Mental Capacity (Amendment) Bill [HL] - Committee (3rd Day)

Part of the debate – in the House of Lords at 8:15 pm on 22nd October 2018.

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Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords) 8:15 pm, 22nd October 2018

My Lords, this has been a fascinating debate. I listened very carefully to the speech of my noble friend Lady Hollins. Her experience shone through, and there was much wisdom in her comments. I worry that perhaps in this and the previous group of amendments we have not adequately focused on the need to support the cared-for person as much as possible in making their own decisions and in supporting them. I can envisage a situation where the appropriate person has limitations for whatever reason and it would seem very sensible that they were then able to request an IMCA be appointed.

However, just on the other side of it, we must not forget the enormous burden out there already. Only last week I spoke with a brain injury case manager, Dr Mark Holloway, who works with a care home. He said he is currently managing 13 cases of clients with acquired brain injury who are awaiting DoLS approval from the local authority. Despite the efforts of the care home staff and their solicitors, they have not been able to get this through. We must not lose sight of the fact that the current system is, quite frankly, completely failing. He was saying that they have worked very hard to make sure that it is the least restrictive option, but he is concerned at the lack of scrutiny of their decision-making. In their efforts to acquire DoLS authorisations, the care home staff have sought and paid for expert legal advice on multiple occasions to support them constructing clear and evidenced capacity assessments. He stresses the difficulty of assessing capacity in acquired brain injury and the need to assess function: not just what is said but how the person is actually functioning—what is done and the complexity of it.

I hope that we will return to the issues behind this set of amendments, because in a way I do not feel that we have done justice to the subject tonight. It does need a bit more discussion outside this Chamber. I beg leave to withdraw my amendment.

Amendment 65 withdrawn.

Amendments 66 to 80 not moved.

Schedule 1 agreed.

Clause 2: Deprivation of liberty: authorisation of steps necessary for life-sustaining treatment or vital act

Amendments 81 to 82 not moved.

Debate on whether Clause 2 should stand part of the Bill.