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

Steve McCabe Excerpts

Thursday 17th January 2019 Public Bill Committees

[Caroline Dinenage]

That is what we must guard against. It cannot be done in the Bill, because coverage has to be extensive; that is exactly where the regulations that run alongside the Bill come into their own. They will set out how, if someone is working for a care home in a different location but run by the same provider, they will be excluded. They will also take a broader view, encompassing things such as agency staff, volunteers and other areas where people may have very reasonable concerns, as well as, of course, everybody who is employed in the care home.

Another point I want to stress is that the amendment would put hospital trusts, clinical commissioning groups and local health boards in a position where they are unable to arrange for someone in their organisation who is separate from delivering care and treatment to complete the pre-authorisation review. They would instead have to organise someone external, which to me seems a wildly unnecessary and bureaucratic exercise. We trust our NHS staff with our lives every single day. I am sure that is an unintended consequence and that Opposition Members are not saying that we cannot trust our NHS staff to complete those reviews. That is when I talk about unintended consequences of amendments to Bills.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

This is a genuine question: what will the arrangement be for inspecting the work of the people who carry out the reviews? The Minister says that we trust our NHS staff, but we have a whole series of inspection and review processes to ensure that decision makers are complying with the law as intended. I think I asked a similar question the other day about the Care Quality Commission in relation to homes, which she said that she would look at. Will there be some similar oversight or random review process of the work that these people do? That would be one way—not a guaranteed way—of picking up whether there was an unsuitable relationship. At the moment, part of the fear is that we could end up in a situation where these people are set free to do this work, but without any guaranteed oversight of how they carry it out.

[Caroline Dinenage]

I laughed when the hon. Gentleman said, “This is a genuine question,” as if all the others he has asked have not been. I am sure that is not what he intended to suggest.

[Steve McCabe]

If the Minister will forgive me, it is just that she looks as if she does not believe me sometimes.

[Caroline Dinenage]

I think that might just be my natural resting face. I understand what the hon. Gentleman is saying, but it depends who we are looking at. If the pre-authorisation review is being conducted by a local authority for a care home, the oversight of the senior members of the local authority would apply, as well as the Care Quality Commission, which deals with the quality of care homes. If it is something like a hospital, people will monitor other people’s work as happens already within hospitals, CCGs and health boards.

The Bill says that somebody who is involved in the direct care of a particular person cannot mark the homework of another person. In something as big and broad as a local health board, a CCG or a hospital trust, which can be enormous, exclusively saying that there could not be two people, who have never met each other before, looking at each other’s work seems to me a huge leap.

Amendment 36 is designed to prevent anyone with a prescribed connection to an independent hospital from conducting pre-authorisation reviews. I am sure that we can all agree that the pre-authorisation review is critical to the effective operation of the liberty protection safeguards in providing independent reviews of proposed arrangements that may deprive people of their liberty. We are talking about the most precious and vital of our human rights. The reviews have to be conducted by someone independent, who is not involved in the day-to-day provision of care or treatment of the cared-for person. That provides the necessary degree of separation to ensure that the model is compliant with the European convention rights.

By requiring authorisations in independent hospitals to be considered by an AMCP, regardless of whether the individual objects, we add a further level of security and build on other safeguards within the model. The AMCP will meet with the person, complete any relevant consultation and review assessments to decide whether the authorisation conditions are met. They can effectively veto proposed arrangements, if they feel that the proper conditions are not met. AMCPs will be professionals, such as experienced social workers, learning disability nurses and psychologists. Their practice will be regulated by and they will be accountable to their professional bodies—in answer to what the hon. Gentleman said earlier.

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[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”.

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Division 15

Ayes: 8

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Labour: 8

Noes: 9

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Conservative: 9

[Steve McCabe]

I beg to move amendment 48, in schedule 1, page 17, line 30, leave out “12 months” and insert “3 months”.

This amendment is designed to encourage reviews and appropriate authorisation by making it harder to detain someone for such a lengthy initial period.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 49, in schedule 1, page 18, line 24, leave out “12 months” and insert “3 months”.

Amendment 44, in schedule 1, page 18, line 24, leave out from “less” to end of sub-paragraph (1)(b).

This amendment limits the period of renewal of any authorisation to twelve months.

Amendment 50, in schedule 1, page 18, line 25, leave out “3 years” and insert “6 months”.

This amendment would limit renewal periods to a maximum of 6 months.

[Steve McCabe]

It is a pleasure to see you in the Chair, Mr Pritchard. I should probably begin by saying to the Minister, just so there is no doubt, that these are genuinely probing amendments. As the Minister will know, Sir Simon Wessely recommended much shorter periods of detention in his original proposals regarding the Mental Health Act 1983, and of course there have been strong arguments—which the Government appear to have resisted—for this legislation to be more fully considered and developed in conjunction with that Act.

A recurring criticism of the operation of mental health legislation is that too many patients are only considered for discharge during preparation for a tribunal hearing. Effectively, the concern is that once a person is captive, as it were—once that person is detained—the authorities are content to leave them there. Under the Bill, a vulnerable person can be deprived of their liberty for three years, as opposed to the previous maximum of 12 months. Given some of the anxieties and concerns about the arrangements in the Bill that we have discussed, both on Tuesday and today—the sense that there may be conflicts of interest, which mean that a person’s interests will not always be safeguarded, and that some of the guarantees do not look as strong as we would like—those rather lengthy periods of detention become an added cause for concern.

I am struggling to understand the justification for having a renewal period of three years, other than on the grounds of cost; I hope the Minister can make that clear to me. She may tell me that it is to cover situations in which the person’s condition is well established and unlikely to change. I presume that if that is the case, what she means is, “We can foresee this situation carrying on, and therefore there is not much point in having further intervention or authorisation regarding the detention arrangements.”

However, what about a condition such as dementia? As I understand it, dementia is a progressive condition, so a person with dementia experiences changes over time. It could be that as a person’s dementia progresses, they need less restrictive care because their condition changes, but it is highly unlikely that that sort of change in what they need would be detected. If that person was already subject to a three-year order, who would be looking to say, “It is obvious that Mrs B’s condition has moved on, and the arrangements that were made 12 months ago can now be altered”? The likelihood is that if that person needed less restrictive conditions, she would be causing less trouble in the establishment that she was living in. She would be one of the patients or residents who was of least concern to the staff, so the improvement in her condition that would merit a lessening of the restrictions on her freedom would be completely missed, because the staff would know perfectly well that she was there for three years. That is how that would be viewed.

I notice that the wording on first renewals says “12 months or less”. What proportion does the Minister consider will be for less than 12 months? What proportion of renewals that can be for three years does she think will actually be made for less than three years? For how long are people normally deprived of their liberty under the present arrangements? What does she think will be the average period under the arrangements she proposes?

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[Caroline Dinenage]

I thank the hon. Members who have tabled the amendments on authorisations up to three years. I stress that this was a recommendation of the Law Commission, in particular for people with long-term progressive conditions from which they are unlikely to recover. It was suggested because many people and their families told the Law Commission, throughout its extensive consultation and work, that they felt that starting the process from scratch every year was unnecessary and cumbersome.

I should also stress that the three-year authorisation period starts only after there have been two one-year authorisations, and the periods set are maximums, not minimums or targets. The Bill does not prevent a responsible body from approving an authorisation for the period set out in the amendment if that is appropriate. Furthermore, the responsible body is required to specify a continuous programme of reviews. If a person’s circumstances change significantly, the authorisation will be reviewed and may be found to no longer be valid. That could easily be the case with somebody with dementia, as has already been highlighted. In that way, I believe that the provision actually brings in additional safeguards.

I hope that has provided clarification and I ask hon. Members to withdraw the amendments.

[Steve McCabe]

My amendments were probing amendments, so I do not wish to push them to a vote. I hope the Minister will reflect again on what I said about monitoring how the detention periods are used, because I fear there is a greater risk here than people may have anticipated. I beg to ask leave to withdraw the amendment.

[Barbara Keeley]

Can I just make a couple of points? There is near unanimity in the sector that three years for renewals is too long. Even the Alzheimer’s Society is worried about the impact it could have. The power on renewals lies with the managers of independent hospitals or care homes, who are people with a vested interest in renewing the authorisation and keeping the cared-for person as a client. In the amendment, we suggest a 12-month period, which would allow the renewal process to be built on the all the other assessments that cared-for people undergo annually as part of their care programme. That would avoid the process placing an excessive burden on them.