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House of Lords Hansard
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Mental Capacity (Amendment) Bill [HL]
15 October 2018
Volume 793

Committee (2nd Day)

Relevant document: 7th Report from the Joint Committee on Human Rights

Schedule 1: Schedule to be inserted as Schedule AA1 to the Mental Capacity Act 2005

Amendment 14A

Moved by

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14A: Schedule 1, page 10, line 36, leave out from beginning of line 36 to end of line 8 on page 11

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My Lords, any restriction to a person’s liberty is a serious step that calls for a corresponding level of scrutiny. To do otherwise would devalue the currency of liberty. We must remember how this legislation will work in practice and that it is authorising one citizen to detain another, usually more vulnerable, citizen. This decision carries risks, not least the risk of undermining an individual’s self-esteem and dignity. Therefore it is imperative to ensure that only appropriate and experienced individuals are given the authority to assess capacity and plan the care programme for the cared for person, with their best interests at the heart of decision-making.

I will speak to the amendments in this group that are in my name—Amendments 14A, 16A, 19C, 19E, 19F, 30C and 32C—which seek to probe an alternative to involving the care manager directly in the process and to align it more closely with the Care Act. Much anxiety has been expressed since Second Reading about the role of the care home manager because there has been concern that the manager is not an appropriate person to carry out or even co-ordinate assessments. There have also been concerns that the cost of providing adequate training would be high and that the proposed training of a few hours would prove grossly inadequate.

The Minister gave assurances on the first day in Committee when he explained that,

“the care home manager would be responsible for arranging the assessments for the responsible body—not necessarily carrying out but arranging”.—[Official Report, 5/9/19; col. 1882.]

He pointed out that care homes already play a role in arranging assessments because they are responsible for identifying deprivation of liberty and then notifying the relevant local authority which, under current arrangements, will then send out a best interests assessor to visit and assess. He pointed out that the assessments that the care home manager will have a duty to arrange will be carried out at the care assessment stage as part of early planning, often by social workers.

However, in discussion with stakeholders, concern has highlighted self-funders, who could risk getting a low level of protection in law and find that the cost of assessment is rolled into their care home costs. Whatever is decided, a care home manager will remain responsible for identifying those whose liberty is restricted and therefore will be responsible for triggering assessments. Nothing in the Bill permits searches to case-find anyone who has not been flagged up and therefore is illegally detained.

Unfortunately, the concerns expressed by stakeholders have not diminished, despite the many meetings at which reassurances have been offered. Those concerns include that the care home manager, even if not undertaking assessments directly, would have a power of veto and that the authorisation of assessments would become a paper exercise. There is also concern that the costs associated with making the assessment would be transferred from the local authority to the care home, but that the funding would not move from the local authority to the care home, leaving the person being assessed, if they are a self-funder, to carry the burden of additional costs.

Regarding conflicts of interest, although some care managers are excellent, not all have the appropriate background experience, and the local authority would remain liable in law for authorising the deprivation based on information from the care home manager. But we must not lose sight of why the Bill is here. The number of people waiting for assessments seems to be rising exponentially and is currently around 125,000 in England and Wales. Even if money was thrown at assessments now, there are not enough people and the current process is too complicated to ensure that they happen.

It is relatively easy to talk about a process, but we must focus on the individual. To the individual, it is not the assessment per se that protects their liberty but the way that they are cared for on a day-to-day basis. They can have the most thorough assessment in the world, but if it is a once-a-year process, they may spend the rest of the year with restrictions on liberty that go unnoticed. That is why a new process to protect liberty must link directly to the care plan that contains details of how the person’s freedoms will be enhanced and how they will be empowered within the ethos of the Mental Capacity Act to live as well as possible. Some may argue that you can have a well-written care plan that is not carried out, but later amendments would enable people to raise concerns and request a reassessment.

It is important to recognise that necessary and proportionate arrangements may restrict liberty in some areas in order to empower the person to live as fully as possible despite the restrictions that their disorder has imposed on them. In some care homes a great deal is done to enhance living through outings, personalised crafts and musical arrangements, or when residents are encouraged to pursue their interests while keeping them safe from obvious dangers. Sadly, in other care homes residents are left sitting in a circle around a blaring television. Their experience means either that they have a low quality of life or in effect feel that they feel imprisoned.

It is the day-to-day living experience that matters. The way the care is delivered to allow that experience should be enshrined in a good care plan that encompasses encouraging social interaction and contact with the family, and accepts a reasonable degree of risk while avoiding clearly identifiable major risks. It should specify what the protection of liberty arrangements are that need to be approved by the responsible body. Words matter. Perhaps we should drop the words “liberty protection safeguards” because they can be confused with safeguarding procedures and instead use the term “liberty protection arrangements”, which would probably be abbreviated to PoLAs to replace DoLS.

I know that Amendment 14A looks strange because it comes half way through a paragraph. Ideally the amendment would delete the whole of paragraph 13 in Part 2 of Schedule 1, but given that we reached the end of line 35 on day one of Committee, I believe that the amendment can start only at line 36. However, I hope that the other amendments I have tabled in this group make better sense if we understand that the whole of paragraph 13 should have been deleted.

We know that we cannot throw money at a failing system and that not everyone needs the full might of the current assessment process of DoLS. If care homes are not described differently, it may open the way for others to be required to do the assessments in all settings by the responsible body’s direction, which would mirror Section 42(2) of the Care Act, which states:

“The local authority must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case (whether under this Part or otherwise) and, if so, what and by whom”.

That subsection was designed to safeguard by triggering an inquiry if there is a suspicion of unmet care needs, abuse or neglect. In the amendments I have tabled, I have tried to make the responsible body reflect the same arrangements so that it would either provide assessments or cause them to be provided. Many supported living settings are competent to do such assessments and many care homes could do them in routine cases by being asked for information by the responsible body without any power of veto resting with the care home manager.

I am grateful to Lorraine Currie, the professional Mental Capacity Act lead in Shropshire, for discussing this with me in detail. I hope that by more closely aligning liberty protection with the Care Act we might have a more streamlined process. I beg to move.

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My Lords, Amendments 17A, 19A, 30B, 30D, 32B an 32E are in my name. The noble Baroness, Lady Finlay, expressed very well some of the key challenges we face in scrutinising the Bill. My amendments would remove the role of the care manager in overseeing the determination that the arrangements are necessary and proportionate. They would also remove the care home manager from carrying out consultation to try to ascertain the cared-for person’s wishes or feelings on the arrangements. In both cases, the result of my amendments would be that responsibility falling to the responsible local authority.

The noble Baroness, Lady Finlay, spoke about the issues facing the sector in trying to implement the current legislation. The problems seems to be that the Government, in their haste to respond to this and the undoubted challenge of the Cheshire West judgment, have come up with a streamlined procedure in which the human rights of the cared-for person are sacrificed on the altar of bureaucratic convenience. The careful balance that the Law Commission put into the draft Bill has been overturned, safeguards have been removed and protections have been overridden. The analyses we have received have been very valuable, but the Law Society’s analysis is a succinct, devastating critique of the Government’s approach.

The proposal means that the very people with a vested interest in keeping cared-for people occupying beds in care homes have been placed in the driving seat in the process of overseeing the restriction of their liberty. According to the Bill, those cared-for persons have lost the right to participate in decisions affecting them, have no right to be consulted, have no right, like their relatives, to be told how to challenge a deprivation of liberty and have no right to request a review. On that latter point, they must rely on the interested person who, when you look at the Bill, remarkably turns out to be the care home manager; nor is there any obligation for the responsible body to meet the cared-for person before signing off on their deprivation of liberty. That is the background to why the amendments are so important and why the Bill’s basis is so flawed.

Turning to consultation, I cannot find an explicit duty to consult the cared-for person about their wishes and feelings. That is worrying in itself; it is a major defect in relation to the existing legislation. I also find worrying the extraordinary proposition that the care home manager should carry out the consultation. Essentially, they are judge and jury for the person’s liberty, since the consultation is about the outcome of the required assessment that the care home manager is responsible for arranging. As far as I can see, the care home manager will choose who will make that assessment and, presumably, pay their fees. They are also the gatekeeper for the appointment of an independent mental capacity advocate, which cannot happen without the care home manager saying that it is in the cared-for person’s best interests. However, we can see that the care home manager has a vested financial interest in these matters, as does the care home. On consultation, the Bill must be seriously rethought. That also applies to paragraph 16 of Schedule 1 on the determination that arrangements are necessary and proportionate. Currently under the Bill, it falls to the care home manager to decide who should make the determination. This, of course, is a vital test and the determination of the arrangements reflects directly to the practice under Article 5 of the European Convention on Human Rights.

When we briefly touched on these issues the Minister made it clear that assessments would be carried out by medical experts—nurses, social workers and speech therapists. But there is no requirement in the Bill to make that happen. As we have seen, there is a clear conflict of interest. Surely this must rule out the care manager from having this role in relation to the proportionate and necessary test. This is why I believe that given the construct of the Bill, the only alternative is to give it to the local authority responsible body.

The Minister may say that local authorities do not have the resources or capacity to do that. Evidence at the moment suggests that they are under considerable pressure, but why should care home managers have the resources or capacity to do it? Our debates on the first day in Committee examined and found wanting the impact assessment which seriously misrepresents the cost that would be borne by care homes arising from their new responsibilities.

As the noble Baroness, Lady Murphy, noted in that debate, the notion that the majority who flit through the system, on short-term contracts and training, many of whom come from outside the EU, can in half a day master the Mental Capacity Act and be trained through this process to make a proper assessment and identify people within the meaning of the Act is completely ludicrous. The care home manager will be responsible for these people and for ensuring that all the things in this Bill actually take place. I do not believe, in all justice, that they are the people to do it, nor do I think they have the capacity to do so.

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My Lords, I find myself in something of a dilemma because I have already said that I am very anxious about the role foreseen for care home managers in this Bill. I am also getting the heebie-jeebies about how we are criticising the Bill because of how we have got here in the first place. The noble Baroness, Lady Finlay, and the noble Lord, Lord Hunt, have already mentioned that we are here because at the moment we have a bad piece of legislation; it is not being implemented appropriately because we cannot afford it. The Law Commission, the Department of Health and the Ministry of Justice have tried to bring forward a piece of legislation that makes it a lot simpler.

We are used to having conflicts of interest in public sector services. Every time a GP refers somebody for a hospital appointment or surgery or prescribes expensive medication they have a financial conflict of interest, but we live with that because of the way that the system works. We are used to it—we take account of it day by day.

I am not going to oppose these amendments but we have to say to ourselves that the care home manager is there and we know that the local authority has not got the resources. Would it work better if we could give care home managers proper training? I do not know but I know that we must at every stage think very carefully about the alternatives that we propose instead of the departmental proposals. We have to make the process simpler. We have to reduce the numbers of people who are subject to it. Perhaps if we reduced the number of people subject to it, we could put in place these better arrangements. Maybe then we can take out the care home manager. Until we do so I still have this great anxiety that we have not come up with an alternative that will really work.

Although I share the anxieties about how care home managers will discharge this responsibility I have some anxieties about the alternatives. We have to make the process simpler and more affordable. I neither support nor oppose these amendments. We need to give some very careful thought about making sure that we do not end up with a more complex and difficult process than is implementable and affordable.

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My Lords, I was not planning on speaking to this amendment at all. I am certainly not an expert on the Mental Capacity Act, but it was suggested to me by BASW that the Bill will cover people in domestic situations. It questions whether those people could be taken out of the Bill. I very much follow the point made by the noble Baroness, Lady Murphy, that it might be a good thing to do something really well for people and institutions while maybe avoiding duplication for people in domestic situations. There is the safeguarding procedure, which, as has been suggested by my medic daughters, is already incredibly bureaucratic, but I will leave that to one side for the moment. If at least the people in domestic settings were left to be assessed by the safeguarding system, that would achieve something and reduce the number of people covered by the Bill. This is particularly true because, as we go along, more and more people will be looked after in domestic settings rather than in care homes.

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My Lords, it is our job to look at how things will and will not work and what the alternatives are. The noble Baroness takes a perfectly legitimate position that says, “If this won’t work, what will?” In a way, that underlines a lot of the discussions we have been having in this House: we need some time to discuss this Bill and we have not been able to have that.

My name is to the amendments tabled by my noble friend Lord Hunt. We are questioning the ability of the care home manager to be able to do this at all. The words that have been used to us by the stakeholders—we have now talked to dozens of stakeholders in the last month or so—are “capability” and “capacity” of care home managers. Professionals question the capability and local government and other institutions question the capacity. Those words are being used constantly while we discuss this issue.

It is also worth mentioning the voice of the care home managers themselves, which is starting to emerge. We recently had a briefing from a large group of care home managers who feel that they are not qualified to take on this role or to carry out assessments and that the administrative burden they could carry could mean that they will not have the capacity to take on the extra work to carry out liberty protection safeguard assessments.

There is some confusion here with what the Minister said during the first day in Committee and in the letter he wrote to us all following Second Reading. I admit that I am confused as to whether we are talking about initiating and carrying out assessments and what the powers of the care home managers are. It seems that the Bill team and the Minister have given us several different descriptions of what those roles might be. That has not helped our consideration of our concerns.

Mencap has stated that it believes that the views of the cared-for person have to be at the heart of this part of the Bill and that it should be refocused accordingly. The comments made by my noble friend and the noble Baroness, Lady Finlay, suggest that that has not yet been achieved, and that the role of the care home manager makes it less rather than more likely. That has been said to us not just by Mencap but by many stakeholders. They are concerned that the cared-for person is not at the heart of the Bill. It is therefore legitimate to ask whether the Government have got this aspect of the Bill right and whether they need to find a different way of delivering it.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On the first day in Committee the Minister said:

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

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

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

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

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

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

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

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

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

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

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

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My Lords, I thank those who have spoken in this very interesting debate. The last part of the debate was extremely rich and I think we all need to go away and read it. I thank the Minister for giving us the assurance that things that had caused great concern, such as the issue of 16 and 17 year-olds, the wishes and feelings of the cared-for person and the stigmatising term “unsound mind”, will all be dealt with. I am sure I speak for everyone in the House and outside it when I say that looking at that is most welcome.

When we are debating this subject, we have to remember that we are not talking about a deprivation of liberty in care homes Bill; we are talking about a Bill that amends the Mental Capacity Act as a whole for people wherever they are. We have had a huge debate about care homes but it was partly about looking at people in other care settings. In the light of some points raised previously by my noble friend Lady Hollins about people in supported living environments, it seemed worth floating the question of whether there was a way to align more closely with the Care Act. Then of course there are domestic settings as well.

As the noble Baroness, Lady Murphy, said, we have to make it simpler and, if we can, decrease the number of people subject to the Bill because we cannot replicate the current system. If the current system were working and everyone had better care as a result of their assessments, we would not be here now. We are here because the current system does not work. I have been concerned that a great deal of anxiety has been expressed to us but not so many solutions. Some solutions have been very refined—they are tabled as amendments and we will be discussing them later—but we must not lose sight of the need for solutions that are elegant and applicable and that do not lock us into another system that will go on to fail as the current system has.

I was not aware that 48,000 people have been waiting for over a year for their assessment. We need to hold that figure in our minds because it is really worrying. I can see that the amendments that I have tabled do not do the job, but I hope they have opened the debate and forced us to think about other things. I thank the Minister for all the movement that there has been to date and hope we will have more movement as the day goes on. I beg leave to withdraw the amendment.

Amendment 14A withdrawn.

Amendment 14B

Moved by

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14B: Schedule 1, page 10, line 40, after “manager” insert “or the person responsible for the care plan”

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My Lords, with the leave of the Committee, I shall move Amendment 14B briefly, if the Minister will allow me. I apologise for my error: I claim jet lag, having just come back from Bahrain.

The amendments in the second group, which are all in my name, are designed to meet the statement and explanation made by the Minister that the care home manager would arrange assessments but not undertake them directly. They attempt to clarify in the Bill the assurance given by the Minister that the care home manager would arrange assessments on behalf of the responsible body. He pointed out that care homes already play a role. They are currently frightened by an increased level of responsibility and believe that they will be conducting assessments rather than having a co-ordinating role. The care home manager will always remain responsible for identifying people where there is a restriction of liberty.

In this set of amendments, the responsibility for performing assessments is clearly not with the care home manager, who has only an administrative role, making sure that the relevant assessments have been done and forwarded to the authorising body. They must be undertaken as part of care planning. I suggest that this would require pulling together medical assessments of the person’s condition, which may be from the GP in care of the elderly or from other specialist departments where that person has been. Sometimes, medical details may be obtained from people such as rehabilitation teams, where the person had a head injury. That becomes important because some aspects, such as frontal lobe damage, need a highly specialised assessment. You could not have a general practitioner assess some of these people, because it is beyond the scope of most clinicians.

The capacity assessment must be done by someone who is suitably qualified, and the care plan must consider the person’s wishes and feelings and the type of person they were before the illness struck. To use a simple example, a professional musician’s needs will probably differ greatly from those of an agricultural worker in terms of aspects of liberty that need to be enhanced, such as access to whatever instrument they played before, and how the environment needs to be adapted, such as allowing the agricultural worker to have much more time outside if that is what they need, to protect their ability to live well.

I have discussed this with a range of concerned stakeholders, and there are genuine concerns that if care home managers were to hold the responsibility to undertake assessments themselves, there could be conflicts of interest. Although some could be trained to a certain extent, others would need extensive training and would probably move on before they were able to undertake that role. There is general agreement that care home managers cannot do the assessments themselves, but they could have a co-ordinating role. Whatever the final pattern of assessment, many care home staff need better training in mental capacity overall. I feel a great burden of responsibility on my shoulders, as I chair the National Mental Capacity Forum.

In Amendment 30A, I require the assessment to be made by a registered professional who has responsibility for the care plan and appropriate experience and knowledge to lead the care planning process for the cared-for person. We must have a thorough debate about what the Minister was explaining to us on the first day of Committee, which I fear has been poorly understood by many outside this Chamber. In gratitude to the Committee for allowing me to speak to the amendments, I beg to move.

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My Lords, I am very grateful to the noble Baroness for moving the amendment. It gives me the opportunity to return to the question I asked previously, to which I do not think we have yet got the right answer. It is about the nature of the assessment. The noble Baroness talked about the sort of assessments made under the Care Act—assessments to support somebody. They are not DoLS assessments, which assess whether someone is being deprived of their liberty. In what the Minister has said so far, in reference to care home managers, there is a failure to make that distinction. A DoLS assessment is a very serious assessment of whether someone has been deprived of their liberty. It can also be viewed in court. It is some stretch for a care home manager or someone in a community setting—making genuine operational assessments about supporting somebody—to make a decision that deprives that person of their liberty. We will come on to records of authorisation, but I have to say nothing the Minister has said so far has reassured me we are talking about an assessment system that would come anywhere near DoLS or be accepted by a court.

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My Lords, if I may come back very briefly on that, the noble Baroness makes an important point. I worry that some of the DoLS assessments are very long and complex, yet make little difference to the lived experience of the person on the receiving end of care, so I hope they will become better tailored. A badly drawn-up care plan could also be presented in court if there is a dispute, not only the assessment forms. Some of the forms I have seen will have taken a great deal of time to complete; I wonder whether the detail replicates that obtainable elsewhere, and whether there is a problem of proportionality. Also, I worry that we should be looking at the minimum amount of restriction on liberty, rather than deprivation of liberty. If someone is imprisoned, the whole system has failed. They must be encouraged and empowered to live as well as they can while being kept safe from dangers that, without due care and attention, would probably end for some of them in their deaths—wandering on to a motorway or whatever.

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I take the point made by the noble Baroness; she is absolutely right. There are some pretty awful assessments. I am not sure the Bill will stop that—I think she is rather wishful in her thinking if she thinks otherwise. She will have talked to practitioners, as I have. Sometimes DoLS work really well, particularly when trained assessors use the conditions. These can be something quite simple, such as the right to see a priest once a week or go out on a pass. I find myself in a slightly different position from the noble Baroness, Lady Murphy. As I sit in these debates I find myself becoming ever more defensive of DoLS because some of the case made against them is exaggerated. A lot of the reason for the backlog is not that the system is complicated, but that there are not enough assessors out doing the work. I take the point made by the noble Baroness, but I still go back to the need for assessors who are trained, understand their purpose and carry it out in a proportionate and timely way.

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The noble Baroness, Lady Finlay, has done the Committee a great favour. The previous group of amendments was about whether care managers should do this at all. This group is about how they do it, which is a fair question to ask. I have three points to make, and they run like a stream through the Bill. The first is, if care managers have powers and responsibility, how will that work? Will they be qualified and, if so, how? As my noble friend Lord Hunt stated on the first day of Committee, many care homes do not even have registered managers. They are very small and are not capable of doing this. Secondly, who decides and who pays? I appreciate that the amendments in the name of the noble Baroness, Lady Finlay, are exploring how care home managers would manage, but some amendments in this group actually water down even further the rights and responsibilities relating to deprivation of liberty.

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

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

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

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

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

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

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

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I would like to intervene for a moment as I think this has been a valuable debate, even though short. I shall pick up on the point made by the noble Baroness, Lady Barker, on conditions, which are incredibly important. She cited one example, and I return to the musician to whom I referred earlier. Most professional musicians will feel that their instrument is an integral part of their own personality. If they lose speech, they will communicate through their instrument, especially their mood—their feelings, responses and so on—so it is a terrible deprivation of liberty to separate a musician from their instrument.

If the musician plays a trumpet or another loud instrument and they are in a care home, it will be important to find somewhere they can go to play their instrument without disturbing everybody else. It sounds humorous but it is incredibly important to people. I was struck when I visited a care home some time ago and saw a man playing a piano. I thought he was a volunteer brought in to play—beautifully—to people. When he finished playing, I started to engage in conversation with him and it became clear that, while his recall for the symphony he had been playing from memory was superb, he could recall or discuss remarkably little else from which I could gain a modicum of sense. As a result, we had a bizarre conversation, other than about the symphony.

Conditions are absolutely essential. My hope would be that, in the code of practice, we require conditions to be put into the care plan that must be enacted on a daily basis. This should not be just a set of recommendations that could be ignored. My concern is that we link care planning to the delivery of care; that is extremely important.

I was grateful also for the support—albeit somewhat tentative—from the noble Baroness, Lady Tyler. I draw a distinction between the care manager and the care home manager. The care manager should be the person overseeing the direction of care planning; they could be the district nurse for somebody at home, or whoever runs the supported living environment on a day-to-day basis and looks at alterations in the care plan.

In a large care home, the care home manager often manages the building and the staff. They make sure that regulations are maintained and that the lifts work, dealing with all the things that happen on a day-to-day basis, but can have remarkably little contact with individuals. I do not want to sound disrespectful to care home managers when I say that I would envisage their co-ordinating role as much more like that of an administrative secretary, rather than as somebody who gets information directly from the person or the family. However, I would want them to make sure that the family had been consulted, that all the people who cared about the person had been spoken to and that that information was properly documented, with a package being put together for the local authority to inspect. I believe that the local authority will know which care homes on their patch are working well and which need an eye to be kept on them. I think I have half given my response to the Minister’s response.

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

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

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

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

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

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

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

One of my concerns is that this Bill might produce a further delay and set up a ping-pong process between the responsible bodies and the care homes. For example, as a responsible body, I am the body that will have to defend this in court. I will, therefore, have to keep going back to make sure that the information I have been given is in fact correct. However, the actual assessment is completely different from the two-page DoLS referral that care home managers carry out now.

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

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

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

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

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My Lords—

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I will just finish, if I may. I completely share the concern about self-funders. They must have a care plan, because they are in receipt of care once they are in the system. It is appalling if there are people who are paying to be cared for in some kind of chaotic way without a proper, co-ordinated plan that they and their family can know about, so that everyone coming and going, be it out of hours or whatever, can understand what is happening.

I am beginning to think that there is not that much difference between us, and I agree that the current forms are inadequate. I apologise if, in the previous debates we have had, my comments about notification from the care home manager to the local authority were not well worded—on re-reading, I can see that, and I accept that I was wrong in the way that I worded it.

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I do not want to get up the hopes of the noble Baroness, Lady Finlay, too strongly. She is a medic and therefore her go-to place is medical qualifications. There are some excellent best interests assessors who are not engaged in the care of the person. I wish to make that point. I shall keep coming back to the valid point of the noble Baroness, Lady Murphy, about the need to wind up with an affordable and manageable system. Noble Lords who have been involved in discussions with stakeholders will not be surprised to know that some of us think there is a way in which that could be done but it would involve reliance on advocates and assessors. Having said that, I agree with the noble Baroness.

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I beg leave to withdraw the amendment.

Amendment 14B withdrawn.

Amendment 15

Moved by

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15: Schedule 1, page 11, line 1, leave out “in accordance with paragraphs 18 to 20” and insert “by an Approved Mental Capacity Professional”

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My Lords, I again refer noble Lords to my interests in the register. I am revisiting an area that we covered at Second Reading. Many of the issues we have been discussing, as we have just discovered, weave in and out of my comments, but this is about the appropriateness of the care home manager to carry out pre-authorisation reviews.

I should make it clear, given previous comments, that I recognise that DoLS needs replacing and that, in finding that replacement model, professionalism and expertise are important. This is not a personal, solo crusade—I do not fail to understand what a manger of a care home does and I recognise their professionalism in doing it. However, the noble Baroness, Lady Thornton, had it spot on when—it seems like hours ago—she used the description that they had used to her around the concerns about their capability and capacity.

Many of us have been supportive of this Bill, with briefings from and meetings with household-name charities, providers, royal colleges, academics, lawyers and interest groups. The two amendments in my name were drafted by a charity whose reputation for policy on older people is respected and admired—Age UK. It has several concerns about areas of the Bill and would welcome a meeting with the Minister to discuss them.

The cared for person’s interests are central to the Care Act, and I am delighted that the Government will bring forward amendments which will allow the voice of the cared-for person to be heard in this process, including 16 and 17 year-olds, and will do away with the term “unsound mind”. I join with all noble Lords in that.

At Second Reading, conflicts of interest were debated and we agreed that the cared for person’s interests must come first. However, this could be at odds with the care manager’s duty to keep their care home viable. Vulnerable people are at the heart of the Bill and how they are reviewed at a critical point in their care—the pre-authorisation review—sets the tone of the professionalism within their care. These reviews should be carried out by a trained professional—an AMCP—but, as currently drafted, only those objecting to the proposed arrangements will be provided with an AMCP. Generally, care home managers have not received professional training other than in running a care home—as the Minister mentioned, they may well have had that kind of training—and if they have, I would have no objection whatever to them carrying out the review.

However, many AMCPs have a first degree—possibly a masters—and professional training, with regular supervision and refreshers, and, whether they are social workers, mental health nurses, OTs or clinical psychologists, all will have the professional ethos and expertise instilled into them in their daily working. It is what they do. The proposed half-day familiarisation course does not really measure up.

This amendment will also protect the care home manager from accusations of conflict of interests or vested interests. It was a manager who made that point to me. I had not thought of it because I was looking at the issue from the point of view of managers considering their care home to be a business that needs to operate at 99% capacity for it to be effective. Managers have said that they would welcome an amendment similar to this one because it would give them some sort of cover. Perhaps I may remind the Minister that, in mental health legislation, an assessment made in a private setting must be carried out by an independent assessor. This amendment does not break new ground or indeed set a precedent.

While we are on the issue of finance, the noble Baroness, Lady Finlay, repeated a concern expressed in the sector about the costs of assessments and reviews being added to the bills of self-funders, which might be seen as a licence to print money. We know already that some care homes are charging £250 for a referral, but an assessment is a much more complicated piece of work and might well cost £1,000. People in the sector are concerned about this. Fee levels are not regulated, so I wonder whether the Minister could take the issue away and look at it. I welcome his willingness to listen and I look forward to his response. I beg to move.

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My Lords, I applaud the noble Baroness, Lady Jolly, for tabling this amendment and I will add a few comments to those she has made. In my view, all pre-authorisation reviews should be undertaken by a professional who really understands the assessment of capacity. I accept that the amendment goes further than the Law Commission recommended, but it is not clear that the commission envisaged care home managers undertaking or being responsible for assessments and pre-authorisation reviews.

The whole point is that too often it is just assumed by everyone that somebody with limited capacity does not have a view or that they are content. Also, the person may not even have adequate information on which to base a view or make a comment. They may therefore not feel able to make an objection. It is not reasonable to expect care home managers to know about all the alternative and possibly less restrictive options available; why would they? As the noble Baroness, Lady Thornton, argued, the care home manager has a job to do in keeping costs down and filling beds.

It is not a criticism of care home managers to suggest that independent scrutiny is essential in all cases to ensure that those imperatives do not lead to an understandable failure to focus on the needs of the individual. Again, we should not expect care home managers to put the interests of the individual ahead of their business imperatives. I understand that many care homes close because they cannot cover their costs. They are desperate to fill their beds, and that is going to take priority. We just have to respect that that is simply how life is.

In the letter from the department to noble Lords dated 24 July following Second Reading, the Minister said that the local authority would undertake the authorisation itself, thus providing independent scrutiny and oversight. I think that the Minister will recognise, however, that if no concerns are raised during the pre-authorisation review, the local authority will be in a very poor position to question the conclusion of the care home manager. The noble Baroness, Lady Barker, suggested that there might be a form of to and fro between the local authority and the care home manager, but I am not sure how meaningful that can be when all the work and the pre-authorisation review has been done. Given that, I would have thought that the local authority would just not be able to get at it.

Another concern is that it is in the gift of the care home manager to identify whether a person would benefit from advocacy. It seems that most of these people will, but the current proposals are unclear about who will pay for the advocate. I would be grateful if the Minister could clarify that issue.

Another concern is that the pre-authorisation review may be a paper exercise—although the Government made it clear in their response to the Law Commission that they want the person’s voice to be at the heart of the process. Surely the pre-authorisation review should ensure that the Government’s objective is achieved. Indeed, the Government said in their response that the pre-authorisation review would provide adequate scrutiny and ensure that the individual’s rights are protected. So they are clear that the real responsibility sits with the pre-authorisation review, undertaken in many cases by the care home manager.

It is worth remembering the Bournewood case, where the self-harming behaviour of a patient was recognised not as a symptom of their deep unhappiness with the care arrangements but as evidence of the need to continue the placement. It seems essential for a professional in mental capacity to have oversight of the assessment process to ensure that we do not repeat the Bournewood errors. Perhaps the Minister would like to comment on that point.

Of course, we will need parts of Clause 19 for a revised amendment on Report, but the crucial point today is that in all cases the pre-authorisation review must be carried out by an AMCP. I know that the Minister does not currently accept that point, but I hope that on further reflection he might.

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My Lords, my Amendment 37A would preclude the care home manager undertaking the pre-authorisation review, which follows on from what the noble Baroness, Lady Meacher, was saying. However, the Minister floated his answer to this point very recently. I thought I caught him saying that the pre-authorisation review can be done only under the auspices of the responsible body. Perhaps he can confirm that when he comes to speak because it is not clear in the Bill, as I see it. On page 10, paragraph 12 of Schedule 1 states:

“The responsible body may authorise arrangements, other than care home arrangements, if … a pre-authorisation review has been carried out in accordance with paragraphs 18 to 20”.

That relates to those cases where the care home manager does not have a role. Paragraph 13 of Schedule 1 simply states:

“The responsible body may authorise care home arrangements”,

if a number of qualifications have been met, including if,

“a pre-authorisation review has been carried out in accordance with paragraphs 18 to 20”.

I cannot see anything in the Bill that says that the pre-authorisation review cannot be carried out by the care home manager. If that is the case, it would be nice to see its inclusion in the Bill, which would provide some reassurance.

I know that we always stray here because we keep coming back to the issue of a conflict of interest. Has the Minister read the Law Society’s view, which we received over the weekend? The society described the fact that the care home manager has been put into a position of co-ordinating the way in which the Bill needs to be operated when a care home setting is involved as a “conflict of interest”. It stated:

“Vulnerable adults would be put at risk if care homes were given increased responsibility for decisions about their liberty”.

It also said that important safeguards “would be weakened”, stating that the,

“shift of responsibility for carrying out independent assessments of vulnerable people from local authorities to care providers”,

is not something that the Law Commission developed. However, we are working on the basis of a Law Commission draft Bill.

Although the noble Lord is as committed as ever to the care home manager having this key role, I am not at all convinced that this really is feasible. It will not be good enough for the Government to provide reassurance, which I doubt they can, about the training of care home managers and their capacity to carry out this responsibility, particularly in view of the big backlog that will have to be confronted, I suppose, by the care homes. I do not see any provision in the Bill for the current backlog to be dealt with under the existing legal requirements. There is a great deal of scepticism about whether this is going to work.

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My Lords, I have one amendment in this group and I wonder whether the group is focused on lines of answerability. Who is going to be responsible? If the person is in the community in any setting the responsibility will go or should go, as I understand it, to the local authority. If the person is in hospital then it would go to the hospital. However, we have a problem. A lot of people on continuing care funding are in the community. I am concerned that if the authorisation for those people sits with the clinical commissioning group rather than the local authority, we may end up with some people getting lost in the system. The standards and criteria against which the different assessments and processes are benchmarked and what is expected, particularly how the process is monitored, could be unclear. It will be much harder to monitor out in the community than in a hospital or in-patient setting.

Following on from our previous debate, I had a quick look at the requirements to be a best interests assessor. As far as I can see, to enrol on the course you must have had two years’ post-registration experience as an approved mental health professional social worker, registered with the Health and Care Professions Council, or be a nurse, a psychologist or an occupational therapist. The people who potentially will migrate to become approved mental capacity professionals are registered professionals. That is incredibly important and we should not lose that in any aspect of the Bill. If they are registered professionals they have a raft of professional duties that go with that.

This part of the Bill and the process is not terribly clear, and I worry particularly about people on continuing care out in the community, or those who may become self-funders, managing their own budgets for care.

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My Lords, I added my name to the amendment of the noble Baroness, Lady Jolly. In view of my previous comments, people may be surprised that I did because it seems to be making life more complicated. In fact, I saw the more professional pre-authorisation process for the smaller group who will eventually be subject to this Act, I hope, as introducing something for the high-risk people who will be assessed by professionals. I like the role of the new AMCP ,which sort of takes over from the best interests assessor, because I think it will be a well-qualified group. It would add some solid support if the care home manager’s role is to continue. I saw this, when I first read it, as a good way of providing some pre-authorisation backstop, if you like—a solid foundation on which we would have more confidence that the care manager role could work. I am still anxious about the care management work for all the reasons that the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, mentioned, but this was one way that I saw of adding some professional expertise that would give confidence to the mental capacity community that we were taking this seriously.

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My Lords, I added my name to the amendments of the noble Baroness, Lady Jolly, and to my noble friend Lord Hunt’s amendment. Pre-authorisation review is essential. We support these amendments because they propose that everyone should have access to an approved mental capacity professional. As drafted, my understanding is that the Bill gives that access only to those who object to the proposed arrangements. If everybody had access to an AMCP it would lessen concerns about the significance of the independence of the reviews.

Age UK has said:

“In respect of self-funders in private homes, there is an existing principle in mental health law that where an assessor has a financial interest in the decision to deprive someone of liberty there must also be an independent external assessor. A preauthorised review by an Approved Mental Capacity Practitioner … will bring this section of the Bill into line with this principle, which is currently reflected in the Conflicts of Interest Regulations to the Mental Health Act. Without such a requirement a significant conflict of interest for the care home manager is likely to arise”.

I will not say more because I think that we have explored that issue.

There also seems to be an assumption that care homes will already have existing written capacity assessments and that staff will have the knowledge to carry out such an assessment. As we have already discussed, that is clearly not the case.

This is a significant group of amendments. The Minister needs to take heed that we are, in a way, returning to some of the fundamentals that underpin the legislation. We on these Benches have listened carefully to stakeholders and are fairly sure that the Government have not got it quite right. As the noble Baroness, Lady Barker, said, in this House we have always proceeded on mental capacity issues on a consensus basis. We would much prefer that that was the case because we have come up with solutions to these very difficult, knotty, complex problems that cut across health, justice and liberty, and take account of things such as the United Nations and the European Union’s rights of the individual. This House is famous for doing that—I wanted to say that at some point this afternoon. This group of amendments lends itself to that because if we get the pre-assessment regime right then a lot of other things will flow from it that will lead to the right decisions and minimise the risk of local authorities, health authorities and CCGs ending up in court because the right procedures have not been taken and the rights of the individual have not been managed.

The noble Baroness, Lady Finlay, mentioned the qualifications needed to be an assessor. We have had several briefings from BASW, for which I am very grateful, that explain how well qualified the people involved in this process are. That of itself creates a problem for care home managers to undertake these issues.

I will paint a scenario for the Minister. If the local authority is the responsible body and therefore will end up in court if this does not work out—it will be expensive and time-consuming and behind it will be an individual who has not been treated properly—it seems quite likely that the local authority will be very risk-averse to the tick-box system that the Bill suggests to assess whether the right procedure was gone through in the assessment process.

Does the Minister agree that we might actually increase the bureaucracy and delays in the system, simply because we did not get the pre-assessment right? That could create one of two things: either a local authority will keep referring back the assessments for reprocessing or it will let through assessments which do not do the trick and therefore bear the risk of ending up in court because somebody’s individual rights have not been properly taken into account. Not only is this an issue of doing right by the individual but there is possibly a compelling case for why it is important to get the pre-assessment right. If we do not, the Bill fall shorts on Article 5 of the ECHR. Had the Government followed the Law Commission’s draft Bill, which contained these safeguards, I think that we would not be having this debate in this form.

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

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

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

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

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

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

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

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

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

Amendment 15 withdrawn.

Amendments 16 and 16A not moved.

House resumed.