Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-11-27
Topic: Social Welfare
James O’Shaughnessy (Conservative, Centre-right): I thank the noble Baronesses for speaking to the amendments in this group. Before I deal with their questions, I say to the House that I take note of the significant margin in the vote on the previous group of amendments. That is something that the Government will reflect on I am grateful for the recognition by the noble Baronesses of the progress that we made on the last day of Report in defining the care home manager much better. I am grateful to everyone who has contributed to that process; we have made progress I turn to the specific questions posed by the noble Baroness, Lady Finlay. She asked about determining that arrangements are necessary and proportionate and inspecting proposals, conditions and indeed the care plan. The preauthorisation reviewer—as we are about to discuss, we are tightening up who can carry out that role—will thoroughly scrutinise arrangements and need to satisfy themselves that they are necessary and proportionate. It is also worth saying that in making the determination they have the power, if they so wish, to meet the person to determine that, which clearly is important. There is another critical matter, although we will come to this when we talk about conditions so I do not want to pre-empt that discussion too much: in making an authorisation, the responsible body can also then set a timetable of regular reviews to take place so that there is a process of ongoing review to ensure that the "necessary and proportionate assessment" test is always being passed We also said—this deals slightly with one of the points that the noble Baroness, Lady Barker, was making—that if the responsible body is not satisfied that the care home manager is capable of fulfilling this function, they can take on the role of organising assessments themselves. That is, to use the phrase that we coined last time, a backstop that provides some reassurance that any variable quality in provision should not affect the process by which assessments are made and organised and the preauthorisation reviews carried out It is absolutely the case that responsible bodies will be able to demand to see care plans and care and support plans as part of their deliberations. That is something that they can ask for, and we would expect that they will provided because the whole point of the process that we are trying to move to is that decisions on and circumstances around deprivations of liberty are actually integrated into care planning and therefore ought not to be divisible in that sense. I hope that that provides reassurance, but if I can provide more by follow-up, I shall be happy to do so The noble Baroness, Lady Barker, asked some specific questions, which I shall need to consider, on the regulation-making power. I do not want to get that answer wrong without considering it, but we can meet in the coming days to ensure that she is reassured on that. A group of government amendments about IMCAs that we will discuss later provides greater reassurance on their role, in that, if they are agreed to, there will be a presumption in favour of an IMCA, removing the gatekeeper role that we have discussed. Also, the preauthorisation review will be carried out only by a responsible body, which must apply that presumption of access to an IMCA, so there will be much greater rights to advocacy on an ongoing basis The noble Baroness makes an excellent point about maintaining contact. As we move to a system of regular reviews, it is important to make sure that someone is alongside the cared-for person who can flag up any problems—for example, that a less restrictive care option is available, or that there is an objection. As we discussed, passive objections can materialise many weeks or months later. That ongoing role is clearly very important, whether it is for the IMCA or the appropriate person, the family member, or whoever. I give her the commitment that we will determine that in the code of practice I hope that I have answered the questions from both noble Baronesses and that on that basis, the noble Baroness will feel comfortable withdrawing her amendment.