Committee (3rd 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
55: Schedule 1, page 14, leave out lines 17 to 32 and insert—
“23(1) An authorisation ceases to have effect—(a) at the end of the period of 12 months beginning with the day it first had effect,(b) at the end of such shorter period determined by the responsible body at the time it determines that the conditions for authorisation are met,(c) on such earlier date than the date given by paragraph (a) as the responsible body may from time to time determine,(d) if the authorisation is renewed in accordance with paragraph 37, at the end of the renewal period, or(e) when a suspension comes to an end as described in paragraph 41(2)(b).(2) An authorisation also ceases to have effect if, at any time, the responsible body believes or ought reasonably to suspect— (a) that the cared-for person has, or has regained, capacity to consent to the arrangements which are authorised,(b) that the cared-for person is no longer of unsound mind, or(c) that the arrangements are no longer necessary and proportionate.(3) But an authorisation does not cease to have effect for the reason described in sub-paragraph (2)(a) if—(a) the capacity assessment which was relied on in determining that the condition in paragraph 14(a) is met states—(i) that the cared-for person’s capacity to consent to arrangements is likely to fluctuate, and(ii) that any periods during which the person is likely to have capacity to consent is likely to last only for a short period of time, and(b) the responsible body reasonably believes that the gaining or regaining of capacity will last only for a short period of time.(4) The Secretary of State must by regulations prescribe a definition of “fluctuate” and “short” for the purposes of sub-paragraph (3)(a)(i), (ii), and (b) above.(5) In a case where—(a) an authorisation relates to arrangements which provide for the cared-for person to reside in, or to receive care or treatment at, a specified place, and(b) at any time, the responsible body believes or ought reasonably to suspect that there is a conflicting decision about the cared-for person residing in, or receiving care or treatment at, that place,the authorisation ceases to have effect in so far as it relates to those arrangements.(6) There is a conflicting decision for the purposes of sub-paragraph (4)(b) if there is a valid decision of—(a) a donee of a lasting power of attorney granted by the cared-for person, or(b) a deputy appointed for the cared-for person by the court,that the cared-for person should not reside in, or (as the case may be) receive care or treatment at, the specified place.(7) If at any time an authorisation relates to arrangements which conflict with requirements arising under legislation relating to mental health, the authorisation ceases to have effect in so far as it relates to those arrangements.”
My Lords, I am glad to be the first speaker on our third day in Committee. We are under some time pressure this evening because of earlier business. But, having spent yet another weekend going through the Bill, trying to understand its full intent, I have to say that it really is a shockingly bad Bill. Therefore, whatever pressure may be brought to bear, we should spend adequate time going through all the amendments before us. I will not speak at great length and I know that other noble Lords will be very disciplined, but there are some very serious issues and the potential for harming some of the most vulnerable people in our society if we get this wrong is great. Therefore, I make no apology for initiating what I hope will be a series of quite searching debates.
Amendments 55, 56 and 58 stand in my name and that of my noble friend Lady Tyler. They deal with one of the most serious issues at the heart of this legislation—although you would not really know that just from reading it—which is the interaction with the Mental Health Act. I do not need to repeat what was said at earlier stages about the interaction of the Mental Capacity Act and the Mental Health Act because there are many people here who understand that and have discussed it as many times as I have. But I will say one thing as a result of contributions made by some noble Lords last week about Sir Simon Wessely’s review of the Mental Health Act. People reading the Hansard of our debate last week might well have come away with the understanding that, if a person has mental health issues, they are dealt with by the Mental Health Act, and if a person lacks capacity, they are automatically dealt with by the Mental Capacity Act. But that is not true, in two particular ways.
One is that a person may have a mental health condition but may also have a physical condition, and the question is: what happens about their capacity to make that decision? It is not a decision covered by the Mental Health Act, even though they may be residing in a secure unit. Secondly, there are some people who are wrongly detained under the Mental Health Act: increasing numbers of older people with Alzheimer’s are wrongly diagnosed and detained. Therefore, as was recognised when the mental capacity legislation was initially developed, it is very important that we get these two pieces of legislation and their interaction right. That will explain to the Minister why, when we had the initial briefing on this from civil servants, some of us were rather astonished that there was no mention of the Mental Health Act at all until we brought it up.
There has been considerable comment from people within the sector and there remains a big question: why is this legislation being done now? We know that Sir Simon Wessely will report before the end of the year and that the group he is working with intends to come up with recommendations for mental health legislation which will mean that such legislation is likely to apply to far fewer people in future than it does now. If one sits and thinks about that, one will realise that there is an even greater chance that people who lack capacity will not be covered by the correct legislation. I therefore cannot for the life of me see why the Government insist on going ahead, a month or two away from such a significant announcement. My probing amendments are designed to raise those issues. I remain mystified about why we are doing the Bill at the moment. I cannot see that.
I also suggest to the Minister that, in the light of our discussion last week, another issue is germane to this. I thank the noble Baroness, Lady Stedman-Scott, for clarifying that the Bill as it stands means that decisions about somebody’s capacity will include risk to others. Under the Mental Capacity Act, best interest decisions are really about the risk to self. It is therefore highly likely, again, that decisions will be made under this legislation which could—and potentially should—be made under the Mental Health Act. It is perhaps the case that this legislation will confuse things and it may well increase the Bournewood gap; it certainly will not decrease it but there is a severe chance that it will increase it. For all those reasons, I believe that the interaction of the Bill with the Mental Health Act really needs some thorough researching and I look forward to some robust answers from the Minister.
I must advise the Committee that if this amendment is agreed to, I cannot call Amendment 56 for reasons of pre-emption.
My Lords, I support what my noble friend Lady Barker said about this important set of amendments. Briefly, they look at the interaction between the Mental Capacity Act and the Mental Health Act, which has not been properly thought through at all in how the Bill has been brought forward. The amendments focus in particular on people with fluctuating conditions. We have had a bit of discussion about such people but not nearly enough to understand what the real implications will be for people who may have a severe mental illness that fluctuates. They may have a range of other physical conditions requiring treatment and care. There may be times when they are in a position to give consent to treatment and times when they are not. We really need to think much more about how that is to be dealt with in the new system.
My concern, if I may summarise it, is that this complex interaction between the two Acts will result in a two-tier system, with a considerable imbalance in rights and safeguards between the regimes of the Mental Health Act and the Mental Capacity Act. To pick out one example, I understand that under the Mental Capacity Act everyone is entitled to make a legally binding advance decision to refuse various future medical treatments, but that decision can be overridden under the Mental Health Act in most circumstances. It is complicated. There are people covered by both Acts; it is not a question of having the Mental Health Act and people covered by it over here and having the Mental Capacity Act and people covered by that there.
We really need to think this through and satisfy ourselves that any new system deals with that and, frankly, makes the most of the opportunity to streamline these regimes, in particular to take account of people who are covered by both. I would be particularly pleased if the Minister, in responding, would say something about the needs of people who are severely affected by mental health issues and whose capacity may fluctuate, and about how that has been taken into account in the drafting of the Bill.
My Lords, I feel that I should contribute to this debate although I have no speech prepared because, in the discussion with Sir Simon Wessely that I referred to last week, I challenged him about this issue. I asked what we were doing by debating this Bill before his review came out. He was clear and while I cannot say what he is proposing, maybe I can indicate the sort of areas he is looking at. These may help to illuminate the clear differences in certain ways between the two sets of debates and legislation.
For example, he is looking at the role of the Ministry of Justice in relation to people under restriction orders. There are specific mental illness issues in that area. He is looking at how community treatment orders operate—there might be less use of such orders—and how detentions in hospital for people with psychotic illnesses operate, and so on. Those areas are, in general, probably quite distinctive to the Mental Health Act. The bit where I feel there really is a potential overlap is in the area of mental health tribunals, which I will raise when we come on to deprivation of liberty concerns in the context of specific domestic situations. I will have a proposal to make then. I will not go into it here, as it would not be appropriate.
Sir Simon Wessely’s position is clear: he feels that the Mental Health Act needs reform and I think he will have very interesting proposals to make about that. We also all agree that the DoLS system needs reform and we are discussing how that should be done. What he is doing and what noble Lords are trying to do here are both quite complex sets of reforms. Sir Simon Wessely’s view—I hope that he would agree with me—is that these two sets of reforms need to be in place for quite a period. He talked about a decade, actually. There is also the Northern Ireland situation; there are proposals for some bringing together of these things there. There is of course no government in Northern Ireland but Sir Simon Wessely wants that Northern Ireland Government to be formed and for them to be the pilot of all this and see how that works over a period of years. We would then come forward with some proposals, as and if appropriate, for bringing these two pieces of legislation together.
I hope that I have represented Sir Simon Wessely properly. It is important for us all to be aware that we do not have the support of the person in charge of the review of the Mental Health Act when we say, “Come on, what are we doing by having this first? Surely it should all be done at once”.
I want to make it clear to the noble Baroness that I am not talking about bringing these two pieces of legislation together. I know some people have suggested that that should be done, but I am not asking for that. I am simply suggesting that this legislation, which makes a substantial change to what has been the basis of decision-making about best interests on the basis of harm to self, is now going to include harm to others. We were told back in the summer, when the Minister sent us a letter, that the Government were waiting for the outcome of the Mental Health Act review to see what the impact would be. We are now being told, as the noble Baroness, Lady Stedman-Scott, confirmed, that that basis of decision-making is changed by this legislation. It is linked to the necessary and proportionate assessment that people will have to make. I think that is a major change that will perhaps result in the detention of quite a number of people. I do not think it is unreasonable for the Government to wait until Sir Simon Wessely has published his report to ensure that the two pieces of legislation are not drifting further apart.
My Lords, I am the world’s greatest pragmatist in this matter. I am very sympathetic to what the noble Baronesses, Lady Barker and Lady Tyler, are saying. This Bill is by no means perfect. It has huge gaps and we would not have started from here, but the reality is that this Bill will be with us for the rest of the autumn and I believe that Sir Simon Wessely’s report will be submitted to the Government around 12 December, so it is likely to come before Third Reading and before we finish the Bill. We will be able to see if there are great big gaps. I do not think the two things will overlap very much. We might be helped out, particularly on amendments on advanced directives, and in that context we can perhaps make ourselves closer to what Sir Simon Wessely recommends, but I do not think there is anything to address, except that the current Bill is not working. We have all those people waiting for an assessment who will never be assessed. We need some legislation in place. There is some urgency. I know we would like a perfect Bill, but we are not going to get one. What we need is an implementable Bill which makes assessments doable for people who need them and so that we can get some process in place. The Bill is not perfect. We would not start from here, but we have this Bill and we should continue with it.
I shall continue on the theme that my noble friend Lady Murphy has set out. Last week, I chaired the National Mental Capacity Forum leadership group. One of the people there said that:
“While there was an initial knee-jerk reaction amongst care providers and the local council, if you consider the,”
liberty protection safeguards,
“in more detail you quickly come to understand that it is actually quite an innovative solution”,
because there is such a backlog and so much difficulty in trying to get anything in place.
I am concerned that we are trying to draw clear lines between different types of illnesses and conditions when it is pretty impossible to do so. There are mental health conditions that impair your capacity, even though you may be compliant with treatment, there are physical illnesses that result in impaired capacity, and there are illnesses—Lewy body dementia is one of them—where part of the illness means that you may be a risk to other people. Huntington’s disease is similar and a horrible disease to have. Trying to draw clear lines between those different groups is difficult.
I looked at the amendment and for a definition of “fluctuate” and “short”. I tried to think how I would define “fluctuate” or “short” in a clinical context, and I could not because “short” might be short to some people and long to others and fluctuation can be all kinds of directions and with different degrees of severity. The difficulty we are grappling with here is that we are trying to write something in legislation that will be literally black and white: black words on a white page. The people we are dealing with are incredibly individual and have very different needs. That is why, returning to our previous debate, the stress on wishes and feelings and on consulting people who know the person becomes incredibly important. We will go on to talk about ways that people can call for external scrutiny because, if they care about the person, they need to be able to do that.
I think I see the intention behind the amendment, but it might become really complex legally and I do not think it would do anything to solve the Bournewood gap. The more you look at the Bournewood gap, the more you see that it should never have happened in the first place, irrespective of the legislation in place. There has been a problem looking at Bournewood and at legislation as a solution. I hope that as a result of the way this Bill is drafted, the patient’s wishes and feelings and those making representations on his behalf would have been listened to and should be listened to, and that we will have a mechanism to trigger so that he would not remain detained.
I have to disagree with the noble Baroness, Lady Finlay. Mark Neary had to resort to the law, not to a code of practice, to get his son out of a place where he should never have been detained. We need to have further discussions about what needs to be in the Bill and the role of regulation and the code of practice. I think she has a fundamentally wrong take on this. This is about legal protection for very vulnerable people. That sometimes has to be in a brief outline in law. It has to be stated in the Bill that a person has to be spoken to face to face. We can then go on to put a load of stuff in the code of practice about how we do that.
To pick up the point made by the noble Baroness, Lady Murphy, I think this is a terrible Bill containing huge holes and some real problems. If the Government take the tack they took last time, we may be able to improve it substantially, but we are in danger of putting one bureaucracy in place of another bureaucracy, and the only difference between the two is that there are far fewer protections for the most vulnerable people. We would be somewhat negligent to go ahead on that basis. I cannot approach the Bill in that way.
I thank the noble Baronesses, Lady Barker and Lady Tyler, for tabling this amendment. I agree with the remarks of the noble Baroness, Lady Barker, about the state of the Bill. I am rather—“disappointed” may not be quite the right word—surprised that the noble Baroness, Lady Murphy, who has brought discipline to the House to focus on good legislation and how it should work, is suggesting that we have to have something, so this is it. I really hope that that is not the case and that this Committee will have revealed to the Minister, and particularly to the Bill team, that many elements in the Bill need clarification, need to be changed and can be improved. That is our job, and the noble Baroness, Lady Barker, is highlighting but one of those elements. In fact, the amendment that I am due to talk about next refers to the difficulties that the Bill has brought and the differences between the Mental Health Act and the Mental Capacity Act.
The last month or so has been very revealing. The Bill was sold to us as something really quite simple that was going to streamline things, get rid of the backlog, save some money and so on, and it really needed only one day in Committee. That is certainly how it was sold to me on these Benches and, I am sure, to other people in the House. In fact, what has happened over the last couple of months is that all the stakeholders and people who are writing to us are saying, “No, this will not do. This Bill does not work. It is dangerous and difficult”. It needs clarification, and these amendments highlight the areas that need it. We are going to move on to other areas that need clarification and which will certainly need amendment. This is an important and legitimate question to ask about the Bill.
My Lords, I thank all noble Lords—I keep saying “noble Lords” but it has really been noble Baronesses, so I will switch my language—who have both tabled amendments in this group and spoken to them.
Before I come to the substance of the amendments, I shall say two things. First, I agree with the noble Baroness, Lady Murphy, that there is an urgency. To use the words of the Local Government Association, “the current system is unable to ensure there is adequate protection for human rights”. That is the reality of the situation that we find ourselves in at the moment.
Secondly, views about the perfection or otherwise of the Bill will vary across the House, but I hope that in the two days of Committee prior to this one I was able to demonstrate that the department and Ministers are absolutely committed to improving the Bill in any way that we can during its passage through Parliament, especially in this House where there are so many experts. I really think we have made some progress. I realise that that will not be enough to satisfy everyone and there is clearly much more to come—care home managers are clearly a big area of work that we need to focus on—but we have made some progress. I encourage noble Lords to continue in that mindset because I think we can reach a good outcome that deals with the fact that, as Age UK says, the system leaves,
“many highly vulnerable older people languishing without any legal protection at all”,
something none of us can accept. We stand ready to undertake that work, as noble Lords know, and I know they do so too.
I turn to the amendments in this group. Amendment 55, tabled by the noble Baronesses, Lady Barker and Lady Tyler, outlines the circumstances in which an authorisation ceases to have effect, particularly noting that authorisations should end if they conflict with a valid decision of a court-appointed deputy or a donee of a lasting power of attorney. The amendment also states that an authorisation would not cease to have an effect if a person’s capacity fluctuated, and would create regulation-making powers to define what constitutes fluctuating capacity.
Section 6(6) of the Mental Capacity Act already provides that action cannot be taken that conflicts with a lasting power of attorney or a deputy’s valid decision, and I can confirm that the Bill does not change that. This means that an authorisation can only be given if it is accordance with a valid decision, so I hope I have provided reassurance on that front.
I can also confirm that if it emerges that an authorisation conflicts with a decision of a donee of a lasting power of attorney or by a court-appointed deputy, a review should be arranged under paragraph 31 of the Schedule. In particular, it will need to be considered if the attorney or deputy has valid and applicable powers to make this decision, and if the deprivation of liberty authorisation continues to be necessary. That means that in the event of such a conflict, the authorisation ceases to have effect. I hope that provides reassurance to the noble Baronesses on that point.
The noble Baroness, Lady Tyler, focused particularly on fluctuating capacity. I agree that an authorisation should not necessarily cease to have effect if a person’s capacity fluctuates and there are short periods of lucidity. That is currently the case under the DoLS system and I can confirm that it will continue under the liberty protections safeguards. However, as the noble Baroness, Lady Finlay, brought to life, it is very difficult to define either “fluctuating” or “short”, particularly in legislation. For that reason, we do not think regulation-making powers are appropriate; we believe this would be better dealt with through a code of practice, which would allow for more detail and more regular updating but would also allow the use of case studies to bring examples to life. We plan to give much more detailed guidance in the new code of practice, and I reassure noble Lords that we will be working with the sector in order to produce it.
Amendments 56 and 58 from the noble Baronesses, Lady Barker and Lady Tyler, relate to the thorny issue of the interaction between mental health and mental capacity legislation. They would mean that an authorisation had effect in relation to arrangements that were not in accordance with mental health requirements. As noble Lords know, mental health requirements are conditions placed on Mental Health Act patients living in the community. Currently, DoLS authorisations no longer have effect if a person is subject to arrangements or conditions under the Mental Health Act and that authorisation would be in conflict. This means that the terms of a DoLS authorisation cannot conflict with those of, for example, Section 17 leave of absences. The Bill has been drafted to reflect the interaction that currently exists between the Mental Health Act and the Mental Capacity Act.
The review of the Mental Health Act has been mentioned in this debate. The review, chaired by Sir Simon Wessely, has been considering, among other things, the interaction between these two pieces of legislation. I know the noble Baroness, Lady Barker, has sincere concerns about the nature of that interaction and about why we are bringing forward this legislation now. My short answer is that urgent reform is needed for the reasons that we have set out, including the quotes that I have given. The contribution from the noble Baroness, Lady Meacher, was helpful, and I have put in my notes that I need to speak to Sir Simon Wessely myself to understand his perspective. However, if I have understood correctly, regardless of the timing of his report, the process of implementing his proposals will take some time to do properly. In our view, it is not right to wait until that has been perfected before we try to deal with many of the issues under consideration in the Bill in the light of the current inefficiencies of the DoLS system. It is for that reason that we want to push ahead. As I have said, I will take it upon myself to speak to Sir Simon Wessely and get a real understanding of his expectations on timing, and to try to understand from his point of view the scale of the interaction between these two pieces of legislation so that we really know what is at stake.
I think the noble Baroness herself said that the amendments are essentially probing. She will know that the effect of them would be that two authorisations could be live at the same time. I am confident that that is not what she is proposing, not least because it would have the perverse effect of requiring people to be in two places at once, so I know she was using this as an opportunity to discuss this question. As I said, it is important that we move ahead for the reasons that we have discussed, notwithstanding that the Government will of course consider incredibly carefully the findings in Sir Simon Wessely’s report and what action is required to implement his recommendations.
On a couple of occasions the noble Baroness, Lady Barker, referred to the consideration of harm to others. I am told that harm to others can be considered under the current DoLS system, so what is proposed is not a change from the current system. However, I will pick that point up with her offline so that we can really get to the bottom of it and ensure complete clarity to a degree that satisfies her. I hope that on that basis, the noble Baroness feels able to withdraw the amendment, and I look forward to discussing more of these issues throughout the evening.
I thank all noble Lords for taking part in that debate, which was a useful exchange of views and information. The Minister is in some difficulty, because the two organisations that he cited are on record as saying that they do not support the Bill in its current form. I remain of the view that we run the risk of attempting to deal with an underfunded, under-resourced system by putting in place another underfunded, under-resourced system which dilutes the protection of vulnerable people.
Ahead of debates on other groupings, I simply ask how many times the Mental Capacity Act and DoLS codes of practice were changed. How many times were they amended? I do not disagree that a code of practice is a good place in which to put examples; I do not think it is a substitute for having well-drafted legislation and regulations—regulations can often be changed.
I will read Hansard with great care, but I reserve the right and hope, with the assistance of the noble Baroness, Lady Browning, who is not in her place but is equally concerned about these matters, to return to the matter. I beg leave to withdraw the amendment.
Amendment 55 withdrawn.
Amendments 56 to 58 not moved.
58A: Schedule 1, page 15, line 12, leave out from “of” to end of line 14 and insert “12 months or less.”
The amendment would reduce the maximum time for which an individual can be held in detention without renewal from three years back to 12 months. The Bill would allow responsible bodies to renew an authorisation of deprivation of liberty in some cases for up to three years, while simultaneously reducing the safeguards that a renewal process would require. The amendment would shorten that three-year period to a maximum of 12 months.
Why is that important? Tripling the potential length of an authorisation period to three years creates a stark difference between the Mental Capacity Act and the Mental Health Act, apart from anything else, and moves away from best practice in other countries. Paired with the new LPS renewal process, which weakens safeguards designed to prevent lengthy detentions, a three-year authorisation will be likely to face legal challenge.
At its core, the new LPS system is intended to safeguard vulnerable people who have been deprived of their liberty on mental capacity grounds. The possibility of a three-year period of detention with limited safeguards gets the balance wrong between safeguarding vulnerable individuals and the desire to reduce the bureaucracy of the system.
Strasbourg case law confirms that a lawful deprivation of liberty for the purposes of Article 5(1)(e) of the ECHR must include both “limits in terms of time” and “continuing clinical assessment of the persistence of a disorder warranting detention”. Therefore, in order to comply with Article 5, any system must contain, first, a provision for the termination of the authorisation after the maximum time has expired and, secondly, an ability to terminate an authorisation before the time limit has expired if the deprivation of liberty is no longer necessary.
A three-year renewal limit is likely to pose problems for responsible bodies, especially in cases concerning conditions such as learning disabilities, acquired brain injuries and other non-degenerative mental impairments. The courts are likely to intervene to interpret those paragraphs concerning renewals—paragraphs 27(a)(ii), 28(b)(ii) and 29(1)(b)—as narrowly as possible. Capacity assessments are time specific, and a three year-old capacity assessment cannot be relied on as accurate evidence for detention. Therefore, we propose to reduce the three years to 12 months.
It is notable that a 2017 paper comparing mental health legislation in five different jurisdictions—Canada, Australia, Scotland, the Republic of Ireland and England and Wales—states that renewal orders vary in different jurisdictions,
“with the time periods for subsequent orders being longer in duration up to a maximum of 12 months, except in Ontario (3 months) and Victoria (6 months)”.
The Law Commission states that a three-year period should be considered only in the context of robust safeguards and constant review. Given the weakening of the safeguards throughout the rest of the Bill, it would be inappropriate to triple the length of time for which an authorisation can last.
In his opening remarks on the Bill, the Minister stated:
“It is essential that the system afford the necessary protections for the most vulnerable people”.—[Official Report, 16/7/18; col. 1061.]
The Bill as currently drafted would in this respect not deliver that protection. I beg to move.
My Lords, I have three amendments in the group designed to remove any ambiguity about authorisations, in that an authorisation would fall if it partly fell—in other words, if the person’s condition had either improved or changed to such an extent that the plan in place was no longer applicable, even in part, that would warrant a complete review. I accept that it would have to be a light-touch revision, because some things might not have changed, but I am not comfortable with simply allowing it to be reviewed and people to say that these parts of the condition no longer apply.
Amendment 58C is to stress the need for evidence to be supplied to support statements. I hope that the Minister will be able to provide me with some assurance. That evidence might come from photographs, video recordings of behaviour or whatever. That may be quite different to the written word. I worry that one person’s observed written word may not adequately portray a picture, particularly where the cared-for person has become withdrawn. Someone might interpret that as their being compliant, when actually they may be deeply unhappy. A broader direct recording of the person could be helpful.
I tabled Amendment 62A because I was concerned that the care home manager might be in the process of arranging for adaptations to be made to meet the cared-for persons in line with that person’s wishes and feelings, and that the Bill’s wording does not provide enough flexibility to consider the arrangements to meet the individual’s needs.
I thank the noble Baronesses for tabling their amendments about renewals. I deal first with Amendment 58A, moved by the noble Baroness, Lady Thornton, which, as she said, would have the effect of meaning that authorisations cannot be renewed for longer than 12 months. As she pointed out, this would go against the Law Commission’s recommendation, which was that there could be circumstances under which renewals took place for up to three years, particularly following an initial review after up to 12 months and if it was unlikely that there would be a change in the person’s condition.
These three-year renewals are in place so that those who are in a stable condition and unlikely to recover are not subjected to annual assessments. The Bill does provide the safeguard—referred to by the noble Baroness—which ensures that an authorisation would need to be reviewed if there is a change. We would also want to make sure that there are appropriate reviews of arrangements when annual reviews under the Care Act take place. It would be up to the responsible body to set review periods. In care home settings, the care home manager must report to the responsible body on any reviews that have been carried out. As the Bill stands, there are significant safeguards to prevent abuse or lack of care of the vulnerable person.
All that being said, I know how strongly noble Lords and stakeholders feel about this issue. The noble Baroness, Lady Thornton, made a valid point about aligning the review process with the terms set out under the Care Act. I would like to give further thought to this, particularly in the context of the discussions which will be taking place about the proper role of the care home manager. There is clear concern about a proper system of oversight and regular review where responsibility has been devolved to the care home manager. If the noble Baroness will allow me, I will follow that up after this debate.
Amendment 58B, tabled by the noble Baroness, Lady Finlay, considers an authorisation ceasing to be renewed if it has lapsed wholly or in part. We will want to give further consideration to that. As discussed earlier in Committee, there are circumstances under which one might be happy for an authorisation to continue after a very minor change. That might be the proper process to align this to, and I want to give further thought to this.
Amendment 58C asks that, when deciding whether to renew authorisations in care home cases, responsible bodies should consider other relevant information, as well as that provided by the care home manager. I can confirm that the Bill does allow responsible bodies to consider information other than that provided by the care home manager. That would, inevitably, be in other formats too. We will set out more detail on that in the code of practice.
Amendment 62A would add the word “arranging” to the scenarios in which the care home manager was required to notify the responsible body that an IMCA should be appointed. The amendment intends to make sure that that happens at the earliest stage, including when the assessments are being arranged. That is what the word “proposing” in the Bill achieves. We are satisfied that the language currently in the Bill means that care home managers would be looking at this issue when they are beginning to propose an authorisation, which is the earliest point at which planning for, arranging or bringing together the assessments would take place. I would be happy to demonstrate what underpins our belief that this is the case. I do understand what the noble Baroness is driving at; it is something which we are trying to achieve.
On that basis, I hope that the noble Baronesses are willing to withdraw or not move their amendments.
I thank the Minister for his answer. I am encouraged that we are going to continue the discussion on this issue. Apart from anything else, I will need quite a lot of convincing that the Bill provides the right kind of protections to allow a period of three years, as currently stated.
On the amendments tabled by the noble Baroness, Lady Finlay, I was reminded when reading the letters the Minister has written to noble Lords, and the record of the previous two days in Committee, that we need to clarify the meaning of “care home manager”. Or is it “care manager”, an expression which he has also used? I do not want an answer to that now, but I put it on the table as one issue which we need to clarify in our discussions and in the Bill. I beg leave to withdraw the amendment.
Amendment 58A withdrawn.
Amendments 58B to 60 not moved.
61: Schedule 1, page 17, line 23, at end insert—
“(c) for a named person to be in charge of training and revalidation of Approved Mental Capacity Professionals,(d) for honorary contracts with neighbouring local authorities and health bodies as required.”
My Lords, I do not want to detain the Committee by revisiting too much of our debate on day 2, when the Minister stated that the local authority would decide for itself how to organise and manage how AMCPs will operate. My concern is that they must be trained to a uniformly high standard. Such training should include assessment in all the key domains of responsibility. They should be registered as an AMCP and subject to revalidation over time. These people will, potentially, hold an enormous amount of power over somebody who is vulnerable.
I am also concerned that, unless those professional standards are in place, we will have a problem with quality control. In the event of a concern being raised about an AMCP, it is important that they are formally registered with the local authority. I also raise the question of how they will be indemnified and who will be responsible for their appraisal and supervision. They must have honorary contracts with adjacent local authorities to enable them to act, because some local authorities have relatively confined geographical areas. Given that these should be professionals, they should be listed with their professional body as having specialised training and skills. Another reason for this is my worry that, if they are going to function in hospitals, and unless they have a formal honorary contract from the local authority and are registered, we may end up with a two-tier system between local authorities and hospitals. I am not sure how that is going to work.
Amendment 61A seeks to expand the range of people who can train to become an AMCP. I declare an interest as president of the Chartered Society of Physiotherapy; I was at its annual conference at the weekend. I did not add physiotherapists to the list when I wrote the amendment, because I had not had a chance to consult them. However, it was evident, from many inspirational presentations, that physiotherapists working in head injury, acute trauma and stroke units, and in mental health services, can often be key to rehabilitation and restore people dramatically to a degree of independence that others had not envisaged. They felt very strongly that they did not want to be excluded; they have a lot to offer and are keen to train up, which seems very sensible.
I have also come across a few—not many—doctors who have retired from their main clinical practice but remain on the medical register, still work in some capacity or another, and, in later life, have developed an interest in people with impaired capacity. They have years of experience behind them, particularly in old-age psychiatry and so on, and would like to train as an AMCP. The criteria on which to select people should be their motivation, personal skills and background experience. We should not judge them by their original clinical degree qualification, because that is arbitrary. It does not mean that just because you are a nurse, a clinical psychologist or a social worker you would be perfectly fitted to this role; nor does it follow that because you are a speech and language therapist or a physiotherapist or whatever, you would not be suitable to take on this role and these responsibilities.
I therefore hope that the Minister might be able to expand a little, or perhaps not even discuss it here but think again, on how we will ensure that the people who carry this responsibility are trained to a uniformly high standard, are properly indemnified, can be identified, are able to function properly and can be held to account for the way in which they take decisions and advise. I beg to move.
I would like to add a few more points on training. An awful lot of people in an awful lot of new roles will require training to get whatever system that we are going to end up with up and running at pace. Which organisation will be responsible for setting up the programmes for ensuring the delivery of good-quality training? Who has the responsibility to ensure that nothing is implemented until all the appropriate professionals have received their training? There is nothing worse than determining a date to fire the gun if you discover that all the people who are going to run the system are not yet trained. Can the Minister confirm that all this will start with plenty of time before the rollout of this new system? We expect that training should be effective and ongoing. Who will assess the trainers? What is the process for ensuring quality and a national standard? We may well be able to twist something that currently exists and make it work, but I do not have that knowledge. Can he also confirm that, as part of this training, the rights of the individual will be reinforced? Will the training clarify the role that each of these professionals within this new system is going to have in ensuring that an individual’s rights are observed and respected?
My Lords, I want to follow up the remarks of the noble Baroness, Lady Finlay, by referring to the recent CQC annual report, which had a section on the implementation and practice in relation to DoLS. The report laid out a number of key concerns about care home and hospital providers that are actually using DoLS at the moment in relation to the Act itself. There is a huge variation in practice and this variation is commonly linked with a basic lack of understanding of the law, which is complex and difficult to understand. The report says that the result is that there are unnecessarily restrictive practices that can result in the loss of freedom and, in some cases, the loss of people’s human rights. The problems are reinforced by limited staffing levels, a lack of time to complete applications and inadequate staff training.
I am aware, of course, that the intention of this Bill is to streamline some of those procedures, although I think that, because the safeguards have been drastically reduced, we might be landing ourselves in future problems once the courts begin to hear some of the cases that will arise. The point is that it is quite clear that, at the moment, effective training is not taking place among many of the organisations involved in the operation of DoLS. The risk is that the same will happen in relation to the new legislation. We need some guarantees that there are going to be resources and a concerted training programme to ensure that we mitigate that impact.
I will add to the questions that have already been asked of the Minister: who is going to pay for this? Training is very expensive and I was waiting for the noble Baroness, Lady Jolly, to ask that question but she did not, so I am asking it. As I recall from the impact assessment, I am not sure that there is a large sum of money in there for the amount of training that might be necessary to ensure that this Bill is properly enacted.
I thank the noble Baroness, Lady Finlay, for tabling these amendments and precipitating this discussion. I will move straight on to the substance of the amendments. Amendment 61 provides that local authorities must make arrangements for a named person to be in charge of training and revalidation of approved mental capacity professionals and that local authorities must make arrangements for contracts with neighbouring local authorities and health bodies as required.
On the issue of approvals and training, the Bill is clear that local authorities must approve individuals to become AMCPs, and regulations under paragraph 33 will make provision around training, qualifications and other eligibility criteria. The question of what kind of training there should be and who pays is something that we discussed at some length on the last Committee day. That was more in relation to care home managers, which was primarily the focus of the questions of the noble Lord, Lord Hunt. The same read-across applies to AMCPs as well. On that occasion, I committed to bringing forward more details of what the training would look like. I also confirmed that, in England, Health Education England and ADASS would be responsible for working with skills for care, and Social Work England. Those are the bodies that would be responsible for overseeing and designing the training. The noble Baroness, Lady Jolly, asked about the rights of individuals. Of course, that would be the centrepiece of any training programme to make sure that those rights are properly respected.
On the specific question about local authorities naming an individual, I say that the Bill does not prevent them doing so. It is something that they are able to do and, in our view, it does not need to be set out in primary legislation. There is no such requirement for best-interests assessors or approved mental health professionals, I understand, and that has not caused any difficulties in practice. To that extent, we can mimic the arrangements in place there.
Making arrangements with other local authorities is again not precluded by the Bill. Clearly, that is something that local authorities will want to do, depending on the arrangements they have commissioned in care across different authorities. I can confirm that we will provide guidance on this in the code of practice.
Amendment 61A adds to the criteria that must be met for a person to become an AMCP. They must be,
“a registered professional, with a minimum of three years clinical experience”.
A list sets out whom that could include; that list has been added to by one tonight, which in some senses exemplifies the nature of the problem. I completely agree with the noble Baroness: we need to set out not only the kind of professionals but the kind of qualifications and experience. There has to be a balance and a mix between all of those. That will be set out in regulations. The noble Baroness, Lady Barker, asked about the proper place to set out the rigidity or robustness, and we believe that the appropriate place would be in regulations, which provide a degree of flexibility that would not apply if we enshrined this in primary legislation. That is why we are proposing the approach of defining the groups that should be acting as AMCPs.
How many cases have been taken to the Court of Appeal on the basis of regulations not being observed, as opposed to something in an Act? I do not expect an answer now, but I would like to know.
I am afraid that I do not know, but I will write to the noble Baroness and circulate the letter to all noble Lords.
To conclude, I hope that I have provided the noble Baroness, Lady Finlay, with the reassurances that she was looking for and that she will be prepared to withdraw her amendment.
My Lords, I learned some years ago not to have lists in the Bill, and I have fallen over my own list on this amendment. I am most grateful to the Minister for the reassurances that he has given. A lot of work will need to be done so that we make sure that training is there for the right people at the right time, but for now I beg leave to withdraw the amendment.
Amendment 61 withdrawn.
Amendments 61A to 62A not moved.
63: Schedule 1, page 18, line 18, leave out “the manager is of the opinion” and insert “there is reason to believe”
My Lords, in this group of amendments we begin to get into the issue of IMCAs and how that whole system will operate. In Amendment 63 I use the words,
“there is reason to believe”,
because I feel strongly that anyone who is concerned about the cared-for person—whether they are family, a friend who knows them well, a care assistant in the care home, if they are in a care home, or somebody who is coming in to wherever they are being cared for, such as supported living—must be able to raise them independently, if necessary anonymously, and to request that an IMCA is appointed to go and see what is happening.
In Amendment 64 I removed the word “only” because I was attempting to remove the veto from a care home manager. The potential veto of a care home manager has caused so much concern in debate, and a great deal of anxiety in the briefings that have come through to us. I stress that advocacy—we will come on to that overall—needs careful monitoring, too, and people who act as advocates need support and supervision. Not just anybody can be an advocate, and we have to be careful that we do not exclude family and those who know a person well by having an advocate come in when in fact a family member who has known them for years may be in a much better position.
Also, we have to have a way of screening out advocates who, for whatever reason, may not be the right people to do this at the time. Unfortunately, it is inevitable and part of human nature that people will want to work in a field if they have had some experience of being on the receiving end. But certainly, when you look at bereavement counsellors and so on, they need to have a clear period before they are selected, and they need to be carefully selected and screened, and supervised. We are talking about extremely vulnerable people here, and the last thing we want to do is somehow to open the door to them being vulnerable at somebody else’s hands through our best intentions. I beg to move.
My Lords, this is again a rather fundamental indicator of some of the things that are badly wrong with the Bill. The words “best interests” appear in it three times, and twice they are used in relation to a care home manager being able to restrict access to advocacy. As the Bill stands, referral to advocacy is controlled by a relevant person, either the responsible body or the care home manager, and an advocate must be appointed if a person has capacity and requests an advocate—that is quite rare, and I have to say that under the Bill it would be something of a miracle, because they do not have the right to information about not only their current circumstances but about other less restrictive options. The Minister’s statements on information last week, when he referred to GDPR, were so strange that it has taken me a considerable time to work out that he had completely misunderstood that under the current system people have a right to information. They have the right not to request information but to be provided with information, which this amending Bill severely restricts.
However, the second condition is by far the most worrying. Somebody can request an advocate if the person lacks capacity and the relevant person is,
“satisfied that being represented and supported by an IMCA would be in the … person’s best interests”.
I invite noble Lords to think what would have happened if those words had been in law during Winterbourne View. That is why I am quite happy to use the word “shocking” about the Bill, as this is unacceptable. My amendments would try to get rid of the abuse of the term “best interests” to limit vulnerable people’s access to support. The Minister knows that under the DoLS system, by and large, if somebody requests an advocate, it is up to the relevant body to try to do their best to find one, or that they find an appropriate person. I refer to the point made by the noble Baroness, Lady Finlay, that under case law at the moment, local authorities have the right to override if an appropriate person is not doing their job properly on behalf of the person. That too will be undermined by the Bill.
The Minister will also know that if somebody has no relatives and nobody else in the world—they are “undefended”, to use that rather archaic but useful and clear term—they have an automatic right to advocacy. I know that much will be made of advocacy being expensive, advocates being a resource that is not readily available, and that people who do not need advocacy will be unnecessarily interviewed. I am quite happy to talk at length to the Government about ways in which advocates or advocacy resources could be better used and better targeted—but absolutely not by drawing it like this, putting this sort of hurdle not even in a code of practice but in a Bill.
My Lords, we on these Benches very much agree with the purport of these amendments, which again bring to light some of the ambiguities in the Bill and some of the rights that are not properly respected by it. Over the next period the Minister will not only need to give us a theoretical answer but have to answer things such as the question about Winterbourne View, and look at the hard examples of real experience which some of us have been receiving in our postbags over the last month. We will need to return to this over the next few weeks, and possibly even at the next stage.
I am grateful to all the noble Baronesses for their amendments and for speaking in the debate on this group. Let me begin with a statement of principle. I accept the challenge from the noble Baroness, Lady Thornton, that we need to move from principles to practicalities, or in our case to the appropriate legislation. There is genuinely no attempt in the Bill to restrict people’s access to independent advocacy. As has been clearly voiced, not only in this Chamber but elsewhere, there is a concern that that will be the effect of what is proposed, and that is something that we need to deal with. But let me say at the beginning that that is not the intention. It must be the case that anybody who needs support to navigate these difficult and complex situations must be able to find the right support for them. I will explain why the Bill is as it is in a moment, but let me at least give that statement of principle at the beginning.
I will deal now with the specific amendments in this group. Amendments 63 and 64 aim to ensure that the Bill is robust on the appointment of the IMCA. I completely agree that it is vital that the care home manager notifies the responsible body that an IMCA should be appointed. That is required by the Bill. However, I know that there is great concern about the impartiality of this person and a requirement for strengthening in this regard. It is also our position that a responsible body will be able to appoint an IMCA if there is a request by, for example, a family member or the person themselves, or if there is a disagreement with the notification given by a care home manager. I am considering how we can make the Bill clearer in that regard. As we home in on the issue of the incentives for the care home manager to follow best practice, as we would want, I am aware that we need to do more work on this to get it right.
My Lords, that is a very helpful comment but will the Minister pick up the point that part of the problem is that the care manager is not only the co-ordinator but often the gatekeeper to the protections that noble Lords wish to see included? Take, for instance, the definition of “relevant person”. It seems to me, looking at this afresh, that far too much authority is being given to the care home manager in relation not just to co-ordination but to the protections.
I thank the noble Lord for that intervention. The debate we had last week was very much around the proper role for the care “home” manager—I take on board the rejoinder from the noble Baroness, Lady Thornton, about the specificity of terms. I do not want to rehash that debate, save to say that the care home manager model is the right one going forward, while recognising, as I did last week—here I agree with the noble Lord’s point—that there are a lot of concerns about conflicts of interest, training, the degree of responsibility and other things.
In this case, we are talking about notification of the appointment of an IMCA, where there is real concern that there is an element of marking your own homework. That is not what we are trying to achieve: we are trying to achieve the consideration of deprivation of liberty at the earliest possible point in care planning by somebody who is responsible for organising—although in lots of cases not personally delivering—that care. We are trying to deliver a more proportionate system than the one that we know is currently failing. As I committed to in last week’s Committee debate, I want to get that right. If we cannot get it right, the risk is that we end up replicating the system that we have now, which would be in nobody’s interests. I hope that, by restating that, I have satisfied the noble Lord.
Amendments 68, 71 and 72 relate to the criteria for appointing IMCAs. The Bill currently states that an IMCA should be appointed if a person has capacity to consent to being represented and supported by an IMCA and makes a request to the relevant person, and there is no appropriate person available. It also states that a cared-for person should be supported by an IMCA if the person lacks capacity to consent and being represented by an IMCA is in their best interests and there is no appropriate person in place.
I recognise the concern expressed by the noble Baronesses, Lady Barker and Lady Thornton, about the term “best interests”. Let me state again the intention that, in the vast majority of circumstances, we expect it would be in a cared-for person’s interests to receive representation and support from an IMCA or appropriate person. However, there may be a small number of circumstances where that is not the case. For example, if a person is adamant that they do not want this sort of representation, and has refused advocacy support in the past, it would not be right to impose such an advocate on them. If we remove the best interests consideration, we risk a situation where responsible bodies can override the past and present wishes of the person.
I thank the Minister for that explanation. Given that the Bill as drafted is essentially a “get out of jail free” card for bad care home owners, the Government must have a really good evidence base to have come forward with a proposal as sweeping as that. I wonder whether the Minister can share with us the evidence that has led to the Government putting this in the Bill. It really should be quite convincing, given that it has got to this stage. It would be helpful if he would let noble Lords see that evidence.
I am happy to discuss the issue with all noble Lords, as I have said in the past. I return to where I started: the intention of this approach is to make sure that independent advocacy is not imposed on someone who genuinely does not want it. It is not to provide a “get out of jail free” card for poor care home managers. If that is a concern, I take it very seriously, but it is not the intention of the Bill. However, if it is the case, something needs to be remedied. Let me assure noble Lords that I will make best efforts to do so as we move forward from Committee.
This has been a very useful discussion. In some sense it has provided a degree of continuity from our discussion last week, while moving on to the issue of advocacy, which we will clearly explore further. I hope that, with the reassurances I have given at this stage, the noble Baroness will feel able to withdraw her amendment.
My Lords, this debate has been extremely interesting and, in many ways, gets to the nub of some of our concerns. In looking at the Bill, one thing I have tried to do is to benchmark its procedures to see how they would work. I was involved in prosecuting appalling care in EMI homes. I am trying to see how we could have discovered sooner that there were problems there.
I share the concern about the care home manager having too much power. Having said that, I have found the Minister’s answers today reassuring, as they were on the second day in Committee. I suggest, however, that the number of objectors will be very few, because many of these people have such impaired capacity and are not in a position to object—it may be other people who speak up on their behalf.
I wonder whether the noble Baroness, Lady Finlay, agrees that, when you watch well-trained advocates at work, you see that they absolutely understand if their presence is upsetting somebody. They are not routinely attempting to force themselves on to people who definitely do not need their help. The question of whether somebody wants their help or not is a more nuanced professional judgment.
I agree with the noble Baroness that when they work well, they can work extremely well. As I said earlier, I would also caution against the family and other people being potentially pushed aside, and people being not adequately supervised or monitored.
We have a great deal to consider outside the Chamber tonight. I am grateful to the Minister for being in listening mode so far. This group of amendments and the next are the ones that we will need to have a big discussion about. In the meantime, I beg leave to withdraw the amendment.
Amendment 63 withdrawn.
Amendment 64 not moved.
65: Schedule 1, page 18, line 33, at end insert “or a person concerned with the welfare of the cared-for person has requested independent support for the cared-for person”
My Lords, I feel that I should apologise for leading on this group of amendments, but it was by chance that my number came up. It was not my choice: I did not ask to lead on it.
The role of Amendment 65, which is the one that I really want to speak to, is to state clearly that we must strengthen the voice of anyone who has any concerns so that they can speak up on behalf of the cared-for person. I note that my noble friend Lady Hollins’s Amendment 66 provides powers to the voice of the responsible body and would mean that the responsible body must listen to representations. Amendment 67 strengthens the word “must”. There is a great deal in these amendments. I will not take the time of the Committee by speaking to other noble Lords’ amendments, other than to say that this group of amendments contains a great deal of rich wisdom. I beg to move.
My Lords, this group of amendments concerns the appointment of an advocate, or appropriate person, to support the cared-for person in exercising their rights. The appointment of an independent mental capacity advocate and the identification of an appropriate person rely on care home managers being able to arrange a capacity assessment and a best-interest decision and on them notifying the responsible body. I noted the Minister’s assurance on our last day in Committee that care home managers will not be making an assessment themselves. But how will errors be identified and what will happen if the care home manager gets it wrong? Will the Minister tell the Committee how that will be detected on the basis of a paper-based review by the local authority when the paper has been supplied by the care home manager? The responsible body should not rely simply on what the care home manager thinks.
My Amendment 66 gives the local authority discretion to appoint an appropriate person or IMCA without notification from a care home, with whom there may be a conflict of interest, if the responsible body has reason to believe that such representation and support is needed for the cared-for person. Reasons to believe might include notification by an AMCP or a third party, or local authority social services involved in care planning.
The provision of advocacy can have a transformative effect and be the first time that the cared-for person’s views, and those of their family, are forcefully represented to decision makers. A failure to listen to people or to give weight or credence to what they say lies at the heart of many of the tragedies that have shamed social care and health services over recent decades. For that reason, it is vital for people to get the support that they need to express their views and exercise their rights, either through the appointment of an appropriate individual, often a family member, or an independent mental capacity advocate.
As they stand, Clauses 36 and 37 of the Bill are confusing and poorly drafted, with inconsistencies. For example, the Bill states:
“An IMCA should be appointed if the cared-for person … has capacity to consent to being represented and supported by an IMCA, and … makes a request to the relevant person”—
but IMCAs are instructed to support and represent only people who lack capacity. My Amendments 67, 69, 70, 73, and 74 add emphasis and aim to address these inconsistences and ensure that every cared-for person has access to support from either an appropriate person or an IMCA who is both willing and able to help them understand and exercise rights of challenge.
As it is drafted, the Bill leaves open the possibility of circumstances where a person may have neither an IMCA nor an appropriate person and therefore no means of being able to exercise their rights under Article 5(4) of the European Charter of Human Rights. Rulings such as the AJ v A Local Authority judgment, in paragraph 35, stipulate:
“Article 5(4) may not be complied with where access to a court is dependent on the exercise of discretion by a third party, rather than an automatic entitlement … Where a person lacks the capacity to instruct lawyers directly, the safeguards required may include empowering or even requiring some other person to act on that person’s behalf”.
My amendments therefore remove best interests from the criteria for appointment of a representative, as this should play no role in determining whether people are able to exercise their rights of challenge. Will the Minister explain the basis on which he believes that Part 5 of the Bill as drafted is fully compliant with this ruling and with ECHR Article 5?
I am also concerned about the potential conflict of interest if those responsible for arranging and providing care, such as care home managers, also act as gatekeepers to the person’s ability to exercise their right of appeal through best-interest assessments. There should be a clear route for the cared-for person to be able to appeal and to get the support that they need to do this. We know that access to justice is already a serious problem under the current system. The appeal rate is below 1% and cases such as that of Steven Neary and others show how hard it is for families and detained people to challenge public bodies where they object to the arrangements. I understand that the Government estimate that the new arrangements will reduce the appeal rate even further to 0.5%.
My Amendments 76 and 77 recognise the considerable responsibilities being placed on an appropriate person. In some circumstances, an appropriate person such as a family member who knows the person may well be best placed to assist the cared-for person, but may need some assistance. Making sure that an IMCA is involved in these cases would enable them to fulfil this role with support.
Nothing in the Bill details the functions that the IMCA will perform. It would help the Committee if we understood why this has not been addressed. The Law Commission’s draft Bill provided powers to strengthen regulation provision—Section 36 of the Mental Capacity Act—around how an IMCA is to discharge the functions of representing or supporting, including challenging decisions and facilitating a person’s involvement in relevant decisions. The experience of DoLS over the last nine years has shown us the need for clarity on when the representative—an IMCA or lay person—can or needs to challenge the authorisation.
My Amendment 79 recognises this and reinserts regulation-making powers into the Bill, extending it in the case of an IMCA appointed under the LPS to make provision as to how that advocate is to support the cared-for person, and where relevant the appropriate person, in exercising the right both to make an application to court and to request a review. This provision is necessary to secure a person’s rights under Article 5(4).
The Bill recognises that the role that the appropriate person undertakes provides a vital safeguard for the cared-for person for the purposes of the Article 5 of the ECHR, but the Bill fails to place a duty on the responsible body to keep under review whether the appropriate person is undertaking their functions. This is an important safeguard under the DoLS, where the relevant person’s representative role—essentially an identical role to the appropriate person—has a duty to maintain contact with the cared-for person. My Amendment 80 places a duty on the responsible body to keep under review whether the appropriate person is undertaking their functions and, if they can no longer fulfil them, to appoint another appropriate person or IMCA at that point.
The Minister has given reassurances, a number of times, that issues within the Bill will be addressed through the code of practice. The requirement to act needs to be in the Bill. How it is done and implemented could be set out in the code of practice. I hope that the Minister will accept that these amendments address serious and fundamental issues that need to be resolved within the Bill.
My Lords, I shall speak to my Amendment 78, but I should like to say a word in support for the amendments spoken to by the noble Baroness, Lady Hollins, to which I have added my name. These amendments concern the arrangements for the appointment of independent mental capacity advocates and they sensibly seek to ensure that an IMCA must be appointed if the appropriate person would have substantial difficulty helping the cared-for person to understand their rights, involving them in decisions and assisting them to exercise rights of challenge if they wish to do so without the support of an IMCA. I want to make it clear that relevant rights include the right to make an application to the court and the right to request a review of the arrangements. The responsible body must ensure that cases are referred to the court when a cared-for person’s right to a court review is engaged.
The concern is that at the moment, referral to advocacy is controlled by the relevant person, who is the responsible body or the care home manager. An advocate must be appointed if the person has capacity and requests an advocate, which is likely to be very rare, or the person lacks capacity and the relevant person is satisfied that being represented and supported by an IMCA would be in the person’s best interests. The problem, which we have now debated a number of times, is that the right to advocacy seems to be more limited than under DoLS, and it is at the discretion of the relevant person not to refer if it is not considered to be in the best interests. As has been commented on, there are only three references to best interests in the entire Bill, and two are used at the discretion of the care home manager or the responsible body to actually limit the right to an IMCA. We have to build in some more safeguards, including referral to the Court of Protection. The Joint Committee on Human Rights, which looked at the original Law Commission work, said that the responsible body should be under a clear statutory duty to refer cases where others fail to do so.
I was interested to receive over the weekend an email from the carers for HL in HL v UK ECHR 2004, otherwise known as the Bournewood case. They have always been critical when they observe bad practice and the failure to uphold a person’s rights. They say that reading the Mental Capacity (Amendment) Bill and following its passage through the parliamentary process so far has been depressing and leaves them feeling extremely frustrated and angry that the work they started in 1997 and the protections for the person that came about from that work are now being thrown away by this Bill. The lack of any of the protections they argued for individually and collectively, which at least had a fair hearing when they gave oral evidence to the JCHR and, they believe, were mostly reflected in its recent paper, appear to have been completely ignored, as has most of what the JCHR had to say. They say that anything less than the JCHR recommendations, along with nearly all of the proposals from the Law Commission, would be a reduction in the value of a person’s individual rights and against the concept of the MCA and even of the existing DoLS.
Interestingly, their acid test is this: if HL against Bournewood happened today under these proposals, would he be any better protected than in 1997 or under DoLS? They say that given the attitude of the professional employed by the hospital managing authority at the time, the Mental Capacity (Amendment) Bill places more control in the hands of those very professionals and shows less consideration of HL and those who were trying to get him out. In its current form, it is a monumental failure. I know that the Minister thinks that this is an exaggeration, but coming from the carers of HL, it suggests that there are real and genuine concerns about where the Government are going. My fear, as I said last week, is that essentially we are seeing a streamlining of the bureaucratic process and many of the safeguards are being reduced. That is why access to the Court of Protection is so important.
My Lords, I have tabled one amendment in this group, Amendment 75. I do not wish to rehearse the arguments we had on the previous group but I want to put one question to the Minister. Why in paragraphs 36 and 37 do we suddenly see the term “relevant person” being introduced? It is quite confusing and I shall need to go back and look at Hansard. I do not want to make a wrong accusation, but I think there is confusion about the terms “relevant person” and “appropriate person”, when in fact they are two completely different things. My understanding is that a “relevant person” is either the responsible body or a care home manager, so why do we not talk about that? If that is what is meant, let us be up-front about it.
Amendment 75 asks why the appropriate person as we know them under the Mental Capacity Act has to have capacity to consent to being supported by an IMCA if the purpose is not just to put another hurdle in the way to make sure that these people—let us bear in mind that they do not have a right to be given information under this Bill—have to make a request of the care manager or the care home manager. The noble Baroness, Lady Thornton, is right to say that the Minister has talked about care home managers and care managers; they are different, but all of them have a potential vested interest in making sure that someone does not have access to an IMCA. That, I think, would be a gross dereliction.
My Lords, these amendments go some way to ensuring that a cared-for person is not left without an independent mental capacity advocate or the support of an appropriate person. Much of the Bill as it stands represents what I think is a real assault on human rights. For heaven’s sake, we should be listening to the contributions of the noble Baronesses, Lady Hollins, Lady Barker and Lady Finlay, and that of my noble friend Lord Hunt. He has shared with me the email from the carers of HL and it is very powerful. My father was a miner and he would have said, “This is the experience from the coalface”. We can take this as an important contribution to understanding the difficulties that families face when they have to deal with the issues we are discussing.
Amendment 66 would give a local authority discretion to appoint an appropriate person or an independent mental capacity advocate without notification from a care home. Mencap and others have argued most powerfully that this amendment would minimise the risk of conflict of interest. That is important, as we have seen in other debates. It would mean that a care home arrangement could be more easily challenged and subject to scrutiny. Is not challenging and scrutinising what we do every day in this House? We challenge and scrutinise legislation brought forward by the Government; that is our role. Why would we deny that opportunity to the vulnerable people we are talking about in this Bill?
As it stands, the process for deciding whether to appoint an appropriate person or advocate requires a series of capacity assessments and best interest decisions made by the responsible body or the care home manager, even though both convention and domestic law have made it clear that there is no place for best interests in Article 5 appeal rights. Unless we effect change, this Bill will pass into law and we will see a cared-for person without the appropriate support of either an independent mental capacity advocate or an appropriate person—and that at a most crucial time in their life. That cannot be right. Amendments 76 and 77 are important if we are to ensure that the appropriate person gets the support they need for the role they have undertaken. We have had several long and important debates during the passage of the Bill. These amendments are reasonable and surely the Government must now start to listen.
I thank all noble Lords who have put their names to these amendments and given us the opportunity to carry on what has been a very good discussion so far about the important role of IMCAs and, indeed, appropriate persons as well. I shall deal first with Amendments 65, 66, 67, 69, 70 and 76 as they relate to the circumstances under which a person can request an IMCA and under which an IMCA can be appointed.
As I said in the previous debate, it is our intention not to have any reduction in advocacy or support as a consequence of the Bill. Indeed, it is our position that a responsible body should be able to appoint an IMCA if there is a request by a cared-for person or family member and either a care home manger has not provided notification or the responsible body disagrees with the notification given. As I also said then, I recognise concerns that the circumstances under which an IMCA can be appointed would be narrowed as a consequence of the Bill, which is not something we want to happen. I do not want to rehearse the entire debate we had last time other than to say that it was a good one. I have assured noble Lords about what I want to take away from that, which is to consider the appropriate way in which we can go forward with the role of the care home manager while making sure that all concerns about restrictions to advocacy and so on are adequately put to bed.
I want to make a point on Amendment 75, which falls into this set of amendments, about why the term “relevant person” is used. I am not quite sure why, specifically; rather, I have an idea, but I do not want to get it wrong. It would be safer for me to write to the noble Baroness, Lady Barker, about why that phrase is used and circulate it to noble Lords. Certainly, this is already a complex piece of legislation with lots of terms and jargon; for goodness’ sake, let us not increase that, if at all possible.
I want to take up the challenge from the noble Baroness, Lady Barker, on rights to information. During the previous debate, I tried to make it clear that we will set out the right to information but rights to information—not rights to request it—have been strengthened by a variety of legislation, some of which has nothing to do with the care of people lacking capacity. I also said last time that we are reviewing the Bill to see if it needs to be revised to achieve the outcome that the noble Baroness wants. I know that she is concerned about this, but work is under way to try to resolve this issue.
Moving on, we have not previously discussed the term “appropriate person”, which relates to Amendments 73, 74, 77 and 80. This is a good opportunity to speak about the important role of the appropriate person in the new model. As noble Lords know, under the DoLS system the relevant person representative—we are getting into difficulties of language—can be a family member, a paid role or even an advocate. That can unnecessarily give rights to two separate advocates. There has been confusion about the purpose of the RPR and how it differs to advocacy. Our intention is that the appropriate person role will be clearer, not least because it is a familiar part of the Care Act, where the appropriate person facilitates the person’s involvement in the care process.
Obviously, that person provides a vital safeguard for the cared-for person. They are appointed to represent and support the cared-for person, ensuring that the person’s rights are protected and that the person is fully involved in decisions. As I said, that is already established under the Care Act for the purposes of caring. The role of appropriate person can be fulfilled by a family member, someone close to the cared-for person, someone with lasting power of attorney or a volunteer. I know from previous discussions how keen noble Lords are to make sure that the voice of the person is central to discussions about their care and the deprivation of their liberty. Clearly, the appropriate person has an essential role here.
The noble Baroness, Lady Hollins, asked specifically about the question of a right to act. It is all very well appointing somebody—they also have to be willing to be appointed—but when appointing an appropriate person or recognising one, the responsible body has to be confident that the appropriate person is prepared to act. Indeed, that is part of their appropriateness. Otherwise, an IMCA should be appointed. That satisfies the noble Baroness’s question at the beginning about an appropriate person being appointed, but not about what happens if they lapse or the process by which they, or their appropriateness, would be reviewed. As it stands, I will need to reflect on that further to explain it to her. The process may well happen through the regular reviews, but I need to take that question away and think about how we provide reassurance that the appropriate person is in a position to act and wants to do so. Clearly, if an appropriate person, not an IMCA, was appointed but not prepared to act, the cared-for person would lapse into a situation where they did not have somebody in their corner, which we are all trying to avoid.
Amendment 78, tabled by the noble Lord, Lord Hunt, relates to concerns that if a person is not represented and supported by an IMCA, they could be in a position where they object to authorisation but are not able to bring a challenge to the Court of Protection. It is worth saying that representation by an IMCA is one route to take a challenge to the Court of Protection, but it is not the only one. Cared-for persons can bring challenges themselves, however rare that may be, as can an appropriate person, family members and others. Ultimately, the responsible body would be responsible for ensuring that in such cases, the challenge is brought before the Court of Protection. That is already required by the Human Rights Act and has been confirmed by case law. Again, I would be happy to write to noble Lords to explain the underpinning of our view that this is already protected in law and jurisprudence.
Amendment 79, tabled by the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt, would give the Secretary of State and Welsh Ministers regulation-making powers regarding the function of IMCAs. Such powers already exist in Section 36 of the Mental Capacity Act, so we do not think that there is a need for subsequent or additional ones.
This has been a long, wide-ranging group of amendments, but it has dealt with the crucial issue of how we support people who lack capacity to make sure that they are properly represented as their situation and care is considered under the liberty protection safeguards scheme. I hope that I have been able to reassure noble Lords either that their concerns are being dealt with in the Bill as it stands or that I recognise that there are other substantive issues that we need to take away and deal with. We need to make sure that there is no withdrawal or reduction in the amount of advocacy and support that is available for people, which, as I stated at the beginning of the last group, is not the intention of this Bill.
I hope, on that basis, that the noble Lord, Lord Touhig, will recognise that the Government intend to work together to make this Bill better. I think we are making some progress in that endeavour, and I am looking forward to working with him and all noble Lords to improve it further. On that basis, I hope that noble Lords will feel able not to press their amendments.
My Lords, this has been a fascinating debate. I listened very carefully to the speech of my noble friend Lady Hollins. Her experience shone through, and there was much wisdom in her comments. I worry that perhaps in this and the previous group of amendments we have not adequately focused on the need to support the cared-for person as much as possible in making their own decisions and in supporting them. I can envisage a situation where the appropriate person has limitations for whatever reason and it would seem very sensible that they were then able to request an IMCA be appointed.
However, just on the other side of it, we must not forget the enormous burden out there already. Only last week I spoke with a brain injury case manager, Dr Mark Holloway, who works with a care home. He said he is currently managing 13 cases of clients with acquired brain injury who are awaiting DoLS approval from the local authority. Despite the efforts of the care home staff and their solicitors, they have not been able to get this through. We must not lose sight of the fact that the current system is, quite frankly, completely failing. He was saying that they have worked very hard to make sure that it is the least restrictive option, but he is concerned at the lack of scrutiny of their decision-making. In their efforts to acquire DoLS authorisations, the care home staff have sought and paid for expert legal advice on multiple occasions to support them constructing clear and evidenced capacity assessments. He stresses the difficulty of assessing capacity in acquired brain injury and the need to assess function: not just what is said but how the person is actually functioning—what is done and the complexity of it.
I hope that we will return to the issues behind this set of amendments, because in a way I do not feel that we have done justice to the subject tonight. It does need a bit more discussion outside this Chamber. I beg leave to withdraw my amendment.
Amendment 65 withdrawn.
Amendments 66 to 80 not moved.
Schedule 1 agreed.
Clause 2: Deprivation of liberty: authorisation of steps necessary for life-sustaining treatment or vital act
Amendments 81 to 82 not moved.
Debate on whether Clause 2 should stand part of the Bill.
My goodness, we are back in the Bill, out of the appendix. I am formally moving that Clause 2 do not stand part. However, I will address my remarks to the two amendments in my name in this group. They concern advance consent. This amendment comes from Clause 6 of the Law Commission’s draft Bill, and inserts two new sections into the Mental Capacity Act: advance consent to certain arrangements, and the effects of advance consent. These sections provide for a person to consent in advance to specific arrangements to enable care and treatment that would otherwise amount to a deprivation of liberty.
To give advance consent, the person must have the capacity to consent to specified arrangements being put in place at a later time that otherwise would be considered deprivation of liberty. They must also clearly articulate the arrangement to which they are consenting. Provisions in this amendment relating to advance consent are similar to those relating to advance decisions to refuse treatment which appear in Sections 24 to 26 of the Mental Capacity Act.
I am very grateful to the noble Baroness, Lady Murphy, and my noble friends Lord Touhig and Lord Hunt for supporting this amendment, and I think it is important that we probe this particular issue. On previous Committee days and in discussions with stakeholders, one of the recurring sentiments was that the well-being of the cared-for person should be at the front of this legislation, and it seems that advance consent is definitely a crucial issue in putting the cared-for person at the heart.
Amendment 85 concerns unlawful deprivation of liberty. Again, this amendment comes from Clause 7 of the Law Commission’s draft Bill and would insert two new sections into the Mental Capacity Act on unlawful deprivation of liberty and on proceedings and remedies. These sections would provide a route for an individual deprived of their liberty in a private care home or hospital to seek redress where proper authorisation under this Bill and the Mental Health Act, or an order of court, has not been obtained. This amendment seeks to define the private care provider. Again, we have been concerned about how the Bill will be applied to those in a private care setting or hospital. It seeks to probe how they should be affected by the Bill.
My Lords, Amendment 84, in the name of the noble Baroness, Lady Thornton, is possibly one of the most important amendments we have tabled to the Bill. It has become so much more important over the last 20 or 30 years to try to encourage people to make decisions in advance about what should happen to them and to encourage them to think about what will happen in the event of things going wrong—to think about things such as lasting powers of attorney and advance decisions on mental health services. I understand that Sir Simon Wessely will recommend some changes that are very similar to this to go into the new mental health legislation. It would be good, bearing in mind our previous discussions, if we could feel confident that the same sort of approach was being taken in this Bill.
Advance decision-making in legislation has proved quite difficult to implement, because you have to have a widespread campaign of understanding how people can make these decisions. It also has to have the individual making the decision accept that things will happen to them that they are not expecting, which is sometimes very difficult. That is why it so difficult to get people to sign up to insurance against long-term care; they simply do not believe that it will ever happen to them. It is very difficult to get these bits of legislation implemented and widespread, but we have to start somewhere. This is such an important piece to try to get into a Bill, to start people thinking about their future and what is acceptable. This would be a very important thing for the Bill.
I would also like to see Amendment 85 implemented. It is something that the Law Commission had in originally. I am not quite sure why it came out. It sort of just disappeared in the transcription somewhere. It is an important safeguard. We tend to forget all those Victorian cases a couple of hundred years ago when people were quite regularly held in circumstances against their wishes and unlawfully deprived of their liberty. It is as well to be reminded that it can, and probably does, still happen quite frequently. To have something on the statute book would be helpful, so I support the two amendments.
My Lords, I am afraid I will take a different view. Amendment 84 is potentially incredibly dangerous in the context of the Bill. I can understand why people with a mental health disorder who know exactly what is likely to happen to them when they relapse and know what treatment they do and do not want can make an informed decision based on their previous experience of their illness and episodes. Here, however, we are asking people to provide advance consent to their liberty being deprived in a situation that they do not know about and have not experienced. The evidence from advance care planning—I have a recent paper from Ontario—showed that people’s knowledge was very poor. There were decision conflicts and when they were re-interviewed later they had re-evaluated their decisions in the light of further information and as things had moved forwards.
The problem is that the cared-for person’s experience of care is based on human interaction. They cannot predict who will be the carer at some point in the future, nor how that interpersonal chemistry will work. I am concerned that there is a real danger that someone could be locked in to having to live with what they said previously. There is a lot of evidence from the world of care planning that people do change their preferences. Indeed, as an illness progresses, they may change them very radically.
I also have a worry that the concept of advance consent could, inadvertently, build in the danger of a disincentive to healthcare or social care professionals to rethink what is happening to someone because the person consented in advance. Yet rehabilitation efforts can greatly alter outcomes and, if they have consented in advance, there may be no incentive to really look at ways to maximise their capacity and support them in more independent ways of living.
We are on the cusp of new technology coming in to help people who need to have some kind of restrictions. I recently went to a fascinating presentation at the Academy of Medical Sciences about using the equivalent of GPS devices to help people who are inclined to wander and to be able to set off an alarm. I think the way things will move forwards is far greater than we can ever envisage and I have a concern that, if we put advance consent into this, we may inadvertently lead to people being far more restricted and far less empowered than all of our arguments so far have tried to encourage.
My Lords, this is a fascinating discussion which will be familiar to the noble Lords who took part in previous legislation on mental capacity and on mental health. The thing I am most heartened by is the prediction made by the noble Baroness, Lady Murphy, of what Sir Simon Wessely might do in his review of the Mental Health Act. Way back when the law was reviewed in 2005—I think it was then but I am hopeless with dates—I was one of a number of Peers who argued the case that people with fluctuating mental health conditions should be able to say, at a point when they had capacity, “At some future point, if I have an episode, it is likely that I may refuse treatment but, right at the moment, now that I am well, I wish to say that I want you to ignore that”. That was resolutely turned down by the small bunch of forensic psychiatrists who were behind that change to legislation. So I am glad that the world of mental health is moving to catch up with other parts of medicine, where greater involvement of patients and exercise of patient choice is something to be encouraged and not dismissed.
Many of the arguments that the noble Baroness, Lady Finlay, put forward were arguments which were put up against the original proposals of the Mental Capacity Act. I believe that, were this to be in legislation, we should be able to put a lot of safeguards around it. At this stage, I encourage the Minister to take these proposals and put them into the future discussions that will take place on the Bill.
I do not want to prolong this too much but I will ask the noble Baroness: has she in any way lost confidence in the proposal that she put forward when the Mental Capacity Act was a Bill before us? It was for an advance statement of wishes, which has, when properly used, been a very powerful tool to make sure that somebody is listened to. My concern has been that our discussion to date has been about the wishes and feelings of the person as previously expressed. From the way she was talking, I am concerned that it sounds as if she might have lost confidence in the ability of that—because, as I have said, I have a real concern that tying somebody legally to enforcing something which was said in advance could potentially be really dangerous.
No, I have not lost confidence in that; I simply wish to undertake further discussion, given that—I say it again—it looks entirely likely that mental health legislation may be changing. I think, in light of that, that it is a wise discussion to have.
May I just add that I think it is important to read all the amendments of the noble Baroness, Lady Thornton? She provides for any opportunity, any chance, that the individual may indicate that they have changed their mind, at which point those things come to an end, essentially. They have to be quite specific that if there is any doubt in somebody’s mind that this is no longer something that can be continued, that there is anxiety about them being implemented, then it comes to an end. So I think those things can be taken care of.
My Lords, these amendments are examples of the long and complicated amendments which I think could end up going wrong, because they are trying to cover quite a lot, which will probably become gold-plated and give rather too much weight to the legal profession. I do not think that what Sir Simon Wessely planned to do is relevant here, because it is not really about mental illness but about dementia. If that is the case, people may not be in a position to change their mind at a later date, so these amendments are very complicated and probably rather unwise.
I am grateful to the noble Baroness, Lady Thornton, for introducing this clause stand part debate. We had a chat earlier, so I shall not formally respond to her but instead deal with the amendments as laid, if that is all right with everybody. Clearly, these are very important issues that need to be dealt with properly.
Amendment 84 would allow individuals to provide advance consent to arrangements enabling care or treatment that would otherwise amount to a deprivation of liberty. As noble Baronesses have commented, the Law Commission recommended that provision should be made in the Bill to allow this. This would mean saying that cared-for people entering certain settings, such as hospitals and end-of-life care, where the arrangements are predictable and time limited, would not be required to undergo additional assessments if they needed to be deprived of their liberty. In the Government’s response to the Law Commission, we agreed that people should have choice and control over future decisions being made on their behalf, but we said that we needed to look at the detail of this specific proposal. I understand that there is enthusiasm among some noble Lords for such a recommendation, particularly, as has been said, as a way of alleviating unnecessary assessments for those in palliative and end-of-life care.
On palliative care, before I get on to more general concerns, I think it is important to note that the Government have issued some guidance about consent in the context of palliative care in the last few weeks of life. I realise that this talks only about one part of the time period that we might be talking about. The guidance says that if an individual has capacity to consent to arrangements for their care at the time of their admission, or at a time before losing capacity, and does consent, this consent would cover the period until their death, hence there is no deprivation of liberty. However, the guidance is also clear that this consent would no longer be valid if significant extra restrictions were put in place, after this point, to which the person had not consented. So there is a situation that pertains to people right at the end of life and provides some opportunity for challenge if restrictions change.
If we extend that time period out, not just to weeks but to months and years, it has been brought to light in this debate that, while there is a desire to make sure that a person’s advance consent is taken seriously and given legal force, concerns have also been raised, not least by the noble Baroness, Lady Finlay, about extending the application in such a way that it could actually deprive people of their protections and human rights. These are clearly concerns that we need to take seriously.
Concerns have also been expressed to the department, in engagement with stakeholders, that the inclusion in statute law of advance consent to being deprived of liberty might imply that there is an expectation that people should have an advance statement of wishes in place, and that people may be pressured into making an advance statement. I take the point made by the noble Baroness, Lady Murphy, that in some ways planning for the future may be a good thing but, equally, we do not want to force people to plan for the future when their desire is not to. We protect the right of people to make bad decisions; that is an important part of a person having a sense of agency and autonomy. Concerns have been expressed that that would be put in danger and people would feel pressured to do something that they might not wish to do.
Clearly, the Law Commission made this recommendation with highly laudable aims. However, we have concerns and are not yet convinced of the merits of the amendment. We have tried to deal with some of the issues around integrating planning through the creation of a system based on the production of a care plan. We have talked about the inclusion of a statement of wishes. I would like to know more about the proposal of the noble Baroness, Lady Barker, about advance statements of wishes. I would like to follow that up and understand it a bit better. The process we are envisaging would allow the inclusion of advance decisions to refuse treatment as part of future care planning. That is not affected by what we are discussing here but that would be allowed. We are not convinced of the merits of the amendment—indeed, we have some concerns about the implications of it—but I would be keen to understand a bit more about previous discussions of this topic and whether there are other ways to provide that sense of agency for the person who will be cared for without producing undue pressure on them or legal force in a way that would go against their interests and, in legal terms, their human rights.
Amendment 85 would create a new civil court remedy against some private care providers, including non-NHS hospitals and private care homes, if they have deprived someone of their liberty unlawfully. Again, this provision was proposed by the Law Commission. However, we do not believe that a new legal remedy is required. There is already an ability to seek damages under the Human Rights Act on the basis of a breach of Article 5 and usually Article 8. This is available in private cases, where a private care provider is depriving a self-funder of their liberty unlawfully. A remedy could be sought against the public authority responsible for the deprivation. Obviously, we need to hold private care providers to the same standards that we hold public care providers to. There are already a number of mechanisms that allow for this, and the law provides for them. There is the criminal offence of false imprisonment, as well as the existing law of false imprisonment for civil claims. So people can already bring legal action against private care providers.
On top of this, the Care Quality Commission in England and the Care Inspectorate Wales would also ensure compliance with the liberty protection safeguards. Clearly, they have a range of enforcement actions available to them that apply to the public and private sector alike. Furthermore, as commissioners, local authorities will—and do—have a role in ensuring that private care providers fulfil their legal duties. The Government believe that sufficient levers are already in place and that the creation of an additional civil route could increase care providers’ insurance costs at a time when, as we all know, we are working hard to make sure that there is funding in the system to provide adequate and good-quality social care to everybody who needs it.
I understand and agree with the desire to hold private providers to the same standards that we hold public providers to, but we believe there are existing remedies within the system and there is no need to require or implement new ones. On that basis, I hope the noble Baroness will not move her amendments.
I thank the Minister for that detailed response and the noble Baronesses, Lady Murphy and Lady Barker, for their support. I did not intend to alarm the noble Baroness, Lady Finlay. I thought we might be veering into discussions the House has had on many occasions about advance consent for various things. I do not think we want to go there, but I was beginning to get the feeling of “Doctor knows best” when we were having that discussion.
I am not certain that the care plan works. The Law Commission had very good reasons for putting what are now Amendments 84 and 85 into the draft Bill that it brought forward, which were to do with the fact not that its people are lawyers but that it had consulted very widely with stakeholders and people involved in the care system. These are the conclusions that it came to, so I will read carefully what the Minister has said about this. Maybe we can include these amendments in our discussions and decide whether we need to pursue them further at the next stage of the Bill.
Clause 2 agreed.
83: After Clause 2, insert the following new Clause—
“Restriction on power of attorneys and deputies
After section 29 of the Mental Capacity Act 2005 insert—“29A Deprivation of libertyNothing in this Act authorises a donee of a lasting power of attorney or a deputy to consent on behalf of a person to arrangements which give rise to a deprivation of that person’s liberty.””
Amendment 83 concerns the power of attorney and restrictions on it. This amendment comes from Clause 3 of the Law Commission’s draft Bill. I said right from the outset that in Committee we would test the Bill against those issues that the Law Commission had decided to put into the draft Bill and ask why they had been dropped. Many of them are absolutely at the heart of the safeguards that are necessary for vulnerable and cared-for people. The amendment would insert a new section into the Mental Capacity Act, which expressly prevents,
“a donee of a lasting power of attorney or a deputy”,
appointed by the Court of Protection from consenting on a person’s behalf,
“to arrangements which give rise to a deprivation of … liberty”.
This is the position in the current law but this statement makes it explicit. I beg to move.
My Lords, I have three amendments in this group, which are there simply because the topic is lasting power of attorney. I do not have an argument with Amendment 83 at all. It is absolutely right that the person’s best interests must be considered and that someone cannot just give consent on their behalf.
The amendments that I have tabled are designed to solve three current problems that we have with lasting powers of attorney. The first, Amendment 83ZA, relates to the identity documentation that somebody must produce to show that they are the donee of a lasting power of attorney. These are bulky papers which have to be registered and stamped by the Office of the Public Guardian, and then produced. For many people who are donees, those papers may be at their home; that may be a long way away from wherever the cared-for person—the donor—is. When that donor has lost capacity, the donee can either carry the sheaf of papers around with them all the time or just hope to be going via their home filing cabinet to pick them up before they go to see the person.
I hope that we might move toward something a bit more modern in electronic identification—something like the driving licence, which is a small card on which you can have a registration number. You could also have a picture of the donor as well as one of the donee, which would allow a second layer of recognition. That would also, I hope, focus the mind on the fact that the donor must be at the centre of all the decision-making. Its validity could easily be checked against a number, so that if it had been updated—and for some reason the previous form had not been returned—a simple check with the Office of the Public Guardian might verify its status.
Amendment 87G is designed to solve another problem that has been arising: that a person may appoint several people to hold their lasting power of attorney in the event that they lose capacity. However, as time goes on it has happened that they lose confidence in one of those people, for whatever reason. Maybe there is a dispute in the family or they feel that the person is no longer able to take a decision in their best interest, for whatever reason, and they want to revoke having that person as a donee. The problem is that it is quite a complicated process and they have to go back to square one. This amendment is designed to make it much easier for them to state that they no longer want one person listed but they want the others to remain. I have discussed this with the Public Guardian, who sees it as a problem at the moment that the revocation of a donee is difficult.
Amendment 87E arises out of a problem which is also beginning to occur. I should declare an interest here because it is a problem that is close to my heart: a member of my family has severely impaired capacity and her spouse, who is the only person who can act on her behalf, is becoming older. There is concern about what happens if he cannot act on her behalf and take decisions. At the moment, it is only when the donee loses capacity that others can go to the Court of Protection for a court-appointed deputy. The aim of this amendment is to allow the donee to make some provision so that, for the event of their losing capacity—either temporarily if they have a fall with a fracture, a head injury or have pneumonia, or permanently so they become frail and possibly demented—they can make provision ahead of time in the cold light of day. The alternative is the family, with one family member who lacks capacity and the person who was taking care of their affairs now acutely ill and in crisis, having to go to the Court of Protection to get a court-appointed deputy, which can take some time.
I have discussed this with the Court of Protection, which wants to be helpful in moving things forward, and with Alan Eccles, the Public Guardian, who is extremely sympathetic to the problem and can see that people who took out a lasting power of attorney, or prior to that an enduring power of attorney, and never expected to live as long as they have could now find that the donee is at greater risk of becoming frail than they anticipated. Donors are outliving their prognosis not just by months, but by years and possibly decades.
It strikes me that Amendment 87E would apply not only to this Bill but to other Acts. Does it fit here? I understand the principle of what my noble friend is saying.
It could have wide-reaching consequences, but a lot of people who have lost capacity and are in a state of high dependency are already in nursing homes, so they are already being cared for in the system and may be subject to deprivation of liberty. Some of them have long-term continuing funding for their care, but they been there for a long time and the donee, who is managing all their affairs and advocating on their behalf, is very concerned about their welfare in the event of them failing.
I am grateful to the noble Baronesses and the noble Lord, Lord Hunt, for tabling amendments in this group. I am very aware of the complexity of this issue. For a lay person such as me, some of the terminology can be confusing. I will do my level best to be as clear as humanly possible, but if I fail in that endeavour I will write to noble Lords and explain better what I am attempting to explain now.
The effect of Amendment 83, as the noble Baroness, Lady Thornton, said, would be to confirm in law that a donee of a lasting power of attorney or a deputy appointed by the Court of Protection was unable to consent on a person’s behalf to a deprivation of liberty. If they could provide such consent, the person would not be considered to be deprived of their liberty and no safeguards would need to be provided.
The Law Commission report stated that it was already the position in law that a donee or deputy could not consent to a deprivation of liberty. We confirmed in our response to the Law Commission’s report that the Government agreed with its view on the current legal position, and the Bill does not change the current situation. While the Bill creates a duty to consult with any donee of the lasting power of attorney or a deputy, it does not enable a donee or deputy to consent to the deprivation of liberty on behalf of the cared-for person. In other words, under this Bill the cared-for person would still be deprived of their liberty in those circumstances and would still need to be provided with safeguards to satisfy Article 5, which is of course the whole purpose of DoLS and liberty protection safeguards. In that sense the amendment, with which we agree, would serve only to duplicate existing legislation and is not necessary. I hope I have provided an adequate explanation to noble Lords, but obviously I am willing to set out in more detail exactly why we believe the current situation is not changed by the Bill as it stands.
I turn to the amendments in the name of the noble Baroness, Lady Finlay. Amendment 83ZA would require the Office of the Public Guardian to provide documentation, which may be in electronic form, to identify the donor and donee or donees of a lasting power of attorney and to recall the documentation if the donee’s power is revoked. As the noble Baroness pointed out, this is designed to make it easier for attorneys to provide proof of the existence of a registered LPA. It is right that there ought to be a robust system of proving that there is a valid power. My understanding is that the Ministry of Justice and the Office of the Public Guardian are actively considering how to offer a digital means of providing evidence of a valid LPA, and we expect to bring forward proposals in due course. I am happy to pursue that further with colleagues in that department and that office to understand greater details of their plans and to share those with noble Lords if they are forthcoming, which I hope that they will be.
Amendment 87E, in the name of the noble Baroness, Lady Finlay, would allow the donee of a lasting power of attorney to nominate someone to replace them if they were no longer able to fulfil their duties—I think that means if the lasting power of attorney was no longer able to fulfil their duties—while Amendment 87G would allow a replacement attorney to be nominated by the donor at the time of registering the LPA to take over the power if the donor decides to remove the power from the donee.
I do not need to reiterate to noble Lords just how critical it is to get the law and the rules in this area right; as the noble Baroness, Lady Watkins, pointed out, the rules around this would not apply only to this Bill. It is worth pointing out that there is provision in the original Mental Capacity Act to allow a person making a lasting power of attorney to nominate a replacement in the event that their attorney is unable to continue, but I think the point that the noble Baroness, Lady Finlay, was getting at is that there is a slight chicken and egg situation here: at the point where they no longer have capacity but the person whom they have previously appointed is no longer able to fulfil their role or the cared-for person no longer wants them to do so, they cannot go back in a time machine and appoint someone else—in other words, they cannot know what they do not know. I have just made things really clear by getting all Donald Rumsfeld about it all.
Having said all that, I want to consider if there is a way of unlocking that paradox, but clearly the implications of that would go well beyond the remit of what we are discussing here. I do not want to make any promises that it is not in my power to keep. I would appreciate the opportunity to explore this further so that we can consider how to give the donor more opportunities to have a sense of choice and agency as they think ahead to the future. I would have thought that we must be able to provide for that without creating extra complications. I look forward to taking that up with the noble Baroness and other noble Lords who are interested in the topic. On that basis, I hope the noble Baroness will feel able to withdraw her amendment.
I thank the Minister for that detailed answer. As usual, the noble Baroness, Lady Finlay, has raised some interesting challenges. In my family, someone who had enduring power of attorney died at the point they were needed. We were in a ridiculous and complex situation—resolved by good will, but the law did not help us. This is therefore a serious matter.
I understood what the Minister said about the power of attorney, and I will read his response. It sounded to me as though it was probably reasonable, so I beg leave to withdraw the amendment.
Amendment 83 withdrawn.
Amendment 83ZA not moved.
Amendment 83A had been withdrawn from the Marshalled List.
Clause 3: Powers of the court to determine questions
83B: Clause 3, page 3, line 33, at end insert—
“21ZB Presumption of P giving evidence(1) This section applies where an authorisation under Schedule AA1—(a) has effect, or(b) is to have effect from a date specified under paragraph 22 of that Schedule.(2) P shall be presumed to give evidence in Court of Protection proceedings.(3) This presumption may be rebutted, having regard to P’s rights, including by evidence that P—(a) is not competent to give sworn evidence; or(b) does not wish to provide evidence (in whichever form) to the court.(4) Evidence from P shall be secured in any form that the court and the parties consider appropriate having regard to P’s circumstances and may include the following—(a) sworn evidence given orally in court;(b) unsworn evidence given orally in court;(c) unsworn evidence given outside of the court;(d) a written statement;(e) pre-recorded evidence.(5) The appropriate authority may make regulations outlining the measures that will be available to support P to give evidence in proceedings.”
The Minister will be familiar with this amendment because it stems from Inclusion London, which drafted it. I know that it has written to him about it. It is run and controlled by disabled people, is very concerned about the Bill and wants this issue discussed.
The amendment concerns ensuring the effective participation of P in the Court of Protection proceedings. It gives P the presumed right to give evidence and sets out a number of ways in which that might happen. The organisation has copied me in to a letter to the Minister. It writes that one of the key challenges to date has been securing P’s meaningful participation in Court of Protection proceedings, something acknowledged in the 2018 Joint Committee on Human Rights report, The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards. Participation is an important issue for a number of reasons, including that it is more likely to place the person at the centre of the decision-making process and may change the outcome of the case. Research suggests that P rarely participates in or gives evidence in proceedings. In the light of the Government’s emphasis on providing protection for people who may lack capacity, it is asking us to consider the amendment.
This seems a reasonable point, and I shall be interested to hear what the Minister has to say in response. I beg to move.
I will speak to Amendment 87C and apologise to the Committee for being unable to remain in the Chamber earlier—I had two commitments that I had to fulfil. I emphasise that it is a probing amendment; it will certainly need rewriting at Report if we bring something back. I thank Godfred Boahen of BASW, whose briefing was an enormous help in preparing my remarks.
Our aim is to stimulate a debate about the processes to deal with deprivation of liberty issues which arise in domestic settings. There is a case for enhancing the assessment processes in those situations. As it stands, the Bill makes no mention of people in domestic settings where deprivation of liberty is at issue. It is not clear—to me, anyway—what the Government have in mind and I hope that the Minister will be able to clarify the position. The Bill leaves vulnerable individuals in domestic settings where there is an issue of deprivation of liberty with no judicial protection, except through an appeal to the Court of Protection, a process which is onerous, costly, stressful and slow. That also leaves this group of people without access to a mental capacity professional in the event of an objection to the proposed care plan. The amendment assumes that, where a deprivation of liberty arises in a domestic setting, this would be considered, as now, under either the care planning or the safeguarding provisions of the Care Act 2014, but with two important reforms, which I will come to. Thus domestic settings would not come under the processes set out in the Bill.
Before referring to the proposed reforms, I need to clarify the two key processes involved under the Care Act, or the reforms would not make a lot of sense to anybody. First is the prospective model, as proposed by the Law Commission, when a deprivation of liberty is considered during care assessments and planning. The care planning processes apply here. During a Care Act assessment of needs, professionals will ascertain the likely impact of a care plan on the liberty of an individual, whom I will call P. The idea is that, in some cases, the state has prior knowledge that a deprivation of liberty will occur and has therefore taken the necessary steps to authorise it alongside establishing conditions to safeguard P’s human rights. This could be achieved through an amendment to the Care Act guidance, not a legislative change.
The great attraction of this approach, as the Law Commission recognised, is that the safeguards are implemented in a way that minimises intrusion into private and family life. The Law Commission argues that:
“In most cases arrangements could be authorised in an unobtrusive and straightforward manner through a care plan and without a perception of State intrusion into family matters”.
In domestic situations and with the involvement of professional local authority employees in organising and undertaking the care planning, only where the care plan is contrary to the wishes of P would the involvement of the mental capacity professional be warranted. At present, the Bill does not make it clear that the MCP would be brought into domestic settings in any circumstances. This is one of the two areas in the Bill that need clarification. I am impressed that the Law Commission thinks that this approach strikes an appropriate balance between the rights of the person to be protected, and the rights to private and family life under Article 8.
The second model for the deprivation of liberty in domestic settings is the retrospective model, where the safeguarding procedures under the Care Act 2014 come into play. Under Section 42(1) of that Act the safeguarding procedures apply to an adult who satisfies three conditions, which I do not need to go into. The safeguarding process involves P from the very beginning. There are certain crucial points about these processes: their desired outcomes should be considered; professionals have to balance P’s capacity against their best interests and the public interest; and the safeguarding provisions draw significantly on the best-interests principle of the Mental Capacity Act. If deprivation of liberty is an issue, then the Care Act safeguarding provisions and the Mental Capacity Act best-interests principle can be applied to generate a care plan which safeguards P’s interests while providing care and protection.
Within the safeguarding provisions an independent advocate is appointed when appropriate. What is currently lacking is access to a mental capacity professional in the event that P has concerns about or objections to the care plan. An amendment bringing the MCP into safeguarding in domestic settings is needed to align people in such settings with those in others.
My last point relates to the requirement under the European Convention on Human Rights that if P is deprived of their liberty, they must have access to a court. I have already referred to the current arrangement for access to the Court of Protection as the only court route. I urge the Minister to consider seriously the possibility that mental health tribunals could be adapted to become mental health and capacity tribunals to include those in domestic settings where P is objecting to the care plan.
Mental health tribunals already consider whether and how their judgments and the conditions they impose on patients might amount to a deprivation of liberty. Additionally, they have experience of the issues involved in deprivation of liberty considerations in domestic settings. This would not be something outside their competence, and that is very important. It would be too radical to introduce something entirely different. Such tribunals are local and would be speedier, less costly and more accessible for families who are themselves often vulnerable. They are less imposing and therefore less stressful for those involved.
Consider the case brought to my attention recently of an 85 year-old woman looking after her 89 year-old husband, who had severe dementia. She felt she could only cope by keeping her husband in one room. The idea of taking that case to the Court of Protection just feels unreasonable. It certainly needs sorting out in some way, but not that way. In line with the estimated number of appeals to the tribunals, clearly, the number of tribunal members would need to increase. However, as well as having advantages for those involved, this reform would surely be less costly than the current Court of Protection process. I hope we can have a short but constructive debate today and that the Minister will meet us to discuss the best way forward. It might not be exactly what I have suggested, but we really need to think this through carefully. I beg to move.
My Lords, I support the amendment of my noble friend Lady Meacher, but I will sound a few words of caution. As I understand it, cases in domestic settings are not included under the current DoLS arrangements. However, there have been several cases where Cheshire West has been quoted in instances where domestic settings have been challenged—with, in my view, some ludicrous outcomes. These have put people who were doing their best by their relatives, as they saw it, in the invidious position that they could no longer continue to care.
I have a case that is similar to that of my noble friend Lady Meacher, where a man was looking after his elderly mother at home. She wandered on most nights, and he put some gates at the top of the stairs to stop her falling down the stairs. That allowed him to get a good night’s sleep and she did not go downstairs. It is a very difficult issue: there was the question of whether she could have gone over the gates and come to more harm. He was also told by the professional carer who was helping him—from a private care provider—that he could not do this because it was illegal. Under the legislation, it was now not possible for him to do that, nor could he put a lock that she could not undo on the outside door. He would have to accompany her if she wanted to go out and come back. The implication is quite clear: he actually gave up caring for her because, as he said, if he could not look after his mother in his own home, he was not going to be able to have a life that was possible for him to live. I have no doubt in my mind that that elderly woman would have given her last sixpence to stay at home being cared for under her son’s restrictions, rather than go into a care home with strangers. She would probably have had her liberty restricted anyway under some new procedures.
We have to come back to this numbers game, because we want a situation where it is only in cases involving people being treated inappropriately, with cruelty and thoughtlessness, where we want to expose something that is just unacceptable. When we are challenging arrangements that would, if they were for a person of a different age, for example a parent protecting a child—when we are putting in the same things because somebody is mentally incapacitated, it is quite wrong.
There are 2 million people in this country who lack mental capacity. I can speak with authority only on those who are elderly with dementia, but that is perhaps now about 900,000. Of those, 450,000 are in residential care. The rest are at home, mostly cared for by relatives, and sometimes by near neighbours, and so we should be very careful about intruding into arrangements which most people take for granted as being part of their right to assist an elderly relative. It is crucial that we recognise—if you like, it is part of the equalities of older people with mental health problems and dementia—that they should be treated with some respect and should not have some state interference to put in place arrangements which common sense tells you any good family would do.
We must therefore be very specific in view of the fact that these cases are rising, where private and public care providers are telling families what they cannot do. We must guard against this by making it clear in the Bill that it should not apply to domestic settings where normal arrangements are being put in place. We need the sort of arrangements that my noble friend Lady Meacher talked about for those few cases, but we have to restrict it to a few cases under very specific circumstances if we are going to have any domestic arrangements challenged in this way.
My Lords, I support the amendment in the name of my noble friend Lady Meacher and the comments that my noble friend Lady Murphy just made. She said that she can speak only for the 900,000 people in this country with dementia—but that is a high proportion. I want to share with noble Lords that everything she said I agree with, as part of a multidisciplinary team but also because over 20 years ago she was my external examiner for my PhD—and I passed. The subject was about supporting people with dementia in the community, so this is close to both our hearts.
I will add a little to this debate. I support the amendment for two reasons. First, at the very least we need to think again about the Bill’s application to individuals in domestic settings; and, secondly, we need to think carefully about how domestic care arrangements can be authorised under a liberty protection safeguard and oversight properly maintained over the period of care—which may be for many years, because I agree that things change over that period. One of the things that can happen is that carers who are very good when you first see them are at the end of their tether three years later and can no longer manage. That is why the Law Commission suggests that the LPS should be integrated into care planning arrangements—but that does require regular review.
It may be feasible to amend the Bill so that the LPS could apply with the safeguarding professions of the Care Act, as my noble friend Lady Meacher has already said. Certainly there is a need to ensure that those who lack capacity are safeguarded when they are being looked after in domestic settings, as, sadly, we know that in a very small minority of cases deprivation of liberty occurs through carers’ lack of knowledge of alternative methods to maintain safety, and in even rarer cases in fact becomes a form of abuse. However, the current Bill, if enacted with a zealous approach by professionals, could become a serious intrusion into families’ rights to provide individualised, possibly slightly idiosyncratic care for their relative, which may be fully consistent with how both parties wish to behave within the confines of their family unit and own home. I therefore hope that we will be able to work with the Minister, and the Bill team as appropriate, to improve the Bill to better balance the rights of people being cared for by relatives in their own home, without unwarranted intrusion into the way in which families support and care for relatives with limited mental capacity, while ensuring that deprivation of liberty is appropriate to safeguard the individual.
My Lords, I thank the noble Baroness, Lady Meacher, for tabling this amendment, which I support. I will keep my remarks very brief and make just two points.
The first point is about the spirit of the amendment. Clearly it aims to avoid broadening the scope of the legislation to apply to people who lack capacity and are living at home but who may need their liberty to be restrained. My comments relate to the 450,000 people mentioned by the noble Baroness, Lady Murphy: those for whom there may be no formal care plan in place. I want to consider how issues relating to safeguarding and deprivation of liberty would be identified; namely, how do we uphold the rights of vulnerable people in those situations?
If we think in practical terms, there are potentially two routes to safeguard those cared-for people: one is the Mental Capacity Act and the other is the Care Act. I strongly agree that the Care Act 2014 is the route that we should go down. In almost every family, there will be multiple health professionals involved, either by going into the home or through appointments. They are equipped to identify both the safeguarding and the deprivation of liberty issues. It is through the Care Act that we can have the most human and proportionate response for those families.
Secondly, I want to deal with the point behind what the noble Baroness, Lady Murphy, alluded to: cases where somebody is being cared for at home but then perhaps their carer has a fall and has to go into hospital, and the cared-for person then briefly goes into a care home and is therefore subject to liberty protection safeguards. What is the status of those safeguards when that person returns home? It would be very helpful if the Minister could clarify that.
As the noble Baroness, Lady Watkins, said, these arrangements might be idiosyncratic, but almost all of us have had experience of them and we value them greatly.
My Lords, I want to make a couple of quick points. The noble Baroness, Lady Murphy, is of course right that the whole issue of DoLS and the community is known to be a problem. However, the examples she gave seem to me to be examples of people not understanding the DoLS legislation and applying it wrongly, rather than the legislation necessarily being wrong. It is always important to make the case for the rights of families to reject undue intrusion, but I want to share with her the case of a young man with whom a learning disability organisation was working. The organisation achieved great results and he did really well. Prior to his involvement with the organisation, he would sit all day in a part of the living room that had been bricked off by his parents, with his own chair, his own television and being fed through a hatch. That was in a domestic setting. I need not tell the noble Baroness that we need to be quite careful when drawing up legislation.
It is a great shame that we have been presented yet again with a piece of legislation that came out of nowhere when we could have had a proper consultation. The people who are out working in the field at the moment having to administer DoLS understand many of the problems. They know that issues that arose partially from the application of the Cheshire West ruling and the High Court judgment have caused a problem. But amending a really bad Bill is not the way to deal with this problem.
I want to make a couple of points, but I first draw the attention of noble Lords to my interests in the register relating to learning disability. It is interesting how to read this amendment. I looked at it and thought about individuals in domestic settings, and the charity that I chair does just that. We put four or five individuals into a domestic setting. A proportion of them will have a DoLS. If noble Lords go into the house, it looks just like an ordinary home. Each resident pays rent and would consider it very much their home. Carers offer 24-hour support and locks are well and truly in evidence. Over the weekend, I asked our director of operations what proportion of the people we support were subject to DoLS, and she said thousands. It is just the norm.
I understand that the noble Baroness’s intention was to take this into a family setting where there is mum, dad and a child who may well be an adult—certainly, we see parents in their 80s caring for their children with a learning disability who may be in their late 50s or late 60s, and the parents are at their wits’ end. All that fits with this amendment so, whatever its merits, the wording needs to change but it is certainly worth pursuing.
I am grateful to the noble Baronesses for leading this debate. Obviously, the bulk of the debate focused on Amendment 87C, which would exclude people residing in domestic settings, and we have discussed the merits of that approach. The noble Baroness, Lady Meacher, gave a thorough exploration of alternatives to the LPS system in a domestic setting. The noble Baroness, Lady Murphy, gave a passionate defence of the role of families in caring, which was perhaps accentuated by the noble Baroness, Lady Wilkins, talking about the need to avoid overzealous application of any new provision of deprivation of liberty safeguards. My noble friend Lady Barran talked particularly about the group of people who lack a care plan and their interaction with the care system if they go temporarily into a care home. For me, all that brought home that we have further work to do on the appropriate system that applies in a domestic setting, to put it shortly.
It was helpful that the noble Baroness, Lady Barker, told us the story about the vulnerable person. We all agree that something needs to happen in that case to check the actions of the family or help the family to do better. They may just not know what to do or be at their wits’ end—who knows? We can imagine how easy it is to fall into those situations not out of intention but out of pressure and circumstance. That debate highlighted how important it is to get that right. I absolutely want to avoid intrusion where it is not necessary, but equally we need to ensure that those people deprived of their liberty receive the proper protections due to them under Article 5 of the ECHR. This is an issue that clearly needs more work. The amendment was not designed to perfect the solution but rather to start the conversation, and it is absolutely one that we will take through with noble Lords.
I turn briefly to Amendment 83B, moved by the noble Baroness, Lady Thornton, which seeks to introduce a legal presumption that a person should give evidence in all Court of Protection proceedings. Obviously I agree with her about the importance of this issue. She called it a reasonable point and I think it more than reasonable. It is essential that in any court proceedings a person’s rights are protected and that the cared-for person has the opportunity to give evidence to the court in any case concerning the deprivation of liberty. I am happy to be able to confirm that this is already reflected in the Court of Protection rules. The court’s overriding objective under the rules is to deal with cases justly and at proportionate cost. They expressly include ensuring that the person’s interests and position are properly considered and that the parties are on an equal footing. A new set of rules was introduced less than a year ago. They include changes to ensure that a person is able to participate in proceedings. Specifically, rule 1.2 requires the court to consider in every case how best to secure the cared-for person’s participation. It sets out a range of options including the cared-for person addressing the court directly, indirectly or with support from a representative, a litigation friend or an accredited legal representative. I hope that that provides the noble Baroness with the clarification that she was looking for and that she will feel able to withdraw her amendment.
I thank the Minister very genuinely for an encouraging and positive response. I recognise that this matter of deprivation of liberty in domestic settings needs to be addressed and that we need to have a conversation about exactly how it should be done. I also thank my noble friends Lady Murphy and Lady Watkins and the noble Baroness, Lady Barran, for putting their names to my amendment, albeit that it still needs a lot of work. I am grateful for their helpful comments, along with those of the noble Baronesses, Lady Jolly and Lady Barker. I look forward to discussions with the Minister and others.
I thank the Minister for that helpful answer. The grouping is slightly odd, but I am pleased that the noble Baroness, Lady Barran, has joined in; I notice that she has been sitting in her place for the whole of our proceedings. We have had a useful discussion and I beg leave to withdraw the amendment.
Amendment 83B withdrawn.
Clause 3 agreed.
Amendments 84 and 85 not moved.
86: After Clause 3, insert the following new Clause—
“Requirements before commencement
(1) Before all provisions of this Act other than those which come into force on its passing can come into force, the requirements under subsection (2) must be met. (2) The requirements are as follows—(a) the Secretary of State must publish an updated code of practice giving guidance for decisions made under the Mental Capacity Act 2005, including the provisions of the Mental Capacity Act 2005 that are amended by this Act; and(b) the Secretary of State must publish a response to the Independent Review of the Mental Health Act, chaired by Professor Sir Simon Wessely.(3) The Secretary of State must lay a copy of the publications required by subsection (2) before both Houses of Parliament.”
My Lords, I shall speak also to Amendments 87, 93 and 94 and address the amendments tabled in the name of my noble friend Lady Tyler and the noble Lord, Lord Touhig. Amendments 93 and 94 are simply enabling provisions.
Amendments 86 and 87 would require that, before the implementation date of this legislation, the Secretary of State should lay before both Houses of Parliament a copy of the updated code of practice giving guidance as well as a response to the review of the Mental Health Act that Sir Simon Wessely is carrying out. We have been half guessing in our discussions what might or might not be in it.
The Bill is not particularly easy to read and it is certainly not a guide for practice, and the ensuing Act will not be easy to read either—unlike the Care Act. The code of practice is absolutely critical to take professionals through what the legislation will entail and what they will have to implement in their practice. To that end, I have a little list. I wonder whether the Minister can indicate or confirm whether these issues will be covered in the code: the basis for detention and when the “necessary and proportionate” test applies; the role of IMCAs and appropriate persons; the professional qualifications and training of those undertaking pre-authorisation reviews; when an AMCP referral should be made; and obligations to provide information to the person and their family about the authorisation. The Minister may not have the answers on his person or from the Dispatch Box right now, but perhaps he could write to me and make that clear.
To make this happen, we would need subsection (2)(a) of the new clause proposed by Amendment 86 and a year’s wait. Many noble Lords have spoken both on and off and in Committee about the Mental Health Act. In our previous debate, the noble Baroness, Lady Meacher, referred to the work of Sir Simon in reviewing that Act along with the Act we are trying to amend now. Between them, the two Acts define, among other things, the care and rights of the most vulnerable—those with mental health conditions and those lacking capacity—who are unable to make decisions about their care. Sometimes, but not always, there may be an overlap. It would not be prudent for the Bill to end its passage through Parliament without us learning the findings of the Wessely review and determining whether it is necessary to amend the Bill further—hence the need for subsection (2)(b) of the new clause proposed by Amendment 86. Earlier today, the Minister spoke about pushing ahead. I understand the need for urgency, but I fear that if we pass the Bill in haste, we may end up repenting or regretting at leisure. That is just me being slightly cautious.
Amendment 87 calls for the Secretary of State to,
“lay a copy of the report before both Houses”.
He or she—who knows who it will be by then—is being asked to look at how the Act is working and whether they are confident that there is an improvement in the process surrounding the deprivation of liberty. We have all discussed this issue; the Minister will have detected the Committee’s concern about this area of the Bill. Basically, I am calling for the Secretary of State to report back on the impact of the Act and ensure that the code is well and truly in place before we start to use the Act in earnest.
I added my name in support of my noble friend Lady Tyler’s amendment, which seeks to ensure that regulations are scrutinised and debated in both Houses. It would also ensure that consultation takes place outside Parliament, which is critical. It is fine for us to debate these issues here—clearly, some people have more experience and understanding than others—but I get many letters from not just individuals who are, or would be, affected by the Bill but the sector, saying, “Keep the Government’s feet to the fire. Make sure we get the very best Bill we can”. I do not doubt at all the Minister’s intention to achieve that end, but the devil is in the detail and there is a lot of it. We must make sure that we get this right through primary legislation. As I said, there is much expertise but we all welcome the opportunity to look at the detail of regulations, both accompanying primary legislation and in any future proposed changes.
Under DoLS, a number of important things were set out in regulations, particularly: who best interests assessors were and how they were to discharge their duties; the timeframe for carrying out assessments; the type of information that would need to be collected; and details of how disputes might be resolved. As my noble friend Lady Tyler will highlight, this is not just about ensuring that regulations are debated; it is about how those in the sector—families and vulnerable people themselves, I would suggest—are consulted and involved in getting the detail right in both initial regulations and any subsequent changes down the line.
To bring this matter into sharper focus, I wonder if the Minister might be able to confirm what he thinks might go into regulation? I hope he would also confirm that regulations laid accompanying this Bill, and any amendments down the line, are subject to the fullest scrutiny both in this House and in the sector. This will mean a decent time gap will have to be found between the laying of the regulations and the debates in both Houses.
I welcome Amendment 92, in the name of the noble Lord, Lord Touhig, which would see another two independent reports commissioned by the Government. They would be laid within two and four years of implementation, to provide a valuable update as to how implementation was proceeding and highlight areas for improvement. We will need to monitor the implementation of the Act, however it may end up, really closely. We are dealing with the most vulnerable in our society.
These amendments are based on the PIP independent reviews, which have proven successful in highlighting problems. While I am sure many in this House would agree that there are still things to improve in terms of personal independence payments, the oversight provided by the independent reviews has been invaluable in terms of recommending important changes aiding implementation. There are many important issues to review: best interests decisions—ensuring that they are just that, and not based on commercial or other considerations; a monitor of advocacy offered and its uptake; the involvement of P—the cared-for person—and not just professionals, but also those who care for P, and the families of P. I am happy to support those particular amendments, and beg to move.
My Lords, I have three amendments, starting with Amendment 87A. It sets out a number of requirements before the Act can come into force, embracing a set of independent reports that I would like to see commissioned by the Secretary of State. They address work on the rewording of the expression “unsound mind”; the availability of independent advocacy; appeals on behalf of cared-for persons; the availability of legal aid and support for cared-for persons participating in court proceedings; and short and long-term costs for implementing provision bills for local authorities, the courts and the health service. I recognise some of these points have already been discussed, on the second day of Committee in particular, and the Government are bringing forward amendments so the Bill reflects the need to consult the cared-for person. The Minister also agreed to look further at the expression “unsound mind”, which many believe is stigmatising and outdated language.
I hope the Government might just go further. This amendment is based on the report of the Joint Committee on Human Rights and reflects some of the issues it would like to see covered in legislation. I will not comment in detail, but I want to come back to the role of the Court of Protection. We discussed this on the second day of our proceedings, and I think the Committee was informed by the view that recourse to the Court of Protection should be avoided wherever possible, because of the stresses and strains involved and the cost. I am certainly conscious that we do not want to create a situation where mental capacity professionals defer their responsibility to the court, and individuals have to undergo court procedures unnecessarily.
According to Dr Lucy Series of the School of Law and Politics at Cardiff University, while the cost and stress of applications to the Court of Protection is undeniable, research by Cardiff has shown that the Government have taken the decision not to reform the Court of Protection, which would make it less costly, less stressful and more like the tribunal approach that many noble Lords would like to see. It is instead being managed by, essentially, restricting access to justice. A week ago, the noble Baroness, Lady Stedman-Scott, said that,
“if a person wants to challenge their authorisation in the Court of Protection they have the right to do so”.—[Official Report, 15/10/18; col. 371.]
However, the practicalities are that people may experience extreme difficulty initiating a court action without assistance, as will their families. The evidence on this matter was very clear to the House of Lords Select Committee on the Mental Capacity Act and the Law Commission. I hope that the Government will consider it.
My second amendment, Amendment 87B, concerns the Care Quality Commission’s role in relation to the Bill’s provisions. I have already referred to the CQC’s recent annual report, which has a section on DoLS. It is required reading because it shows some of the issues that have arisen practically on the ground in trying to understand complex legislation and implement it effectively to ensure that people’s liberty is protected as much as possible. I do not want to repeat what I said, but it is quite clear that the CQC has a valuable role in monitoring the operation of DoLS and, in future, this amendment Act.
The view I put to the Government is that, because of the frailties in the system that we see, the CQC will need to have a stronger role in monitoring the Bill’s operation. Essentially, my amendment is designed to do just that. I understand that it would require a significant increase in CQC activity. I am also advised by the CQC itself that some other legislative changes might be necessary. None the less, although this is a probing amendment, the CQC’s role is worth examining and strengthening for these new provisions.
Finally, Amendment 92A is a probing amendment. We have discussed the backlog; I would like to hear from the Government how it will be handled. Am I right in thinking that once you start a process it needs to be completed under existing legislation, even though you might not have got very far with it, or is it assumed that all of those backlogged cases will be transferred over to be dealt with under the new legislation? If that is so, have we really considered the impact, particularly on care home managers, of suddenly being faced with many more cases to be dealt with at the same time as picking up their new responsibilities? There is hard evidence of backlog issues causing systems to break down because the Government assume that bringing in new legislation will deal with the backlog. Notwithstanding that this is a more streamlined process, there is still an awful lot of work to do. I would like to hear a little more on how the Government propose to deal with this without pulling a ton of bricks down on the new system. I hesitate to raise the Child Support Agency, which is the classic example of trying to embrace on day one in a new system all those people who had gone before. The system collapsed. We do not want the same thing to happen here.
My Lords, I have two amendments in this group and my name is attached to four others. It is a little unfortunate that we are coming to this important group of amendments, which affect the Bill as a whole—there are some very important implementation issues—quite so late in the day when the appetite for debate is understandably somewhat limited.
My Amendment 88 seeks to do two things. It seeks, first, to enhance scrutiny of regulations in Parliament and, secondly, to ensure proper consultation if the Government seek to amend regulations later on down the line. According to the Explanatory Notes, as drafted the regulations are subject to the negative procedure, except where the Secretary of State wishes to change primary legislation, in which case the affirmative procedure applies. My amendment proposes a different approach, whereby the positive procedure applies in both cases. That would mean that, should the Government wish to amend regulations, such a change would automatically trigger scrutiny in both Houses. Why do I think this is important? Fundamentally, depriving someone of their liberty is a very major and fundamental action which warrants strong safeguards and scrutiny. I think it is absolutely vital that we closely monitor the implementation of this legislation and debate any proposed changes that the Government may wish to introduce.
The second part of my amendment—which I think is equally important—means that, before laying a regulation, the Government must consult with stakeholders on its potential impact. Again, given that this legislation concerns extremely vulnerable people, it is absolutely vital that we get it right—that is both primary legislation and the detail of any regulations. One of the threads throughout our debate in Committee, both today and in our two previous sessions, has been that, while the Law Commission consulted widely on its draft Bill, the Government’s Bill, which we are now discussing—and which is very different in a number of important aspects—was introduced with very little consultation with those who work in the sector. It is absolutely vital that we hear from mental health practitioners, legal professionals, charities and those representing vulnerable people.
Amendment 87F is a probing amendment and it is to highlight the current unsatisfactory situation, which I gather is causing real concern to clinicians in relation to when they are obliged to complete court reports requested by the Court of Protection. This issue was drawn to my attention by the Royal College of Psychiatrists and I draw the House’s attention to my interests in the register. Currently, Section 49 of the Mental Capacity Act 2005 authorises courts to,
“require a local authority, or an NHS body”,
to prepare a report on such matters,
“as the court may direct”—
generally, the relevant person’s mental health or mental capacity.
I understand that drafting such a report requires a senior clinician to review previous reports, examine the patient, talk to family members or carers and carry out necessary tests. Notably, it often relates to a patient who has never been under the care of that clinician or even the hospital trust employing them. I have been told that the average time required to complete such a report—although it varies—would be around 10 hours, which does not include the extra time required if the clinician is required to attend court in person to give evidence.
The nub with the concern here, which has been raised by many clinicians, is that an unknown quantity of clinician time is being taken away from front-line patient care. As there is no national data, as I understand, on this, it is unclear how much. Again, as I understand it, CCGs and NHS trusts are not being paid for or equipped for their staff to be required to spend their time in such a way, and the very short timeframe often set by the court can lead to very considerable disruption of clinical priorities and patient appointments being changed at the very last minute.
I emphasise that I have no problems with the Court of Protection needing reports and expert advice—it is just that the system for getting it does not seem right to me, with the NHS being required to provide these reports in such a way. Frankly, there is cost shunting on to the NHS, but it is also having no regard for the impact on wider patient care. The Minister has said that he will be talking to the MoJ about a number of things. It would be very helpful to hear how the MoJ thinks this system could be better managed so it does not have such a deleterious effect on wider patient care. The purpose of this amendment is to get the Minister to explain and outline the Government’s thinking in this area.
Finally, Amendments 86 and 93 require two very crucial documents to be laid before Parliament before the provisions of the Act can come into force: the code of practice and the Government response to the Independent Review of the Mental Health Act. It is really where we started off this evening—certainly where I started off was looking at the interaction of those two pieces of legislation.
The one point I will make is that whatever recommendations the Mental Health Act review ends up making, it is clear that as long as we have separate legislation to govern mental illness and mental capacity, we absolutely must consider the interaction between those two frameworks. In terms of implementation, the early introduction of the Bill prevents the review from making suggestions that touch on the scope of the LPSs we are discussing. Therefore, it is crucial that the Government respond to the review’s recommendations before the LPSs that we are talking about at the moment can come into force.
I am sorry to take noble Lords back a step to Amendment 87D, which is in my name and is really a probing amendment. I thank the noble Baroness, Lady Finlay, for her very warm support—she has unfortunately had to run for a train, but I am grateful to her.
It seemed to me, in thinking about this amendment, that there are a couple of points in the process of authorising liberty protection safeguards where there needs to be real rigour to check that the best interests of the cared-for person lacking capacity are upheld and that the least restrictive option is found in terms of depriving them of their liberty. We spent a lot of valuable time looking at the role of the care home manager in relation to this. The noble Baroness, Lady Hollins, was also alluding in part, in her Amendment 66, to the second actor in this, namely the responsible body. My amendment explores the role of the responsible body.
The first part of the amendment seeks to address the role of the responsible body, which, as I understand it, is effectively a safety net in the process. The aim is to encourage the responsible body to identify cases where it is more likely that those two key considerations have not been upheld. The second part of the amendment sets out a course to follow if that is the case. What I have been trying to imagine is what it is like to be sitting in the responsible body, the local authority or the hospital, with a pile of LPS forms to authorise. How can we keep the person doing that alert and using their discretion appropriately?
In the first part of the amendment, what I am getting at is a way to set clear criteria for the responsible body to follow, such that if the criteria were met it would trigger a review of the applications in more detail. I do not have a definitive list of what those criteria might be but, for example, one might imagine that if the care home in which the cared-for person was going to reside had been rated as inadequate by the CQC, it might be a prompt for a further review, if that care home manager had arranged the assessment.
Other possible criteria might involve what the noble Baroness, Lady Barker, referred to as “unbefriended” people. I am much sure whether this is technically unbefriended, so forgive me, but if someone has no friends or family and a carer has some kind of indirect financial interest in the outcome of the decision, that might be another case of where these criteria might trigger further review. The assumption would be that this amendment would apply whatever the source of funding for the cared-for person. There may be other criteria that would be more helpful, and I am sure that noble Lords who are more experienced in this area than I am will think of what these might be.
In the second part of the amendment, I have simply suggested that, if there is cause to examine an application more closely, it should follow the pathway set out in paragraph 18 of new Schedule AAl. Obviously, if this route is taken, consideration needs to be given to resources, since we do not want to create a conflict of interest for the responsible body—the mirror image of some of the conflicts we have talked about for the care home manager. We certainly want to avoid a situation where there is a financial disincentive to review those cases which genuinely warrant a review.
My Lords, this group of amendments covers a range of things that need to be done before the commencement of the Act, and steps that should be followed later, as proposed by my Amendment 92. Noble Lords have made powerful arguments in favour of their amendments. In view of the lateness of the hour, I will confine my remarks to Amendment 92, tabled in my name, with the support of the noble Baronesses, Lady Tyler and Lady Jolly.
Amendment 92 would see two independent reports commissioned by the Government to be laid before Parliament within two and four years of the Act becoming law. The reports would provide a valuable update on how implementation was proceeding and would highlight areas for improvement. It has often been said that the Mental Capacity Act is a good piece of legislation that has been poorly implemented. If we want to see this Bill strengthened in all the areas we wish it to be, we will also need to monitor its implementation extremely closely, not least because the legislation affects some of the most vulnerable in our society and concerns their freedoms. Hundreds of thousands of people across England and Wales will be affected.
The amendment is modelled on the independent reviews that have accompanied the introduction of personal independence payments. The proposed report could look at a number of things: first, that decisions on whether someone’s liberty is restricted are truly being made in the best interests of the individual and not in the interests of providers or commissioners; secondly, that training is effective and ongoing and reinforces the rights of the individual; thirdly, that families and carers are involved and consulted as appropriate; and, fourthly, that advocacy is available to all who need it and is delivered effectively and impartially. Some very powerful arguments have been made in this short debate. I hope that the Minister will listen and that the Government will respond positively.
My Lords, I am grateful to all noble Lords who have tabled amendments in this group. We have had a wide-ranging debate on areas where they would like to see various enactments, changes, reports and so on, before commencement and following implementation. I will attempt to deal with them thematically.
Amendment 86 requires that before commencement the Government must publish the code of practice and our response to the Mental Health Act review. Amendments 93 and 94 update Clause 5 to reflect this. I am happy to confirm that the Government will have published both of these before the new system commences.
Amendment 87 requires that the effectiveness of the Act is reviewed and a report laid in Parliament within a year of the Bill coming into force. As the noble Lord, Lord Touhig, just pointed out, Amendment 92 requires the Secretary of State to commission two independent reports on the operation of the new liberty protection safeguards scheme two and four years after the new system comes into force. Again, I am happy to assure noble Lords that the Government routinely conduct post-legislative scrutiny for all new Acts. The relevant guide says that within three to five years of Royal Assent the Government will be required to submit a memorandum to the relevant departmental select committee with a preliminary assessment of how the Act has worked in practice. I am happy to confirm that the Bill will receive such scrutiny and the Health Select Committee will be informed.
Amendment 87A, in the name of the noble Lord, Lord Hunt of Kings Heath, details requirements regarding a number of topics. As he pointed out, a number of these have already been addressed in our debates, including unsound mind, issues around advance consent, the availability of non-means-tested legal aid, and others. We have had a debate on the rules and guidance around IMCAs, which we are clearly going to take forward. He focused on tribunals. The Government are reviewing the courts and tribunals system but that review has not concluded. We are not proposing to change the position on the Court of Protection hearing challenges to liberty protection safeguards in the Bill precisely because there is not yet an opinion or a policy change from the Government with regard to a proposed new system. He also asked about the cost implications, which are outlined in our impact assessment, as he will know.
The noble Lord’s second amendment, Amendment 87B, seeks to make the CQC the regulator for the liberty protection safeguards. The Bill allows for bodies to be prescribed to report and monitor the scheme and it is absolutely our intention that the CQC takes on this role in England. It clearly has an important role in oversight of the new system, although we are concerned that his amendment would introduce additional layers of regulation. It should also be pointed out that the CQC is an England-only organisation; in Wales, the overseeing regulators are expected to be Healthcare Inspectorate Wales and Care Inspectorate Wales, which will both take on this role.
Amendment 87D was tabled by my noble friend Lady Barran and the noble Baroness, Lady Finlay. It would require responsible bodies to consider criteria to be published by the Secretary of State around best interests and the least restrictive option before authorisations are approved under the liberty protection safeguards. These are of course absolutely key principles of the Mental Capacity Act, and responsible bodies will have to consider them as part of any authorisation. As I have set out in previous debates, these factors already form part of the necessary and proportionate assessments, as well as other factors such as considering the wishes and feelings of the person. We will explain in the code how this assessment should be carried out and the factors that assessors should have regard to. I am grateful to my noble friend for some suggestions in that regard and I have just confirmed that the code would be published before commencement of the new scheme.
Amendment 87F, in the name of the noble Baroness, Lady Tyler, would remove the power of the Court of Protection to call for reports from local authorities and NHS bodies in cases relating to a cared-for person under the schedule. We think it is important, as I am sure she does, that the Court of Protection has access to such information but I heard the story that she told about an undue burden. I am certainly happy to commit to her that I will speak to colleagues in the Ministry of Justice to see whether there is any way that this process can be improved without removing the ability of the court to access the information it needs to make proper determinations.
Amendment 92A, in the name of the noble Lord, Lord Hunt, seeks to ensure that the liberty protection safeguards do not apply to any existing or pending DoLS authorisations. I can confirm that existing DoLS authorisations can continue until they are due for renewal or review. Clearly, depending on the final outcome of the Bill, the frequency with which those are renewed or reviewed will mean that there will be a steady stream of DoLS authorisations coming under the liberty protection safeguards in future, for those that are rolled over. Careful work will clearly need to be done with the sector to ensure that a tsunami of new authorisations does not happen but allowing for authorisations to continue under the previous system, until they can reach review or renewal, should go some way toward mitigating that risk.
Finally, Amendment 88, tabled by the noble Baroness, Lady Tyler, states that regulations should be subject to the affirmative parliamentary procedure and a consultation requirement. We have of course asked the Delegated Powers and Regulatory Reform Committee for its opinion on the regulation-making powers within the Bill and it has accepted that the negative procedure provides appropriate parliamentary oversight. As the Committee knows, we go against the DPRRC’s recommendations at our peril.
I apologise for detaining the Committee for six or seven minutes but I wanted to be thorough. I hope that I have been able to give the reassurances that noble Lords were looking for about the safeguards that we will put in place before commencement and the reviews of effectiveness to ensure that the system is working as intended. I hope that noble Lords will feel able to withdraw or not move their amendments.
I thank the Minister and others who have spoken on this group. We all want to ensure that the new mental capacity Act—presumably of 2019—works and that the Department of Health and Social Care monitors its implementation. I know that we on these Benches look forward to working with the Minister and others between now and Report to ensure that the Bill is actually fit for purpose. I gently suggest that a longer time gap than is usual between Committee and Report might be needed. I guess that those conversations might need to be held with the usual channels but, in the meantime, I beg leave to withdraw my amendment.
Amendment 86 withdrawn.
Amendments 87 to 87G not moved.
Clause 4: Consequential provision etc
Amendment 88 not moved.
Clause 4 agreed.
89: After Clause 4, insert the following new Clause—
“Compatibility with European Convention on Human Rights
So far as it is possible to do so, all provisions under this Act must be read and given effect in a way which is compatible with Article 5 (Right to liberty and security) of the European Convention on Human Rights.”
This is the last amendment, and I will be very brief. It is quite appropriate that the last amendment we consider is about Article 5 of the ECHR, which is about the core of the Bill: people’s liberty and the deprivation of it. I have four things to say. The reason this amendment is so important is because it addresses the things that we have found lacking in the Bill which we feel need to be addressed. They are: the availability of information; advocacy and the fact that people need to have access to champions; representation; and the conflict of interest that arises when a detainer is required to assess a detainee. Particularly where a financial interest is in play, it is obvious that it has to be addressed if the proposals in the Bill are to be Article 5 compliant, which they need to be. That is the test that we need to apply to the Bill all the way through. I beg to move.
My Lords, I am glad that the noble Baroness has given us this opportunity to discuss a really important matter, albeit that it is late at night. I noted what the Minister said at various times throughout the debate about reliance on the code of practice. He will know that, as we have been trying to make clear all the way through the debate on the Bill, if some rights are not statutory rights in the Bill, then compliance is question. I rather suspect that the Bill that was presented to us was not compliant. I do not see how a Bill which, on the face of it, would enable somebody to be detained without being met and assessed by a professional person could be compliant.
There are a number of key matters which the Government are, at the moment, talking about putting into the code of practice—perhaps, possibly on a good day, into regulations—but which need to go back into the Bill. If they do not, the responsible body will not have the statutory responsibility to see that they are carried out. They are: the basis for the detention and the necessary and proportionate test and when that test applies; the role of IMCAs and access to appropriate persons; professional qualifications and training for people undertaking those pre-authorisation reviews; where an AMCP referral should be made; and the obligation to provide information to the person and their family about authorisation. All those things are important.
I say from these Benches that if we do not have considerable movement towards putting those things into the Bill, however briefly, the Bill will still be in trouble when we come to Report.
My Lords, I have spoken several times in Committee about my concern that the Bill as it stands is an assault on human rights. I have also mentioned in past debates that I am proud of the reputation of the all-party British delegation to the Parliamentary Assembly of the Council of Europe, so ably led by Sir Roger Gale, which has a proud record of defending human rights in that body. Article 5 of the ECHR protects our right to liberty and security. It focuses on protecting individuals’ freedom from unreasonable detention as opposed to protecting personal safety. As a result of Article 5, your Lordships and I have a right to personal freedom. That means we must not be imprisoned or detained without good reason. The Bill before us is about the quality of life, the care and the respect of some of our most vulnerable fellow citizens. This amendment is about giving our fellow citizens, who may not have the capacity to defend themselves in the way that we take for granted, the same rights that we enjoy.
My Lords, this is a good way to finish our Committee proceedings. I thank the noble Baroness, Lady Thornton, and the noble Lord, Lord Touhig, for tabling the amendment, and I thank the noble Baroness, Lady Barker, for speaking to it.
Clearly, not only ought it to be the case that the Bill is compliant with Article 5 of the European Convention on Human Rights, but it is also important to make it clear, as I did at the point of the introduction of the Bill, that its provisions are compatible with Article 5. As noble Lords will know, and as becomes painfully clear when you become a Minister and you see your name on printed Bills giving these kinds of reassurances, that is a process that we need to go through before introducing legislation. Clearly, there are still concerns about whether the Bill can be improved in giving force, as the noble Lord pointed out, to the rights under Article 5. Nevertheless, it is my view that the Bill is compatible with the ECHR.
Furthermore, because of Section 3(1) of the Human Rights Act 1988, primary and subordinate legislation must be read and given effect to in a way that is compatible with convention rights. It is already the case that the Bill must be read and given effect to in a way that is compatible with Article 5. My concern with the approach here is therefore not so much one of repetition but one of partiality because it only talks about Article 5. There is therefore a risk that if we implied that this legislation had only to comply, or had a special duty to comply, with Article 5 of the convention rather than the whole convention, that would not reflect our responsibilities under the Human Rights Act. Indeed, it could downplay critical protections that exist in the ECHR, such as the Article 8 rights to family and private life. So while I understand the motivation behind tabling the amendment and using it as an opportunity to rehearse some of the desire to improve the actions that will safeguard the liberty and security of the person, I do not think it is right to put such a clause in the Bill precisely because the Government have a broad responsibility to ensure not only that the Bill is compliant but that it is read and given effect to in a way that is compatible with all convention rights.
I hope that has provided reassurance to noble Lords that our intention, and indeed our obligation, is to provide not only for those Article 5 rights but for all other rights that apply under the ECHR. I hope the noble Baroness will feel able to withdraw her amendment.
I thank the Minister for that answer, and for his recognition that the reason for tabling the amendment at this point in the Bill was to allow us to say that these were the issues we needed to address, as the noble Baroness, Lady Barker, and my noble friend Lord Touhig outlined. I am pleased that the Minister has acknowledged that. I beg leave to withdraw the amendment.
Amendment 89 withdrawn.
Amendments 90 to 92A not moved.
Schedule 2 agreed.
Clause 5: Extent, commencement and short title
Amendments 93 and 94 not moved.
Clause 5 agreed.
Bill reported without amendment.
House adjourned at 10.20 pm.