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

Part of the debate – in the House of Lords at 9:30 pm on 22nd October 2018.

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Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour 9:30 pm, 22nd October 2018

My Lords, I have three amendments, starting with Amendment 87A. It sets out a number of requirements before the Act can come into force, embracing a set of independent reports that I would like to see commissioned by the Secretary of State. They address work on the rewording of the expression “unsound mind”; the availability of independent advocacy; appeals on behalf of cared-for persons; the availability of legal aid and support for cared-for persons participating in court proceedings; and short and long-term costs for implementing provision bills for local authorities, the courts and the health service. I recognise some of these points have already been discussed, on the second day of Committee in particular, and the Government are bringing forward amendments so the Bill reflects the need to consult the cared-for person. The Minister also agreed to look further at the expression “unsound mind”, which many believe is stigmatising and outdated language.

I hope the Government might just go further. This amendment is based on the report of the Joint Committee on Human Rights and reflects some of the issues it would like to see covered in legislation. I will not comment in detail, but I want to come back to the role of the Court of Protection. We discussed this on the second day of our proceedings, and I think the Committee was informed by the view that recourse to the Court of Protection should be avoided wherever possible, because of the stresses and strains involved and the cost. I am certainly conscious that we do not want to create a situation where mental capacity professionals defer their responsibility to the court, and individuals have to undergo court procedures unnecessarily.

According to Dr Lucy Series of the School of Law and Politics at Cardiff University, while the cost and stress of applications to the Court of Protection is undeniable, research by Cardiff has shown that the Government have taken the decision not to reform the Court of Protection, which would make it less costly, less stressful and more like the tribunal approach that many noble Lords would like to see. It is instead being managed by, essentially, restricting access to justice. A week ago, the noble Baroness, Lady Stedman-Scott, said that,

“if a person wants to challenge their authorisation in the Court of Protection they have the right to do so”.—[Official Report, 15/10/18; col. 371.]

However, the practicalities are that people may experience extreme difficulty initiating a court action without assistance, as will their families. The evidence on this matter was very clear to the House of Lords Select Committee on the Mental Capacity Act and the Law Commission. I hope that the Government will consider it.

My second amendment, Amendment 87B, concerns the Care Quality Commission’s role in relation to the Bill’s provisions. I have already referred to the CQC’s recent annual report, which has a section on DoLS. It is required reading because it shows some of the issues that have arisen practically on the ground in trying to understand complex legislation and implement it effectively to ensure that people’s liberty is protected as much as possible. I do not want to repeat what I said, but it is quite clear that the CQC has a valuable role in monitoring the operation of DoLS and, in future, this amendment Act.

The view I put to the Government is that, because of the frailties in the system that we see, the CQC will need to have a stronger role in monitoring the Bill’s operation. Essentially, my amendment is designed to do just that. I understand that it would require a significant increase in CQC activity. I am also advised by the CQC itself that some other legislative changes might be necessary. None the less, although this is a probing amendment, the CQC’s role is worth examining and strengthening for these new provisions.

Finally, Amendment 92A is a probing amendment. We have discussed the backlog; I would like to hear from the Government how it will be handled. Am I right in thinking that once you start a process it needs to be completed under existing legislation, even though you might not have got very far with it, or is it assumed that all of those backlogged cases will be transferred over to be dealt with under the new legislation? If that is so, have we really considered the impact, particularly on care home managers, of suddenly being faced with many more cases to be dealt with at the same time as picking up their new responsibilities? There is hard evidence of backlog issues causing systems to break down because the Government assume that bringing in new legislation will deal with the backlog. Notwithstanding that this is a more streamlined process, there is still an awful lot of work to do. I would like to hear a little more on how the Government propose to deal with this without pulling a ton of bricks down on the new system. I hesitate to raise the Child Support Agency, which is the classic example of trying to embrace on day one in a new system all those people who had gone before. The system collapsed. We do not want the same thing to happen here.