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Public Bill Committees

Debated on Thursday 17 January 2019

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

The Committee consisted of the following Members:

Chairs: Mark Pritchard, † Ian Austin

† Afolami, Bim (Hitchin and Harpenden) (Con)

† Chalk, Alex (Cheltenham) (Con)

† Cunningham, Alex (Stockton North) (Lab)

† Debbonaire, Thangam (Bristol West) (Lab)

† Dhesi, Mr Tanmanjeet Singh (Slough) (Lab)

† Dinenage, Caroline (Minister for Care)

† Keeley, Barbara (Worsley and Eccles South) (Lab)

† McCabe, Steve (Birmingham, Selly Oak) (Lab)

† Moore, Damien (Southport) (Con)

† Morris, James (Halesowen and Rowley Regis) (Con)

† Morton, Wendy (Aldridge-Brownhills) (Con)

† Norris, Alex (Nottingham North) (Lab/Co-op)

† O'Brien, Neil (Harborough) (Con)

† Sherriff, Paula (Dewsbury) (Lab)

† Syms, Sir Robert (Poole) (Con)

† Whately, Helen (Faversham and Mid Kent) (Con)

† Williams, Dr Paul (Stockton South) (Lab)

Adam Mellows-Facer, Committee Clerk

† attended the Committee

Public Bill Committee

Thursday 17 January 2019


[Ian Austin in the Chair]

Mental Capacity (Amendment) Bill [Lords]

Welcome back, everyone. I remind everyone to turn their phones to silent. The selection list for today’s sitting is available in the room. Amendments on similar issues have been grouped together for debate, regardless of where they appear in the Bill. Decisions on amendments take place not in the order amendments are debated but in the order they appear on the amendment paper, which corresponds to the part of the Bill that each amendment affects.

Schedule 1

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

I beg to move amendment 30, in schedule 1, page 12, line 29, at end insert new sub-paragraph—

“(da) in the case of a cared-for person aged 16 or 17 (unless that person is subject to a care order under section 31 of the Children Act 1989 or an interim care order under section 38 of that Act) the responsible body is satisfied that no person with parental responsibility objects to the arrangements,”.

This amendment makes provision enabling parents to object to care arrangements that give rise to their child’s deprivation of liberty.

It is a pleasure to see you in the Chair again, Mr Austin; you are working very hard on the Bill, as indeed we all are. Amendment 30 follows on from amendment 38, which would extend pre-authorisation reviews to 16 and 17-year-olds. Amendment 30 would provide that, where there is a person with parental responsibility for the cared-for person, an authorisation may be made only if the person with parental responsibility does not object to that authorisation. We believe that would ensure the Bill does not create a situation where the responsible body is able to override the wishes of 16 and 17-year-olds’ parents to deprive them of their liberty.

I appreciate that case law in this area is not abundant, but one relevant case in point is Y v. Barking and Dagenham, which I mentioned when we debated amendments regarding the role of care home managers. Despite agreeing to Y’s placement, his parents became concerned about the standard of care he was receiving. The local authority deprivation of liberty safeguards application made no mention of the concerns they had raised. Subsequently, the parents withdrew their consent for Y to remain at the care home.

Around the time Y’s deprivation of liberty was granted, a member of staff at the care home was reported as having assaulted Y. That was raised with the local authority, but Y’s parents were not informed. The local authority then applied for a care order for Y, and the social worker reviewing the request dismissed the parents’ concerns. When the case eventually went to court, the local authority admitted that it had dismissed the parents’ concerns without proper investigation.

I believe parental objection is an important principle, which is currently missing from the Bill in relation to deprivation of liberty for 16 and 17-year-olds. Its omission means that the Bill is out of step with the Children Act 1989 and there may be conflict between the two. In particular, there is a lack of reference in the Bill to the role of parents in making decisions about the placement of their child. As I just described, in Y v. Barking and Dagenham, Y’s parents withdrew their consent for Y’s placement in the care home in which he was residing. Under section 20 of the Children Act, parents can object to their child’s placement and remove their child from that placement. In paragraph 20 of proposed new schedule AA1, the Bill provides that certain people must be consulted, but the main purpose of consultation set out in paragraph 20(2) is to ascertain the cared-for person’s wishes or feelings about the arrangement. That does not address parents’ views about the arrangements for their child.

Without our amendment, the liberty protection safeguards provisions would allow a local authority to make arrangements that deprive young people of their liberty without the agreement of their parents. Further, it would allow the local authority to do so without needing to obtain a court order. That is not the case under the Children Act, so there is clearly a conflict, which we must address. I see the amendment as by no means contentious. It is very much in the spirit of what has been suggested to widen the scope of liberty protection safeguards to 16 and 17-year-olds, including the extension of pre-authorisation reviews by approved mental capacity professionals. It is a key component of the Children Act, as it should be of the Bill.

It is a pleasure to serve under your chairmanship again, Mr Austin. As I said in a previous sitting, children and young people have always been my focus in politics, and the measures that impact 16 and 17-year-olds are some of the most important in the Bill.

As my hon. Friend the Member for Worsley and Eccles South said, amendment 30 would make provision to enable the parents of a 16 or 17-year-old to object to care arrangements that gave rise to deprivation of their liberty. Not unlike in many other parts of the Bill, there is a severe lack of clarity about the role of parents. We must make that clearer. The law regarding young people is already very complex, and the Bill just seems to add to that complexity. There is real concern out there in the community about the lack of recognition of parental rights under the LPS system.

Parents fall within the group of people to be consulted about the young person’s views of the care arrangements, but there is no acknowledgement at all that parents have the right to make decisions about the young person’s placement. That seems to me to undermine the Children Act 1989, which provides for parents being able to object to the young person’s placement and to remove their child. Does the Minister agree that there is such a conflict? If authorities want to overrule parental wishes about the care of their child, they must go through the legal and court proceedings to do so.

As well as being against the 1989 Act, does my hon. Friend agree with me that it is common sense for parents to be at the heart of any DoLS? It is not good to be sidelining them on what is, in effect, the issue of the health and wellbeing of their children.

That is very much the case. I always try to place myself into such a situation. I am at the grandfather stage of life now, and I think about how that would affect the children of my children, or other parts of my family who have children. I would most certainly want them to be at the centre of it—I would probably try to interfere a bit myself as well.

The Children Act, however, provides protection—it is a real safeguard—and yet the Bill is not at all clear about how it will sit with that existing legislation. Surely, as my hon. Friend the Member for Worsley and Eccles South suggested, parents must be consulted and have that ability to make decisions about their child, even if they are 16 or 17. We must ensure that such safeguards are enhanced, not watered down or in conflict with each other.

The Royal College of Psychiatrists has highlighted to me that encompassing 16 and 17-year-olds in the Bill can be positive where they lack capacity to make their own decisions, but that must be authorised by an appropriate safeguarding system. The RCP shares my belief that a parent or legal guardian with capacity to make the decision should be able to authorise the required deprivation of liberty.

Many social workers and other professionals in the field have made submissions. There is a strong consensus that additional safeguards should be available where objection is made by a person with parental responsibility. The Mencap submission, too, welcomes the inclusion of 16 and 17-year-olds in the Bill, but it also expressed concern that we might be reducing protections and eroding parental rights. Mencap has asked the Government to conduct further public consultation on the measures for 16 and 17-year-olds to understand the implications fully.

Does the Minister believe that the Government have consulted properly on the issue of 16 and 17-year-olds? Clearly, the organisations with an interest in such matters do not think so. Will she commit to undertake a rapid consultation exercise ahead of Report, in the hope that we in Committee can be reassured about parental rights and the very necessary protections for young people?

Mencap highlighted the particular uncertainty about how the new system works alongside existing legislation. I have already talked about that, but a complex web of legislation and guidance relates to those young people who might fall under the LPS system, including looked-after children. My hon. Friend, however, has already spoken about that. It is essential for the Minister to provide clarity in such areas, preferably now but certainly before Report.

In closing, I will make a general point about involving parents in all manner of processes in the health and social care world. For them to be excluded from the process, denied the right to report or told simply that the authorities know best must be an exception. It is not always the case that the authorities know best. At times, I have a tremendous caseload of parents coming to talk to me about issues affecting their children and how they feel excluded.

I put it to the Minister, if a child affected in a particular case was one whom she knew personally, one whose parents she has had contact with, would she be content for them not to have every possible access to information or not to be consulted at every stage? I remind her that a child is being deprived of liberty—this is an opportunity to lock a child up, basically. We need to understand and empathise with parents in their desire to be consulted in the decision-making process, and I believe that the amendment would go a long way to ensuring that that actually happened.

It is a pleasure to see you again in the Chair, Mr Austin.

It is important to reflect at this point that the purpose of this legislation is to take an existing cumbersome system and to try to make one that works, but of course we are putting a new focus on 16 and 17-year-olds while we do that. So it is important that we have good consideration about how we can do it in the safest way, and in the way that best reflects the needs of the individual and of their family in general.

We will all be aware that social media can skew our view of these things, but the very high-profile cases on social media of young people who are in the settings that we are talking about today, and just how difficult that is for the parents and those young people themselves, mean that we should take every step we can to make what is an exceptionally difficult situation as best as it can be for those parents.

This issue came up in one of our previous discussions—it was raised by the hon. Member for Halesowen and Rowley Regis—when we were talking about access for parents as a matter of course, which I think we will come back to when we consider a later amendment. The idea was discussed that we would not want to put something in the Bill that would give access to a child to someone who was not supposed to be given access at that point.

I reflected on that point, because it is obviously very important, but I do not think that it actually applies in this situation. I was using, as an analogous case, the idea of a parent’s right to have input into their children’s education. If that parent is subject to a non-molestation order, that right falls away, so I do not think that there is anything that we would put in this Bill that would supersede that.

In a similar vein, my hon. Friend the Member for Stockton North used the phrase “with capacity”, regarding the parents being involved. Again, therefore, nothing that we are doing here would supersede the fact that if that parent was not able—

The hon. Gentleman is making some serious points, but I just want to probe one of them. If we are seeking to protect the best interests of a child, there may frequently be circumstances in which those best interests are not necessarily served by having parental involvement, because of the complexity of a particular case or the psychiatric condition of a particular child, and somehow that needs to be reflected.

I thank the hon. Gentleman for that intervention, because that point is really important. It is perfectly conceivable that the heart might override the head and parents might be so desperate to keep their family together—which we can all relate to—that they might make decisions that are not the best decisions.

Again, however, that would mean entry into a pre-existing legislative space, in the sense that if a parent were acting negligently, we already have a series of protections for a child in that case. So, if we have what we are talking about today in law and then we have a case of the kind that the hon. Gentleman and I are both talking about, that would tip into a negligence situation, and therefore I think the matter would still be unresolvable in the best interests of the child. So I do not think that anything that we are suggesting here in this amendment would disqualify any of that.

I think the amendment is proportionate: it would just give that extra layer of protection. We understand that the cohort that we are talking about are particularly vulnerable; we understand the impact that this change would also have on parents; and we understand that fundamentally parents will want the best for their children. However, we also understand fundamentally that if a bad decision were being made by a parent, there are other sources to make sure that a young person’s needs are being met.

Actually, when we add all that together, I think the amendment would put in significant safeguards and important protections for both young people and their parents, but without creating a situation where we might unknowingly create some risk and perhaps do some harm.

As ever, it is a great pleasure to serve under your chairmanship, Mr Austin.

I thank Opposition Members for initiating a discussion on this really important matter. Parents, or those with parental responsibility, have a vital role in caring for their children—of course they do—especially when the child lacks mental capacity. We would fully expect that the responsible body took every opportunity to consult parents with regard to their views about arrangements, where it was appropriate to do so as part of the consultation process, and we will make that clear at every stage in the regulations.

However, as the hon. Member for Nottingham North and my hon. Friend the Member for Halesowen and Rowley Regis have said, we have to allow for the very rare occasions on which parents may not have the best interests of their children at heart. That is why we have to be careful about adding this provision to the Bill.

My hon. Friend might be coming to exactly this point but, having been involved in some of the conversations about the review of the Mental Health Act 1983, I know that lots of concern was expressed about families feeling that they were not involved enough in the care of their relatives and in decisions about them being detained, for instance. I am keen for her to reassure us that parents will not be overlooked and will be involved, so long as they are acting in the best interests of their child.

Absolutely; we completely agree that objections raised by parents about the arrangements should be considered with the utmost care and attention. That is why we have already built those safeguards into the authorisation process. The Bill states that an approved mental capacity professional must conduct the pre-authorisation reviews where it is reasonable to believe that the person objects to the arrangements, and it clarifies that an objection can be raised on a person’s behalf by someone interested in their welfare. For the vast majority of 16 and 17-year-olds, of course, that would include their parents. In those cases we would expect an approved mental capacity professional to consider the objection carefully, meet both the person and their parents, and establish how they feel.

I understand the concerns of the hon. Member for Worsley and Eccles South about how the legislation relates to the Children Act 1989. I can confirm that the advice I have been given is that nothing in the Bill conflicts with that Act, or indeed with any other existing legislation. The hon. Lady may also be aware that the role of parental consent in the deprivation of liberty is currently being considered by the Supreme Court, and of course the Government will closely consider the implications of that judgment when it is handed down. The hon. Member for Stockton North spoke about the consultation on this issue, which of course was part of the Law Commission’s recommendations on the inclusion of 16 and 17-year-olds, and all the aspects of that. They spent three years working on those recommendations and consulted widely with stakeholders, including children’s charities, third-sector organisations, social workers and education providers.

Our view on the amendment is clear. Although almost all parents have their child’s best interests at the heart of everything they do, a tiny minority do not—maybe for good reasons; maybe for reasons of heart over head, as one Member has said today—and those are the children we have to protect. Parents should be at the heart of the process and they must be consulted where appropriate, but the person whose wishes and feelings must be at the dead centre of that process is the individual whose mental capacity is deemed not to be there. I hope that I have been able to provide clarification. On that basis, I ask the hon. Member for Worsley and Eccles South to withdraw the amendment.

As I said earlier, it is welcome that the Bill expands eligibility to 16 and 17-year-olds, because it prevents them from slipping through the gaps that the Bill would otherwise create. However, I persist in the view that there are issues with the way the Bill interacts with the Children Act 1989. The difference is that under section 20 of that Act, parents can object to their child’s placement and can also remove their child from that placement.

I gave an example—the case of Y v. Barking and Dagenham—in which parental objections were overlooked by the responsible body. The key point is that there are many other such cases, as I am sure the Minister knows—she probably hears about them even more often than I do. That was a recent case, but it resulted in significant harm. That young person, still a child, was kept in a care home and deprived of his liberty for two years. He was restrained 199 times. He was assaulted by somebody in the care home, but the social worker only listened to opinions from the care home. The amendment is a safeguard, and it is vital that we put it into the Bill to prevent similar cases being enabled by the Bill. I put it to the Minister that she will be enabling more such cases if she does not include this provision on parental objections.

Can I just challenge that? Under the existing Mental Capacity Act 2005 there is recourse to the Court of Protection for the parents. Their views have to be taken into consideration, but if they feel in any way, shape or form that the best interests of their child are not being followed, they have that recourse to the law, and the amendment of the Act does not change that.

Indeed, and we will be talking more about the Court of Protection, which is of course an important safeguard. However, parents should not have to have recourse to the court just to express objections and get them listened to. The Court of Protection is a good safeguard, but recourse to the law involves expert advice and all kinds of things. I shall discuss that in relation to a later amendment, but for ordinary people it is a serious matter to take on.

Sometimes the Minister encounters, as I do, parents who are confident enough to challenge things, go to the media and make a stir, but I have just given a strong example where a young person was kept in appalling conditions and was hurt and damaged. Such cases affect a young person’s ability to live in a home or community situation and should be avoided. Two years of detention in an unsuitable home, assault, and being restrained 199 times will surely lead to traumatic stress. That is why I think that the amendment is important, and why we will press it to a vote.

Question put, That the amendment be made.

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

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

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

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

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

“determinations required by paragraphs 18 and 19”.

However, under proposed new paragraph 18, the assessment

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

they need only appear—

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

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

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

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

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

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

Age UK agrees with my hon. Friend’s point and proposes an extension to it, through the involvement of an AMCP every time a family member objects, or if the cared-for person has no family members to object on their behalf. Does he agree with that position?

Absolutely; I agree entirely. That makes more sense than the way I have been saying it.

I accept that the amendment is clumsy and not well drafted, but I hope that it is clear that, more than anything, we need to hear—all the better if it happens before our proceedings conclude—and then see in black and white a cast-iron guarantee that the arrangements will not be used in a way that ends up being detrimental to the interests of the person about whom we should be most concerned. That is the purpose of the amendment. We can have some confidence that all those conditions have been appropriately and properly satisfied only if we have confidence that a professional with the appropriate experience, knowledge and skills, who is valiantly independent and capable of looking at it in the round, has been a key component of that decision.

I thank my hon. Friend for moving the amendment. The Committee has already considered the principles that he has discussed, but I am glad to have the opportunity to return to them, because the role of the AMCP is a big part of the schedule, which I am sure we will come back to.

The aim of the amendment is to ensure that all people subject to the liberty protection safeguards have their case considered by an approved mental capacity professional. On Tuesday morning I discussed a range of cases where we thought that it was crucial that the approved mental capacity professional should review the case. I was talking about specific cases, but an AMCP review would be beneficial in all cases, because it would bring independent scrutiny from a professional with experience in such matters. We will talk about the issue of skills shortly, which comes into it as well.

An AMCP review can only be a good thing. It would ensure that even lower risk cases than the ones I spoke about were properly scrutinised, so that cared-for people would be at less risk of being inappropriately deprived of their liberty. That is what it is all about, really; that is what we on the Opposition side are doing. I am sure that we and the Government are of one mind on the important role that approved mental capacity professionals can play, which is why we will support Government amendment 9 when it is put to the Committee, and why I hope that they will support our amendments 37, 38 and 39.

I hope that my hon. Friend agrees that my hon. Friend the Member for Birmingham, Selly Oak does himself down, because this is a good amendment. He is actually doing the Minister a favour, because we have talked about resources, and if we agree to the amendment there will be less associated cost. If we get the assessment right first time, it will not be laid open to challenge or repetition, and the system will be more efficient in the longer term.

Yes, I agree that my hon. Friend the Member for Birmingham, Selly Oak should not run down his amendment, because it has provoked a useful debate. The purpose of the amendment is to expand the number of people who receive an AMCP review. It goes further than the amendments that I tabled, but we support it in principle, and I hope the Minister will consider it carefully.

I thank the honourable—I seem to be test-driving someone else’s teeth today, Mr Austin. I thank the hon. Member for Birmingham, Selly Oak for raising the issue and facilitating an important discussion. I have absolutely no doubt of his dedication and good intentions in the matter. I wish to offer him some reassurance, because the Bill already requires that an approved mental capacity professional carries out the pre-authorisation review where an objection has been raised. In such cases, authorisation cannot be granted unless the pre-approved mental capacity professional is 100% satisfied that the authorisation conditions are met. Amendment 9 would strengthen this provision, as the hon. Member for Worsley and Eccles South mentioned.

Should an approved mental capacity professional not complete the pre-authorisation review, it would be completed by someone who is not involved

“in the day-to-day care of the cared-for person…in providing any treatment to the cared-for person, or…who has a prescribed connection with a care home.”

We believe that this would ensure that the pre-authorisation reviewer is sufficiently independent. We expect that the review would be completed by professionals such as social workers, nurses or physicians. The hon. Member for Birmingham, Selly Oak talked about the use of the term “appropriate experience”, which is set out very clearly in extensive case law.

I am grateful to the Minister for that. Why does the wording suggest that the person should “appear” to have the appropriate experience? That does not sound quite as precise to me. Perhaps I am having difficulty comprehending this, but “appears” seems to suggest that there is an element of doubt or vagueness about the situation.

The hon. Gentleman is questioning aspects of legal terminology, on which I am not a huge expert. I am happy to get back to him on that in due course.

The hon. Gentleman referred to my personal family experience. I shall not share my life story, but my uncle’s situation is only the most recent experience that I have had of the whole system. I have far more than one family experience of this, which is why I am very keen to ensure that the Bill not only offers as much protection as it can, but works effectively and is as streamlined as possible. I have seen the effects of the delays not only in my constituency office, but in my personal life.

We have to be super careful not to denigrate in any way our care home staff, which I have spoken about before. So many of them work with great professional integrity. We have to be super careful about saying that a care home cannot be trusted not to interfere in the way the judgment is made. Clause 21 sets out clearly that the review would have to be completed by somebody who is not involved

“in the day-to-day care of the cared-for person…in providing any treatment to the cared-for person, or…who has a prescribed connection with a care home.”

The amendment would move away from having a targeted system, which allows authorisations to be in place more quickly, and would effectively recreate the current DoLS system. We cannot allow that to happen.

The hon. Gentleman talked about detriment to the interests of the individual. At the moment, the biggest detriment to the interests of 125,000 individuals is that they are sitting on a backlog. Some 48,000 have been sitting there for more than a year, which I am sure is not his intention. I cannot support the amendment and I ask him to withdraw it.

I am prepared to concede that the Minister has offered some reassurance—as a doubting Thomas, I would like an awful lot more. To be terribly honest, I am not that convinced. “Appear” is not a technical legal term; it is a description of the professional who would review a cared-for person’s situation for determination. Clause 18 sets out that the

“assessment must be carried out by a person who appears to the relevant person to have appropriate experience and knowledge.”

There is nothing too technical or legal about that. I say as gently as possible that if I were the Minister, I might go back to my officials and have another conversation about that in order to establish exactly why that wording has been chosen.

The Minister knows the Opposition’s view. She knows the view of quite a number of important organisations that are involved in this work day in, day out. It is probably better if I agree to withdraw the amendment now and take it on trust that the Minister will look further at our concerns. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 32, in schedule 1, page 13, line 46, at end insert—

“(aa) a determination made on an assessment in respect of the cared-for person as to whether the person’s capacity is likely to fluctuate, and”.

This amendment requires that an assessment of whether a person’s capacity is likely to fluctuate is included within the initial capacity and medical assessments, and therefore seeks to ensure that fluctuating capacity is reflected in the care plan of the cared-for person.

With this it will be convenient to discuss the following:

Amendment 31, in schedule 1, page 13, leave out lines 47 and 48 and insert—

“(b) a determination made on an assessment by a registered medical practitioner in respect of the cared-for person that the person has a mental disorder.”

This amendment would require the medical assessment to be carried out by a registered medical practitioner.

Amendment 33, in schedule 1, page 14, line 2, after “appropriate” insert “skills,”.

This amendment would require the person carrying out a medical or capacity assessment to have the appropriate skills to do so, as well as the appropriate experience and knowledge.

It is a particular honour to speak for the very first time from the Front Bench in a Bill Committee under your chairmanship, Mr Austin. I will speak to the amendments and ask some questions of the Minister about the parts of schedule 1 to which they relate.

Amendment 32 relates to people who may have fluctuating capacity to consent and would require an assessment of whether a person’s capacity is likely to fluctuate to be included within the initial capacity and medical assessments. It therefore seeks to ensure that fluctuating capacity is reflected in the care plan of the cared-for person. It is our intention that the assessor must state whether the capacity of the person is likely to fluctuate and, if so, the likely duration of any period during which the person is likely to have capacity to consent to those arrangements.

This group of people were mentioned at length in the Law Commission’s draft Bill, but are conspicuous by their absence from the Government’s proposals. The Law Commission identified this point as a significant weakness in the DoLS system, as fluctuating capacity is dealt with entirely within the code of practice rather than in the legislation. I hope the Minister can explain why the Government’s Bill differs from the Law Commission’s proposals in this regard.

When the Law Commission launched its consultation, despite not specifically seeking views on fluctuating capacity, it was clear that it was a major concern for practitioners. One psychiatrist told it that

“the ‘black and white’ nature of the Mental Capacity Act’s approach to capacity fails to reflect the reality and complexity of fluctuating capacity.”

The Law Commission found that when it comes to fluctuating capacity, there is a disconnection between legislation and practice. That applies generally in relation to the Mental Capacity Act 2005, but raises specific issues when it comes to deprivation of liberty. There is little consistency in how different care settings treat fluctuating capacity. The Law Commission visited one care home where everyone with fluctuating capacity was deemed not to have capacity at any point, which meant that they received safeguards, but even on good days they were not able to make their own decisions. At another care home, everyone with fluctuating capacity was deemed to have capacity at all times. Although that gave them greater autonomy, it also meant that they did not have the safeguards that the Mental Capacity Act provides for.

The Bill does not change the status quo. It requires a binary decision to be made—either the person has capacity or they do not. The Law Commission found it unacceptable for the legislative framework to simply ignore fluctuating capacity, as it exposes health and social care professionals and those authorising a deprivation of liberty to significant legal risk. I hope the Minister will give the Committee her own assessment. Does she accept the Law Commission’s warnings on that risk? Will she explain why the Government have not adopted those proposals?

The amendment would introduce a degree of nuance and reduce that risk. Requiring fluctuating capacity to be considered and recorded lays the foundation for authorisations that vary based on changes in somebody’s capacity. Inclusion also has other benefits, which the Law Commission raised and which the amendment would reinstitute. Inclusion provides access to important legal rights, such as rights to representation and support by an advocate or another appropriate person. We will return to that point in the discussion on amendment 45, where we will set out what it means in more detail, but I hope that the principle will receive the Government’s consideration and support.

This group of amendments and the section of the Bill they seek to amend may seem technical, but they go to the heart of one of the most serious issues that we as parliamentarians ever consider: the circumstances under which the citizens we represent can be denied the liberty that it is our historic role to safeguard. I hope that the Minister will address our points and, if she accepts the principles behind it, accept the amendment.

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

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

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

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

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

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

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

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

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

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

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

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

It is a pleasure to follow my hon. Friends the Members for Dewsbury and for Stockton South, who made compelling arguments that I hope to add to a little.

On fluctuation, by definition we are talking about some of the most challenged individuals in society. As a result, their medication needs could be significant, and the nature of their challenges can change over time. It is not only conceivable but probable that those individuals’ needs may vary. Therefore, the protections we need to give them may have to be slightly flexible.

Behind the Cheshire West case and the television documentaries that make us all throw our hands up in the air and think, “Goodness me, how awful”, is the idea that none of us thinks that someone whose liberty needs to be taken away for their own protection should ever be put away and forgotten about. None of us wants that at all. That is in keeping with the theme of wiring into the Bill the understanding that we are talking about human beings, and that things change and their conditions change, as they do with us all. Therefore, we may need to change the way they are looked after and supported.

I reflect on the point the hon. Member for Halesowen and Rowley Regis put so well; on Tuesday I was wringing my hands about my past anxieties about the lack of assessing capacity. I then put my name to an amendment that asks for greater specialism among those assessors as people who could pick up something that, as the hon. Gentleman said, was not trivial. I understand his view but do not completely share it. We want to include in the Bill the possibility that an individual’s needs may fluctuate—not how those needs will fluctuate. It would not necessarily mean that all the assessors have to have the ability to make that judgment. If the assessment says, “There is a reasonable chance that this individual’s needs may fluctuate,” that puts a “So what?” test on the responsible body, which may say, “Okay. We may therefore need to call in someone who has that specialism at an appropriate moment.” That could be covered in the code of practice. I do not think that test puts an unreasonable or unnecessary burden on the assessing capacity, which is finite.

I support the point that my hon. Friend the Member for Dewsbury made. Most of this discussion has been framed around the idea that some people are deprived of their liberty because they are deemed not to have the capacity to look after themselves, but because their needs fluctuate, that may not have needed to happen. As my hon. Friend said, there is another cohort of people who are assessed not to have fallen into a deprivation situation, but that might not be safe for them either. It is important that we bring that into the discussion. This is not just about people who are deprived of their liberty when that may not need to be the case; it is also about people who, the vast majority of the time, are not in those circumstances, but in a conceivable situation relating to their personal health challenges, may need to be deprived of their liberty. That is a really important point.

Amendments 31 and 33 get to the nub of what we have been talking about for the past two and a half sittings. What are we trying to do with assessment? If the Bill tilts towards moving assessment away from local authority-hosted social work into care settings, with the people who are around the individual the most and have great familiarity with them, the Opposition have expressed some discomfort about that. Nobody is arguing for perfunctory or tick-box assessments—hon. Members on both sides of the Committee have been clear about that. With amendment 33, we want to put on the face of the Bill a requirement that the people who carry out assessments have the right qualifications—I hope that will apply to pre-authorisation assessments, too—so we have the confidence to say to people, after this Bill has wended its way through Parliament, that we have not created a system that has moved away from skilled assessment, which is expensive, finite and a challenge in this country, towards unskilled assessment because it is easier or cheaper. Nobody wants that; I certainly do not. By putting that on the face of the Bill, we can give comfort to the people who observe our proceedings and those who will engage with us during the Bill’s progress that we are not seeking to do that.

My hon. Friend is making a very powerful case. As a former trustee of Alzheimer’s & Dementia Support Services, which dealt with people with very serious vulnerabilities, I can attest to the fact that amendments 31 and 33 are entirely sensible and should be incorporated in the Bill. Not having a registered medical practitioner undertaking these assessments, especially when we are dealing with very vulnerable individuals, would be detrimental to the entire process.

I appreciate that intervention. One of my favourite things about being in this place—certainly in Bill Committees, out of the white heat of the Chamber—is that we learn a lot that we did not know about people’s knowledge and expertise, whether it is personal experience, professional experience or experience from their spare time. It helps us all. That contribution adds to the debate, and I greatly appreciate it.

These amendments will help to give confidence that what we are all trying to achieve here will be achieved in the Bill. I would expect it to be enhanced by the code of practice, but in law and in statute, in the Bill, we in this place will have made a clear commitment about what sort of legislation we want. In that spirit, I commend the amendments to the Committee.

As colleagues may remember, on Tuesday I mentioned my past as a journalist, public relations manager and communications manager—something, I have found out, that I share with you, Mr Austin.

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

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

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

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

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

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

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

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

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

I will move on to amendment 31, which addresses who should be able to carry out medical assessments.

As hon. Members know, one of the three criteria for authorising the deprivation of liberty is that the cared-for person has a mental disorder. On the face of it, that is one of the most straightforward provisions in the Bill. However, the only provision for who should carry out the assessment is contained in paragraph 18(2), which states that the assessor must appear

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

I am sure that I am not the only person present who is somewhat unclear about what constitutes the appropriate experience and knowledge.

Unlike other areas of the Bill, the assessment of a mental disorder is not wholly subjective; it is a medical assessment made under the Mental Health Act 1983. If someone wants to detain someone else for assessment under that Act, they need the recommendation of not one but two registered medical practitioners, yet under the Bill, it may be possible for a mental disorder to be diagnosed without the input of a medical practitioner.

Amendment 31 has been supported by the Royal College of Psychiatrists, which is concerned about the potential impact of assessments made by people who are not registered medical practitioners. One of its concerns is that the Bill says that the person commissioning the assessment has to decide whether the person carrying out the assessment has the relevant skills and experience, which could lead to a significant watering down of the levels of protection if we do not clearly state who can carry out such assessments. Furthermore, it has raised the possibility of misdiagnosis where a different disorder presents as a mental disorder, which would lead to the person being wrongly deprived of their liberty under the Bill.

The amendment also brings the Bill into line with the principles laid out by the European Court of Human Rights in relation to the diagnosis of a mental disorder. In Winterwerp v. the Netherlands in 1979, the European Court ruled that article 5 requires:

“Objective medical evidence of a true mental disorder of a kind or degree warranting compulsory confinement, which persists throughout the period of detention”.

Given that requirement for objective medical evidence, the Bill needs to guarantee that only a registered medical practitioner with appropriate training has the power to determine whether someone has a mental disorder. Anything else would risk creating legal issues, as people will challenge what constitutes objective medical evidence.

I hesitate to wake up Conservative Members by pushing a point about Europe, but the Minister will know that the Secretary of State has signed a statement on the front of the Bill to say that, in his view, its provisions are compatible with the convention rights. Can the Minister therefore confirm that the Government have considered that legal point and tell us with total confidence that the Bill meets the requirements for objective medical evidence without setting the requirement that a registered medical practitioner provide it? The requirement need not be excessively burdensome on the medical profession, as the Bill already makes provision for previous assessments to be used for certifying that somebody has a mental disorder.

The Royal College of Psychiatrists has helpfully supplied some examples of where there is a clear requirement for a registered medical professional to carry out the medical assessment, which I hope the Committee will find helpful in clarifying why we have tabled amendment 31. The first case relates to an 80-year-old woman, who has been settled in a care home for a year. Suddenly, without any obvious cause, she becomes agitated and distressed and tries to leave the care home. It would not be unreasonable for a lay person to conclude that she is no longer happy with the arrangements that are in place and needs an LPS to be granted.

In fact, the reason for the woman’s agitation is that she has developed a urinary infection, which has caused her to develop delirium. Once that is diagnosed and treated, she regains capacity and no longer needs an LPS. Delirium is not only easily missed, but life threatening. By having the involvement of a registered medical professional, it is much more likely that delirium will be correctly diagnosed.

In a second example, a wealthy man in a nursing home has met a younger woman via the internet. She has offered to move him out of the home and look after him in exchange for payment. The nursing home and social services feel that an LPS should be used to keep him in the nursing home, despite his wanting to leave. Following a detailed examination of his mental state, there is no evidence to suggest that he has a mental disorder. That example shows that it is important for an experienced medical professional to conduct a full and thorough assessment, rather than assuming that someone has a mental disorder purely because they engage in activity that others might see as reckless or unwise.

The third and final example relates to a woman living in a care home. She has been becoming more confused over time, and it is now thought that an LPS is needed. However, increased confusion is secondary to a recently commenced combination of medication. Once that is identified and her medication regime is changed, her confusion settles. After that, she is happy to remain in the home. In that case, it was important to have a medical professional with experience of analysing the impact of medication to assess the case. That meant that the changes in her mental state could be correctly ascribed to a mix of medicines that is not working, rather than a mental disorder.

All those examples illustrate cases in which the medical assessment needed to be carried out by a registered medical professional. Indeed, without the input of medical professionals at that point, it is possible that people would be not only wrongly deprived of their liberty, but subjected to totally inappropriate treatment regimes.

So far, the Government have said only that the code of practice will set out the requirements for the assessor under the new LPS scheme. I hope that the Minister will guarantee to the Committee that the code of practice will match the requirements of amendment 31 for an assessment by a registered medical practitioner. As my hon. Friend the Member for Worsley and Eccles South said, a code of practice does not carry the full weight of law. If this provision will be contained in the code of practice anyway, I see no reason to resist our amendment, which would give it that weight in the Bill. The Minister in the Lords suggested that the assessor will be a physician, but there has been no further clarification of that. I make it clear that the amendment is not merely probing; it is an amendment that needs absolute clarity.

The requirement for the assessment to be carried out by a medical practitioner is a vital safeguard. It helps to align our laws with the established position of the European Court. As such, that requirement must be included in the Bill, not shoehorned into a code of practice that we have not yet seen and that is to be published later.

Amendment 33 focuses on the skills of the people carrying out the medical and capacity assessments. The amendment goes slightly further than the Bill, which focuses only on experience and knowledge. In a number of places, that might make a difference, but it does so most clearly in relation to people with communication difficulties. The Royal College of Speech and Language Therapists stated:

“A person with a communication need may be at risk of being labelled as ‘lacking mental capacity’ if people mistake their communication problems for a lack of capacity.”

That could lead to people being deprived of their liberty under the Act when, in reality, they have the capacity to consent or not to consent to the arrangements.

One example of how that can look in practice involves speech and language therapists. In one case, a speech and language therapist used an inclusive communication approach to support a young man who had had a traumatic brain injury to understand a complex ophthalmic surgical procedure. He was then able to demonstrate that he could understand and consider the pros and cons of surgery, enabling him to make his own decision. Without that input, he would likely have been deemed to be lacking capacity and the best interests process would have been implemented.

In short, amendment 33 is about ensuring that we do not assume that people lack the capacity to make decisions purely because they might struggle to make themselves understood. Our amendment would ensure that whoever carries out the assessments has the appropriate skills to communicate with the cared-for person. What those skills include might of course vary from person to person. For example, if someone is non-verbal, it might well be that an assessor who can use Makaton is needed to ensure that their capacity can be considered adequately.

Will the Minister confirm that for a small number of people who have been deprived of their liberty, the main reason given was a hearing impairment? I do not think that any of us in Committee would be happy if it turned out that the person who ruled on capacity in those cases did not have the skills needed to communicate with someone who cannot hear.

The Minister in the House of Lords made assurances that the code of practice would set out the skills expected of assessors. Will the Minister for Care expand on that assurance and guarantee to the Committee that she will address communication specifically? None the less, at the risk of repeating myself, a code of practice simply does not carry the same weight as a provision of the Bill. It is absolutely unimaginable that somebody should be able to make a decision on a cared-for person’s capacity if they are unable to communicate with them properly. Amendment 33 would simply ensure that they could communicate with them.

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

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

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

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

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

The Minister is discussing whether there is already the necessary content in the legislation. Is she referring to the Act that we are amending or the Bill that we are discussing? It might be helpful to clarify.

Both, really. For example, the Bill lays out how every authorisation has a programme of reviews—if there is a change in the circumstances meaning that authorisation conditions are no longer met, the authorisation is no longer valid, and a review is triggered by reasonable request or significant changes in a person’s circumstances—so it is well within the scope of the Bill to address people with fluctuating capacity and to make sure that there is the necessary capacity.

The other issue that I have to take into consideration is that in a case regarding a patient known as CDM, fluctuating capacity has been considered by the Court of Protection, and that is currently being appealed. We are awaiting that decision, which will give useful guidance on how care workers should assess those with fluctuating capacity. That is something we will want to reflect on.

The hon. Member for Dewsbury spoke about the Law Commission and asked why we have differed a little bit from what it recommended. It is simple. The Law Commission had anticipated an entirely separate scheme for fluctuating capacity, adding a hugely complex dimension to this whole piece of work. Under its recommendations, people with fluctuating capacity would be dealt with in a separate authorisation process not directly linked to the main scheme. That is why there is a bit of confusion there.

There will be an awful lot of detail on this matter in the code of practice, which we consider the most appropriate form of guidance, given the level of detail it will require—this is a very serious matter. That will continue the practice under the current deprivation of liberty safeguards system, where the code of practice addresses fluctuating capacity. As I say, the Bill talks about regular assessment, including a limit of a year in the first instance—that is the maximum. The assessments can be set at very short-frequency time periods in order to deal with somebody who might have fluctuating capacity. Statutory guidance will include cases where a person with fluctuating capacity meets or does not meet the authorisation condition of lacking capacity to consent to arrangements, and will cover whether the authorisation continues in force or ceases to have effect.

Amendments 31 and 33 seek to ensure that medical assessments are completed by a registered medical practitioner. I completely agree that the person who conducts the medical assessment must of course be suitably competent, but the Bill already states that a person carrying out a medical capacity assessment must have “appropriate experience and knowledge”. We expect capacity assessments to be completed by a registered professional such as a nurse, social worker or occupational therapist, and medical assessments must be completed by physicians, such as family GPs and other doctors. However, we have to take into consideration that objective medical evidence does not require a registered doctor in all cases. Case law confirms that it can also include psychologists, for example, as was confirmed by the Law Commission.

In addition, to show the complexity of the issue, registered medical practitioners can include doctors who do not currently have a licence to practise. I know the hon. Member for Stockton South will be aware of that, given his knowledge and profession, but we need to consider carefully the law of unintended consequences when thinking about putting that in the Bill. We could be opening up a whole unwanted can of worms. We need to consider carefully whether we allow that particular group to give medical evidence.

It should also be noted that case law on article 5 of the European convention on human rights already requires that a deprivation of liberty must be based on objective medical expertise. The focus is therefore on competence at every stage rather than on qualifications. We are making it clear that all appropriate medical professionals should be included, which includes the speech and language therapists in the case that the hon. Member for Dewsbury spoke about.

I hope I have provided confirmation that medical and capacity assessments will be completed by somebody with the appropriate experience and knowledge to do the job, and that they will have the competence required to make a reliable assessment. I hope that I have provided Members with the reassurance they need to not press the amendments.

I am grateful the Minister has agreed to have another look at the requests we have made today, but, in summary, medical and capacity assessments are a fundamental part of the proposed LPS system. They play a crucial role in preventing people from being wrongly deprived of their liberty. I have given examples today of where it is particularly important that the medical assessment is carried out by a registered medical practitioner. The European Court of Human Rights has held that deprivation of liberty on the grounds of unsound mind is permissible only on the basis of objective medical evidence. We need a guarantee in the Bill that medical assessments will be carried out by registered medical practitioners, otherwise we cannot ensure the Bill is fully compliant with European law.

I thank my hon. Friends for their contributions, including my hon. Friend the Member for Stockton South, particularly for his valuable medical experience on this issue, and my hon. Friends the Members for Stockton North and for Nottingham North.

The Law Commission wrote at length on the importance of considering fluctuating conditions. The amendment would ensure that an assessment has to be made of whether a person’s capacity will fluctuate. Without our amendment on fluctuating conditions, we might end up in a situation where anyone with fluctuating capacity is subject to different restrictions, depending on how a particular care setting treats them.

Finally, amendment 33 provides for capacity assessors to have the skills appropriate to carry out an assessment. That is especially important for people who have communication issues, as I outlined earlier. The Minister in the House of Lords said that skills will be covered in the code of practice, but we still have not seen the code. We need assurances in the Bill to ensure that people are not deprived of their liberty simply because an assessor could not understand them.

Question put, That the amendment be made.

Amendment proposed: 31, in schedule 1, page 13, leave out lines 47 and 48 and insert—

“(b) a determination made on an assessment by a registered medical practitioner in respect of the cared-for person that the person has a mental disorder.”—(Paula Sherriff.)

This amendment would require the medical assessment to be carried out by a registered medical practitioner.

Question put, that the amendment be made.

Amendment proposed: 33, in schedule 1, page 14, line 2, after “appropriate” insert “skills,”.—(Paula Sherriff.)

This amendment would require the person carrying out a medical or capacity assessment to have the appropriate skills to do so, as well as the appropriate experience and knowledge.

Question put, that the amendment be made.

Ordered, That further consideration be now adjourned. —(Wendy Morton.)

Adjourned till this day at Two o’clock.

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

The Committee consisted of the following Members:

Chairs: † Mark Pritchard, Ian Austin

† Afolami, Bim (Hitchin and Harpenden) (Con)

† Chalk, Alex (Cheltenham) (Con)

† Cunningham, Alex (Stockton North) (Lab)

† Debbonaire, Thangam (Bristol West) (Lab)

† Dhesi, Mr Tanmanjeet Singh (Slough) (Lab)

† Dinenage, Caroline (Minister for Care)

† Keeley, Barbara (Worsley and Eccles South) (Lab)

† McCabe, Steve (Birmingham, Selly Oak) (Lab)

† Moore, Damien (Southport) (Con)

† Morris, James (Halesowen and Rowley Regis) (Con)

† Morton, Wendy (Aldridge-Brownhills) (Con)

† Norris, Alex (Nottingham North) (Lab/Co-op)

† O'Brien, Neil (Harborough) (Con)

† Sherriff, Paula (Dewsbury) (Lab)

† Syms, Sir Robert (Poole) (Con)

† Whately, Helen (Faversham and Mid Kent) (Con)

† Williams, Dr Paul (Stockton South) (Lab)

Adam Mellows-Facer, Committee Clerk

† attended the Committee

Public Bill Committee

Thursday 17 January 2019


[Mark Pritchard in the Chair]

Mental Capacity (Amendment) Bill [Lords]

Schedule 1

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

I beg to move amendment 5, in schedule 1, page 14, line 6, leave out “prescribed connection” and insert

“connection, of a kind prescribed by regulations,”.

This amendment is to make it clear that a regulation making power is being conferred by paragraph 18(3) of the new Schedule AA1.

It is a great pleasure to serve under your chairmanship, Mr Pritchard. A warm welcome to the Committee—albeit not quite as warm as it would have been had you been here on Tuesday.

These technical amendments build on important amendments tabled by the Government in the other place. They ensure that a person with a connection to a care home cannot conduct the assessments needed for an authorisation or the pre-authorisation review, and thereby eliminate any potential conflict of interest. It is vital that assessments and pre-authorisation reviews are completed independently. The amendments not only ensure there is no conflict of interest in the process but prevent the approval of over-restrictive arrangements that are in a care home’s interest but not in the best interests of the individual.

The amendments clarify that the definition of a person with a connection to a care home will be set out in regulations; the Bill therefore confers regulation-making powers. That may not have been sufficiently clear in previous drafting, so those connections will be laid out in regulations, which will allow us to provide the necessary detail and ensure that all care home staff and those connected to a care home are excluded from completing assessments and pre-authorisation reviews. Consideration was given to setting that out in the Bill, but we concluded that regulations would better serve our intention of ensuring that we exclude agency staff and others who do not work directly for the care home. I hope the Committee supports these clarifying amendments.

It is a real pleasure to serve under your chairmanship, Mr Pritchard. The atmosphere is so much nicer than it was on Tuesday, when we were so horribly hot. You avoided being in a sauna for a few hours.

It is a pleasure to speak to such uncontroversial amendments. We will discuss conflicts of interest further, so I will not say too much now, but I wish to make one comment. The amendments make clear that assessments and reviews should not be carried out by people who have certain relationships with a care home, but I hope the Government take a broad view of the kinds of relationships that should be ruled out. The regulations must not provide that the only people with a prescribed relationship with a care home are its employees. I also hope the Government take an open and consultative approach to drawing up the regulations. Many stakeholders will have strongly held views about the kinds of relationships that should be prescribed, and the Government should ensure that they take all that expertise on board.

Amendment 5 agreed to.

Amendment made: 6, in schedule 1, page 15, line 4, leave out “prescribed connection” and insert

“connection, of a kind prescribed by regulations,”.—(Caroline Dinenage.)

This amendment is to make it clear that a regulation making power is being conferred by paragraph 19(4) of the new Schedule AA1.

I beg to move amendment 34, in schedule 1, page 15, line 34, at end insert—

“(3A) Where the person consulted under sub-paragraph (2) has parental responsibility for the cared-for person, the consultation shall seek to ascertain that person’s wishes and feelings in relation to the arrangements.”

This amendment introduces a requirement to consult parents about their child’s care arrangements.

The amendment follows on from amendment 30 on parental consent and amendment 38 on approved mental capacity professional reviews for 16 and 17-year-olds. It would provide an additional and equally important tool to ensure that 16 and 17-year-olds, who will now be subject to the Mental Capacity Act 2005, are afforded the proper safeguards.

I have previously welcomed the inclusion of 16 and 17-year-olds in the Bill, as it is important that they do not fall through the cracks in the system. Their inclusion provides consistency with the remainder of the Mental Capacity Act, which makes no distinction between 16 and 17-year-olds and people older than them, but the Bill does not go as far as was recommended by the Law Commission, which wanted the Government to carry out a full review of mental capacity law as it relates to children and young people. I hope the Government are still considering that recommendation. The current system leaves children under 16 in an uncertain legal position as there is no provision for them to be subject to mental capacity legislation, so I hope a review is forthcoming.

The amendment focuses on the consultation process that must be carried out before an authorisation is either granted or renewed. That is one of the most important processes that will be carried out under the liberty protection safeguards, as it will ensure that the cared-for person and others who are interested in their welfare have a say. Since we will not cover consultation in great detail in future, I will briefly outline why the process is of such importance in the context of the amendment.

In this area, the Bill goes considerably further than the existing deprivation of liberty safeguards system. It is welcome that we are moving on from a situation where consultation is optional to one where it is mandatory. That is a crucial part of understanding whether the arrangements are in a person’s best interests, particularly in cases where a person has communication issues—we explored that this morning. Those with an interest in a person’s welfare may be the best placed to comment on their wishes and feelings. That is a broad group, which is why the phrase “people with an interest in the cared-for person’s welfare” is so vital. It covers family members, but goes further where it needs to. It could include anyone, from fellow members of a church congregation to a neighbour who keeps an eye out for the cared-for person. The consultations are not optional; the Bill contains provision that those people must be consulted. Unfortunately, how the results of the consultation should be integrated with other assessments is not mentioned. I suspect that, again, that will appear in the much-fêted code of practice when it is finally published.

I hope it will become clear that the results of the consultation should be given appropriate weight in considering whether arrangements are necessary and proportionate. In most cases, that will be sufficient, but the views of some of the groups to be consulted that are mentioned, and one crucial group that is not specifically mentioned, should be given greater weight. This amendment refers specifically to 16 and 17-year-olds, and there is a group with a specific legally grounded interest in their welfare: the individuals who have parental responsibility for the cared-for person. We want to ensure that people with parental responsibility have their different role recognised. Amendment 30 on parental objection was one way that could be achieved; amendment 34 is another.

In the Mental Capacity Act 2005 there are a number of provisions, as part of the best interest requirements, that would be integrated into the consultation process. I will quote from those briefly. Section 4(6) of the Act requires an assessment to be made on

“the person’s past and present wishes and feelings…the beliefs and values that would be likely to influence his decision if he had capacity, and…the other factors that he would be likely to consider if he were able to do so.”

Those are not necessarily things that would be obvious to just anyone interested in a cared-for person’s welfare. In particular, beliefs and values are often deeply personal. To ensure those are properly captured, we must ensure that those people who know the cared-for person best are not only consulted but given a meaningful say on the arrangements.

When the Bill was published, the requirement was that anybody with an interest in the cared-for person’s welfare must be consulted, but as I said, it went no further than that and did not specify what the consultation would seek to do. Because the Bill extends to 16 and 17-year-olds, that provision is now clearly deficient. Parents have a greater stake in their children’s welfare than others, but more than that, parents can give a greater insight into the beliefs, values, wishes and feelings of their children than those who have other relationships. Legislation such as the Children Act 1983 recognises that fact and provides parents with a far greater say over what their children do than is normally given to other family members. In particular, existing legislation creates a presumption that a person with parental responsibility has a significant say over where a child or young person lives. We are talking about an age group that requires parental permission to get married or even to get a tattoo. It is clear that the parents of 16 and 17-year-olds have rights and responsibilities that vastly outstrip those found in other relationships. The amendment would reflect that importance.

This is a distinct issue from the one raised in amendment 30 on the role of parental consent in authorising arrangements. We have touched on that before. Inevitably, there will be cases where parents do not wish to withhold their consent completely, but none the less have reservations or suggestions that should be taken on board, particularly in the case of 16 or 17-year-olds, who may sometimes display challenging behaviour. In those circumstances, parents may not wish to veto arrangements completely, as that may leave them without the support they need.

We are taking about situations where parents may find themselves pitted against professionals. We all know the feeling of being told by a doctor that something is in our best interests; mostly, we do not challenge those assertions, but that does not mean that professionals are infallible. In cases of such importance, where we are dealing with people’s fundamental human rights, it is important that we test such presumptions.

I have spoken previously about the case of Bethany, who was held inappropriately in St Andrews independent hospital. Despite the difficulties, in some ways Bethany is fortunate that her father is able to stand up for her and argue against what professionals are telling him is in her best interests. Steven Neary, whose case I also mentioned, was also fortunate that his father worked tirelessly to have him moved from the unit in which he was being held so inappropriately.

There is another deeply tragic case, illustrating the difficulties parents have in challenging professionals’ determination of what is in a patient’s best interest—that of Oliver McGowan. I know the Minister met Oliver’s mother Paula following her successful petition for a debate on the treatment of people with autism and learning disability. Oliver was autistic, but had a full life expectancy. He had previously had adverse reactions to the type of antipsychotic medication that eventually killed him, yet despite his parents’ raising concerns, the clinician treating him continued to administer that medication and Oliver died. That tragic case highlights what parents can be up against.

The unfortunate reality is that parents such as Bethany’s dad and Steven Neary’s father, who have been able to challenge decisions affecting their children, are notable for being the exception, not the rule. There are any number of parents of children in this situation who have been told so often by professionals that the arrangements are in their children’s best interests that they find it hard to persist in challenging that over months and years. It is particularly hard for parents who do not have the resources, time or confidence to draw public attention to their case. Other parents need to be proactively supported to comment on the proposed arrangements.

To summarise my argument, some parents will not feel confident enough to try to overrule professionals who are telling them that certain arrangements are in their child’s best interest. That does not mean we should not pay particular attention to their views on whether the arrangements are proportionate or on whether there may be less restrictive options available.

One point that must be considered is where parents would prefer that their child continue to live in the family home. I spoke earlier about the importance of never depriving somebody of their liberty unless that is the only option, but the unfortunate reality is that local authorities face severe funding pressures, and professionals sometimes tend toward ensuring physical safety at the cost of all else. That can lead to parents who may want to keep their child at home being told that the only way to keep the child safe is to move them elsewhere. Giving their views particular weight at the consultation stages is one way to ensure that arrangements are not authorised when a less restrictive option is desirable.

The amendment provides a dedicated outlet for parents to give their views. It reflects the greater role that parents and those with parental responsibilities play in caring for their children. The purpose is to strengthen the role that parents can play throughout the process of authorising a deprivation of liberty. Our amendment 30 would have required them to give their approval to any arrangements, but there is a final reason to specify that those with parental responsibility must have their views considered. I discussed at length earlier some cases where care homes restricted contact between a cared-for person and their family. That can be done for no reason, with only spurious grounds given. The cases I raised earlier all related to an older cared-for person, but the same provisions are sometimes put in place for younger people, with parents restricted from seeing their own children. However widespread that practice may be, it is another instance where a single case of a parent being denied a say on their child’s care for no good reason would be too many. I hope amendment 34 makes it clear that the responsible body, or whoever else is organising the consultation, cannot simply sideline those with parental responsibilities. The amendment is about ensuring that the parental voice is heard throughout the process and can shape the form that arrangements may take.

We are talking about a cohort of young people with immensely complex needs. They need the people who know them best to be not only informed, but actively consulted on the arrangements they will be subject to. By doing that, we can ensure that when 16 or 17-year-olds are subject to the liberty protection safeguards, it is done in their best interests.

It is a pleasure to serve under your chairship, Mr Pritchard. This morning we talked a lot about the role of parents in these circumstances, so I will not rehearse all those arguments again. We tested the view of the Committee on the principle that there would be a parental override, and the decision of the Committee was that that was not appropriate. Amendment 34 is perhaps a step back from that, but would still give parents a very important place and role in exceptionally difficult decisions. I hope it might find a little more traction with colleagues.

We have not seen the code of practice and we do not really know how things will be documented, but a section of an assessment made will state clearly that professionals have put arrangements in place for an individual but that that individual’s nearest loved ones do not think that placement is appropriate. At that moment, that would change nothing—as with the decision we dealt with this morning, the professionals will have the ultimate say—but it might mean something as the placement is monitored by the commissioner and responsible bodies.

We talked about fluctuating need and the possibility of meeting that through the code of practice, and perhaps during a reassessment—we will come on to periodic reassessments—or in any sort of monitoring, the professional who picks up the case, having seen lots of other cases, could then see a very clear flashing light that says, “This is a vulnerable young person”—which alone should be enough to grab the attention—“and their family and loved ones, their nearest and dearest, do not think that this is a good placement for them.” That is a good flashing light, a safeguard for the individual, ensuring that that is held in people’s minds during any reassessment.

We have said that there is to be no parental override. Okay, but if we do not make the provision we propose and have some sort of clear and obvious sign of parental objections, how else will the parental voice be heard? If we just left that to the memory of the assessor, who might have done the case first time, or to the institutional memory of the provider, with all the pitfalls that we talked about on Tuesday, I do not think that we will have passed the test. When talking about the most vulnerable 16 and 17-year-olds, we will have lost the voices of their parents. That would be a big risk.

I thank the Opposition for raising this issue. As we have heard, the amendment would require that parents’ wishes and feelings about the proposed arrangements for their 16 and 17-year-old child are ascertained. That would be in addition to the main purpose of the consultation, which is to ascertain the wishes and feelings of the cared-for person.

I understand that hon. Members are concerned to ensure that parents’ voices are heard—so, of course, are the Government. Parents have a vital role in caring for their children, especially when they lack mental capacity. We would fully expect the responsible body to consult parents about their views of the arrangement, where appropriate, while ascertaining the wishes and feelings of the person. We therefore believe the amendment to be unnecessary, because parents involved in the care of their child will already be included in the consultation process, where appropriate. I refer Members to my earlier comments on the safeguarding issues that must also be taken into consideration.

The other thing to be taken into consideration, which I mentioned earlier, is the Birmingham case which is being considered by the Supreme Court. That will bring further clarity to parental responsibility for young people lacking mental capacity.

I hope that the Minister was listening to the cases that I cited—I know that she has been involved in and heard of those cases, and sometimes met the individuals. Parents, however, were not consulted in desperately difficult and at times tragic circumstances. She knows that Paula McGowan and Oliver’s father were not consulted; in fact, they were ignored. On a number of occasions, I have talked about the case of Y, whose parents were ignored—the social worker just ignored them—to the real damage of that young person, who was held for two years. The Minister says somewhat glibly, if she will excuse me saying that, that parents will be consulted, but they are too often ignored. It seems to me that the working practice of many professionals in this field is to ignore the parents. I do not think that the amendment is unnecessary, because it creates a situation in which we draw attention to the importance of the input that parents can make. I have certainly seen no evidence that that is routinely used at the moment.

I very much take on board the hon. Lady’s concerns, and she knows that I have enormous respect for her work in this field. As she said, I have met with a number of parents involved in these tragic cases—she mentioned Paula McGowan and her son, Oliver. It was not just Oliver’s parents whose wishes and feelings were ignored; it was Oliver’s. In the initial period he said that he could not have the medication that they were giving him, and they still gave it to him anyway. Her point is incredibly valid, but it needs a lot more than this to achieve what we are aiming for. That is why we are bringing forward the consultation on the appropriate training for people who work in health and care settings, on how to be able to communicate with, understand and properly look after people with autism and learning disabilities.

I respect that the Minister has taken on board Paula McGowan’s campaign, but how much more powerful would the training of medical professionals and others involved with the care and treatment of people like Oliver be, when it is started, if it could be said in the consultation that they have to listen to the views of the parents? That would be a change, because clearly they are not doing so at the moment.

I completely agree with the hon. Lady. We are making it clear that parental voices must be heard, but we have to be careful about putting anything in the Bill that could create unintended consequences. We have spoken about it before and those safeguarding issues have to be taken very seriously. To our cost, we have learned from previous Bills that a loophole in the law can take the whole policy off in a way that we had not entirely expected. We do not want to recreate that. I hope that with that reassurance hon. Members feel they are able to withdraw the amendment.

No, I am afraid I do not. Amendment 34 requires the views of parents to be given particular weight in the consultation process, when the cared-for person is 16 or 17 years old. That is the third of our amendments designed to ensure that 16 and 17-year-olds have proper safeguards. It is necessary, because of the greater safeguards that this age group currently receives under the Mental Health Act. I think there will be a shift in which piece of legislation is used in regard of 16 and 17-year-olds. We cannot have a situation where the safeguards are less under the mental capacity legislation than they are under the Mental Health Act or a court order. We will press this to a vote.

Question put, That the amendment be made.

I beg to move amendment 35, in schedule 1, page 15, line 41, after “is” insert “employed by an organisation”.

This amendment would prohibit the pre-authorisation review from being carried out by any person employed by an organisation involved in the day-to-day care of the cared-for person, or involved in providing any treatment to the cared-for person.

With this it will be convenient to discuss amendment 36, in schedule 1, page 16, line 2, at end insert “or independent hospital.”

This amendment would ensure that the person conducting the pre-authorisation review does not have a prescribed connection with an independent hospital.

Paragraph 21 of the new schedule AA1 makes provision for certain people to be excluded from carrying out the pre-authorisation review of a liberty protection safeguards application. In this section, the Bill specifically prohibits pre-authorisation reviews from being carried out by anybody involved in the day to day care of the cared-for person or in providing any treatment to the cared-for person. We are glad to see the safeguard is in the Bill. It would not be appropriate for a paid member of care staff to be the independent person safeguarding a person’s liberty as well.

We have previously discussed the issue of conflict of interest and we have tabled amendments to eliminate this, but the safeguards are still fallible. We have tabled amendments 35 and 36 because we believe the Bill requires further clarification to ensure that the independent reviewer is not in any way connected with the organisation conducting the pre-authorisation review. We are concerned that it is not only people directly involved in providing care or treatment to a person who may be incapable of providing that truly independent check we want to see. There are other individuals, for instance, within the same care home provider, who would still lawfully be allowed to conduct a pre-authorisation but who could not be described as truly independent. That would still represent a wholly unacceptable conflict of interest. It would be a shame if, having accepted the principle that there must be no conflict of interest in this Bill in relation to care home managers, the Government allowed it to creep in via the back door, in this way.

Amendment 36 is designed to address further potential conflicts of interest in cases where the cared-for person is held in an independent hospital. I raised the real concerns from across the sector, both on Second Reading and earlier in Committee, about the potential relationship between independent hospitals and the approved mental capacity professionals who will review cases. Our concern is that there is nothing to prevent an independent hospital from entering into a cosy relationship with an approved mental capacity professional. The AMCP could then review the cases going through that independent hospital, effectively removing a vital safeguard against the improper deprivation of liberty.

The Government have repeatedly said that that would not be permissible under their proposals. Our amendment attempts to clarify the position, so that stakeholders and others can be reassured that the Bill will have its intended effect. The Minister’s agreeing to the amendment would be welcome, given the speed at which the Bill is progressing and the concerns raised by stakeholders about not only the contents of the Bill but the perfunctory way that stakeholders have been consulted.

The Bill was amended in the Lords to ensure that nobody with a prescribed connection to a care home can carry out the pre-authorisation review. The Minister said that the Government will bring forward regulations in due course that will set out the different kind of relationships to a care home that will be prescribed. I have already made some comments on that, which I will reiterate briefly. It is important that the Government take a broad view of the relationships that should be prescribed and, indeed, proscribed. These few lines are in fact some of the most important safeguards in the Bill.

It is a pleasure to serve under your chairmanship for the first time this afternoon, Mr Pritchard. Opposition Members have expressed very real concerns about the additional responsibilities placed on care homes by the Bill and have questioned how that can work, particularly in situations in which there might not be a care home manager or if the care home management might be considered inadequate or not fit for purpose.

The Bill would allow care homes to choose any staff who they consider appropriate to undertake assessments. Who will make those decisions? If there is no manager, who else will take the decision? If the manager is deemed incompetent and does not know how to run a care home, how on earth can they make a decision on an assessor? I cannot understand that.

One best interests assessor expressed worry that care homes will want to undertake assessments as cheaply as possible, so many independent reviewers will only be able to review documents, rather than actually meeting the person in care and/or their family. I cannot understand how the Minister or Government Members think that care homes and hospitals should not consult with a range of independent reviewers, rather than potentially just one.

As hospitals will be able to employ their own independent reviewers, is the title of “independent reviewer” misleading and potentially dangerous? They will have a vested interest in the future care of a patient, and care providers, with their well-documented financial pressures, will have an interest in retaining the people that they care for. Surely the Minister agrees that assessors should be completely independent from care homes or hospitals and not just independent in name only. Does she agree that we have to do everything we can to remove this conflict of interest?

Another best interests assessor told me at a December meeting of the all-party parliamentary group on social work, which I chair, that although most care homes practise with integrity, the new proposal leaves the system open to abuse. I know that it would only be the odd one here and there, but that is the odd one too many. Under strict time and financial pressures, care home managers are likely to keep recommissioning the same assessors who are sympathetic to the desires of the care provider. The Minister must agree that that is unsatisfactory and could effectively lead to a deprivation of liberty for the people in the care home.

If there is even a tiny danger of that because of the way the Bill is constructed, the Minister could be culpable for a person losing their freedom simply because, in some cases, “independent” turned out to be anything but. I know she will reflect on that, and I hope she will accept the amendment, but if she chooses not to, she must spell out exactly how she will ensure that some vulnerable person is not caught in a trap of her Government’s making.

This debate harks back to what we talked about on Tuesday—the perverse incentives for those providing care to let individuals remain on care packages for their own commercial interests, whether consciously or subconsciously. There is definitely a conflict of interest there. We have not taken previous amendments on that, but at some point I believe a line will have to be drawn stating, “These are the very clear in law protections that we are putting down to ensure there is no conflict of interest.”

It is entirely possible that the code of practice will refer to that and at the first stroke make it clear that it would be highly inappropriate for the assessments or reviews to be done by individuals who have a close connection or employment relationship with the provider themselves. That might be so, but we do not have that code of practice yet, and in any case, it is probably something that would be better in the Bill than in guidance, notwithstanding what the Minister has said previously about the standing of the code of practice.

We know that care facilities have narrow financial constraints. Their finances are tight and, as my hon. Friend the Member for Stockton North says, there is a pressure to provide as cheaply as possible. That is a clear and present danger. To avoid that concern and send a clear signal about those who conduct these types of reviews, now is a good time to put it in the Bill.

I am grateful to the hon. Members who have raised this important issue. I will address each amendment in turn.

On amendment 35, I agree that the independence of the pre-authorisation reviewer is of the utmost importance for ensuring that there is no conflict of interest in the pre-authorisation review. The Bill provides for separation between those who will authorise arrangements and those who will carry them out. The Bill is clear that anyone involved in a person’s day-to-day care or treatment or with a prescribed connection to a care home cannot complete a pre-authorisation review. That was an amendment made to the Bill after discussion in the other place.

Even though somebody might not have a prescribed relationship, informal relationships can develop, as my hon. Friends said. Our concern is that the existence of those informal relationships—they have been described as “cosy”—may well not be precluded by the protections afforded in the Bill.

That is what we must guard against. It cannot be done in the Bill, because coverage has to be extensive; that is exactly where the regulations that run alongside the Bill come into their own. They will set out how, if someone is working for a care home in a different location but run by the same provider, they will be excluded. They will also take a broader view, encompassing things such as agency staff, volunteers and other areas where people may have very reasonable concerns, as well as, of course, everybody who is employed in the care home.

Another point I want to stress is that the amendment would put hospital trusts, clinical commissioning groups and local health boards in a position where they are unable to arrange for someone in their organisation who is separate from delivering care and treatment to complete the pre-authorisation review. They would instead have to organise someone external, which to me seems a wildly unnecessary and bureaucratic exercise. We trust our NHS staff with our lives every single day. I am sure that is an unintended consequence and that Opposition Members are not saying that we cannot trust our NHS staff to complete those reviews. That is when I talk about unintended consequences of amendments to Bills.

This is a genuine question: what will the arrangement be for inspecting the work of the people who carry out the reviews? The Minister says that we trust our NHS staff, but we have a whole series of inspection and review processes to ensure that decision makers are complying with the law as intended. I think I asked a similar question the other day about the Care Quality Commission in relation to homes, which she said that she would look at. Will there be some similar oversight or random review process of the work that these people do? That would be one way—not a guaranteed way—of picking up whether there was an unsuitable relationship. At the moment, part of the fear is that we could end up in a situation where these people are set free to do this work, but without any guaranteed oversight of how they carry it out.

I laughed when the hon. Gentleman said, “This is a genuine question,” as if all the others he has asked have not been. I am sure that is not what he intended to suggest.

If the Minister will forgive me, it is just that she looks as if she does not believe me sometimes.

I think that might just be my natural resting face. I understand what the hon. Gentleman is saying, but it depends who we are looking at. If the pre-authorisation review is being conducted by a local authority for a care home, the oversight of the senior members of the local authority would apply, as well as the Care Quality Commission, which deals with the quality of care homes. If it is something like a hospital, people will monitor other people’s work as happens already within hospitals, CCGs and health boards.

The Bill says that somebody who is involved in the direct care of a particular person cannot mark the homework of another person. In something as big and broad as a local health board, a CCG or a hospital trust, which can be enormous, exclusively saying that there could not be two people, who have never met each other before, looking at each other’s work seems to me a huge leap.

Amendment 36 is designed to prevent anyone with a prescribed connection to an independent hospital from conducting pre-authorisation reviews. I am sure that we can all agree that the pre-authorisation review is critical to the effective operation of the liberty protection safeguards in providing independent reviews of proposed arrangements that may deprive people of their liberty. We are talking about the most precious and vital of our human rights. The reviews have to be conducted by someone independent, who is not involved in the day-to-day provision of care or treatment of the cared-for person. That provides the necessary degree of separation to ensure that the model is compliant with the European convention rights.

By requiring authorisations in independent hospitals to be considered by an AMCP, regardless of whether the individual objects, we add a further level of security and build on other safeguards within the model. The AMCP will meet with the person, complete any relevant consultation and review assessments to decide whether the authorisation conditions are met. They can effectively veto proposed arrangements, if they feel that the proper conditions are not met. AMCPs will be professionals, such as experienced social workers, learning disability nurses and psychologists. Their practice will be regulated by and they will be accountable to their professional bodies—in answer to what the hon. Gentleman said earlier.

The Minister just used the expression—I have lost my train of thought. I beg your pardon, Mr Pritchard.

I can see the Minister’s drift, but I do not understand how the Bill deals with a person who has a prescribed connection with a care home, but not a prescribed connection to an independent hospital. If it is important to have that in the Bill for a care home, why is it not important to have that in the Bill for an independent hospital?

It is in there—it is in both. In addition we have the AMCPs. As I said when discussed amendment 19, I fully understand hon. Members’ concerns around independent hospitals. I know the hon. Lady shares my concerns, and this matter has been raised by Members across the House. I said to her, in relation to amendment 19, that I wanted to go away and consider it further.

I did not realise I was going to have to declare an interest in the Bill, in view of my lapse a few minutes ago. My question is about the reference the Minister made to the AMCP always meeting the person. Does the AMCP meet the person in every circumstance? We tabled amendments because we want everybody to have access to that sort of professional person—not just for them to see a report, but to actually see the person.

Yes, by requiring authorisation in independent hospitals to be considered by an AMCP, we add that extra level of scrutiny and build those safeguards into the model.

Given that I have committed to look at independent hospitals again, as I said in relation to amendment 19, I hope that the hon. Lady is willing to withdraw the amendment.

I tried to ask the Minister another question. I do not want her just to go away and think about it. Is she prepared to look at adding the words “independent hospital”? Amendment 36 is a fairly simple addition of a few words. Is that what she is considering?

At this stage, I am prepared to say that I fully take on board and share the concern felt by the hon. Lady and others about ensuring that independent hospitals are not only seen to be above board, but are above board in every way that we can manage. That is why I have committed to looking again at everything that we have said so far to see if there is anything further we can do.

I thank the Minister for saying that. She will need to go further and say that she is prepared to amend it on Report. Otherwise we will have to press our amendment to a vote. It is very important. I do not really understand the difference.

Ministers have accepted in the Lords that they want to prevent this important independent review from being conducted by a person with a prescribed connection to a care home. Responsible bodies include independent hospitals. I do not understand. If the Minister is prepared to go away and table a Government amendment we will not press this amendment to a vote. Otherwise, we will.

I appreciate the hon. Lady’s tenacity and dedication to this matter. I am afraid that, at the moment, all I can I say is that I am committed to looking at it again.

That was helpful to know, because for us it is unacceptable for an independent reviewer to be employed by the same organisation that delivers care and support. That is unacceptable in a care home and in an independent hospital. The Bill is drafted too narrowly and precludes only individuals who are personally involved in the delivery of care. We certainly need to vote on the amendment. It seems to me to defy logic to have such a provision for care homes, but not to be every bit as cautious about independent hospitals.

Question put, That the amendment be made.

Amendment made: 7, in schedule 1, page 16, line 1, leave out “prescribed connection” and insert—

“connection, of a kind prescribed by regulations,”.—(Caroline Dinenage.)

This amendment is to make it clear that a regulation making power is being conferred by paragraph 21(1)(b) of the new Schedule AA1.

Amendment proposed: 36, in schedule 1, page 16, line 2, at end insert “or independent hospital.”—(Barbara Keeley.)

This amendment would ensure that the person conducting the pre-authorisation review does not have a prescribed connection with an independent hospital.

Question put, That the amendment be made.

Amendment proposed: 38, in schedule 1, page 16, line 4, after “if” insert—

“the cared-for person is aged 16 or 17 and in other cases if”.—(Barbara Keeley.)

This amendment makes provision for an AMCP to be involved in all cases involving 16 and 17 year olds.

Question put, That the amendment be made.

Amendments made: 8, in schedule 1, page 16, line 8, leave out “or”.

This amendment is consequential on Amendment 9.

Amendment 9, in schedule 1, page 16, line 12, at end insert—

“(c) the arrangements provide for the cared-for person to receive care or treatment mainly in an independent hospital, or

(b) the case is referred by the responsible body to an Approved Mental Capacity Professional and that person accepts the referral.”—(Caroline Dinenage.)

This provides for two additional situations where a pre-authorisation review must be carried out by an Approved Mental Capacity Professional.

Amendment proposed: 37, in schedule 1, page 16, line 12, at end insert—

“(c) the arrangements include the use of physical restraint, or

(d) the arrangements include the use of sedating medication, or

(e) a person interested in the cared-for person’s welfare has objected to the arrangements, or

(f) the cared-for person owns or has the right to occupy a different property to the property in respect of which the arrangements apply, or

(g) the cared-for person is receiving covert medication, or

(h) the cared-for person is restricted from having contact with named persons, or

(i) the cared-for person is being detained in a mental health establishment for the purposes of treatment of a mental disorder, or

(j) there is a less restrictive option for the cared-for person’s care or residence available, or

(k) the cared-for person, or a person interested in the cared-for person’s welfare, requests the review be by an Approved Mental Capacity Professional.”—(Barbara Keeley.)

This amendment provides for access to an Approved Mental Capacity Professional in specific circumstances.

Question put, That the amendment be made.

Amendment proposed: 39, in schedule 1, page 16, line 12, at end insert—

“(c) the arrangements provide for the cared-for person to receive care or treatment, and it is reasonable to believe that the cared-for person does not wish to receive the specific kinds of care or treatment which the arrangements provide for, or

(d) it is reasonable to believe that the cared-for person does not wish to receive care or treatment overall.”—(Barbara Keeley.)

This amendment broadens the criteria of objection in the Bill, so that it applies to objections to the kinds of proposed care or treatment to be given, or to an overall objection to care or treatment.

Question put, That the amendment be made.

Amendment made: 10, in schedule 1, page 16, line 31, leave out

“(whether or not paragraph 21(2) applies)”.—(Caroline Dinenage.)

This amendment is consequential on Amendment 9.

I beg to move amendment 42, in schedule 1, page 16, line 38, leave out

“if it appears to the Approved Mental Capacity Professional to be appropriate and practicable to do so”.

This amendment varies the role of the AMCP so that they must meet with the cared-for person in making their determination.

With this it will be convenient to discuss amendment 43, in schedule 1, page 20, line 34, leave out

“if it appears to the Approved Mental Capacity Professional to be appropriate and practicable to do so”.

This amendment varies the role of the AMCP so that they must meet with the cared-for person in making their determination.

Much of our conversation on the Bill has so far focused on the role of approved mental capacity professionals, when they should be appointed and who they should be. We have given this topic so much time because AMCPs are a fundamental safeguard built into the proposed LPS system. This independent review process will prevent the deprivation of liberty from being applied for and approved within one system.

We tabled several amendments designed to strengthen the provisions of this safeguard and prevent anybody from being wrongly deprived of their liberty. I am sorry that the Government have not accepted our amendments, which would have provided for more people to have access to an approved mental capacity review. These reviews would have ensured that it is not only people who actively object to arrangements or are in independent hospitals who have access to the safeguard that an AMCP review would provide.

None the less, we are determined to continue to improve the Bill, so that those people who do not have access to an AMCP review are treated properly. Amendments 42 and 43 provide for AMCPs to meet the cared-for person in all cases that they review. We just had a little exchange about this, and the Minister seemed to say that there would always be meetings. I hope she meant that.

On requiring the AMCP to meet the cared-for person before making their determination, the wording—

“appropriate and practicable to do so”—

is just not correct. Does my hon. Friend agree that we have a duty of care to each and every individual? Surely each and every life is as important as the next. We must do our level best in all circumstances, not only when it is appropriate and practicable to do so.

I absolutely agree. My hon. Friend makes such a good point.

The Minister in the Lords, Baroness Stedman-Scott, said:

“We are clear that our intention is for approved mental capacity professionals to meet with the cared-for persons in almost all cases.”—[Official Report, House of Lords, 15 October 2018; Vol. 793, c. 371-72.]

That qualification—“almost all cases”—creeps in again. Our proposal would go a little further and require AMCPs to meet the cared-for person in every case that they review. This is a crucial part of reviewing an application. It cannot be right that the role of the independent reviewer should be limited to simply reading a set of papers and certifying that what is contained within them meets the requirements to authorise a deprivation of liberty. That would be no safeguard at all.

I have mentioned the case of Y v. Barking and Dagenham, which saw a young man held in an inappropriate care setting for more than two years. One major failing of the local authority and the independent social worker in that case was to simply accept the assertions made by care home staff, which led to nobody challenging the changes in Y’s condition, denying him the safeguards he so badly needed.

There are, so far as I can see, only two objections to requiring the AMCP to meet the cared-for person. The first is that it might be an excessive burden on the cared-for person. My response to that is simple: we are not asking for the AMCP to carry out a protracted, in-depth cross-examination of any cared-for person. It need not take hours or involve directly checking every minute detail of the authorisation record with the cared-for person, which would be burdensome in itself. We would not want to implement a system that requires somebody to go through a lengthy experience like that. However, that is not the same as not wanting the AMCP to meet the cared-for person, which could be for only a few minutes.

Does my hon. Friend share my surprise that these words have actually been included in the Bill? We have heard quite a bit from the Minister about the things she has not wanted to add to the Bill because she has not wanted to send the wrong signal or be too rigid in her approach. Does my hon. Friend agree that, if the Minister’s argument is that there could be genuine circumstances where it is not necessary to meet the person and the phrase would apply, that would be a matter of professional judgment that could be spelled out in the code of practice? By putting it in the Bill, the Minister succeeds in giving a clear signal that she expects there to be lots of circumstances where the person will not be seen.

That is really worrying.

As I was saying, the meeting could be for just a few minutes to confirm that the cared-for person appears to present with the behaviours that are described in the application for deprivation of liberty. A meeting, no matter how short, could confirm or deny what is written in that application—whether a person is visibly happy or unhappy with arrangements and whether the arrangements appear to be proportionate.

To give a hypothetical example, physical restraint is not unheard of in cases under the deprivation of liberty safeguards—we know of many cases where restraint is being used. It might not be unreasonable to look at a level of physical restraint on paper and feel that it is needed to prevent harm to others, but seeing that person in the flesh may make it clear that the subject of the application is underfed and would not present a significant physical threat. Cases such as that would perhaps be rare, and I do not want to suggest that care providers would seek to over-restrain people as a matter of course, but the Minister and I, and many hon. Members, understand that it does happen. In such a case, the meeting with the cared-for person would tell the AMCP whether the arrangements were overly restrictive.

A second objection might be that meeting a cared-for person would involve extra cost. As it stands, the responsible body decides whether an AMCP should be brought in to review a case, so responsible bodies, including local authorities, must be properly resourced to bring AMCPs in on all cases where they are needed. We will touch on resources later in the debate. The reason that the meeting is important is simple: it may be that the cared-for person is not completely as they are described on paper or by other people that the AMCP meets in the process of their review.

I return to the case of X, whom I discussed previously, to illustrate why that is so important. For hon. Members who cannot remember that far back in our discussion—we have had several case studies—X was a 99-year-old woman residing in a nursing home. Daily, if not hourly, she was objecting to where she was. She wandered up and down the care home objecting to the arrangements that had been put in place. Of course, nobody in the care home had bothered to identify that X was objecting to the arrangements and that, as such, she would require a deprivation of liberty safeguards application to be made.

The Government’s refusal to accept some of our earlier amendments on approved mental capacity professionals means that X would not have received an AMCP review, given that nobody had identified an objection. If an AMCP had been appointed, however, it would have been critical that they met X, because anything else would have led them to simply accept the word of the nursing home, which clearly felt that X was content with the arrangements, despite the evidence to the contrary.

Meeting the cared-for person would allow the AMCP to stress-test the other elements of the application that they are reviewing. It would provide them with primary evidence, against which they can hold everything else they are given. I hope that the Minister agrees that that is important—indeed, that is undoubtedly why the Bill contains provision for approved mental capacity professionals to meet most of the cared-for people whose cases they are reviewing. Our amendment would simply extend that slightly to ensure that nobody falls between the cracks.

As we have discussed, the AMCP will not be involved in the majority of pre-authorisation reviews. They will be involved only in higher-risk cases where extra safeguards are needed. Given that the AMCP is being brought into the process because the cared-for person is at risk of being inappropriately deprived of their liberty, it seems perverse not to require that they at least meet the cared-for person.

The Bill provides for the approved mental capacity professional to

“meet with the cared-for person, if it appears”

to them

“to be appropriate and practicable to do so”.

On that word “appears”, the only information that the AMCP will have to judge that on is information provided by other people. If they do not get the chance to make any kind of independent assessment themselves, there is the risk that other people’s judgment will influence their judgment.

I agree, and it is words like those that we have a problem with. The Government have said that there will be guidance in the code of practice that will address what that means and what should be done in cases where it is neither “appropriate” nor “practicable”. The Opposition cannot yet see the code of practice and, therefore, we simply cannot accept assurances about its contents. The only way that we can guarantee that the Bill will work as intended is to put provisions in the Bill.

I made a point on Tuesday about the code of practice that I will repeat now, because it is an important one. Statutory codes do not exist without a statute, and the majority of laws do not have a code of practice. Codes are there only for when non-legal people are using a law directly. No one expects non-legal people to read or necessarily understand a statute, and so a code is provided. Such a code follows what is in statute and sets it out in lay terms and at length, but it does not exist if the obligation in law is not clearly set out. That is what we want to address. Where a case requires review by an AMCP, that professional should be required to carry out their review in the fullest manner possible, and that must mean that they meet the cared-for person.

If the Government want to set out the limited set of circumstances where they do not feel that that should be the case, they should do so in the Bill, as then we can give their proposals the scrutiny that they are due. This is not an issue that should be relegated to a code of practice. If the circumstances in which a meeting is not required are too broad, there is a risk that people will be inappropriately deprived of their liberty, despite having had a review from an approved mental capacity professional. That would be unacceptable. We cannot allow decisions of such importance to be made in a code of practice that we cannot see. As such, I hope that the Government will accept the amendment, and ensure that all the high-risk cases to which we are referring receive the full review that they need, including a meeting with the AMCP.

I know that the Minister is well intentioned with this Bill, but it remains the case that the cared-for person is not always at the heart of it. That is a major worry, not just for us, but for people across our society. The issue has been brought to me by the Law Commission, by the Alzheimer’s Society, by experts who work for pro-liberty groups and by constituents who have taken the time to write to me on this point specifically.

It is baffling to me that the approved mental capacity professional is not required in the Bill to meet the cared-for person. Yet they are the professional who will decide the future of that person—whether or not they lose their liberty. None of us would want that for one of our relatives, would we? We simply would not want that to happen.

It may well be that the person in care does not have the capacity for a meaningful conversation to express their wishes and beliefs, but the assessor does not know that unless they meet them. It is essential. If the person in care does have some capacity, which I suspect would be identified by the assessor, surely their views, however communicated, ought to be taken into consideration—and, who knows, we might avoid the deprivation of liberty for that person.

I have already raised the importance of the role of speech and language therapists. I think the hon. Member for Faversham and Mid Kent mentioned them this morning, and I know the Minister accepts the role that they have to play. They may well help identify the wishes of the cared-for person simply by enabling them to communicate, and surely there should be a separate assessment of the person’s views. If they are opposed to the accommodation or the care plan, an independent advocate should act in that person’s best interest.

Evidence submitted by Rethink Mental Illness raises the important point that nobody should have an advocate forced upon them, especially if they do not want one. However, advocates should still be appointed, even if they are then removed. That would ensure that the opinions of both the advocate and the person in care are taken into consideration, and that a judgment is made by a professional on the need for representation. We will debate advocacy later on in this Committee and I will speak to it in more detail then.

Ultimately, the amendment is about ensuring that the approved mental capacity professional has met with all the appropriate parties, including the person in care themselves, so that they can make the most informed decision possible. Not only does mandating the AMCP to meet the cared-for person before making the decision ensure liberty and respect is given to the person in care; it makes the professional’s job considerably easier, as diagnosis is more effective when they have met the person. As was raised in the evidence-gathering, in some cases simply meeting the cared-for person can make it obvious whether the person has capacity. As I said earlier, I suggest that no one but a professional is fully equipped to make that judgment.

Kay Matthews, from the deprivation of liberty safeguards team in the Borough of Poole local authority, wrote to the Committee and said that she would like to see the

“Wishes of the person—past and present”—

I emphasise “past and present”—taken into consideration in the Bill. She went on to say:

“I would like the person’s wishes—what they want, what they would have wanted—to be central to the assessment. I would like it stipulated that people making decisions on behalf of the person ought to support the person who lacks capacity to make the decisions they would have made if they still had capacity; that the person’s wishes are to be followed unless there is evidence that there is or could be seriously dangerous or significantly distressing consequences for the person.”

Ms Matthews says that that is vital because,

“in practice, some staff and relatives see a lack of capacity as a green light to over-ride the wishes of the person to meet their own needs (which are usually to feel less personally or professionally anxious about the person).”

She says that in her 10 years of experience she has seen it happen “again and again”. It is not only ineffective, but potentially dangerous that the Bill would allow the AMCP to basically come up with a verdict by just reading the in-care person’s file or talking to everyone else apart from the person themselves. I understand that because of tight budgets and cuts, care homes need to save money and time, but that comes at the cost of the in-care person.

While I am on the subject of costs in care homes, can the Minister tell me what assessment she has made of the potential costs that will fall on care homes from their extended role in the process? Has she had any data from the industry on that and, assuming she has, will she publish that assessment and data so that the Committee can understand the additional financial burden she is placing on the sector? Can she also advise us of who will be responsible for those costs? Will it be the hard-pressed care home that has to absorb them? Will there be a charge on the individual if they happen to meet their own care costs? If they do not, will that pass to the local authority, the health board or the clinical commissioning group? Who will pick up those costs? If the Minister does not have the data, will she commit to getting some before Report stage?

Returning to the amendment, do the Government want to be seen to be ignoring the voices of people in care? Most of all, does the Minister want to see people in care deprived of their liberty for the sake of what I see as one essential step in the process? The Mental Capacity Act should be an Act that is designed to support, listen to and respect the opinions of those being cared for. It should not make it easy for other people to quash or ignore the decisions of that individual.

I have specific trouble with the word “practicable”. From my time in local government—I know things have not got better in the 18 months since then—I would argue strongly that the current assessment workload is not practicable for the individual. Earlier in our consideration of the Bill, my hon. Friend the Member for Birmingham, Selly Oak compared social work case loads when he was active in the profession with what they might be today. Putting in legislation how practicable it is for an individual to go and do an assessment creates the chance of a loophole that does something that we do not intend the Bill to do.

It is striking, as my hon. Friend the Member for Birmingham, Selly Oak said, that the Minister has at all turns been careful about what has been put in the Bill so as not to create future loopholes. We know that traditionally, this area has been tested very heavily in case law and it will be tested again in court. She has been very careful not to put those words in there, but this one is problematic. We know that in a time of rising demand and diminished resources, there will be pressures. To put something in that suggests that if it is just too difficult for a social worker to go and do an assessment, that assessment will not take place, is dangerous. I do not think that is what we are trying to do. I believe that it will lead to a serious problem.

The market for providing very high-need care is not very developed. We are talking about very small numbers of people, so there are not masses and masses of providers. When it comes to all of us being older, there are facilities in all constituencies and communities for older people to have residential care, because it is a high-demand area. The very specific, individualised care packages that involve things such as depriving liberty are not found in every community. Often, we hear horror stories in children’s mental health of people being sent a long way away to find the right facility. Are we then saying that a reassessment might not be practical, because the AMCP is in Nottingham and the care placement is a long way out on the east coast in Lincolnshire? That might not be considered by an individual to be a “practicable” thing to do, so I have a real problem with that word.

If the Government are saying that there are circumstances—my hon. Friend the Member for Worsley and Eccles South mentioned the exchange in the other place—where they are relaxed about an AMCP not seeing an individual face-to-face, I think that is a bad idea, for the reasons detailed by my hon. Friend the Member for Stockton North. If the Government are saying that there are circumstances where they are relaxed about that, they should name them and put them on the face of the Bill and be exhaustive with them, so that we can be clear and test the will of the Committee as to whether we agree.

We need to have a greater sense of what we are saying in respect of dialling back people’s rights to see a qualified professional when they are having their liberty removed. If we are rolling that back, let us be really clear about how we are rolling it back—the exact circumstances and what recourse they might have if they or their carers believe that to be wrong. I think this is out of step with all the discussions we had on Tuesday and this morning. I believe it creates a loophole and we need greater clarification.

I thank those hon. Members who have spoken and tabled these amendments. Amendments 42 and 43, as we have heard, would require an approved mental capacity professional to meet with the person in every case where they are carrying out a pre-authorisation review, rather than—as we propose and as is written on the face of the Bill—where it is “appropriate and practicable”.

The Bill currently states that where an AMCP is carrying out a pre-authorisation review, they must meet with the person where practicable and appropriate. In the vast majority of circumstances it will be practicable and appropriate. This qualification comes from the Law Commission draft Bill, which recognised—we agree with this—that the AMCP will be required to meet with the person in virtually every case. This is an important protection within the liberty protection safeguard system.

Let me make a bit of progress and I will hopefully answer the hon. Gentleman in the process, but if I do not, he can intervene again.

The exceptions where it would not be practicable and appropriate would depend on the circumstances of the case. Things such as workload, cost and distance would not count under the qualification of not appropriate or practicable. It might be not appropriate or practicable, for example, where the person is in a coma and the family has requested that the AMCP does not interview the person, because it would cause distress. Another example is where someone at the very end of their life needs to be deprived of their liberty in their last few days, and they do not want to see an AMCP. In many cases, we feel it would not be appropriate to override the person’s best interests and force them to meet with an approved mental capacity professional.

The Minister makes some very good points that I have sympathy with, but why cannot we simply include what she says in the code of practice? Setting it in stone in the Bill gives completely the wrong signal to medical care professionals: it makes it the norm rather than the exception.

I might turn that point round on the hon. Gentleman: we are indeed including it in the code of practice. The Bill states that the AMCP will meet the cared-for person except in the very rare circumstances in which that is not practicable or appropriate. We will set out those rare exceptions, including case studies, in the code of practice—a much better place for them than the Bill, which cannot include such case studies to flesh out what we are trying to achieve.

As the Minister describes it, the assessment will take place unless it is inappropriate or impractical, so perhaps the Bill ought to say that.

I thank the hon. Gentleman for that clarification, but we may be dancing on the head of a pin slightly. To my mind, the meaning of amendment 42 is that in all cases the AMCP should turn up and see the person, whereas we are saying that that should happen in all cases, with some very small exceptions. With that reassurance, I hope that the hon. Member for Worsley and Eccles South will withdraw the amendment.

The Opposition believe, as the debate has shown, that the amendment would be a crucial safeguard. We have spent a lot of time discussing the code of practice, which is beginning to seem a bit like a unicorn—it is something out there that might or might not appear and be useful.

The amendment is important because the AMCP will have to be satisfied that the reality of the situation matches what is in the application. I am sorry that we are so often having to doubt care home managers and people working in independent hospitals, but that is only because we come across such appalling cases. Earlier today I cited the case of a young man in a care home who was deprived of his liberty for two years and restrained hundreds of times; other cases include people having their arms broken through the use of restraint techniques. All these things happen, and it does not help if an AMCP is prepared to accept the word of the care staff or the people in the independent hospital—the very people who have used the restraint that broke the arm or caused the damage.

I am afraid that we therefore wish to persist in pressing the amendment. I have made it clear that the meetings would not need to be burdensome, and I fully accept that there are circumstances in which a person doing such work will have to be flexible, but I would expect people with the appropriate knowledge, skills and experience to understand how to deal with an end-of-life care case and with the needs of very vulnerable people.

Unless I am missing something, the Bill states that

“the Approved Mental Capacity Professional must…meet with the cared-for person, if it appears to the Approved Mental Capacity Professional to be appropriate and practicable to do so”.

The word “if” does not imply to me that the exception should apply only in an extraordinarily small minority of cases.

As we have discussed, the AMCP is likely to be engaged only in high-risk cases anyway, so we are not proposing something burdensome. The meeting need only be a few minutes long; I am not suggesting that it has to be exhaustive. It needs to confirm that the condition of the cared-for person matches what is in the application. In a case involving deprivation of liberty, I think family members would welcome someone saying, “I am only here to check that the facts bear out what I am reviewing.” It would be a further safeguard for people in high-risk cases.

We should reject anything that would undermine the ACMP’s ability to make a full and thorough assessment of every case. We wish to press the amendment to a vote.

Question put, That the amendment be made.

I beg to move amendment 40, in schedule 1, page 17, line 2, at end insert—

“23A If the Approved Mental Capacity Professional determines that—

(a) the authorisation conditions are not met, or

(b) that the authorisation conditions are met but that—

(i) the cared-for person or a person interested in the cared-for person’s welfare objects to the arrangements, or

(ii) the cared-for person would wish to object to the arrangements but cannot communicate an objection

the Approved Mental Capacity Professional must notify the responsible body within 48 hours that a referral to the court is likely to be required.”

This amendment requires an AMCP to notify the responsible body within 48 hours if they determine that the authorisation conditions are not met, or an objection has been raised to the arrangements.

With your permission, Mr Pritchard, I will discuss amendments 40 and 41 together, because they make sense together. They are an important means of filling a statutory grey area in the Bill. They set out what would happen if the AMCP—the person we have just been discussing—decides to reject an application after they have reviewed it. This is not currently contained within the Bill. We believe it leaves a statutory grey area, which needs addressing.

It is important because it is bound up first with the cared-for person’s entitlement to appeal to the Court of Protection and secondly with the enablement of their right to appeal. As the judgment in the case of Steven Neary found, the entitlement to appeal is more subtle than simply giving someone the right to appeal. Article 5, paragraph 4 of the European convention on human rights is not a mere “entitlement” to appeal against any deprivation of liberty, rather that the person must be supported and enabled to do so if they wish. Previous European case law has established that this support must not rely on the good will or discretion of others, or require the person to have any particular prospects of success. Support to exercise rights of appeal should be based on whether the person wishes, or would wish, to appeal.

The case of S v. Russia may be particularly instructive to the Committee. S was a man with learning disabilities, who had been deprived of his liberty by a court order made without his knowledge. The order had also made his mother his legal guardian and representative. Not only did she not facilitate an appeal to a higher court, she applied to have S placed in a psychiatric hospital. Despite repeated attempts, authorities denied his request to appeal. When S took his case to the European Court of Human Rights, it was made clear that his rights under article 5, paragraph 4 had been breached, as the right to appeal had not been made directly available to him. I hope Members will bear that case in mind as we proceed. Relying on family members, who may have different wishes or feelings from the cared-for person when it comes to the right of appeal, is fraught with risks. We have touched on this previously.

This is an area in which the current system is woefully deficient, and the Government are missing an opportunity to improve the situation. The deprivation of liberty safeguards system places a huge amount of weight on the cared-for person, or those close to them, to initiate the rights of appeal. At the moment, it is only as the very last resort that the supervisory body—what we now know as the responsible body—is expected to ensure that a case is referred to the Court of Protection, and even this provision has only recently been established.

Case law in this country has reinforced the concept of enablement of appeal. In the Neary judgment, when it became apparent that the DoLS placed too great a burden on family or friends to exercise rights of appeal, the Court of Protection concluded that

“there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court.”

The fact that this has so far been established only through case law means it is not an explicit statutory obligation.

However, the process for appealing to the Court of Protection is convoluted and unclear because so many players bear responsibility for initiating appeals. In the more recent case of AJ, the judge held that the primary responsibility still lies with the relevant person’s representative. An advocate must expedite the application if the RPR has failed to do so. I apologise for the amount of acronyms that are involved in this Bill; it makes it quite hard work. If these have failed and the person’s right of appeal has not been enabled, then the supervisory body must apply itself. This can pit a single, unpaid family member against what can seem like a forbidding system. I have heard of one case where the cared-for person wanted to appeal to a court and was being represented by their 89-year-old friend. This friend reported that she felt that

“the full force of the state was battling against her.”

Moreover, she said that she faced constant suspicion and was at a constant disadvantage when she was challenging the local authority. That is a major burden to place on somebody who will probably not have any legal expertise, but the Government have done nothing in this Bill to change it.

An alternative and more straightforward approach would be to place a clear statutory duty on the responsible body to ensure that applications to the Court of Protection are made when the person’s article 5(4) rights are “engaged”. The role of family members, as “appropriate persons”, and that of the independent mental capacity advocates, or IMCAs, would then become the backstop position, although I hesitate to use the word “backstop” at the current time. [Laughter.] However, in this case it looks as if one would be useful.

The responsible body is much more likely than a family member to understand the relevant guidance and case law on when rights of appeal are “engaged”. It should know whether alternative means to resolve any dispute are likely to be successful. And unlike the person’s family, friends and even advocates, responsible bodies will have ready access to in-house legal advice, and skilled and experienced professionals who work with the Mental Capacity Act 2005. The code of practice and developments in case law can provide guidance to responsible bodies about when these rights of appeal are “engaged”, which would be far more transparent, and much less complex and ad hoc, than the current system.

Once again, I want to be clear that something that is set out in the code of practice is not a right. As is set out in the European convention on human rights, and as was reinforced by the Neary case, support to appeal is a right. As such, it should appear in the Bill. There is an important point about what the Government have achieved through amendment 4, which has already removed one protection in relation to one crucial prerequisite to the right of appeal, and that is information being given in advance.

The removal of paragraph 13 and the provision in sub-paragraph 5 are also critical changes that weaken the right of appeal. Before it was altered, that paragraph read:

“The responsible body must ensure that cases are referred to court when the cared-for person’s right to a court review is engaged.”

In deleting paragraph 13, the Government have also removed obligations on advocates—the IMCAs—to assist the cared-for person in understanding and exercising their relevant rights, and the obligation on the responsible body to

“ensure that cases are referred to court when the cared-for person’s right to a court review is engaged.”

In deleting paragraph 13, the Government have reverted to the deficient system that we currently have. They have removed any provision for the responsible body to enable appeals, instead returning the full weight of this burden to the cared-for person and those close to them. For Labour Members, that is not acceptable and the Government must reinstate that provision as soon as possible. Ensuring that the responsible body has a duty to refer cases to the Court of Protection when this right is engaged is the only way to ensure that appeals are not hampered by lack of resources, confidence or legal know-how.

In cases where the authorisation conditions are not met, we are calling for the approved mental capacity professional, or AMCP, to be required to inform the responsible body that a referral to the Court of Protection is likely to be required within 48 hours. That would provide certainty about what should be done in cases where the authorisation conditions are not met, and it would counteract the weakening of the safeguards through the removal of sub-paragraph 5 of paragraph 13.

An important principle is being missed here, a point that was made by Lucy Series in the evidence that she submitted to the Committee. Recourse to the Court of Protection is not, as it is sometimes characterised in debates on the Bill, a sign of failure. Instead, it is a sign that the system is working effectively to place limits on the powers of health and social care professionals to impose a course of action on a person or their family against their wishes, without independent judicial oversight.

I hope the Minister will respond to this issue directly, because it is of crucial importance that her desire to create—as the Government see it—a “streamlined” system does not interfere with the fundamental right of cared-for people to appeal.

Before I press this amendment to a vote, I will also make a brief comment on the Court of Protection more generally. In its report, the Law Commission recommended that there should be a review to determine the appropriate court to rule on these matters. It said that such a review should be carried out

“with a view to promoting the accessibility of the judicial body, the participation in the proceedings of the person concerned, the speedy and efficient determination of cases and to the desirability of including medical expertise within the panel deciding the case.”

The Government initially accepted that proposal, but they have made no move to include it in the Bill. It seems a bit late in this process to adopt the radical reforms that would be needed to the practice and procedure of the Court of Protection, but will the Minister commit to engage with stakeholders to try to improve the way the court operates?

Before I conclude, I want to return to the case of Steven Neary, which made it absolutely clear that rights cannot exist in isolation; they must be enforceable and enactable. Cared-for people have a right to appeal to the Court of Protection. If the state expects that to be carried out solely by a friend, a family member or even a paid advocate, it is not enabling the use of that right, and that is simply not acceptable. The Court of Protection is the final safeguard for people who are deprived of their liberty incorrectly. The Government should encourage the use of that system, rather than make it even harder to access. Our amendments aim to rectify that, and I hope the Government will accept them.

Thank you for that clarification, Mr Pritchard.

I thank hon. Members for tabling this amendment. I agree that it is vital that where authorisation conditions are not met and the proposed arrangements are reconsidered, the care or treatment that is provided should not deprive someone of their liberty. Arrangements should be more proportionate in such cases. It is essential that the responsible body and others, such as care providers, are notified swiftly. The new model will include a wide range of people with very different circumstances. In some cases, the responsible body should be notified very quickly.

May I seek further clarification?

May I say, to help the Minister and the Committee, that the amendments 40 and 41 were coupled together due to agreements that were made outside the Committee? The Minister will have an opportunity—probably next week—to speak to amendment 41.

For the ease of the Committee, if the shadow Minister is happy, the Minister can speak to amendments 40 and 41 if she wishes. She may want to speak again next week, or she might want to let that opportunity go by. For the flow of the Committee—if the Committee is happy—let us do it now and crack on.

I am very grateful for that clarification, Mr Pritchard. I have mixed my contributions on the two amendments together, so I will combine the two, if that is all right with the Committee.

I am sure we all agree that the role of an AMCP is incredibly important in ensuring that cases under liberty protection safeguards are identified as needing to be referred to a Court of Protection, particularly because they will be reviewing arrangements where objections have been raised by the cared-for person or other people on their behalf. We are very clear that if a person wants to challenge their authorisation in the Court of Protection, they have the right to do so.

I assure hon. Members that the responsible body has a responsibility to ensure that individuals who want to bring a challenge, in line with their article 5 rights, have access to the Court of Protection, as they currently do under the DoLS scheme. That applies, in particular, where a person should have had their case taken to court for a decision, but for some reason that has not occurred. The Bill does not change that. We agree that we expect AMCPs to communicate the outcome of their review swiftly to the responsible body. That will included cases where cared-for people raise objections that may require referral to the Court of Protection.

However, it is not only AMCPs who may be aware of objections. For example, people may raise matters directly with a responsible body or someone providing care or treatment, who may, in turn, raise concerns directly with the responsible body. Reviewers may become aware of an objection during a review of an arrangement that has been authorised. I am concerned that if we specify in the Bill that AMCPs have that duty, it may be felt that only AMCPs can and should identify such cases. Others, such as healthcare staff, should also be able to raise concerns directly with the responsible body, which can consider whether an application to court is swiftly required.

On amendment 40, I agree that it is vital that where authorisation conditions are not met, the proposed arrangements are reconsidered. The new model will include a wide range of people with different circumstances. In some cases, the responsible body should be notified much sooner than after 48 hours. My big concern is that 48 hours risks becoming a target.

The Bill already provides for people to have access to the court to challenge an authorisation, so if, after a review by an AMCP, a decision is made that the conditions are met but the cared-for person or carer still objects, they could take the case to the Court of Protection for challenge. The amendment also requires that where a cared-for person would wish to object but cannot communicate that, that is notified to the responsible body within 48 hours, as likely requiring a referral for challenge at the Court of Protection.

Finally, that is also why it is important that the LPS assessments are of good quality, and that the consultation takes place with the range of people necessary to identify the person’s wishes and feelings, including family and carers. I hope that I have been able to provide the necessary reassurance and that the hon. Member for Worsley and Eccles South is willing to withdraw the amendment.

Before I call the shadow Minister, I inform the Committee that the vote on amendment 41—if there is a vote—will be taken next week, although the Committee has agreed to hear representations from the Front-Bench spokespeople on both amendments today. Amendment 40 will be taken shortly.

Thank you for making that clear, Mr Pritchard. It is a small Bill, but grouping some of the amendments is quite difficult.

Our amendments set out what would happen if an AMCP decided to reject an application on review, which is a critical moment for the cared-for person. I hope that I have made it clear that people must be not only allowed to exercise their right to appeal, but enabled and supported to do so. As I said earlier, the Government have weakened that ability, because their amendment 4 removed paragraph 13 of proposed new schedule AA1, which said that

“cases are referred to court when the cared-for person’s right to a court review is engaged.”

In large part, our need to press these amendments is a consequence of what the Government have done.

I hope that I have made it clear that we cannot expect cared-for people and their family members to manage the process of appealing through the courts totally unaided. It is a massive burden. I gave the example of an 89-year-old trying to help somebody take a case through appeal.

The reason for notifying the responsible body is that it is best placed to enable and support the right to appeal, which is the key thing that we want to bring forward. Responsible bodies must be under a duty to facilitate appeals. The Government have removed that duty through their amendment on the right to information. Our amendments seek to undo that damage and support cared-for people to exercise their right to appeal.

Question put, That the amendment be made.

I beg to move amendment 48, in schedule 1, page 17, line 30, leave out “12 months” and insert “3 months”.

This amendment is designed to encourage reviews and appropriate authorisation by making it harder to detain someone for such a lengthy initial period.

With this it will be convenient to discuss the following:

Amendment 49, in schedule 1, page 18, line 24, leave out “12 months” and insert “3 months”.

Amendment 44, in schedule 1, page 18, line 24, leave out from “less” to end of sub-paragraph (1)(b).

This amendment limits the period of renewal of any authorisation to twelve months.

Amendment 50, in schedule 1, page 18, line 25, leave out “3 years” and insert “6 months”.

This amendment would limit renewal periods to a maximum of 6 months.

It is a pleasure to see you in the Chair, Mr Pritchard. I should probably begin by saying to the Minister, just so there is no doubt, that these are genuinely probing amendments. As the Minister will know, Sir Simon Wessely recommended much shorter periods of detention in his original proposals regarding the Mental Health Act 1983, and of course there have been strong arguments—which the Government appear to have resisted—for this legislation to be more fully considered and developed in conjunction with that Act.

A recurring criticism of the operation of mental health legislation is that too many patients are only considered for discharge during preparation for a tribunal hearing. Effectively, the concern is that once a person is captive, as it were—once that person is detained—the authorities are content to leave them there. Under the Bill, a vulnerable person can be deprived of their liberty for three years, as opposed to the previous maximum of 12 months. Given some of the anxieties and concerns about the arrangements in the Bill that we have discussed, both on Tuesday and today—the sense that there may be conflicts of interest, which mean that a person’s interests will not always be safeguarded, and that some of the guarantees do not look as strong as we would like—those rather lengthy periods of detention become an added cause for concern.

I am struggling to understand the justification for having a renewal period of three years, other than on the grounds of cost; I hope the Minister can make that clear to me. She may tell me that it is to cover situations in which the person’s condition is well established and unlikely to change. I presume that if that is the case, what she means is, “We can foresee this situation carrying on, and therefore there is not much point in having further intervention or authorisation regarding the detention arrangements.”

However, what about a condition such as dementia? As I understand it, dementia is a progressive condition, so a person with dementia experiences changes over time. It could be that as a person’s dementia progresses, they need less restrictive care because their condition changes, but it is highly unlikely that that sort of change in what they need would be detected. If that person was already subject to a three-year order, who would be looking to say, “It is obvious that Mrs B’s condition has moved on, and the arrangements that were made 12 months ago can now be altered”? The likelihood is that if that person needed less restrictive conditions, she would be causing less trouble in the establishment that she was living in. She would be one of the patients or residents who was of least concern to the staff, so the improvement in her condition that would merit a lessening of the restrictions on her freedom would be completely missed, because the staff would know perfectly well that she was there for three years. That is how that would be viewed.

I notice that the wording on first renewals says “12 months or less”. What proportion does the Minister consider will be for less than 12 months? What proportion of renewals that can be for three years does she think will actually be made for less than three years? For how long are people normally deprived of their liberty under the present arrangements? What does she think will be the average period under the arrangements she proposes?

Does the Minister or the Department have any plans to monitor that? I and those who take an interest in this matter are curious to know. Will one unintended consequence of the Bill be that people end up being detained for longer periods? We will only know if there is some reasonable monitoring system. The Department of Health and Social Care is not particularly good at monitoring what happens in a whole variety of situations. I have a file in my office that is probably 2 inches thick of parliamentary answers in which I am told that the Department does not collect particular statistics or does not have particular data, or that it thinks it might be uneconomic to provide particular information. I am curious about how we will find out if an unintended consequence of the Bill is that we detain people for much longer periods. Has the Minister thought about that, and does she have any plans to monitor it?

My point is quite straightforward: the higher the maximum period specified in the Bill, the more likely that that period will become the norm. That is why it is right for us to be concerned about this. If the Minister is to change that period, we should monitor it to find out if I am right. She is not setting out to achieve that, but it may be what she ends up achieving.

As I said, these are probing amendments. I am genuinely interested to understand how the Minister arrived at the periods specified in the Bill. What gives her confidence that they are right? Is there any evidence that we can draw on that shows that 12 months is the right time for the first determination? I have deliberately picked much shorter periods partly because, as I say, Sir Simon Wessely envisaged that in his review of the Mental Health Act 1983, but also to challenge what the Minister says. If it is clearly wrong to specify shorter periods, what evidence shows that a 12-month period is right? I would be really interested if she could answer that.

It could be argued that, for a person with a treatable condition whose mental capacity might actually improve as a result of that treatment, the shorter the period of detention, the greater the incentive to get on with treating that person properly. The longer the period of detention, the greater the temptation will be to simply warehouse that person, rather than treating them.

I am curious to know how the Minister arrived at these periods, and likewise I would like to know why it is 12 months for the first renewal and three years for the second. Will she tell us whether the Government received representations from any bodies or organisations on the maximum periods? Were they lobbied by any particular organisations? If so, could she tell us which ones, and what they were doing?

As I said, mine are probing amendments. I want to ensure that a person can lose their liberty only for the period that is absolutely necessary, and that there is the maximum incentive to restore that liberty as soon as possible where it is feasible and practicable to do so.

I will speak to amendment 44, which appears in my name, and refer to the amendments tabled by my hon. Friend the Member for Birmingham, Selly Oak, although I am mindful of the time.

Under the deprivation of liberty safeguards, there is no explicit renewal mechanism. If an authorisation has come to its end but is still needed, a fresh assessment must be carried out, including of whether the arrangements are in the cared-for person’s best interests. The Law Commission suggested that that was not necessarily what was happening in practice. It found practitioners referring to an annual DoLS review, even though it was effectively a fresh application. That suggests that all applications other than the initial one are becoming a rubber-stamping process, which they should not be.

There is a clear need for a proper renewals process to be put in place. It is not appropriate, as Members on both sides of the Committee have said repeatedly, for full authorisations to be routinely undermined by being treated as tick-box exercises. The other side of that is that we do not want to put people through an unduly stressful experience when there is little prospect of any change being made to the arrangements to which they are subject. We are not intrinsically opposed to a new renewals process that cuts down on duplicated assessment, but we must be aware that any such system of renewal periods contains far fewer safeguards than there should be in the current system. We should implement it only with the utmost caution.

All that must be done to renew an authorisation is to carry out a consultation and certify that the authorisation conditions continue to be met. In most cases, that will be done by the responsible body but, as I said on Tuesday, in some cases it will be done by a care home manager. It has been made clear in the House of Lords and in this place, by Members on both sides, that assessments should not be carried out by care home managers—or indeed, as we have discussed, by anyone with an interest in keeping the person detained.

Let us be clear: at renewal we are doing just that. Such a situation may be acceptable, given the independent nature of the initial medical and capacity assessments, provided that it comes with suitable safeguards. Under the Bill, the initial duration of the liberty protection safeguard can be up to 12 months. After that, a renewal will be needed.

At the first instance, a renewal can last another 12 months. On the face of it, that is not unreasonable. Beyond that, however, authorisations can be renewed for three years, then another three years and another three years. Indeed, they can keep on being renewed for three years indefinitely. The only condition is that the responsible body, or the care home manager, thinks that the authorisation conditions are still met, and will continue to be met for the duration of the authorisation. Three years is a long time. It is so long that, frankly, making any kind of prediction becomes a fallible exercise.

To assume that any change in a cared-for person’s condition could be foreseen over that period is simply unreasonable. Yet that power is being given to independent hospital managers and, in some cases, to care home managers. They are people who have a vested interest in keeping the cared-for person where they are. Particularly in the care home sector, where, as we have mentioned, margins are narrowing and financial planning is becoming harder, a resident whom managers know will stay for at least three years may prove very hard to turn down. The Opposition simply cannot support that.

I have already talked about some of the issues that independent hospitals can pose. We know that under the current system people can be trapped in inappropriate placements for years. My hon. Friend the Member for Birmingham, Selly Oak asked an interesting set of questions about the data that exists. What do we know about this? We know from NHS Digital data that the average length of stay in an assessment and treatment unit in an independent hospital is more than five years. Under the current regime, one in seven people held in such a unit has been there for more than a decade. One in five people in an ATU has not had a review in the past year. Imagine what could happen if the renewal period needs to be applied only every three years, which is a real fear.

As the Government opposed our amendment, independent hospitals will not be answerable to anybody when authorising or renewing deprivations of liberty. I ask the Minister: how can it be appropriate for these institutions to deprive somebody of their liberty for three years without any external checks?

When the Law Commission recommended a 12-month initial authorisation period, it said that that would match the minimum recommended timescale for reviews under the Care Act 2014 and the Social Services and Well-being (Wales) Act 2014, and therefore help to minimise the duplication of assessments. I have already said that that is a positive aim. If care plans are being reviewed anyway, it does not seem overly burdensome to ask that the authorisation of the deprivation of liberty be renewed in the same time period. No small amount of effort has gone into ensuring that the liberty safeguards scheme is closely aligned with the care system, and that assessments will work in harmony. That is a positive aim if it ensures that the cared-for person receives a better service, but it cannot be right that we end up inappropriately depriving people of their liberty for years at a time.

Given the serious impact of depriving a person of their liberty, the obligations on the responsible body at renewal are not onerous. The condition or circumstances of the cared-for person might change significantly within a much shorter period, and different or less restrictive arrangements might become possible. This point needs to be addressed. It is not an authorisation condition that no less restrictive options are available. There is no obligation to give that full consideration at renewal or at any other time, but there is a clear principle that we should always seek to avoid depriving somebody of their liberty where possible. I hope the Minister will tell us what the Government will do to ensure that renewals take that into account.

Amendment 44 seeks to limit the length of any authorisation to 12 months before it must be renewed, which would allow renewals to be bound up with the renewal of other elements of the person’s care. That would ensure that it is not an excessively burdensome exercise either for the responsible body or for the cared-for person. At a time when local government resources are stretched thinly, I can understand the desire to take work off their shoulders by allowing them to renew authorisations for longer. Another way to ease the pressures on local authorities is to resource them properly to carry out their duties. It is unacceptable for the Bill to undermine crucial protections that cared-for people need in order to disguise the cuts that local government has had to bear. I have said that before in this debate and I am sure that I will say it again.

A renewal period of three years appears to be a cost-cutting exercise. I understand that the Minister is very concerned that we do not place too extreme a burden on family members and others with an interest in the cared-for person’s welfare. However, their involvement in the renewal process is limited to being consulted. I do not believe that being asked once a year for one’s opinion on whether a relative’s care has changed can be seen as excessively burdensome. Most family members would welcome the fact that their opinion was being sought and that efforts were being made to ensure that their relative’s best interests were protected.

The other safeguard provided to reassure us that a three-year renewal is appropriate is that a series of regular reviews will be carried out. Will the Minister tell us what that means? After all, the Bill makes no mention of what a regular review entails. I presume it is something that will be contained in the code of practice, like an awful lot of other things.

We are talking about a fundamental right. If a review is the safeguard being proposed, it must exist in statute. Anything else risks people’s rights being undermined. I am not alone in my concern about the length of the renewal period. My hon. Friend the Member for Birmingham, Selly Oak made a very good case for examining the renewal periods and has asked some very probing questions about them. A cross-sector group of organisations including Mencap, Disability Rights UK and Liberty has written to me expressing deep concern that the provision will lead to people being deprived of their liberty for inappropriate lengths of time. Perhaps most significantly, the group includes the Alzheimer’s Society. People with dementia are one of the groups for whom frequent renewals may not be appropriate, yet even the organisation speaking in the interests of those people feels that three years is too long.

In the House of Lords, it was recognised that there are real and valid concerns about this measure. The then Minister, Lord O’Shaughnessy, said:

“There is clear concern about a proper system of oversight and regular review”.—[Official Report, House of Lords, 22 October 2018; Vol. 793, c. 715.]

Will the Care Minister tell us what the Government are doing to address that clear concern? More than that, they appear to be swimming against the tide with this change. By tripling the length of the authorisation period, they are creating a stark difference between the Mental Capacity Act and the Mental Health Act. We cannot risk the Mental Capacity Act providing second-class protection of liberty, with fewer safeguards and longer authorisation periods. To do so would be to let down the people who, due to the vague nature of the area covered by the the Acts, fall under mental capacity provisions, not mental health legislation.

As we have already heard, there were calls for the Government to move in the other direction. Sir Simon Wessely recommended that renewal periods should be cut, not extended. A wide range of voices are telling the Government that their proposed period is simply not appropriate, and I cannot understand why the Government have not yet listened. The amendments give them another chance to do so. By limiting the period of an authorisation to 12 months, whether that is the first authorisation or the 10th, we can ensure that nobody is inappropriately deprived of their liberty for long periods.

I thank the hon. Members who have tabled the amendments on authorisations up to three years. I stress that this was a recommendation of the Law Commission, in particular for people with long-term progressive conditions from which they are unlikely to recover. It was suggested because many people and their families told the Law Commission, throughout its extensive consultation and work, that they felt that starting the process from scratch every year was unnecessary and cumbersome.

I should also stress that the three-year authorisation period starts only after there have been two one-year authorisations, and the periods set are maximums, not minimums or targets. The Bill does not prevent a responsible body from approving an authorisation for the period set out in the amendment if that is appropriate. Furthermore, the responsible body is required to specify a continuous programme of reviews. If a person’s circumstances change significantly, the authorisation will be reviewed and may be found to no longer be valid. That could easily be the case with somebody with dementia, as has already been highlighted. In that way, I believe that the provision actually brings in additional safeguards.

I hope that has provided clarification and I ask hon. Members to withdraw the amendments.

My amendments were probing amendments, so I do not wish to push them to a vote. I hope the Minister will reflect again on what I said about monitoring how the detention periods are used, because I fear there is a greater risk here than people may have anticipated. I beg to ask leave to withdraw the amendment.

Can I just make a couple of points? There is near unanimity in the sector that three years for renewals is too long. Even the Alzheimer’s Society is worried about the impact it could have. The power on renewals lies with the managers of independent hospitals or care homes, who are people with a vested interest in renewing the authorisation and keeping the cared-for person as a client. In the amendment, we suggest a 12-month period, which would allow the renewal process to be built on the all the other assessments that cared-for people undergo annually as part of their care programme. That would avoid the process placing an excessive burden on them.

I am sorry for pushing everybody’s patience, but I need to clarify something the hon. Lady said. I am sure she said it inadvertently. She said that a care home manager can renew an authorisation. That is not correct. Only a responsible body can renew an authorisation and only when the responsible body is satisfied that the conditions continue to be met.

The point remains for independent hospitals. In other amendments, we have tried to move that independent hospitals are not responsible bodies, but the Government did not accept those amendments.

Amendment, by leave, withdrawn.

Amendment proposed: 44, in schedule 1, page 18, line 24, leave out from “less” to end of sub-paragraph (1)(b).—(Barbara Keeley.)

This amendment limits the period of renewal of any authorisation to twelve months.

Question put, That the amendment be made.

Ordered, That further consideration be now adjourned. —(Wendy Morton.)

Adjourned till Tuesday 22 January at twenty-five minutes past Nine o’clock.

Written evidence reported to the House

MCAB40 British Medical Association

MCAB41 Dan Baker, Mental Capacity Act and Deprivation of Liberty Safeguards Lead Officer, Central Bedfordshire Council

MCAB42 Jess Flanagan, Senior Associate solicitor, Health and Welfare Court of Protection, Clarke Willmott LLP

MCAB43 Hywel Dda University Health Board

MCAB44 Royal College of Psychiatrists (RCPsych)

MCAB45 David Thornicroft, Managing Director, St Thomas Training

MCAB46 Inclusion London and People First Self-Advocacy

MCAB47 Professor Rosie Harding, Chair in Law and Society, Birmingham Law School, University of Birmingham

MCAB48 Lincolnshire County Council

MCAB49 North East Lincolnshire MCA Group (formerly the Strategic Network)

MCAB50 Marc Robertson

MCAB51 Court of Protection Practitioners Association

MCAB52 Irwin Mitchell

MCAB53 Ray Colyer, Deprivation of Liberty Safeguards Manager, Islington Council

MCAB54 Best Interest Assessors, Sheffield City Council

MCAB55 Dimensions

MCAB56 Christiane Plaum, MCA DoLS Team Manager, Deprivation of Liberty Safeguards Team, West Sussex County Council

MCAB57 Tracey Cave, Social Worker/AMHP/BIA, BIA Team, Middlesbrough Council


MCAB59 Independent Age

MCAB60 Law Society

MCAB61 The Relatives and Residents Association

MCAB62 Eleanor Tallon and Annette Wilby, staff members in the MCA and DoLS team at Calderdale Council