Mental Capacity (Amendment) Bill [ Lords ] (Third sitting)

Barbara Keeley Excerpts

Thursday 17th January 2019 Public Bill Committees

[The Chair]

Welcome back, everyone. I remind everyone to turn their phones to silent. The selection list for today’s sitting is available in the room. Amendments on similar issues have been grouped together for debate, regardless of where they appear in the Bill. Decisions on amendments take place not in the order amendments are debated but in the order they appear on the amendment paper, which corresponds to the part of the Bill that each amendment affects.

Schedule 1

Schedule to be inserted as Schedule AA1 to the Mental Capacity Act 2005

[Barbara Keeley (Worsley and Eccles South) (Lab)]

I beg to move amendment 30, in schedule 1, page 12, line 29, at end insert new sub-paragraph—

“(da) in the case of a cared-for person aged 16 or 17 (unless that person is subject to a care order under section 31 of the Children Act 1989 or an interim care order under section 38 of that Act) the responsible body is satisfied that no person with parental responsibility objects to the arrangements,”.

This amendment makes provision enabling parents to object to care arrangements that give rise to their child’s deprivation of liberty.

It is a pleasure to see you in the Chair again, Mr Austin; you are working very hard on the Bill, as indeed we all are. Amendment 30 follows on from amendment 38, which would extend pre-authorisation reviews to 16 and 17-year-olds. Amendment 30 would provide that, where there is a person with parental responsibility for the cared-for person, an authorisation may be made only if the person with parental responsibility does not object to that authorisation. We believe that would ensure the Bill does not create a situation where the responsible body is able to override the wishes of 16 and 17-year-olds’ parents to deprive them of their liberty.

I appreciate that case law in this area is not abundant, but one relevant case in point is Y v. Barking and Dagenham, which I mentioned when we debated amendments regarding the role of care home managers. Despite agreeing to Y’s placement, his parents became concerned about the standard of care he was receiving. The local authority deprivation of liberty safeguards application made no mention of the concerns they had raised. Subsequently, the parents withdrew their consent for Y to remain at the care home.

Around the time Y’s deprivation of liberty was granted, a member of staff at the care home was reported as having assaulted Y. That was raised with the local authority, but Y’s parents were not informed. The local authority then applied for a care order for Y, and the social worker reviewing the request dismissed the parents’ concerns. When the case eventually went to court, the local authority admitted that it had dismissed the parents’ concerns without proper investigation.

I believe parental objection is an important principle, which is currently missing from the Bill in relation to deprivation of liberty for 16 and 17-year-olds. Its omission means that the Bill is out of step with the Children Act 1989 and there may be conflict between the two. In particular, there is a lack of reference in the Bill to the role of parents in making decisions about the placement of their child. As I just described, in Y v. Barking and Dagenham, Y’s parents withdrew their consent for Y’s placement in the care home in which he was residing. Under section 20 of the Children Act, parents can object to their child’s placement and remove their child from that placement. In paragraph 20 of proposed new schedule AA1, the Bill provides that certain people must be consulted, but the main purpose of consultation set out in paragraph 20(2) is to ascertain the cared-for person’s wishes or feelings about the arrangement. That does not address parents’ views about the arrangements for their child.

Without our amendment, the liberty protection safeguards provisions would allow a local authority to make arrangements that deprive young people of their liberty without the agreement of their parents. Further, it would allow the local authority to do so without needing to obtain a court order. That is not the case under the Children Act, so there is clearly a conflict, which we must address. I see the amendment as by no means contentious. It is very much in the spirit of what has been suggested to widen the scope of liberty protection safeguards to 16 and 17-year-olds, including the extension of pre-authorisation reviews by approved mental capacity professionals. It is a key component of the Children Act, as it should be of the Bill.

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship again, Mr Austin. As I said in a previous sitting, children and young people have always been my focus in politics, and the measures that impact 16 and 17-year-olds are some of the most important in the Bill.

As my hon. Friend the Member for Worsley and Eccles South said, amendment 30 would make provision to enable the parents of a 16 or 17-year-old to object to care arrangements that gave rise to deprivation of their liberty. Not unlike in many other parts of the Bill, there is a severe lack of clarity about the role of parents. We must make that clearer. The law regarding young people is already very complex, and the Bill just seems to add to that complexity. There is real concern out there in the community about the lack of recognition of parental rights under the LPS system.

Parents fall within the group of people to be consulted about the young person’s views of the care arrangements, but there is no acknowledgement at all that parents have the right to make decisions about the young person’s placement. That seems to me to undermine the Children Act 1989, which provides for parents being able to object to the young person’s placement and to remove their child. Does the Minister agree that there is such a conflict? If authorities want to overrule parental wishes about the care of their child, they must go through the legal and court proceedings to do so.

--- Later in debate ---

[Caroline Dinenage]

Absolutely; we completely agree that objections raised by parents about the arrangements should be considered with the utmost care and attention. That is why we have already built those safeguards into the authorisation process. The Bill states that an approved mental capacity professional must conduct the pre-authorisation reviews where it is reasonable to believe that the person objects to the arrangements, and it clarifies that an objection can be raised on a person’s behalf by someone interested in their welfare. For the vast majority of 16 and 17-year-olds, of course, that would include their parents. In those cases we would expect an approved mental capacity professional to consider the objection carefully, meet both the person and their parents, and establish how they feel.

I understand the concerns of the hon. Member for Worsley and Eccles South about how the legislation relates to the Children Act 1989. I can confirm that the advice I have been given is that nothing in the Bill conflicts with that Act, or indeed with any other existing legislation. The hon. Lady may also be aware that the role of parental consent in the deprivation of liberty is currently being considered by the Supreme Court, and of course the Government will closely consider the implications of that judgment when it is handed down. The hon. Member for Stockton North spoke about the consultation on this issue, which of course was part of the Law Commission’s recommendations on the inclusion of 16 and 17-year-olds, and all the aspects of that. They spent three years working on those recommendations and consulted widely with stakeholders, including children’s charities, third-sector organisations, social workers and education providers.

Our view on the amendment is clear. Although almost all parents have their child’s best interests at the heart of everything they do, a tiny minority do not—maybe for good reasons; maybe for reasons of heart over head, as one Member has said today—and those are the children we have to protect. Parents should be at the heart of the process and they must be consulted where appropriate, but the person whose wishes and feelings must be at the dead centre of that process is the individual whose mental capacity is deemed not to be there. I hope that I have been able to provide clarification. On that basis, I ask the hon. Member for Worsley and Eccles South to withdraw the amendment.

[Barbara Keeley]

As I said earlier, it is welcome that the Bill expands eligibility to 16 and 17-year-olds, because it prevents them from slipping through the gaps that the Bill would otherwise create. However, I persist in the view that there are issues with the way the Bill interacts with the Children Act 1989. The difference is that under section 20 of that Act, parents can object to their child’s placement and can also remove their child from that placement.

I gave an example—the case of Y v. Barking and Dagenham—in which parental objections were overlooked by the responsible body. The key point is that there are many other such cases, as I am sure the Minister knows—she probably hears about them even more often than I do. That was a recent case, but it resulted in significant harm. That young person, still a child, was kept in a care home and deprived of his liberty for two years. He was restrained 199 times. He was assaulted by somebody in the care home, but the social worker only listened to opinions from the care home. The amendment is a safeguard, and it is vital that we put it into the Bill to prevent similar cases being enabled by the Bill. I put it to the Minister that she will be enabling more such cases if she does not include this provision on parental objections.

[Caroline Dinenage]

Can I just challenge that? Under the existing Mental Capacity Act 2005 there is recourse to the Court of Protection for the parents. Their views have to be taken into consideration, but if they feel in any way, shape or form that the best interests of their child are not being followed, they have that recourse to the law, and the amendment of the Act does not change that.

[Barbara Keeley]

Indeed, and we will be talking more about the Court of Protection, which is of course an important safeguard. However, parents should not have to have recourse to the court just to express objections and get them listened to. The Court of Protection is a good safeguard, but recourse to the law involves expert advice and all kinds of things. I shall discuss that in relation to a later amendment, but for ordinary people it is a serious matter to take on.

Sometimes the Minister encounters, as I do, parents who are confident enough to challenge things, go to the media and make a stir, but I have just given a strong example where a young person was kept in appalling conditions and was hurt and damaged. Such cases affect a young person’s ability to live in a home or community situation and should be avoided. Two years of detention in an unsuitable home, assault, and being restrained 199 times will surely lead to traumatic stress. That is why I think that the amendment is important, and why we will press it to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Steve McCabe]

Absolutely; I agree entirely. That makes more sense than the way I have been saying it.

I accept that the amendment is clumsy and not well drafted, but I hope that it is clear that, more than anything, we need to hear—all the better if it happens before our proceedings conclude—and then see in black and white a cast-iron guarantee that the arrangements will not be used in a way that ends up being detrimental to the interests of the person about whom we should be most concerned. That is the purpose of the amendment. We can have some confidence that all those conditions have been appropriately and properly satisfied only if we have confidence that a professional with the appropriate experience, knowledge and skills, who is valiantly independent and capable of looking at it in the round, has been a key component of that decision.

[Barbara Keeley]

I thank my hon. Friend for moving the amendment. The Committee has already considered the principles that he has discussed, but I am glad to have the opportunity to return to them, because the role of the AMCP is a big part of the schedule, which I am sure we will come back to.

The aim of the amendment is to ensure that all people subject to the liberty protection safeguards have their case considered by an approved mental capacity professional. On Tuesday morning I discussed a range of cases where we thought that it was crucial that the approved mental capacity professional should review the case. I was talking about specific cases, but an AMCP review would be beneficial in all cases, because it would bring independent scrutiny from a professional with experience in such matters. We will talk about the issue of skills shortly, which comes into it as well.

An AMCP review can only be a good thing. It would ensure that even lower risk cases than the ones I spoke about were properly scrutinised, so that cared-for people would be at less risk of being inappropriately deprived of their liberty. That is what it is all about, really; that is what we on the Opposition side are doing. I am sure that we and the Government are of one mind on the important role that approved mental capacity professionals can play, which is why we will support Government amendment 9 when it is put to the Committee, and why I hope that they will support our amendments 37, 38 and 39.

[Alex Cunningham]

I hope that my hon. Friend agrees that my hon. Friend the Member for Birmingham, Selly Oak does himself down, because this is a good amendment. He is actually doing the Minister a favour, because we have talked about resources, and if we agree to the amendment there will be less associated cost. If we get the assessment right first time, it will not be laid open to challenge or repetition, and the system will be more efficient in the longer term.

[Barbara Keeley]

Yes, I agree that my hon. Friend the Member for Birmingham, Selly Oak should not run down his amendment, because it has provoked a useful debate. The purpose of the amendment is to expand the number of people who receive an AMCP review. It goes further than the amendments that I tabled, but we support it in principle, and I hope the Minister will consider it carefully.

[Caroline Dinenage]

I thank the honourable—I seem to be test-driving someone else’s teeth today, Mr Austin. I thank the hon. Member for Birmingham, Selly Oak for raising the issue and facilitating an important discussion. I have absolutely no doubt of his dedication and good intentions in the matter. I wish to offer him some reassurance, because the Bill already requires that an approved mental capacity professional carries out the pre-authorisation review where an objection has been raised. In such cases, authorisation cannot be granted unless the pre-approved mental capacity professional is 100% satisfied that the authorisation conditions are met. Amendment 9 would strengthen this provision, as the hon. Member for Worsley and Eccles South mentioned.

Should an approved mental capacity professional not complete the pre-authorisation review, it would be completed by someone who is not involved

“in the day-to-day care of the cared-for person…in providing any treatment to the cared-for person, or…who has a prescribed connection with a care home.”

We believe that this would ensure that the pre-authorisation reviewer is sufficiently independent. We expect that the review would be completed by professionals such as social workers, nurses or physicians. The hon. Member for Birmingham, Selly Oak talked about the use of the term “appropriate experience”, which is set out very clearly in extensive case law.