Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-09-05
Topic: Social Welfare
James Donnelly Touhig (Labour, Centre-left): My Lords, I am very pleased to follow the noble Baroness. I think she made her maiden speech at Second Reading; it was an important contribution. She has sat through this debate and made a few important points. We certainly welcome her and look forward to further remarks from her as we proceed with our considerations I support the amendment in the name of the noble Baroness, Lady Hollins, addressing as it does concerns expressed by me and other noble Lords at Second Reading. The Bill provides a different route of authorisation for a deprivation of liberty when a cared-for person lives in a care home. In this circumstance, it places a new duty on care home managers to carry out the assessments and consultation prior to authorisation. I echo the noble Baroness’s concerns that this creates a conflict of interest. We have already considered some of these aspects earlier but none of us needs make any apology for coming back to it because it is so very important. Care home managers will have an important insight into an individual’s needs and they should be included as a source of information, but a responsibility to carry out the assessment requires more than simply providing information. It is a different skill set from their expertise as a provider Furthermore, care home managers are not independent and although they are not responsible for granting the overall authorisation, the contents of those assessments will be key to local authorities’ overall determination. This is particularly important where there are concerns about weaknesses in the pre-authorisation review outlined in Clause 18. That clause does not, as drafted, secure the independence of the person carrying out the review. It does not ensure that a rigorous review is carried out. As it stands, it risks the pre-authorisation review. The overwhelming majority of care home managers would undertake their duties honestly and assiduously However, we have to face facts. This Bill, as drafted, leaves the door open for a dishonest assessment, and we have to speak plainly about it. That should concern this Committee as we are debating the system of legally depriving some of the most vulnerable people of our society of their liberty—nothing can be important than that. Furthermore, it is unclear what assessment the Government have made of the burden this would place on the care home managers. This will account for more of their time, which is scarce in any event. It will also add new complexities to their role; perhaps the Minister might want to further tell us how the Government envisage a proper training programme and what resources will go alongside it to allow them to perform these new duties The concerns I have outlined are widely held. They have been expressed not just by me but also by a number of charities. It should be noted that the amendment before us has the support of the National Autistic Society, of which I am a vice-president, Age UK, the Alzheimer’s Society, the British Institute of Human Rights, Liberty, Mind, Rethink Mental Illness, the Royal Mencap Society, Sense, and VoiceAbility —we could go on. They have also been expressed by the Law Society. Those concerns are also held by professionals. A survey carried out on the Government’s proposals by Community Care and Edge Training & Consultancy asked professionals whether they agree with the proposals that care home managers would carry out assessments. An overwhelming majority—86%— disagreed. My goodness, we could have those votes in some elections. It is certainly a very powerful message. That question also provoked the highest number of written comments and these are relevant to our debate. One said: "This is the most obvious concern with the new proposals: there is a direct conflict of interest with the provider". Another said: "Where is the independent viewpoint?" A third said: "This process will be a waste of time at all levels if the initial process is not completed thoroughly" It is right that we subject this aspect of the Bill to thorough scrutiny. It was not part of the draft Bill produced by the Law Commission and therefore has not been spoken about and debated at length, as have other aspects. It has gathered significant criticism too, and we should be prepared to listen to that criticism. Therefore, the noble Baroness’s amendment strikes a very sensible balance. It ensures the independence of the assessment process, it alleviates some concerns about the independence of the pre-authorisation review, and it also secures the important role of care professionals in providing vital insight into the individual’s needs. I echo the noble Baroness’s requests for the Minister to give us his views on the conflict of interest that arises from this clause, and whether we may instead consider ensuring that any assessment is carried out by someone independent of the care home. This is a very important matter which we will be coming back to a lot, I am sure.