Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-10-22
Topic: Social Welfare
James O’Shaughnessy (Conservative, Centre-right): I thank all noble Lords who have put their names to these amendments and given us the opportunity to carry on what has been a very good discussion so far about the important role of IMCAs and, indeed, appropriate persons as well. I shall deal first with Amendments 65, 66, 67, 69, 70 and 76 as they relate to the circumstances under which a person can request an IMCA and under which an IMCA can be appointed As I said in the previous debate, it is our intention not to have any reduction in advocacy or support as a consequence of the Bill. Indeed, it is our position that a responsible body should be able to appoint an IMCA if there is a request by a cared-for person or family member and either a care home manger has not provided notification or the responsible body disagrees with the notification given. As I also said then, I recognise concerns that the circumstances under which an IMCA can be appointed would be narrowed as a consequence of the Bill, which is not something we want to happen. I do not want to rehearse the entire debate we had last time other than to say that it was a good one. I have assured noble Lords about what I want to take away from that, which is to consider the appropriate way in which we can go forward with the role of the care home manager while making sure that all concerns about restrictions to advocacy and so on are adequately put to bed I want to make a point on Amendment 75, which falls into this set of amendments, about why the term "relevant person" is used. I am not quite sure why, specifically; rather, I have an idea, but I do not want to get it wrong. It would be safer for me to write to the noble Baroness, Lady Barker, about why that phrase is used and circulate it to noble Lords. Certainly, this is already a complex piece of legislation with lots of terms and jargon; for goodness’ sake, let us not increase that, if at all possible I want to take up the challenge from the noble Baroness, Lady Barker, on rights to information. During the previous debate, I tried to make it clear that we will set out the right to information but rights to information—not rights to request it—have been strengthened by a variety of legislation, some of which has nothing to do with the care of people lacking capacity. I also said last time that we are reviewing the Bill to see if it needs to be revised to achieve the outcome that the noble Baroness wants. I know that she is concerned about this, but work is under way to try to resolve this issue Moving on, we have not previously discussed the term "appropriate person", which relates to Amendments 73, 74, 77 and 80. This is a good opportunity to speak about the important role of the appropriate person in the new model. As noble Lords know, under the DoLS system the relevant person representative—we are getting into difficulties of language—can be a family member, a paid role or even an advocate. That can unnecessarily give rights to two separate advocates. There has been confusion about the purpose of the RPR and how it differs to advocacy. Our intention is that the appropriate person role will be clearer, not least because it is a familiar part of the Care Act, where the appropriate person facilitates the person’s involvement in the care process Obviously, that person provides a vital safeguard for the cared-for person. They are appointed to represent and support the cared-for person, ensuring that the person’s rights are protected and that the person is fully involved in decisions. As I said, that is already established under the Care Act for the purposes of caring. The role of appropriate person can be fulfilled by a family member, someone close to the cared-for person, someone with lasting power of attorney or a volunteer. I know from previous discussions how keen noble Lords are to make sure that the voice of the person is central to discussions about their care and the deprivation of their liberty. Clearly, the appropriate person has an essential role here The noble Baroness, Lady Hollins, asked specifically about the question of a right to act. It is all very well appointing somebody—they also have to be willing to be appointed—but when appointing an appropriate person or recognising one, the responsible body has to be confident that the appropriate person is prepared to act. Indeed, that is part of their appropriateness. Otherwise, an IMCA should be appointed. That satisfies the noble Baroness’s question at the beginning about an appropriate person being appointed, but not about what happens if they lapse or the process by which they, or their appropriateness, would be reviewed. As it stands, I will need to reflect on that further to explain it to her. The process may well happen through the regular reviews, but I need to take that question away and think about how we provide reassurance that the appropriate person is in a position to act and wants to do so. Clearly, if an appropriate person, not an IMCA, was appointed but not prepared to act, the cared-for person would lapse into a situation where they did not have somebody in their corner, which we are all trying to avoid.