Mental Capacity (Amendment) Bill [ Lords ] (Third sitting)

Paul Williams Excerpts

Thursday 17th January 2019 Public Bill Committees

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

I beg to move amendment 51, in schedule 1, page 12, line 40, at end insert—

“(h) the cared for person has access to an Approved Mental Capacity Professional”.

This amendment is designed to probe that the responsible body could not authorise arrangements for the deprivation of liberty under Clause 15 if the cared for person does not have access to reasonable support and consideration by an Approved Mental Capacity Professional.

It is good to see you in the Chair once again, Mr Austin. I share with my hon. Friend the Member for Worsley and Eccles South a grave concern about the care home arrangements in the Bill generally. Earlier in the week she made a persuasive case for the Minister to look again at the whole set of arrangements. I continue to worry that there is a potential conflict in the way they will operate, which may not be in the best interests of the people whose interests should be at the front of our minds.

I hope that I shall be able to explain my reason for tabling the amendment sufficiently well to persuade the Minister at least to consider my concerns. Paragraph 15 of the new schedule AA1 that schedule 1 would insert into the 2005 Act requires a number of conditions to be satisfied, including with reference to the

“determinations required by paragraphs 18 and 19”.

However, under proposed new paragraph 18, the assessment

“must be carried out by a person who appears”—

they need only appear—

“to the relevant person to have appropriate experience and knowledge.”

I do not quite know how that would be determined if it were challenged in a legal setting, but I would have thought that those who are giving that responsibility would want a little more assurance than the mere appearance of appropriate experience.

[Dr Paul Williams (Stockton South) (Lab)]

Are experience and knowledge enough without having the skills?

[Steve McCabe]

I defer to my hon. Friend’s much greater expertise in the area, but my gut instinct is to say, “Absolutely not.” I would have thought that skills were an essential third part of the equation.

The person need only appear to have the appropriate knowledge. Proposed new paragraph 15 also requires that appropriate consultation be carried out and so forth, but it reads to me like a checklist. The Minister made it clear to the Committee on Tuesday that she does not want a checklist or tick-box approach to assessment or to decisions to restrict a person’s liberty—the fact that she is absolutely against such an approach was probably one of the most reassuring things that we heard from her. However, we also heard that the Law Society has expressed concern about the relatively limited situations in which a cared-for person has access to an approved mental capacity professional; it recommends that having that access should be the default position in the majority of cases.

I concede that my amendment is very poorly drafted. The Minister will have no difficulty in pointing out its deficiencies in that respect; I am sure that the people who advise and assist her could do a vastly superior job of drafting it. However, the key issue that I am trying to raise relates to the anxiety of my hon. Friend the Member for Worsley and Eccles South that a cosy or somewhat collusive arrangement could develop if the care home manager has too much influence over who is engaged to carry out these activities. Before the responsible body authorises the arrangements, I want it to be completely satisfied that all the conditions have been fully complied with and that the vulnerable person has had access to an appropriate AMCP.

I am prepared to accept that there may well be circumstances—the Minister drew on the experience of her relative, who has sadly passed away—in which access to an approved mental capacity professional does not necessarily require extensive involvement. For example, if there is already an abundance of information and evidence to support the decision, it seems a pointless exercise to engage someone in an extensive role. I assume that is part of the thinking behind the Minister’s efforts to streamline the process. I would be the first to concede that point, but we need to be absolutely sure that the person who is engaged has the appropriate experience, knowledge and—as my hon. Friend the Member for Stockton South says—skills. That is surely key to being able to determine whether any of those conditions are appropriately met, other than simply through a checklist or tick-box system.

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[Dr Williams]

It is a pleasure to serve under your chairmanship, Mr Austin, for the first time. I will add a few words on fluctuating capacity to those of my hon. Friend. Everyone in the room knows that mental capacity can fluctuate. In this case, we are talking about the capacity to decide whether someone consents to deprivation of their liberty.

[James Morris]

This group of amendments raises some important issues. I want to probe one point: from a diagnostic point of view, establishing whether somebody has a fluctuating capacity is not a trivial issue. That may mean either that the type of professional who can make that diagnosis is unavailable, or that a different process to establish whether there is a fluctuating capacity issue is required. My point is that the intervention into the process that the amendments would require is not trivial.

[Dr Williams]

The hon. Gentleman is right: it is a significant intervention that may well require not only a person with significant skills, knowledge and experience, but a series of different assessments over time to make the judgment.

[Mr Dhesi]

As the hon. Member for Halesowen and Rowley Regis just pointed out, a medical practitioner who can diagnose whether somebody has fluctuating capacity may be unavailable, in which case we should definitely not disregard the Law Commission’s advice. Otherwise, we open ourselves to legal challenge and other things. In the long run that would be to the detriment of not only the cared-for person but the system itself in terms of extra costs and distress.

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[Dr Williams]

I thank my hon. Friend for referring to the Law Commission’s recommendations.

I am sure that the Government will argue that the substance of the amendment will be reflected in the code of practice, but it is so important and so fundamental that it needs to be reflected in the Bill. Obviously, somebody may well have the capacity to consent to different decisions. Capacity is not just assessed over a period of time; assessments depend on the decision that somebody is going to make. Somebody may well have the capacity to decide whether they want tea or coffee, but may not have the capacity to decide all the time whether they consent to their deprivation of liberty.

Anyone who has ever spent any time with somebody who has capacity issues—we are usually talking about people who have a dementia, as the majority of people who have fluctuating capacity, though not all, have a dementia—will know that people have good and bad days. Sometimes people have good and bad hours. It is common for someone to say, “She was bright and sharp this morning,” or, “He’s not quite himself tonight.”

Acute illness can affect capacity, but so can sleep, stress and nutrition. The very nature of memory issues means that people fluctuate in and out of having capacity sometimes. In the same way, many physical issues have a fluctuating nature. People with arthritis have good and bad hours, and good and bad days. Rheumatoid arthritis is typically worse in the mornings.

The amendment is fundamental because the assessments of capacity that are made as part of the authorised deprivation conditions are likely to determine the length of the liberty protection safeguard. At the least, they may be one of the important determinants of the length of the safeguard—possibly the most important. In deciding how long the safeguards should apply, it is imperative to know whether someone has fluctuating capacity. As I have indicated, that might require more than one assessment of capacity.

[Helen Whately]

I spoke about my concerns about fluctuating capacity on Second Reading. The hon. Gentleman just mentioned that in these discussions, we usually think about someone with dementia, but it has been flagged to me that sometimes the Mental Capacity Act has been used to detain people who have other serious mental health conditions—not necessarily just dementia. Those conditions very much fluctuate, too. It is important that the Bill addresses the fluctuating capacity of people with serious mental illness if they might be detained under the Bill. I am keen for the Minister to respond on that point.

[Dr Williams]

The hon. Lady’s words are wise. The fact that people’s capacity is likely to fluctuate makes them uniquely vulnerable to the wrong decisions being made about them.

My assessment is that it is better to err on the side of caution. People with fluctuating capacity are likely to need regular review. The liberty protection safeguards are likely to be put in place for shorter periods. Unless that assessment of fluctuating capacity is mandatory and put front and centre of the decision-making process about the length of the safeguard, there is a risk that the wrong decisions will be made. For that reason, I support amendment 32 as a fundamental requirement to assess whether the cared-for person’s capacity is likely to fluctuate.

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[Alex Cunningham]

I have no experience, however, as a health or medical practitioner, so I bow to my next-door neighbour in the north-east of England, my hon. Friend the Member for Stockton South, who is a medical doctor and knows about these things—probably a lot of things that I will never have any understanding of myself. However, I do not need to be a medical expert to know that if I were to suffer a heart attack, a cardiologist would be involved in my treatment and care. I hope my hon. Friend will nod his head to say I am right.

[Dr Williams]

indicated assent.

[Alex Cunningham]

He does. I know that if I were to develop cancer, oncologists would be involved. I know that medical experts should be and are involved with that level of illness, which requires ongoing treatment and observation. They are the experts, and they know the field; we have to trust what they say and follow their instructions on what is best to do. It just strikes me as ludicrous that anybody could disagree with the notion that people carrying out medical and capability assessments must have the skills to do so. We have already seen in our country in recent years the terrible mess that is the various capability assessments for employment and support allowance, personal independence payments and, lately, the discredited universal credit system.

[Dr Williams]

I wondered whether to refer to the work capability assessments, but it is certainly true that in my experience as both a medic and a Member of Parliament, people have often described the inadequacy of the assessments, particularly when their conditions fluctuate, and how they are often judged on the day rather than anyone really listening to what their condition is like. One of the things that that greater level of skill, experience and knowledge brings is the ability to take a step back and ask the right questions about things such as fluctuation.

[Alex Cunningham]

Indeed; that applies to this Bill as well. We are dealing with the most serious issue possible—the right of the authorities to deprive someone of their liberty—so we must get it right. We have seen failure time and again in the areas I mentioned. When people with inadequate knowledge carry out assessments of various things, they get it very badly wrong, and the client ends up winning their appeal. More than half of them, in some cases, win their appeals, but only after many weeks and even months, so they are often left without the support they need.

I wonder what happens in this sort of situation, when we are dealing with the deprivation of people’s liberty. We cannot allow those types of failure to be repeated in the system set up under the Bill, because the consequences are so far-reaching. It is taking somebody’s liberty away. It will not just be a decision to deprive people of their welfare benefits; it will actually take away their freedom.

I agree with my colleagues who have spoken in the debate that assessments should be undertaken by people who have the knowledge, skills and experience and hold the appropriate professional registration. If we do not put that into the Bill, the Bill will simply not be strong enough. It is far too important to be in the follow-up code of practice. We have heard a lot about the code of practice, but of course we have not seen anything that is in it. It is far more important than that. We must ensure that there is a sufficient level of scrutiny within the legislation.

I wonder what the Minister would tell Dr Haider Malik, a consultant psychiatrist who provided written evidence to the Committee. He said:

“In current Bill there is complete oversight of mental health assessor’s role. Though DoLS is considered complicated and bureaucratic piece of legislation but in my view Liberty Protection Safeguarding…would fail the stress test.”

The evidence we have received from a number of stakeholders is very clear. There is a clear demand out there, from people who know what they are talking about, for us to ensure that those carrying out the assessments are qualified to do so. Anything short of that is a betrayal not just of the individual, because it could lead to them wrongly losing their freedom, but of our duty to legislate to protect them.

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[Caroline Dinenage]

I start by welcoming the fact that we have just heard from the hon. Member for Dewsbury for the first time. It is a great pleasure to hear from her, not least because I can pronounce her constituency far better than Worsley and Eccles South.

I thank hon. Members for tabling the amendments, which I will take in the order in which the hon. Member for Dewsbury presented them. Amendment 32 would place the consideration of fluctuating capacity in the Bill. I agree that the likelihood of capacity to fluctuate should be very carefully assessed under the Mental Capacity Act. Fluctuating capacity should be considered in the authorisation, in the length of the authorisation and in the frequency of reviews. I am very tempted by the amendment, but the problem is, then what? It puts the provision in the Bill, but it does not describe what happens then. To my mind, that opens a whole can of worms.

As my hon. Friend the Member for Halesowen and Rowley Regis said, fluctuating capacity is incredibly complex to diagnose. It is a fact-specific matter that deserves great in-depth and detailed guidance. As such, I do not think it can be considered satisfactorily in one line in the Bill.

[Dr Williams]

I think there is an acknowledgment that whether or not someone has fluctuating capacity needs to be assessed. What is wrong with putting that in the Bill and then dealing with the complexity and the nuance and the “then what?” in the code of practice?

[Caroline Dinenage]

As I say, I am tempted by what hon. Members have said, so I will take this point away and look at it, but we have to consider this matter very carefully. We have to consider whether there are appropriate protections already in the Bill. That point relates to what I spoke quite a lot about on Tuesday—we have to be really careful about the unintended consequences of putting too much in the Bill, because if we then leave something out, we may create the sort of legal loopholes that caused so many problems with the previous DoLS legislation.