Schedule to be inserted as Schedule AA1 to the Mental Capacity Act 2005

Part of Mental Capacity (Amendment) Bill [Lords] – in a Public Bill Committee at 9:45 am on 15th January 2019.

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Photo of Barbara Keeley Barbara Keeley Shadow Minister (Mental Health and Social Care) 9:45 am, 15th January 2019

I agree with my hon. Friend, and we will talk specifically about that later.

The Court of Protection exercises powers under the Mental Capacity Act 2005, under section 25 of the Children Act 1989 or its inherent jurisdiction, or under the Mental Health Act 1983, should that young person require in-patient treatment. The limited protection safeguards created by this Bill introduce a new administrative process as an alternative means of authorising a young person’s deprivation of liberty, and that is why we have to be careful.

In one sense, having this alternative means of authorising a deprivation of liberty of a young person is desirable, in that it may address some problems associated with the cost of making an application to the courts under the pieces of legislation I just referenced. The liberty protection safeguards might also act as an appropriate and proportionate bulwark in cases where care arrangements are not contentious, due to the type of care that is provided, the level of restrictions imposed and the consensus on the suitability of arrangements. For instance, if the placement meets with the young person’s approval and has been made with the agreement of the young person’s parent—a point that my hon. Friend the Member for Slough raised—in relatively straightforward cases, the extension of liberty protection safeguards might act as a convenient and straightforward mechanism.

The wider effectiveness of the liberty protection safeguards, however, depends on the additional safeguards, and we remain concerned that those provisions are not sufficiently robust in the Bill. One concern is about how the liberty protection safeguards will be resourced, a point that my hon. Friend the Member for Nottingham North has discussed at some length. We will come back to the question of resourcing when we reach the new clauses, so I will only touch on it here. The liberty protection safeguard system must be sufficiently resourced, and I hope the Minister will give an indication that she will address that point.

Our second concern is the information given to families that makes them aware of their right to apply to the Court of Protection in cases in which scrutiny of the court must occur, such as when a young person’s parents object to a proposed care plan. I will speak about parents’ objections and rights in the process of depriving liberty later when I speak to amendment 30, but it is worth mentioning here. There are further measures that we could put in place, which is why we have tabled amendment 38 to offer an additional layer of safeguards to the process and to reassure stakeholders, such as the Law Society, who have rightly expressed concerns.

Amendment 38 would extend the obligation for an approved mental capacity professional to conduct a pre-authorisation review for 16 and 17-year-olds. That should be explicit in the Bill and I am hopeful that the Government will agree to the amendment. It seems illogical to include 16 and 17-year-olds in the scope of liberty protection safeguards in the Bill but not to extend the obligation for an AMCP to conduct pre-authorisation reviews for them, and to omit to put in place the same safeguard for adults over the age of 18.

It would be useful to reiterate why pre-authorisation reviews undertaken by approved mental capacity professionals are a crucial component in implementing the liberty protection safeguards, and to reinforce the point that they should be conducted in cases that concern 16 and 17-year-olds. The Bill has moved on substantially from the proceedings in the House of Lords, which—thankfully—removed the responsibility for pre-authorisation reviews from care home managers, and so removed much of the dangerous conflict of interest enshrined in the first draft of the Bill. It is absolutely essential that the pre-authorisation review takes place and that it is undertaken by a professional.

On amendment 37, we welcome the principle of additional safeguards in relation to AMCPs. There has already been some discussion about independent hospitals and, as we will explore in further amendments, we feel that does not go far enough. Independent hospitals should under no circumstances be the responsible body.

In evidence to this Committee, we heard from Lucy Series on mental health detention—I have to say that things are being done in such a rush here, and the evidence to the Committee came in very late. Dr Series said that the liberty protection safeguards

“apply in hospital settings where the Mental Health Act also applies, and some people in the community may be subject to both the MHA and the LPS (as they currently are under the DoLS).”

The Minister referred to numbers earlier, and it is important to have the numbers in mind as we think this through in relation to independent hospitals. This is not about a small number of cases. In 2017-18, there were 4,670 DoLS applications from mental health establishments in England. Of those in which the local authority completed the required assessments—the Minister has referred to the backlog, so the assessment can only be of a proportion of the total cases—the majority were for people with dementia, and a substantial proportion were for people with learning disabilities and other mental health needs, most likely to be autism. Supervisory bodies authorised 1,660 detentions in mental health establishments in 2017-18, but in 305 cases, they found that the qualifying requirements were not actually met, which indicates that 16% of all completed applications from mental health establishments were found by assessors not to meet the DoLS qualifying requirements.

As the next paragraph of Dr Series’s evidence covers:

“Extremely complex rules govern the interface between the MCA and the MHA.”

We will return to that. She goes on:

“For a person who is deprived of their liberty in hospital for treatment for mental disorder, the DoLS cannot be used where a person is objecting (meaning that the MHA must be used instead), but where a person is not objecting then either the Mental Health Act or the DoLS can be used.

The Law Commission had proposed that the LPS should not be used for mental health detention (except for limited circumstances where the MHA cannot be used). This was partly because the MHA offers much stronger safeguards”— that is a very important point for us in this Committee—

“including second opinions for medical treatments where the person lacks capacity, stronger rights for the ‘nearest relative’ to object to detention or discharge the patient, automatic referrals to the tribunal and free after-care to facilitate discharge. It was also because of the desire to reduce the complexity of this interface. The Bill, however, replicates this extremely complex interface and if recent proposals by the chair of the Independent Review of the MHA are adopted, even more people would be subject to the LPS than currently are under DoLS.”

That is an important shift that we need to bear in mind. The evidence continues:

“The fairness of denying people with dementia and learning difficulties the stronger safeguards of the mental health act is questionable, and should be the subject of further consultation before a mental health bill is introduced.

In the meantime”— and that is where we are with the Bill—

“the people subject to the LPS are likely to be regarded as not objecting, meaning they are unlikely even to qualify for a review by an AMCP.”

So, an AMCP review is not going to be the entire safeguard that we need it to be, and:

“This is extremely problematic. Mental health detention is one of the most restrictive (and arguably dangerous) forms of detention under the LPS scheme. It contains some of the most complex assessments of the interface between the MCA and the MHA, which at present can only be undertaken by a professional with specialist training and qualifications under the MHA. DoLS assessors often find that the qualifying requirements are not met in mental health establishments.”

I have quoted the numbers on that—16% of people being held did not even meet the qualifying requirements. The evidence continues:

“There are very serious risks of unlawful detention and excessive restrictions in these settings. An AMCP review should be required in every case where the arrangements are to secure inpatient treatment for mental disorder.”

Amendment 37 proposes that an AMCP review be required in cases where physical restraint, sedation or covert medications are used; where it is requested by the cared-for person or their family or friends, regardless of whether that person is seen as objecting; where restrictions are placed on contact with family or friends—I will talk about cases with such restrictions later; and, as we have already heard, where there is a less restrictive option for the cared-for person’s care or residence.

Crucially, the amended clause would provide for a pre-authorisation review by the AMCP if it reasonable to believe that the cared-for person does not wish to receive care or treatment overall. The approach that we have taken in our amendment reflects the higher-risk criteria adopted by the Association of Directors of Adult Social Services. With the backlog of DoLS applications, that tool is used

“to help local authorities prioritise the DoLS applications and manage the backlog,” so it is an approach adopted up and down the country by social services departments. The higher-risk criteria suggest that a response may be needed so as to safeguard the individuals concerned.

Those provisions have been prompted by cases such as that of Steven Neary, a young man with autism and a learning disability who was placed for a period of respite care in a small behaviour support unit by his local authority, Hillingdon. That was not an unusual situation as it was part of the mix of measures from Hillingdon to support Steven. However, the local authority held Steven unlawfully in that unit for nearly a year and against his father’s wishes.

The Minister referred to amendment 39, which would broaden out the terms of objection that would trigger an AMCP review. The Bill, as it stands, calls for an AMCP to be involved if one of two specific objections is registered. The first is that the cared-for person does not wish to reside at the place that the arrangement provides for. I want to highlight to Members a case showing the need for broader criteria of objection; X, who we have been asked to keep anonymous, was a 99-year-old woman living in a care home. Daily, she objected to the fact that she was there. In fact, she was described as walking up and down the care home, objecting to being there. Despite this, the care home had never applied for a deprivation of liberty safeguard for her. The local authority only found this out when they went into the care home to investigate a separate safeguarding matter. When a DoLS was then applied for, it was quickly identified that a return home was both desired and possible for X, with a robust care package. She returned home within the month. X’s case shows the dangers of leaving the responsibility for flagging objections to the care home, and I will refer to care homes in greater depth later.

The second specific objection is where the cared-for person does not wish to receive treatment at the place that the arrangement provides for. Both of these cases are bound up with the location of the cared-for person, but they do not cover the wide range of other things to which a person could quite reasonably object. To give an example, some people subject to provisions of this Bill will be receiving medication, often in quite large amounts. It would not be unreasonable for somebody to object to the medical regimes to which they are subject. They may feel that the medication affects their quality of life, or—in some palliative care cases—that they no longer desire to keep receiving treatment at all. That does not mean that they are objecting to the place they are in, as they may be in their own home or in a care home that they like. They are simply objecting to the treatment and support they receive. In such cases, the Bill currently makes no provision at all for the involvement of an AMCP. Despite the fact that a cared-for person might be deeply unhappy with the arrangements put in place, the system will look exclusively at their opinion of the place where they are being held.

Our amendment is designed to ensure that such cases do not fall through the cracks. Any objection to proposed care and treatment should trigger an AMCP review. If the Government had paused this Bill, as I said earlier, to consider the implications of the independent review of the Mental Health Act, we would not be having to have this discussion. Sir Simon Wessely proposed that all cases in which somebody objected to any element of the proposed treatment should be covered by the Mental Health Act, not the Mental Capacity Act. Perhaps we can all send our best wishes to Sir Simon Wessely, who, I understand, has somehow fractured his shoulder. He was tweeting pictures this morning of the state of his shoulder with a split in the middle of it, and extolling the virtues of the European health insurance card and of receiving treatment in another country. Let’s all wish him the best.

It is important to focus on the strongest safeguards contained in the Mental Health Act. Sir Simon Wessely has been clear that when somebody has any objection to the arrangements, we must ensure that greater safeguards are put in place. This amendment will, I hope, only be a stopgap. Once the Government have responded to Sir Simon Wessely’s review, we should see further legislation that ensures that the people about whom we are talking—those who are not content with their care and support—are afforded the greatest safeguards offered by the Mental Health Act. Until that point, this amendment will ensure that all objections are captured, and that nobody is denied a review from an AMCP simply because the Bill does not cover the precise issue to which they are objecting.

I want to give one example that illustrates where these questions might come into play. An 86-year-old woman had kidney failure and had recently survived a stroke. Prior to the stroke, she had made the decision to turn down further treatment that would prolong her life in a generic sense, although she had not registered a specific advance refusal. She received care and support in her own home, where she wishes to remain. As part of this, she was placed on dialysis for several hours a day. She does not object to where she resides, or where she receives treatment. She has a very specific objection to certain elements of that treatment. She did not want to receive that treatment. In such cases, the Bill makes no provision for an independent professional to review whether the arrangements are appropriate. In order to safeguard people’s liberty in such circumstances we need to have an AMCP review if there is any objection to the arrangements.