb]

Does the shadow Minister share my confusion and concern that the Mental Health Act review, which the Government commissioned, appears to be moving in one direction—strengthening the rights of individuals—while this Bill appears to be moving in precisely the opposite direction?

[Barbara Keeley]

That is very much the case. We asked on Second Reading for some consideration of the interface between the two.

As well as the issue of care home managers, there is a real concern about the restrictions on access to advocacy under the Bill. Advocacy is a fundamental pillar of any system for authorising deprivation of liberty. The Bill means that vulnerable people who need an advocate may not get one, and amendments that could have changed that have been rejected. The use of a best interest test to decide whether someone gets an advocate has been widely criticised. The Government could and should have removed the reliance on the best interest test.

The maximum renewal period of a deprivation of liberty authorisation is tripled by the Bill. As the right hon. Member for North Norfolk (Norman Lamb) said, the Mental Health Act review is moving in one way while this Bill moves in another. The Bill could see people being detained for three years at a time without a full reconsideration of their case. The only safeguard against that being misused is a series of regular reviews, but we do not know how regular those will be or what they will look like.

In Committee, the Government introduced a new definition of deprivation of liberty to the Bill. It is woefully inadequate and will inevitably result in costly litigation. The Government introduced the definition late on, with next to no consultation. The clashes between that definition and existing case law will lead to court challenges. The definition will see some people deprived of their liberty without the safeguards they need, while the issue is sorted out in the courts.

The process that the Bill has been through could be used as a case study of how not to make legislation.