Oral Answers to Questions

Baroness Keeley Excerpts

Tuesday 7th May 2019 Commons Chamber

[Caroline Dinenage]

That is a really good point. We all know that access to respite care can be incredibly valuable, both for autistic people and their carers and their loved ones. That is why we are supporting CCGs that want to invest in respite care, and we are looking more carefully at how we can direct funding to these important services.

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

Eight years after the Government pledged to move autistic people out of in-patient units following the Winterbourne View scandal, there are still 2,260 people in such units, many of whom are subject to restraint, over-medication, seclusion and even neglect. Rather than reviews and warm words, will the Secretary of State now act to change things by matching Labour’s pledge of £350 million of extra funding to move autistic people and people with learning disabilities back into the community where they belong?

[Caroline Dinenage]

Of the original 2015 cohort that the hon. Lady mentioned, 6,325 people have been discharged and 476 beds have been decommissioned, but the thing is that people are still coming in. The only way we can achieve permanent, long-term cuts is if we invest in community health. That is why the long-term plan commits to an extra £4.5 billion a year for community health. Local providers are expected to use some of that to develop the right specialist services in the community to reduce avoidable admissions.

Mental Capacity (Amendment) Bill [Lords]

Baroness Keeley Excerpts

Ping Pong: House of Commons
Tuesday 2nd April 2019 Commons Chamber

[Caroline Dinenage]

The code of practice is being worked on as we speak. It is very important that we take it forward in partnership with all the key stakeholders and those who are involved at the front end implementing the liberty protection safeguards. Once we are all content that the code of practice is robust and fully covers everything that we want it to it will then be presented to both Houses of Parliament.

This will mean that the definition will be considered regularly. It will remain up to date with evolving case law. It means that we are laying a report of the review before Parliament and that there will be a review within three years of the measure coming into force to ensure that it is working as intended. The review will extend to all the guidance related to the liberty protection safeguards contained in the code of practice and not just the definition. By regularly reviewing the code in this way, we will ensure that there is up-to-date guidance for people and practitioners and this will support the successful operation of the liberty protection safeguard system.

The amendment will ensure that the code clarifies when a deprivation of liberty does or does not apply and provide useful guidance for families, carers and professionals while also ensuring that we do not put a definition in statute that conflicts with article 5 of the convention and I ask the House for its support in this.

I shall briefly turn to Lords amendment 25A, which was tabled in the other place with the admirable aim of ensuring that the authorisation record is provided to the individual and other relevant persons in a timely manner. This followed the Government amendment that clarified the responsible body’s duty to provide information to the person and other relevant persons. Noble lords amended the Bill to specify that a record must be kept if the authorisation record is not provided immediately. If the authorisation record is not provided to the person within 72 hours then a review must be conducted.

The Government agree that it is very important to make sure that the authorisation process record is provided quickly. However, there are some issues with Lords amendment 25A that need to be addressed before it can be put into statute. For example, it does not make a specific person or organisation responsible for recording that an authorisation record has not been provided for completing a review, so the duty cannot be enforced. Government amendment (a) in lieu of Lords Amendment 25A states:

“After authorisation arrangements, the responsible body must, without delay, arrange for a copy of the authorisation record to be given or sent.”

Government amendment (b) in lieu will ensure that if the responsible body has not done this within 72 hours of the arrangements being authorised, it must review and record why this has not happened. Providing information, including in the authorisation record, is so important to ensure that people are able to exercise their rights. The Government have listened and reflected on the concerns of the other place and have brought forward this amendment. I ask that the House supports it.

Finally, I take this opportunity to put on record my thanks to the Members of both Houses. We set out to consult very widely on this piece of legislation and to listen very carefully to the concerns of both Houses. Both Houses have very carefully scrutinised this crucial piece of legislation. I also thank many of the stakeholders who have supported its development. I thank the Bill team, particularly the Bill manager Sharon Egan, and officials across the UK and Welsh Governments who have worked with the team to deliver this reform. I thank, too, the legal team and my private secretary Flora Henderson. It is through a great deal of dedication and hard work that we will be able to rectify a failing system and provide protections to the 125,000 vulnerable people for whom it currently falls well short.

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

When we last debated this Bill, I was clear that Labour did not think that the Bill was adequate to become law. The Minister has just expressed her thanks, but we did make it clear that it contained a number of serious flaws and this still remains the case. While improvements have been made in the House of Lords, they do not fix many of the concerns that we still have with this Bill.

The Bill still places more power than it should in the hands of care home managers. From organising assessments to carrying out consultations with the cared-for person, the Bill means that an untrained, or an ineffective, care home manager could end up carrying out the process in a flawed or improper way.

Recently, there was a focus on the scandal of abuse that happened at the Mendip House Care Home in Somerset, with six autistic residents with complex needs. The Safeguarding Adults Review carried out by the Somerset safeguarding board revealed a host of management failures by the National Autistic Society. The registered manager of that particular care home did not address the unprofessional behaviour of a thuggish gang of male staff. This resulted in the following abuse being meted out to the residents of Mendip House: they were “ridden like horses” by staff; forced to crawl on all fours; made to eat raw chillies; and, in one horrific instance, forced to eat food spiked with mustard, which caused the resident to vomit. The resident was then made by a member of staff to drink that vomit.

People living in Mendip House had complex needs and all would have lacked capacity to make certain decisions and all required deprivation of liberty safeguards. The Care Quality Commission had not receive any notifications that DoLS had been authorised. On care planning and recording, the review report on Mendip House states:

“Care plans were very poor with no mental health or Best Interests assessments recorded... DoLS not being followed.... recording poor, plans out of date...”

The Minister has previously said that, through this Bill, the Government

“are ensuring that people’s wishes are always considered and respected, and that people are safe, cared for and looked after.”—[Official Report, 18 December 2018; Vol. 651, c. 757.]

But I have just cited a case where the care home manager neglected both care planning and safeguarding, so what steps will the Minister take to investigate what happened at Mendip House? Will she ensure that such behaviour does not continue under the provisions of this Bill, given that so much power is given to care home managers? Today is World Autism Awareness Day, and we must do more than pay lip service to showing solidarity with autistic people.

--- Later in debate ---

I listened carefully to the shadow Minister, who discussed how to regulate care homes and to ensure that standards are applied. I am not suggesting that every consultation should be carried out by someone from the local authority. Indeed, as I said at an earlier stage of the Bill, it may be more appropriate for a carer who knows the person well to carry out part of the consultation rather than having someone turn up from the council. Again, this is about how to ensure that appropriate standards are maintained. I will keep to the amendments, but we could have a longer debate about how to ensure that regulatory standards are where they need to be.

[Barbara Keeley]

In the example I gave, residents who had lived in a care home for a long period had a manager who did not keep their care plans or any documentation, and they suffered terrible abuse. Such things do go on, and I am still concerned that we are giving responsibility to people who are already overstretched and may not be doing or may be unable to do a good job.

[Kevin Foster]

I accept the point. However, the hon. Lady’s example is not just about standards being ignored, because there was a raft of, bluntly, criminal behaviour and abuse. If we were having a longer debate about care homes and the regulatory system, we could look at whether having the Care Quality Commission cover such a wide range of areas is the best way of ensuring that such things do not happen, but Mr Deputy Speaker is always keen for us to stick to the topic of the debate.

The amendments relating to Lords amendment 1B are appropriate and slightly better than the original, and the amendments relating to Lords amendment 25A make eminent sense. It makes sense to record why something has not happened, because if there are concerns about the management of a care home, there should be a duty to record why something was not done, not just to review it. The management could in theory say, “I’ve reviewed it, but I didn’t record what I’ve concluded,” or try to come up with a conclusion later.

--- Later in debate ---

[Helen Whately (Faversham and Mid Kent) (Con)]

It is always a pleasure to follow the hon. Member for Strangford (Jim Shannon), who makes such thoughtful contributions. I will be brief, as we appear to have a large amount of consensus on this piece of legislation.

First, I want to pay tribute to my hon. Friend the Minister for the work she has done on the Bill, her extremely consensual approach to it and the way she has listened to concerns from Members on both sides of the House and consulted stakeholders widely. It has been a real pleasure to work with her on the Bill, and I thank her for that.

This Bill is critical because it concerns some of the most vulnerable people in our society. We have talked about the fact that there are 125,000 people waiting to be processed for deprivation of liberty orders, and the system is not working, but there are 2 million people who have impaired mental capacity in the country, and we need to get the system right for all of them, not just the 125,000 who are being let down by the current system.

It is also important to say that the Bill builds on more than three years of work and the recommendations of the Law Commission. It has been fully scrutinised by the Joint Committee on Human Rights, and the other place has contributed to it, as have members of the Bill Committee. I have received many emails in support of the fact that it introduces a better system, gets rid of the bureaucratic box-ticking exercises in the old system and should be better for both the individuals who are deprived of their liberty and their families.

[Barbara Keeley]

The work that was done for three years was on a 15-clause Bill that is not this Bill. We discussed that plenty of times in Committee. I think it only fair to be accurate. This five-clause Bill is not the Bill that was consulted on, and it is not the Bill that had three years of work. It is not correct to claim that it is. We spent a lot of time in Committee trying to put right the things that were missing and taken out of the earlier 15-clause Bill, and it is better to be accurate about that.

[Helen Whately]

I thank the hon. Lady for her intervention. Broadly, I was attempting to say that a significant amount of work has gone into this. I have heard overwhelmingly from those working in the sector about the importance of doing something about the current situation, because it is not working and cannot be allowed to continue. This is urgent.

It is right that the NHS and social care providers will be given a bigger role in the decision-making process, so that people under their care receive better care and their rights are protected. The fact that we have people outside the system unprotected at the moment clearly cannot be right and cannot continue. During the passage of the Bill, I raised concerns about how it will work for people with fluctuating conditions, and I have been reassured by the Minister that responsible bodies will be required to keep individuals’ circumstances under review. I welcome the fact that there is further detailed guidance on fluctuating conditions in the code of practice.

I turn to the amendments and particularly the debate about the best way to define “deprivation of liberty”. It feels like a sensible conclusion has been reached in order for us to move forward, with a plan to develop the definition further through the code of practice. These things evolve and are extremely complex, and we need a flexible system that meets the needs of our society.

To sum up, the old system is not fit for purpose. The Bill makes important and timely amendments. It is better for individuals and all those around them to ensure that they have appropriate protections for the very serious matter of depriving individuals of liberty.

Question put and agreed to.

Resolved,

That this House does not insist on its amendment 1 to which the Lords has disagreed, and disagrees with Lords amendment 1B proposed in lieu, but proposes amendment (a) to the Bill in lieu of the Lords amendment.

Resolved,

That this House disagrees with Lords amendment 25A proposed to its amendment 25, but proposes amendments (a) and (b) to its amendment 25 in lieu of the Lords amendment.—(Jo Churchill.)

Oral Answers to Questions

Baroness Keeley Excerpts

Tuesday 26th March 2019 Commons Chamber

[Matt Hancock]

My right hon. Friend is absolutely right to raise this. There has been a rise in opioid-related deaths, and we need to work across government to tackle the problem. Public Health England is reviewing prescription drug dependence, including opioid dependence, and we recently announced a review of over-prescription in the NHS to make sure patients are taking the right medicines for the right amount of time.

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

There are still 2,295 patients who are autistic or who have learning disabilities in hospital in-patient settings, despite a Government pledge in 2012 that no one would be in inappropriate settings by 2014. In 2015, the Government said they would close up to 50% of these in-patient places, and they failed to meet that pledge, too, because of a lack of social care funding. Will the Secretary of State now commit to proper social care funding for this programme and renew the pledge to end the misery of these placements by 2022?

[The Minister for Care (Caroline Dinenage)]

The NHS long-term plan has made it clear that learning disability and autism are one of the key clinical pillars in its absolute priorities. This transforming care work is incredibly important. Where people need access to in-patient services for assessment and treatment of their needs, it has to be for as short a time as possible, it has to be as close to home as possible and it has to be with a very clear discharge plan in place.

Oral Answers to Questions

Baroness Keeley Excerpts

Tuesday 19th February 2019 Commons Chamber

[Caroline Dinenage]

First, I welcome the hon. Gentleman to his new location in the Chamber. From that location, he might recognise that actually, there has been a failure of successive Governments to get to grips with this very thorny issue of the long-term funding of adult social care. We are the Government who have decided to tackle the issue. We will no longer put it in the “too difficult” pile, and we will be publishing this document shortly.

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

But the Government are not tackling the problem of the long-term funding of social care, are they? Age UK found that 50,000 people who had applied for social care had died waiting in vain for that care in the 700 days after the Government first announced their Green Paper. How many more people will have to die waiting in vain for social care before the Government fix the crisis they have created?

[Caroline Dinenage]

I cannot stress enough how much money we have made available. The Government have given councils access to almost £10 billion—a 9% increase—to address this issue. Local authorities have a statutory duty to look after the vulnerable, the elderly and the disabled people in their area, and we have given them access to the funding to do it.

Mental Capacity (Amendment) Bill [Lords]

Baroness Keeley Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 12th February 2019 Commons Chamber

[Caroline Dinenage]

I do not think it is ever possible to say that. This particular area of law has always been open to legal challenge. We decided to include a definition because so many stakeholders, as well as the Law Commission and Members of the other place, thought it essential, but the wording is very specific.[Official Report, 13 February 2019, Vol. 654, c. 7MC.] It refers to what does not constitute a deprivation of liberty rather than what does, because we did not want to leave out accidentally something that could open up a legal challenge further down the line. This is where the code of practice comes into its own. It will include case studies and examples, so that those affected by the Mental Capacity Act will have a better understanding of how it works for them.

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

The Minister has just mentioned case studies, and she has mentioned them before. She has circulated case studies to a few people, but they were not circulated to me or to any other members of the Committee, which I think was very discourteous. We keep hearing about things that are in the distance—over there—and will come together at some point, but those case studies have not been circulated, and they should have been.

[Caroline Dinenage]

I think that there must be some confusion. The case studies will be part of the code of practice. They will be gathered together in the document, and third-sector organisations will contribute to ensure that we cover every cohort. We must bear in mind that we are trying to cater for wildly different groups of people. The document will have to cover the young person with an acquired brain injury to whom the hon. Member for Rhondda referred, a 16-year-old who has had a learning disability since birth and the 97-year-old with dementia. It must not be the box-ticking one-size-fits-all exercise for which the current legislation provides.

We are aware that mental capacity assessments may be of particular concern to the group of people mentioned by the hon. Member for Rhondda. Assessing the capacity of people with acquired brain injuries can be particularly challenging, and will require skilled and careful consideration. Government amendments 28 to 37, which I shall discuss later, outline our intention to publish regulations in order to ensure that the assessors have the appropriate knowledge and experience.

We agree that the likelihood of capacity to fluctuate should be ascertained during the assessments, and we will expect that to be considered in the authorisation, in the length of authorisation and in the frequency of reviews. Fluctuating capacity is complex and fact-specific and deserves in-depth and detailed guidance, which is why we will include the details in the code of practice. I appreciate what the Opposition amendments are trying to do and I fully agree with their spirit, but I hope that my commitment to work with others on the code has given the hon. Gentleman and other members of the all-party parliamentary group the reassurance that they need.

Through the scrutiny of the Public Bill Committee and the ongoing engagement with stakeholders, we have identified a number of areas in which the Bill could be strengthened further. As I have said before, I firmly intend to introduce a more effective, efficient system of robust safeguards, moving away from the one-size-fits-all approach that no longer works. I am committed to doing this in a very collaborative way, and where possible to identify legislative improvements that can be made to work. I am committed to looking at this again, and as a result a number of Government amendments have been tabled that improve the Bill and the way in which liberty protection safeguards work.

Amendment 5 aligns the definition of a care home manager in Wales with that in England. The Bill as currently drafted defines care home managers in Wales as a registered manager. This amendment changes that so that it is linked to the registered service provider. Amendments 7 to 23 will remove any perceived conflict of interest where a deprivation of liberty occurs in an independent hospital. Under amendment 14 the responsible body in cases where arrangements are mainly carried out in an independent hospital would be the local authority in England and in Wales the local health board for the area in which the hospital is situated. This removes any potential misuse of power or conflict of interest in independent hospital settings. Amendment 22 outlines that in England the responsible body is the local authority responsible for the education, health and care plan or the care plan under the Care Act 2014. If a person does not have one of these, the responsible body is that in the area where the hospital is situated.

--- Later in debate ---

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

The opening two speeches have taken 55 minutes, and we have to finish at 6 pm. I recognise that a lot of other people want to speak, and I certainly do not want to put pressure on the Opposition spokesperson, who also wants to make a speech. When other people come in, please remember that we want to get through everybody.

[Barbara Keeley]

We should not be in this position of having less than two hours on Report. This Bill has been rushed. We were in the same position on Second Reading, and it is absolutely unacceptable for such an important Bill to be rushed through as it has been today. I spoke to the Minister about this yesterday. She could have chosen to bring the Bill back on a different day, and I am sorry that she has not.

I am every bit as concerned about this Bill as I was on Second Reading. It remains deeply flawed. It weakens the current safeguards for people who lack capacity, and we have not even had a clear answer to the question that the hon. Member for Totnes (Dr Wollaston) just asked about the current backlog of DoLS applications. It is not clear how that will be cleared.

The Minister said at the start of Committee that she would work constructively with other parties on this Bill, but that has not been reflected in our experience. She has dismissed many of the serious concerns raised both by Opposition Members and by the many charities and representative groups outside the House with an interest in the Bill.

I said in Committee that our amendments were the bare minimum required to ensure that the Bill is fit for purpose. The Government rejected all our amendments in Committee, and, despite some movement on one or two issues since, the Bill retains the majority of the significant flaws it contained on Second Reading. It is sad that, having been through all the stages, this is where we are.

We have tabled further amendments to address some of the glaring holes that remain in the Bill, and I thank all the stakeholders who have helped us, including the Alzheimer’s Society, VoiceAbility, Mencap and Lucy Series. Without these amendments, we simply do not believe that the Bill is fit for purpose, and we oppose it progressing further.

[Janet Daby]

Does my hon. Friend agree that the Bill should be paused until the draft code of practice is ready?

[Barbara Keeley]

I very much agree with that. We have heard about a code of practice and regulations, but we cannot see any of these things. With this Bill, we should have had the promised detail on the code of practice. We should not be passing the Bill without it.

First, I wish to talk about amendment 50, which addresses the role proposed in the Bill for care home managers. A number of Members have raised that issue, and we fundamentally disagree with that role, in the same way that we disagreed with the role in the liberty protection safeguards system being given to independent hospitals, which the Government are now amending. There is no logic in the Government removing one conflict of interest from the Bill and not the other.

When this Bill was introduced in the House of Lords, it placed almost all power and responsibility for the LPS in the hands of care home managers. It would have allowed them to be judge and jury, deciding when to deprive people of their liberty. I accept that the Bill has been marginally improved from the original position. The Government were forced to make concessions in the House of Lords, but what they have done so far is the bare minimum. The Bill still hands far too much power to care home managers. Stakeholders across the sector, including care home managers themselves, are very concerned about this. Care England, the representative body for care homes, has said:

“As providers we are very concerned about the inherent conflict of interest associated with placing Liberty Protection Safeguards assessment responsibilities on care home managers “

I also want to quote something that was written in evidence to the Public Bill Committee. A submission made by the Albert House nursing home stated:

“Managers in Care Homes are already stretched and heaping further responsibility on them could lead to more people giving up and looking for easier work.”

It seems clear that even care home managers do not want this responsibility to be given to them. I cannot understand why the Government are insisting on doing so, unless of course the reason is just cost saving.

Under the Government’s proposals in the Bill, local councils will be able to delegate the assessment and consultation process to the care home manager whenever they see fit. That risks creating a postcode lottery, where some local councils with adequate resources carry out LPS assessments themselves, while others will have to reduce their role to simply rubber-stamping the applications they get from care home managers. That cannot be right.

We have to be clear in this Chamber that one issue facing the current system is that some local councils are not able to properly resource their DoLS teams following years of cuts to their funding. This Bill would allow cash-strapped local councils to outsource the process entirely, with serious consequences for cared-for people. If care home managers organise the authorisation process, they decide who carries out medical assessments, and who determines whether the arrangements are necessary and proportionate. I have heard colleagues expressing concern that the statement provided by the care home manager forms the basis of authorisation. We know that many local councils do not currently have the resources to fund their DoLS teams properly now. Conservative Members have talked about the backlog and concerns about that, but in recent weeks we have seen a further £1.3 billion taken out of grant funding to local councils. The Minister has given us no reassurance that the Government will provide any new funding for the proposed system.

[Steve McCabe]

While my hon. Friend is on the subject of care home managers, may I ask whether she agrees that if they are responsible for the consultation, which is supposed to be one of the safeguards protecting a person’s liberty, the person cannot possibly be at the heart or centre of the Bill? Such a provision drives a coach and horse through the notion that their liberty is being protected.

[Barbara Keeley]

I absolutely agree with that. Local councils face a serious resource issue, and we see a pressing of this role away to care home managers. I have got some examples with me, but I do not know whether I will have time to go through them. However, we can see that there will be a strong temptation in local councils simply to presume that the care home manager is right. We have to recognise that over-stretched professionals in local councils will sometimes simply accept the word of care staff without fully investigating the case.

In the Public Bill Committee, I talked about the recent case of Y v. Barking and Dagenham. This was the case of a young man who was placed in an inappropriate care home. Initially his parents were satisfied with his placement, but over time the quality of his care deteriorated. We hear a lot and have great concerns about restraint. That young man was restrained in that care home 199 times in two years and suffered significant harm. Y eventually got out of that placement, following a court-appointed guardian visiting and raising concerns, but it took the intervention of somebody outside the care home—that is the key thing.

[Caroline Dinenage]

The hon. Lady is making a powerful case and she talked about many such cases in Committee. Does she agree that this shows exactly why the DoLS system needs overhauling? It is not offering the required protections for vulnerable people, which is why this Bill is so urgent.

--- Later in debate ---

[Barbara Keeley]

I could not disagree with the Minister more, because what she is doing is putting people into the lion’s den. I do not know whether she is listening to me, but I am reading her a case where the difficulties arose because the local authority listened to care staff and did not listen to the parents’ objections at all. That is the difficulty. Under the new LPS system, that young man would not have had any safeguards or protection, because the care home staff would have been the people sorting out his authorisation.

[Caroline Dinenage]

Under the new system, family members and parents will be listened to, because they will be the approved person, the representative and the advocate. Their voices will be heard, which is not happening currently.

[Barbara Keeley]

It is not helpful if the Minister and I argue about this. We have had this argument enough times in Committee. She just needs to see that there is a level of concern. I am quoting a case where significant harm was done to a young person in a care home because the parents were not listened to and the care staff were.

[Dr Poulter]

I can understand where the hon. Lady’s concerns come from, but having had detailed discussions with my hon. Friend the Minister, I am reassured, perhaps more than the hon. Lady, by the systems and some of the amendments that have been put in place to take into consideration concerns about conflicting provider interest. She makes a good point on the lack of funds and resources and cash-strapped local authorities. Without the money to support local authorities, there is a real risk that scrutiny of care homes and the processes in place under the legislation will be sadly lacking, to the detriment of people under deprivation of liberty orders. What reassurance has she had, if any, during the passage of the Bill that the funding crisis affecting social care and local authorities is being addressed by the Government, both in respect of this legislation and otherwise?

[Barbara Keeley]

I thank the hon. Gentleman for that question. We have had no reassurances whatever. In fact, since the Committee finished, £1.3 billion has been taken out of central Government funding to local councils. Whatever our position was when we were in Committee, things are now much, much worse.

The Minister does not agree, but it is disturbing that we are still in the position on Report of trading the arguments back and forth. We gave lots of examples. There is provision in the Bill for an approved mental capacity professional. With our amendment we want to be sure that we do not have cash-strapped local councils delegating responsibility. There is talk under some amendments to bring in reviews, but reviewers have to be able and willing to stand up to care home managers, and that is a difficult thing.

As my hon. Friend the Member for Bridgend (Mrs Moon) said earlier, care home managers have a lot of power. They have the power to evict and the power to stop visits. Amendment 49 would work with amendment 50 to address the role that the care home manager could play. It is one of the most concerning provisions in the Bill, and it must be addressed if the new liberty protection safeguards are to be fit for purpose.

I do not in any way want to stigmatise care home managers, but I ask Government Members to accept that we are talking about a situation where at least 20% of care homes require improvement or are rated inadequate. Care home manager vacancies are at 11%. We are not talking about a situation where all care homes have a proper care home manager in place, or where they are all doing as well as they could. If the Minister reads many CQC reports, she will see that care homes often fall down on care planning. CQC inspectors often find that there is not a proper or adequate care plan for the situation.

[Catherine West]

Is my hon. Friend satisfied that rights of appeal are being managed correctly in the Bill?

[Barbara Keeley]

No. On the Opposition Benches, we are not satisfied with very much about the Bill, but I am talking about our amendments for care home managers because we feel that safeguards have been weakened. I will give an example, because there are many cases where the powers of care home managers are used to shut down any opposition to what they are doing. A person whose husband was in a care home visited him every day and took a keen interest in his wellbeing. He had lost the ability to speak and had little mobility. She found that he was in pain and when she raised that with staff, they failed to act and dismissed her concerns. She then raised it with the care home manager who warned her that if she continued to take up staff time, she would be banned from visiting her husband who was actually nearing the end of his life. That is an awful thing—that a wife would be banned from visiting her husband near the end of his life. It was only with the help of an outside organisation that the cause of the pain was identified. If relatives, including spouses, were prevented from visiting in the situation that I have just described, how could they be raising a major objection? How could they be challenging the care home manager? The appeals question that my hon. Friend the Member for Hornsey and Wood Green (Catherine West) just raised with me is very concerning.

Under the current provisions of the Bill, care home managers are expected to carry out the consultation process, and yet this is the one opportunity that the cared-for person and their family have to register any objections to the proposed arrangements. The process needs to be carried out independently so that people can feel free to speak their minds. Amendment 49 achieves that. It prevents the local council from delegating the consultation process to the care home manager, and then this crucial step must be carried out by the local council itself.

In Committee, the Minister said she believed that it could be appropriate for a care home manager to carry out that process, because those with an interest in the welfare of the cared-for person can flag up objections, but that would not always work in practice. For that to happen, a family member would have to know that they had the right to do that. They have to know with whom to raise their objection and then raise it in a timely manner. That is pretty key in relation to this business of care homes and to challenging on behalf of the cared-for person. It is not reasonable to expect people to understand the intricacies of the system. Similarly, we cannot expect everyone to have the confidence to negotiate the system for themselves. We here perhaps do not always think how hard it is to challenge those in authority, but it is a very difficult thing to do indeed. We need to offer a cared-for person a chance to object in a setting that they are comfortable with, without fear of reprisals from care home managers.

Government amendment 38 goes against the principles that I set out in relation to our amendment 49. It is unacceptable for the care home manager to be involved in that consultation with the cared-for person and their family, so we are in a situation where the two amendments are directly opposed.

Let me move on to our third amendment, amendment 51, on advocacy, because that addresses the provision of independent advocates for cared-for people. That is a crucial safeguard, which enables people to realise their rights under the Mental Capacity Act 2005. The advocacy system proposed in this Bill is excessively complex. It could see people being denied an advocate when they need one. Our amendment seeks to simplify the system, ensuring that advocacy becomes the default option. Stakeholders have told us that they are concerned about the use of a best interests test to determine whether somebody should receive an advocate.

Clearly, there is a situation in which the Minister thinks that a best interests test is used to avoid overriding the wishes and feelings of the cared-for person. We agree that advocacy should never be forced on somebody, but we must be explicit about this principle of advocacy being available as the default.

[Catherine West]

My hon. Friend is so generous in taking interventions. Does she agree that there is no consistency in the choice of advocates across the regions?

[Barbara Keeley]

That may well be the case, but the difficulty here is that we have a complex system when we should have a simple system that clarifies that an independent advocate, an IMCA, should not be appointed if a cared-for person objects to it, but that everyone who wants or needs an advocate can get one. There should be an absolute right to request that an advocate be appointed both for the cared-for person and for any appropriate person who is representing them.

Our amendment would ensure that support is provided where an appropriate person is not able, on their own, to give the cared-for person the support that they need. That is particularly important, and there are many examples. I am sure that the vast majority of responsible bodies would not exploit loopholes, but we feel that there are loopholes in the current situation.

Budget pressures are another concern. There are concerns that advocates may not be allocated because of Government cuts to local council budgets. We feel that it is important that the wording from the existing Mental Capacity Act is retained. Let me give an example. The concern was put succinctly in evidence submitted to the Public Bill Committee by the Doughty Street Chambers Court of Protection team, who said:

“The requirement to ‘take all reasonable steps’ is a weakening of the current requirement that the supervisory body must appoint an IMCA...It is therefore possible that a ‘cared for person’ may qualify for an IMCA but that due to resource issues the reasonable steps taken do not result in such an appointment, and this safeguard may not be available.”

From everything the Minister has said, I know that she agrees about the importance of advocacy, and we have heard a lot of case studies, one of which I will briefly mention. My hon. Friend the Member for Slough (Mr Dhesi) described a case that has stuck with me since. An advocate was visiting a man in a care home who was clear that he wanted to leave and move back to his own home. When the advocate looked into the matter further, they discovered that the man’s home had been put up for sale by the local council to fund his care. He had no idea that that was happening and was extremely upset. With the help of an advocate, he was able to challenge the local council’s decision and prevent his home from being sold. I recall that example from Committee, and it is a powerful one that demonstrates just how important an advocate can be. Without one, this man’s home would have been sold without his knowledge, and he would then have been forced to remain in a care home that he wanted to leave. There are countless examples of how important an advocate can be.

--- Later in debate ---

[Norman Lamb]

I want to speak primarily in support of the amendments in the name of the shadow Minister, the hon. Member for Worsley and Eccles South (Barbara Keeley), and others. However, I want to comment right at the start—I realise this is not the decision of the Minister—about the time we have to debate a Bill that deals with fundamental human rights. I just think it is absolutely outrageous, and we should place on the record our total opposition to the way in which, wholly inappropriately, it has been rushed through.

I should also say that I completely understand the need for reform. I said that on Second Reading, and I acknowledge the Minister’s sincerity on that. I recognise that we breach the human rights of the people who are on a long waiting list for anything to happen to them, but that is no justification for getting it wrong at this stage. Surely we must not weaken the protections for very vulnerable people, yet the organisations that have followed this process all the way through are very clear that that is precisely what we will do.

I just think this is extraordinary: the Government have commissioned a review of the Mental Health Act, and although we have not had the formal response yet, I expect that much of what the review calls for will be supported by the Government, yet the review moves in a diametrically opposite direction to this Bill. The review talks about “rebalancing the system” and about

“a real shift in the balance of power between the patient and the professional”.

The review also talks about

“a right to advocacy based on an opt-out approach.”

That is what the amendments in the name of the shadow Minister seek. This will not, as the Minister implied, force advocacy on anyone; this is about having it as the default option. The Law Commission has called for a right to advocacy as an opt-out approach, yet the Government are resisting it. Why are they resisting it? This reduces the rights and protections of vulnerable people, and for that reason it seems to me that it is unacceptable.

On Second Reading, I said that I would not oppose the Bill at that stage, and I said:

“Our assessment will be at the end of the process: is it workable? Does it genuinely respect and safeguard individuals’ human rights? Does it result in very vulnerable people being better protected than they are under the existing…flawed system?”

At that time, I asked the Minister to meet all of us, including interest groups, before going into the Committee stage. I said on Second Reading:

“Do not rush headlong into the Committee stage.”—[Official Report, 18 December 2018; Vol. 651, c. 744.]

Yet, within a fortnight, we were in Committee, which is exactly what I had urged her not to do.

Then we come to the views of the sector. I mentioned earlier that over 100 organisations, including care providers, disabled people’s organisations and charities, have written to the Minister. They make it clear that reform should not be at the cost of the human rights of people who rely on essential social services. I want to deal, specifically and finally, with the conflict of interest issue. They say in that letter to the Minister that

“serious conflicts of interest will be placed upon care managers who will be in control of key information about assessments and review processes.”

The Law Society—surely we should take its concerns seriously—says of care home managers that

“any task or role they undertake must be completely conflict free”,

and that they should not be arranging or carrying out critical assessments. Care home managers should not be responsible for consultation with the cared-for person. It describes the current process—it is not a past but a current concern about the Bill, as amended—as “deeply flawed”. It says:

“It is not difficult to envisage a vulnerable person being uncomfortable or reluctant to give an honest answer when questioned by the care home manager on their willingness to stay”—

in that care home—

“or their ‘happiness’ in the current placement.”

The Law Society’s concern is also about the capacity of care home managers to undertake this work, given that the whole system is under massive pressure. Bluntly, the quality of care home managers is such—many of them are really good, but some of them are not, frankly, good enough—that we cannot rely on them to undertake this vital work, which goes to the protection of the civil liberties of vulnerable people.

[Barbara Keeley]

On the training that the Minister has talked about and the hon. Member for Congleton (Fiona Bruce) just referred to, I understand from impact assessments that there is half a day’s training for care home managers and two hours of training for social workers. What does the right hon. Gentleman think of that?

[Norman Lamb]

That is clearly insufficient when it comes to the vital task of playing a role in the protection of people’s civil liberties and human rights. That is what the Bill envisages.

Sue Bott, the deputy chief executive of Disability Rights UK, says:

“Given the rare unanimity across the health and social care sector and disabled people’s organisations we urge the Government to delay the Bill and look again at its provisions. It is better to have a co-produced piece of legislation that works for everyone than rush through a new law that, in its current form, will seriously undermine the human rights of disabled people.”

I urge the Minister to listen carefully to that—the “rare unanimity” across the sector. When I was responsible for taking the Care Bill through Parliament, we ensured that by the end pretty much everyone was on board, although it was a slow and sometimes frustrating process.

The Minister will be applauded if she now recognises that these concerns about the amended Bill are not past ones but current ones. If we are to get people on board and ensure that everyone agrees that we are properly protecting the human rights of very vulnerable people, the right thing to do now is pause, before the Bill goes back to the House of Lords, to ensure in particular that the provisions on conflict of interest of care home managers and the rights of advocacy are properly addressed. If the Minister can do that, she will go a long way towards bringing people on board. I am sure that that is what she wants.

--- Later in debate ---

[Barbara Keeley]

It is appalling that we should have had less than two hours for Report stage of a Bill affecting the human rights of some 2 million vulnerable people who lack capacity—and we had less than two hours for Second Reading. Given that there is no appreciable business to occupy ourselves with next week, it is ludicrous that the Government should have forced the Bill through today.

The Bill that we are being asked to pass today is simply not fit for purpose; it simply replaces the current flawed system, which the Minister has just described, with a new one that is actually more flawed. There are a number of issues that we still consider unacceptable. The largest is that the Bill still creates a major conflict of interest in relation to the managers of private care homes. It is simply wrong that a business with a financial stake in seeing a deprivation of liberty authorisation granted can do all the legwork and then just have its recommendation rubber-stamped by the local council.

I hope that care home managers will seek to carry out their new role well, but we know that they are already overstretched. The Bill creates extra pressures.

[Norman Lamb]

Does the shadow Minister share my confusion and concern that the Mental Health Act review, which the Government commissioned, appears to be moving in one direction—strengthening the rights of individuals—while this Bill appears to be moving in precisely the opposite direction?

[Barbara Keeley]

That is very much the case. We asked on Second Reading for some consideration of the interface between the two.

As well as the issue of care home managers, there is a real concern about the restrictions on access to advocacy under the Bill. Advocacy is a fundamental pillar of any system for authorising deprivation of liberty. The Bill means that vulnerable people who need an advocate may not get one, and amendments that could have changed that have been rejected. The use of a best interest test to decide whether someone gets an advocate has been widely criticised. The Government could and should have removed the reliance on the best interest test.

The maximum renewal period of a deprivation of liberty authorisation is tripled by the Bill. As the right hon. Member for North Norfolk (Norman Lamb) said, the Mental Health Act review is moving in one way while this Bill moves in another. The Bill could see people being detained for three years at a time without a full reconsideration of their case. The only safeguard against that being misused is a series of regular reviews, but we do not know how regular those will be or what they will look like.

In Committee, the Government introduced a new definition of deprivation of liberty to the Bill. It is woefully inadequate and will inevitably result in costly litigation. The Government introduced the definition late on, with next to no consultation. The clashes between that definition and existing case law will lead to court challenges. The definition will see some people deprived of their liberty without the safeguards they need, while the issue is sorted out in the courts.

The process that the Bill has been through could be used as a case study of how not to make legislation.

[Alex Cunningham]

Will my hon. Friend give way?

[Barbara Keeley]

I do not have time, I am afraid.

The Government have consistently tried to push the Bill through as fast as they can, with minimal consultation. It should be clear that stakeholders are united in thinking this a poor piece of legislation, and on many issues the Government have failed to address their concerns. On Second Reading in the House of Lords we heard the Bill described by Baroness Barker as

“one of the worst pieces of legislation ever brought before this House.”—[Official Report, House of Lords, 11 December 2018; Vol. 794, c. 1247.]

The Bill may have improved slightly, but there has been too little progress for us to support its becoming law. It would enshrine a fundamental conflict of interest and weaken the current safeguards of people without capacity.

It was clear from the start that the Bill was intended to shift the costs of authorising deprivation of liberty away from the state and on to private providers. This matter is too important for us to pass a Bill that we know will not work properly simply because Government budget cuts have created a problem. The Government chose to continue to cut local council budgets; as a result of that lack of resourcing, tens of thousands of people are being deprived of their liberty without authorisation. Letting the backlog build up was a political choice, but this Bill is not a solution. It will not adequately protect people’s human rights, and replacing one bad system with another will not be progress. If the Government were serious about protecting people’s liberty, Ministers would have paused the Bill, which we called on them again today to do, and given local authorities the resources they need to address the backlog. They could then have given this matter the time, consultation and consideration it needs before beginning a new Bill that does not weaken the protections that vulnerable people rely on.

I thank members of the Public Bill Committee, our excellent Whip, all the hon. Members who contributed to this shortened debate tonight and, particularly, the Clerk to the Committee. I urge right hon. and hon. Members to join us in voting against this flawed piece of proposed legislation that undermines the human rights of vulnerable people who lack capacity.

Question put, That the Bill be now read the Third time.

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

Baroness Keeley Excerpts

Tuesday 22nd January 2019 Public Bill Committees

[The Chair]

Good afternoon, everybody. I call the shadow Minister to resume her speech.

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

As I said, emergency authorisations do not come with the same protections that are built into standard authorisations. Those safeguards include advocacy, independent reviews and independent assessments.

This amendment is designed to add some safeguards to the emergency authorisation process. They would kick in after the authorisation has been granted, and outline how and when it should be escalated. In particular, it would make it absolutely clear when an application to the court should be made.

Given that there is no provision for advocacy under emergency authorisations, this responsibility is falling on whoever makes emergency authorisations. The provisions mean that we are not reliant on family members, who may be under enormous stress, to make the referral. That said, we will be pushing this amendment to a Division.

Question put, That the amendment be made.

--- Later in debate ---

[The Minister for Care (Caroline Dinenage)]

It is a pleasure to serve under your chairmanship once again, Mr Pritchard. Clause 2 relates to the authorisation of steps necessary for life-sustaining treatment or vital acts. This clause is incredibly important. It allows care givers, in limited situations, to deprive someone of their liberty for a short period of time prior to an authorisation being made or in an emergency. This can be done only to provide a person with life-sustaining treatment or to prevent serious deterioration in their condition.

The clause replaces the urgent authorisations that exist under the current deprivation of liberty safeguards system. Urgent authorisations last for up to 14 days in a situation where the need to deprive someone of liberty is urgent. However, providers are left without legal cover when the authorisation runs out and, due to the backlog, the council has not completed the necessary assessments.

We of course want to ensure that there is adequate oversight and that the measure will not be misused to push through unjust deprivations of liberty. Records will need to be kept and provided after the event. The regulators—which, in England, we expect to be the Care Quality Commission and, in Wales, to be Healthcare Inspectorate Wales and Care Inspectorate Wales—can use this to monitor whether adequate care is being given. With that in mind, I recommend that clause 2 stand part of the Bill.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Powers of the court to determine questions

[Barbara Keeley]

I beg to move amendment 18, in clause 3, page 3, line 14, leave out

“whether Schedule AA1 applies to the arrangements”

and insert

“any issue in relation to the application of Schedule AA1”.

This amendment seeks to clarify that all relevant issues pertaining to Schedule AA1 can be addressed by the Court of Protection, for example whether an IMCA should be appointed or an AMCP involved.

It is a pleasure to serve under your chairmanship in this part of the Committee, Mr Pritchard. Amendment 18 may appear to be minor, but it could have significant consequences for the proposed system of liberty protection safeguards. The Bill removes the section of the Mental Capacity Act 2005 that deals with court appeals for deprivation of liberty, and clause 3 proposes a new section in its place.

The Government have made few substantive changes to the power of the Court of Protection. We believe that this is a missed opportunity. The Law Commission said in its report:

“significant reforms should be made to the Court of Protection to ensure that it works for the people who apply to it.”

The fact that the Government have refused to consider this as part of the Bill is another sign, I am sorry to say, that this Bill is being rushed through. Rather than considering this issue in the round, they are simply seeking to reproduce the current deficient system. The people who are subject to the Mental Capacity Act deserve better, so when the Minister replies, can she reassure us that the Law Commission’s comments are being taken on board and that a full review of the Court of Protection will be forthcoming?

At the moment, the Bill gives the Court of Protection a limited set of powers. It can determine whether the liberty protection safeguards apply to the case; it can determine the length of authorisation; it can rule on the arrangements the authorisation relates to; and it can determine whether the authorisation conditions are met. So that hon. Members are clear on that final point, let me remind them what the authorisation conditions are. Paragraph 12 of schedule 1 reads:

“The authorisation conditions are that—

(a) the cared-for person lacks the capacity to consent to the arrangements,

(b) the cared-for person has a mental disorder, and

(c) the arrangements are necessary to prevent harm to the cared-for person and proportionate in relation to the likelihood and seriousness”

of that harm. When the court is asked to rule on whether a liberty protection safeguard should have been granted, those are the only things that it can determine.

The court cannot determine whether a cared-for person should have been given access to an independent mental capacity advocate—we had a very full debate this morning about the role of advocates. It cannot determine whether the case should have been reviewed by an approved mental capacity professional. It cannot determine whether any of the assessors had a conflict of interest that should have precluded them from carrying out an assessment. It cannot determine whether the consultation has been properly carried out. It cannot determine whether the person was given the information that they should have been given. In short, it cannot determine whether any of the safeguards that we have discussed in this Committee were properly applied.

In some cases, the process will be every bit as important as the outcome, and I remind hon. Members of a case I mentioned previously. Ethel, an 85-year-old woman living in a care home, wanted to leave the care home and return to her own home. She was subject to a deprivation of liberty safeguard. With the help of an advocate, she appealed her case to the Court of Protection. Although the court ultimately ruled that Ethel should remain in the care home, the advocate found during the appeal process that the conditions placed on her authorisation had not been read and were not being applied until the Court of Protection made sure those conditions were attached to the authorisation. If the process is carried out improperly, it may be that less restrictive options for the person’s care are not considered. It may be that a strong objection from a close family member, which could have altered the decisions made, is not expressed.

These concerns are widely shared. The Law Society has supported this amendment, as has a wide range of stakeholders, including Mind and Learning Disability England. It is my hope that the Government did not intend to exclude all the vital areas that I have just discussed, but I simply cannot understand why we would not want to give the Court of Protection the widest possible remit in this case. The court is intended to be the final safeguard against deprivation of liberty being used incorrectly or inappropriately, and if we restrict the issues that it can rule on, we blunt its effectiveness. The Opposition do not want to hear, a year or two down the line, of cases in which the responsible body has clearly not followed the correct process but the courts find themselves unable to do anything about it. Our amendment is designed to avoid such a situation ever arising, and I hope the Government will accept it.

[Caroline Dinenage]

I understand that hon. Members want the Court of Protection to consider matters such as whether an IMCA is appointed or an AMCP is involved. That would mean that the court was considering procedural matters regarding the liberty protection safeguards process. The hon. Member for Worsley and Eccles South has asked me about the review of the role of the Court of Protection; she will be aware that the Ministry of Justice is currently reviewing courts in the round, and that review will of course include the regionalisation of the Court of Protection. However, the Bill is clear that the pre-authorisation review must be completed by an approved mental capacity professional in cases in which an objection has been raised. That provides a clear route for arrangements to be considered if that is something the person wishes to happen.

Government amendment 9 is clear that, in independent hospital cases, an approved mental capacity professional must complete that review—that is a duty—and if an independent hospital as a responsible body fails to do that, it would be in clear breach of its responsibilities and could be subject to legal challenge.

With regard to IMCA appointments, the Bill introduces an effective presumption that an IMCA will be appointed by the responsible body if there is not an appropriate person in place, which ensures access to representation. With that in mind, I hope that I have provided reassurances that the system will be robust regarding IMCA appointments and access to AMCPs. I therefore hope that hon. Members are willing to withdraw the amendment.

[Barbara Keeley]

As I said, the amendment seeks to clarify the role of the Court of Protection. It broadens the narrow set of responsibilities in the Bill, giving the court the explicit right to rule on any matter relating to the new liberty protection safeguards. It ensures that the process, as well as the outcome, of authorisations is covered by the court.

Question put, That the amendment be made.

--- Later in debate ---

[Barbara Keeley]

Government amendments 14 and 15 will alter the power to make regulations under the Mental Capacity Act 2005. It is fair to call them drafting amendments to fill an obvious gap in the Bill that would have left the Government with no way to instruct an independent mental capacity advocate in how to represent an appropriate person. It is a sufficiently large omission for me to wonder how the Government failed to notice it earlier, but I understand that things are missed when a job is being rushed, as the Bill certainly is. However, I am glad to see that the Government are remedying the situation. We support the amendments.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.

Schedule 2

Minor and consequential amendments

Amendments made: 14, in schedule 2, page 28, line 22, at end insert—

“3A (1) Section 36 (functions of independent mental capacity advocates) is amended as follows.

(2) In subsection (2)(a) leave out “(“P”) so that P” and insert “or support so that that person”.

(3) In subsection (2)(c) leave out “P’s wishes and feelings” and insert “the wishes and

feelings of the person the advocate has been instructed to represent (“P”)”.

(4) After subsection (2)(d) insert—

“(da) in the case of an advocate instructed to support an appropriate person where paragraph 40 of Schedule AA1 applies, supporting that person to ascertain—

(i) what the wishes and feelings of the cared-for person who that appropriate person represents and supports would be likely to be and the beliefs and values that would be likely to influence the cared-for person;

(ii) what alternative courses of action are available in relation to the cared-for person who that appropriate person represents and supports;”.

3B (1) Section 38 (provision of accommodation by NHS body) is amended as follows.

(2) For subsection (2A) substitute—

“(2A) And this section does not apply if—

(a) an independent mental capacity advocate is appointed under paragraph 39 of Schedule AA1 to represent and support P, and

(b) the arrangements which are authorised or proposed under Schedule AA1 in respect of P include arrangements for P to be accommodated in the hospital or care home referred to in this section.”

(3) In subsection (3), in the opening words, after “arrangements” insert “mentioned in subsection (1)”.

(4) Omit subsection (10).

3C (1) Section 39 (provision of accommodation by local authority) is amended as follows.

(2) For subsection (3A) substitute—

“(3A) And this section does not apply if—

(a) an independent mental capacity advocate is appointed under paragraph 39 of Schedule AA1 to represent and support P, and

(b) the arrangements which are authorised or proposed under Schedule AA1 in respect of P include arrangements for P to be accommodated in the residential accommodation referred to in this section.”

(3) In subsection (4), in the opening words, after “arrangements” insert “mentioned in subsection (1)”.

(4) Omit subsection (7).”

This amends the regulation making power in section 36 of the Mental Capacity Act 2005 to ensure that equivalent provision can be made for advocates who support a cared-for person’s “appropriate person” as for other advocates. It also makes other changes to that Act consequential on amendments made by Schedules 1 and 2 to the Bill.

Amendment 15, in schedule 2, page 28, line 23, at end insert—

“4A In section 40 (exceptions)—

(a) in subsection (1), for “, 39(4) or (5), 39A(3), 39C(3) or 39D(2)” substitute “or 39(4) or (5)”;

(b) omit subsection (2).”—(Caroline Dinenage.)

This amendment is consequential on the amendments made to the Mental Capacity Act 2005 by Schedules 1 and 2 to the Bill

Schedule 2, as amended, agreed to.

Clause 5

Extent, commencement and short title

[Barbara Keeley]

I beg to move amendment 52, in clause 5, page 4, line 16, at end insert—

“(3A) Before the Secretary of State makes any regulations under subsection (3)(b) above, the Secretary of State must publish his or her consideration of the conclusions of the Independent Review of the Mental Health Act relevant to the deprivation of liberty in accordance with the provisions of the Mental Capacity Act 2005, and in particular Schedule AA1 of that Act.”

This amendment ensures that the Government cannot enact the provisions of this Bill until such a date as it has responded to the findings of the Independent Review of the Mental Health Act, specifically the interface between the Mental Health Act and the Mental Capacity Act.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 53, in clause 5, page 4, line 16, at end insert—

“(3A) Before the Secretary of State makes any regulations under subsection (3)(b) above, the Secretary of State must—

(a) publish a full implementation strategy, outlining how local authorities and other responsible bodies will be resourced to process applications under this Act; and

(b) publish an updated Impact Assessment on the impact of the provisions of this Act.”

This amendment ensures that the Government cannot enact the provisions of this Bill until such a date as it has published an updated impact assessment, and set out an implementation strategy for the new system.

Amendment 54, in clause 5, page 4, line 16, at end insert—

“(3A) The Secretary of State may not make any regulations under subsection (3)(b) above, unless—

(a) the Secretary of State has—

(i) consulted on the Code of Practice,

(ii) published a Code of Practice,

(iii) laid that Code of Practice before Parliament, and

(b) that Code of Practice has been approved by a resolution of each House of Parliament.”

This amendment ensures that the Government cannot enact the provisions of this Bill until such a date as it has published a new Code of Practice, which has been approved in a vote in each House of Parliament.

[Barbara Keeley]

The amendments would impose a condition that the Bill should not be implemented until the Government have responded to the findings of the independent review of the Mental Health Act 1983 and dealt specifically with the interface between that Act and the Mental Capacity Act; published an updated impact assessment; and published a new code of practice approved by a vote in each House of Parliament.

I said on Second Reading that

“reform of the Mental Capacity Act 2005 requires methodical planning”.—[Official Report, 18 December 2018; Vol. 651, c. 732.]

The issues that the Committee has discussed over the past two weeks have far-reaching implications for as many as 2 million people who may lack capacity. I am pleased that the tone of our debate has risen to the magnitude of the issue, but I feel that the difference in the depth of contribution, depending on which side of the debate we are on, has been marked. That is important because the debate has been a discussion of the fundamental rights of some of the most vulnerable people in our society. I thank hon. Friends who have given proper scrutiny to the Bill and its impact on the liberty of very vulnerable people. Cared-for people deserve no less.

The Bill remains deeply flawed in a host of areas. It is very disappointing that the Minister has been so stubborn in rejecting all our amendments out of hand. We entered Committee in a spirit of co-operation, but I feel that that has not been matched by the Government. Our amendments were not a Christmas list of things that would be nice to have; they were the minimum reforms needed to make the Bill fit for purpose. The fact that so many remedial amendments were needed shows that the Bill has been put together in anything but a methodical way. The reality is that the Government are pushing ahead at breakneck speed, contrary to all the warnings from a wide group of concerned stakeholders. That is not a proper way to treat an issue of such importance.

A key concern raised by stakeholders relates to the interface between the Mental Health Act and the Mental Capacity Act. The two are deeply intertwined; indeed, the existing interface is so complex that a senior judge has noted:

“When you write a judgment on them, you feel as if you have been in a washing machine and spin dryer”.

The Acts provide different legal frameworks for treating someone without consent and depriving them of their liberty by detaining or confining them in a hospital or care home. The Mental Capacity Act can be used only when a person lacks capacity to consent to their confinement; where it is used, professionals must use deprivation of liberty safeguards to authorise detention and protect a patient’s rights. At the moment, if someone has capacity and objects to their admission or treatment for a mental disorder, the Mental Health Act must be used because they are being compulsorily detained against their will.

Professor Sir Simon Wessely wrote in his final report that the review’s intention was to take the use of the Mental Health Act

“back to the position that it can only be used for people who are obviously objecting to treatment.”

That is key. The Mental Health Act should not be used simply because someone lacks the capacity to consent to their admission. Troublingly, the review found that the Mental Health Act had been used, at least in some cases, because it is easier to use than DoLS. Furthermore, it found a significant number of cases where the Mental Health Act had been used for patients with dementia because of doubts or disputes as to whether the person was objecting to their admission.

While that cannot be confirmed with the data available, the Care Quality Commission observed an increase in the numbers of people over 65 detained under the Mental Health Act. In one older-adult ward that the CQC visited, the increase was from 15% to 85% of residents between 2013-14 and 2016-17.

The confusion as to which statute to use arises from the issue of whether someone without capacity is objecting to their treatment. It means that either the Mental Health Act or the DoLS can be used, depending on where the decision is being taken, and on the cared-for person. Professor Sir Simon noted that it is unhelpful to have two different options for the patient who cannot consent but who is also not objecting. His review argued:

“The patient is facing a lottery between two different legal positions. Whilst at first it may be attractive to use the MHA because, generally, it is considered to have greater safeguards than the MCA, it is also extending the reach of compulsory powers.”

The review recommended that

“the law should be amended so that only the MCA framework”—

specifically the liberty protection safeguards—

“can be used where a person lacks capacity to consent to their admission or treatment for mental disorder and it is clear that they are not objecting.”

We are aware that objection is not always easy to identify—we have had some excellent case study material today around the issue of whether a patient is objecting. An objection can be very difficult to identify, especially in people with cognitive impairments. The Mental Health Act review noted that

“whilst it may be relatively easy to determine whether or not someone is objecting to treatment in a psychiatric hospital, it will not be so easy when the patient is in a general hospital but treatment for a mental disorder is being considered. However... objection is the term that is currently used in both the MHA and MCA, and is a familiar enough concept not just for professionals, but for anyone.”

The review said that that was “the right dividing line” between the Mental Health Act and the Mental Capacity Act. However, it recommended that

“clear guidance will be required as to what objection looks like in practice in both the MHA and MCA...and what practitioners should do where a person who was previously objecting is no longer doing so (and the other way around).”

The Law Society has reinforced that recommendation, pointing out that it is not feasible to expect care home managers to navigate the complex interface between the two pieces of mental health legislation. It is concerned that it would be difficult to reach a conclusion on whether a liberty protection safeguard would be excluded, due to the operation of part 7 of the Bill, for many capable people. We have yet to see any guidance or a full code of practice, which is why we are seeking assurances through this amendment.

More broadly, there seems to be little evidence of any consideration of that interface. That is because the Bill was introduced before the final recommendations of the independent review of the Mental Health Act were published, which happened in December. That is problematic because the Bill replicates the complex interface, which will persist until the Mental Health Act is amended. I am afraid that, given the complex relationship between the two Acts, this is another example of the Government’s careless approach to reform of the legislation.

A whole host of stakeholder organisations—including, most prominently, Liberty—has called for a pause in the Bill process, in order to consider the implications of the Mental Health Act review. The amendment reflects the depth of stakeholder concern and requests that the Bill does not take effect until a response has been given to the Mental Health Act review. The purpose of some form of pause before enactment would be in part to allow time to develop a clear and workable interaction in the Bill, which would need to be understood by those subject to liberty protection safeguards and their families, as well as those who are operating them.

Turning to amendment 53, one concern that stakeholders have raised repeatedly since the Bill completed its passage through the House of Lords is the issue of the Government’s impact assessment. The Government published an impact assessment on the Bill on 29 June 2018, although an equality impact assessment was published only one day before Second Reading in the House of Commons on 18 December.

There are several problems in the overall impact assessment, which sets out a number of cost assumptions for the review of the liberty protection safeguards system. First, many of the calculations appear to be based on those drawn up by the Law Commission and included in its own impact assessment, which accompanied its draft Bill. Of course, the measure we are debating is not that draft Bill. As we have said many times, this is a cut-down version of an earlier Bill.

I will take as one example the total cost of advocacy—a key aspect of the Bill on which we had a good debate this morning. The Government’s impact assessment says advocacy will cost a total of £23.08 million. This appears to be calculated by multiplying the average cost of advocacy per authorisation, £76, by the number of applications in the new system, 304,132. Why has the Government’s impact assessment calculated the average cost of advocacy per authorisation? Under the proposed liberty protection safeguards, many cared-for people will not receive a paid advocate—something on which we urged the Minister to take action this morning.

Would it not be better to calculate the figures according to the actual cost of providing advocacy, based on the total number of advocates that are expected to be used in these cases? Will the Minister say how much that would be? It would surely be a more logical way of calculating this figure and its impact.

Further costs need clarification, including those that depart from the Law Commission’s assertion, such as the cost of administration in the form of desktop reviews. That will cost a total of £47 million and will be borne by local authorities. It is calculated as the number of applications per year under the preferred model—the figure I gave earlier of 304,132 multiplied by the cost of administration of £155.

In calculating that, the Government’s impact assessment took the cost of administration of the current DoLS system from the Law Commission’s impact assessment, but then inexplicably halved the cost to £155 to account for the fact that it would be less intensive than under DoLS at present. Will the Minister explain how the calculation in the impact assessment was arrived at? How have we quantified how much less intensive the system will be? What is the methodology behind that?

Secondly, a number of assertions in the impact assessment are woefully out of date, given the changes made to the Bill in the House of Lords that have made several key cost estimates entirely redundant. For example, the impact assessment assumes no net change in cost to providers of authorisations and administrations. It was assumed that providers would no longer need to complete an existing form of comparable length and complexity to request an assessment or deal with uncertainty and delay as a result of the assessment being provided by an under-resourced system.

The Minister has assured us that in many cases local authorities will carry out authorisations. Why does this not affect the cost of authorisations in the impact assessment? The issue of the resourcing of local authorities has been raised by Labour Members a number of times and is absolutely key.

I could point out further examples of inconsistencies. The cost of approvals by approved mental capacity professionals is assumed to be £10.5 million a year. However, that figure does not take into account the cost of AMCP approvals for cases in independent hospitals in the light of amendments to the Bill made by the Committee. The Government tabled amendments in relation to AMCPs and independent hospitals. Were cost estimates made of this change, and what is the additional cost?

There have been a number of expressions of concern about training. The total cost of doctor and social worker training in the new system is apparently £780,000 or £23 per doctor or social worker. That seems a rather miserly amount. What will the training constitute and how long will it last? The impact assessment calculates the number of doctors and social workers needing training as 10% of the total number of doctors and social workers. How have the Government arrived at that figure?

A key figure is the cost of familiarisation, which is put at £1 million. That is based on care home managers undergoing half a day’s training in this entirely new system. Does the Minister think that is a reasonable cost estimate of the amount of time care home managers need to become literate in a new system of liberty protection safeguards? How was it calculated? Given our debate on the role of the care home manager, how realistic does the Minister think that that figure is? This is absolutely crucial. We have tried by tabling amendments to remove the impact of the role of care home managers. To assume that they will get by with half a day’s training on this new system is very worrying.

--- Later in debate ---

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

We have referred to the code of practice, or the Minister has, on several occasions. We have consistently asked for it to be published. Surely the provisions would be nonsensical without it given we are being referred to it in relation to so many of the provisions we are arguing for. If a code of practice does not exist, where does that leave us in this whole scenario?

[Barbara Keeley]

Indeed. It is salutary to use the following quotation again:

“Whatever the weight given to the Code by section 42 of the Mental Capacity Act 2005, it does not create an obligation as a matter of law to apply to court in every case.”

We have wanted to know what is in the code of practice. We think knowing what is in it is important in deciding our position on what is in the Bill. The Government have declined to put too many aspects in the Bill and have instead favoured the code of practice. When legislation and codes of practice exist together, they are drawn up together and published together. That has not happened in this case and it is the wrong approach. We cannot leave crucial details about how a new system of protections would work, including what resources will be given to it, to a code of practice that has not been drawn up yet, but that is what the Government have done.

On the first day of this Committee the Minister said that she would supply Committee Members with a list of what should be contained in the code of practice, and I thank her for doing so last night. Unfortunately, that does not answer many of our concerns. For instance, we raised concerns about the length of authorisations. It is welcome that there will be guidance in the code of practice, but we still do not know what it will say. Similarly, the Minister’s letter says that the code of practice will contain

“guidance on the necessary separation and operation independence from any independent hospital an AMCP is conducting a review in”.

Again, I am glad that there will be guidance, but we still do not know what it will be. Nothing prohibits any of the relationships we are concerned about and have discussed at length: it simply says that some relationships may be prohibited. That is simply not good enough at this stage. As such, the Minister’s letter does not answer the concern of my hon. Friend the Member for Slough. We remain worried that there will not be proper oversight of this code of practice. Without seeing the full code, we cannot be certain that its contents are sufficient or appropriate.

Overall, the Government’s approach of constantly mentioning the code of practice as being the place where whatever is not in the Bill will be plays fast and loose with the rights and liberties of cared-for people. It further reinforces the mess that the Government have made of the Bill by rushing it through Parliament. Had they done the sensible thing and paused the process, they would have had time to draw up a draft code of practice so that we could consider it alongside the Bill, as is commonly the case. They have given reassurances that many of the concerns can be addressed in subsequent regulations and the code of practice, but that is simply unacceptable to those of us on the Opposition Benches. To that end, we have tabled the amendment to ensure that the Bill cannot be enacted until a code of practice has been published and approved by votes in both Houses, rather than just published.

An important principle that I want to discuss briefly is that legislation can begin in the House of Lords where it is deemed to be non-controversial. That was not the case with the Bill. It is not simply a reproduction of the Law Commission’s draft Bill, which was widely consulted on. As the recent media coverage in places such as The Guardian has shown, the Bill is not without controversy. The code of practice should not be passed through a negative resolution procedure in secondary legislation on the grounds that it is non-controversial. The Minister has indicated that the code of practice will have a real vote in both Houses. Let us see whether that will be a meaningful vote.

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Pritchard.

On amendment 52, a great deal of concern was expressed in the written evidence submitted to the Committee about how the Bill interacts with the Mental Health Act 1983. In fact, that the Government have not thought that through enough was one of the many reasons why it was felt that they should not be rushing to push the Bill through. They have not made any statements even to claim that everything will be fine. Due to the overlapping nature of the two pieces of legislation, we must take additional precautions to ensure that they work together. To do that, we must know what the Government’s response to the independent review is prior to the provisions coming into force.

It is regrettable that neither this Committee nor the Committee in the Lords took any oral evidence. It is all the more important therefore to get some of the written evidence before the Committee so that everyone is aware of what organisations have been saying. Such organisations as Mencap have added their voices to the concern about the complex interface between the Mental Health Act and the Mental Capacity Act. I will quote from what Mencap said at some length not only because it is worth listening to, but because it is right. It said:

“Sir Simon’s review proposes to redraw the dividing line between when a person should be detained under the MHA and when they might instead fall under the MCA…The proposed dividing line is objection, so that if a person without capacity does not object to admission or treatment they should be placed under the MCA…The proposed new dividing line of objection needs thorough and broad consultation, possible pilot testing, and pre-legislative scrutiny—none of which are possible under the timescales set by Government for this Bill…Given that Sir Simon Wessely’s review has only just been published, there is a strong case for looking at the interplay between this Bill and the recommendations around the MHA. To not do so, risks creating legislation which fits together poorly.”

Does the Minister disagree with Mencap’s assessment and concerns about the interface between the two Acts? Does she accept that much needs to be done before the Bill’s provisions are brought to bear on our vulnerable people?

--- Later in debate ---

[Caroline Dinenage]

I thank hon. Members for initiating this discussion. Amendment 52 would delay the introduction of liberty protection safeguards until the Department has fully responded to the report of the independent review into the Mental Health Act.

The hon. Member for Worsley and Eccles South said that I was stubborn. I am sure that a number of people, not least my husband, would agree with that sentiment. I think she would agree that I have committed to looking again. A number of issues have been raised during the Bill’s passage through Committee, not least ensuring that people get information as early as possible—I agree with her on that—and how we can maximise protection for those being cared for in an independent hospital. I am sure she would agree that I would be being equally stubborn if I were to take the amendments on board without giving them careful and due consideration, and without checking the legal ramifications and making sure that we are offering all the protections that we need to. I am sure that the hon. Lady, other Opposition Members and stakeholders will forgive me for making sure that we consider everything thoroughly and properly.

On amendment 52, I welcome Sir Simon Wessely’s landmark report and I am sure that it will very much set the direction for improving the way the Mental Health Act works for thousands of vulnerable people. The Government have already committed to bringing forth mental health legislation when parliamentary time allows, taking that very important report into account. We have already accepted two important recommendations, which will give service users more choice and control, but it will take time for us to consider the rest of the recommendations, of which there are 152. We will respond to the remaining recommendations in due course, but Sir Simon said that the Government would need to consider the “practical implications” of the interface recommendations, and that it would be “problematic” to introduce those recommendations in this Bill.

Hon. Members will be aware that the reforms in the Bill are desperately needed—I cannot repeat often enough that we cannot wait any longer to improve the situation of the backlog of more than 125,000 people who have been deprived of their liberty without authorisation. As much as there are concerns among stakeholders—I have met a number of stakeholders and we will continue to consult them, to take their views on board and to make sure that we work with them at every step of the way when it comes to the code of practice—they also share our concern that 125,000 people have been deprived of their liberty without authorisation, that their loved ones have been deprived of peace of mind and that their care providers have been deprived of legal protection.

[Barbara Keeley]

I have two points to make to the Minister. I remind hon. Members that we have heard examples of authorities—they include mine, that of my hon. Friend the Member for Stockton North and some London boroughs—where there is no backlog and where the local authorities have dedicated enough resource to the situation. Despite the number of DoLS applications increasing since the Cheshire West case, they are dealing with it. Let us not talk in Committee as if it is the same everywhere; it is not. Some local authorities are coping perfectly well with the backlog, and there is no pressure in those local authorities to change to a worse system that will cause a problem.

Secondly, I asked the Minister about the cost of dealing with the backlog, and I hope she will touch on that. She has raised the backlog again and again as a reason for rushing the Bill through. It is not a reason for rushing through a new piece of legislation that is this important. I hope that she will come on to say exactly how the backlog is to be dealt with and what resources will be available to deal with it, because that is an important issue. If the backlog is the reason for doing things this way, how is the backlog going to be dealt with?

[Caroline Dinenage]

Yes, of course I will go on to talk about the transition between the two systems and the backlog. I also say gently to the hon. Lady that she and others may be in the fortunate position where their local authorities have got to the stage where they do not have a backlog—in many cases, that is due to a political decision to prioritise it—but I think all those local authorities would recognise that there is duplication and cost in the system that they could do without. They have had to take very tough decisions to prioritise this issue over other things that they could be spending their money on, when money is tight. I do not think the attitude of, “I’m alright, Jack, there’s no backlog in my constituency,” is a very good one, when 125,000 other people are waiting.

--- Later in debate ---

[The Chair]

Before I call the shadow Minister, the Minister was perfectly in order to say Lord O’Shaughnessy and the next time she wants to, there is a variety of options for referring to the other place. That is perfectly in order.

[Barbara Keeley]

I only realised recently that we have changed the way that we refer to the House of Lords. We do not have to keep saying “the other place”. We can say the House of Lords and use names.

[The Chair]

We have modernised, finally.

[Barbara Keeley]

Going back to amendment 52, the process of bringing the Bill forward has been disappointing. It has been rushed and stakeholders feel that their views have not been taken on board. How do we know that that is the case? A letter was published in The Times today under the headline “Mental Capacity Bill Attracts Criticism” from a group of organisations including Liberty, Mind, Alzheimer’s Society, the National Autistic Society, POhWER—to which we have referred a number of times in our debates—the British Institute of Human Rights, Sense, Compassion in Dying, YoungMinds, Learning Disability England, Voluntary Organisations Disability Group and Headway—a very comprehensive list of organisations. They say:

“It is with dismay that we note the lack of improvement within the Mental Capacity (Amendment) Bill. The bill would replace existing deprivation of liberty safeguards with an entirely unfit new system of protection. To avoid the risk of exploitation and abuse it is vital that there are robust safeguards in place.

Alarmingly, the bill proposes to triple the time that people can be deprived of their liberty without review…while not doing enough to guarantee that all patients have access to independent and impartial advocates.”

This is what we have been debating.

The letter continues:

“The bill also creates a worrying conflict of interest for care home managers, giving them a greater role in the assessment process. Many vulnerable people will find it hard to express their concerns to a person providing them with care. The result is a rushed, incomplete and unworkable bill that will replace one dysfunctional system with another”.

That encapsulates everything that we have been trying to say.

[Alex Norris (Nottingham North) (Lab/Co-op)]

My hon. Friend lists a range of the most eminent and significant organisations in the field that we are discussing. They use words such as “dismay”, “rushed” and inadequate. Should that not be a big, flashing red light for hon. Members to say that perhaps this course of action is not the right one to be taking?

[Barbara Keeley]

Absolutely, I agree with my hon. Friend. On Second Reading, I said that the Bill should be paused, while we wait for the Government’s response to the Mental Health Act review. Every time I mention this, there is a groan from the Government Benches. We should not be rushing these complex areas. Even senior judges find the interface between the two pieces of legislation very difficult. We should not be introducing legislation that will be out of date almost immediately.

The impact assessment was produced over six months ago and it is now out of date. We have no idea how much the proposals in the Bill will cost or how much they will help to reduce the backlog of applications. We are being asked to debate and vote on the Bill now, and it is difficult with a six month old, out of date impact assessment. Even in the original impact assessment, it was unclear where some of the costs came from. The Government have not adequately explained the cost of their proposals. In the last sitting, I asked a series of questions about implementation. I would be grateful if the Minister could write to me with responses to those important questions.

We have heard constantly in our debates about how things will be included in the code of practice. On the first day of Committee, the Minister said that she would supply an outline of what it will contain. We only saw that document last night. An outline of what areas will be covered does not give us the full idea of what the code will contain. To some extent, it is better than nothing, but we have no idea of the detail. We cannot be asked to agree to a new system when so much of the detail is yet to be published. We need Parliament to approve the code of practice, rather than it being taken through by a method that is near impossible to stop. If there are problems with the code of practice, we should be examining the Bill and the code of practice side by side. We will press the amendment to the vote.

Question put, That the amendment be made.

--- Later in debate ---

[Caroline Dinenage]

Parliamentary procedure requires a privilege amendment to be included in a Bill that starts in the House of Lords and has financial implications. It is then removed in the House of Commons as a standard procedure.

Clause 5 sets out the territorial extent of the Bill, which is England and Wales. This clause sets out that clause 4, except subsection 6, and clause 5 come into effect immediately on the Bill being passed. The rest of the Bill comes into force on a day nominated by the Secretary of State. Different days may be appointed for different purposes or different areas of the Bill. Clause 5 also gives the Secretary of State a power to make transitional arrangements by regulations. I recommend the clause to the Committee.

[Barbara Keeley]

Government amendment 1 is, of course, entirely uncontroversial. We cannot implement a new system until the Government are authorised to pay for it. I have a question for the Minister, following our conversation about the financial impact of the Bill: in the light of the changes that have been made to the Bill in the past few months, will she give us an estimate of how much expenditure we are being asked to agree?

We will not oppose the amendment, but I feel that members of the Committee should have an idea of what they are agreeing. We definitely need to have the updated impact assessment as soon as possible and certainly before Report stage. It is not acceptable to have an impact assessment that is six months out of date. We want to know how much the new system will cost before the Bill concludes its passage through the House. Only if that happens will we be confident of the amount of expenditure agreed to.

On clause 5 more generally, I am disappointed that the Minister has opposed all our amendments. In particular, I remain concerned about the code of practice, when it is finally produced. I counsel her against trying to rush it through the House, with little opportunity for Members to provide feedback. We have tried valiantly on this Bill Committee to bring up issues of great importance in the Bill, and they need to be listened to.

The Government have said that the new system will not come into force until the code of practice has been published, so there is no real reason not to agree to have the code of practice approved by each House before the Bill is enacted.

I hope the Minister will reflect carefully on what has been said in our debate on the Bill. As is evidenced by the letter from all those organisations in The Times today, the Bill contains significant flaws. It would not be unreasonable for some of our concerns to be addressed before the Government even try to bring in the new system. With that, we will not oppose clause 5 stand part, but we hope the Minister will use the powers in the clause to ensure that the Government get the system right before they roll it out.

Amendment 1 agreed to.

Clause 5, as amended, ordered to stand part of the Bill.

New Clause 1

Meaning of deprivation of liberty

“(1) After section 4 of the Mental Capacity Act 2005 insert—

‘4ZA Meaning of deprivation of liberty

(1) In this Act, references to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the Human Rights Convention and, accordingly, a person is not deprived of liberty in any of the circumstances described in subsections (2) to (4).

(2) A person is not deprived of liberty in a particular place if the person is free to leave that place permanently.

(3) A person is not deprived of liberty in a particular place if—

(a) the person is not subject to continuous supervision, and

(b) the person is free to leave the place temporarily (even if subject to supervision while outside that place).

(4) A person is not deprived of liberty if—

(a) the arrangements alleged to give rise to the deprivation of liberty are put in place in order to give medical treatment for a physical illness or injury, and

(b) the same (or materially the same) arrangements would be put in place for any person receiving that treatment.

(5) A person is free to leave a particular place for the purposes of subsections (2) and (3) even if the person is unable to leave that place provided that if the person expressed a wish to leave the person would be enabled to do so.’

(2) In section 64(5) of that Act (interpretation) for the words from ‘same’ to the end substitute ‘meaning given by section 4ZA.’”—(Caroline Dinenage.)

This New Clause provides the meaning of “deprivation of liberty” for the purposes of the Mental Capacity Act 2005.

Brought up, and read the First time.

[Caroline Dinenage]

I beg to move, That the clause be read a Second time.

The new clause provides statutory clarification in relation to the meaning of deprivation of liberty for the purposes of the Mental Capacity Act. The Mental Capacity Act defines a deprivation of liberty by reference to article 5 of the European convention on human rights. The proposed new clause adopts the same fundamental approach, by anchoring the meaning of deprivation of liberty to article 5.

As Committee members will be aware, the 2014 Supreme Court Cheshire West case changed what was commonly thought of as a deprivation of liberty, resulting in an eighteenfold increase in people entering the DoLS system, and applications are still growing year on year. That resulted in a significant rise in resource use for local authorities and the care sector, resulting in a backlog of over 125,000 people waiting for their applications to be authorised, as I have mentioned on numerous occasions during our debates.

The Law Commission was against a definition of a deprivation of liberty, but noble peers, stakeholders and the Joint Committee on Human Rights have all called for a definition to be included in the Bill, to bring proportionality to this situation and ensure that liberty protection safeguards are appropriately applied. The new clause does that by bringing clarity to prescribing circumstances, or exceptions, that are not a deprivation of liberty. If a person meets the conditions in one of its subsections, they are not being deprived of their liberty and so do not fall under the liberty protection safeguards. These subsections are drawn from case law.

The Department has decided not to include a full definition of a deprivation of liberty because primary legislation needs to be extremely clear and precise, and case law is constantly evolving. That makes it difficult to draft a definition that will remain sufficiently precise, given that the definition may change as case law develops. For that reason, we must be extremely wary of the unintended consequences of including a full definition in relation to such a complex matter. By taking this exclusionary approach, we will enable the definition to remain valid as new cases come forward, as there should be sufficient flexibility within the clause for case law to develop in parallel.

An important point to make Committee members aware of is that the clause would be accompanied by detailed statutory guidance and case studies within the code of practice. Here we would set out scenarios as workable examples of the subsections, to assist practitioners as they determine whether someone is being deprived of their liberty. I would like to assure colleagues that these supporting materials will give the detail and depth required for those in the sector, and local authorities, to identify a deprivation of liberty. We are working with stakeholders already to gather these scenarios in a wide range of settings, including care homes, private domestic settings and supported living. The clause would apply to 16 and 17-year-olds, as the rest of the Bill does, but we recognise that the circumstances of this vulnerable group of people can be different, and that will also be reflected in the guidance.

The inclusion of a clause in relation to consent has been carefully considered, but one has not been included. That is for several reasons. First, to give valid consent, an individual would need capacity, as set out by the Mental Capacity Act. If they have capacity and are consenting to the arrangements, then that automatically cannot be a deprivation of liberty. Secondly, there is not enough in case law to support the validity of de facto consent—that is, consent given by someone without capacity—and I am concerned that it would not be compatible with the Human Rights Act 1998. Above all, we must protect the rights of cared-for people.

The new clause will clarify issues post Cheshire West, it will determine when the LPS should and should not apply, and it will support those planning care in considering the least restrictive options to enable greater freedom for those in their care.

[Barbara Keeley]

Over the last few sessions, we have talked at great length about when it is appropriate to deprive somebody of their liberty and how can we prevent this being done inappropriately. We have talked about the safeguards that could be put in place to protect the cared-for person. I regret to say that, as we speak now, the Bill contains fewer and weaker safeguards than the Opposition would have liked.

However, we are not quite finished yet. We have one substantial amendment left to discuss. There is one question that anyone watching these proceedings will no doubt have been asking themselves: what precisely do we mean when we talk about depriving somebody of their liberty? In practice, what does that legal term mean? As the Minister said, the term itself comes from the European convention on human rights. Article 5 says:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases in accordance with a procedure prescribed by law”.

One of those cases is that of

“the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.”

It is the provision relating to “persons of unsound mind” that we are discussing in this Bill. I am glad to say that the Bill itself no longer uses the somewhat stigmatising phrase “unsound mind” and instead talks of having a “mental disorder”. That may not be to the letter of article 5, but it is preferable.

As always with the European convention, the terms used do not give us an immediate definition of what counts as deprivation of liberty. That task is frequently left to the courts. In 2014 the Supreme Court ruling in the case of Cheshire West and Chester Council v. P drew a far broader definition of deprivation of liberty than had previously applied. We have referred to that case on a number of occasions during the Committee. This broadening led to the number of applications for deprivation of liberty safeguards increasing by a factor of 17, rising from around 13,000 in 2013-14 to over 225,000 in 2017-18. That is a major reason for the backlog of applications discussed in this Committee.

Cheshire West and Chester Council v. P set out an acid test that should be followed when deciding if somebody is deprived of their liberty. Unfortunately, that acid test is not as clearcut as might have been desired. In her judgment, Lady Hale referred to “complete supervision and control” and the person being “not free to leave”. For Lord Neuberger, the crucial conditions were

“continuous supervision and control and lack of freedom to leave”,

as well as the

“area and period of confinement”.

Lord Kerr went further, and focused on the duration for which a person is restricted.

When the Government set out their plans to reform the deprivation of liberty safeguards, there were calls for them to include a statutory definition of deprivation of liberty. As the Minister said, there were many calls in the House of Lords. A definition would provide practitioners and cared-for people with greater surety as to whether deprivation of liberty was taking place.

I am glad the Government have listened in this one case, but there are issues with the definition we have, and some matters on which I hope the Minister can provide us with clarity. There are two strands of objection to the Government’s proposed definition, both of which have been strongly put to me by stakeholders.

The first major objection is that it is not clear how the proposed definition would interact with case law. The Minister has referred to this, but we need to be clearer. Not only is there the case of Cheshire West and Chester Council v. P, but there are a number of judgments handed down by the European Court of Human Rights. My question to the Minister is, is this deliberate or accidental? If it is deliberate, why does she feel that a brief definition—on which there has not been wide consultation—is better placed to define deprivation of liberty than an extensive body of case law? We had a meeting with stakeholders, and half the people in the room had not seen the definition at that point—it had not been circulated. If the change is accidental, then I look forward to hearing how the Government will rectify the situation.

One of the immediately apparent issues in the definition is proposed new subsection (3)(b). This holds that a person is not deprived of their liberty if

“the person is free to leave the place temporarily”.

In the case of Cheshire West, MIG, MEG and P frequently left their accommodation to go on outings with support, yet the Supreme Court held that they were still deprived of their liberty. Given this, will the Minister confirm whether her definition does not properly describe the case law, or is she seeking to overrule the Supreme Court through this new clause?

It is not just the Supreme Court that has disagreed with this principle. One of the landmark cases heard by the European Court of Human Rights in relation to mental capacity is Stanev v. Bulgaria. Mr Stanev was a man with learning disabilities who lived in an isolated care home in rural Bulgaria. He was permitted to go on trips and outings on his own. However, to do so he had to ask permission from the care home where he was resident. When he tried to leave for longer than was expected, the care home took steps to force him to return. The European Court of Human Rights was clear that that amounted to a deprivation of his liberty.

Other cases have been raised in evidence to this Committee that show how temporary outings from a setting do not mean that someone has not been deprived of their liberty. In both DD v. Lithuania and K v. Poland, the individuals were allowed outside the residential establishment, but only with permission, and under the control and supervision, of the management of the facility.

It is clear that both the Supreme Court of the United Kingdom and the European Court of Human Rights feel that being able to leave temporarily is not a guarantee that somebody is not deprived of their liberty. Yet the Government are proposing the opposite. I cannot understand how they think this definition will withstand challenge in the courts.

I also raise a concern about the phrase “continuous supervision”, as used in proposed new subsection (3)(a). In Cheshire West and Chester Council v. P, both Lady Hale and Lord Neuberger referred to continuous supervision and control. That is a crucial difference.

I hope the Minister can provide clarity. Is her amendment failing to describe adequately the case law, or is it seeking to overrule the judgment handed down by the Supreme Court? That would create a number of issues. The first, and most serious, is that the new liberty protection safeguards will fail to protect all the people who need them. An ambiguous definition of deprivation of liberty risks seeing people excluded when they should not be.

The second issue is more mundane. If I can see a number of tensions between case law and the Government proposal, I am sure there will be numerous lawyers who specialise in this topic who will have done the same. That will result in further costly litigation in future. I am sure the Government did not intend to create a hefty legal bill for responsible bodies, but I am afraid that may well be what the Bill does.

It has been suggested to me that one reason the definition is so tightly drawn is to reduce the number of people who are subject to the liberty protection safeguards. I feel sure that was not the Minister’s intention, but when a statutory definition seeks to define deprivation of liberty more tightly than the courts do, she will understand that people draw their own conclusions.

We must be careful that we do not resolve the issue in front of us by sweeping it under the carpet. Reducing the backlog should not be achieved by redefining which groups of people are covered. That runs the risk of people who need the protections of a liberty protection safeguard being denied them.

The second major objection to this definition is that it is not sufficiently clear as to be useful. I have seen examples that I think illustrate that particularly well, and I will share some of them now. I should stress that, although they are based on real cases and on the views of care home managers on how they interact with the proposed definition, some details have been changed to protect the cared-for people. I would like to thank Care England—the representative body for care homes—for assisting with the preparation of these examples.

The first case is that of Jimmy, who lives with an alcohol-related dementia in a specialist care home that allows no access to alcohol. He was admitted having had an extremely squalid lifestyle and was found to have advanced cirrhosis of the liver. If he drinks alcohol, it will kill him very rapidly and unpleasantly. He lacks capacity to consent to remain and was admitted from hospital after treatment for a broken hip, which he could not explain.

Jimmy has been in the care home for five years, successfully abstinent, except for one episode when he was permitted to go out alone. When he goes out, it is with staff, so he cannot drink. He says he “quite likes” the care home and the food and that the staff are kind, but he is obsessed with living alone in a flat in the community, and is open about the fact that that is only so he could drink.

The local authority is clear that it could not fund the necessary staffing to prevent him from drinking in the community and provide the help he needs with daily living. So is Jimmy deprived of liberty? It would certainly seem so. He wants to move somewhere else, but that request has been denied. It might be in his best interests to remain, but it is not his preference. Under the Government’s amendment, he would not be seen as deprived of his liberty. He is not subject to continuous supervision while in the care home, and he is able to go on outings with supervision. Either of those would exclude him from the Government’s proposed definition.

In reality, this case is based on that of DM in 2017. DM was enabled by article 5 to challenge the authorisation of a deprivation of liberty safeguard. The case went to court, where a judge eventually ruled that the least worst option was for him to stay in the care home for the duration of the authorisation. Both the judge in DM’s case and the Official Solicitor were clear that DM was deprived of his liberty. Which is to take precedence—the Government’s definition or previous decisions of the courts, as in this case? If we pass this definition, will DM suddenly cease to be deprived of his liberty?

A second case is that of Sara, who is 21 and has a learning disability. She was moved from her family home to a care home following a safeguarding alert caused by bruising that was thought to be the result of physical abuse by a family member, but evidence swiftly emerged that she had been seen to punch herself when arguing with another young person on an outing. The local authority refused to return her to the family home, stating that she was settled in the care home and showed no signs of wanting to return. Her parents visit her and take her out with her siblings. Within the care home she has privacy in her bedroom, so she is not regarded as being under continuous supervision. Sara has no verbal communication, but carers and others noted that when her visitors were leaving she would take her clothes off their hangers, put them in a bag and then drag the bag to the door while holding the hand of the visitor.

According to the Government’s proposal, Sara is not deprived of her liberty; she is not subject to continuous supervision and she is allowed to go on outings. Furthermore, the local authority says that she is happy in the care home and has not expressed any desire to leave. On this basis, the local authority says, there is no deprivation of liberty. It is clear that if Sara wanted to move, she would be enabled to. Because Sara is not seen as being deprived of her liberty under the proposed definition, she and her parents would be powerless to enable her to access the rights that article 5 would give her.

In that case, the disproportionate response to the original bruising, which had in fact been satisfactorily explained, and the nature of Sara’s objection to being forced to live away from her home being non-verbal were only noted as part of the investigation by the Court of Protection. This happened only when Sara’s representative challenged a deprivation of liberty safeguard authorisation on her behalf. If she was not recognised as being deprived of her liberty, this could not happen. The court was appalled that her unhappiness and wish to be at home were not recognised.

The purpose of any definition is to provide absolute clarity to practitioners and, perhaps more importantly, cared-for people and their families. It exists to tell people when they are deprived of their liberty and thus have certain rights that can be engaged. As such, it is of little use if people cannot use it to make such a determination. At the moment, the definition does not serve this purpose. Had P read this definition, they would almost certainly have concluded that they were not deprived of their liberty, and their case would never have gone to court.

I know that the Government have said that their code of practice will contain far more detail on how this definition will be applied. Once again, the Minister is asking us to accept assurances that everything will be fine, when we have no evidence to suggest that this will be the case. A detailed code of practice would not in and of itself prevent this definition from being ruled incompatible with the European convention on human rights. The law is what it says, and a code of practice exists only to provide guidance on its interpretation.

I hope that I have explained why we have deep reservations about the definition that the Government have put forward. We have not tabled any amendments that seek to alter the Government’s proposed definition of deprivation of liberty, but let me be clear that that is not because we feel that it is fit for purpose. This is an issue of immense importance and complexity and should be treated as such. The reality is that the Government have done no such thing. Their definition was introduced late on and stakeholders had very little time to make their views known.

This is a fundamental pillar of our human rights system. A definition that attempts to distil and seemingly alter a huge body of case law is not a straightforward insertion and it cannot be rushed through. If we get this wrong, we will be letting down tens of thousands, if not hundreds of thousands, of people who are deprived of their liberty and need access to the safeguards of the LPS system.

Our view on what should happen now is clear. The Government should withdraw their new clause, put their proposed definition out to a wide public consultation and listen to what experts have to say. Once they have done that and produced a definition that carries broad support, they should introduce it on Report. If they remain determined to rush the Bill through, they should introduce it at a later date. If they do not do so, they risk creating a legal mess.

On Second Reading I said that nobody wants to create a Bill that requires amendment some months or years down the line. This new clause would do just that. It is pitted against decisions of the Supreme Court and the European Court of Human Rights.

[Caroline Dinenage]

Is the hon. Lady suggesting that there should not be a definition?

[Barbara Keeley]

No, I welcomed the fact that the Government were trying to put in a definition, but this definition is not fit for purpose. The problem is that, as with everything else in the Bill, it was rushed. At the meeting I had with stakeholders not very many weeks ago, almost everyone in the room had fears about it. Many of them had not even seen it. The process has been wrong.

I made it clear to the Minister what I think the Government should do. They should withdraw new clause 1 and not put it to a vote. They should put the definition out to consultation, and not introduce it again until those involved with the definition are happy with it. Then we can be clear. Pitting a Government decision against decisions of the Supreme Court and the European Court of Human Rights is not wise; it is a knotty problem. I am not a lawyer myself, but I have listened enough to people who are experts in this area to know that it is a problem.

Perhaps I can encapsulate the problem in one final question to the Minister. On the front of the Bill the Secretary of State certifies that he feels it is compatible with the European convention on human rights. Given some of the points that I have just raised about the definition, is the Minister confident that the Bill would still be compatible if we agreed to the new clause?

[Alex Norris]

Liberty, Mind, the Alzheimer’s Society, the National Autistic Society, POhWER, Parkinson’s UK, the British Institute of Human Rights, Sense, Compassion in Dying, YoungMinds, Learning Disability England and Headway all say that this is “rushed, incomplete and unworkable”, and that in general they feel the whole exercise is entirely unfit. It is well within the prerogative of the Government of the day to say that they are right and that all those organisations are wrong, but it is, dare I say it, quite a brave thing to do. For the benefit of the Committee, and of everybody else who has taken an interest in these proceedings, it might be worth explaining why the Government feel that they are right and the Bill is fit for purpose, and that the new clause, which very much puts the cherry on top of the Bill, is worth standing part of it.

--- Later in debate ---

[Barbara Keeley]

I constantly get the feeling when I listen to the Minister that she is describing a happy situation that, unfortunately, the evidence suggests does not exist. The notion that she is co-producing the definition with stakeholders is not what stakeholders say. My hon. Friend the Member for Nottingham North and I read out the list of organisations that object to the Bill and the severe comments they have made about it. If the Minister were in fact co-producing parts of the Bill and the definition with stakeholders, they would not be writing to The Times describing the Bill in that way.

[Caroline Dinenage]

We are talking about the definition. I am not saying we have co-produced it with stakeholders, but we have given a copy of it to stakeholders, asked for their feedback and asked them to supply case studies. Some have welcomed it and see it as absolutely necessary to provide the clarity we are looking for.

The Law Commission report shows that overly cautious application of DoLS is unnecessary, but we want an effective system with access to safeguards, as required by article 5 rights. The hon. Lady raised a number of case studies, including Stanev v. Bulgaria, in which Mr Stanev needed permission to leave. We will make it very clear in the code that a person is not free to leave if they require approval or permission. That is also clarified in subsection (5) of proposed new section 4ZA of the Mental Capacity Act.

We intend to set out in the statutory guidance, by reference to case studies, how that should be interpreted. For example, we understand that in care homes, cared-for people are often left unsupervised for many hours of the day yet may still be regarded as being deprived of their liberty. We do not intend to exclude those people without discretion. We will set out in the guidance the circumstances in which someone should be regarded as not being under constant supervision, such as how frequently they are checked and the monitoring that is present. We are also conscious that “continuous supervision” means different things in different settings, and I welcome the contribution of my hon. Friends towards that.

There is also a sliding scale of situations we expect to be excluded by subsection (3)(b) of proposed new section 4ZA. We will expand on that in the guidance in consultation with stakeholders. For example, the place must be one to which the person has a wish to go rather than one solely of staff’s choosing. It is worth pointing out that both limbs of subsection (3) must be met for a person to be excluded by it. For example, if a person is not continually supervised in a care home but is not free to leave temporarily, the subsection does not apply.

Although we aim to bring clarity, we recognise that every case is different. I hope I have articulated that this will be a person-centric system. We do not want a one-size-fits-all approach, which is the problem with the system that we have now. That approach is no longer fit for purpose for such a vastly different and vulnerable group of individuals. With that in mind, I ask that new clause 1 stand part.

[Barbara Keeley]

I gave some good examples of cases where the Government’s definition clashes with case law, which is why I think it will run into problems very soon. It is still the Opposition’s view that the Government should withdraw the new clause. As we said, they should put the proposed definition out to wide public consultation—passing it round a few individual stakeholders is not the way to do it—and listen to what experts say. Once they have done that and produced a definition that carries broad support, which they do not have at the moment, they should introduce it on Report, which needs time. If the Government are thinking of rushing to Report stage while so much is left in an unsatisfactory and poor situation—if they remain determined to hurry the Bill through—it should be introduced at a later date. The Opposition’s view is that the Government risk creating a legal mess should they not do that.

Question put, That the clause be read a Second time.

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Question proposed, That the Chair do report the Bill, as amended, to the House.

[Barbara Keeley]

May I thank you, Mr Pritchard, and Mr Austin? In our first sitting, we not only had a horrible sauna of a room, but a number of us had not sat on a Bill Committee or, in my case, had not done so recently. There has been excellent chairing, supported very ably by the Clerk who we have had working with us. Everyone has done a wonderful job. The Hansard Reporters always do a wonderful job of making sense of what we churn out, and we have kept the Doorkeepers busy with many votes.

I said at the outset that we would proceed in the spirit of co-operation, which I think we have. The Opposition have treated this subject with respect for the required depth of scrutiny. It is only a short Bill and we have scrutinised it well, which is nothing less than cared-for people, who will be affected by it, deserve.

Given that they have worked very hard, I offer my sincere thanks to my hon. Friends, who have contributed so thoughtfully and carefully to this important debate. My hon. Friend the Member for Birmingham, Selly Oak has been assiduous at getting to the heart of the Bill. My hon. Friend the Member for Stockton North brought his critical eye—he tells us it comes from being a journalist—to this very complex Bill, and he explored the issues with great humanity.

My hon. Friend the Member for Nottingham North brought to our proceedings his immense knowledge of DoLS from his time as a councillor, and his other insights have been very useful. My hon. Friend the Member for Stockton South, who is not in his place at the moment, brought valuable insights from the perspective of a medical practitioner—that is always useful to have, as medical practitioners will have a role in the proposed system. My hon. Friend the Member for Slough made a number of interventions and gave a very good speech this morning, holding the Government to account in his debut on a Bill Committee. Our hard-working and wonderful Whip, my hon. Friend the Member for Bristol West, worked with the Government Whip to ensure that proceedings ran smoothly. My hon. Friend the Member for Dewsbury made some excellent contributions in her first appearance on a Bill Committee.

I thank the many stakeholders and practitioners who have written to us to express their concerns about the Bill, and who have worked with us. I also thank everybody who submitted evidence to the Committee—it must have been a real rush for people to get that evidence in. They are too many to name, but I will mention a few. Lucy Series has done sterling work in unpicking the legal ramifications of the Bill. POhWER and VoiceAbility provided many of the excellent case studies that have been used to demonstrate the importance of advocacy in caring and to highlight some of the issues facing the Government’s proposed definition of deprivation of liberty, which we just discussed.

I hope the Government will reflect on what we have discussed. Many areas of the Bill are still deficient, and the concerns of stakeholders have not been addressed. We will continue to work in a constructive spirit in order to build a system that protects the liberties of all cared-for people in our country.

[The Chair]

Before I put the Question, I thank the hon. Lady for her thanks. It is always wise to thank the Government and Opposition Whips. I had not noticed that it was the first time on a Committee for so many colleagues. It has been an absolute delight, because everybody has conducted the business so professionally. I put on record my thanks to my co-Chairman, the hon. Member for Dudley North—Dudley is a marvellous place and very close to my constituency—and to Adam, who has done a sterling job as the Clerk, keeping us on the straight and narrow. I join the hon. Lady in thanking the Doorkeepers, who do a great job—particularly opening the windows in the sauna that we had for a few days. I thank the Hansard Reporters and officials for their excellent work. Lastly, I thank all of you for being so well behaved. You are the best Bill Committee that I have served on, and I thank you very much indeed.

Question put and agreed to.

Bill, as amended, accordingly to be reported.

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

Baroness Keeley Excerpts

Tuesday 22nd January 2019 Public Bill Committees

Division 17

Question accordingly negatived.

Ayes: 6

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Labour: 6

Noes: 9

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Conservative: 9

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

I beg to move amendment 45, in schedule 1, page 19, line 34, at end insert—

“(2) In varying an authorisation, the responsible body may also consider—

(a) whether the cared-for person’s capacity is likely to fluctuate, and

(b) whether any restrictions imposed are necessary to prevent harm to the cared-for person and proportionate to the likelihood of that harm, and are likely to continue to be necessary for the duration of the authorisation.”

This amendment enhances safeguards around the variation of conditions by the responsible body. It indicates that the responsible body should consider whether the person’s capacity may fluctuate, and whether the restrictions which are proposed should be in place for the duration of the authorisation.

It is a pleasure to speak under your chairmanship again, Mr Austin. At least we do not have a boiling hot room to contend with.

The amendment deals with the way fluctuating conditions are addressed under the liberty protection safeguards system. The concept of fluctuating capacity is not expressly addressed or provided for in the Mental Capacity Act 2005, including the deprivation of liberty safeguards. The Mental Capacity Act code of practice recognises the steps that should be taken to support a person with fluctuating capacity to take their own decisions—choosing the time of day at which they are most alert, for instance. However, it does not indicate what should happen where an assessment is required of a person’s ability to make decisions on an ongoing basis about a particular matter. As such, the Law Commission did not consult on fluctuating capacity. However, when it launched its consultation, it received a large number of submissions on the topic.

It is clear that individuals with fluctuating capacity represent a major challenge under the current system. That is unsurprising, as capacity to consent is not a black and white issue. Everyone has varying capacity from day to day and from issue to issue. It is not reasonable to categorise people as entirely having or lacking capacity in all cases. My hon. Friend the Member for Dewsbury gave an example of how that can go wrong in practice.

Our amendment 32 would have required an assessment to be made of whether a cared-for person’s capacity was likely to fluctuate. That would have laid the ground for our amendment 45, which would allow the responsible body to take account of fluctuating conditions in varying an authorisation.

Under the current system, a deprivation of liberty safeguard must be terminated if a person regains the capacity to consent; the Mental Capacity Act makes no mention of what should happen if a person is likely to regain capacity only for a short period. That is not changed in the Bill. Under paragraph 26 of new schedule AA1, the authorisation will end if

“the responsible body believes or ought reasonably to suspect that any of the authorisation conditions are not met.”

That includes the person regaining capacity for any length of time.

There are two ways the issue can be dealt with. The first is that a new authorisation will have to be sought every time someone regains and then loses capacity, but that would dramatically increase the number of applications made. It would place more pressure on approved mental capacity professionals and on the cared-for person, who would be undergoing regular identical assessments. I understand that one aim of the Bill, as we have discussed, is to reduce the backlog of applications for deprivation of liberty. Requiring regular repeated applications for the same individual would not help to achieve that.

The second outcome is that the liberty protection safeguards will not be used properly. For example, in the case of older people with dementia whose condition fluctuates, such assessment might need to be hourly. It would simply not be practical to reapply for an authorisation every time they lost the capacity to consent. A person cannot give advance consent to be deprived of their liberty, so either they will be inappropriately deprived of their liberty through a blanket application or they will not receive the safeguards in the system because no application will ever be made. I reiterate that it does not matter, under the current system, whether a person is perfectly happy with arrangements when they have capacity. The moment that they no longer have capacity to consent, that consent is invalid. They cannot consent to any future arrangements.

Both outcomes leave responsible bodies potentially liable for breaching people’s rights under article 5 of the European convention on human rights. The Law Commission report states:

“it is not acceptable for the legislative framework simply to ignore fluctuating capacity. That exposes health and social care professionals and those authorising a deprivation of liberty to significant legal risk. It is therefore vital that the Liberty Protection Safeguards provide for fluctuating capacity expressly.”

However, the Bill the Government have brought forward makes no provision for fluctuating capacity. Our amendment is aimed at addressing that.

Amendment 45 would allow the responsible body to consider whether the arrangements it is authorising need to be in place for the entire duration of the authorisation it is granting. That would allow authorisations to be granted with specific provision for the arrangements to be suspended while a person has regained capacity. We will return later to what deprivation of liberty means, but that is relevant here. It may be that while someone has capacity, they are free to come and go as they please, with no supervision. But when they do not have capacity, they must be accompanied at all times for their own safety. There is no need for arrangements to require that they be accompanied at all times, regardless of their capacity. Instead, it should depend on their condition on a given day.

This comes back to the amendment moved by my hon. Friend the Member for Birmingham, Selly Oak. In it, he called for arrangements to be authorised only if there were no less restrictive alternatives available. If care providers treat capacity as something that, once lost, remains lost, people will inevitably be subject to unnecessarily restrictive arrangements—not all the time, but for the periods when they have regained capacity. That approach also fails to recognise that people’s capacity can vary without crossing the legal line in the sand. There will be days when someone with dementia can, with a certain amount of support, make the decision that they want to go out for coffee with an old friend, but it may be that, because they cannot make such a decision normally, there is no provision in the arrangements for them to go out. I am sure that the Minister would agree that we do not want over-zealous care managers, concerned about the danger of litigation, to end up unduly restricting a person’s liberty purely because they are treating capacity as a constant. Instead, we must establish a system that recognises the way capacity changes and what that can mean for the cared-for person, and that system should be described in the Bill.

The current system deals with fluctuating capacity through the code of practice. I will be concerned if the Minister says in her response that the Government mean that to continue to be the case. The Law Commission was clear, in its assessment of this legislation, that the code of practice was simply not an appropriate place to deal with this issue. I remind the Minister of the Law Commission’s comment that

“it is not acceptable for the legislative framework simply to ignore fluctuating capacity.”

Bringing individuals with fluctuating conditions within the scope of the Bill would not require them to be deprived of their liberty when that was not appropriate. An authorisation is not an order or injunction to detain the person, and professional discretion should of course be exercised—for example, as to when to take or not take steps to ensure that the person is not allowed to leave, or to bring about their return if they do leave.

Will the Minister cast her mind back to 14 March 2018, the day she published the Government’s response to the Law Commission review of the Mental Capacity Act 2005? On page 6 of the response, she accepted the Law Commission’s recommendations about fluctuating capacity. I should like her to clarify why she accepted them if she had no intention of taking on board the commission’s advice that they be contained in the statutory framework.

The amendment would require a consultation to be carried out before arrangements can be varied to account for fluctuating conditions. In some cases, where capacity fluctuates for short periods, that would be an onerous requirement, but it would also mean arrangements could not be made more restrictive when that might not be appropriate. The amendment does not go as far as the Law Commission wanted to on this topic, so it could be seen as a compromise.

In its draft Bill, the Law Commission set out provision for people to consent in advance of being deprived of their liberty. That would have meant that a cohort of people with degenerative conditions, who foresaw the requirement to deprive them of their liberty, would be removed from the system altogether. The Law Commission also said that

“the giving of consent should generally be regarded as an ongoing state of mind which is required in order for a confinement not to amount to a deprivation of liberty. There will be some who will lack capacity to give such consent for such a substantial proportion of the period covered by the proposed authorisation, and regain it for such brief periods, that it is right to regard them as, overall, lacking capacity to give or withhold consent to the arrangements.”

That is in line with the provisions in the current code of practice. It would codify them in statute, ensuring that the group in question would be adequately covered by the liberty protection safeguards. I do not understand why the Government have not yet taken those suggestions on board. They would ensure that people whose conditions fluctuate are properly dealt with by the new liberty protection safeguards, and close up one of the most glaring holes in the current Act. It seems clear that detaining someone while they have capacity would, at the moment, be a breach of the Act. We need real amendments to the Bill to make sense of the system, rather than yet more promises about a code of practice that we have not yet seen. I acknowledge that the Minister has sent us a list of its contents—but that is not the code of practice.

[The Minister for Care (Caroline Dinenage)]

It is a great pleasure, once again, to serve under your chairmanship, Mr Austin.

I thank hon. Members for raising an important point. We agree that the likelihood of fluctuating capacity should be addressed by the mental capacity assessment. We also expect fluctuating capacity to be considered when the responsible body is deciding to give an authorisation and setting the length of authorisation and frequency of reviews.

I think I set out in my comments on amendment 32 that I am tempted by some of the hon. Lady’s suggestions. However, they do not quite encapsulate the “What then?” of the issue: fluctuating capacity should be considered, but what then? That is why I have concerns. Fluctuating capacity is a complex, fact-specific matter that deserves in-depth, detailed guidance. That is why we will include details of it in the code of practice. We consider that a much better way, allowing examples and real guidance to be set out. That will include the issue of where a person with fluctuating capacity meets or does not meet the authorisation condition of lacking capacity to consent to the arrangements, and whether the authorisation continues in force or ceases to have effect.

The backdrop to the matter is the fact that courts have been considering whether decision makers can take a long-term view in some cases of fluctuating capacity. We expect a judgment from the Court of Appeal soon, in the case of Royal Borough of Greenwich v. CDM. Hopefully, that will give legal guidance on how decision makers should deal with fluctuating capacity. That, of course, will be reflected in the code.

With those assurances in mind, I hope the hon. Lady will feel able to withdraw the amendment.

[Barbara Keeley]

The Minister says she is tempted by the amendment. It is about time, because she accepted the recommendations when she accepted the Law Commission’s report, and I have even read out the date when she did that. The Law Commission was clear in saying that fluctuating capacity is not something that can be dealt with adequately in the code of practice.

Despite the Minister’s having said that she would accept the recommendations, the Government have made no attempt to deal with fluctuating conditions on the face of the Bill. There is a real danger that breaches of the Act will be encouraged because responsible bodies and care practitioners have no proper avenue to pursue if a cared-for person has a fluctuating condition. It is open to the Minister to move an amendment on Report, but we will be putting our amendment to a vote this morning.

Question put, That the amendment be made.

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Division 20

Question accordingly negatived.

Ayes: 8

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Labour: 8

Noes: 9

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Conservative: 9

[Barbara Keeley]

I beg to move amendment 46, in schedule 1, page 21, line 42, leave out sub-paragraphs (1) and (2), and insert—

“39 (1) The responsible body must take all reasonable steps to appoint an IMCA to represent and support the cared-for person if—

(a) sub-paragraph (2) provides that an IMCA should be appointed, and

(b) sub-paragraph (6) does not apply.

(2) An IMCA should be appointed if—

(a) the cared-for person makes a request to the supervisory body to instruct an IMCA;

(b) there is no appropriate person to represent and support the cared-for person;

(c) the cared-for person is 16 or 17 years old;

(d) there is an appropriate person to support and represent the cared-for person in relation to this Schedule and they make a request to the supervisory body to instruct an IMCA; or

(e) there is reason to believe that the appropriate person would be unwilling or unable to assist the person in understanding or exercising the relevant rights under this Schedule without the support of an IMCA.

(3) A person is not an appropriate person to represent and support the cared-for person unless the responsible body is satisfied that the person—

(a) is a suitable person to represent and support the cared-for person;

(b) consents to representing and supporting the cared-for person;

(c) will maintain contact with the cared-for person;

(d) will represent and support the cared-for person in matters relating to or connected with this Schedule; and

(e) is not engaged in providing care or treatment for the cared for person in a professional capacity.

(4) A person is not an appropriate person if there is reason to believe that the cared-for person does not wish, or would not wish, to be supported and represented by the proposed appropriate person.

(5) The ‘relevant rights’ under this Schedule include—

(a) rights to request a review by an Approved Mental Capacity Professional;

(b) rights to request a review under paragraph 35;

(c) rights to information about the authorisation, assessments and its effects;

(d) rights to apply to the Court of Protection under s21ZA.

(6) An IMCA should not be appointed if—

(a) there is reason to believe that the cared-for person does not wish to be supported by an IMCA; and

(b) there is reason to believe that the cared-for person does not wish to exercise rights to apply to the Court of Protection under s21ZA.

(7) The responsible body must keep under review whether an appropriate person is undertaking their functions. If the responsible body finds that the appropriate person no longer fulfils the required functions, the responsible body must appoint another appropriate person or IMCA.”

This amendment would amend the requirements for an IMCA to be appointed, so that advocacy is the default position. It also makes provision for appropriate persons to be appointed subject to certain conditions relating to how they discharge their role.

Throughout the proceedings on the Bill, we have talked about the rights of the cared-for person and the protection that must be put in place to prevent inappropriate deprivation of liberty. In reality, many people who have suffered under the Mental Capacity Act will not be able to act on those rights. Instead, they require support and assistance from somebody else. Without that support, there is a real chance that somebody will be deprived of their rights, simply because they do not know what their rights are or how to enact them.

Before we discuss the amendment in depth, I will give the Committee some examples of why advocacy is so important to a person subject to the Act. The first is the case of Mrs L, a 67-year-old woman with Korsakoff syndrome who was placed in a care home on a temporary basis following a hospital stay as this was the only place she could receive appropriate support in the short term. A decision was needed as to whether Mrs L was to remain at the current care home long term or whether efforts would be made to return her home. There was a possibility that Mrs L could return to her own home if her legs improved sufficiently. She seemed happy to be at the current care home, but she kept asking when she could go home. Professionals were inclined to recommend that Mrs L was kept in the care home in the long term.

Mrs L was given the support of an independent mental capacity advocate at this point. The IMCA worked to understand what was the least restrictive option available to support Mrs L. As part of that, the IMCA requested an reassessment of Mrs L’s capacity to make decisions on the matter, as she was clearly expressing a preference to return home. Without the intervention of an IMCA before a deprivation of liberty authorisation was applied for, Mrs L may have been kept in the care home against her wishes.

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[James Morris (Halesowen and Rowley Regis) (Con)]

The hon. Lady is laying out an interesting case. I wanted to ask a quick question about the amendment. Proposed sub-paragraph (2)(e) states that

“there is reason to believe that the appropriate person would be unwilling”

and proposed sub-paragraph (7) states:

“The responsible body must keep under review”.

I wonder how she envisages that process working in practice. What would the review process be that the responsible body would undertake to determine whether they thought an appropriate person was capable of undertaking their functions? It sounds a bit like a procedure where somebody has power of attorney, which then has to be frequently reviewed. How does she envisage that process working?

[Barbara Keeley]

Obviously, it is an extensive amendment. There are two issues, and I will go on in a moment to talk about how important it is to keep in contact with the cared-for person. It is clear to anybody who knows anything about care homes, or independent hospitals in particular, that some people end up without visitors and without having contact with anybody. The Bill allows renewal periods of three years. We can envisage a situation, given the examples I have given, where a cared-for person is hundreds of miles away from their family. In the example I gave of Sam, the family were not in contact due to the distance of travel.

With regard to review, a responsible body would keep an eye on the situation of a person who never receives any visits or contact. In those situations, it really is up to the care home, the independent hospital or the hospital. Those are the most vulnerable people. The amendment says that it should be a person’s right and the default to have an advocate. It is a matter of how to get the mechanism working towards that. The idea of a review is that the responsible body should be looking out for people who have had no contact with anybody else.

My next example is a powerful one. It was supplied by POhWER, an organisation that provides advocates to people who do not have anyone else to support them. POhWER’s advocate had been visiting an older lady in her care home for a few months. He described his work with her as follows:

“This was supposed to be a two-monthly visit but I felt monthly visits were more appropriate. I carried out mainly unannounced visits due to some of my concerns…

She had been living within the home for over a year. When speaking to the client, she wasn’t really aware where she was living and either referred to it as a temporary placement or a hospital. She didn’t state any unhappiness within the placement, but visually there appeared to be some neglect. There was inconsistency in the way she was described by staff and her documentation was also unclear…

After a few visits I noted her clothes were not appropriate for her skin condition. I was significantly alarmed by her swollen weeping legs and tight trousers that were wet from the fluid. I raised this with the managers immediately. She was then dressed in appropriate clothes. They spoke about the client having choice about what she wants to wear. I explained issues with her statement and the difference between choice and best interests for someone who lacks capacity and for someone who is not aware of the risk.

I asked them to identify this in various care plans, but there was nothing suitable in place…

My following visit saw some changes and this was now reflected in paperwork, but when speaking to the nurse in charge she wasn’t aware of the protocol in place. The client was in a better condition than in my previous visits which was comforting to see. Again I fed back to management about the communication in the team being unclear and was assured by the care home management this would be addressed.

I carried out another unannounced visit and saw my client in a nightie with blood stains. I had seen her legs which looked in extremely poor condition. I asked staff and management how her skin on her legs was and was informed there were no issues and they were following the protocols in place.

My client’s legs were weeping and covered in blood stains. I reported this to the managers of the home. This was also highlighted in my email and reported to the supervisory body and I was advised to contact the safeguarding team.

All my details and findings were reported to the safeguarding team and to the quality standards team. Since the involvement of the safeguarding team my client no longer resides at the home, has changed accommodation and is enjoying living there.”

The only reason the advocate was able to pick up on the poor treatment being received by the cared-for person in that case was because they visited her several times over the course of several months. Had they been involved solely with the authorisation process but then not visited until a scheduled review or renewal, which, as I mentioned earlier, might be three years later, it seems unlikely that the multitude of errors documented would have been seen. Ultimately, that would have led to the cared-for person receiving a much lower standard of care. That is why we want to see an appropriate person or advocate who will keep in touch with the cared-for person, and support to do that should be provided if it is needed.

Paragraph 39(5), which is proposed by the amendment, outlines some of the rights that the IMCA or the appropriate person should support the cared-for person to understand and exercise. I hope that the code of practice sets out in more detail the way in which IMCAs or appropriate persons should carry out their role, but we feel that the rights outlined in proposed sub-paragraph (5) are the most important for the cared-for person to understand. They include the ability to trigger an independent review of the application or authorisation, and I believe that they should be in the Bill. We have not seen the code—we have seen a list of what is going to be in the code—and we have not seen the guidance that will be issued to IMCAs. In the absence of those, we want to ensure that certain key rights are protected in the legislation.

--- Later in debate ---

[Caroline Dinenage]

We are, largely, starting on the same page. We all agree that advocacy is of the utmost importance for the cared-for person. The Bill is clear that everyone has a right to an advocate, whether an appropriate person, an IMCA or, in some cases, both. The Bill sets out clearly that, if no appropriate person is available or able to represent and support a person, the responsible body must take all reasonable steps to appoint an IMCA, if the person has capacity and requests an IMCA and wherever a person lacks capacity, unless in very rare cases it is not in their best interest, as my hon. Friend the Member for Halesowen and Rowley Regis mentioned.

I thank hon. Members for recognising in the amendment the wishes of the cared-for person as a condition for appointment, as we would not wish to force advocacy on anyone. The Bill already allows an appropriate person to request the support of an IMCA. However, I am concerned about the way in which that best interest has been discussed today. Best interest is the standard that governs decision making under the MCA. I am concerned that the Opposition are disregarding that in relation to IMCAs. I apologise if I have misinterpreted what hon. Members have said. The core aspect of best interest is the person’s wishes and feelings. That has to be the primary consideration when it comes to rights and IMCAs.

[Barbara Keeley]

Given that the Minister has just expressed her view on how we are presenting our views on best interest, I hope I can summarise the examples that we have given and the view that we are putting forward that it is a subjective judgment. There is a difference with a cared-for person being allowed to have an advocate, as a default arrangement, unless they do not want that, as in some of the cases we have mentioned. The best interest test is at best a subjective judgment. There are many examples where somebody’s best interests have been ignored. That is why we have given many cases; those cases illustrate how incorrectly this test can be applied and how wrong it can go.

[Caroline Dinenage]

I thank the hon. Lady for that clarification. I am really grateful for all the interesting case studies and examples set out today. They show the incredible variety of cases, experiences and issues that the Bill needs to encompass, and the challenges of getting it 100% right. That is why we have to be incredibly careful with carte blanche.

We think it would only be in very rare cases that it would not be in the person’s best interest to have an IMCA or appropriate person representing them. Of course, the default is that they would. If the appropriate person is not fulfilling their duties, there should be an alternative appropriate person in place, or an IMCA should be appointed by the responsible body.

There is a presumption in a case where a person lacks capacity. They have the right to request an advocate, if they have capacity, and that best interest test is to avoid overriding their wishes and feelings in cases where they do not. Families of those who lack capacity have told us that they often feel left out of the process. Allowing them to act as appropriate persons enables them to be involved and provide support. I am sure hon. Members agree that that is a good thing.

The role of appropriate person is an important way of involving those who are close to a person, but is not necessarily a matter of either/or. An appropriate person can request support from an IMCA if they wish, and that will include access to challenge in court. We are expanding rights to IMCAs. Currently they are available only to people in hospitals and care homes. The liberty protection safeguard would expand that to those in the community and supported living.

We have set out the fundamental requirements of who can act as an appropriate person and the code of practice will give further detail. I know there were concerns that an IMCA would make a one-off visit and, once everything was settled, they would never be seen again, but it is clear that an IMCA must keep up ongoing contact outside of review times to ensure that the person’s rights continue to be protected and respected.

[Barbara Keeley]

The Minister said that that is clear. How is it clear? It is not clear anywhere in the Bill that there have to be constant visits. Where is that provision in the Bill?

[Caroline Dinenage]

It is clear in our minds, and it will be clear in the code of practice that hon. Members can approve.

--- Later in debate ---

[Caroline Dinenage]

I will in a moment, but I also wish to consider those parts of the amendment with which I fundamentally disagree, as that is important. The amendment would require all 16 and 17-year-olds to have an IMCA as well as an appropriate person. I feel strongly that automatically appointing an IMCA for a 16 or 17-year-old would risk freezing out parents from providing representation and support, and parents are often best placed to take such a role.

The hon. Member for Worsley and Eccles South often talks about the desperately distressing case of Bethany and countless others, where parents’ wishes and concerns are not listened to or heeded. We have been clear about giving families a strong role in this model, and we do not want to risk that. As with an appropriate person, a parent or family can request the support of an IMCA, or for their role to be performed by an IMCA.

[Barbara Keeley]

I am surprised that the Minster seems to be referring to an advocate as someone who will get in the way of the parents. When I have met parents—I have met Bethany’s father—a great deal of advocacy is going on. Stakeholders in the Bill help with the provision of advocates—indeed, they themselves provide advocacy and legal support. I know for a fact that Bethany’s father would not have got very far because, as the Minister knows, an injunction against him by his local council tried to prevent him from even speaking about his daughter’s case. People need professional support—parents need it, as do other carers—and I hope the Minister will not categorise the support of an advocate as somehow “getting in the way”. The professionals who make decisions have to be challenged, not advocates who are there to support people and their parents.

[Caroline Dinenage]

The hon. Lady slightly misrepresents what I am trying to say. Of course we have seen numerous examples of how important advocacy can be—it can literally make the difference between people living a happy life that suits their needs, or being kept in a place where they feel unhappy and that does not fulfil those needs. I agree that people should be able to access advocacy, that advocates should be able to work alongside parents, and that if parents feel that they cannot take on such a role, advocates should do that work instead of parents. I also feel, however, that if parents feel that they want to do this on their own and not take on additional advice they should not be forced to, and that is probably the fundamental difference between the Government and Opposition positions. People should be allowed to make decisions for themselves if they wish, and they should not continually be forced to take advice if they do not want to.

We want to make this model person-centric—that is key—and base it on the needs of individuals. By mandating the conditions for IMCA appointments in primary legislation we would once again be prescribing a one-size-fits-all approach that does not consider someone’s individual circumstances, or the wishes and feelings of those involved and their family and loved ones. I hope hon. Members agree and will withdraw the amendment.

[Barbara Keeley]

The Minister seemed to imply—I think she used similar words—that appointing an IMCA will be the default, but that is not the case in the Bill. The Bill states that an IMCA should be appointed if the responsible body is satisfied that being represented and supported by an IMCA is in the cared-for person’s best interests. There is a best interest test there, which will potentially get in the way. With the wrong sort of process going through in independent hospitals, it will be subject to that best interest test. That is how people can end up ignored, festering in situations where they do not want to be.

[Caroline Dinenage]

I am struggling with this, because the hon. Lady is giving the impression that best interest should not be taken into consideration. “Best interest” is basically code for the wishes and feelings of the individual. Is she honestly saying that because a person may be lacking capacity their wishes and feelings should be totally ignored, and they should be given what everyone else thinks is best for them?

[Barbara Keeley]

The Minister knows that that is not an accurate interpretation of what I am saying. We spent a fair amount of time talking about independent hospitals, which are still a massive worry and concern. There is still great concern about the potential role of care home managers, because of the conflict of interest in the case of both independent hospitals and care home managers. There are too many actors in this process who could get in the way and be the people deciding whether a best interest test is met.

Were the best interest assessors the people who are used to this and have been doing this job in local authorities, I would be more comfortable. The Government are trying to give power over the process to care home managers and independent hospitals as responsible bodies, and we disagree with that profoundly, because of the cases that I have brought to the Minister’s attention. I think she and the Government are wrong to put faith in bodies where there is a conflict of interest. That is why I feel so strongly about this.

[Steve McCabe]

I was going to put a similar point to my hon. Friend. The danger in the Minister’s assertion is that she puts all her faith in the official position, in the position of the responsible authorities. As we have already discussed in the Committee, because of the pressures on those people, they may have other interests and other demands on their attention. If we want to represent properly the best interest of the person and make sure that they are at the centre of the process, we need a balancing mechanism, to ensure that all the issues that the authorities will take into account will be balanced against the best wishes of the person. That is why there is an argument for independent advocacy being set aside from the interest of the responsible organisations.

[Barbara Keeley]

That is very much the case. To summarise the debate, on the Labour Benches we have given some very powerful examples of the value of advocacy. I have been very impressed by the selection of cases and I thank my hon. Friends for their speeches.

Advocacy is one of the most important safeguards in a mental capacity Bill. It is—perhaps we do not like to use the word these days—a final backstop against improper deprivation of liberty. Our amendment makes it clear that the provision of advocacy must be the default position and I do not resile from that being the right thing to do. There are a few limited exceptions, but the provision of an advocate should go ahead, so that cared-for people are able fully to enact their rights. Without that support they will not be able fully to enact their rights.

We have heard powerful examples about getting people out of inappropriate settings and preventing someone’s home being sold when they did not want it to be sold, so that they could return to it. We should not underestimate—Labour Members do not underestimate—how vital advocates are. I know it is a wide-ranging amendment, but it seeks to improve the Bill in a number of ways, primarily guaranteeing an advocate for anybody who wants one.

Question put, That the amendment be made.

--- Later in debate ---

[Caroline Dinenage]

Amendments 11 and 12 are technical and tidy up the provisions in part 7 of new schedule AA1 to the Mental Health Act 1983 that set out the interface with that Act. They provide that liberty protection safeguards cannot be used to recall to a hospital a person who is subject to the Mental Health Act and is residing outside a hospital. If someone is subject to a community power under the Mental Health Act and needs to be recalled to a hospital, that should be done through the Mental Health Act. That is already the case under the current DoLS system, and the amendments ensure that the Bill replicates that. The Bill is already clear that an order made under the liberty protection safeguards cannot conflict with an order made under the community provisions of the Mental Health Act, so if someone is required to reside at a place under a community treatment order, they cannot be required to live somewhere else under the liberty protection safeguards.

Amendment 13 ensures that that principle also applies to other legislation with a similar effect to the community powers of the Mental Health Act. That means that if someone is required to reside in a particular place under equivalent enactments that extend to England and Wales, they cannot be required to be placed somewhere else under liberty protection safeguards. The amendments effectively ensure that liberty protection safeguards are not used inappropriately to complete functions that should be completed using the Mental Health Act, and clarify what we all know: that a person cannot be required to be in two places at once. I hope the Committee supports the amendments.

[Barbara Keeley]

I understand that the amendments are designed to address the interface between the Mental Capacity Act and the Mental Health Act, and to keep that interface exactly the same as it is now. I think this is the point to say that this is not the course we wanted the Bill to take. Amendment 52, tabled in my name and to be discussed later, would delay the implementation of the Bill until the Government have given proper thought to how that interface ought to work. We will not oppose amendments 11 to 13, because I can see that they are intended as technical, drafting amendments and we will treat them as such, but I think this is a missed opportunity.

There is a considerable grey area between the Mental Capacity Act and the Mental Health Act, and in his recent review, Sir Simon Wessely made some valuable recommendations on how that divide could be clarified. At this stage, the Government have not tabled amendments to enact those recommendations, but through these amendments they will instead maintain a deficient set of arrangements. I fall back on what I have said before: I call on the Government to pause the Bill until they have given proper consideration to the interface between the two Acts and can produce a Bill that will not require near-immediate amendment and generate a lot of court cases, as we think this Bill will do.

Amendment 11 agreed to.

Amendments made: 12, in schedule 1, page 24, line 10, at end insert “in a hospital.”

This is to provide that only arrangements to enable medical treatment for mental disorder in a hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded from being authorised under the new Schedule AA1.

Amendment 13, in schedule 1, page 27, line 16, at end insert—

“(g) anything which has the same effect as something within any of paragraphs (a) to (f), under another England and Wales enactment.”—(Caroline Dinenage.)

If arrangements conflict with requirements, conditions or directions imposed or given under certain provisions of the Mental Health Act 1983 those arrangements cannot be authorised under the new Schedule AA1 of the Mental Capacity Act 2005. This amendment provides that arrangements which conflict with requirements, conditions or directions arising from an England and Wales enactment having the same effect as the provisions of the Mental Health Act listed in paragraph 54 also cannot be authorised under the new Schedule AA1.

Schedule 1, as amended, agreed to.

Clause 2

Deprivation of liberty: authorisation of steps necessary for life-sustaining treatment or vital act

[Barbara Keeley]

I beg to move amendment 16, in clause 2, page 2, line 12, at end insert—

“for a maximum period of 14 days”.

This amendment will limit the duration of an emergency authorisation to 14 days.

This amendment and the next to be debated deal with the proposed system for emergency authorisations of deprivation of liberty. In most cases, emergency authorisations should not be needed. An authorisation can be made up to 28 days before the arrangements are due to come into force, and with proper care planning that should mean that liberty protection safeguards are applied for and enacted before someone is deprived of their liberty. That is also the case under the current system, in which applications can be made 28 days in advance—indeed, it is expected that applications will be made before arrangements need to come into force, if at all possible. None the less, data from NHS Digital shows that last year more applications were made for urgent authorisations than for standard ones, which suggests that care homes and hospitals are either unable or unwilling to apply for a deprivation of liberty safeguard until the point at which such deprivation must occur immediately.

I know that the Minister will want all applications to be made and decided in advance, to ensure that people receive the proper protection but, as one DoLS lead said to me recently, simply wanting it will not make it happen. Under the new liberty protection safeguards, there will be no system for urgent applications. Either a standard application will have to be made or the person will be held under an emergency authorisation. That is worrying, given that emergency authorisations come with far fewer safeguards than full authorisations. Amendments 16 and 17, therefore, aim to strengthen the safeguards applied to emergency authorisations, to prevent their misuse.

Amendment 16 would limit the time during which an emergency authorisation can be in place. I do not think that anyone on the Committee would be sad to see the end of urgent authorisations, and I am sure that the Minister agrees that it was unacceptable that care providers were able to self-certify that deprivation of liberty was both acceptable and required. We must do everything in our power to prevent a repetition of that, so I am glad that urgent authorisations have been taken out of the Bill. However, as in all our work on the Bill, we must ensure that we do not implement a flawed process purely because what came before was worse. We should strive to create a genuinely better system.

The Law Commission shares the view that the system of urgent safeguards no longer works, which is why it proposed the change to emergency authorisations. Although that still allows a degree of self-certification, it requires a far higher bar to be cleared. No longer will an organisation be able to self-certify a deprivation of liberty purely because it believes it is urgently needed; instead, the power will be available only when doing otherwise would have a fatal impact on the cared-for person. There will of course be occasions when that is necessary—scenarios that could not have been foreseen—and in such cases it is important that people are not denied treatment because of the legal requirements, but it does not mean that we should ignore the vital safeguards that people must be entitled to.

The principle is clear: deprivation of liberty should normally be authorised through the proper processes, as set out in schedule 1. The only exception is where there is no way to get the relevant permission in time to deliver life-saving treatment. To ensure that the power is used for only the shortest possible periods, the amendment would put a time limit on it. Under the current deprivation of liberty safeguards, an urgent authorisation can last for seven days and can be renewed for a further seven; at the end of that 14-day period, the only way to continue to deprive someone of their liberty is to apply for, and be granted, a standard authorisation. That provides an important check. It means that a care provider can deprive someone of their liberty for a maximum of 14 days without the involvement of external assessors.

Under the Government’s proposals in the Bill, there is no such check. Instead, an emergency authorisation can run indefinitely, subject to two checks. The first check is that the arrangements are still needed to provide life-sustaining treatment. In the case of someone who requires a respirator or drip-fed medication, that could easily carry on beyond a few days—it could last for years. The second check is that a further decision is being sought from either the courts or the responsible body. However, a recent study by Cardiff University found that appeals under section 21A of the Mental Capacity Act 2005 took a median of five months to be heard. Even if cases relating to emergency authorisations are heard quickly, we are still likely to be talking about months, rather than days, before a case is decided.

One of the Law Commission’s reservations about imposing a time limit on emergency authorisations was the concern that responsible bodies might not always be able to arrange assessments quickly enough. There is a simple solution to that, which does not water down people’s rights. If we want responsible bodies to be able to deliver the scheme, or indeed any other scheme, we need to resource them properly. If they have the resources and staff they need, there is no reason why we cannot ask them to complete assessments in a timely manner.

--- Later in debate ---

[Caroline Dinenage]

I do not know about the Law Society. The Law Commission was tasked with reviewing the measure—it took three years to do so. The commission took evidence from across the sector and we have used its recommendations as the basis for this provision.

[Barbara Keeley]

It is interesting that the Minister is being so selective about which of the Law Commission’s recommendations she is accepting. I challenged her earlier about a recommendation that she had accepted at the time it was made and which has not been taken further in the Bill. This is a five-clause Bill, which Opposition Members have had to battle our way through. It is not the fifteen-clause draft Bill that the Law Commission brought forward, which had been consulted on. It is rather rich of the Minister at this point, when it suits her, to be quoting the Law Commission’s recommendations and adopting them when she has not accepted them on many other occasions, including the one on which I moved an amendment this morning.

[Caroline Dinenage]

The reason for that is quite simple. The Law Commission’s draft Bill had a whole lot more scope and took into it things that we have not been able to look at as part of this particular revision of DoLS, on which we want to focus. We are painfully aware of the fact that 125,000 people are still in a backlog, waiting for DoLS. They do not have the protections that they need; the families do not have the reassurance; and the people caring for them do not have the protection of the law. That is why, necessarily, this had to be a very narrow Bill. Where possible, though, we have taken the words of the Law Commission to its very heart.

[Barbara Keeley]

I am astonished that the Minister thought it was okay not very long ago this morning to not accept a Law Commission recommendation and then, in her very next speech, put forward such a recommendation as the main reason for turning down an amendment. There is an astonishing lack of logic.

Opposition Members believe that it cannot be right that emergency authorisations have no time limit. There is a concern that it could become easy to drop into using the provision given that there is no time limit on it. We can see how, given how systems are designed, people can get into going to the easiest place. If it is the easiest place to deprive someone of their liberty, that situation can become dangerous.

By failing to include a time limit, the Bill fails to incentivise local authorities and the courts to hear emergency authorisation cases promptly. There is no time pressure on them—they can take as long as they like. Applications can already take too long to process and, without a hard end date, they could drag on for weeks or months. The emergency authorisations contain far fewer safeguards than full authorisations, and as such Opposition Members believe that they should be used only sparingly and for brief periods.

Question put, That the amendment be made.

Division 22

Question accordingly negatived.

Ayes: 8

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Labour: 8

Noes: 9

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Conservative: 9

[Barbara Keeley]

I beg to move amendment 17, in clause 2, page 3, line 4, at end insert—

“(10) Where this section is relied on to deprive a cared-for person of his liberty, the person relying on this section must—

(a) inform the cared-for person and any person with an interest in the cared-for person’s welfare of that fact;

(b) keep a written record of the reasons for relying on this section;

(c) supply a copy of the written record of reasons to the cared-for person and any person with an interest in the cared-for person’s welfare within 24 hours of the deprivation of liberty commencing; and

(d) if any of the following apply, make an application to the Court of Protection immediately—

(i) the cared-for person objects to being deprived of his liberty;

(ii) a person with an interest in the welfare of the cared-for person objects to the cared-for person being deprived of his liberty; or

(iii) the donee of a lasting power of attorney or a court-appointed deputy objects to the cared-for person being deprived of his liberty.”

This amendment will ensure that information is shared with the cared-for person and any person of interest in the cared for person’s welfare and sets out when an application to the Court of Protection must be made immediately.

Amendment 17 builds on the comments I made in relation to amendment 16. Throughout the two amendments, our concern has been that people subject to emergency authorisations do not currently have the same protections as others who are detained under the liberty protection safeguards. We recognise that there might be a need in certain rare cases to circumvent full assessment for a short period, but it is not acceptable that the Bill provides almost no surety against the system being misused, as we discussed in the debate on amendment 16. That amendment dealt with the length of time for which an emergency authorisation could be in force. Amendment 17, on the other hand, deals with the rights of a person who is subject to an emergency authorisation. Our aim is to ensure that a person’s rights to information and appeal are not watered down because they are subject to an emergency authorisation.

--- Later in debate ---

[Caroline Dinenage]

The ability to deprive someone of their liberty for a short period of time prior to an authorisation being in place or in an emergency is an important part of this model, as we have discussed. That can be done only to provide the person with life-sustaining treatment or to prevent a serious deterioration in their condition.

I spoke on amendment 16 about how this provision is limited to emergency and life-sustaining treatment or a vital act, and to the time limit that is legally enforced. We agree that the provision of information to the cared-for person and those who care for them is extremely important to help them understand the process and exercise their rights. I have committed in respect of other clauses to look again at information and how quickly and early it is disseminated and distributed. I agree in principle with the information part of the amendment.

My only reservation is that, given the nature of the situation, medical professionals have to work urgently in a short period of time, so the amendment might not be practical in practice. However, I agree 100% with the hon. Member for Worsley and Eccles South that information needs to be given out and that people need to understand what is happening to them and their loved ones, so I will commit to look again at this matter.

We agree, and I confirm that, when people are deprived of their liberty, records will need to be kept and those will need to be available after the event. We will outline the details in the statutory code of practice, including how that information should be shared with others.

The amendment outlines circumstances when objections to deprivation of liberty for the provision of life-saving or sustaining treatment should be referred immediately to the Court of Protection. Under the Bill, all people in those cases will have the ability to challenge emergency authorisations in the Court of Protection via section 16 of the Mental Capacity Act, and it is unnecessary for that to be made explicit again in the Bill. The applications will also operate alongside a full authorisation made under new schedule AA1 where appropriate and, of course, there will be full recourse to the court to challenge those authorisations too. For that reason, the Government cannot support the amendment.

[Barbara Keeley]

I am disappointed that the Minister will not accept the amendment because I have given her a very powerful example of why she should. I had not understood, until I engaged with Paula McGowan recently, how defective the processes were. I know that the Minister has been engaged in that case, so I ask her to think about how it adds to the burden of grief and bereavement for the parents that the processes that should have protected a young person such as Oliver were not engaged properly.

The point about information is important; the McGowans were not informed of their rights or listened to. There was no best interest meeting for Oliver. Had that happened, his parents could have pointed out the danger of the anti-psychotic medication. The Minister has just said that medical and care professionals are busy. That is the problem, is it not? That is how these cases happen—in the busyness of urgent care. The warnings about the medication were just ignored. That is why we very much need information to be given.

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

Baroness Keeley Excerpts

Thursday 17th January 2019 Public Bill Committees

[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.

[Barbara Keeley]

I beg to move amendment 34, in schedule 1, page 15, line 34, at end insert—

“(3A) Where the person consulted under sub-paragraph (2) has parental responsibility for the cared-for person, the consultation shall seek to ascertain that person’s wishes and feelings in relation to the arrangements.”

This amendment introduces a requirement to consult parents about their child’s care arrangements.

The amendment follows on from amendment 30 on parental consent and amendment 38 on approved mental capacity professional reviews for 16 and 17-year-olds. It would provide an additional and equally important tool to ensure that 16 and 17-year-olds, who will now be subject to the Mental Capacity Act 2005, are afforded the proper safeguards.

I have previously welcomed the inclusion of 16 and 17-year-olds in the Bill, as it is important that they do not fall through the cracks in the system. Their inclusion provides consistency with the remainder of the Mental Capacity Act, which makes no distinction between 16 and 17-year-olds and people older than them, but the Bill does not go as far as was recommended by the Law Commission, which wanted the Government to carry out a full review of mental capacity law as it relates to children and young people. I hope the Government are still considering that recommendation. The current system leaves children under 16 in an uncertain legal position as there is no provision for them to be subject to mental capacity legislation, so I hope a review is forthcoming.

The amendment focuses on the consultation process that must be carried out before an authorisation is either granted or renewed. That is one of the most important processes that will be carried out under the liberty protection safeguards, as it will ensure that the cared-for person and others who are interested in their welfare have a say. Since we will not cover consultation in great detail in future, I will briefly outline why the process is of such importance in the context of the amendment.

In this area, the Bill goes considerably further than the existing deprivation of liberty safeguards system. It is welcome that we are moving on from a situation where consultation is optional to one where it is mandatory. That is a crucial part of understanding whether the arrangements are in a person’s best interests, particularly in cases where a person has communication issues—we explored that this morning. Those with an interest in a person’s welfare may be the best placed to comment on their wishes and feelings. That is a broad group, which is why the phrase “people with an interest in the cared-for person’s welfare” is so vital. It covers family members, but goes further where it needs to. It could include anyone, from fellow members of a church congregation to a neighbour who keeps an eye out for the cared-for person. The consultations are not optional; the Bill contains provision that those people must be consulted. Unfortunately, how the results of the consultation should be integrated with other assessments is not mentioned. I suspect that, again, that will appear in the much-fêted code of practice when it is finally published.

I hope it will become clear that the results of the consultation should be given appropriate weight in considering whether arrangements are necessary and proportionate. In most cases, that will be sufficient, but the views of some of the groups to be consulted that are mentioned, and one crucial group that is not specifically mentioned, should be given greater weight. This amendment refers specifically to 16 and 17-year-olds, and there is a group with a specific legally grounded interest in their welfare: the individuals who have parental responsibility for the cared-for person. We want to ensure that people with parental responsibility have their different role recognised. Amendment 30 on parental objection was one way that could be achieved; amendment 34 is another.

In the Mental Capacity Act 2005 there are a number of provisions, as part of the best interest requirements, that would be integrated into the consultation process. I will quote from those briefly. Section 4(6) of the Act requires an assessment to be made on

“the person’s past and present wishes and feelings…the beliefs and values that would be likely to influence his decision if he had capacity, and…the other factors that he would be likely to consider if he were able to do so.”

Those are not necessarily things that would be obvious to just anyone interested in a cared-for person’s welfare. In particular, beliefs and values are often deeply personal. To ensure those are properly captured, we must ensure that those people who know the cared-for person best are not only consulted but given a meaningful say on the arrangements.

When the Bill was published, the requirement was that anybody with an interest in the cared-for person’s welfare must be consulted, but as I said, it went no further than that and did not specify what the consultation would seek to do. Because the Bill extends to 16 and 17-year-olds, that provision is now clearly deficient. Parents have a greater stake in their children’s welfare than others, but more than that, parents can give a greater insight into the beliefs, values, wishes and feelings of their children than those who have other relationships. Legislation such as the Children Act 1983 recognises that fact and provides parents with a far greater say over what their children do than is normally given to other family members. In particular, existing legislation creates a presumption that a person with parental responsibility has a significant say over where a child or young person lives. We are talking about an age group that requires parental permission to get married or even to get a tattoo. It is clear that the parents of 16 and 17-year-olds have rights and responsibilities that vastly outstrip those found in other relationships. The amendment would reflect that importance.

This is a distinct issue from the one raised in amendment 30 on the role of parental consent in authorising arrangements. We have touched on that before. Inevitably, there will be cases where parents do not wish to withhold their consent completely, but none the less have reservations or suggestions that should be taken on board, particularly in the case of 16 or 17-year-olds, who may sometimes display challenging behaviour. In those circumstances, parents may not wish to veto arrangements completely, as that may leave them without the support they need.

We are taking about situations where parents may find themselves pitted against professionals. We all know the feeling of being told by a doctor that something is in our best interests; mostly, we do not challenge those assertions, but that does not mean that professionals are infallible. In cases of such importance, where we are dealing with people’s fundamental human rights, it is important that we test such presumptions.

I have spoken previously about the case of Bethany, who was held inappropriately in St Andrews independent hospital. Despite the difficulties, in some ways Bethany is fortunate that her father is able to stand up for her and argue against what professionals are telling him is in her best interests. Steven Neary, whose case I also mentioned, was also fortunate that his father worked tirelessly to have him moved from the unit in which he was being held so inappropriately.

There is another deeply tragic case, illustrating the difficulties parents have in challenging professionals’ determination of what is in a patient’s best interest—that of Oliver McGowan. I know the Minister met Oliver’s mother Paula following her successful petition for a debate on the treatment of people with autism and learning disability. Oliver was autistic, but had a full life expectancy. He had previously had adverse reactions to the type of antipsychotic medication that eventually killed him, yet despite his parents’ raising concerns, the clinician treating him continued to administer that medication and Oliver died. That tragic case highlights what parents can be up against.

The unfortunate reality is that parents such as Bethany’s dad and Steven Neary’s father, who have been able to challenge decisions affecting their children, are notable for being the exception, not the rule. There are any number of parents of children in this situation who have been told so often by professionals that the arrangements are in their children’s best interests that they find it hard to persist in challenging that over months and years. It is particularly hard for parents who do not have the resources, time or confidence to draw public attention to their case. Other parents need to be proactively supported to comment on the proposed arrangements.

To summarise my argument, some parents will not feel confident enough to try to overrule professionals who are telling them that certain arrangements are in their child’s best interest. That does not mean we should not pay particular attention to their views on whether the arrangements are proportionate or on whether there may be less restrictive options available.

One point that must be considered is where parents would prefer that their child continue to live in the family home. I spoke earlier about the importance of never depriving somebody of their liberty unless that is the only option, but the unfortunate reality is that local authorities face severe funding pressures, and professionals sometimes tend toward ensuring physical safety at the cost of all else. That can lead to parents who may want to keep their child at home being told that the only way to keep the child safe is to move them elsewhere. Giving their views particular weight at the consultation stages is one way to ensure that arrangements are not authorised when a less restrictive option is desirable.

The amendment provides a dedicated outlet for parents to give their views. It reflects the greater role that parents and those with parental responsibilities play in caring for their children. The purpose is to strengthen the role that parents can play throughout the process of authorising a deprivation of liberty. Our amendment 30 would have required them to give their approval to any arrangements, but there is a final reason to specify that those with parental responsibility must have their views considered. I discussed at length earlier some cases where care homes restricted contact between a cared-for person and their family. That can be done for no reason, with only spurious grounds given. The cases I raised earlier all related to an older cared-for person, but the same provisions are sometimes put in place for younger people, with parents restricted from seeing their own children. However widespread that practice may be, it is another instance where a single case of a parent being denied a say on their child’s care for no good reason would be too many. I hope amendment 34 makes it clear that the responsible body, or whoever else is organising the consultation, cannot simply sideline those with parental responsibilities. The amendment is about ensuring that the parental voice is heard throughout the process and can shape the form that arrangements may take.

We are talking about a cohort of young people with immensely complex needs. They need the people who know them best to be not only informed, but actively consulted on the arrangements they will be subject to. By doing that, we can ensure that when 16 or 17-year-olds are subject to the liberty protection safeguards, it is done in their best interests.

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to serve under your chairship, Mr Pritchard. This morning we talked a lot about the role of parents in these circumstances, so I will not rehearse all those arguments again. We tested the view of the Committee on the principle that there would be a parental override, and the decision of the Committee was that that was not appropriate. Amendment 34 is perhaps a step back from that, but would still give parents a very important place and role in exceptionally difficult decisions. I hope it might find a little more traction with colleagues.

--- Later in debate ---

[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.

Division 8

Question accordingly negatived.

Ayes: 8

---

Labour: 8

Noes: 9

---

Conservative: 9

[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.

[The Chair]

With this it will be convenient to discuss amendment 36, in schedule 1, page 16, line 2, at end insert “or independent hospital.”

This amendment would ensure that the person conducting the pre-authorisation review does not have a prescribed connection with an independent hospital.

[Barbara Keeley]

Paragraph 21 of the new schedule AA1 makes provision for certain people to be excluded from carrying out the pre-authorisation review of a liberty protection safeguards application. In this section, the Bill specifically prohibits pre-authorisation reviews from being carried out by anybody involved in the day to day care of the cared-for person or in providing any treatment to the cared-for person. We are glad to see the safeguard is in the Bill. It would not be appropriate for a paid member of care staff to be the independent person safeguarding a person’s liberty as well.

We have previously discussed the issue of conflict of interest and we have tabled amendments to eliminate this, but the safeguards are still fallible. We have tabled amendments 35 and 36 because we believe the Bill requires further clarification to ensure that the independent reviewer is not in any way connected with the organisation conducting the pre-authorisation review. We are concerned that it is not only people directly involved in providing care or treatment to a person who may be incapable of providing that truly independent check we want to see. There are other individuals, for instance, within the same care home provider, who would still lawfully be allowed to conduct a pre-authorisation but who could not be described as truly independent. That would still represent a wholly unacceptable conflict of interest. It would be a shame if, having accepted the principle that there must be no conflict of interest in this Bill in relation to care home managers, the Government allowed it to creep in via the back door, in this way.

Amendment 36 is designed to address further potential conflicts of interest in cases where the cared-for person is held in an independent hospital. I raised the real concerns from across the sector, both on Second Reading and earlier in Committee, about the potential relationship between independent hospitals and the approved mental capacity professionals who will review cases. Our concern is that there is nothing to prevent an independent hospital from entering into a cosy relationship with an approved mental capacity professional. The AMCP could then review the cases going through that independent hospital, effectively removing a vital safeguard against the improper deprivation of liberty.

The Government have repeatedly said that that would not be permissible under their proposals. Our amendment attempts to clarify the position, so that stakeholders and others can be reassured that the Bill will have its intended effect. The Minister’s agreeing to the amendment would be welcome, given the speed at which the Bill is progressing and the concerns raised by stakeholders about not only the contents of the Bill but the perfunctory way that stakeholders have been consulted.

The Bill was amended in the Lords to ensure that nobody with a prescribed connection to a care home can carry out the pre-authorisation review. The Minister said that the Government will bring forward regulations in due course that will set out the different kind of relationships to a care home that will be prescribed. I have already made some comments on that, which I will reiterate briefly. It is important that the Government take a broad view of the relationships that should be prescribed and, indeed, proscribed. These few lines are in fact some of the most important safeguards in the Bill.

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship for the first time this afternoon, Mr Pritchard. Opposition Members have expressed very real concerns about the additional responsibilities placed on care homes by the Bill and have questioned how that can work, particularly in situations in which there might not be a care home manager or if the care home management might be considered inadequate or not fit for purpose.

The Bill would allow care homes to choose any staff who they consider appropriate to undertake assessments. Who will make those decisions? If there is no manager, who else will take the decision? If the manager is deemed incompetent and does not know how to run a care home, how on earth can they make a decision on an assessor? I cannot understand that.

One best interests assessor expressed worry that care homes will want to undertake assessments as cheaply as possible, so many independent reviewers will only be able to review documents, rather than actually meeting the person in care and/or their family. I cannot understand how the Minister or Government Members think that care homes and hospitals should not consult with a range of independent reviewers, rather than potentially just one.

As hospitals will be able to employ their own independent reviewers, is the title of “independent reviewer” misleading and potentially dangerous? They will have a vested interest in the future care of a patient, and care providers, with their well-documented financial pressures, will have an interest in retaining the people that they care for. Surely the Minister agrees that assessors should be completely independent from care homes or hospitals and not just independent in name only. Does she agree that we have to do everything we can to remove this conflict of interest?

Another best interests assessor told me at a December meeting of the all-party parliamentary group on social work, which I chair, that although most care homes practise with integrity, the new proposal leaves the system open to abuse. I know that it would only be the odd one here and there, but that is the odd one too many. Under strict time and financial pressures, care home managers are likely to keep recommissioning the same assessors who are sympathetic to the desires of the care provider. The Minister must agree that that is unsatisfactory and could effectively lead to a deprivation of liberty for the people in the care home.

If there is even a tiny danger of that because of the way the Bill is constructed, the Minister could be culpable for a person losing their freedom simply because, in some cases, “independent” turned out to be anything but. I know she will reflect on that, and I hope she will accept the amendment, but if she chooses not to, she must spell out exactly how she will ensure that some vulnerable person is not caught in a trap of her Government’s making.

--- Later in debate ---

[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.

[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.

--- Later in debate ---

This amendment is consequential on Amendment 9.

[Barbara Keeley]

I beg to move amendment 42, in schedule 1, page 16, line 38, leave out

“if it appears to the Approved Mental Capacity Professional to be appropriate and practicable to do so”.

This amendment varies the role of the AMCP so that they must meet with the cared-for person in making their determination.

[The Chair]

With this it will be convenient to discuss amendment 43, in schedule 1, page 20, line 34, leave out

“if it appears to the Approved Mental Capacity Professional to be appropriate and practicable to do so”.

This amendment varies the role of the AMCP so that they must meet with the cared-for person in making their determination.

[Barbara Keeley]

Much of our conversation on the Bill has so far focused on the role of approved mental capacity professionals, when they should be appointed and who they should be. We have given this topic so much time because AMCPs are a fundamental safeguard built into the proposed LPS system. This independent review process will prevent the deprivation of liberty from being applied for and approved within one system.

We tabled several amendments designed to strengthen the provisions of this safeguard and prevent anybody from being wrongly deprived of their liberty. I am sorry that the Government have not accepted our amendments, which would have provided for more people to have access to an approved mental capacity review. These reviews would have ensured that it is not only people who actively object to arrangements or are in independent hospitals who have access to the safeguard that an AMCP review would provide.

None the less, we are determined to continue to improve the Bill, so that those people who do not have access to an AMCP review are treated properly. Amendments 42 and 43 provide for AMCPs to meet the cared-for person in all cases that they review. We just had a little exchange about this, and the Minister seemed to say that there would always be meetings. I hope she meant that.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

On requiring the AMCP to meet the cared-for person before making their determination, the wording—

“appropriate and practicable to do so”—

is just not correct. Does my hon. Friend agree that we have a duty of care to each and every individual? Surely each and every life is as important as the next. We must do our level best in all circumstances, not only when it is appropriate and practicable to do so.

--- Later in debate ---

[Barbara Keeley]

I absolutely agree. My hon. Friend makes such a good point.

The Minister in the Lords, Baroness Stedman-Scott, said:

“We are clear that our intention is for approved mental capacity professionals to meet with the cared-for persons in almost all cases.”—[Official Report, House of Lords, 15 October 2018; Vol. 793, c. 371-72.]

That qualification—“almost all cases”—creeps in again. Our proposal would go a little further and require AMCPs to meet the cared-for person in every case that they review. This is a crucial part of reviewing an application. It cannot be right that the role of the independent reviewer should be limited to simply reading a set of papers and certifying that what is contained within them meets the requirements to authorise a deprivation of liberty. That would be no safeguard at all.

I have mentioned the case of Y v. Barking and Dagenham, which saw a young man held in an inappropriate care setting for more than two years. One major failing of the local authority and the independent social worker in that case was to simply accept the assertions made by care home staff, which led to nobody challenging the changes in Y’s condition, denying him the safeguards he so badly needed.

There are, so far as I can see, only two objections to requiring the AMCP to meet the cared-for person. The first is that it might be an excessive burden on the cared-for person. My response to that is simple: we are not asking for the AMCP to carry out a protracted, in-depth cross-examination of any cared-for person. It need not take hours or involve directly checking every minute detail of the authorisation record with the cared-for person, which would be burdensome in itself. We would not want to implement a system that requires somebody to go through a lengthy experience like that. However, that is not the same as not wanting the AMCP to meet the cared-for person, which could be for only a few minutes.

[Steve McCabe]

Does my hon. Friend share my surprise that these words have actually been included in the Bill? We have heard quite a bit from the Minister about the things she has not wanted to add to the Bill because she has not wanted to send the wrong signal or be too rigid in her approach. Does my hon. Friend agree that, if the Minister’s argument is that there could be genuine circumstances where it is not necessary to meet the person and the phrase would apply, that would be a matter of professional judgment that could be spelled out in the code of practice? By putting it in the Bill, the Minister succeeds in giving a clear signal that she expects there to be lots of circumstances where the person will not be seen.

[Barbara Keeley]

That is really worrying.

As I was saying, the meeting could be for just a few minutes to confirm that the cared-for person appears to present with the behaviours that are described in the application for deprivation of liberty. A meeting, no matter how short, could confirm or deny what is written in that application—whether a person is visibly happy or unhappy with arrangements and whether the arrangements appear to be proportionate.

To give a hypothetical example, physical restraint is not unheard of in cases under the deprivation of liberty safeguards—we know of many cases where restraint is being used. It might not be unreasonable to look at a level of physical restraint on paper and feel that it is needed to prevent harm to others, but seeing that person in the flesh may make it clear that the subject of the application is underfed and would not present a significant physical threat. Cases such as that would perhaps be rare, and I do not want to suggest that care providers would seek to over-restrain people as a matter of course, but the Minister and I, and many hon. Members, understand that it does happen. In such a case, the meeting with the cared-for person would tell the AMCP whether the arrangements were overly restrictive.

A second objection might be that meeting a cared-for person would involve extra cost. As it stands, the responsible body decides whether an AMCP should be brought in to review a case, so responsible bodies, including local authorities, must be properly resourced to bring AMCPs in on all cases where they are needed. We will touch on resources later in the debate. The reason that the meeting is important is simple: it may be that the cared-for person is not completely as they are described on paper or by other people that the AMCP meets in the process of their review.

I return to the case of X, whom I discussed previously, to illustrate why that is so important. For hon. Members who cannot remember that far back in our discussion—we have had several case studies—X was a 99-year-old woman residing in a nursing home. Daily, if not hourly, she was objecting to where she was. She wandered up and down the care home objecting to the arrangements that had been put in place. Of course, nobody in the care home had bothered to identify that X was objecting to the arrangements and that, as such, she would require a deprivation of liberty safeguards application to be made.

The Government’s refusal to accept some of our earlier amendments on approved mental capacity professionals means that X would not have received an AMCP review, given that nobody had identified an objection. If an AMCP had been appointed, however, it would have been critical that they met X, because anything else would have led them to simply accept the word of the nursing home, which clearly felt that X was content with the arrangements, despite the evidence to the contrary.

Meeting the cared-for person would allow the AMCP to stress-test the other elements of the application that they are reviewing. It would provide them with primary evidence, against which they can hold everything else they are given. I hope that the Minister agrees that that is important—indeed, that is undoubtedly why the Bill contains provision for approved mental capacity professionals to meet most of the cared-for people whose cases they are reviewing. Our amendment would simply extend that slightly to ensure that nobody falls between the cracks.

As we have discussed, the AMCP will not be involved in the majority of pre-authorisation reviews. They will be involved only in higher-risk cases where extra safeguards are needed. Given that the AMCP is being brought into the process because the cared-for person is at risk of being inappropriately deprived of their liberty, it seems perverse not to require that they at least meet the cared-for person.

The Bill provides for the approved mental capacity professional to

“meet with the cared-for person, if it appears”

to them

“to be appropriate and practicable to do so”.

[Dr Williams]

On that word “appears”, the only information that the AMCP will have to judge that on is information provided by other people. If they do not get the chance to make any kind of independent assessment themselves, there is the risk that other people’s judgment will influence their judgment.

[Barbara Keeley]

I agree, and it is words like those that we have a problem with. The Government have said that there will be guidance in the code of practice that will address what that means and what should be done in cases where it is neither “appropriate” nor “practicable”. The Opposition cannot yet see the code of practice and, therefore, we simply cannot accept assurances about its contents. The only way that we can guarantee that the Bill will work as intended is to put provisions in the Bill.

I made a point on Tuesday about the code of practice that I will repeat now, because it is an important one. Statutory codes do not exist without a statute, and the majority of laws do not have a code of practice. Codes are there only for when non-legal people are using a law directly. No one expects non-legal people to read or necessarily understand a statute, and so a code is provided. Such a code follows what is in statute and sets it out in lay terms and at length, but it does not exist if the obligation in law is not clearly set out. That is what we want to address. Where a case requires review by an AMCP, that professional should be required to carry out their review in the fullest manner possible, and that must mean that they meet the cared-for person.

If the Government want to set out the limited set of circumstances where they do not feel that that should be the case, they should do so in the Bill, as then we can give their proposals the scrutiny that they are due. This is not an issue that should be relegated to a code of practice. If the circumstances in which a meeting is not required are too broad, there is a risk that people will be inappropriately deprived of their liberty, despite having had a review from an approved mental capacity professional. That would be unacceptable. We cannot allow decisions of such importance to be made in a code of practice that we cannot see. As such, I hope that the Government will accept the amendment, and ensure that all the high-risk cases to which we are referring receive the full review that they need, including a meeting with the AMCP.

[Alex Cunningham]

I know that the Minister is well intentioned with this Bill, but it remains the case that the cared-for person is not always at the heart of it. That is a major worry, not just for us, but for people across our society. The issue has been brought to me by the Law Commission, by the Alzheimer’s Society, by experts who work for pro-liberty groups and by constituents who have taken the time to write to me on this point specifically.

It is baffling to me that the approved mental capacity professional is not required in the Bill to meet the cared-for person. Yet they are the professional who will decide the future of that person—whether or not they lose their liberty. None of us would want that for one of our relatives, would we? We simply would not want that to happen.

It may well be that the person in care does not have the capacity for a meaningful conversation to express their wishes and beliefs, but the assessor does not know that unless they meet them. It is essential. If the person in care does have some capacity, which I suspect would be identified by the assessor, surely their views, however communicated, ought to be taken into consideration—and, who knows, we might avoid the deprivation of liberty for that person.

I have already raised the importance of the role of speech and language therapists. I think the hon. Member for Faversham and Mid Kent mentioned them this morning, and I know the Minister accepts the role that they have to play. They may well help identify the wishes of the cared-for person simply by enabling them to communicate, and surely there should be a separate assessment of the person’s views. If they are opposed to the accommodation or the care plan, an independent advocate should act in that person’s best interest.

Evidence submitted by Rethink Mental Illness raises the important point that nobody should have an advocate forced upon them, especially if they do not want one. However, advocates should still be appointed, even if they are then removed. That would ensure that the opinions of both the advocate and the person in care are taken into consideration, and that a judgment is made by a professional on the need for representation. We will debate advocacy later on in this Committee and I will speak to it in more detail then.

Ultimately, the amendment is about ensuring that the approved mental capacity professional has met with all the appropriate parties, including the person in care themselves, so that they can make the most informed decision possible. Not only does mandating the AMCP to meet the cared-for person before making the decision ensure liberty and respect is given to the person in care; it makes the professional’s job considerably easier, as diagnosis is more effective when they have met the person. As was raised in the evidence-gathering, in some cases simply meeting the cared-for person can make it obvious whether the person has capacity. As I said earlier, I suggest that no one but a professional is fully equipped to make that judgment.

Kay Matthews, from the deprivation of liberty safeguards team in the Borough of Poole local authority, wrote to the Committee and said that she would like to see the

“Wishes of the person—past and present”—

I emphasise “past and present”—taken into consideration in the Bill. She went on to say:

“I would like the person’s wishes—what they want, what they would have wanted—to be central to the assessment. I would like it stipulated that people making decisions on behalf of the person ought to support the person who lacks capacity to make the decisions they would have made if they still had capacity; that the person’s wishes are to be followed unless there is evidence that there is or could be seriously dangerous or significantly distressing consequences for the person.”

Ms Matthews says that that is vital because,

“in practice, some staff and relatives see a lack of capacity as a green light to over-ride the wishes of the person to meet their own needs (which are usually to feel less personally or professionally anxious about the person).”

She says that in her 10 years of experience she has seen it happen “again and again”. It is not only ineffective, but potentially dangerous that the Bill would allow the AMCP to basically come up with a verdict by just reading the in-care person’s file or talking to everyone else apart from the person themselves. I understand that because of tight budgets and cuts, care homes need to save money and time, but that comes at the cost of the in-care person.

While I am on the subject of costs in care homes, can the Minister tell me what assessment she has made of the potential costs that will fall on care homes from their extended role in the process? Has she had any data from the industry on that and, assuming she has, will she publish that assessment and data so that the Committee can understand the additional financial burden she is placing on the sector? Can she also advise us of who will be responsible for those costs? Will it be the hard-pressed care home that has to absorb them? Will there be a charge on the individual if they happen to meet their own care costs? If they do not, will that pass to the local authority, the health board or the clinical commissioning group? Who will pick up those costs? If the Minister does not have the data, will she commit to getting some before Report stage?

Returning to the amendment, do the Government want to be seen to be ignoring the voices of people in care? Most of all, does the Minister want to see people in care deprived of their liberty for the sake of what I see as one essential step in the process? The Mental Capacity Act should be an Act that is designed to support, listen to and respect the opinions of those being cared for. It should not make it easy for other people to quash or ignore the decisions of that individual.

--- Later in debate ---

[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.

[Alex Norris]

Unless I am missing something, the Bill states that

“the Approved Mental Capacity Professional must…meet with the cared-for person, if it appears to the Approved Mental Capacity Professional to be appropriate and practicable to do so”.

The word “if” does not imply to me that the exception should apply only in an extraordinarily small minority of cases.

[Barbara Keeley]

As we have discussed, the AMCP is likely to be engaged only in high-risk cases anyway, so we are not proposing something burdensome. The meeting need only be a few minutes long; I am not suggesting that it has to be exhaustive. It needs to confirm that the condition of the cared-for person matches what is in the application. In a case involving deprivation of liberty, I think family members would welcome someone saying, “I am only here to check that the facts bear out what I am reviewing.” It would be a further safeguard for people in high-risk cases.

We should reject anything that would undermine the ACMP’s ability to make a full and thorough assessment of every case. We wish to press the amendment to a vote.

Question put, That the amendment be made.

Division 14

Question accordingly negatived.

Ayes: 8

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Labour: 8

Noes: 9

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Conservative: 9

[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?

--- Later in debate ---

[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.

[Barbara Keeley]

Thank you for making that clear, Mr Pritchard. It is a small Bill, but grouping some of the amendments is quite difficult.

Our amendments set out what would happen if an AMCP decided to reject an application on review, which is a critical moment for the cared-for person. I hope that I have made it clear that people must be not only allowed to exercise their right to appeal, but enabled and supported to do so. As I said earlier, the Government have weakened that ability, because their amendment 4 removed paragraph 13 of proposed new schedule AA1, which said that

“cases are referred to court when the cared-for person’s right to a court review is engaged.”

In large part, our need to press these amendments is a consequence of what the Government have done.

I hope that I have made it clear that we cannot expect cared-for people and their family members to manage the process of appealing through the courts totally unaided. It is a massive burden. I gave the example of an 89-year-old trying to help somebody take a case through appeal.

The reason for notifying the responsible body is that it is best placed to enable and support the right to appeal, which is the key thing that we want to bring forward. Responsible bodies must be under a duty to facilitate appeals. The Government have removed that duty through their amendment on the right to information. Our amendments seek to undo that damage and support cared-for people to exercise their right to appeal.

Question put, That the amendment be made.

--- Later in debate ---

As I said, mine are probing amendments. I want to ensure that a person can lose their liberty only for the period that is absolutely necessary, and that there is the maximum incentive to restore that liberty as soon as possible where it is feasible and practicable to do so.

[Barbara Keeley]

I will speak to amendment 44, which appears in my name, and refer to the amendments tabled by my hon. Friend the Member for Birmingham, Selly Oak, although I am mindful of the time.

Under the deprivation of liberty safeguards, there is no explicit renewal mechanism. If an authorisation has come to its end but is still needed, a fresh assessment must be carried out, including of whether the arrangements are in the cared-for person’s best interests. The Law Commission suggested that that was not necessarily what was happening in practice. It found practitioners referring to an annual DoLS review, even though it was effectively a fresh application. That suggests that all applications other than the initial one are becoming a rubber-stamping process, which they should not be.

There is a clear need for a proper renewals process to be put in place. It is not appropriate, as Members on both sides of the Committee have said repeatedly, for full authorisations to be routinely undermined by being treated as tick-box exercises. The other side of that is that we do not want to put people through an unduly stressful experience when there is little prospect of any change being made to the arrangements to which they are subject. We are not intrinsically opposed to a new renewals process that cuts down on duplicated assessment, but we must be aware that any such system of renewal periods contains far fewer safeguards than there should be in the current system. We should implement it only with the utmost caution.

All that must be done to renew an authorisation is to carry out a consultation and certify that the authorisation conditions continue to be met. In most cases, that will be done by the responsible body but, as I said on Tuesday, in some cases it will be done by a care home manager. It has been made clear in the House of Lords and in this place, by Members on both sides, that assessments should not be carried out by care home managers—or indeed, as we have discussed, by anyone with an interest in keeping the person detained.

Let us be clear: at renewal we are doing just that. Such a situation may be acceptable, given the independent nature of the initial medical and capacity assessments, provided that it comes with suitable safeguards. Under the Bill, the initial duration of the liberty protection safeguard can be up to 12 months. After that, a renewal will be needed.

At the first instance, a renewal can last another 12 months. On the face of it, that is not unreasonable. Beyond that, however, authorisations can be renewed for three years, then another three years and another three years. Indeed, they can keep on being renewed for three years indefinitely. The only condition is that the responsible body, or the care home manager, thinks that the authorisation conditions are still met, and will continue to be met for the duration of the authorisation. Three years is a long time. It is so long that, frankly, making any kind of prediction becomes a fallible exercise.

To assume that any change in a cared-for person’s condition could be foreseen over that period is simply unreasonable. Yet that power is being given to independent hospital managers and, in some cases, to care home managers. They are people who have a vested interest in keeping the cared-for person where they are. Particularly in the care home sector, where, as we have mentioned, margins are narrowing and financial planning is becoming harder, a resident whom managers know will stay for at least three years may prove very hard to turn down. The Opposition simply cannot support that.

I have already talked about some of the issues that independent hospitals can pose. We know that under the current system people can be trapped in inappropriate placements for years. My hon. Friend the Member for Birmingham, Selly Oak asked an interesting set of questions about the data that exists. What do we know about this? We know from NHS Digital data that the average length of stay in an assessment and treatment unit in an independent hospital is more than five years. Under the current regime, one in seven people held in such a unit has been there for more than a decade. One in five people in an ATU has not had a review in the past year. Imagine what could happen if the renewal period needs to be applied only every three years, which is a real fear.

As the Government opposed our amendment, independent hospitals will not be answerable to anybody when authorising or renewing deprivations of liberty. I ask the Minister: how can it be appropriate for these institutions to deprive somebody of their liberty for three years without any external checks?

When the Law Commission recommended a 12-month initial authorisation period, it said that that would match the minimum recommended timescale for reviews under the Care Act 2014 and the Social Services and Well-being (Wales) Act 2014, and therefore help to minimise the duplication of assessments. I have already said that that is a positive aim. If care plans are being reviewed anyway, it does not seem overly burdensome to ask that the authorisation of the deprivation of liberty be renewed in the same time period. No small amount of effort has gone into ensuring that the liberty safeguards scheme is closely aligned with the care system, and that assessments will work in harmony. That is a positive aim if it ensures that the cared-for person receives a better service, but it cannot be right that we end up inappropriately depriving people of their liberty for years at a time.

Given the serious impact of depriving a person of their liberty, the obligations on the responsible body at renewal are not onerous. The condition or circumstances of the cared-for person might change significantly within a much shorter period, and different or less restrictive arrangements might become possible. This point needs to be addressed. It is not an authorisation condition that no less restrictive options are available. There is no obligation to give that full consideration at renewal or at any other time, but there is a clear principle that we should always seek to avoid depriving somebody of their liberty where possible. I hope the Minister will tell us what the Government will do to ensure that renewals take that into account.

Amendment 44 seeks to limit the length of any authorisation to 12 months before it must be renewed, which would allow renewals to be bound up with the renewal of other elements of the person’s care. That would ensure that it is not an excessively burdensome exercise either for the responsible body or for the cared-for person. At a time when local government resources are stretched thinly, I can understand the desire to take work off their shoulders by allowing them to renew authorisations for longer. Another way to ease the pressures on local authorities is to resource them properly to carry out their duties. It is unacceptable for the Bill to undermine crucial protections that cared-for people need in order to disguise the cuts that local government has had to bear. I have said that before in this debate and I am sure that I will say it again.

A renewal period of three years appears to be a cost-cutting exercise. I understand that the Minister is very concerned that we do not place too extreme a burden on family members and others with an interest in the cared-for person’s welfare. However, their involvement in the renewal process is limited to being consulted. I do not believe that being asked once a year for one’s opinion on whether a relative’s care has changed can be seen as excessively burdensome. Most family members would welcome the fact that their opinion was being sought and that efforts were being made to ensure that their relative’s best interests were protected.

The other safeguard provided to reassure us that a three-year renewal is appropriate is that a series of regular reviews will be carried out. Will the Minister tell us what that means? After all, the Bill makes no mention of what a regular review entails. I presume it is something that will be contained in the code of practice, like an awful lot of other things.

We are talking about a fundamental right. If a review is the safeguard being proposed, it must exist in statute. Anything else risks people’s rights being undermined. I am not alone in my concern about the length of the renewal period. My hon. Friend the Member for Birmingham, Selly Oak made a very good case for examining the renewal periods and has asked some very probing questions about them. A cross-sector group of organisations including Mencap, Disability Rights UK and Liberty has written to me expressing deep concern that the provision will lead to people being deprived of their liberty for inappropriate lengths of time. Perhaps most significantly, the group includes the Alzheimer’s Society. People with dementia are one of the groups for whom frequent renewals may not be appropriate, yet even the organisation speaking in the interests of those people feels that three years is too long.

--- Later in debate ---

[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.

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

Baroness 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.

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[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.

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

Baroness Keeley Excerpts

Tuesday 15th January 2019 Public Bill Committees

[Caroline Dinenage]

As I said, due to the cumbersome and inefficient nature of the current DoLS system, many people are not receiving the vital protections they need. Members across the House heard on Second Reading that there is a backlog of 125,000 people waiting to have their safeguards considered. That is 125,000 people who are not receiving the protections they are entitled to, as well as families who do not have peace of mind and carers who do not have legal cover. Worse still, more than 48,000 of those people have been waiting more than a year for an authorisation to be considered. I hope hon. Members agree that that simply cannot be allowed to continue.

The Government tasked the Law Commission with reviewing DoLS and, after more than three years of extensive engagement, it concluded that the system needed to be replaced as a matter of pressing urgency. The Bill concentrates on the Law Commission recommendations that focus on the delivery model. In certain regards, such as making consultation on the individual’s wishes and feelings an explicit feature of the Bill, we go further than the Law Commission recommended.

The Bill has passed through the other place. We worked constructively with the Lords to make important changes, including by ensuring there is no conflict of interest in the role care home managers play in the new system and by removing references to “unsound mind”, which is outdated and stigmatising. We hope to continue working constructively as the Bill passes through the Commons. Indeed, I have already met hon. Members from across the House, as well as key sector stakeholders, to ensure that we listen and respond to their concerns. I know the hon. Member for Worsley and Eccles South cares as much as I do about getting this right.

Clause 1 inserts schedule AA1 into the Mental Capacity Act. This replaces DoLS with a new administrative scheme for authorising deprivation of liberty, known as liberty protection safeguards.

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

It is a pleasure to serve under your chairmanship, Mr Austin. I look forward to the hours of important debate we have ahead of us on the Bill. Let us hope the temperature in the room balances out somewhat over the next few hours, because we are suffering a little bit at the moment.

I want to say clearly that the Opposition are committed to improving the Bill, despite the many reservations we have about not only its contents, but the way it has been developed so far. Should the Government push ahead with the Bill, our job is to ensure that it is the best it can be. We have tabled nearly 30 amendments, which are the minimum reforms needed to ensure that the Bill is fit for purpose.

I am sure that the Government want to produce a Bill that works. No Minister or Department wants to introduce a law that creates complicated case law and necessitates further legislation in the near future. We will work with the Government over the next few weeks to improve the Bill in a spirit of co-operation. If we can do that, we might just have a serviceable Bill at the end of this process.

We will not oppose clause 1 stand part. Indeed, clause 1 is the only part of the Bill that nobody is trying to amend.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Schedule 1

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

[Caroline Dinenage]

I beg to move amendment 2, in schedule 1, page 5, line 19, leave out

“if a person objects to arrangements”

and insert “in certain cases”.

This amendment is consequential on Amendment 9.

--- Later in debate ---

[Caroline Dinenage]

In each case, these are professional social workers who have the required skills and training to make this kind of decision. We do not want to recreate the current system, which very much leaves families and loved ones excluded from the whole process. We want to make sure that their consideration is taken into account at the same time, but we also want to rely on the judgment of professionals, who are incredibly skilled and well trained and who will have the additional workforce training to ensure that they are able to carry out this function successfully.

Amendment 39 broadens the criteria for objections within liberty protection safeguards. The Bill currently provides that the referral must be made to the AMCP if there is a reasonable belief that the person objects to the arrangements to reside in or receive treatment at a specified place. The amendment would expand this to care and treatment overall. I agree that it is important to take into account a person’s wishes and feelings in relation to their care and treatment. It is really important to remember that the provision of care or treatment is already governed by section 4 of the Mental Capacity Act. This amendment to the Act does not override some of the existing parts of the Bill, which are very valuable. In these situations, a best interest decision would need to be made, having regard to ascertainable wishes and feelings, as set out in the Act.

If a person objects, or has objected in the past, to the care or treatment, this must be taken into account within best interest decisions. In some cases a best interest decision must be referred to a court if the person or their family objects. Nothing in the Bill changes this. The statutory code of practice will set out how liberty protection safeguards work within the wider framework of the Mental Capacity Act.

[Barbara Keeley]

I will come to this in more detail later, but constantly referring to a code of practice we have not seen is not helping us here. We are trying to make sure that the Bill is fit for purpose.

[Caroline Dinenage]

I completely understand the hon. Lady’s feelings on this. She will know, because we met and discussed this, that I am very keen that the code of practice is put together by taking on board the advice and guidance of all stakeholders and Members from across the House. This work has already started. We have a first meeting in a couple of weeks, where we will get all the stakeholders together to flesh this out.

This is a statutory document that will bear weight in a court of law. There has already been a lot of commitment in both Houses to what the code of practice will include, so we would like to provide Members during the Committee with a document that will set out exactly the sort of things that we are already committed to.

[Barbara Keeley]

Briefly, if the Minister had done what I asked her to do on Second Reading, and what 40 organisations asked her to do, and paused the Bill, she would have had time to develop the code of practice before we got to this point. We would have the Bill and the code of practice here, and we could check them. We do not have them. That is why we will have a problem.

[Caroline Dinenage]

I understand where the hon. Lady is coming from. The code of practice will be a living document. It will go alongside the Bill and have case studies. It has to be put together in a very co-operative and collaborative way. It will have to come before both Houses to be signed off before it can be published and released, so there will be plenty of opportunity for Members to get involved in drawing it up. I have committed to providing a list of what we have already agreed will be part of it. Members will get a chance to vote on it before it is published, and it will need the approval of both Houses because it is a statutory document.

--- Later in debate ---

[The Chair]

I call Barbara Keeley.

[Barbara Keeley]

I have nothing to add.

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to serve under your chairmanship for the first time, Mr Austin. It always feels a bit risky to speak before one’s Front Benchers. Let us hope that I do not re-write Labour party policy and cause it to have to be unwritten two minutes later.

This is a really serious issue, as has been said. It is exceptionally impactful for individuals and the health and social care system. The Minister rightly notes the backlog that has built up in the 10 years since the DoLS regulations were put in, that it has been five years since the critical Cheshire West judgment, and that the system is cumbersome. It is right for us to look at that.

As played out on Second Reading, we have significant concerns that this legislation is rushed. We will frequently come back to the point on the code of practice, because it feels as though we are dealing with half the information. We are putting significant arrangements into law, knowing that we will be relying on another code of practice. I am glad to hear of the legal basis for that code of practice, but would like to see it alongside the Bill. Otherwise, how do we know whether these arrangements are really suitable? We do not know what the counterpart arrangements in the code of practice would be. I certainly have fears that the process is rushed, that the arrangements are a little bare, and that we are expecting to fill them out with the code of practice, which we will not get to see during these proceedings, so there is a risk that we will not achieve what we are trying to.

I remember the Cheshire West judgment well. When I looked it up last night, I could not believe that it happened in 2014, five years ago. I was the lead member for adult social care and health on my local authority, Nottingham City Council. I got one of those concerned calls from the director of adult social services that one gets periodically, saying, “We have a problem. Oh, goodness me!” We reacted, as I suspect every other upper-tier local authority did, by saying, “There is a legal risk, which has been tested in case law, that for this case load, we, the local authority, have not been complying with our responsibilities in law, which is very serious.”

Again, we did what I suspect everybody did, which was to traffic-light the case load—to sort it into red, amber and green—to indicate which cases we thought matched most closely the circumstances of the judgment and therefore where the risk was greatest, where there was less risk, and where we thought there was probably no relation. We matched our assessment capacity against that, so that we could get on with ensuring that we were complying with the law, as we would be expected to do.

Assessment capacity is not an infinite resource. It is not a matter of putting in an extra bit of money and gaining more assessors. Assessment capacity across social care and social work in general is increasingly stretched. Local government has been an exceptionally difficult place to work for eight years, so that was a really challenging exercise.

It has been some time since I led that brief in Nottingham and was in local government, but there were certainly times when I felt that the traffic light system was no longer a way of trying to remove an initial risk; it had become the way in which local authorities would have to operate with stretched resources. They would ask, “Where are we most at risk of challenge? Where are we least at risk of challenge? That is how we will match up our resources.” That is not a satisfactory way to operate. Today and in future weeks, it behoves us to ensure that whatever arrangements we come up with go past that and ensure that we operate in the best interests of the individual. That is all we are concerned about, and why I still have concerns.

I am sure we will come back to the subject of impact assessments in future sittings. The impact assessment is very clear about what it would take to develop a series of people who could make the assessments, but there is no sense of who will resource those individuals, whether we have enough of them, how we might find them and how we will grow them for 10 years’ time.

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[Alex Norris]

I am sure Hansard will correct that and make me seem a lot more articulate, which is one of the real perks of this place. Already, we have heard a lot about the interpretation of what is appropriate. I worry that if we accept only what is in the Bill and Government amendments, the Bill will be very much open to interpretation in the moment by a third party who, presumably, is busy and has other responsibilities. Our amendments develop the situation further.

I heard what the Minister said about the perils of putting in a long list that risks failing to be exhaustive, but I would say, “Let’s develop that list a little.” Amendment 37 is clear about our wanting to make sure that areas with the highest risk—those that would have been the flashing reds I talked about earlier—are definitely and in all cases covered, without that being open to interpretation under the Bill. I think that is important.

Amendment 38 extends and tidies up arrangements for 16 and 17-year-olds, and brings in a new category of person—young people—for whom there is lots of risk. It is prudent to make sure that all such cases are covered. Amendment 39 broadens that trigger of objection, so that when a third-party interpretation is made in a care setting, it is a lot clearer what constitutes an objection, and what might just be the individual not enjoying their day. Again, that is wise and gives us a great deal of security. I will finish on that point. This is important legislation, but it is important that we know the full story, which means having the code of practice. If we mean something, we should state it in the Bill, and not wait for interpretation later.

[Barbara Keeley]

It was not clear to me that you wanted me to speak to my group of amendments, Mr Austin, but I understand that now. Some Committee members have not been on a Bill Committee before, and I have not been on one for about two and a half years, so you might have to bear with us. In speaking to amendment 38, I want to mention an important principle that my hon. Friend the Member for Nottingham North touched on, which was introduced in the House of Lords: the extension of the liberty protection safeguards to 16 and 17-year-olds, and their right to a pre-authorisation review by an approved mental capacity professional.

Extension of the liberty protection safeguards was added in the House of Lords. The Government ought to be congratulated for this addition, as there was a large and glaring inconsistency within the Mental Capacity Act. This was timely recognition that 16 and 17-year-olds are vulnerable to slipping through the gaps the Bill would create for them if they were not included. The Mental Capacity Act applies to people aged 16-plus, but the Bill originally excluded those below 18 from the liberty protection safeguards, leaving an important gap in the legislation.

The Law Commission conducted a detailed consultation on this and concluded that most respondents to the consultation supported the proposal to include 16 and 17-year-olds in the new scheme. In its words, most organisations

“argued this would provide consistency with the rest of the Mental Capacity Act, and that in many cases the use of the Mental Health Act and section 25 of the Children Act would be inappropriate.”

The two recommendations from the commission’s report were that

“The liberty protection safeguard should apply to people aged 16 and above”—

this would give effect to their inclusion in the commission’s draft Bill—and that

“The Government should consider reviewing mental capacity law relating to all children, with a view to statutory codification.”

As was noted during Committee in the House of Lords, extending the Bill to cover 16 and 17-year-olds will empower some of the most vulnerable young people and ensure that they can access adequate help. However, the liberty protection safeguards do not completely fill the gap regarding the deprivation of liberty of people under 18. The extension comes with some problems, but these are soluble.

Under existing legislation, deprivation of liberty must be authorised either by a court, most likely the Court of Protection, exercising powers under the Mental Capacity Act 2005—

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

Does my hon. Friend agree that, with regard to 16 and 17-year-olds, we need to ensure there is provision for parents or guardians to object to care arrangements? If that has an impact on their child’s deprivation of liberty, that is not an acceptable situation.

[Barbara Keeley]

I agree with my hon. Friend, and we will talk specifically about that later.

The Court of Protection exercises powers under the Mental Capacity Act 2005, under section 25 of the Children Act 1989 or its inherent jurisdiction, or under the Mental Health Act 1983, should that young person require in-patient treatment. The limited protection safeguards created by this Bill introduce a new administrative process as an alternative means of authorising a young person’s deprivation of liberty, and that is why we have to be careful.

In one sense, having this alternative means of authorising a deprivation of liberty of a young person is desirable, in that it may address some problems associated with the cost of making an application to the courts under the pieces of legislation I just referenced. The liberty protection safeguards might also act as an appropriate and proportionate bulwark in cases where care arrangements are not contentious, due to the type of care that is provided, the level of restrictions imposed and the consensus on the suitability of arrangements. For instance, if the placement meets with the young person’s approval and has been made with the agreement of the young person’s parent—a point that my hon. Friend the Member for Slough raised—in relatively straightforward cases, the extension of liberty protection safeguards might act as a convenient and straightforward mechanism.

--- Later in debate ---

[Alex Cunningham]

It is a pleasure to serve under your chairmanship, Mr Austin, and not for the first time. Children and young people have always been my focus in politics. I spent many years as the lead member for them in Stockton-on-Tees Borough Council. I used to meet them in the most positive circumstances and often the most negative too. I celebrated with them, I spent time with looked-after children and young carers, I even did more school visits than I do now, and I listened to the challenges and problems they faced. I know that we have a tremendous responsibility to them all, but there cannot be any group of young people to whom we could have more responsibility than those that the Bill proposes to cover.

We are starting with one of the most important aspects of the Bill. We must, of course, take care when making decisions about how mental capacity will be assessed for all people, but never more so than when young people are involved. The Bill extends these measures to 16 and 17-year-olds, and as a result we must make very specific provision for them throughout the legislation. That starts with and is not limited to agreeing on the involvement of approved mental capacity professionals in all cases involving 16 and 17-year-olds. I know that that has already been clearly stated by others, but it cannot be emphasised enough.

A few minutes ago the Minister said that there were issues with that suggestion because of the possible involvement of others—perhaps family members or other advocates for the young person—but I cannot see how that can be the case. If a young person is being assessed properly, surely anybody involved and the whole system should be ensuring that everybody involved in the care and welfare of that young person is consulted and engaged. I hope the Minister will respond to that later.

In current law, 16 and 17-year-olds are mostly considered to be children—I know they all think they are adults, but they are still children. Although as MPs we do not have the same sort of corporate parenting responsibilities many of us had in local authorities, if anything, we have to give them even more protection—protection, if you like, from the state. Let us remember what a child is. Among other things, they are not allowed to vote. They cannot buy nicotine or alcohol products. They need parental permission to marry. If they work, the law decides that their labour is worth less than that of an 18-year-old. If it is the Government’s position that 16 and 17-year-olds are not adults, we must take special measures to ensure extra safeguards for them and for their families. One is amendment 38, which makes provision for an AMCP to be involved in all cases involving 16 and 17-year-olds. I simply cannot understand why such a provision would be rejected by the Government.

I have been contacted, as I am sure everybody else has, by a number of organisations that have raised concerns. Most of them tell me that the Bill does not do enough to safeguard 16 and 17-year-olds. For example, the Law Society has been particularly vocal about ensuring that an AMCP must review the care arrangements for all 16 and 17-year-olds subject to the liberty protection safeguards. They must also have the right to an independent mental capacity advocate. Mencap tells me that its concern is that the LPS proposals were predominantly developed with the focus on people over the age of 18 and the specific needs of young people to be protected must not be passed over. Mencap believes that they could be.

Young people cannot be an afterthought in the legislation. Extensive consideration is required and I am very disappointed that there has never been a proper evidence session for the Bill, either in the Lords, where the Bill started, or here. There has not been that extensive consultation. Having said that, I know sure that all the organisations involved have been in touch with us to provide us with material. I know there have been written submissions as well. Any decisions taken about young people will affect them for the rest of their lives—in their care, their future education, their employment prospects, their day care and so many other things too, but ultimately their freedom, the freedom that most young people take for granted.

I know that we will get into information and consultation later in the Bill, but it is critical in this context. Most young people have their parents and others to speak up for them, but even those advocates can be shut out in some circumstances so we need to ensure that those young people’s protections are protected in law.

Let us remember what vulnerable young people can be subjected to if and when we apply the provisions of the Bill to their lives. Some of them are spelled out in amendment 37; among them are physical restraint, sedation and covert medication, and a ban on seeing particular people. We cannot have a situation in which some people in our nation can have these things done to them or restrictions placed on them without the strongest possible protections, of which the decision makers must always be mindful.

[Barbara Keeley]

On the point about control of family members, though, in a lot of places they are told that they are not allowed to visit. We will talk more about independent hospitals later, but family members are being excluded from contact. That is a terrible thing for 16 and 17-year-olds and leaves them totally isolated.

[Alex Cunningham]

My hon. Friend spells it out very clearly. I get very anxious when I see parents shut out. People come to see me when children are being taken into care—though I know that that is not necessarily directly applicable to this Bill. They are often in tears or do not understand the system; they are not being properly consulted. Anything that we can do in the Bill to give protection in this specific area is very important, so I welcome what my hon. Friend just said.

Mencap confirmed in its briefing that:

“We believe that there are some situations in which the LPS system will not be the appropriate framework to authorise interventions. For example, where young people’s care arrangements include physical restraint, we believe more scrutiny would be required and should therefore be undertaken by the courts.”

Those are the protections and safeguards that we need to consider while providing care to under-18s. My local authority of Stockton-on-Tees has raised its own concerns that including 16 and 17-year-olds in the legislation is likely to contribute to increased workforce pressure in any given local authority. One area that it has particularly flagged is the possible impact on foster carers. Would this lead to a reluctance among foster carers to come forward? Has the Minister considered what happens for other people who care for children who are not with their families? The measures proposed in our amendments go a long way to providing the protections needed. They are the very least of what we should be doing to protect vulnerable young people.

Although I have spoken mainly about 16 and 17-year-olds being included in the Bill, their access to an AMCP and the development of other protections, I support the notion that access to a genuinely independent AMCP should be standard—not the exception—for every person. I do not think that the Government amendments go far enough. Why would that not be standard? Are there financial reasons? My hon. Friend the Member for Nottingham North has already started the conversation about that. Is it a case of expense or resource? Will the Government make sure that we have not only the resources in the system to deal with this, but the training and even the career development for people to move into this area?

AMCP work is not inexpensive and there is no doubt that anything in the Bill that involves local authorities, commissioning groups or health boards and their teams is bound to have a considerable financial impact on them. If it were left to me and other Opposition Members then local authorities, commissioners and health boards would have even greater responsibilities on them, and therefore even greater increased cost. We must not lose sight of that. I am sure that there will be other opportunities to talk about resources and what already works, but for now I would welcome hearing from the Minister not just about the protections that she sees as necessary to the Bill, particularly for young people, but how she will ensure that the various bodies involved in delivering them will have the financial and staff capacity to deal with the work they need to do.

--- Later in debate ---

[The Chair]

Does anyone want to speak now?

[Barbara Keeley]

Are you allowing summing up on this group, Mr Austin?

[The Chair]

If you want to speak, it is completely up to you.

[Barbara Keeley]

I think it is worth quickly winding up on the Opposition’s three amendments. As I said earlier, it was right to extend the liberty protection safeguards to 16 and 17-year-olds, and some very helpful points on that have been made by my hon. Friends. I ask the Minister to accept that it introduces a new process to authorise a young person’s deprivation of liberty. We stick to the view that the AMCP’s conducting a pre-authorisation review for 16 and 17-year-olds is absolutely vital.

I ask the Minister to reflect on the points that emerged in the discussion of Opposition amendment 37. Some 4,670 DoLS applications came in from mental health establishments. Of those, 305 did not meet the qualifying requirements. Those people should not have been deprived of their liberty where they were. Given the backlog of DoLS assessments, there might be a larger number than the ones we know about. We need to reflect on the fact that mental health detention is one of the most restrictive under the liberty protection safeguards, which we should take into account. Evidence has been put to us that there is a serious risk of unlawful detention and excessive restriction. Although we want to deal with that through the new process, we do not want people to be detained unlawfully.

Our amendment means that a review will be required for 16 and 17-year-olds where physical restraint, sedation or covert medication is used. The Minister and the Secretary of State are instigating reviews on this, as are other Committees of the House: there is an ongoing review by the Joint Committee on Human Rights. There are really serious concerns and we have to be specific, but we cannot do that without a code of practice, which we have not seen.

On restrictions on contact, my hon. Friend the Member for Nottingham North and I talked about cases in which parents are banned from visiting—they are just not allowed to visit, which is totally unacceptable. There should be a review where there is a less restrictive option for the cared-for person’s care or residence. We should reflect on the well-known case of Steven Neary, which I mentioned. He was kept unlawfully for a year, which should not happen.

[James Morris (Halesowen and Rowley Regis) (Con)]

The hon. Lady talked about it being unacceptable for family members to be restricted in their access to children who have been deprived of their liberty, and I have a lot of sympathy for that point. Does she accept that there are cases where that would be deemed appropriate due to the particular circumstances in which a young person has found themselves? Giving family members an automatic right to have access to a child is not a black and white issue, because it depends on the particular circumstances in which the child has been deprived of their liberty.

[Barbara Keeley]

I very much accept that point. Clearly there are difficult family circumstances and sometimes contact is not allowed. All the Opposition are saying in amendment 37 is that those cases where the family is denied access are more risky, and there should be the possibility of an AMCP review. We are not saying it should not happen—we know it does happen for a variety of reasons—but the risk of another Steven Neary case is clear once parents or other family members are banned. Once family members have their contact reduced or taken away, that becomes a high-risk case.

[Steve McCabe]

Does the hon. Member for Halesowen and Rowley Regis not make the argument for the Government to spell out more clearly the circumstances in which to consider these matters? Surely, that is exactly the sort of thing that both courts and professionals would be asked to take into account. He makes a valid point and I agree with him. His point is an argument to be more specific rather than more vague.

[Barbara Keeley]

I agree with my hon. Friend that that argument makes the case for us. In amendment 37, we suggest that the Government adopt in the Bill the process for assessing risk that social services departments up and down the country currently use on the DoLS application backlog. That is what they are doing and that is why that important amendment should be taken forward.

In response to the points made about amendment 39, it broadens out the terms of objection that would trigger an AMCP review. As I showed with examples, it is not always about the location. Just being able to raise objections about location is not enough. People often object to forms of treatment. There are some very difficult cases, such as eating disorders. There are often difficulties around the treatment.

I gave the example of an older person receiving palliative care who did not want dialysis. Medical people might find it hard, but there are cases where somebody does not want a treatment but wants the course of their disease to progress. In the cases I have mentioned, people were forced into situations that they did not want and where they did not have a basis to object. I believe that there is a case to broaden the grounds of objection to include not just location but the other points we have put forward in the amendment.

I just wanted to finalise those points and pull together what my colleagues have said. We will push our amendments to the vote at the appropriate time.

[Caroline Dinenage]

A number of valid points have been raised by hon. Members and I will cover some in more detail when we reach the relevant part of the Bill. I want to get through as many as I can now that relate to this matter.

The hon. Member for Birmingham, Selly Oak may have done it with a cheeky smile, but he said that I am flirting and dismissive in the way I address amendments to the Bill. Can I reassure him from the outset that I have not been dismissive of any of the amendments? I take the Bill incredibly seriously; I am not flirting with it. I look at every single amendment to see whether it would add to the Bill. That is why we amended the Bill so much in the House of Lords. I have committed to that.

I want to talk briefly about 16 and 17-year-olds. The hon. Member for Worsley and Eccles South is absolutely right that we have to be incredibly careful. The current system just does not work for 16 and 17-year-olds and the only recourse is the Court of Protection. We see a swathe of 16 and 17-year-olds who have no protection and no form of DoLS. That is simply not good enough.

Before making this change, we gave careful thought to how the inclusion of 16 and 17-year-olds would interact with other legislation, including the Children Act 1989. We are comfortable that it would work alongside existing legislation. We also looked at the interface with the Mental Health Act and the Mental Capacity Act. Sir Simon Wessely, who is conducting the review of the Mental Health Act, suggests that that is the way it should go.

We have given careful thought to how parents are involved when their child is subject to liberty protection safeguards. Where appropriate, they will be consulted. We have to say “where appropriate” because of the very small number of safeguarding issues that could arise. That is the problem with having absolutes in the Bill. We do not want to recreate what we have at moment—a system that tries to catch all and to be one size fits all, but that ends up helping nobody. We want a targeted system focused on resources where they are needed most. That is why we have not taken a blanket approach to AMCPs.

The hon. Member for Stockton North suggested that the problem is something to do with resourcing, but it is not—it is about focusing resources where they are most needed. In a case where a young person agrees to their care, their parents are happy with it and all professionals agree it is in their best interests, what does an AMCP add? The case would still be reviewed by someone not involved in their care, through the pre-authorisation process. Every single application under the liberty protection safeguards will be carefully reviewed by someone not involved in their care or treatment.

[Barbara Keeley]

The Minister asks what an AMCP review adds; it adds independence at a point where family members are banned from contact, where 16 and 17-year-olds are involved. This is new legislation and a new process. In amendment 37, we suggest that there is a need for additional safeguards; the safeguards we suggest are the ones currently used by social services departments up and down the country.

[Caroline Dinenage]

With the greatest respect, I do not think the hon. Lady listened 100% to what I said. I said that in a case where the young person agrees to their care, their parents are happy with their care and all professionals agree that it is in their best interests, what does an AMCP add when there is already pre-authorisation scrutiny? It is not to do with resources but with wanting a targeted system that focuses resources where they are most needed, protecting vulnerable people in the very best way we can. We understand that there are particular concerns about the use of restrictive practices on young people with learning disabilities or autism. That is why we have tabled an amendment to clarify that responsible bodies can refer cases other than those with objections to an AMCP. In many cases, we would expect that to happen.

The code of practice keeps being referred to as something peripheral, but it is key. The hon. Member for Birmingham, Selly Oak talked about not having the ability to scrutinise it. There is not only the ability to scrutinise the code of practice; hon. Members can contribute to it. That is why it is very important that it is laid out in the way my hon. Friend the Member for Halesowen and Rowley Regis said. That is exactly the place where we lay out the case studies, individual concerns and the very complex cases that need to be definitively scooped up by this Bill. Trying to do a catch-all in the Bill would not provide sufficient protection for the people we all care so desperately about.

--- Later in debate ---

[Caroline Dinenage]

I disagree. We are not putting more responsibilities on to local authorities—we are just targeting them better. The hon. Gentleman says £2 billion would be a small price to pay. That would be £2 billion wasted on a system that all the stakeholders across the board say is not fit for purpose, whatever their feelings about the Bill at the moment. The hon. Gentleman worked in his local authority, and he will know that there is desperate waste in the system. We are trying to get to the bottom of that waste here; we are trying to make sure that the money is much better spent, supporting the vulnerable.

[Barbara Keeley]

It is important that we do not tar all local authorities with the same brush. The overall situation is as the Minister presents it, but my hon. Friends are right to highlight that some local authorities—Stockton is one—have decided, in the current situation of cuts, to dedicate resources, and they have a very low backlog. In my own area of Salford, fewer than 200 applications were outstanding at the end of last year. In the London Borough of Bexley, the backlog is as low as 20 cases, and it had 1,385 applications last year. Some of our larger authorities—Salford, Bexley and Stockton—have decided to dedicate resources to this area, to effectively take resources away from other areas of their operation and to make this area a priority.

I met with DoLS leads in stakeholder meetings for the Bill, and they have a feeling that we are somehow denigrating them and running them down. A brilliant job is being done in places such as Salford and Bexley, and certainly Stockton. I do not want to send out a message from here that a resource problem that came up on this process because of the Cheshire West decision should be used to denigrate a process that can work and is working in some of our larger authorities. I hope the Minister will agree.

[Caroline Dinenage]

I agree very much with that sentiment. We know that local authorities up and down the country are doing sterling work processing applications, but we also know that there is huge geographical disparity, and there are vulnerable people who are not being looked after, with 125,000 cases in the backlog—48,000 of those for more than a year. As with the case of my uncle, many of those cases could already be moot. He had been in and out of hospital and was already back in his care home, and two DoLS applications were still sitting waiting on the backburner that would now never need to be done and were just adding to the bureaucracy, when there are other valid and vulnerable cases waiting to be addressed.

I will move on to a few other issues that were raised. The hon. Member for Worsley and Eccles South raised objections in terms of medication rather than location. There must be a best interests meeting, and sometimes a court hearing, on things such as covert treatment. That is already part of the Mental Capacity Act. We want objections to be considered as broadly as possible. They can be raised by those with an interest in welfare, a family or an independent mental capacity advocate. Streamlined systems mean that objections can be considered more quickly and can be acted on sooner.

The hon. Lady also spoke knowledgeably and passionately about the case of Steven Neary, who was held for a year despite parental objections. Under the provisions in the Bill, Steven’s parents would have been able to raise an objection on his behalf. Independent AMCPs would meet Steven and his parents. They could determine that conditions are not met and could agree arrangements so that these things would not be authorised. That type of provision would need to be reconsidered if they continued to deprive him of his liberty; it would be a breach of statutory duty but also of article 5 of the European convention on human rights.

[Barbara Keeley]

The Minister is making an assertion there, but to my view, the crux of the Steven Neary case was that the social worker involved listened to the care home staff and not to Steven Neary’s parents. She dismissed his parents’ objections entirely. We have talked about that substantially, and it is an important aspect. His parents’ objections were ignored, and it is quite clear from the court case that the social worker just listened to the care home managers. The Bill, as we will discuss later, just brings that to the fore. We will cover that later, but the Minister should not jump over that point in talking about that specific case.

[Caroline Dinenage]

I am grateful to the hon. Lady for clarifying that point, but I feel strongly that having an independent responsible body overseeing how these things are processed will make matters clearer.

[Barbara Keeley]

It is not clear what the Minister is saying there. In the specific case of Steven Neary, which independent responsible body would have done that? The local authority is the responsible body. This was a case of a care home and a young man held against his wishes and his parents’ wishes. Which independent responsible body is the Minister talking about? That did not work in the Steven Neary case. The parents were ignored.

[Caroline Dinenage]

The hon. Lady makes a strong point, but that underlines the issues we have with DoLS at the moment: despite a backlog of 125,000 and a cost ticket of £2 billion, the system is not working. That is why we need to change it.

I will talk briefly about the ADASS—Association of Directors of Adult Social Services—tool. ADASS worked carefully to develop it in response to increased numbers of cases, which were overwhelming some local authorities. That included recognising issues such as clear objections that are raised and providing help with prioritising important cases, but it still leaves that 125,000 backlog, and that is unacceptable. There are various other issues about how we will resource it, but we will discuss those nearer the time.

In conclusion, AMCPs can consider any relevant case —for example, a particularly restrictive practice that is being used, or people with mental disorders. In this case, an AMCP can complete the pre-authorisation review. We will set out the detail, the case studies and clear guidance when we have the statutory code of practice. Every authorisation must be reviewed by somebody who does not deliver the day-to-day care or treatment, and the pre-authorisation reviewer must be satisfied that the authorisation is valid before approving it.

AMCPs should have the opportunity in certain cases to allow a targeted approach that will deliver a more efficient system and to allow people the better protections they need more quickly. I appreciate 100% the hon. Lady’s concerns about the conflict of interest in independent hospitals. We will discuss that at greater length, but she knows I share her concerns about how individuals in those settings can best be protected.

Amendment 2 agreed to.

[Barbara Keeley]

I beg to move amendment 19, in schedule 1, page 8, line 17, at end insert—

“(aa) if the arrangements are for the cared-for person to be accommodated in an independent hospital for the purpose of assessment or treatment for mental disorder, and that care is commissioned by a clinical commissioning group or Local Health Board, it is the clinical commissioning group or Local Health Board, that is the responsible body;”

This amendment would mean that, where a person is accommodated in an independent hospital for the assessment or treatment of a mental disorder, and their care is commissioned by a CCG or Local Health Board, then the responsible body will be the CCG or Local Health Board.

[The Chair]

Can I just say that we are considering only amendment 19 at this stage, so we are all clear?

[Barbara Keeley]

That is helpful, Mr Austin.

We have already touched on independent hospitals, but there is so much more to say. Amendment 19 deals with the extremely important and troubling issue that remains in the Bill regarding the role of independent hospitals. The Opposition know, and the Minister knows all too well, the pernicious behaviour of independent hospitals when it comes to the treatment of vulnerable people with learning disabilities and autistic people detained under mental health legislation.

A number of scandalous cases have come to light in recent months relating to the treatment of autistic people and people with learning disabilities in assessment and treatment units. The BBC’s “File on 4” programme exposed the horrific case of Bethany, who was held in an independent hospital and subjected to appalling treatment and constant seclusion. I have discussed Bethany’s case at the Dispatch Box on several occasions, along with those of other vulnerable people who were virtually imprisoned in these units at enormous cost. I make no apology for touching on these cases again. Bethany’s case has been tortuous. She has been taken in and out of seclusion and treated with astonishing cruelty by the independent hospital holding her.

Bethany is a 17-year-old young woman with autism and extreme anxiety, and is being kept in seclusion at St Andrew’s Hospital, Northamptonshire. She is held in a cell-like room and fed through a hatch in a metal door, and even her father must kneel at it to speak to her when he visits. She has been detained and held in seclusion despite an assessment that the current hospital setting is not able to meet her needs and a recommendation that she be moved to a community residential setting with high support.

Bethany’s case is one of an alarming set of cases of people being held in assessment and treatment units—ATUs—for extremely long periods. Some 60% of such people are held for more than two years, and 20% are held for more than 10 years. Around half of the 2,350 people with a learning disability and autism in ATUs are held in independent hospitals. The Government pledged to reduce the instances of people with autism and learning disabilities being held at these units by between a third and a half, but the reality is that the number of adults with autism and learning disabilities locked up in ATUs has fallen by a pitifully small number over the past three years. Shockingly, the number of children held has more than doubled.

The average cost of placements in ATUs for people with a learning disability is £3,500 per week, but it can be as high as £13,000 per week, as in the case of Bethany. The average stay in these independent hospitals is five and a half years. Independent hospitals have been shown to have a profound vested interest in detaining people for long periods. The journalist Ian Birrell exposed in The Mail on Sunday the obscene amounts that private companies that run independent hospitals make out of these detentions, which should not come as any great surprise, given the length of time that people are detained. He revealed that seven providers charged taxpayers up to £730,000 for each patient held in an independent mental health hospital. I was astounded to learn that one man alone is thought to have cost the taxpayer more than £10 million after being detained against his family’s wishes for more than 17 years.

Among the companies running these institutions—these places have been called bedlam-like, which I believe is appropriate—are two large US healthcare companies, a global private equity group and a Guernsey-based hedge fund, as well as two British firms. These companies pay their executives half a million pounds or more, and their profit margins are as high as 31%. One director of a British firm was paid more than £1 million over two years. One director of American company Universal Health Services, whose UK operation is run by Cygnet Health Care, earned £39.5 million in a single year.

Then there is the Priory Group, which earned £720 million from the NHS for providing independent mental health hospital services. Since 2012 it has been criticised by the coroner in relation to 17 deaths, including the deaths of five teenagers. Following a recent judgment, it potentially faces millions of pounds in fines because of its failure to protect a girl with a history of suicide attempts in one of its hospitals. In 2012, Amy, the girl in question, who was aged 14, was found dead in her room at a Priory hospital within three months of being admitted. Coroners criticised several elements of Priory’s operations, including its poor communication about the risk that patients could present and its poor record keeping. In one case, staff were found to have falsified notes to show that patients had been observed more than they actually had been.

The Priory Group manifestly failed to protect the vulnerable people it was contracted by the NHS to support. I raise this because it is an example of the type of unacceptable care provided in independent hospitals that treat mental health patients. The recently publicised cases of abuse in ATUs reveal that people are being forcibly detained. Indeed, there were nearly 29,000 restraint incidents in England alone last year—an increase of 12,000 in two years. Many people are subjected, as in Bethany’s case, to cruel and often prolonged seclusion.

I will cite another case, which was brought to me by a person whose godson has been held for more than three years in an independent mental health hospital and subjected to horrific treatments. Despite his family’s efforts to move him into a community setting he is still detained there, and they offer him nothing like the freedom he had in local authority-run care. He has had medication forcibly administered, leaving him obese and causing his teeth to fall out. The hospital detaining him left him for months before fitting incorrectly sized dentures. The individual who contacted me has described him as having been brutalised. They would not call the institutions hospitals, because they say that patients’ health never improves.