Mental Capacity (Amendment) Bill – highlights of first day of Committee stage

The first day of the Lords Committee stage of the Mental Capacity (Amendment) Bill took place on 5 September. The Hansard transcript can be found here and here. For those wanting to cut to the chase, and – in particular – those wanting to understand how, precisely, the government sees the Bill working, I set out here the key responses by Lord O’Shaughnessy (Parliamentary Under-Secretary of State, DHSC) to an extensive series of probing amendments put forward by peers. All the amendments debated on 5 September were withdrawn (or associated amendments not moved), so no changes were made to the Bill at this stage.   The next day of Committee stage will be 15 October; the easiest place to keep abreast of amendments is this page here.

Attorneys and deputies

My Lords, I thank the noble Baroness, Lady Finlay, for her amendment and also the noble Baronesses, Lady Thornton and Lady Murphy, for their amendments. […]

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.[1]

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.

The introduction of the LPS scheme

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.

The noble Baroness, Lady Thornton, asked where the care home role came from. I think it was described by the noble Baroness, Lady Finlay. 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 to put to a responsible body the approved mental capacity professional, where required. That is not the case if it is already required. This is not an entirely new function that has been developed—rather, it is recognising actions that are already taking place and making sure that they are recognised while retaining proper opportunity for escalation as well as independent accountability.

An allied issue, about which the noble Baronesses, Lady Tyler and Lady Murphy, and the noble Lord, Lord Touhig, asked, is training. That is a really good ​question. The noble Lord, Lord Hunt, asked about this as well, and about the impact assessment. That is an ongoing cost, but we also know that there is a need for training ahead of implementation, which would be an additional requirement. We intend to work with the sector in the coming months to make sure that the support required for implementation, including training, is there. I hope that, in the course of deliberations on this Bill, we will be able to set out a bit more detail to noble Lords of our intentions in this area. I agree that there is no point in creating a new system without preparing those who will be implementing the system to do so properly. If we do not do that, we will clearly risk repeating the failures that we have had historically.

In a further group, we will have the opportunity to discuss the reasons for doing this, as well as the role of the care homes, the arguments and the reasons, the responsibilities, the authorisations, regulatory functions and so on, which is why I have not touched on them here. On that basis, I do not think we should be stopping what we are doing. We have a responsibility to make sure we proceed to fix what is clearly a faulty system to the best of our ability so that those people who are currently being denied justice will not be. On that basis, I hope that the noble Lord, Lord Hunt, will withdraw his opposition to Clause 1 standing part.

[…]

In answer to the noble Baroness [Thornton]’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.

[…]

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.

16 and 17 year olds

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 [the D case, to be heard before the Supreme Court on 3 and 4 October]

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.

‘Unsound mind

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”—

[…]

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 the [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.

Definition of deprivation of liberty and length of emergency deprivation of liberty

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.

[…]

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.

The place of best interests

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.

Consultation with P and taking their wishes and feelings into account

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 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.]

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.

[…] 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.

Care homes

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.

Under DoLS, as we have been reminded, care homes already play a role in arranging assessments. They identify deprivation of liberty. They notify the relevant local authority. They need to explain the care capacity assessment restrictions and follow least restrictive practice. A best interests assessor then visits and carries out assessments. It is worth noting that in that process, where the best interests assessors are looking at the assessments that have been organised by care home managers, only a very small proportion of those reviews bring about a change in the care of that person. Notwithstanding some of the slightly negative comments that have been made about the capacity of care home managers to organise, not necessarily to carry out, these kinds of assessments, we are confident that, by and large, care homes are getting this process right.

Under the system of safeguards that we are proposing, care home managers will have a duty to arrange the assessments, but in many cases this will be carried out at the care assessment stage—that is critical to early planning—and often by social workers. These will form the basis of assessments carried out by the responsible body. The liberty protection safeguards do not require assessments to be carried out by the care home manager. This may not be the case for some self-funders, but these assessments would still be performed by people with appropriate expertise and knowledge, as required by binding case law.

Who would that be? This is the critical point, which was referred to at the beginning of today’s proceedings by my noble friend Lady Browning. For medical assessments, it would be medical experts, including family GPs, psychiatrists and others—we will come on to discuss that. Capacity assessments would be carried out by nurses, social workers and speech therapists. The necessary and proportionate test would be carried out by exactly the kind of people I have listed, or other suitably experienced and knowledgeable healthcare staff. The point I am trying to make is that the people who are carrying out these assessments may have been commissioned by the care home manager but in the vast majority of cases will not be the care home manager; rather, they will be people with the appropriate skills, knowledge and professional expertise to carry those out properly.

Subsequently, the role of the responsible body will be to ensure the necessary oversight of the system. Of course, the responsible body will be responsible for authorising every single assessment and scrutinising the applications before authorising them. In answer to the noble Lord, Lord Hunt, if there is any reason for an AMCP—an approved mental capacity professional —to believe that there is cause for further investigation, it is not true that only care home managers can give the signal that there ought to be some further investigation. The Bill allows for families, appropriate persons and advocates to be able to raise those kinds of flags outside of, or augmenting, the range of assessments that care home managers organise.

I apologise for dwelling on this at length, but it is important to describe exactly what is proposed. It is not the case, as perhaps might be imagined, that a group of people with official, desk-based jobs will be carrying out the kinds of assessments for which they are not prepared. They will be done by people with suitable expertise. Having said that, it is also important to reflect on the fact that, notwithstanding some of the adverts that the noble Lord, Lord Touhig, read out earlier, there are CQC standards in place for care home managers. They have to pass the fit and proper test. It includes necessary qualifications, competent skills and experience to manage the regulated activity. Registered managers and providers have to provide services which meet fundamental standards as set out in regulations, including those which relate to DoLS or, as we propose, the liberty protection safeguards. I think it has been important—and I hope it has been helpful—to set out exactly what is envisaged.

The noble Baroness, Lady Finlay, makes a good point. We perhaps need to describe better what some of these processes would look like. That is something that the code will do, but it might be an exercise for us to carry out in a couple of weeks so that we can describe better than it has been done—because there is a misunderstanding—how it will work in practice. The risk is otherwise that we just load it all back on the local authority and we would be back where we started, with the assessments in theory being carried out but in practice not being done. That is the role of the care home manager.

Quickly moving on, of course we want sufficient oversight of care home applications. Every application will be considered by a responsible body, including with a pre-authorisation review by somebody completely independent from the care home, and an authorisation can be given only by a responsible body. That is different from what happens in the NHS, which is able to do both assessment and authorisation, albeit it is different bits of an NHS provider. Independence in the system will also be maintained by ensuring that cared-for persons have access to support and representation. There is referral to an AMCP where there is an objection, as the noble Baroness, Lady Finlay, pointed out, and regular reviews as well.

The role of the CQC is to ensure compliance. That is its job in the care home sector. It will continue to do so. It will inspect compliance with the amended Act and take enforcement action where necessary. If it hears through its inspections that somebody is being unlawfully deprived of liberty, there is a range of actions it can take in relation to the care home manager. It is not the case that any dishonest assessments, should they arise—and of course, we are at pains to make sure that they do not—would not result in regulatory action.

I apologise for talking at some length on this topic, but it is clearly a very important one to explore. We need to pursue this route because it does two things: it gets consideration of the deprivation of liberty earlier in care planning and gives a more proportionate system. I also understand that we need to do more work to ​explain how the system we are proposing secures against conflicts of interest and provides independent oversight and expert input at every step along the way.

[…]

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.]

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.

[…] 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 explanation 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.

[1] Strictly, this is conflating two things. Section 5, to which the s.6(6) restriction applies, provides the ‘general authority’ to carry out acts of care and treatment. Section 5 cannot authorise deprivation of liberty – hence the need for DoLS, and, in future LPS – and the restriction in s.6(6) does not bite upon the grant or refusal of an LPS authorisation. However, Lord O’Shaughnessy must mean that one could not sensibly have in place a LPS authorisation which related to the delivery of care and treatment to a person to which the attorney/deputy objected and/or at a place to which the attorney/deputy objected. Query what would happen if the attorney/deputy did not object to the care and treatment (or the location) but objected to the nature of the restrictions in place to deliver that care/treatment – that would, presumably, be filtered through the prism of necessity and proportionality.

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One Reply to “Mental Capacity (Amendment) Bill – highlights of first day of Committee stage”

  1. I wonder who will pay for all these assessments that are to be commissioned by the care home managers? The assessment of additional costs to care homes was zero if I remember rightly. So then it will be social workers, nurses, speech therapists who will assess – notwithstanding the fact that assessment of capacity is not always particularly easy – how will they be freed up to do what is additional work? It seems like the suggestion is that BIA’s won’t have to do it, but social workers and nurses will. Which is odd because they are the same people, by and large. And I’m sorry that Lord O’Shaughnessy found some of the comments about care home managers to be negative. Many care home managers are wonderful but it can be a little…patchy! This is also not really an area that many managers feel particularly comfortable in working in. One of the reasons that the numbers authorised may go down is because care home managers may find the LPS a relatively easy thing to just not do if they can.

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