Mental Capacity (Amendment) Bill [ Lords ] (Fourth sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateThe Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Minister for Care (Caroline Dinenage)
I beg to move amendment 5, in schedule 1, page 14, line 6, leave out “prescribed connection” and insert
“connection, of a kind prescribed by regulations,”.
This amendment is to make it clear that a regulation making power is being conferred by paragraph 18(3) of the new Schedule AA1.
Caroline Dinenage
It is a great pleasure to serve under your chairmanship, Mr Pritchard. A warm welcome to the Committee—albeit not quite as warm as it would have been had you been here on Tuesday.
These technical amendments build on important amendments tabled by the Government in the other place. They ensure that a person with a connection to a care home cannot conduct the assessments needed for an authorisation or the pre-authorisation review, and thereby eliminate any potential conflict of interest. It is vital that assessments and pre-authorisation reviews are completed independently. The amendments not only ensure there is no conflict of interest in the process but prevent the approval of over-restrictive arrangements that are in a care home’s interest but not in the best interests of the individual.
The amendments clarify that the definition of a person with a connection to a care home will be set out in regulations; the Bill therefore confers regulation-making powers. That may not have been sufficiently clear in previous drafting, so those connections will be laid out in regulations, which will allow us to provide the necessary detail and ensure that all care home staff and those connected to a care home are excluded from completing assessments and pre-authorisation reviews. Consideration was given to setting that out in the Bill, but we concluded that regulations would better serve our intention of ensuring that we exclude agency staff and others who do not work directly for the care home. I hope the Committee supports these clarifying amendments.
Barbara Keeley (Worsley and Eccles South) (Lab)
It is a real pleasure to serve under your chairmanship, Mr Pritchard. The atmosphere is so much nicer than it was on Tuesday, when we were so horribly hot. You avoided being in a sauna for a few hours.
It is a pleasure to speak to such uncontroversial amendments. We will discuss conflicts of interest further, so I will not say too much now, but I wish to make one comment. The amendments make clear that assessments and reviews should not be carried out by people who have certain relationships with a care home, but I hope the Government take a broad view of the kinds of relationships that should be ruled out. The regulations must not provide that the only people with a prescribed relationship with a care home are its employees. I also hope the Government take an open and consultative approach to drawing up the regulations. Many stakeholders will have strongly held views about the kinds of relationships that should be prescribed, and the Government should ensure that they take all that expertise on board.
Amendment 5 agreed to.
Amendment made: 6, in schedule 1, page 15, line 4, leave out “prescribed connection” and insert
“connection, of a kind prescribed by regulations,”.—(Caroline Dinenage.)
This amendment is to make it clear that a regulation making power is being conferred by paragraph 19(4) of the new Schedule AA1.
Caroline Dinenage
I thank the Opposition for raising this issue. As we have heard, the amendment would require that parents’ wishes and feelings about the proposed arrangements for their 16 and 17-year-old child are ascertained. That would be in addition to the main purpose of the consultation, which is to ascertain the wishes and feelings of the cared-for person.
I understand that hon. Members are concerned to ensure that parents’ voices are heard—so, of course, are the Government. Parents have a vital role in caring for their children, especially when they lack mental capacity. We would fully expect the responsible body to consult parents about their views of the arrangement, where appropriate, while ascertaining the wishes and feelings of the person. We therefore believe the amendment to be unnecessary, because parents involved in the care of their child will already be included in the consultation process, where appropriate. I refer Members to my earlier comments on the safeguarding issues that must also be taken into consideration.
The other thing to be taken into consideration, which I mentioned earlier, is the Birmingham case which is being considered by the Supreme Court. That will bring further clarity to parental responsibility for young people lacking mental capacity.
Barbara Keeley
I hope that the Minister was listening to the cases that I cited—I know that she has been involved in and heard of those cases, and sometimes met the individuals. Parents, however, were not consulted in desperately difficult and at times tragic circumstances. She knows that Paula McGowan and Oliver’s father were not consulted; in fact, they were ignored. On a number of occasions, I have talked about the case of Y, whose parents were ignored—the social worker just ignored them—to the real damage of that young person, who was held for two years. The Minister says somewhat glibly, if she will excuse me saying that, that parents will be consulted, but they are too often ignored. It seems to me that the working practice of many professionals in this field is to ignore the parents. I do not think that the amendment is unnecessary, because it creates a situation in which we draw attention to the importance of the input that parents can make. I have certainly seen no evidence that that is routinely used at the moment.
Caroline Dinenage
I very much take on board the hon. Lady’s concerns, and she knows that I have enormous respect for her work in this field. As she said, I have met with a number of parents involved in these tragic cases—she mentioned Paula McGowan and her son, Oliver. It was not just Oliver’s parents whose wishes and feelings were ignored; it was Oliver’s. In the initial period he said that he could not have the medication that they were giving him, and they still gave it to him anyway. Her point is incredibly valid, but it needs a lot more than this to achieve what we are aiming for. That is why we are bringing forward the consultation on the appropriate training for people who work in health and care settings, on how to be able to communicate with, understand and properly look after people with autism and learning disabilities.
Barbara Keeley
I respect that the Minister has taken on board Paula McGowan’s campaign, but how much more powerful would the training of medical professionals and others involved with the care and treatment of people like Oliver be, when it is started, if it could be said in the consultation that they have to listen to the views of the parents? That would be a change, because clearly they are not doing so at the moment.
Caroline Dinenage
I completely agree with the hon. Lady. We are making it clear that parental voices must be heard, but we have to be careful about putting anything in the Bill that could create unintended consequences. We have spoken about it before and those safeguarding issues have to be taken very seriously. To our cost, we have learned from previous Bills that a loophole in the law can take the whole policy off in a way that we had not entirely expected. We do not want to recreate that. I hope that with that reassurance hon. Members feel they are able to withdraw the amendment.
Barbara Keeley
No, I am afraid I do not. Amendment 34 requires the views of parents to be given particular weight in the consultation process, when the cared-for person is 16 or 17 years old. That is the third of our amendments designed to ensure that 16 and 17-year-olds have proper safeguards. It is necessary, because of the greater safeguards that this age group currently receives under the Mental Health Act. I think there will be a shift in which piece of legislation is used in regard of 16 and 17-year-olds. We cannot have a situation where the safeguards are less under the mental capacity legislation than they are under the Mental Health Act or a court order. We will press this to a vote.
Question put, That the amendment be made.
Barbara Keeley
I beg to move amendment 35, in schedule 1, page 15, line 41, after “is” insert “employed by an organisation”.
This amendment would prohibit the pre-authorisation review from being carried out by any person employed by an organisation involved in the day-to-day care of the cared-for person, or involved in providing any treatment to the cared-for person.
Alex Norris
This debate harks back to what we talked about on Tuesday—the perverse incentives for those providing care to let individuals remain on care packages for their own commercial interests, whether consciously or subconsciously. There is definitely a conflict of interest there. We have not taken previous amendments on that, but at some point I believe a line will have to be drawn stating, “These are the very clear in law protections that we are putting down to ensure there is no conflict of interest.”
It is entirely possible that the code of practice will refer to that and at the first stroke make it clear that it would be highly inappropriate for the assessments or reviews to be done by individuals who have a close connection or employment relationship with the provider themselves. That might be so, but we do not have that code of practice yet, and in any case, it is probably something that would be better in the Bill than in guidance, notwithstanding what the Minister has said previously about the standing of the code of practice.
We know that care facilities have narrow financial constraints. Their finances are tight and, as my hon. Friend the Member for Stockton North says, there is a pressure to provide as cheaply as possible. That is a clear and present danger. To avoid that concern and send a clear signal about those who conduct these types of reviews, now is a good time to put it in the Bill.
Caroline Dinenage
I am grateful to the hon. Members who have raised this important issue. I will address each amendment in turn.
On amendment 35, I agree that the independence of the pre-authorisation reviewer is of the utmost importance for ensuring that there is no conflict of interest in the pre-authorisation review. The Bill provides for separation between those who will authorise arrangements and those who will carry them out. The Bill is clear that anyone involved in a person’s day-to-day care or treatment or with a prescribed connection to a care home cannot complete a pre-authorisation review. That was an amendment made to the Bill after discussion in the other place.
Dr Paul Williams (Stockton South) (Lab)
Even though somebody might not have a prescribed relationship, informal relationships can develop, as my hon. Friends said. Our concern is that the existence of those informal relationships—they have been described as “cosy”—may well not be precluded by the protections afforded in the Bill.
Caroline Dinenage
That is what we must guard against. It cannot be done in the Bill, because coverage has to be extensive; that is exactly where the regulations that run alongside the Bill come into their own. They will set out how, if someone is working for a care home in a different location but run by the same provider, they will be excluded. They will also take a broader view, encompassing things such as agency staff, volunteers and other areas where people may have very reasonable concerns, as well as, of course, everybody who is employed in the care home.
Another point I want to stress is that the amendment would put hospital trusts, clinical commissioning groups and local health boards in a position where they are unable to arrange for someone in their organisation who is separate from delivering care and treatment to complete the pre-authorisation review. They would instead have to organise someone external, which to me seems a wildly unnecessary and bureaucratic exercise. We trust our NHS staff with our lives every single day. I am sure that is an unintended consequence and that Opposition Members are not saying that we cannot trust our NHS staff to complete those reviews. That is when I talk about unintended consequences of amendments to Bills.
Steve McCabe (Birmingham, Selly Oak) (Lab)
This is a genuine question: what will the arrangement be for inspecting the work of the people who carry out the reviews? The Minister says that we trust our NHS staff, but we have a whole series of inspection and review processes to ensure that decision makers are complying with the law as intended. I think I asked a similar question the other day about the Care Quality Commission in relation to homes, which she said that she would look at. Will there be some similar oversight or random review process of the work that these people do? That would be one way—not a guaranteed way—of picking up whether there was an unsuitable relationship. At the moment, part of the fear is that we could end up in a situation where these people are set free to do this work, but without any guaranteed oversight of how they carry it out.
Caroline Dinenage
I laughed when the hon. Gentleman said, “This is a genuine question,” as if all the others he has asked have not been. I am sure that is not what he intended to suggest.
Steve McCabe
If the Minister will forgive me, it is just that she looks as if she does not believe me sometimes.
Caroline Dinenage
I think that might just be my natural resting face. I understand what the hon. Gentleman is saying, but it depends who we are looking at. If the pre-authorisation review is being conducted by a local authority for a care home, the oversight of the senior members of the local authority would apply, as well as the Care Quality Commission, which deals with the quality of care homes. If it is something like a hospital, people will monitor other people’s work as happens already within hospitals, CCGs and health boards.
The Bill says that somebody who is involved in the direct care of a particular person cannot mark the homework of another person. In something as big and broad as a local health board, a CCG or a hospital trust, which can be enormous, exclusively saying that there could not be two people, who have never met each other before, looking at each other’s work seems to me a huge leap.
Amendment 36 is designed to prevent anyone with a prescribed connection to an independent hospital from conducting pre-authorisation reviews. I am sure that we can all agree that the pre-authorisation review is critical to the effective operation of the liberty protection safeguards in providing independent reviews of proposed arrangements that may deprive people of their liberty. We are talking about the most precious and vital of our human rights. The reviews have to be conducted by someone independent, who is not involved in the day-to-day provision of care or treatment of the cared-for person. That provides the necessary degree of separation to ensure that the model is compliant with the European convention rights.
By requiring authorisations in independent hospitals to be considered by an AMCP, regardless of whether the individual objects, we add a further level of security and build on other safeguards within the model. The AMCP will meet with the person, complete any relevant consultation and review assessments to decide whether the authorisation conditions are met. They can effectively veto proposed arrangements, if they feel that the proper conditions are not met. AMCPs will be professionals, such as experienced social workers, learning disability nurses and psychologists. Their practice will be regulated by and they will be accountable to their professional bodies—in answer to what the hon. Gentleman said earlier.
Alex Cunningham
The Minister just used the expression—I have lost my train of thought. I beg your pardon, Mr Pritchard.
Caroline Dinenage
I will take an intervention from the hon. Member for Worsley and Eccles South.
Barbara Keeley
I can see the Minister’s drift, but I do not understand how the Bill deals with a person who has a prescribed connection with a care home, but not a prescribed connection to an independent hospital. If it is important to have that in the Bill for a care home, why is it not important to have that in the Bill for an independent hospital?
Caroline Dinenage
It is in there—it is in both. In addition we have the AMCPs. As I said when discussed amendment 19, I fully understand hon. Members’ concerns around independent hospitals. I know the hon. Lady shares my concerns, and this matter has been raised by Members across the House. I said to her, in relation to amendment 19, that I wanted to go away and consider it further.
Alex Cunningham
I did not realise I was going to have to declare an interest in the Bill, in view of my lapse a few minutes ago. My question is about the reference the Minister made to the AMCP always meeting the person. Does the AMCP meet the person in every circumstance? We tabled amendments because we want everybody to have access to that sort of professional person—not just for them to see a report, but to actually see the person.
Caroline Dinenage
Yes, by requiring authorisation in independent hospitals to be considered by an AMCP, we add that extra level of scrutiny and build those safeguards into the model.
Given that I have committed to look at independent hospitals again, as I said in relation to amendment 19, I hope that the hon. Lady is willing to withdraw the amendment.
Barbara Keeley
I tried to ask the Minister another question. I do not want her just to go away and think about it. Is she prepared to look at adding the words “independent hospital”? Amendment 36 is a fairly simple addition of a few words. Is that what she is considering?
Caroline Dinenage
At this stage, I am prepared to say that I fully take on board and share the concern felt by the hon. Lady and others about ensuring that independent hospitals are not only seen to be above board, but are above board in every way that we can manage. That is why I have committed to looking again at everything that we have said so far to see if there is anything further we can do.
Barbara Keeley
I thank the Minister for saying that. She will need to go further and say that she is prepared to amend it on Report. Otherwise we will have to press our amendment to a vote. It is very important. I do not really understand the difference.
Ministers have accepted in the Lords that they want to prevent this important independent review from being conducted by a person with a prescribed connection to a care home. Responsible bodies include independent hospitals. I do not understand. If the Minister is prepared to go away and table a Government amendment we will not press this amendment to a vote. Otherwise, we will.
Caroline Dinenage
I appreciate the hon. Lady’s tenacity and dedication to this matter. I am afraid that, at the moment, all I can I say is that I am committed to looking at it again.
Barbara Keeley
That was helpful to know, because for us it is unacceptable for an independent reviewer to be employed by the same organisation that delivers care and support. That is unacceptable in a care home and in an independent hospital. The Bill is drafted too narrowly and precludes only individuals who are personally involved in the delivery of care. We certainly need to vote on the amendment. It seems to me to defy logic to have such a provision for care homes, but not to be every bit as cautious about independent hospitals.
Question put, That the amendment be made.
Alex Norris
I have specific trouble with the word “practicable”. From my time in local government—I know things have not got better in the 18 months since then—I would argue strongly that the current assessment workload is not practicable for the individual. Earlier in our consideration of the Bill, my hon. Friend the Member for Birmingham, Selly Oak compared social work case loads when he was active in the profession with what they might be today. Putting in legislation how practicable it is for an individual to go and do an assessment creates the chance of a loophole that does something that we do not intend the Bill to do.
It is striking, as my hon. Friend the Member for Birmingham, Selly Oak said, that the Minister has at all turns been careful about what has been put in the Bill so as not to create future loopholes. We know that traditionally, this area has been tested very heavily in case law and it will be tested again in court. She has been very careful not to put those words in there, but this one is problematic. We know that in a time of rising demand and diminished resources, there will be pressures. To put something in that suggests that if it is just too difficult for a social worker to go and do an assessment, that assessment will not take place, is dangerous. I do not think that is what we are trying to do. I believe that it will lead to a serious problem.
The market for providing very high-need care is not very developed. We are talking about very small numbers of people, so there are not masses and masses of providers. When it comes to all of us being older, there are facilities in all constituencies and communities for older people to have residential care, because it is a high-demand area. The very specific, individualised care packages that involve things such as depriving liberty are not found in every community. Often, we hear horror stories in children’s mental health of people being sent a long way away to find the right facility. Are we then saying that a reassessment might not be practical, because the AMCP is in Nottingham and the care placement is a long way out on the east coast in Lincolnshire? That might not be considered by an individual to be a “practicable” thing to do, so I have a real problem with that word.
If the Government are saying that there are circumstances—my hon. Friend the Member for Worsley and Eccles South mentioned the exchange in the other place—where they are relaxed about an AMCP not seeing an individual face-to-face, I think that is a bad idea, for the reasons detailed by my hon. Friend the Member for Stockton North. If the Government are saying that there are circumstances where they are relaxed about that, they should name them and put them on the face of the Bill and be exhaustive with them, so that we can be clear and test the will of the Committee as to whether we agree.
We need to have a greater sense of what we are saying in respect of dialling back people’s rights to see a qualified professional when they are having their liberty removed. If we are rolling that back, let us be really clear about how we are rolling it back—the exact circumstances and what recourse they might have if they or their carers believe that to be wrong. I think this is out of step with all the discussions we had on Tuesday and this morning. I believe it creates a loophole and we need greater clarification.
Caroline Dinenage
I thank those hon. Members who have spoken and tabled these amendments. Amendments 42 and 43, as we have heard, would require an approved mental capacity professional to meet with the person in every case where they are carrying out a pre-authorisation review, rather than—as we propose and as is written on the face of the Bill—where it is “appropriate and practicable”.
The Bill currently states that where an AMCP is carrying out a pre-authorisation review, they must meet with the person where practicable and appropriate. In the vast majority of circumstances it will be practicable and appropriate. This qualification comes from the Law Commission draft Bill, which recognised—we agree with this—that the AMCP will be required to meet with the person in virtually every case. This is an important protection within the liberty protection safeguard system.
Caroline Dinenage
Let me make a bit of progress and I will hopefully answer the hon. Gentleman in the process, but if I do not, he can intervene again.
The exceptions where it would not be practicable and appropriate would depend on the circumstances of the case. Things such as workload, cost and distance would not count under the qualification of not appropriate or practicable. It might be not appropriate or practicable, for example, where the person is in a coma and the family has requested that the AMCP does not interview the person, because it would cause distress. Another example is where someone at the very end of their life needs to be deprived of their liberty in their last few days, and they do not want to see an AMCP. In many cases, we feel it would not be appropriate to override the person’s best interests and force them to meet with an approved mental capacity professional.
Mr Dhesi
The Minister makes some very good points that I have sympathy with, but why cannot we simply include what she says in the code of practice? Setting it in stone in the Bill gives completely the wrong signal to medical care professionals: it makes it the norm rather than the exception.
Caroline Dinenage
I might turn that point round on the hon. Gentleman: we are indeed including it in the code of practice. The Bill states that the AMCP will meet the cared-for person except in the very rare circumstances in which that is not practicable or appropriate. We will set out those rare exceptions, including case studies, in the code of practice—a much better place for them than the Bill, which cannot include such case studies to flesh out what we are trying to achieve.
Dr Williams
As the Minister describes it, the assessment will take place unless it is inappropriate or impractical, so perhaps the Bill ought to say that.
Caroline Dinenage
I thank the hon. Gentleman for that clarification, but we may be dancing on the head of a pin slightly. To my mind, the meaning of amendment 42 is that in all cases the AMCP should turn up and see the person, whereas we are saying that that should happen in all cases, with some very small exceptions. With that reassurance, I hope that the hon. Member for Worsley and Eccles South will withdraw the amendment.
Barbara Keeley
The Opposition believe, as the debate has shown, that the amendment would be a crucial safeguard. We have spent a lot of time discussing the code of practice, which is beginning to seem a bit like a unicorn—it is something out there that might or might not appear and be useful.
The amendment is important because the AMCP will have to be satisfied that the reality of the situation matches what is in the application. I am sorry that we are so often having to doubt care home managers and people working in independent hospitals, but that is only because we come across such appalling cases. Earlier today I cited the case of a young man in a care home who was deprived of his liberty for two years and restrained hundreds of times; other cases include people having their arms broken through the use of restraint techniques. All these things happen, and it does not help if an AMCP is prepared to accept the word of the care staff or the people in the independent hospital—the very people who have used the restraint that broke the arm or caused the damage.
I am afraid that we therefore wish to persist in pressing the amendment. I have made it clear that the meetings would not need to be burdensome, and I fully accept that there are circumstances in which a person doing such work will have to be flexible, but I would expect people with the appropriate knowledge, skills and experience to understand how to deal with an end-of-life care case and with the needs of very vulnerable people.
Barbara Keeley
I beg to move amendment 40, in schedule 1, page 17, line 2, at end insert—
“23A If the Approved Mental Capacity Professional determines that—
(a) the authorisation conditions are not met, or
(b) that the authorisation conditions are met but that—
(i) the cared-for person or a person interested in the cared-for person’s welfare objects to the arrangements, or
(ii) the cared-for person would wish to object to the arrangements but cannot communicate an objection
the Approved Mental Capacity Professional must notify the responsible body within 48 hours that a referral to the court is likely to be required.”
This amendment requires an AMCP to notify the responsible body within 48 hours if they determine that the authorisation conditions are not met, or an objection has been raised to the arrangements.
With your permission, Mr Pritchard, I will discuss amendments 40 and 41 together, because they make sense together. They are an important means of filling a statutory grey area in the Bill. They set out what would happen if the AMCP—the person we have just been discussing—decides to reject an application after they have reviewed it. This is not currently contained within the Bill. We believe it leaves a statutory grey area, which needs addressing.
It is important because it is bound up first with the cared-for person’s entitlement to appeal to the Court of Protection and secondly with the enablement of their right to appeal. As the judgment in the case of Steven Neary found, the entitlement to appeal is more subtle than simply giving someone the right to appeal. Article 5, paragraph 4 of the European convention on human rights is not a mere “entitlement” to appeal against any deprivation of liberty, rather that the person must be supported and enabled to do so if they wish. Previous European case law has established that this support must not rely on the good will or discretion of others, or require the person to have any particular prospects of success. Support to exercise rights of appeal should be based on whether the person wishes, or would wish, to appeal.
The case of S v. Russia may be particularly instructive to the Committee. S was a man with learning disabilities, who had been deprived of his liberty by a court order made without his knowledge. The order had also made his mother his legal guardian and representative. Not only did she not facilitate an appeal to a higher court, she applied to have S placed in a psychiatric hospital. Despite repeated attempts, authorities denied his request to appeal. When S took his case to the European Court of Human Rights, it was made clear that his rights under article 5, paragraph 4 had been breached, as the right to appeal had not been made directly available to him. I hope Members will bear that case in mind as we proceed. Relying on family members, who may have different wishes or feelings from the cared-for person when it comes to the right of appeal, is fraught with risks. We have touched on this previously.
This is an area in which the current system is woefully deficient, and the Government are missing an opportunity to improve the situation. The deprivation of liberty safeguards system places a huge amount of weight on the cared-for person, or those close to them, to initiate the rights of appeal. At the moment, it is only as the very last resort that the supervisory body—what we now know as the responsible body—is expected to ensure that a case is referred to the Court of Protection, and even this provision has only recently been established.
Case law in this country has reinforced the concept of enablement of appeal. In the Neary judgment, when it became apparent that the DoLS placed too great a burden on family or friends to exercise rights of appeal, the Court of Protection concluded that
“there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court.”
The fact that this has so far been established only through case law means it is not an explicit statutory obligation.
However, the process for appealing to the Court of Protection is convoluted and unclear because so many players bear responsibility for initiating appeals. In the more recent case of AJ, the judge held that the primary responsibility still lies with the relevant person’s representative. An advocate must expedite the application if the RPR has failed to do so. I apologise for the amount of acronyms that are involved in this Bill; it makes it quite hard work. If these have failed and the person’s right of appeal has not been enabled, then the supervisory body must apply itself. This can pit a single, unpaid family member against what can seem like a forbidding system. I have heard of one case where the cared-for person wanted to appeal to a court and was being represented by their 89-year-old friend. This friend reported that she felt that
“the full force of the state was battling against her.”
Moreover, she said that she faced constant suspicion and was at a constant disadvantage when she was challenging the local authority. That is a major burden to place on somebody who will probably not have any legal expertise, but the Government have done nothing in this Bill to change it.
An alternative and more straightforward approach would be to place a clear statutory duty on the responsible body to ensure that applications to the Court of Protection are made when the person’s article 5(4) rights are “engaged”. The role of family members, as “appropriate persons”, and that of the independent mental capacity advocates, or IMCAs, would then become the backstop position, although I hesitate to use the word “backstop” at the current time. [Laughter.] However, in this case it looks as if one would be useful.
The responsible body is much more likely than a family member to understand the relevant guidance and case law on when rights of appeal are “engaged”. It should know whether alternative means to resolve any dispute are likely to be successful. And unlike the person’s family, friends and even advocates, responsible bodies will have ready access to in-house legal advice, and skilled and experienced professionals who work with the Mental Capacity Act 2005. The code of practice and developments in case law can provide guidance to responsible bodies about when these rights of appeal are “engaged”, which would be far more transparent, and much less complex and ad hoc, than the current system.
Once again, I want to be clear that something that is set out in the code of practice is not a right. As is set out in the European convention on human rights, and as was reinforced by the Neary case, support to appeal is a right. As such, it should appear in the Bill. There is an important point about what the Government have achieved through amendment 4, which has already removed one protection in relation to one crucial prerequisite to the right of appeal, and that is information being given in advance.
The removal of paragraph 13 and the provision in sub-paragraph 5 are also critical changes that weaken the right of appeal. Before it was altered, that paragraph read:
“The responsible body must ensure that cases are referred to court when the cared-for person’s right to a court review is engaged.”
In deleting paragraph 13, the Government have also removed obligations on advocates—the IMCAs—to assist the cared-for person in understanding and exercising their relevant rights, and the obligation on the responsible body to
“ensure that cases are referred to court when the cared-for person’s right to a court review is engaged.”
In deleting paragraph 13, the Government have reverted to the deficient system that we currently have. They have removed any provision for the responsible body to enable appeals, instead returning the full weight of this burden to the cared-for person and those close to them. For Labour Members, that is not acceptable and the Government must reinstate that provision as soon as possible. Ensuring that the responsible body has a duty to refer cases to the Court of Protection when this right is engaged is the only way to ensure that appeals are not hampered by lack of resources, confidence or legal know-how.
In cases where the authorisation conditions are not met, we are calling for the approved mental capacity professional, or AMCP, to be required to inform the responsible body that a referral to the Court of Protection is likely to be required within 48 hours. That would provide certainty about what should be done in cases where the authorisation conditions are not met, and it would counteract the weakening of the safeguards through the removal of sub-paragraph 5 of paragraph 13.
An important principle is being missed here, a point that was made by Lucy Series in the evidence that she submitted to the Committee. Recourse to the Court of Protection is not, as it is sometimes characterised in debates on the Bill, a sign of failure. Instead, it is a sign that the system is working effectively to place limits on the powers of health and social care professionals to impose a course of action on a person or their family against their wishes, without independent judicial oversight.
I hope the Minister will respond to this issue directly, because it is of crucial importance that her desire to create—as the Government see it—a “streamlined” system does not interfere with the fundamental right of cared-for people to appeal.
Before I press this amendment to a vote, I will also make a brief comment on the Court of Protection more generally. In its report, the Law Commission recommended that there should be a review to determine the appropriate court to rule on these matters. It said that such a review should be carried out
“with a view to promoting the accessibility of the judicial body, the participation in the proceedings of the person concerned, the speedy and efficient determination of cases and to the desirability of including medical expertise within the panel deciding the case.”
The Government initially accepted that proposal, but they have made no move to include it in the Bill. It seems a bit late in this process to adopt the radical reforms that would be needed to the practice and procedure of the Court of Protection, but will the Minister commit to engage with stakeholders to try to improve the way the court operates?
Caroline Dinenage
Thank you for that clarification, Mr Pritchard.
I thank hon. Members for tabling this amendment. I agree that it is vital that where authorisation conditions are not met and the proposed arrangements are reconsidered, the care or treatment that is provided should not deprive someone of their liberty. Arrangements should be more proportionate in such cases. It is essential that the responsible body and others, such as care providers, are notified swiftly. The new model will include a wide range of people with very different circumstances. In some cases, the responsible body should be notified very quickly.
May I seek further clarification?
The Chair
May I say, to help the Minister and the Committee, that the amendments 40 and 41 were coupled together due to agreements that were made outside the Committee? The Minister will have an opportunity—probably next week—to speak to amendment 41.
The Chair
For the ease of the Committee, if the shadow Minister is happy, the Minister can speak to amendments 40 and 41 if she wishes. She may want to speak again next week, or she might want to let that opportunity go by. For the flow of the Committee—if the Committee is happy—let us do it now and crack on.
Caroline Dinenage
I am very grateful for that clarification, Mr Pritchard. I have mixed my contributions on the two amendments together, so I will combine the two, if that is all right with the Committee.
Caroline Dinenage
I am sure we all agree that the role of an AMCP is incredibly important in ensuring that cases under liberty protection safeguards are identified as needing to be referred to a Court of Protection, particularly because they will be reviewing arrangements where objections have been raised by the cared-for person or other people on their behalf. We are very clear that if a person wants to challenge their authorisation in the Court of Protection, they have the right to do so.
I assure hon. Members that the responsible body has a responsibility to ensure that individuals who want to bring a challenge, in line with their article 5 rights, have access to the Court of Protection, as they currently do under the DoLS scheme. That applies, in particular, where a person should have had their case taken to court for a decision, but for some reason that has not occurred. The Bill does not change that. We agree that we expect AMCPs to communicate the outcome of their review swiftly to the responsible body. That will included cases where cared-for people raise objections that may require referral to the Court of Protection.
However, it is not only AMCPs who may be aware of objections. For example, people may raise matters directly with a responsible body or someone providing care or treatment, who may, in turn, raise concerns directly with the responsible body. Reviewers may become aware of an objection during a review of an arrangement that has been authorised. I am concerned that if we specify in the Bill that AMCPs have that duty, it may be felt that only AMCPs can and should identify such cases. Others, such as healthcare staff, should also be able to raise concerns directly with the responsible body, which can consider whether an application to court is swiftly required.
On amendment 40, I agree that it is vital that where authorisation conditions are not met, the proposed arrangements are reconsidered. The new model will include a wide range of people with different circumstances. In some cases, the responsible body should be notified much sooner than after 48 hours. My big concern is that 48 hours risks becoming a target.
The Bill already provides for people to have access to the court to challenge an authorisation, so if, after a review by an AMCP, a decision is made that the conditions are met but the cared-for person or carer still objects, they could take the case to the Court of Protection for challenge. The amendment also requires that where a cared-for person would wish to object but cannot communicate that, that is notified to the responsible body within 48 hours, as likely requiring a referral for challenge at the Court of Protection.
Finally, that is also why it is important that the LPS assessments are of good quality, and that the consultation takes place with the range of people necessary to identify the person’s wishes and feelings, including family and carers. I hope that I have been able to provide the necessary reassurance and that the hon. Member for Worsley and Eccles South is willing to withdraw the amendment.
The Chair
Before I call the shadow Minister, I inform the Committee that the vote on amendment 41—if there is a vote—will be taken next week, although the Committee has agreed to hear representations from the Front-Bench spokespeople on both amendments today. Amendment 40 will be taken shortly.
Steve McCabe
I beg to move amendment 48, in schedule 1, page 17, line 30, leave out “12 months” and insert “3 months”.
This amendment is designed to encourage reviews and appropriate authorisation by making it harder to detain someone for such a lengthy initial period.
Caroline Dinenage
I thank the hon. Members who have tabled the amendments on authorisations up to three years. I stress that this was a recommendation of the Law Commission, in particular for people with long-term progressive conditions from which they are unlikely to recover. It was suggested because many people and their families told the Law Commission, throughout its extensive consultation and work, that they felt that starting the process from scratch every year was unnecessary and cumbersome.
I should also stress that the three-year authorisation period starts only after there have been two one-year authorisations, and the periods set are maximums, not minimums or targets. The Bill does not prevent a responsible body from approving an authorisation for the period set out in the amendment if that is appropriate. Furthermore, the responsible body is required to specify a continuous programme of reviews. If a person’s circumstances change significantly, the authorisation will be reviewed and may be found to no longer be valid. That could easily be the case with somebody with dementia, as has already been highlighted. In that way, I believe that the provision actually brings in additional safeguards.
I hope that has provided clarification and I ask hon. Members to withdraw the amendments.
Steve McCabe
My amendments were probing amendments, so I do not wish to push them to a vote. I hope the Minister will reflect again on what I said about monitoring how the detention periods are used, because I fear there is a greater risk here than people may have anticipated. I beg to ask leave to withdraw the amendment.
Barbara Keeley
Can I just make a couple of points? There is near unanimity in the sector that three years for renewals is too long. Even the Alzheimer’s Society is worried about the impact it could have. The power on renewals lies with the managers of independent hospitals or care homes, who are people with a vested interest in renewing the authorisation and keeping the cared-for person as a client. In the amendment, we suggest a 12-month period, which would allow the renewal process to be built on the all the other assessments that cared-for people undergo annually as part of their care programme. That would avoid the process placing an excessive burden on them.
Caroline Dinenage
I am sorry for pushing everybody’s patience, but I need to clarify something the hon. Lady said. I am sure she said it inadvertently. She said that a care home manager can renew an authorisation. That is not correct. Only a responsible body can renew an authorisation and only when the responsible body is satisfied that the conditions continue to be met.
Barbara Keeley
The point remains for independent hospitals. In other amendments, we have tried to move that independent hospitals are not responsible bodies, but the Government did not accept those amendments.
Amendment, by leave, withdrawn.
Amendment proposed: 44, in schedule 1, page 18, line 24, leave out from “less” to end of sub-paragraph (1)(b).—(Barbara Keeley.)
This amendment limits the period of renewal of any authorisation to twelve months.
Question put, That the amendment be made.