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

Committee (2nd Day) (Continued)

Amendment 31

Moved by

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31: Schedule 1, page 12, line 18, at end insert—

“(3) Where any interested party objects to the determination that arrangements are necessary and proportionate, an Approved Mental Capacity Professional (AMCP) must be engaged and the AMCP may, where they deem it necessary, refer disputes to the court.”

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My Lords, a cared-for person has rights, and it is the duty of all those dealing with that person to understand those rights and to ensure that they are respected and recognised. I am certain that the rights of a cared-for person should be at the heart of liberty protection safeguards. One way to ensure this is to provide an automatic referral pathway to an AMCP in those cases of dispute, objection or disagreement that cannot easily be resolved. We know that a group of cases referred to court has been pivotal in ensuring that people’s rights are upheld in the field of mental capacity. These cases provide AMCPs with the authority to refer to the court. If this authority is on the face of the Bill, it will provide an added level of reassurance that the interests and wishes of the cared-for person will be fully considered.

Cared-for people are found in many different settings in this context—in hospitals, care homes and, indeed, their own home—whether they are supported by friends and family or by a care provider. I believe that this amendment will have particular relevance in cases involving potential deprivations of liberty within the cared-for person’s own home. Although the Minister’s letter addressed after Second Reading stated that all applicants will be subject to an independent review before authorisation, the Bill as it currently stands does not reflect this—nor the ability of the AMCP to refer to the court any issues that have evaded amicable resolution. I wonder whether the Minister will look at this when he sums up, and bring back some government amendments on Report to resolve these omissions.

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My Lords, some amendments in this group are in my name. The purpose of putting these amendments down is to enable a debate about the extent to which the Bill relies on family members to take responsibility for escalating up and—as it seemed to us when we started to read the Bill—challenging care home providers, as well as challenging any deprivation of liberty. We know from the experience of Mark Neary that he relied heavily on provisions of the Mental Capacity Act—particularly covering review procedures—to equip him with what he needed to challenge what was being done to his son. It seemed to us that, because of the way the Bill was written, there was a greater expectation that it would fall to relatives to bring matters before the court, which is not easy to do.

We realise that going to court is an expensive and time-consuming business. We do not want to refer cases to court where there is no need to do so—we want to rationalise—but in our view this part of the Bill is inadequately written. It does not contain sufficient safeguards, and therefore we wanted a debate on these matters to probe exactly what support family members will have where there is a need to challenge decisions made under LPS.

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My Lords, I have Amendments 47 and 50 in this group. They are concerned with the point at which court proceedings are triggered. It is appropriate that there is an ability to appeal, but it is also important that courts are not inundated and that disputes are resolved outside court as much as possible. Going to court should be the last port of call, but it should be accessible and should occur only when other interventions such as mediation have failed.

Sadly, sometimes cases need to go to court, which is why I have worded an amendment to allow the AMCP to consider going to court as part of their role. However, the AMCP must also be able to verify information and meet independently with the primary source—that is, the cared-ford person. That might mean setting up a meeting well away from other people who have previously been involved so that they can form their own view on whether there are other avenues that might be pursued before resorting to the court.

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I have added my name to Amendment 49 in the name of the noble Baroness, Lady Barker. My concern is that a failure to meet the person directly might lead to a desk-based review, which would not enable the necessary scrutiny of the appropriateness of the care arrangements.

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My Lords, I support Amendment 45 in the name of the noble Baroness, Lady Jolly, and Amendment 47 in the name of the noble Baroness, Lady Finlay, to which I have added my name. These amendments strengthen the human rights-based duties of the approved mental capacity professional.

As it stands, the Bill weakens considerably the abilities of a person or their family or friends to exercise the convention right, under Article 5.4, of any detained person to take their case speedily to court. I think that all noble Lords understand perfectly well how this has come about. Paragraph 36 of Schedule 1 seems to indicate that an IMCA will be appointed only if the care home manager gives the relevant notification. I would be grateful if the Minister could clarify in what circumstances an independent mental capacity advocate would not be appointed under the new system.

At Second Reading, I raised my concern that the Bill was going ahead before we knew the outcome of the Mental Health Act review. The Law Commission urges the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals to review the question of the appropriate judicial body to determine challenges to authorisations of deprivation of liberty under the Bill. The Law Commission also urges the establishment of a single legislative scheme governing non-consensual care or treatment of both physical and mental disorders where there is a lack of capacity.

At that point I have to delete chunks of my speech, having just had a meeting with Sir Simon Wessely, head of the Mental Health Act review, and Judge Mark Hedley, a former head of the Family Division, who knows all about mental capacity and everything associated with it. The Mental Health Act review will recommend that there should not be a bringing together of the Mental Health Act and this legislation. Therefore, I hereby withdraw my concern expressed at Second Reading.

As I said, following that meeting, I have deleted chunks of my speech, and I am not quite sure where I can pick it up again. Basically, they agreed with me—we agree about everything, in fact—that appeal to a court should be an absolute last resort. It goes without saying that court cases are incredibly time-consuming, stressful and expensive. It has to be seen as a failure of the system if recourse to a judge is needed. I certainly have a great deal of sympathy with the argument that, as far as humanly possible, we need to focus all the resources we can on the care of individuals, whether in the community or elsewhere.

We know that, if a court demands reports, the care of the patient has to come second to those reports being produced. This comes at a time when 10% of psychiatrists’ posts are not filled and vast numbers of all doctors’ and nurses’ posts are not filled, and it is proving more and more difficult to recruit—we will not mention the reason why. It seems to me, following discussion with Simon Wessely, that it is crucial to get the process right to minimise the need to access the courts. That is what his Mental Health Act review will concentrate on, albeit it will be a lot more liberal and professional than the current Act. It is an excellent process so that we can reduce the need for access to the courts.

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My Lords, I have added my name to Amendments 31 and 48 from the noble Baroness, Lady Jolly. Apart from supporting the amendments and regarding the approved mental capacity professional as an issue of great importance in the Bill, I did so to be able to ask a few questions.

It might be simply that I do not understand, but my concern is this: how will the person who cannot object, but who needs to object, do it? The Bill states that people can automatically access the approved mental capacity professional if they object, but what happens for the person who cannot object but probably ought to? Who decides that a person’s family or those around them will be consulted to make sure that, if there is a need for an objection, it is heeded, which then puts them in the right place to access the AMCP? Those concerns have been expressed by lots of our colleagues in different ways. It is still not clear to me how that will happen. How will that person be protected under those circumstances?

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My Lords, I thank all noble Lords for initiating this discussion about approved mental capacity professionals and providing me with an opportunity, for the first time ever, to respond to amendments to a Bill.

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Hear, hear.

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I thank my noble friend for that intervention. I have been hugely impressed by the commitment on all sides of the House to interrogate this Bill to make sure that it is fit for purpose and does the right job for the people we all seek to serve.

The amendments from the noble Baronesses, Lady Thornton, Lady Jolly and Lady Finlay, would have the effect of requiring that, in each and every case referred to an approved mental capacity professional, the AMCP would have to explicitly consider whether the case should be referred to the Court of Protection. We are clear that if a person wants to challenge their authorisation in the Court of Protection they have the right to do so. However, part of the reason we are creating the approved mental capacity professional role is so that cases where the person is objecting to the proposed arrangements can be considered outside having to go court, which we expect to be in line with the people’s wishes. It is always good to remind ourselves—as has been done many times during today’s business—of what we are trying to achieve and what we are trying to avoid. If we can avoid going to court, as has already been said, but serve people well, then we will have achieved something.

I am conscious that we do not want to create a situation where approved mental capacity professionals defer their responsibility to the Court of Protection and individuals have to undergo court procedures unnecessarily, particularly as we know this can be burdensome for people. In the short debate about this group of amendments, we have all agreed that we should avoid court at all costs, not only fiscally but because of the burden, stress and blockages that it puts into the system. However, I would like to reassure noble Lords 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, and the approved mental capacity professional would be important in identifying where this will be the case.

The amendment of the noble Baroness, Lady Barker, would have the effect of requiring the approved mental capacity professional to meet with the cared-for person unless there is agreement with consulted persons that it is not necessary or appropriate to do so. We are clear that our intention is for approved mental capacity professionals to meet with the cared-for persons in almost all cases. Exceptions would be extreme circumstances, such as if the cared-for person is in a coma or clearly expresses a wish that they do not wish to meet with the approved mental capacity professional. I am sure that noble Lords agree that in these exceptional cases it is right that the approved mental capacity professionals do not meet the person.

To reflect this, we have imposed a duty to meet the person where it appears to the approved mental capacity professionals to be appropriate and practical to do so. I understand that the intention of the amendment is to limit the circumstances in which an approved mental capacity professional does not meet with the cared-for person. However, I am conscious that there could be situations—for example, where the AMCP and all consultees bar one agree that it was not necessary or appropriate to meet the person. However, if one consultee did not agree, it would mean that one consultee would effectively have a veto and the AMCP would be required to meet the person. We will ensure that guidance regarding that rare circumstance where it is not practical and appropriate is included in the code of practice.

The amendment of the noble Baronesses, Lady Barker and Lady Hollins, and the noble Lord, Lord Hunt of Kings Heath, requires the person completing the pre-authorisation review, where this is not an approved mental capacity professional, to meet with the cared-for person regardless of whether this is appropriate or practical. We appreciate that there may be circumstances—

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I am not sure whether my question has been answered so I will repeat it. Does this mean it is automatic that the cared-for person will see the AMCP? Is that what the noble Baroness is saying? She has started tying me up in knots. Will it be automatic? Except, obviously, in the cases that have been mentioned, is that what will happen?

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Let me confirm that they will not automatically meet with the AMCP.

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In that case, who takes the decision?

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I was saving my answer to that question for the end of my speech, but as the noble Baroness is pushing me, I shall respond now. Since I have been in this House I have always been advised that when you do not know something, you fess up to it. So I have to tell the noble Baroness that I cannot answer that question right now unless someone to my left has a magic piece of paper that will get me out of jail free on this one. More seriously, I will come back to the noble Baroness because it is a very pertinent question, if that is acceptable to her.

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Thank you.

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We will ensure that guidance regarding the rare circumstances where it is not practical or appropriate is included in the code of practice. The amendment tabled by the noble Baronesses, Lady Barker and Lady Hollins, and the noble Lord, Lord Hunt of Kings Heath, requires the person who completes the pre-authorisation review, where they are not an approved mental capacity professional, to meet with the cared-for person regardless of whether it is appropriate or practical.

We appreciate that there may be circumstances where it is appropriate for the reviewer to meet the person, and the Bill does not prevent this happening. Indeed, in some cases it would be our expectation that this would happen, and further detail on this will be provided in the code of practice. However, in many cases the circumstances will be straightforward. For example, where someone consented to be in a care home but subsequently lost capacity, a meeting with the cared-for person would not challenge the outcome and it would not be proportionate to require that person to undergo the process again. The Bill provides that, prior to an application being authorised, it must first be reviewed by somebody who is not involved in the day-to-day care and treatment of the cared-for person. Where this is not an AMCP, the person who completes this review must review the information and determine whether it is reasonable for the responsible body to conclude that the authorisation conditions are met.

DoLS leads in local authorities have told us that they are already giving a great deal of thought to what they will need to see to be satisfied that the conditions are met for a liberty protection safeguards authorisation. We would do well to wait and see what the detail of that is. We will set out further guidance on this matter in the code of practice, but it is not right to require on the face of the Bill the reviewer to meet the cared-for person in every case. The Bill carefully balances the requirements necessary for authorisations across all the people involved: the cared-for person, their carers and their families, along with the healthcare workforce.

I now have a piece of paper, so I can tell the noble Baroness, Lady Thornton, that, yes, it is automatic for the AMCP to meet the person. The AMCP makes the decision on whether it is or is not appropriate or proportionate, which I believe I said earlier. Also, the noble Baroness, Lady Jolly, has made sure that we understand that what is important in this are the rights of the individual. Those are at the heart of what we are doing. She was particularly concerned about people in care homes. The system that we are bringing forward and trying to fine-tune will certainly make sure that they are given the due consideration they need. I will not repeat the points that have been made about going to court, which incurs all manner of personal and fiscal costs as well as bureaucratic costs. An appeal to the court on these things should be a last resort, because I agree completely with the noble Baroness, Lady Meacher, that such action would mean that there has been a failure in the system, which is something that we are desperately trying to avoid.

I hope that I have answered all the questions, but I know that noble Lords will tell me if I have not. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.

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I thank the Minister for her response. We have had a short but interesting debate and I expect that many of us are keen to talk to the noble Baroness, Lady Meacher, because we are all quite interested in the conversation that she has just had with Sir Simon Wessely. I understand that there is no desire on his part to combine both Bills, although I feel that there should be some learning for this Bill from his deliberations. However, I will read Hansard carefully and reconsider the matter before Report.

Amendment 31 withdrawn.

Amendment 32

Moved by

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32: Schedule 1, page 12, line 19, leave out “Consultation” and insert “Duty to ascertain wishes and feelings of the cared-for person

(A1) The main purpose of the consultation required under this paragraph is to try to ascertain the cared-for person’s wishes or feelings in relation to the arrangements and the likely impact of the arrangements on the cared-for person’s wellbeing.”

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My Lords, this group of amendments takes us to the heart of the duty to ascertain the wishes and feelings of the cared-for person. For that reason, I am most grateful to the noble Lord, Lord Hunt of Kings Heath, for adding his name to my amendment, which would rename this part of the Bill, changing a consultation to a duty, and move up this paragraph from lower down:

“The main purpose of the consultation required under this paragraph is to try to ascertain the cared-for person’s wishes or feelings”.

That must be paramount. If we do not make arrangements that fit with and respect the known wishes and feelings of a person—or we make arrangements that cut across the feelings of others and cannot justify them very carefully—we will have failed completely in what we are trying to do. We should be empowering people to live as they want to live as much as possible while accepting that we need some restrictions in place.

That is why this group of amendments would also move the cared-for person to the top of the list of people to be consulted and make it clear that the professional responsible for the care plan needs to undertake the consultation. That will then inform what is happening and how the care is to be organised on a day-to-day basis and in the longer term, as well as ascertain whether the restrictions that may be put in place are necessary and proportionate in the light of knowing the cared-for person’s wishes and feelings.

It is important to remember that people do not object only actively. They may signal objection by becoming more withdrawn or less active. They may start eating less or there may be changes in toileting and so on—all of which can signal that someone is unhappy. All these changes should be considered in thinking about whether somebody is objecting in the broadest sense to whatever has been provided for them. They may well signal that their wishes and feelings are not being adequately respected. I beg to move.

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My Lords, I welcome the amendment tabled by the noble Baroness, Lady Finlay, which seeks to ensure the wishes and feelings of the person are at the heart of decision-making. My Amendment 33 follows this principle by adding the cared-for person to the list of people with whom the assessor is required to engage before arrangements can be authorised.

Self-advocacy groups and charities supporting people with learning disabilities and their families have shared their concerns that the Bill does not require sufficient regard to be paid to their views in particular. I will quote some views expressed by Learning Disability England, a membership organisation:

“Disabled people and their families are especially worried that there is no requirement to consider the person’s own wishes. That is how the institutions were … We do not want to go back to the days of the institutions … There is a risk that we take away people’s independence and give power to people that may not be doing a good job”.

Consulting with people who lack capacity can be challenging and requires quite advanced communication skills. It is crucial that we get this right as the consequences are significant and lead to other improvements or deteriorations in people’s health and independence. I declare an interest here as chair of the Books Beyond Words community interest company, which develops resources and pictures to help doctors, nurses, care staff and others to communicate more effectively with people with learning disabilities and others who find pictures easier than words and to support decisions which, at their outset, appear too difficult or challenging.

Amendment 35 is designed to oblige those carrying out the assessment to explore less restrictive alternatives thoroughly. This would need to take into account the cared-for person’s family and others who know them well and have an interest in their welfare, who are likely to have important information and expertise to share about the person’s needs and what good support, which maximises their freedom, might look like.

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My Lords, I have added my name to two of these amendments. We heard earlier that the Minister has agreed that the Bill at some point in the future will reflect the need to consult the cared-for person. This is clearly a great advance and sets the context for the debate on this group of amendments. I particularly commend the suggestion that the consultation should be not just about what the assessment has concluded should be done to the cared-for person—I fear that the sense of the Bill at the moment is “done to”—but what the alternatives are.

This is where I come back to one of our problems with the architecture of the Bill. So much responsibility is given to the care home manager who, inevitably it seems to me, must think about residence in a care home as being the only option because their job is to make sure that occupancy is of the highest level in order to maximise the viability of the home. It would be good to know how the Government think with this Bill and the new arrangements we are going to ensure that the alternatives are properly looked at before someone’s deprivation of liberty is actually authorised.

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My Lords, can I take this opportunity to ask the noble Baroness some questions? Can she confirm my understanding that this duty to consult does not come under Article 4 of the Mental Capacity Act? As I read the Bill, the responsible body or the care home manager is under a duty to consult only in so far as they deem it to be practicable or appropriate to do so. They make that decision. Is that correct? Under DoLS, if somebody was “unbefriended” and if there was nobody to consult, that automatically triggered the right to an advocate. I do not believe that is the case under the Bill. Finally, this duty to consult is a stand-alone one. What happens as a result of that consultation? For example, it does not make it clear that if a family—like Mark Neary—objects to a placement, it does not trigger the need for an AMCP or another assessment. Yes, there is a long list of people but, as I understand it, there is no nearest-relative rule as there is under mental health legislation. There is no sequential order. My basic question is: what happens as a result of this duty to consult? It is not clear to me that anything necessarily happens.

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My Lords, I support this group of amendments in particular because many cared-for people can express their wishes in the ways people have said. I want to give your Lordships an example from when I was working as an in-reach mental health nurse into a range of homes for people with learning disabilities. There was a young man who was extremely happy in the home in which he had been placed because it was near his parents. They used to visit regularly and they used to be able to take him out together and accompany him, because he was not safe to be out unaccompanied. When his parents died he showed all the signs and symptoms that the noble Baroness, Lady Hollins, outlined, which the staff put down to the fact that he was distressed that his parents had died. Actually, that was in part true, but he was terribly sad that his sister could visit him only once a month because she lived 200 miles away. She was very willing to visit him more and to take him out accompanied but could not do that unless he changed his home and moved nearer to her.

This actually had a successful outcome, so it is not a depressing story, but Amendments 32 and 35 in particular would make it a duty for the care home in which such a resident was living to think again. This particular young man was a very high fee payer paid by the council because his needs were very complex. There was not much in it for the care home to arrange for his transfer because it would be quite difficult to fill the place at the same cost outside. I want to bring reality into the Committee in relation to these two amendments and explain why I am so supportive of us considering them in a positive vein.

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My Lords, the questions from the noble Baroness, Lady Barker, deserve an answer. I am sure that if the Minister cannot provide one tonight we will get one because she raised some very important points. The example that the noble Baroness, Lady Watkins of Tavistock, just gave gives us a practical idea of how these amendments might apply if they were part of the Bill.

Amendments 32 and 34 underpin the absolute need to discover the wishes and feelings of the cared-for person. Mencap summed it up pretty well in the briefing that it sent to noble Lords when it said that the views of the cared-for person should be at the heart of this clause. That point was made by my noble friend Lady Thornton during the debate on the first group of amendments today.

Putting the focus on ascertaining the wishes and, just as importantly, the feelings of the cared-for person is central to this, as is right and proper. I and others spoke about this at Second Reading and, frankly, we hope that the Government will respond positively to these proposals. Amendment 33 in the name of the noble Baroness, Lady Hollins, would address this by adding the cared-for person to the list of those who must be consulted, and Amendment 35 would ensure that views were sought on whether any less restrictive alternatives were available—all good sense.

When faced with legislation like the Bill and the issues it raises I often think, “If this Bill was about me, what would I want?” Most certainly I would want the protection and defence of my basic human rights that these amendments offer. Is this not something that every noble Lord in this House would want? If it is, we should ensure that it is there.

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I thank all noble Lords for their important contributions to these amendments. I agree completely with the noble Baroness, Lady Finlay, about the importance of ascertaining the cared-for person’s wishes and feelings when consulting as part of the liberty protection safeguards processes. Sometimes it is more important to listen to what is not said or expressed over and above that which is said. Watching people’s behaviour and demeanour can tell us a lot about how they are feeling. The noble Baroness, Lady Watkins, gave us a good example of somebody who lost their parents and was terribly distraught about it, although what was causing him most angst was being able to see his sister only for short periods because of the distance travelled. We must make sure, in taking through this Bill, that we do everything we can to read those signs and that people are empowered to make the best decisions.

On care home managers completing the consultation and how we ensure that alternatives are considered, I can say to the noble Lord, Lord Hunt, that a wide range of people are consulted. Previous consultations conducted by professionals often relied on things that were not meaningful or in the best interest of the individual. We want the least restrictive as a principle—a requirement of Article 5 in case law—that must be considered and will be set out in the code of practice. The code of practice will be very important.

I say to the noble Baroness, Lady Barker, that the care home manager would consider whether a decision was appropriate and the decision would be reviewed by the responsible body. Any family member, IMCA or appropriate person could challenge a decision not to consult the cared-for person. The Government are committed to making sure that the consultation around the cared-for individual is at the heart of everything. We must move heaven and earth to make sure that we understand exactly what they want and that the consultation is respectful in every way.

The Bill already outlines that the main purpose of the consultation is to ascertain the cared-for person’s wishes and feelings. This is to ensure that the liberty protection safeguards are consistent with the focus of the rest of the Mental Capacity Act, which places the wishes and feelings of the person, even if they lack capacity, at the heart of the process.

The noble Baroness is also right to highlight the importance of considering the impact of the arrangements on the person’s well-being. Similarly, we are also clear that we expect the impact of the arrangements on the person to be addressed when undertaking consultation. However, the purpose of the consultation would be to consider the impact from the person’s point of view. This is crucial to how the Mental Capacity Act works.

The concept of well-being is not mentioned in the Mental Capacity Act. It is a legal concept which has particular meaning under the Care Act and the Social Services and Well-being (Wales) Act. We are concerned that it would cause confusion if this concept were inserted into the liberty protection safeguards.

However, the liberty protection safeguards will be in place to support living and will be positive for a person’s well-being. The accompanying code of practice will outline how the model works within wider care provision, including the Care Act, which has duties in relation to promoting well-being.

The amendment in the name of the noble Baronesses, Lady Hollins and Lady Finlay, explicitly requires that the cared-for person be consulted. Noble Lords raised this issue on our previous day in Committee and I know that there is enthusiasm for this proposal, as it is felt that it will more clearly place the person at the centre of the determination of their wishes and feelings.

The Government have also heard very clearly that noble Lords felt that the person themselves must be consulted. Again, I agree. If we are to secure the improvements that we want, it is essential that the person and their voice, wishes and feelings about any proposed arrangements are placed at the heart of this model. We will make sure that the Bill reflects this. I am grateful for the expert views of noble Lords in helping to improve the Bill to put this beyond doubt.

I agree with the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt, that it is important for those deciding whether an authorisation for deprivation of liberty should be given to consider whether any less restrictive options are available. Considering less restrictive alternatives is also an important aspect of the wider Mental Capacity Act. For example, the fifth principle of the Act requires decision-makers to have regard to less restrictive options. Nothing in the Bill changes this. The code of practice will set out how the liberty protection safeguards will work within the wider framework of the Mental Capacity Act and the care landscapes more widely.

Respectfully, therefore, I maintain that there is no need to add the words suggested by the amendments because they already form an integral part of the assessment process. We have made clear that the main purpose of the consultation duty is to ascertain the person’s wishes and feelings in relation to the authorisation, and this can include the person’s views about acceptable levels of restrictions.

For example, a person might wish to receive care in a care home where they have freedom to spend time in the community rather than in a care home where there is less freedom to do this. This might be because the conditions are less restrictive. This is an essential part of the liberty protection safeguards and is delivered through the assessment process. The noble Lord, Lord Touhig, made a very valid point when he asked whether we would want this for us. We must make sure that we treat people and respect them in the way we would like to be treated and respected ourselves.

I hope I have been able to provide a satisfactory explanation, but if there are outstanding concerns, I am happy to discuss them further. I trust that the noble Baroness will be able to withdraw her amendment.

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My Lords, I must admit that during the Minister’s very positive response, my hopes were up that she was going to accept the amendment and the change of title of this paragraph in the new Schedule. The reason I say that is that words matter: they set the tone. It would be very useful to be able to discuss this further so that we might take out the word “Consultation”, which has connotations of medical consultations and other things, and that we might state on the face of the Bill as a heading that there is a, “Duty to ascertain the wishes and feelings of the cared-for person”.

The noble Baroness, Lady Hollins, reminded us of the importance of wishes and feelings and that we should not slip back in time to old-fashioned, awful institutional care. The well-being Act in Wales was behind some of the wording as well, and the reason for moving that part of the Bill higher up.

The noble Baroness, Lady Barker, asked some very valid questions. Best-interest decision-making should be a process, not a one-off, and for that process to happen, it is very important that the person is consulted because their previously expressed wishes and feelings might no longer be their wishes and feelings now that they are in a different situation, but they might need help expressing those wishes and feelings as they are now. That process should also include their beliefs and values, some of which they might still hold on to and some of which they might have abandoned over time. There are other factors that the person might be likely to consider if they were able to consider them: their current views and past views might be expressed by others who know them well and care about them.

I hope that we can pursue the discussion further, but, at the moment, although I will withdraw the amendment, I would like to reserve the right to come back to this on Report, because unless we get wishes and feelings up there, in bold type as a heading, we might well find that, inadvertently, we fail the very people for whom we are arguing. I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

Amendments 32A to 37A not moved.

Amendment 38

Moved by

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38: Schedule 1, page 13, line 10, after “person” insert “or those interested in their welfare”

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My Lords, my Amendments 38, 39, 40, 41 and 43 would add in families, friends and carers. They build on and support Amendments 15 and 16, which were debated earlier and tabled by the noble Baroness, Lady Jolly. They would require that every cared-for person has access to an approved mental capacity professional, regardless of whether the assessor considers that the cared-for person might object to the care and treatment proposed.

Not everyone will be able or willing to risk expressing an objection to those currently providing their care. It can be very hard for a person to object to care given by a staff member on whom they may be totally dependent, and may feel obliged to agree with, when they view them, correctly, as somebody who has power over them. I suggest that for some people this will not be an easy judgment even if they are trying to object, particularly if they have difficulty communicating. It is often the case that family members are the most skilled at communicating with their loved ones, as I suggested earlier, and are therefore most likely to understand their feelings and wishes—feelings which may be communicated with subtlety or nuance, and which are unlikely to be confided to unfamiliar people or people perceived to have power over them.

In those situations where someone is not able to communicate their objections, it is vital that their family and others with an interest in their welfare are able to object for them and to trigger a referral to an AMCP—someone whom they can be confident has the right expertise. Otherwise someone with profound communication impairments might not be able to object while those close to them have serious concerns about the arrangements, yet are not able to request an AMCP. Those with the most profound impairments must not miss out on the involvement of an AMCP in this situation. In the 2014 report from the House of Lords post-legislative scrutiny committee, Nicola Mackintosh spoke about the compliant nature of many incapacitated adults. She said that,

“if you have a vulnerable person detained in a care home who is physically or verbally expressing a wish to leave, those cases are more likely to be raised before the court than cases involving a compliant, incapacitated person. That was the case in the Bournewood case. I do not think the DoLS scheme has cured the illegality”.

I do not think that the Bill, as amended, will fill the Bournewood gap. My Amendment 44B has identified a similar issue to that in Amendment 44A, proposed by the noble Baroness, Lady Thornton. It has been tabled to protect the rights of people detained for treatment in assessment and treatment units, and other hospital settings, for treatment for mental disorder. It would include NHS and independent hospitals. These are often the most restrictive settings where the liberty protection arrangements will apply and there are serious concerns about the rights of patients with learning disabilities who are placed in these settings.

However, due to the rules governing the interface between the Mental Capacity Act 2005 and the Mental Health Act, which this Bill leaves largely untouched, these patients will not receive any independent assessment by an AMCP. The reason for this, as I understand it and put as simply as possible, is that the Mental Capacity Act cannot be used to authorise a detention if the person is viewed as objecting to their detention; the Mental Health Act must then be used. This means that patients detained in hospital under DoLS or its successor, the LPS, will by definition be regarded as not objecting by those responsible for their detention. This would include people such as HL in the Bournewood case, who may not be capable of expressing an objection or whose behaviour is hard to interpret by those who do not know them well.

Under the Bill, a person will qualify for an assessment by an AMCP only if there is reason to believe that they are objecting, so for this group a specific trigger is needed to ensure that their detention is scrutinised by an independent, specially trained professional to ensure that it is justified, having regard to the alternatives. Last year there were 4,670 DoLS applications for patients in this category. I hope the Minister will agree that it is important for people in these settings to have access to an AMCP automatically.

I have also had some communication with Professor Sir Simon Wessely today, but I did not achieve the same certainty as my noble friend, who is not in her place. I hope that the Wessely review will remove the learning disability exemption in the Mental Health Act, which allows people with a learning disability to be detained if their behaviour is abnormally aggressive and so on, and that instead their detention will be on the same grounds as for any other person. I beg to move.

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There are two amendments in my name in this group. Amendment 44 is designed to probe an issue that is clearly worrying lots of noble Lords: that the condition that triggers an AMCP is that the person is objecting to their care in a particular place. The noble Baroness, Lady Hollins, is always very good at helping us to understand legislation from the point of view of people with learning disabilities. My background and my chief concern is with older people with dementia who are probably disproportionately likely to be overlooked by this provision because they will not necessarily be vocal.

I return to the questions raised by the noble Baroness, Lady Thornton: why would you object if you do not know what you are objecting to? What will happen if you do object? Will you receive any help? Currently, best interests assessments are required for DoLS detentions but, as I understand this, where a person does not object they do not get to see an AMCP. If they are in a care home, it is the care home staff, but in hospital and community settings the responsible body can use evidence from other assessments to make a determination for somebody. What is the evidence base for this? Do we know how many people currently object to their care and treatment? Why is that considered a sufficiently robust basis on which to make this a criterion in law? There is something deeply flawed and deeply wrong about this.

Amendment 59 may seem a bit strange on the face of it. It inserts a requirement to keep a record of refusals of authorisations. One of the things that the Select Committee of your Lordships’ House found was that the evidence base for DoLS is very sketchy. I have to make it clear that the Select Committee’s report was put together and came out just around the time of the Cheshire West ruling. In the light of that ruling, the number of applications shot up. We have never had a robust evidence base for the way DoLS work. I agree with the noble Baroness, Lady Hollins, that this is not going to close the Bournewood gap, but we should at least try to cover up some of the deficiencies there have been in the past. Therefore, trying to get together some basic stats and information, including how many times things DoLS have been refused, is important.

I know, as will other noble Lords, that among professionals, or rather among stakeholders, there was a big discussion prior to Cheshire West about whether having lots of DoLS applications was an indication that in fact you were a good provider or whether that would somehow be indicated by the fact that you had none. That is not the right calculation; you can argue it either way.

We still need to get to the bottom of the transparency of the decision-making around this. That was my reason for tabling what might seem to be a rather strange amendment.

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My Lords—

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My Lords—

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You go ahead of me.

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I beg your pardon; I have an amendment in this group as well. Oh dear, I seem to have spattered them in every group.

I have a real concern that triggering a review that is based on whether or not the person is thought to be objecting is far too narrow, and that anyone who has concerns about that person should be able to trigger a review independently—whether that is family, friends or somebody working in the place where the cared-for person is supposed to be being cared for.

I have an interest, or at least an experience, to declare: some years ago I was asked to help the police look at a care home where they had serious and justified concerns. The alert had come from somebody working at an extremely junior grade within the care home, not from anybody senior or from a professional. Following that, I was asked to review the case notes in detail. The people concerned all had severely impaired capacity and, often, an inability to express themselves—but, by meticulously looking at the case notes, one could see trends, and when I mapped them against the staff off-duty rota the trends became clearer.

I am very concerned that, if we leave this just as it is written, we will not allow the very people who have contact, possibly on a day-to-day basis, to put up a red flag about what may be happening in one person’s life. It may be that nine out of 10 people in an institution are very happy, but if one of them is not and one member of staff has got to know them and sees subtle changes in their behaviour, that member of staff must be empowered, with the cover of anonymity, to trigger an independent review, because that may be the only way to protect the cared-for person.

I put in my amendment that a review should be triggered if,

“the rationale … is based on the risk to others”.

The concept of “risk to others” is quite difficult to justify being in this Bill rather than in the Mental Health Act as the sole rationale for using the Bill, so I think that it becomes an exceptional circumstance that warrants that type of review. Similarly, if the restrictions are on contact with named persons, I worry that there could be a bias from the staff towards the named person. When somebody is very upset, they may appear to be an aggressive or angry visiting relative and may be a bit more difficult to handle—but actually it may be that that is simply the way that they are expressing their anxiety and their emotions towards the person who is now deteriorating and want to do their best for them. I worry about excluding a close relative without great justification; it should not be undertaken lightly.

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When the Minister responds, will she confirm the point made to us by a number of stakeholders that harm to others, rather than harm to self, which is the basis of decision-making in best interests, is included in the Bill—because it is not explicitly ruled out and it was in the Law Commission’s proposals. If that is the case, that is a very significant change. The number of people included may well differ solely for that reason.

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That is a very good point. I will speak to my Amendment 44A, which is in this group. My amendment provides for a pre-authorisation review to be carried out by an approved mental capacity professional if the cared-for person is in an independent hospital and receiving mental health assessment or treatment. Where a person is in an independent hospital for the purposes of assessment and treatment for mental disorder, they may need to come under the liberty protection safeguards, and there must be an independent assessment by an AMCP.

I am concerned about the lack of independent assessment and oversight to guard against conflicts of interest in these settings. It is an issue that I know that organisations supporting people with learning disabilities and autism—Mencap and others—are also very concerned about. It is recognised that too many people with a learning disability and autism are stuck in assessment and treatment units and other in-patient settings due to the lack of the right support in the community.

Following the learning disability abuse scandal at Winterbourne View hospital, the Government and NHS England promised to tackle this issue and reduce the number of people with a learning disability and autism in these settings. Through their Transforming Care programme, they have committed to developing the right community support to reduce the number of in-patient beds. However, to date there has been little reduction in the number of people in these settings. Often, high levels of restrictive practices are used in these settings. It is recognised that children, young people and adults with a learning disability and/or autism in in-patient settings are at risk overmedication, restraint and being kept in solitary confinement, as we have seen in the press in the past couple of days.

The average length of stay for assessment and treatment is nearly five and a half years. The Learning Disability Census 2015 stated that 72% of people in in-patient units had received antipsychotic medication, but only 29% were recorded as having a psychotic disorder; 56% had experienced self-harm, an accident, physical assault, hands-on restraint or being kept in seclusion. A recent shocking BBC “File on Four” programme revealed highly restrictive practices in these settings. It had obtained information that there had been a large increase in the use of restrictive practices between 2016 and 2017. This is of great concern.

According to the latest NHS digital data, 2,375 people with a learning disability or autism are in in-patient settings. Of those, 1,045 are in independent hospitals. The data show that currently, most are detained under the Mental Health Act, but of course there are people who are under DoLS in these settings, and who will be under the liberty protection safeguards in these settings in future. It is vital that there are robust independent assessments for people in these settings who may fall under the liberty protection safeguards. It is therefore essential that there is a requirement for an AMCP to undertake an independent assessment in these situations.

Can the Minister clarify: under the liberty protection safeguards, who will be responsible for signing off the LPS authorisations for people in independent mental health hospitals?

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My Lords, many exam questions are coming out this evening. Let us hope we can answer them to your Lordships’ satisfaction.

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We want to ensure that the noble Baroness gets the full context of what it is like dealing with amendments in Committee.

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I appreciate that very much; I am touched and can confirm that you have passed that exam with flying colours.

This is clearly another important element of the Bill, and I thank everyone for their contributions. I pick up the point about independence in the system, and have always been of the view that when you have situations like this, some independence is greatly helpful. Without wishing to make you laugh or belittle what we are trying to do, I say that I have just spent some time in the States and was subject to the awful rigours of President Trump and the Kavanaugh situation. I can tell you there was no independence there whatsoever. So I am absolutely at one with all noble Lords about independence when making judgments and trying to help people improve their lives.

I think the noble Baroness, Lady Hollins, made a terribly important point. Where somebody is having something explained to them and does not feel comfortable objecting, or feels the environment is not right—I doubt there is one of us who has not been in that position at one time—it is horrible. We have to make sure the environment is correct and healthy for people to do so.

I think the points the noble Baroness, Lady Barker, made, in referring back to the evening exam question asked by the noble Baroness, Lady Thornton—how do people know?—have to be answered. I take on board the point raised and think we must get to the bottom of that. However, I can tell you that approximately 30% of people do object to their DoLS review, if that is helpful. Also, the noble Baroness, Lady Barker, raised an important point about evidence base. In a job once, someone wanted me to get the evidence for what we thought we were doing, and I was terribly nervous about it because I thought I would be out of a job. Actually, when we got an independent group in to look at it, we were just blown away by the evidence, which you could not argue with. I know it is costly to gather evidence, and I have no idea if it is practical or realistic here, but I have no doubt the case will be stronger one way or the other for having some evidence. The noble Baroness, Lady Finlay, made numerous excellent points today, but the independence and the review is what is resonating in my mind. I am glad to confirm to the noble Baroness, Lady Barker, that harm to others is included.

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I thank the Minister very much for saying that. It is a very significant point she has just made, and perhaps one that noble Lords may have to come back to at a subsequent stage.

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The noble Baroness is pleased with me; that makes me worried.

The amendments from the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt of Kings Heath, would mean that the referral to an approved mental capacity professional would also be required in the following circumstances: if any person interested in the person’s welfare does not wish them to receive treatment at the place, if any other person interested in the person’s welfare makes a request, or if there is reason to believe that an approved mental capacity professional should carry out the review. I am assured that the Bill is already explicit—where it is reasonable to believe that the cared-for person does not wish to reside or receive care or treatment at a place, an approved mental capacity professional must consider their arrangements. If an objection is made on the person’s behalf by a family member of the person or someone who is interested in their welfare, we would generally consider this to constitute a reasonable objection. We will provide detail—including examples—of when an approved mental capacity professional should complete a review in the code of practice. We plan to set out in detail where this would apply in the code of practice but will include complex cases such as arrangements proposed for people with acquired brain injuries, and people in independent hospitals receiving mental health treatment.

While I understand the intention of the amendment tabled by the noble Baroness, Lady Hollins, the effect would be that any objection by any person with an interest in the person’s welfare would trigger a referral to an approved mental capacity professional. In short, this would mean that anyone could trigger a referral. An acquaintance from social media or a distant relative would be able to raise an objection. While this might be appropriate in some cases, there may be others where it would not represent the person’s wishes and feelings. As currently written, the amendment would undermine the purpose of the duty, which is to ensure that the views of the person are central to the process. I am sure that noble Lords agree that a focus on the views of the cared-for person is vital. That is why the Government have made this core to the new model.

The amendment in the name of the noble Baroness, Lady Finlay, would require a referral to an AMCP when others have expressed concerns, when an authorisation is being justified because of risk to others, or when the arrangements involve restrictions on contact with named persons. I thank her for raising these points and we will consider this carefully for the code of practice. I also hope I can provide reassurance that the Bill only enables authorisation of arrangements that give rise to a deprivation of liberty necessary for the purpose of receiving care or treatment. We would not ordinarily expect the liberty protection safeguards to be used to authorise a restriction on contact and we will make this clear in the code of practice. I am also sure that the noble Baroness is aware that risk to others is being considered as part of the Mental Health Act review.

The noble Baroness, Lady Thornton, wants to ensure that an AMCP conducts the pre-authorisation review for everyone in an independent hospital receiving a mental health assessment or treatment. I am sympathetic to this and wish to consider the matter. Such cases should be referred to an AMCP. Detail of this will be provided in the code of practice.

We have tried to respond to all the points made by noble Lords this evening, but there is more to do. If it is acceptable to your Lordships, we should carry on talking about these issues. The Government are absolutely committed to doing this. On that basis, I hope that I may have passed the exam set by the noble Baroness, Lady Thornton, and that the noble Baroness, Lady Hollins, will be able to withdraw her amendment.

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My Lords, I am grateful to all noble Lords who have spoken on the amendments in this group and asked very astute questions. I am grateful to the Minister for her optimistic response, but I am not completely reassured. I disagree with her interpretation of my amendment’s intentions. I reserve the right to bring this matter back on Report after further consideration. I will certainly read Hansard carefully and look forward to any other communication which may be forthcoming from the Minister’s office. I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

Amendments 39 to 50ZA not moved.

Amendment 50A

Moved by

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50A: Schedule 1, page 13, line 36, at end insert—

“Clinical ethics committees

20A(1) The Secretary of State must by regulations made by statutory instrument make provision for all NHS bodies to have access to a clinical ethics committee.(2) The main objective of a clinical ethics committee is to provide advice on clinical ethics to professionals on matters relating to Schedule AA1.(3) The regulations in sub-paragraph (1) must make provision for the membership, funding and constitution of the clinical ethics committee.(4) The regulations in sub-paragraph (1) may make provision to require certain cases to be referred to a clinical ethics committee, such as in cases where a dispute has arisen.(5) The Secretary of State must review the operation of clinical ethics committees and prepare and publish a report on the outcome of the review before the end of the period of three years beginning with the day on which this paragraph comes into force.(6) A subsequent report must be published before the end of each period of three years beginning with the day on which the previous report was published.(7) The Secretary of State may arrange for some other person to carry out the whole or part of a review under this section on the Secretary of State’s behalf.(8) The Secretary of State must lay before both Houses of Parliament the reports published under this paragraph.(9) A statutory instrument containing regulations under this paragraph may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

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My Lords, these amendments in the name of the noble and learned Lord, Lord Mackay, and myself are about mediation, conflict and decision-making. It is a complex area and made more complicated now that the Bill is being extended to 16 and 17 year- olds. Rather than taking time in your Lordships’ House this evening, I believe the noble and learned Lord, Lord Mackay, would prefer to discuss this matter with the Minister and decide whether the Bill is the right place to progress this issue. I am grateful to the Minister for already having agreed to discuss it. I reserve the right to return to this on Report if no progress is made.

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We have had a discussion about the issues under consideration here, which are in some ways prompted by the experience of the Gard family and their son Charlie; we are all aware of the tragic circumstances at the end of his life. We agree with the noble Baroness and my noble and learned friend that these are incredibly important issues, and we are grateful to them for tabling the amendment. However, I think this would be best pursued outside of the confines of the Bill. I give her my commitment to do that; I am keen to work with her and with all noble Lords who have a particular interest in this issue, to ensure we come to the right conclusion. On that basis, I am sure she will withdraw the amendment.

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I thank the Minister and beg leave to withdraw the amendment.

Amendment 50A withdrawn.

Amendment 50B

Moved by

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50B: Schedule 1, page 13, line 42, at end insert—

“(aa) any arrangements that are not authorised or are authorised subject to conditions,”

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This group of amendments relates to the authorisation record. I have added an additional criteria in Amendment 50B because there may be arrangements put in place after an initial authorisation has begun—or that were subject to conditions—and parts of the authorisation may need early review. Amendment 62A is designed to ensure consistency—the care home manager will not do the assessments but will arrange them. Amendment 58B relates to renewal; if part of an authorisation no longer has effect it must be reassessed from scratch, not simply renewed. Amendment 58C requires that original evidence is submitted, not a second-hand report. It would allow the responsible body to see the authentic assessment rather than an interpretation of any original material.

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My Lords, I am afraid that I think some of the amendments standing in my name have been wrongly grouped. I am sorry; I have been busy this afternoon going through everything else and I am now a bit stuck regarding the procedure and what I should do. I will speak to them, although I am rather reluctant to start this group.

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My understanding is that the noble Baroness does not have to speak to them.

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But am I right in thinking that if I do not speak to my amendments today, they will automatically fall?

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It might be of assistance if I intervene here. If the noble Baroness is referring to amendments in the group beginning with Amendment 58A, I understand that if she does not speak to them now, they can be dealt with in the next group.

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I am no expert in parliamentary procedure but my understanding is that, as they come after the amendment we are considering now and indeed the one that we would consider next, they can be retabled.

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I am grateful. I will do that.

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I am grateful to the noble Baroness, Lady Finlay, for initiating this discussion. Clearly the purpose of her amendments is to make sure that an authorisation cannot be renewed if it wholly or in part ceases to have effect. In some cases, an authorisation will not be renewed if in part it is no longer valid, but there might be other cases where minor changes to the restrictions are needed and that should not prevent an authorisation being renewed. We want to provide further detail in the code of practice and I would appreciate the opportunity to work on that with her.

The noble Baroness has also tabled amendments outlining that authorisation records should detail when arrangements are not authorised or if they are authorised with conditions, and that in care home cases responsible bodies should consider other relevant information, as well as information provided by the care home manager. I can tell her that in some cases if arrangements are not authorised, it might be useful to include them in the authorisation record. However, given the debate that we had on the previous grouping about the general trend towards the inclusion of data or information within records that are then made available to patients, their families and so on, I want to reflect on whether they should always be included and I will come back to that on Report.

The Bill allows the responsible bodies to consider information other than that provided by the care home manager, and further detail on the circumstances and kinds of information will be provided in the code of practice. On that basis, I hope that the noble Baroness is reassured and will feel able to withdraw her amendment.

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I am most grateful to the Minister for that clarification. I agree that some parts of this would be better in the code of practice than in the Bill, particularly because they might need modification as experience develops. If they are in primary legislation, we are effectively stuck with them for a time, whereas otherwise they can be altered. Therefore, I beg leave to withdraw the amendment.

Amendment 50B withdrawn.

Amendments 51 to 54 not moved.

House resumed.

House adjourned at 9.52 pm.