Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-09-05
Topic: Social Welfare
Elaine Murphy (Crossbench, Unknown): My Lords, we have come to what I regard as the most important and possibly stickiest, most difficult issue that we face. It addresses the reason why we are all here today with a new Bill to try to solve the problem of the old one, which did not work. Why did the old DoLS not work? Because they were overbureaucratic, very expensive—we are talking about £2 billion a year and this is cheaper at £300 million, although someone said to me that this costing business is rather a science fiction at the moment—could not be implemented and were predicated on a judgment in Cheshire West that extended the previously accepted notion of deprivation of liberty. I wanted to have a first go at introducing a restricted definition of what constitutes deprivation of liberty for the purposes of this Bill I am primarily concerned not about the cost, but the risk. When tens of thousands of people are subjected to a procedure, those whose circumstances really need scrutiny and review—because they themselves or their families or professional carers are objecting to their care or placement—are not receiving the focus and energy of the safeguarding process because they are simply lost in the morass of processing so many cases. Already we know that the tick-box mentality has pervaded the existing procedures, and that is not because the people who are trying to implement them have not been doing their best. There are not enough of them. They are trying to rush around with a list as long as your arm and they cannot get through it I had heard that there are now 140,000 unassessed cases, although I think the noble Baroness, Lady Finlay, mentioned 106,000. Noble Lords should think how long that list would take to deal with. With a mean length of stay in residential care of two years from admission to death, many elderly people with dementia—who, after all, are being cared for because of a terminal illness—will never be assessed before the great final assessment. By the way, I only hope that when they encounter Saint Peter at the pearly gates they do not find that a specially approved angel has been designated to assess whether heaven is in their best interests or not—it is quite possible. To return to more serious matters, it is crucial that we reduce the numbers that will be scrutinised by this system so that those who are truly at risk of abuse or of receiving less than adequate care are better safeguarded Of course, we could wait for another case to come before the Supreme Court for the penny to drop, but Parliament should surely provide a statutory definition of what constitutes deprivation of liberty in the case of those who lack capacity, in order to clarify the application of the Supreme Court’s acid test and bring clarity for families and frontline professionals. There is a risk that the Law Commission’s proposals—the safeguard principles have much merit—will become unworkable both in the domestic sphere, where we have hardly started to take people into the system, and with the potential expansion of the scheme into domestic care settings, which will become exceedingly invasive and difficult to operate. And that is in the context of care homes and joint living arrangements that are not being adequately met Many legal experts, including Lord Carnwath and Lord Hodge, found the decision in the case of Cheshire West puzzling. They said, "nobody using ordinary language would describe persons living happily in a domestic setting … as being deprived of their liberty" In their evidence to the Joint Committee on Human Rights, Sir Nicholas Mostyn and Sir William Charles, retired Family Court judges, submitted that the proposed liberty protection safeguards are based on an acid test in which the starting point is legally wrong, and should be revisited. Sir Nicholas noted that, "no case from Strasbourg has come close to saying that the case of someone of ‘unsound mind’ (as Article 5 puts it) falls within the terms of that article if they are being looked after in their own home" Further, he argued that, "it is surely vanishingly unlikely that Strasbourg would disagree with the narrower test", that used to be used. He said that, "it is after all completely consistent with its jurisprudence, which mandates a fact sensitive approach and which looks at the range of factors such as the intensity of the restrictions in question" The Joint Committee on Human Rights agreed with that point and introduced in its report the case of Mark Neary. I will not go into that case now because of shortness of time, but a number of cases were described where people were clearly being deprived of their liberty and families could not understand why it was happening. The new definition from Cheshire West cast a very wide net, capturing people who were content and those who had expressed de facto consent, albeit not valid consent for the purpose of the law. That has led to incredible family distress—people felt that their loved ones were being deprived of their liberty as a result of care plans—as well as resource issues. It sits at odds with the UN Convention on the Rights of People with Disabilities, which emphasises respecting the autonomy and wishes of those with disabilities The question is whether an amendment could be introduced to solve this problem. The Scottish Government gave some thought to amending their own Act and suggested a number of principles that might be followed. First, if a regime looks like detention, it does not lose that characteristic just because the person does not display opposition. Secondly, if a regime does not look like detention but the adult displays opposition to staying there, that should be considered as placing significant restrictions on a person’s liberty. Thirdly, a person may be perfectly content to move to another place of residence, but may not agree with aspects of their care, which amounts to a significant restriction on their liberty. Fourthly, a person may remain in the same residential setting, but become subject to changes in aspects of their care that mean they become subject to significant restrictions on their liberty. We often see that in care homes where people are moved from a general unit to a specialist unit for dementia, or to an elderly mental care unit when they become "unmanageable", with quite serious restrictions placed on them A person may be considered as having significant restrictions if: the adult is under continuous supervision and control and is not free to leave the premises; barriers are used to limit the adult to particular areas of premises; or the adult’s actions are controlled by physical force or the use of restraints, by the administering of medication for that purpose or by close observation and surveillance, which can be very intrusive. However, measures applicable to all residents in a given place that are intended to facilitate ordinary, proper management of the premises, such as security cameras at the front door and front door locks—the sort of things we might have in our own homes—should not necessarily be regarded as restricting liberty It is crucial that the first principle of the Mental Capacity Act be paramount in any decision. Whenever possible, a mentally incapacitated person should be listened to and their wishes respected. While short-term memory may be seriously diminished, the individual often still recognises the people around them and can express a wish. Where there is a clear agreement between an adult, their family and professional carers, I believe the state should keep its legislative nose out. This may not be the right amendment, and I look forward to listening to others whose ideas are also contained in amendments tabled in this group, but it seems we should concentrate our resources on those who are really at risk, where we are confident that we have the resources to concentrate training and interest on a smaller group.