Mental Capacity (Amendment) Bill [HL] — House of Lords, 2018-11-21
Topic: Social Welfare
James O’Shaughnessy (Conservative, Centre-right): My Lords, we now come to the largest group of amendments on the issue that has perhaps taken up most of our attention in the progress of the Bill so far, and quite right too The government amendments in this group relate to ensuring that care home managers have an appropriate role in the liberty protection safeguards system that we are seeking to implement. You would have to have had ears of cloth not to have heard the concerns raised by noble Lords and stakeholders throughout the passage of the Bill about the proper role of care home managers. I agree that we must be absolutely clear at this stage in legislation about what is the right role for those care home managers. I also agree that there should be no scope for any conflict of interest—not when we are talking about the safety and care of very vulnerable people—and that we should ensure that all assessments are completed by those with the appropriate experience and knowledge. Furthermore, people should always have confidence that they will have access to independent support and representation I will shortly address the specific amendments in this group. Before I do so, I would like to draw noble Lords’ attention to other germane government amendments, which we will deal with on the second day of Report but which are important to consider in the round with the amendments in this group. Those include proposals that we have made to ensure that only responsible bodies can arrange the pre-authorisation review and that care home managers will be explicitly excluded from completing the pre-authorisation review. This is important because pre-authorisation should not confirm poor care planning or perpetuate a system where someone is receiving care in an inappropriate setting. The amendments that we have laid and which we will deal with on the second day will counteract any incentive the care home manager might have to ensure that a resident stays in a care home inappropriately. We are also determined to make sure that the care home manager cannot act as a gatekeeper to the IMCA appointment, and we have laid amendments accordingly There has been a great deal of discussion about the role of care home managers in authorisation. I have strongly and deeply considered noble Lords’ concerns in the context of what we know works now in the current system. There is a desire to make sure that the liberty protection system that we intend to introduce builds on what works and changes what does not. Under the current DoLS system, care home managers have the role of identifying that someone may lack capacity and need restrictions as part of their care. In practice, they must complete form 1, which brings together all of the current assessments for a person. This is then sent to local authorities, which appoint a best-interest assessor to conduct a further assessment ahead of providing the authorisation. This is an appropriate role for care home managers to undertake, and is the role we are proposing and clarifying through our amendments Amendment 30 requires the responsible body to make a decision on whether it is content that it is appropriate for the care home manager to carry out the relevant functions prior to authorisation, including arranging assessments and carrying out consultation. Amendment 90 applies this decision to reviews as well. This is an important change because it provides additional protections in cases where there may be concerns about a particular provider and its capability for conducting its role, and it allows responsibility to take on all the relevant functions in these cases. There may also be cases where there are no concerns about quality of care, but there may, for example, be particularly strong social worker involvement and it may make sense for them to take on those functions This power to remove the care home manager from the process can be enacted at any point, and we would expect it to be done at the earliest possible point, particularly if there are concerns. We will use the code of practice to set out the detail so that it is applied consistently by different local authorities, with clear criteria for the responsible body to make a decision on whether to retain responsibility for the relevant functions. In the case of care home residents, this significantly strengthens the role of local authorities in terms of oversight, intervention and supporting the quality of the operation of the scheme. If the responsible body has decided that the care home manager should be responsible for providing the statement and carrying out the other functions, the care home manager will bring together the information, evidence and assessments needed for the responsible body to make a decision on whether to authorise the liberty protection safeguard. In many cases, this will bring together recent valid assessments that can be used for this purpose As has been said previously, care needs change over time. We recognise that putting hard and fast rules on the validity and timeliness of assessments would not recognise the reality of what happens. That is why we will set out in the code of practice what we would expect to see in terms of valid and up-to-date assessments. The Bill also enables the responsible body to step in, if they are not confident in the validity of the assessments, by refusing to authorise the arrangements. Let me be clear that all the assessments would involve consultation with the person. In addition, the Bill will require the care home manager, or the responsible body, to complete the consultation with the person and other interested persons Some noble Lords have stated their concern that there is a potential conflict of interest if care home managers were to conduct assessments. The Government agree that there is a potential financial conflict if care home managers were to complete assessments for people in their own care homes, particularly when it comes to considering whether there are less restrictive alternatives. Amendment 52 explicitly excludes care home managers or people from undertaking the assessments if they have a specified connection to the care home, in particular if there is a financial connection. This will be set out in regulations. We will use the regulations to ensure, in England, that care home staff are not able to conduct assessments where they have a potential financial conflict of interest and the Welsh Government will have the power to do the same. Doing this in regulations allows us to provide the necessary detail, given the complexity of the care home sector, to ensure that there are no loopholes. For example, we would not want someone who works in another care home run by the same company to conduct the assessments Noble Lords have rightly asked questions about who undertakes the assessments and in particular why there were no clear requirements on the expertise of those who undertake capacity and medical assessments. That refers tangentially to the issue raised by the noble Baroness, Lady Hollins, before. Although that is already provided for in binding Article 5 case law, I have been persuaded that more clarity is needed. Amendment 52 clarifies that capacity, and medical assessments must be carried out by someone with appropriate experience and knowledge. Capacity assessments should be completed by a registered professional such as a nurse, social worker or occupational therapist, and medical assessments must be completed by a physician. We will set out in the code of practice the experience and knowledge that we would expect to see for those undertaking assessments On the point about experience and knowledge, Amendment 53 tabled by the noble Baroness, Lady Finlay, would have the effect of requiring that the person who conducts the assessment has the appropriate skills and knowledge. The noble Baroness is absolutely correct that the person who completes the assessment should have the necessary skills to be able to conduct the assessment. Amendment 52 already provides for that within the description of experience and knowledge and we would expect that to cover the necessary skills. We will define that in the code of practice so that it explicitly describes the skills, using the term "skills" and describing the kinds of skills that ought to be required of the person carrying out assessments. There are also some minor amendments that clarify definitions of care home manager and responsible bodies. Amendment 8 updates the definition of care home manager. Amendment 9 corrects the definition of care home manager in Wales. Amendments 11, 15 and 24 set out a definition of English and Welsh responsible bodies. Amendment 17 removes the definition of local health board as it is now superfluous I hope that noble Lords have had a reasonable chance to examine all the government amendments in this group. They have been carefully crafted to reflect to the best possible extent all the concerns set out by noble Lords at Second Reading and in Committee to remove any concerns about conflict of interest and make sure that care home managers are not, to coin a phrase, marking their own homework. They have an important role in organising assessments, but it is effectively an administrative function with proper oversight, and assessments will be carried out by those with the proper qualifications, expertise, skill and knowledge. I beg to move.