Mental Capacity (Amendment) Bill [HL]

Debate between Lord Hunt of Kings Heath and Baroness Hollins

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

[Baroness Hollins (CB)]

My Lords, I welcome the replacement of “unsound mind”, but I ask the Minister to consider adding a safeguard to ensure that no one has their liberty denied because of a mental disorder without first being seen by a qualified doctor. It is essential that individuals are assessed for a mental disorder and not another condition presenting as a mental disorder, such as delirium or the side-effects of medication, which are common among older people. It is important that consideration is given to whether the disorder can be managed without depriving the person of their liberty. This requires assessment not only of their mental state but of their past and current physical health and medication. The assessment is a core part of this process. It has great significance because it relates to the deprivation of a person’s liberty. Who can carry this out should be stipulated in the Bill rather than in a code of practice. I ask the Minister to reconsider bringing forward an amendment to add this requirement to the Bill.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I support the noble Baroness on the assessments. The Minister’s amendment is very welcome, but clearly the assessment is crucial. My understanding is that in previous debates, as the noble Baroness suggested, he said that the code of practice will set out which competencies will be needed to carry out this assessment. Like the noble Baroness, I ask him to consider, perhaps between now and Third Reading, whether this might be better put in regulations than in the code of practice. I always worry a bit about the use of “competencies”. It is a word now used in many recruitment processes, but what exactly does it mean? Will it be done by a registered medical practitioner with sufficient expertise in this field? If not, what is the justification? The change the Government have made is enormously welcome, but it is very important that we are confident the assessment will be carried out appropriately.

Mental Capacity (Amendment) Bill [HL]

Debate between Lord Hunt of Kings Heath and Baroness Hollins

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

[Baroness Hollins]

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

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

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


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

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

[Lord Hunt of Kings Heath (Lab)]

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

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

Mental Capacity (Amendment) Bill [HL]

Debate between Lord Hunt of Kings Heath and Baroness Hollins

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

[Baroness Hollins]

My Lords, Amendments 11, 12 and 13 deal with a perceived conflict of interest pointed out by numerous charities and care providers with regard to the role that care home managers are intended to play under the Bill. As drafted, the Bill places a new duty on care home managers to carry out the assessments and consultation prior to authorisation. My amendments would ensure that the duty for carrying out assessments resides with the responsible authority, with a retained duty to involve care home managers in carrying out those assessments.

I raise a puzzle that I have. I have been trying hard to get my head around some of the possible unintended consequences of the way in which we think about care homes and care home managers and the relationship between the different kinds of care and support that are provided. Some services, with great encouragement from local authorities, have been trying to convert their residential care homes into supported living houses. That has been the trend. Often, these new supported living houses are located on the same site as the remaining residential care homes or in the same area but with the same organisation running them and the same chief executive. Sometimes, the registered care home manager is not only the care home manager for the residential side but is also the manager for the supported living homes. They are located on the same site, close together and within the same organisation within the same management structure, but the organisation will have two different systems for authorising the provisions of the Act, which will be very confusing for it.

I wonder whether there might be a perverse incentive for adult social care to reverse its previously encouraged trend towards supported living, to reduce its administrative burden and to register more care homes. This seems to be a backwards step when, in times of personalisation, we want to move more people to settings that are not registered care homes, but are more supported and likely to take note of their personal wishes, if that is not too much of a conundrum. It is one of the real puzzles I have been struggling with over the Bill.

The whole ethos of DoLS was that those making the decisions about deprivation of liberty were independent of those providing care to the person, and that independent assessment is an important safeguard. More specifically, the new arrangements raise concerns that a number of stakeholders have pointed to. For example, it can be easier to care for someone by placing more restrictions on their freedom. It is harder to support them in the least restrictive way possible and to maximise their choice and freedom. We know that health and social care professionals are naturally risk-averse and, if there are some possible risks, they will often choose the perceived safer, albeit more restrictive, option over increasing liberty.

I believe the vision, which is great, is to integrate decisions about liberty protection safeguards and deprivation of liberty into care planning. This means that, at the point of making decisions about placement, decisions about restrictions are also considered, with a view to seeking the least restrictive option. This makes sense, but I do not see how this can happen if the care home is making the determination. It is already a done deal that the cared-for person is going to be in that care home. Their care manager will be looking at the arrangements within the care home. They are unlikely to say that the person would be better off and able to have more freedom in a different setting—for example, a supported living setting. There is a bit of a conflict of interest here.

Currently, the care provider feeds into the DoLS assessment, sharing their expertise as a provider. That is a different role and skill set from making decisions about necessity and proportionality. Consulting with relevant people is a different role from being one of those consulted. The assessments are complex and this new role is being placed on care managers who, by definition, have a different skill set. The sector is trying to deliver care for people who, in many cases, have complex needs and require intensive support to live as independently as possible. I am interested to know what conversations the Minister and officials have had with those upon whom this new duty would fall, as I suspect they will have raised many similar concerns.

Perhaps it is worth reflecting on the judgment by Lady Hale in the Cheshire West case. In speaking about the extreme vulnerability of the people concerned, she said:

“They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the deprivation-of-liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us”.


I wonder whether this paperwork exercise for non-objecting people is what she envisaged as an independent check. In his response, I would appreciate the Minister’s view on whether he sees a conflict of interest here and whether he agrees that the assessment should be carried out by someone independent of the care home, and who that should be. I wonder if we need to make more use of service brokers to do the care planning, listen to the person’s wishes and ensure that the decisions made lead to an effective care plan. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I have added my name to that of the noble Baroness. She has succinctly put forward the case for the removal of care home managers from this important position, and at this point, I am very supportive of that. While we debated this issue earlier, I want to come back to a point raised then. The argument was put that we ought not to worry because the local authority remains the body that approves authorisations; it will provide independent scrutiny and oversight. I have already referred to the fact that the impact assessment treats this essentially and mainly as a desktop exercise, but my advice from Professor Lucy Series of Cardiff University is that unless care home managers themselves indicate that an AMCP referral is required, all the responsible body will be able to make the decision on is the information supplied by those care home managers. She states that that is a very weak independent safeguard, and indeed it is when care managers have a financial interest in these decisions. That is why this arrangement simply cannot be allowed to stand.

The other thing I would point out to noble Lords is the evidence I received on Monday from ADASS, the association of Directors of Adult Social Services. Like everyone else, it supports the overall thrust of the Bill—there is no question about that—but it has some concerns relating chiefly to the expectation that care home managers will be responsible for the assessments required to authorise the deprivation of a person’s liberty. It says that it is in discussions with the Care Quality Commission and the Care Provider Alliance, which both have similar concerns. That answers the point raised by noble Lords about where the CQC stands in relation to this. I am not surprised that the CQC has concerns because of the very difficult challenges it faces in the care sector generally. One has to think carefully about whether adding to its responsibilities is the right course of action.

ADASS has stated:

“Whilst registered care providers have previously been required to assess individuals, to determine that they can meet the person’s needs and to undertake care planning, they have not been required to assess to protect people’s liberty. Planning Care and assessing whether deprivation of liberty is in a person’s best interest when they are unable to decide for themselves are very different things. ADASS therefore believe this to be a new activity, requiring new skills and resources. We have real concerns relating to a) care home capacity, b) care home staff competence, c) perverse incentives and potential conflicts of interest, d) additional cost (for training and additional capacity) and e) whether and how such costs will be resourced”.


Noble Lords who know those at ADASS will know that they do not make such statements without very good evidence. The noble Baroness is proposing in her amendment to take out the reference to care managers, and my assumption is that the role of assessing will be restored to the local authority, which of course was in the Law Commission’s original plan. From what I have heard, surely we have to stick to what the Law Commission proposed.

Health and Social Care Bill

Debate between Lord Hunt of Kings Heath and Baroness Hollins

Wednesday 29th February 2012 Lords Chamber

[Baroness Hollins]

My Lords, I have been reflecting on the amendment tabled by my noble friend Lady Finlay. I declare an interest as one of my daughters has one of the conditions that she mentioned in her speech.

This lacuna must be addressed because the discretionary powers of clinical commissioning groups to apply the appropriateness test provide no assurance for those with these rare diseases. Today’s debate shows that it is essential that this is addressed in the Bill. I hope that the Minister will be able to suggest a way in which perhaps a government amendment might be able to address this lacuna.

[Lord Hunt of Kings Heath]

My Lords, this is a very interesting group of amendments. They do not entirely fit together but all of them raise important points.

I very much support the noble Baroness, Lady Cumberlege, in her comments about HealthWatch. This is my mea culpa moment about the demise of community health councils. It is clear that having a statutory body with the right to be heard and listened to is very important at local level. Of course, I would link the noble Baroness’s amendment with the desire for HealthWatch England to be wholly independent of CQC, which is another important ingredient in ensuring that the patient voice is heard as effectively as possible.

We support Amendment 96. There has been a persuasive argument about the need to ensure that services for patients with less common conditions are commissioned effectively. We debated these issues on Monday. We know that primary care trusts have often found it difficult to give proper attention to these services. With clinical commissioning groups, this will become even more problematic. I hope that the noble Baroness will be able to pursue that.

I entirely support the noble Baroness, Lady Williams, on Amendment 75. This is a very important statement of principle. I understand the points made by the noble Lords, Lord Mawhinney and Lord Newton. I am sure that this matter will be put to the vote. The whole point about Third Reading is that it can be used for parliamentary counsel to tidy up the wording of such amendments. I do not think that we should let minor technical difficulties get in the way of passing an amendment which has a very important principle. It may be that the noble Earl, Lord Howe, will agree to it. Let us hope so.

My amendments relate to the corporate governance of clinical commissioning groups. On Monday, I developed my arguments when we discussed conflict of interest issues. I do not want to go over the same ground again, save to say that clinical commissioning groups will have a crucial role to play in the new system. They are to be handed billions of pounds by the NHS Commissioning Board to commission services. Essentially, a clinical commissioning group is not an NHS board as we know it. It is a group of small business people—GPs—who will be able to benefit financially from the decisions of that board. I cannot conceive that the Government could be going down this route if they did not want more resource spent in primary care. That must be one of the end results of the Bill. The Government want to spend more money in primary care and to reduce expenditure in acute hospital services, which is a very fair aim. But that means that the board of clinical commissioning groups will be spending public money and placing it in the hands of GPs who also sit round the board of the clinical commissioning group.

The conflict of interest amendment in the name of the noble Baroness, Lady Barker, which the noble Earl accepted, was very weak and does not provide the kind of assurance that we require. I have to say to him that there will be trouble in the future with clinical commissioning groups in this area. The proper safeguard would be for clinical commissioning groups to have a proper board. Proper boards in the public sector usually ensure that there are a majority of non-executives, people who are appointed independently, who can make sure that the public interest is protected. We have the extraordinary proposal that we are guaranteed only two non-executives on the board of clinical commissioning groups. We are not even guaranteed that one of them will be the chair of that clinical commissioning group. Looking over all the corporate governance difficulties in this country in the past 20 years, can noble Lords imagine that any of those inquiries would endorse the kind of governance arrangements that the Government are putting forward for clinical commissioning groups? I say to the noble Earl, Lord Howe, that I just wonder how long it will be before the first group of members is prosecuted for corruption. This is an open invitation for corrupt action. The Government show no signs of understanding or realising what difficulties they will put the whole service in by these proposals.

I have put forward a number of amendments to put in place proper corporate governance protection. I also believe that the constitution of clinical commissioning groups should be subject to approval by your Lordships’ House. In relation to primary care trusts, orders go through. I do not see why the same thing should not happen to clinical commissioning groups. I also endorse everything said by the noble Lord, Lord Patel, about quality payments. It is absolutely abominable that quality payments could be made to clinical commissioning groups where those payments end up in the pockets of individual GPs. That money ought to go into the commissioning of services. Again we see the conflict of interest. There is so much potential for conflict of interest between commissioning decisions in the public interest and commissioning decisions which are to the financial advantage of the members of the clinical commissioning group.

Finally, Amendment 118 would remove the quality premiums altogether. This is very much a probing amendment. I am content to support the noble Lord, Lord Patel, in his argument that, if quality payments are to be made, they should simply be put back into the commissioning pot.