Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-10-15
Topic: Social Welfare
James O’Shaughnessy (Conservative, Centre-right): I am very grateful to all noble Lords for tabling amendments on this very important topic of making sure that when these decisions are made and the assessments of them carried out that they are done on the best possible evidence. That informs all the amendments in this group We have talked already about the role of the care home manager in arranging assessments and providing a statement to the local authority while the assessment is conducted by a suitably qualified professional. Clearly we will explore that further following the debate tonight. It is also clear that in many cases care home managers will be using assessments that have already been conducted, wherever possible, ensuring that we reduce duplication. There is clearly a balance between making sure that we have access to the best possible information and not creating extra burdens on the system to duplicate work where a previous assessment would be useful, up to date and valid I will deal with the amendments in turn and try to think about how we can get that balance. Amendment 21 in the names of the noble Baronesses, Lady Barker and Lady Jolly, would remove the ability of care home managers to rely on previous medical and capacity assessments. It would mean that assessments could be relied on only if responsible bodies judged it appropriate. Our belief is that where valid assessments are already in place and have been completed by a suitably qualified professional—such as those completed as part of a care plan—they should be used. We are concerned about the implications of the amendments in this group because of the duplication that could arise, particularly perhaps if there is a difference between assessments and each person who carried out the work is still of the view that their judgment was the correct one. We need to be concerned about that as we are trying to simplify the system We also do not believe it would be proportionate to expect care home managers to seek permission from a responsible body on every case where there is a previous or equivalent assessment, especially when it is clear for example that somebody has a lifelong diagnosis such as a learning disability and a previous assessment can be reasonably expected to provide valid and reliable evidence of this I understand the intention of the noble Baronesses in wanting to avoid care home managers relying on previous assessments when it is not appropriate to do so, which I think is what has informed these amendments. That is where the responsible body reviewing is incredibly important. Generally speaking it will be a senior social worker who will be able to examine the case and if there is an overreliance on past—particularly quite long-dated—assessments in that statement, it will be a flag for escalation to the AMCP I understand why there is concern about giving too much leeway to the care home manager, but I also think the amendment would deliver a disproportionate system. It would not provide the degree of flexibility we want and therefore we intend to outline the appropriate use of previous assessments in the code of practice. I think that that is the appropriate vehicle Amendment 22 in the name of the noble Baroness, Lady Tyler, seeks to ensure that medical assessments are completed by a registered medical practitioner. Clearly our intention is that that should be the case, and that the person who conducts the medical assessment must be suitably competent. I use that word rather than "qualified" and we will set out further detail in the code of practice. As was stated by the noble Baroness, Lady Thornton, and others, human rights case law already requires that a deprivation of liberty must be based on objective medical expertise. That can be done on a competence basis rather than on qualifications. Qualifications change whereas competencies, by and large, remain the same. That is why we will focus on a competence-based approach rather than listing professions in a code of practice. A code of practice gives us the ability to exemplify the kind of competencies we mean without being restricted, which would be the case if it were in the Bill, to only certain categories of worker, which might change over time Amendment 23 in the names of the noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, creates a duty under liberty protection safeguards to assess whether steps to establish supported decision-making are practical. As I am sure noble Lords know, supported decision-making is already part of the law, and indeed it is the second principle of the Mental Capacity Act. Perhaps one of the reasons that this amendment has come forward is that this is an amendment Bill and therefore there can be a dislocation sometimes between what we are considering and the wider context It is already the case that steps should be taken to support people to make their own decisions. We have not brought forward the Law Commission’s recommendation to set up a formal supported decision-making scheme because that legal entitlement already exists. Wherever possible, of course, people should make decisions for themselves and be supported to do so. However, as I say, the second principle of the Mental Capacity Act provides that legal force and in the code of practice we will set out the guidance about how that should work in principle The noble Baroness, Lady Thornton, introduced Amendment 24, which describes the process of how someone should be deprived of their liberty. It was helpful for her to refer to the NICE guidance on this. We have already talked tonight about a written record—I think that goes some way—and the basis on which it is shared, which is also important. I will provide more detail on that. The concern about the way that this has been framed is that it is too specific to be in the Bill and the process and the terms may change over time. Although I am sympathetic to the idea that there needs to be clarity about what the appropriate process is, that is best done in the code of practice rather than in the Bill The noble Baroness, Lady Finlay, introduced Amendments 24A, 24B and 24C. I need to reflect further on the implication of these amendments because the way she described them was perhaps not how we had previously interpreted them. My only concern is that one of the effects might be that only responsible bodies could decide to rely on previous assessments, because she has taken care home managers out Amendment 25 from the noble Baronesses, Lady Barker and Lady Jolly, would require the care home manager or responsible body to have regard to any change in a person’s circumstances when seeking to rely on a previous or equivalent capacity or medical assessment. I agree with the intention of the amendment, which is to ensure that before relying on a previous or equivalent medical or capacity assessment proper consideration is given to whether it is reasonable to rely on it. The Bill allows for this already. Such an assessment can be used only if it appears to be reasonable to rely on it. As we have said, responsible bodies when reviewing such statements are obviously legally liable for making sure that the reasonableness test is carried out. Again, we will provide more detail in the code of practice about where it is reasonable to rely on an assessment The noble Baroness talked about the difference between condition and circumstances, or the complementary nature of the two. If circumstances change and this affects a person’s capacity or diagnosis, it would also need to be considered before relying on previous or equivalent assessments. We are reflecting at the moment on whether the Bill as drafted achieves our aim here. So this is a topic for a further conversation to make sure that we can get the appropriate balance in this area without introducing too many additional terms that might in themselves provide greater unclarity—which of course is something we are trying to avoid Amendment 30 deals with less restrictive arrangements. This is a principle of the Mental Capacity Act and the Bill makes no change to it. Again, we will provide more detail in the code of practice as to how the new model will work in the wider health and care system, including the Mental Capacity Act and the Care Act.