Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-09-05
Topic: Health
Philip Alexander Hunt (Labour, Centre-left): My Lords, I was not able to be present at the Second Reading and I have recently been apprised of concerns by the Residents & Relatives Association about care home residents without mental capacity who, they believe, are at risk of being let down by some of the proposed changes in the Bill. At Second Reading, the noble Baroness, Lady Tyler, mentioned that the timing of the Bill had taken many by surprise and added to that the rather pick-and-mix approach of taking some aspects of the Law Commission proposals but not others, which means that extensive scrutiny is well deserved. Unfortunately, the scheduling of the first day of Committee so soon after we came back means that many of the briefings from key stakeholders have come too late and we have not been able to translate them into amendments. So I thought it might be useful if I used a debate on the first clause to discuss some of these issues. In particular, let me make it clear that I do not disagree with the aim of the Bill. I support its general intent, and therefore the aims of Clause 1, but there are some real concerns, particularly with the Government’s decision to depart from the Law Commission proposals regarding the role of care home managers. There are some real concerns here: first, the conflation of care planning with significant deprivation-of-liberty decisions; secondly, the burden and risk being shifted to providers; thirdly, the inherent conflict of interest being placed on managers and providers in the design of the new system; and fourthly—this came up at Second Reading—the capacity and capability of the sector to implement the proposals These concerns emanate from the decision to move responsibility to form the new assessments from local authorities to the care provider. This means that, in effect, care managers will become responsible for organising and conducting the assessments necessary for the liberty protection safeguards, when they are responsible for that person’s care. The Department of Health’s argument is that all it is doing is taking the Law Commission’s proposition that care planning should be at the heart of the new model, but the Law Commission did not say that these assessments should be done by care managers. In any case, if we are talking about a preventative approach, and if the aim is for assessments to take place prior to admission, which I think it is, one has to ask how it can possibly be appropriate for the care home manager to do that job The reality is that care home managers will have the responsibility to make crucial decisions about restricting a resident’s freedom that were previously made by independent people. The assumption seems to be that the resident’s best interests will generally coalesce with that of the provider, but we know from experience that that is not necessarily so. The Relatives & Residents Association, which has a helpline that receives lots of calls from anxious relatives and friends, points out that currently, families can be in conflict with the care home when the resident and their next of kin or lasting power of attorney may wish to move elsewhere, about who may or may not visit, and about whom they may or may not wish to see. This sometimes results in relatives or friends being restricted or banned, or residents being given notice to quit by the care provider These examples alone ought to give rise to concerns about what could be described as draconian powers now being given to care home managers. The responsible body makes its decision having regard to the report by the care manager and supporting evidence, but there is no requirement that I can see to have regard to other evidence. Although the responsible body must be satisfied that the care manager has been through the process in the Bill, the impact assessment suggests that this will be merely a desktop exercise. I would be glad if the Minister could confirm that, or say just what it is that the local authority can undertake. At the moment, on the face of it there is a massive conflict of interest with no external checks if the manager reports that the person is not objecting. That would, for instance, open the door to collusive relationships between the home and relatives. There is then the question of training, which was raised at Second Reading by a number of noble Lords. We have already heard that there were problems with people in the field understanding the requirements of the existing legislation. What is now being put forward is, in my view, in many ways a more demanding and wide-ranging process, certainly in the care sector. Despite the statement in the Government’s impact assessment that they have engaged with service providers, it is noticeable from the briefings we have received in the past two days from many care providers that they too are very concerned about the responsibilities being placed upon them. The consultation seems to have been selective, in that the people who were consulted do not appear to speak on behalf of the sector. Again, it would be useful to nail this one as we go through our debates The impact assessment assumes a zero cost to homes and that half a day’s training will suffice. Surely the Government cannot be serious about that. Are they really saying that these new responsibilities can simply be subsumed into the everyday business of care homes at the moment? That surely gives the lie—the concern is that the deprivation of liberty in relation to people covered by this amendment Bill is not being taken seriously enough Over the weekend I read a briefing from a national group of regional deprivation of liberty safeguard leads, who should know a thing or two about this. They point out that, as we know, the provisions relating care homes were never part of the original consultation, and that at no point have local authorities had an opportunity to road test how taking on such a significant assessment role would work in care homes. They say that this is all the more important because the Bill leaves the detainer determining whether the conditions for detention are met, and again, this potentially creates a conflict of interest and risks a return to the state of arbitrary detention In summary, it is not appropriate to give care home managers these new and inappropriate responsibilities for vulnerable and often isolated residents for the following reasons. First, they clearly require the care home manager all too often to be judge and jury about decisions in which they were involved, and in which the viability of whose business may depend on income received from detained patients. Secondly, the state of the sector surely gives rise to concern. I know that there are some fantastic care homes, but one in five has no registered manager in post, despite this being a mandatory requirement, while turnover is estimated to be a massive 27%—and they need only half a day’s training. That is simply not believable I question whether care managers have the background, time or training to carry out this onerous role. I also question why care home residents, who are surely part of the community, are being treated differently from peers living in their own homes who may be equally vulnerable. This is worth a more general debate, although I recognise that there are amendments to come. However, the Government need to think again and at least explain in rather more coherent terms why they think it is reasonable for care home managers to carry responsibilities which have built into them clear conflicts of interest.