Mental Capacity (Amendment) Bill [Lords] — House of Commons, 2019-02-12
Topic: Social Welfare
Barbara Mary Keeley (Labour, Centre-left): No. On the Opposition Benches, we are not satisfied with very much about the Bill, but I am talking about our amendments for care home managers because we feel that safeguards have been weakened. I will give an example, because there are many cases where the powers of care home managers are used to shut down any opposition to what they are doing. A person whose husband was in a care home visited him every day and took a keen interest in his wellbeing. He had lost the ability to speak and had little mobility. She found that he was in pain and when she raised that with staff, they failed to act and dismissed her concerns. She then raised it with the care home manager who warned her that if she continued to take up staff time, she would be banned from visiting her husband who was actually nearing the end of his life. That is an awful thing—that a wife would be banned from visiting her husband near the end of his life. It was only with the help of an outside organisation that the cause of the pain was identified. If relatives, including spouses, were prevented from visiting in the situation that I have just described, how could they be raising a major objection? How could they be challenging the care home manager? The appeals question that my hon. Friend the Member for Hornsey and Wood Green (Catherine West) just raised with me is very concerning Under the current provisions of the Bill, care home managers are expected to carry out the consultation process, and yet this is the one opportunity that the cared-for person and their family have to register any objections to the proposed arrangements. The process needs to be carried out independently so that people can feel free to speak their minds. Amendment 49 achieves that. It prevents the local council from delegating the consultation process to the care home manager, and then this crucial step must be carried out by the local council itself In Committee, the Minister said she believed that it could be appropriate for a care home manager to carry out that process, because those with an interest in the welfare of the cared-for person can flag up objections, but that would not always work in practice. For that to happen, a family member would have to know that they had the right to do that. They have to know with whom to raise their objection and then raise it in a timely manner. That is pretty key in relation to this business of care homes and to challenging on behalf of the cared-for person. It is not reasonable to expect people to understand the intricacies of the system. Similarly, we cannot expect everyone to have the confidence to negotiate the system for themselves. We here perhaps do not always think how hard it is to challenge those in authority, but it is a very difficult thing to do indeed. We need to offer a cared-for person a chance to object in a setting that they are comfortable with, without fear of reprisals from care home managers Government amendment 38 goes against the principles that I set out in relation to our amendment 49. It is unacceptable for the care home manager to be involved in that consultation with the cared-for person and their family, so we are in a situation where the two amendments are directly opposed Let me move on to our third amendment, amendment 51, on advocacy, because that addresses the provision of independent advocates for cared-for people. That is a crucial safeguard, which enables people to realise their rights under the Mental Capacity Act 2005. The advocacy system proposed in this Bill is excessively complex. It could see people being denied an advocate when they need one. Our amendment seeks to simplify the system, ensuring that advocacy becomes the default option. Stakeholders have told us that they are concerned about the use of a best interests test to determine whether somebody should receive an advocate Clearly, there is a situation in which the Minister thinks that a best interests test is used to avoid overriding the wishes and feelings of the cared-for person. We agree that advocacy should never be forced on somebody, but we must be explicit about this principle of advocacy being available as the default.