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House of Lords Hansard
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Mental Capacity (Amendment) Bill [HL]
24 April 2019
Volume 797

Commons Amendments

Motion A

Moved by

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That this House do not insist on its Amendment 1B proposed in lieu of Commons Amendment 1, to which the Commons have disagreed, and do agree with the Commons in their Amendment 1C in lieu.

1C: After Clause 3, page 3, line 28, at end insert the following new Clause—

“Deprivation of liberty: code of practice

(1) Section 42 of the Mental Capacity Act 2005 (codes of practice) is amended as follows.

(2) After subsection (1) insert—

“(1A) Guidance about what kinds of arrangements for enabling the care or treatment of a person fall within paragraph 2(1)(b) of Schedule AA1 must be included in the code, or one of the codes, issued under subsection (1).”

(3) After subsection (2) insert—

“(2A) Before the end of each review period the Lord Chancellor must—

(a) review each code for the guidance of persons exercising functions under Schedule AA1, and

(b) lay a report of the review before Parliament.

But this does not affect the Lord Chancellor’s functions under subsection (2).

(2B) A review period is—

(a) in relation to the first review, the period of 3 years beginning with the day on which this subsection comes into force, and

(b) in relation to subsequent reviews, each period of 5 years beginning with the day on which the report of the previous review was laid before Parliament.”

(4) In subsection (3) after “preparation” insert “, review”.”

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My Lords, today we have an opportunity to pass legislation which will reform a broken and bureaucratic DoLS system which is leaving thousands without safeguards and bring forward a new system which will deliver protections to those who are not currently receiving them. Before I talk about amendments from the other place, I take the opportunity to thank noble Lords for the contributions they have made throughout this process. The noble Baronesses, Lady Thornton and Lady Jolly, have provided important scrutiny from the Opposition and Liberal Democrat Front Benches. The noble Baroness, Lady Finlay, has brought great insight from her role as chair of the National Mental Capacity Forum. The noble Baronesses, Lady Tyler and Lady Murphy, have brought the important issue of clarifying the meaning of a deprivation of liberty to the fore, and the noble Baronesses, Lady Hollins and Lady Watkins, have done excellent work to highlight the importance of providing a person with information about their authorisation and relevant rights.

The Bill has dealt with a number of legal issues and to this end our discussion has benefited from contributions from the noble and learned Lords, Lord Brown, Lord Hope and Lord Woolf, and my noble and learned friend Lord Mackay. Our debates have also benefited from contributions from my noble friends Lady Browning and Lady Barran, the noble Baronesses, Lady Meacher and Lady Barker, and the noble Lords, Lord Hunt, Lord Touhig and Lord Cashman. Finally, I thank my noble friend Lady Stedman-Scott for her excellent support and to my predecessor and noble friend Lord O’Shaughnessy, who marshalled the Bill through its earlier stages most ably, of course. Through the work of noble Lords, the Bill has been improved to address potential conflicts of interest in the new system and to ensure that protections for those in independent hospitals are now strengthened. After the work of the noble Baroness, Lady Finlay, and others in highlighting this, we have clarified the ability of families and care staff to whistleblow. The Bill has also benefited from the hard work of many outside this Chamber and from the careful scrutiny of the Joint Committee on Human Rights.

Today, we turn to the Commons amendments, which were tabled as alternatives to the amendments put forward by this House. The Government listened carefully to the concerns of noble Lords and reflected these in our amendments. Amendment 1C prescribes that the code of practice must contain guidance on what kinds of arrangements amount to a deprivation of liberty. There is also a duty to review any parts of the code that give guidance to persons exercising functions under the liberty protection safeguards and to lay a report of the review before Parliament, initially after three years of the subsection coming into force and then every five years after the date on which a report is laid before Parliament.

The meaning of a deprivation of liberty will remain as defined under Article 5 of the European Convention on Human Rights, as it is under Section 64(5) of the Mental Capacity Act. I know that noble Lords and other stakeholders had hoped that we could provide further clarification on the meaning of a deprivation of liberty in statute; we have had many debates about that. The Government had hoped to do so as well. We agreed with the Joint Committee on Human Rights that a definition could help bring greater certainty to people and professionals; to this end, we explored providing a statutory clarification over several months, working with colleagues across government and across the sector.

However, we established that the only way we could do this was to take an exclusionary approach and define a deprivation of liberty as having the same meaning as in Article 5 of the convention, then setting out what does not constitute a deprivation of liberty. This House made it clear that it was uncomfortable with an exclusionary approach to defining a deprivation of liberty. The Government have listened carefully to the views of Peers, MPs and other stakeholders, and decided not to insist on our original amendment. However, the Government were not able to accept the amendment tabled by the noble Baroness, Lady Tyler. It risked falling out of line with case law and would mean having two different definitions in place, which would bring confusion to a sector that needs clarity.

I assure noble Lords that the Government are still committed to providing clarification regarding the meaning of a deprivation of liberty for both people and practitioners. Amendment 1C makes it clear that the code of practice must lay out in clear terms, and provide detail of, when a deprivation of liberty is and is not occurring; this guidance will reflect existing case law, including the Ferreira decision, which addresses the provision of life-sustaining treatment. We will set out the meaning of a deprivation of liberty in a positive framing and in a way that is clear for people and practitioners. We will also include case studies in the code to help illustrate this.

The amendment also brings in a duty to review any parts of the code that give guidance to anyone exercising functions under LPS. This includes laying a report of the review before Parliament. As I said, initially, there must be a review within three years of the subsection coming into force to ensure that it is working as intended. Following that, there must be a review every five years after the date on which a report is laid before Parliament. This will mean that the meaning of a deprivation of liberty will be considered regularly and remain up to date with evolving case law. The review will not be limited to the definition but will include all the guidance relating to the liberty protection safeguards contained in the code of practice. By regularly reviewing the code in this way, we will ensure that there is up-to-date guidance for people and practitioners, which will support the successful operation of the liberty protection safeguards system.

Amendments 25B and 25C state that after authorising arrangements, the responsible body must, without delay, arrange for a copy of the authorisation record to be given or sent. If the responsible body has not done this within 72 hours of the arrangements being authorised, it must review and record why not. The Government recognise the importance of providing people with information. We amended the Bill in the other place to clarify that people should be informed of their rights under the liberty protection safeguards process and provided with a copy of their authorisation record.

Building on this, the noble Baroness, Lady Watkins, tabled an amendment in this place specifying that a record must be kept if the authorisation record is not provided immediately, and that if the authorisation record is not provided to the person within 72 hours, a review must be conducted. The Government agree that it is important to make sure that the authorisation record is provided quickly; however, there were some issues with Amendment 25A, which we have addressed in our amendments. For example, we have made it clear in our amendments that the new duty falls on the responsible body. This is important as it means that the duty to arrange for the authorisation record to be provided to the person and their representatives can now be enforced.

The government amendments reflect the aims of the Lords amendment. Noble Lords will notice a small difference in that we do not require it to be recorded if an authorisation record has not been provided immediately. The reason for this is simple: our priority is ensuring that the person and their representatives receive the authorisation record. If there is an opportunity for the responsible body to send the authorisation record within 72 hours, they should be doing so rather than recording why they have not sent it. Providing information, including the authorisation record, is important to ensure that people are able to exercise their rights. Noble Lords have made clear their view that there should be a contingency provision to ensure that the responsible body makes arrangements in a timely manner to provide the authorisation record. The Government have listened and this amendment reflects that.

By passing these final amendments today we will bring to a close the parliamentary stages of the Bill. When the Government introduced it last year we committed to reforming the process so that it is less burdensome for people, carers, families and local authorities. That is what the Bill will deliver. On Royal Assent, the Bill will become an Act and will introduce a new targeted and streamlined system that will allow people to access protections quicker. This is vital when have more than 125,000 people in the backlog not receiving protections and over 45,000 people who have been waiting for more than a year. I ask the House for its support and I thank all Members who have helped to deliver the Bill we have today. I beg to move.

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My Lords, I shall speak to Commons Amendment 1C, which was agreed in lieu of Amendment 1B, which I moved in this House before the Recess. I start by thanking the Minister and the Bill team for the discussions it was possible to have in the latter stages of the Bill, which helped get us to a position that we now feel, particularly in relation to the definition, is pragmatic and one that we can live with.

First, I welcome the Government’s decision to drop what has been termed the “exclusionary definition” proposed earlier. It had a whole raft of problems but I have no intention of going into them again now. It is important to acknowledge that the Government took on board the views expressed by Peers and others in the wider sector on that definition. The outcome of those discussions—that there should be no statutory definition in the Bill—is a sensible and pragmatic compromise after a rather long and tortuous journey. Those of us involved in putting forward different definitions had all received legal advice, which said that our definitions were fully compliant with Article 5 and so on. However, we were never going to resolve that; they just came from different lawyers with different opinions. We had to find a way forward and we did. The fact that we will now be using the code of practice to set out—clearly, I hope—where deprivation of liberty is and is not occurring and that it can reflect existing and evolving case law is important.

I took the opportunity to listen to the debate on the Commons amendments in the other place on 2 April and found it very illuminating. I was particularly pleased to hear the Minister for Health and Social Care, Caroline Dinenage, say:

“We will set out the meaning of a deprivation of liberty in a positive”—

I emphasise “positive”—

“framing and in a way that is clearer for people and practitioners”.

That was the very nub of my concerns when I put forward my definition: it was not clear; it was all framed in a negative way; and it was very difficult for the families affected and, indeed, for some practitioners to understand. This is a real step forward.

We are now to have a code of practice and a definition set out there. I was also pleased to hear the Minister say, when asked about the timescale for producing the code of practice, that it,

“is being worked on as we speak … Once we are all content that the code of practice is robust and fully covers everything that we want it to it will then be presented to both Houses of Parliament”.—[Official Report, Commons, 2/4/19; cols. 964-5.]

That is very positive. However, can the Minister update us on the timing for the code of practice? When will this House see the guidance? It is absolutely critical that what it says in the guidance—what we have been talking about—does not mean that we have kicked the can down the road in terms of some of the problems associated with the definition. When I see what is in the code of the practice and the guidance contained in it, my acid test will still be whether it is easy for the lay person—I include myself as a lay person here—to understand, not full of double negatives or pages and pages of rather confusing case studies. I would be grateful if the Minister could update us on the timing of that.

Secondly, I was extremely pleased to hear that the definition will be considered and reviewed regularly—and kept up to date, as I have said, with evolving case law—and that there will be a report of that review laid before Parliament within three years of the measures coming into force. That will be another opportunity for this House to scrutinise how it is working in practice. I am very grateful to the Government for listening to my representations on the need for a review and for a report to come before both Houses.

Could the Minister give some commitment that, when the review is published—and this House has had a commitment to look at that review—the code of practice will be regularly updated? A review is important; our having an opportunity to scrutinise it is important; but most important of all is that the code of practice be regularly updated. I contend that some of the problems this whole Bill is designed to address, such as the backlog of deprivation of liberties cases, were in part caused by the fact that the code of practice was not amended as circumstances changed and as more and more cases such as Cheshire West were brought into the scope of the Bill.

I would very much welcome assurances from the Minister on those two points, and thank her for being as helpful as she has been. I thank colleagues on all Benches, because I feel that we have worked very collegiately and co-operatively. I hope and feel that that has helped improve the Bill.

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My Lords, I do not really share the enthusiasm or optimism of the noble Baroness, Lady Tyler, although I often shared her views on what needed to be done at earlier stages. We are all rather tired of this Bill and I see nothing to be gained from hindering its passage, but I cannot let it pass without expressing my profound misgivings. We—the Members of this House—have failed to do what we were supposed to do. Our task was to make the deprivation of liberty safeguards—now the “liberty protection safeguards”—more practical, more focused on those at risk, more cost-effective and safer, and we have allowed the Bill to disintegrate into a sprawling, all-encompassing bit of a nightmare. The procedures may be simpler—we have cut out one layer of bureaucracy—but we have allowed these provisions to be extended even further than Cheshire West, even pursuing people in their own homes in a way which I do not think many families will appreciate.

The one thing everyone, including the JCHR, was hoping we would do was to introduce a realistic definition of a deprivation of liberty. In the end, we in this House just copped out. We could not agree; we got into a mess; the lawyers could not agree either; so we have just said, “No, let us put it all in a code of practice”. As many noble Lords will know, I wrote some of the early codes of practice for the Mental Health Acts, and I know that codes of practice suffer from mission creep—they get more and more stuff in which is quite difficult for people outside in practice who will implement it, and do not get updated very regularly because it is difficult to do so. Indeed, if there is no clause in statute, which most codes are fixed around—and there will not be, of course, as is intended—it will have to be arranged around Article 5. That will leave a situation in which the lawyers will have a field day, and in which we will still be waiting for case law to give us some guidance.

Meanwhile, the numbers are going up. My latest count was 140,000—I think the official number a couple of months ago was 125,000. There will be a lot more soon. About a third—it may be even more than that—will be waiting for over a year, and 75% of them are elderly people with dementia, who will probably die before they get their rights looked at. Will it make any difference to them? Generally, it will not make one whit of difference. If we had done our job properly, the numbers would have gone down, and there is a chance that those at greatest risk—for example, people with severe dementia who are kept in locked units, who never see the light of day, and people with severe disabilities in residential care—would have been seen sooner and would have had their care plans addressed in respect of their freedoms.

Meanwhile, these last three years have seen an industry grow up around the implementation of DoLS. It is now called DoLS by everybody out there—I am not sure that most people know what that means. A costly public service has developed which has a life of its own, and which, as we have seen, takes money directly out of care budgets. When Staffordshire quite sensibly tried to call a halt and said, “Hang on a minute, let’s go for the worst cases: those most at risk, those with the most profound disabilities or where there is a disagreement”, somebody complained, and they were told in no uncertain terms by the Local Government Ombudsman to get on with it and to get back to doing everybody. So the waiting list grew yet again. Of course, many other county councils and metropolitan councils were making similar decisions, but they have all had to go back to compiling the waiting list, which grows and grows.

The other people who will love the Bill are the lawyers. Just imagine how you will be able to debate the nuances of Article 5 meanings when the code of practice fails to live up to expectations.

This Bill should be a lesson to us all. It is legislation which arose from a Supreme Court judgment—an impeccable theoretical case, made without any thought to the practicalities that would affect 2 million people. The Law Commission was as tied up in knots as everyone else and could not see a way through. My goodness, it worked long and hard on it in an admirable way, but it could not get beyond the problems of having to satisfy Cheshire West and the Supreme Court’s judgment. This House’s inability to grasp the Bill will not provide any more than a hit-and-run assessment of one patient’s disabilities and whether they are deprived of their liberty. It will not provide any more care for people, and it will be a bit of a disaster.

I have been as guilty as everyone here because I was not here for Report, when perhaps I should have been here to say this more clearly—I am sure that my colleagues quite often feel cross with me when I am not here, and I apologise for that. However, I am not blaming the Ministers either, who have, unfortunately, changed during the passage of the Bill, which has taken a lot longer than it should have done. They have struggled as best they can with a complex, technical Bill; nor am I blaming the team at the Department of Health, because Sharon Egan and her team have been squashed between the lawyers, the DoLS industry, the obvious need to make things viable and less depleting of care budgets, and the impossibility of satisfying everyone.

The only flexibility left—because we will pass the Bill—is that before the Bill is commenced, the Government should pause and do a few more sums; otherwise, we shall be back here in another three years, looking at how we can make this legislation more viable. Many more millions of hours of care staff time will have been wasted in failing to improve the care of mentally incapacitated people. Their rights need protecting, but this Bill will not do it.

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My Lords, I have taken a slightly different view. I declare my interest as chair of the National Mental Capacity Forum, and I am grateful to my leadership group in that forum for their comments, constant advice and constructive criticism. I am also most grateful to the Bill team, the noble Lord, Lord O’Shaughnessy, and the Minister for having listened. We have certainly given the Bill what we could term a bumpy ride. I think that needed to happen and do not apologise for it at all. From what I understand, the way the code of practice is now being developed will result in a far better situation.

It is a really major decision to deprive somebody of any aspect of their liberty as part of the care given, and it must always be necessary and proportionate to the size of the problem. Restrictions imposed to protect them from harm need to be consistent with their wishes and feelings as far as possible. Therefore, I am grateful that “wishes and feelings” are now spelled out in the Bill, because they were not previously.

I hope that the Bill as it now stands, with the code of practice being developed, will give greater professional discretion and flexibility to those on the ground responsible for implementing the Bill than the current DoLS system, which is very prescriptive and rigid. I think that the advocacy provisions in it will turn out to be better than those under DoLS. There was no requirement under the previous legislation to carry out consultation with the person or a range of others to ascertain the cared-for person’s wishes and feelings about the arrangements. We are moving from the deprivation of liberty, which may be convenient for those providing care of some sort, to trying to match the individual person.

We did indeed wrestle with the problem of a definition, and I think we gave it a fair hearing. Personally, I am glad that we are not including in the Bill a definition with which we are not totally comfortable because, having wrestled with it, we just could not get there. Perhaps the reason is that each person is unique and individual in separate, individual circumstances, so a definition of deprivation of one person’s liberty will differ from another’s, and it is only with a broader code of practice that we can spell that out and ensure discretion.

I am grateful to the Government for having included the whistleblowing procedures. As everyone is aware, I felt very strongly that they needed to be included, because they are a protection. I commend my noble friend Lady Watkins of Tavistock on having achieved the provision whereby the person and those closest to them must be notified of the arrangements, because if you know what they are, you can then state whether they are not being met, whistle-blow and ask for a review. In some ways, that is the most important aspect of protecting a person.

I am also glad that the definition will be framed in a positive way, because under the previous iterations, various misunderstandings were almost inevitably going to arise, and of course it must be compatible with Article 5. The consultation on the code has ADASS at its heart, and it is heavily involved. It will be responsible for front-line implementation, as will NHS England. I am glad that a wide group is being consulted and that whatever meaning is evolved in the code will be subject to review at three years. That seems a reasonably short space of time; it does not allow for drift but it is not so short that we end up with something that will not work.

It would certainly be very helpful for us to know the timing for the code being issued and to have reassurance that the three-year and subsequent five-year reviews will feed into revisions to the code. I hope that, as the noble Baroness, Lady Tyler, said, these are not separate processes, because that would be a complete waste of effort and of expertise.

The authorisation record can state what the person needs, and it can also require interim reviews. If, for whatever reason, somebody has a fluctuating situation or capacity, there may be interim reviews before the one-year review. As I understand it, even if the decision is made to extend reviews to every three years, within that time there can be interim reviews of aspects of that deprivation of liberty to make sure that the focus remains on the individual person.

We also wrestled with the problem of people in their own home. Sadly, evidence of elder abuse has come through from various charities, and we cannot ignore it. I am afraid it is right that, when there are complex care arrangements for people in their own homes, there must be a degree of scrutiny at some level. Otherwise, there is a real risk that people could be literally locked away, out of sight and out of mind, with nobody detecting when abuse occurs. The abuse of elders in our community is of great concern to everybody in this House.

Overall, I welcome where we have now got to. It would be helpful, however, if the Minister could confirm that the code of practice will be statutory; that it is not voluntary guidance but has standing. I hope she hears the message I have heard from many people, including those on the leadership group. I particularly commend Lorraine Curry, previously the chair of ADASS, who has provided me with a lot of constructive criticism. She reports back now that the profession just wants to get on with it and implement the new system, and do the right thing by the people for whom they have a responsibility. I hope we will see this Bill proceed today.

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My Lords, I want to speak briefly to offer some thanks to everybody who has participated in getting the Bill to this point.

First and foremost, I thank noble Lords. The noble Baroness, Lady Finlay, said that the Bill had been given a bumpy ride. As I was in the driving seat for some of that, I can tell noble Lords that it certainly did feel rather bumpy. However, once we got over the bumps and decided we could work together, we made considerable improvements to the Bill, driven largely, it has to be said, by this House and the expertise within it. The compromise reached on the issue of a code of conduct is a good example of that and reflects extremely well on the process this House has gone through in its desire to reach pragmatic solutions—perhaps there is a wider lesson for politics in that.

I want also to express my thanks to those in the Bill team, who have stuck with this and shown considerable and growing intellectual flexibility as the process has gone on. I am sure all noble Lords would want to thank them for both their input and feedback and the grace with which they have dealt with this.

I thank also my noble friend the Minister. This Bill was one of many passes I gave her when she took over, and she has handled it with great intelligence and grace, as she always does. I am delighted we have got to this point and that she has steered it so safely.

Finally, and most importantly, I thank those affected by this legislation: the cared for and the carers. I am sorry to hear the opinion of the noble Baroness, Lady Murphy, which I take very seriously. I am an optimist naturally, but it is not just my natural optimism that means I cannot agree with her gloomy outlook. I hope she is wrong, and I hope she will not mind my saying so. I believe that through this legislation we have made some positive changes and done some good for the cared for and their carers. I am sure this is a subject to which we will return, but, in the meantime, I hope the lives of those people have been improved by the work we have put in over the past few months.

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My Lords, it has been a privilege to work again on a subject that we have now worked on several times in this House, from the original pre-legislative scrutiny and original legislation through to the post-legislative report on the implementation of the previous Bill. Apart from anything else, it shows the excellent results that can be achieved from the process that we put into scrutinising legislation and scrutinising its subsequent implementation. In light of all of that, I will say that I take a slightly different view from the noble Baroness, Lady Murphy. I think that we have done a very good job. The problem is that the legislation that came to us was fundamentally flawed, and we could not change that. But we changed the legislation where we could, and those changes will make it better.

The noble Baroness hit on two fundamental issues that are problematic. The first is the nature and scope of the Cheshire West ruling and the second is the lack of understanding of the original DoLS legislation. When it was introduced, the training for professionals—all sorts of different professionals—was lacking. Much of what has happened since has meant that we have fallen into a system that is deeply bureaucratic. A number of professionals are scared to exercise their professional judgment. Consequently, a whole bureaucracy has grown up around DoLS which, had it been introduced in the right way, would not have happened. Therefore, the noble Baroness was right to say that the Law Commission was trying to deal with that issue and could not. I have no doubt that what we have in front of us will not solve the problem. I doubt very much whether it will deal with the backlog of cases, about which people are rightly exercised.

My question is one that we were all concerned about—the resourcing for this. One of the first things that we did when we met the Bill team was to query the resourcing—half a day’s training for some doctors and no need for training for people in care homes. Much of that has got lost as we have gone deeper into the wording of the Bill. Will the Minister talk about the resourcing of training and the implementation of the code of practice? I have no doubt that, in due course, there will be further test cases that will shine a light on the deficiencies of this legislation and we will come back to dealing with the fundamental issue: how do we ensure that someone whose liberty is going to be deprived by an agency of the state can be enabled to understand their rights, and their carers enabled to understand their rights, in order that they and the professionals who work with them can ensure that everything is put in place to minimise the deprivation of liberty? If we had done that properly in the first place, we would not be dealing with the deficient legislation that we are now.

The noble Baroness, Lady Murphy, is right that we have not dealt with it, but I take some hope from a lot of the stramash, to use a Scottish word, that we have been through and the attention that has been paid to all of this by the department, by people in the sector and by the lawyers themselves. This is not the greatest job we have ever done, but what we should do today is put a marker down for the evidence that needs to be collated and gathered for the time in the future when we will, inevitably, return to this subject.

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I have a couple of points. Other noble Lords made detailed points about the work of this House and the contribution that noble Lords have made to the Bill—very effectively, I think. My experience, although in a sense peripheral, has been that this House has worked very effectively with both the noble Lord, Lord O’Shaughnessy, and the noble Baroness, Lady Blackwood, in their roles as Minister and with the Bill team, and have achieved a certain amount—which is all we ever expect. We do not normally expect to turn Bills upside down and back to front, but we have achieved certain things.

I will mention a couple of things for which I am grateful to the Government, if I am right that we have really seen them home. One of my concerns was the huge and growing number of people in domestic situations where very vulnerable carers are caring for very vulnerable loved ones. Of course we need some sort of safeguard to ensure that the deprivation of liberty, if it occurs, is proportionate, reasonable and all the rest of it, but I was very worried that these poor carers would have layers of bureaucracy that they really could cope with, in addition to the bureaucracy they already had to deal with. I think we had an agreement from the Government that the procedures for assessing deprivation of liberty, proportionality and the rest of it will be undertaken in the local authority’s normal care-planning process, in the work that local authority officials are already doing. That seems a very constructive way forward which will greatly benefit a huge number of carers and cared-for people. It is a small thing, but it may be quite significant.

My other big concern was about independent hospitals. I have spent a lot of time in my career visiting these places and finding the most vulnerable people with learning or physical disabilities, mental health problems and the rest of it very often tucked away hundreds of miles from their home. Originally the idea was that the independent hospital would be responsible for the assessment and the whole business of deprivation of liberty. In my view, that idea was absolutely horrendous, and, as I understand it, the Government have accepted that and will make sure that the local authority, ideally in the place the person comes from, will be responsible for that process, and therefore the pressure will be to get those people out of those hospitals and back into their community. This again seems to be a minor adjustment made as a result of the work of this House, but for the individuals concerned it is a very significant benefit. So I congratulate both Ministers who have been involved in this Bill, and the Bill team, on the work they have done to respond to concerns expressed by Members across this House. They have done the best they could, so I thank the Minister.

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My Lords, it is always a good moment when we get to this point in any legislation. It is also an opportunity for us to look at where we started in July. In July, my Chief Whip spoke to me about a really small, uncontroversial Bill that would amend the Mental Capacity Act. I am not criticising him, because that is what he had been told. The idea was that we would have the Second Reading quickly before the Summer Recess and then move straight into Committee immediately after it and get through the Bill quite quickly. It is a great testament to this House that we recognised quite quickly that it might be a small Bill but it was certainly not uncontroversial. As I said when we moved into Committee, the noble Baronesses, Lady Jolly and Lady Barker, and I were sending each other messages about this Bill when we were all poolside in different parts of Europe because we realised that we needed to understand it much better.

I do not accept the criticism that we have failed. I think we started off with a flawed Bill and that we have improved it. In a few years’ time I think we will almost certainly return to this subject, because by then we will have discovered things that have not worked out and that need to be reviewed and possibly changed. We need to thank both Ministers for listening, hearing and working to change the Bill. I particularly thank my fellow Peers for working so co-operatively and with such great expertise. It is always a pleasure when we do that and we are always at our most effective when we do so, and I have been very happy that various Members of the House have taken the lead on various issues throughout the passage of the Bill. The Minister named everybody, so I shall not do so again, but they know who they are and it has been a pleasure to work with them.

We should be pleased that we have successfully tackled what, as far as we were concerned, were certain huge issues, many of which have been mentioned by the noble Baroness, Lady Barker. They included care home managers’ powers, conflicts of interest, private hospitals, the definition of deprivation of liberty and the information provided. We should be proud that those issues have been tackled. I particularly thank the noble Lord, Lord O’Shaughnessy. I have not often been called a juggernaut but on Report he suggested that I was. I think he was expressing the opinion that in my remarks I was representing the views of the whole House and that we were definitely coming for him, as it were.

If we are to learn some lessons from this, one is possibly that the Bill team took a little while to gear up to what happens in the House of Lords and how we approach things. We talk to the stakeholders—we have a continuous dialogue with them—and that is the next group that I would like to thank. I thank all the stakeholders who came to endless meetings with us to make sure that we did our job properly, although some of them still have some major concerns.

I say to the House that what matters is what happens next. First, it seems likely that within the next year or so we will have another mental health Bill, so it is quite possible that some of the issues that we have been concerned about will re-emerge and be discussed during that process. Secondly, we will have the regulations and the code of practice. I would like to be assured that the consultation, which might not have been quite as good as it should have been at the beginning of this whole process, will absolutely inform the code of practice and the regulations that follow the implementation of this legislation.

I do not wish to threaten the Minister but, after the past eight or nine months, there is a body of commitment and passion over this issue that will certainly be watching and be interested in what happens next and will have something to say about it. Therefore, in a spirit of positiveness, we hope that we will be able to help with the next stages but we will certainly be watching them to make sure that the gains that we have made are reflected in the code of practice and the regulations.

Finally, I very much thank the Minister, who came in in the middle of the Bill. This is the second Bill that she has had to pick up and run with in your Lordships’ House. She has done it with great dignity and intelligence, and it has been a pleasure to work with her.

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I thank noble Lords for an important moment in the passage of the Bill. I assure them that they will never have to threaten me to get me to listen to important points regarding the progression of legislation of this import. I identify myself with the comments of the noble Baroness, Lady Tyler. This is indeed a pragmatic solution to the very challenging problem of getting the right solution.

I also echo the comments of the noble Baroness, Lady Finlay, who said that this has been a bumpy ride, but it is a major decision to deprive someone of their liberty, so it is right that there has been very detailed scrutiny of the legislation. When someone is deprived of their liberty we have to ensure that it is always necessary and proportionate and, wherever possible, consistent with their wishes and feelings. I agree with her that the advocacy provisions in this Bill are stronger than in the DoLS legislation, and that it will provide greater responsiveness and flexibility than previous legislation. We can be proud as a House to have delivered that.

I am sorry to hear the concerns raised by the noble Baroness, Lady Murphy. As we proceed through the next stages of engagement over the code of practice, I hope that we shall be able to prove her wrong, in the most positive sense. We have put in place very strong measures for whistleblowing thanks to the contribution of the noble Baroness, Lady Watkins; thanks also to her work, we have strengthened the provisions for information. We have also to nail down the questions around the definition, of course, but I think it right that this is not on the face of the Bill for all the reasons that we have debated at great length in this Chamber. I will not rehearse them now but will try to answer some of the questions that I was asked.

The first is about when the code of practice will be published. Obviously, as the noble Baroness, Lady Finlay, pointed out, the department is collaborating very closely with the sector in the preparation of the code; that is already happening. We are working with many organisations and individuals. The drafting will be considered by expert reference groups and people with lived experiences, to ensure that we get the most practical and workable code of practice. The department has already convened a working group involving a wide range of stakeholders. We expect to have output from the working group by this summer. After Royal Assent, I will place a letter in the Commons Library as requested; this will contain timescales for the code of practice, including when a draft code will be published for consultation. I hope that is reassuring.

As I have said, the statutory guidance will include a suite of case studies which will demonstrate how the definition applies in different settings and scenarios. It will provide clarity and aid to practitioners. We are collaborating to ensure that it can provide clarity and lack of ambiguity and can be a real help to those using it. As the noble Baroness, Lady Tyler, said, we have made a commitment that it will provide detail about when deprivation of liberty does and does not occur. It will reflect existing case law, including the Ferreira decision, and it will set out the meaning of a deprivation of liberty in a positive framing; this should be reassuring. On the question of a review, the code can be updated at any point. This will ensure that it can reflect changes in legislation practice or case law—that is, the entire code, not just the definition. I hope that is reassuring.

I would like to respond also to some of the points made by the noble Baroness, Lady Barker. She is absolutely right regarding the questions of resourcing, the backlog and training. We are very alive to this. A further impact assessment will be done following Royal Assent and we will work with stakeholders collaboratively to take on board feedback from previous iterations. We will also ensure that the Government will provide guidance ahead of implementation. That will include steps that can be taken to help reduce the backlog.

However, we will not stop there. The Government are committed to supporting training ahead of the new system coming into force and are working with Skills for Care, Health Education England and Social Work England to deliver that. Ahead of day one, we will work with local and national networks and the Welsh DoLS network, in partnership with the LGA and ADASS, to reduce the existing backlog. Work is under way for that. Cared-for persons who have existing DoLS authorisation on day one will remain under that authorisation until it expires, after which a new application will be needed to try to manage the volume of work that will be undertaken. I hope this is reassuring. To respond to the point raised by the noble Baroness, Lady Finlay, I can assure her categorically that the code of practice will be statutory.

I hope that all this is reassuring; I think this is a great step forward and I commend the Bill to the House.

Motion A agreed.

Motion B

Moved by

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That this House do not insist on its Amendment 25A to Commons Amendment 25, to which the Commons have disagreed, and do agree with the Commons in their Amendments 25B and 25C to Commons Amendment 25 in lieu.

25B: Line 2, leave out from “(1)” to “to” in line 3 and insert “After authorising arrangements the responsible body must, without delay, arrange for a copy of the authorisation record to be given or sent”

25C: Line 10, at end insert—

“(1A) If the responsible body has not, within 72 hours of arrangements being authorised, arranged for a copy of the authorisation record to be given or sent to each of the persons mentioned in paragraphs (a) to (d) of sub-paragraph (1), the responsible body must review and record why not.”

Motion B agreed.