Mental Capacity (Amendment) Bill [HL]

Baroness Watkins of Tavistock Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Baroness Barker]

The Human Rights Act was in force when the Mental Capacity Act was being debated. During the passage of that Act we considered very carefully what language we should use. Is the Minister saying that we got that wrong, and have there been cases of people who have fallen into the gap? If so, how many are there, and can he give the evidence by which the Government arrived at the conclusion they have now?

[Baroness Watkins of Tavistock (CB)]

It might be complex to find the right nomenclature, but I heard the noble Baroness, Lady Tyler, say that this was a starter for 10. I cannot see why we have to regress to 1959 language in the Mental Health Act without further exploration of whether we could redefine the term about perhaps affecting the mind, to take in that very small minority of people with severe physical illness that occasionally affects the mind. We have worked so hard to destigmatise both learning disability and mental health that it seems very sad that we cannot work a bit harder at this point on this issue.

[Lord Cashman]

I want to reaffirm the point made by the noble and learned Lord, Lord Woolf. Surely it is not beyond the wit of drafters and our legal experts, when referring to the starter for 10 offered by the noble Baroness, Lady Tyler, to refer to the European Convention on Human Rights and the jurisprudence arising from the European Court of Human Rights? It seems to me that it is elegantly simple to take such an approach, reassuring the rights that relate to the “unsound mind” in relation to the new definition offered. I hope my intervention makes sense—it is not often best practice to speak on the hoof on such legal matters. I hope that noble Lords will forgive me if I have not made sense.

Mental Capacity (Amendment) Bill [HL]

Baroness Watkins of Tavistock Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 15th October 2018 Lords Chamber

[Baroness Watkins of Tavistock (CB)]

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

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

[Lord Touhig (Lab)]

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

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

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

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

Mental Capacity (Amendment) Bill [HL]

Baroness Watkins of Tavistock Excerpts

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Baroness Watkins of Tavistock (CB)]

It strikes me that Amendment 87E would apply not only to this Bill but to other Acts. Does it fit here? I understand the principle of what my noble friend is saying.

[Baroness Finlay of Llandaff]

It could have wide-reaching consequences, but a lot of people who have lost capacity and are in a state of high dependency are already in nursing homes, so they are already being cared for in the system and may be subject to deprivation of liberty. Some of them have long-term continuing funding for their care, but they have been there for a long time and the donee, who is managing all their affairs and advocating on their behalf, is very concerned about their welfare in the event of them failing.

--- Later in debate ---

We must therefore be very specific in view of the fact that these cases are rising, where private and public care providers are telling families what they cannot do. We must guard against this by making it clear in the Bill that it should not apply to domestic settings where normal arrangements are being put in place. We need the sort of arrangements that my noble friend Lady Meacher talked about for those few cases, but we have to restrict it to a few cases under very specific circumstances if we are going to have any domestic arrangements challenged in this way.

[Baroness Watkins of Tavistock]

My Lords, I support the amendment in the name of my noble friend Lady Meacher and the comments that my noble friend Lady Murphy just made. She said that she can speak only for the 900,000 people in this country with dementia—but that is a high proportion. I want to share with noble Lords that everything she said I agree with, as part of a multidisciplinary team but also because over 20 years ago she was my external examiner for my PhD—and I passed. The subject was about supporting people with dementia in the community, so this is close to both our hearts.

I will add a little to this debate. I support the amendment for two reasons. First, at the very least we need to think again about the Bill’s application to individuals in domestic settings; and, secondly, we need to think carefully about how domestic care arrangements can be authorised under a liberty protection safeguard and oversight properly maintained over the period of care—which may be for many years, because I agree that things change over that period. One of the things that can happen is that carers who are very good when you first see them are at the end of their tether three years later and can no longer manage. That is why the Law Commission suggests that the LPS should be integrated into care planning arrangements—but that does require regular review.

It may be feasible to amend the Bill so that the LPS could apply with the safeguarding professions of the Care Act, as my noble friend Lady Meacher has already said. Certainly there is a need to ensure that those who lack capacity are safeguarded when they are being looked after in domestic settings, as, sadly, we know that in a very small minority of cases deprivation of liberty occurs through carers’ lack of knowledge of alternative methods to maintain safety, and in even rarer cases in fact becomes a form of abuse. However, the current Bill, if enacted with a zealous approach by professionals, could become a serious intrusion into families’ rights to provide individualised, possibly slightly idiosyncratic care for their relative, which may be fully consistent with how both parties wish to behave within the confines of their family unit and own home. I therefore hope that we will be able to work with the Minister, and the Bill team as appropriate, to improve the Bill to better balance the rights of people being cared for by relatives in their own home, without unwarranted intrusion into the way in which families support and care for relatives with limited mental capacity, while ensuring that deprivation of liberty is appropriate to safeguard the individual.

Mental Capacity (Amendment) Bill [HL]

Baroness Watkins of Tavistock Excerpts

Report: 1st sitting: House of Lords
Wednesday 21st November 2018 Lords Chamber

[Baroness Tyler of Enfield]

My Lords, I support this group of amendments. One or two offer a slightly different definition or slightly different words but the key point for me, having moved a similar amendment in Committee, is that we have now removed the phrase “unsound mind” from the Bill. I know this is welcomed here and will be hugely welcomed by many in the sector. It means we will get rid not only of a very old-fashioned and stigmatising term but one on which there were also concerns—as I understood from my conversations with the Royal College of Psychiatrists—that it had no real clinical meaning. The term “mental disorder”—or the few more words added by other amendments—not only brings us in line with the Mental Health Act, which is good, but I am advised that it will also help to provide diagnostic clarity. That has to be a good thing too. I support this group of amendments.

[Baroness Watkins of Tavistock (CB)]

My Lords, I support this group of amendments and I am delighted that the Minister has had his mind changed. Not using this phrase will change how people feel about their relatives who may be suffering from mental disorders. I am also optimistic that, in the longer term, using such modern nomenclature will make mental health professions more attractive to young people.

[Baroness Finlay of Llandaff]

My Lords, I also welcome these amendments; removing “unsound mind” is a major step forward. I have a couple of questions for the Minister and I hope he can clarify. I may have misheard him but I understood him to talk about head injury. It would be helpful if he could clarify that he was referring to acute head injury—or acute brain impairment of any sort—as opposed to long-term damage such as frontal-lobe damage, which can happen when you have had a major brain injury. This can result in very long-term problems and difficult behaviours, which may mean that people currently need to be assessed as subject to deprivation of liberty. Could he clarify that we are not discounting a whole group of people who, it is generally felt, benefit from being properly assessed and safeguarded?

I would also like confirmation from him on another group. In January 2015, the then Mental Capacity Act deprivation of liberty safeguards policy lead in the Department of Health wrote out quite widely. There had been a concern about people who were nearing the end of life, including palliative care patients and patients in hospices. It was made clear in this letter that if somebody had consented to a care package and then went on—as part of their disease process when they were dying—to need some restrictions, and possibly to be moved to another place of care, that would not fulfil the acid test as such; neither would it in the case of people who were being nursed in a side room who were not under continuous supervision and control. The reason was that, in palliative care cases, there is often a time when the family cannot cope as the patient becomes unconscious, is moved to a hospice or develops another condition that had not been anticipated. It would be an inadvertent consequence if this letter from January 2015 no longer stood. It has been important and has made care easier. It was following this letter that we were able to change the regulations for what had to be referred to a coroner. That made a major difference, because families found it terribly traumatic to find a relative subject to a deprivation of liberty safeguard having to be referred to a coroner. I simply seek clarification on those two issues, but I in no way question the importance of removing “unsound mind” from the Bill. I hope this is the beginning of us seeing the end of that term, which is stigmatising.

Mental Capacity (Amendment) Bill [HL]

Baroness Watkins of Tavistock Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 27th November 2018 Lords Chamber

Moved by

[Baroness Watkins of Tavistock]

29: Schedule 1, page 10, line 8, at end insert—
“Rights to information11A(1) Prior to the authorisation process, the cared-for person must be fully informed of their rights.(2) The responsible body must take such steps as are practicable to ensure that the cared-for person and any appropriate person or Independent Mental Capacity Advocate representing and supporting them understand the possible outcome of the assessments, the reasons why the cared-for person may be deprived of their liberty and their rights—(a) to request an Approved Mental Capacity Professional’s assessment and review of the arrangements,(b) to advocacy, and(c) to challenge the authorisation in court.(3) If an Independent Mental Capacity Advocate is appointed under Part 5, the advocate is to take such steps as are practicable to help the cared-for person and the appropriate person to understand the following matters—(a) the steps involved in the authorisation process,(b) the purpose, duration and effect of the authorisation,(c) any conditions to which the authorisation is subject,(d) the reasons why the cared-for person met the qualifying requirements in question,(e) the right to object to the authorisation and the right to request a review by an Approved Mental Capacity Professional,(f) the outcome of a review of the arrangements,(g) the relevant rights of the cared-for person,(h) how the cared-for person may exercise relevant rights.(4) In this paragraph, “relevant rights” includes the right to make an application to the court to challenge an authorisation decision in court under section 21ZA and the right to request a review of the arrangements.(5) The responsible body must ensure that cases are referred to court when the cared-for person’s right to a court review is engaged.”

[Baroness Watkins of Tavistock (CB)]

In moving Amendment 29, I shall speak also to Amendment 86, having added my name to both. My noble friend Lady Hollins originally tabled this amendment, which is associated with rights to information. She is unfortunately unable to be here, so in her absence I will articulate the points on behalf of us both, without repeating many of the arguments made at Second Reading. The amendments are supported by many third sector bodies, including the Royal Mencap Society, Mind, Rethink Mental Illness, the Alzheimer’s Society, Disability Rights UK, Inclusion London, Liberty, VoiceAbility, the National Autistic Society, Sense and others.

As it stands, there is a fundamental imbalance in the proposals, with the power in many cases lying with health and social care providers and the responsible body. These amendments seek to partially redress that balance, in part by ensuring that critical information is provided to the individual concerned, the person being cared for, and those advocating on their behalf.

Under the first part of Amendment 29, the individual would receive information about their rights in advance. This is critical, as is having someone—an appropriate person or advocate—to explain things to the person in a way meaningful to them. VoiceAbility, which provides advocacy for people who may lack capacity and their families, has received feedback from families that having information clearly explained to them up front can help dispel many misunderstandings and myths that can escalate to the person being cared for being very unsettled.

Knowing the reasons why you were detained, and what you can do about it if you are not happy with your conditions or placement, is important. Similarly, the knowledge that you can ask for a review or challenge the decision can help to reduce the stress and anxiety that many people face—even if the person does not at the outset wish to exercise their rights to review or challenge.

Information should, of course, be provided in an appropriate format, which is clear, easy to understand and takes account of any communication difficulties that individuals or their families have. Providing people with just written information is not enough. Some people may require easy-read information in jargon-free, plain English. Others should have the opportunity to speak to somebody and ask questions. Some families may need a translator, and some individuals may need sign language such as Makaton to fully understand the situation they find themselves in. There is very limited knowledge about DoLS and even less about the proposed LPS, and it is therefore critical that people understand the process they are entering.

The Bill requires the responsible body to complete an authorisation record containing important information for the cared-for person. It does not, however, require that this information be automatically provided to the cared-for person, their family or an advocate. The second part of Amendment 29 and Amendment 86 address this by ensuring that the responsible body provides the cared-for person and any advocate with information about the outcome of the authorisation, what it means and the reasons why their liberty may be deprived. As before, this must be provided in a format that is appropriate for them and easy to understand. It must also detail the person’s rights to challenge the assessment and request an intervention from an approved mental capacity professional, their right to advocacy and how to challenge the authorisation should they so wish. People often feel disempowered in this situation, and in many cases simply accept inappropriate provision without understanding that they can challenge it. Finally, these amendments would ensure that information is provided relevant to the process of how to challenge their individual assessment and, in turn, the fact that their liberty is being deprived.

Advocacy must play a central role in this Bill. The amendment recognises this by spelling out the functions of an IMCA at this critical juncture for the cared-for person. This includes helping the individual to understand the process, the assessment itself and the result of that assessment, as well as how they can exercise their rights of challenge.

I hope the Minister recognises that these amendments are an important addition to ensuring that people are empowered throughout the process. I look forward to his response. I beg to move.

--- Later in debate ---

[Lord O’Shaughnessy]

I recognise the point that the noble Baroness is making. As I said, our belief is that the rights that currently exist, and are in no way amended or reduced as a result of the Bill, provide what she is asking for. Unfortunately, I am not able to give a commitment that we will be able to return to this issue at Third Reading.

[Baroness Watkins of Tavistock]

I thank the Minster for his reply and thank all noble Lords who have spoken in support of this group of amendments. I do not believe that the Minister’s reply gives us sufficient security that if the information is contained only in the associated code patients and their families will be protected in the way that we have outlined. We firmly believe that the issue of information and, in particular, its provision in advance need to be in the Bill. It is therefore important that the House makes a statement to the Government about this issue, so I would like to test the opinion of the House.

Mental Capacity (Amendment) Bill [HL]

Baroness Watkins of Tavistock Excerpts

3rd reading (Hansard): House of Lords
Tuesday 11th December 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to the Government for adopting the principle of the amendment that we put forward on Report and for recognising its importance. I am glad to see that this will be in pre-authorisation reviews and to hear the assurances that it will act as a trigger for all types of reviews and will be put into the Bill when it goes to the other place.

I also recognise that the Minister has touched on staff induction, which will need to include training on liberty protection safeguards and cover when the review should trigger further action. However, I seek a categoric assurance from the Minister that the code of practice will state that staff will have the full protection of whistleblower legislation whenever they raise a concern, even if, for whatever reason, it does not proceed to initiating a review. I was grateful that during our meetings the Minister openly discussed the possibility of vexatious triggers, although I estimate that these would be very few and that triggers for reviews would involve legitimate concerns about a person’s welfare.

I also seek assurance that in its inspections the Care Quality Commission will be asked specifically to check that all staff know that they can request a review to be triggered and that they know that they will be protected. In addition, the responsible body, whenever asked to undertake a review, will need to keep a register of all such requests so that an emerging pattern of several requests coming from an institution will trigger a more major review into the type of care provided for everyone there.

One of the difficulties I anticipate arising at the interface between the Mental Health Act and the Mental Capacity Act is over the principle of objection. Among this cohort of people, objection may not be active; it may be passive. Sitting quietly, being withdrawn and being unhappy should be enough objection for people to consider whether the person should have been placed somewhere different or whether the conditions of their liberty protection safeguards should be altered. I have the impression that the type of objection envisaged in the Mental Health Act review was much more active than this type of passive objection, which could be interpreted as consent.

The other worrying aspect relating to this Bill and to the entire mental health review is the acute shortage of accommodation for people, both in the short and long terms. There is a shortage of suitable accommodation for people in crisis and of long-term accommodation that can meet people’s needs. Some are therefore accommodated in places not really adequate for their needs, but there seems to be no other option.

I repeat my gratitude to the Minister for having listened and brought forward this government amendment, and for all the other amendments that have gone into the Bill and brought about substantive changes. I look forward to hearing those reassurances in his response.

[Baroness Watkins of Tavistock (CB)]

My Lords, I concur with what other noble Lords have said and ask the Government to take one more look at the remaining conflict of interest relating to independent hospitals. It appears they will be able to employ their own AMCPs and, as the responsible body, authorise the deprivation of liberty of people in the hospital. This could pose a huge conflict of interest. The team has taken a great deal of trouble to remove this in the care home setting, and it seems it would be relatively straightforward to do so for independent hospitals. I fully support the amendments outlined today.

[Baroness Barker (LD)]

My Lords, I too thank the Minister for bringing forward this amendment and for having taken the time and effort to discuss the thinking of the department with many of us. I pay tribute to him and to the noble Baroness, Lady Stedman-Scott. They were rookies—this was their first ever Bill—and they have done a tremendous job, not least because it is a fairly open secret that many of us think this is one of the worst pieces of legislation ever brought before this House. I seriously mean that; we have said it several times. Together, they have enabled all of us in this House to play a very responsible role in turning some very bad legislation into legislation that is still in many regards highly deficient, but not as bad as it was.

As the noble Baroness, Lady Murphy, said, inevitably we failed to see the wood for the trees. We were so busy dealing with big defects in what was presented to us that we did not really get the chance to stand back and look at what would be an efficient overall system. It is for people in the House of Commons to look at what remains to be done to improve the Bill as it comes to them.

Part of it is that we spent so much time looking at the role of care home managers, we did not get around to thinking about how AMCPs, IMCAs and appointed persons could work together more efficiently to ensure that the most vulnerable get the most attention. It is unfortunate that Sir Simon Wessely’s review came to us only last week, with, at its very heart, the important issue of objection, the implications of which we should have been able to discuss in this Bill. I am sure we will need to return to that.

On this amendment, I thank the Minister for widening the triggers to include the involvement of an AMCP. But I want to flag up to those who will look at this in future the change in the role of care home managers and the role they will continue to play in renewing deprivations of liberty for up to three years, which is a big concern.

I also want to return to an issue that has been raised before: why, in this Bill, do we continue to deploy the best interest argument when it comes to ensuring that somebody has an IMCA? Several times we have asked to see the evidence base for creating that hurdle to access an IMCA, and the Government have yet again not given us any. A lot of people, particularly older women with dementia, will not get an IMCA because they will not be deemed to be objecting.

Perhaps the Bill’s biggest deficiency, and one we have not discussed much, is that practically nothing is in regulation; large swathes of it will be left to a code of practice. If one goes back to the Mental Capacity Act, however, one finds regulations that relate primarily to those who will be enacting this legislation. Regulatory conditions are applied to those who can be an AMCP, and to what their training has to be, and to those who can act as an IMCA, and to their ongoing duties to maintain contact when people move and to step in when the appropriate person, for some reason or another, ceases to fulfil the obligations it was initially assumed they would.

I say to those who will look at this in the House of Commons: the Government must be required, apart from anything else, to come forward with a great deal more detail than we have been able to elicit from them. With that, I welcome what is before us today.