Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-10-22
Topic: Social Welfare
Molly Christine Meacher (Crossbench, Unknown): I will speak to Amendment 87C and apologise to the Committee for being unable to remain in the Chamber earlier—I had two commitments that I had to fulfil. I emphasise that it is a probing amendment; it will certainly need rewriting at Report if we bring something back. I thank Godfred Boahen of BASW, whose briefing was an enormous help in preparing my remarks Our aim is to stimulate a debate about the processes to deal with deprivation of liberty issues which arise in domestic settings. There is a case for enhancing the assessment processes in those situations. As it stands, the Bill makes no mention of people in domestic settings where deprivation of liberty is at issue. It is not clear—to me, anyway—what the Government have in mind and I hope that the Minister will be able to clarify the position. The Bill leaves vulnerable individuals in domestic settings where there is an issue of deprivation of liberty with no judicial protection, except through an appeal to the Court of Protection, a process which is onerous, costly, stressful and slow. That also leaves this group of people without access to a mental capacity professional in the event of an objection to the proposed care plan. The amendment assumes that, where a deprivation of liberty arises in a domestic setting, this would be considered, as now, under either the care planning or the safeguarding provisions of the Care Act 2014, but with two important reforms, which I will come to. Thus domestic settings would not come under the processes set out in the Bill Before referring to the proposed reforms, I need to clarify the two key processes involved under the Care Act, or the reforms would not make a lot of sense to anybody. First is the prospective model, as proposed by the Law Commission, when a deprivation of liberty is considered during care assessments and planning. The care planning processes apply here. During a Care Act assessment of needs, professionals will ascertain the likely impact of a care plan on the liberty of an individual, whom I will call P. The idea is that, in some cases, the state has prior knowledge that a deprivation of liberty will occur and has therefore taken the necessary steps to authorise it alongside establishing conditions to safeguard P’s human rights. This could be achieved through an amendment to the Care Act guidance, not a legislative change The great attraction of this approach, as the Law Commission recognised, is that the safeguards are implemented in a way that minimises intrusion into private and family life. The Law Commission argues that: "In most cases arrangements could be authorised in an unobtrusive and straightforward manner through a care plan and without a perception of State intrusion into family matters" In domestic situations and with the involvement of professional local authority employees in organising and undertaking the care planning, only where the care plan is contrary to the wishes of P would the involvement of the mental capacity professional be warranted. At present, the Bill does not make it clear that the MCP would be brought into domestic settings in any circumstances. This is one of the two areas in the Bill that need clarification. I am impressed that the Law Commission thinks that this approach strikes an appropriate balance between the rights of the person to be protected, and the rights to private and family life under Article 8 The second model for the deprivation of liberty in domestic settings is the retrospective model, where the safeguarding procedures under the Care Act 2014 come into play. Under Section 42(1) of that Act the safeguarding procedures apply to an adult who satisfies three conditions, which I do not need to go into. The safeguarding process involves P from the very beginning. There are certain crucial points about these processes: their desired outcomes should be considered; professionals have to balance P’s capacity against their best interests and the public interest; and the safeguarding provisions draw significantly on the best-interests principle of the Mental Capacity Act. If deprivation of liberty is an issue, then the Care Act safeguarding provisions and the Mental Capacity Act best-interests principle can be applied to generate a care plan which safeguards P’s interests while providing care and protection Within the safeguarding provisions an independent advocate is appointed when appropriate. What is currently lacking is access to a mental capacity professional in the event that P has concerns about or objections to the care plan. An amendment bringing the MCP into safeguarding in domestic settings is needed to align people in such settings with those in others My last point relates to the requirement under the European Convention on Human Rights that if P is deprived of their liberty, they must have access to a court. I have already referred to the current arrangement for access to the Court of Protection as the only court route. I urge the Minister to consider seriously the possibility that mental health tribunals could be adapted to become mental health and capacity tribunals to include those in domestic settings where P is objecting to the care plan Mental health tribunals already consider whether and how their judgments and the conditions they impose on patients might amount to a deprivation of liberty. Additionally, they have experience of the issues involved in deprivation of liberty considerations in domestic settings. This would not be something outside their competence, and that is very important. It would be too radical to introduce something entirely different. Such tribunals are local and would be speedier, less costly and more accessible for families who are themselves often vulnerable. They are less imposing and therefore less stressful for those involved Consider the case brought to my attention recently of an 85 year-old woman looking after her 89 year-old husband, who had severe dementia. She felt she could only cope by keeping her husband in one room. The idea of taking that case to the Court of Protection just feels unreasonable. It certainly needs sorting out in some way, but not that way. In line with the estimated number of appeals to the tribunals, clearly, the number of tribunal members would need to increase. However, as well as having advantages for those involved, this reform would surely be less costly than the current Court of Protection process. I hope we can have a short but constructive debate today and that the Minister will meet us to discuss the best way forward. It might not be exactly what I have suggested, but we really need to think this through carefully. I beg to move.