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 11:00 am on 15th January 2019.

Alert me about debates like this

Photo of Alex Cunningham Alex Cunningham Labour, Stockton North 11:00 am, 15th January 2019

The issue of conflicts of interest is very important, particularly in relation to the previous discussion about independent hospitals. It beggars belief that we can hand over to countless private organisations the responsibility to determine whether a person in their care—for whom substantial fees are being paid —should be deprived of their liberty and detained without recourse to anyone other than those within their own circle.

We have a duty to protect the public purse in this area, and not just the public purse, but the purses of those people who pay for their own care. Currently in the Bill, the responsible body for an independent hospital is the independent hospital itself. It is simply not appropriate for an independent provider to be responsible for authorising deprivations of liberty of people in its own establishment. The shadow Minister, my hon. Friend the Member for Worsley and Eccles South, has spoken about how that would be a serious conflict of interest, as have many others in the past. The feedback I have had from organisations confirms that. They see the huge financial incentive for an independent hospital to keep people in their establishments. Does any Member here believe that an independent hospital can be truly impartial when treating patients who are paying directly for their treatment, and have no conflict of interest? Can any Member tell me confidently they do not believe that any manager of a private hospital would make any consideration of the financial benefits to the hospital when assessing a patient?

My hon. Friend stressed at length the advantages of amendment 19, which would mean that when a person is accommodated in such a hospital for the assessment or treatment of a mental disorder and their care is commissioned by the CCG or local health board, the responsible body will be the CCG or local health board. What can be wrong with the public sector having a role, not only to determine whether there is a need for a liberty protection safeguard order, but to be involved in determining what is best for the individual?

If we hand this power to an independent private hospital, who will assess whether the placement is still the best way to meet that person’s needs and arrange for them to be moved elsewhere, or to another establishment, or even back to their family? If an approved mental capacity professional was involved and they too were employed directly by the hospital or happened to be their preferred go-to person, they also have a financial vested interest in the outcome of such an assessment.

We have to protect the client first and foremost, and I believe that the amendment would achieve that. There is a genuine worry that self-funders may be deprived of their liberty with no proper authorisation—and if no independent person is there to check up, who will know? An assessment is not satisfactory if there are no checks and balances for the person concerned.

There is also a concern that fees may be required for certain assessments. Again, if no genuinely independent person is involved, who can judge whether such an assessment is necessary? I am sure that the vast majority of people in such establishments will act credibly and honestly, but I am concerned about the few who may not, who may see dashing for a new order as the simplest way forward, when what the person affected really needs is a full and proper assessment. If we cannot completely trust that there can be no ulterior motive when caring for self-funders and that the individual’s care and wellbeing is the only consideration, we must ensure that assessment and care are totally separate.

Many organisations with an interest in the Bill have raised concerns with me. The consensus among them appears to be that the cared-for person will be at serious risk if responsibility for authorising their deprivation of liberty is placed in the hands of the detaining private hospital, because the managers have a vested interest in a particular outcome. As Mencap notes, it would be a serious conflict of interest because there is a huge financial incentive for the independent hospital to keep people.

Our focus should be entirely on people, not profit. There needs to be an absolute separation, so the conflict of interest needs to be removed from the Bill. Organisations tell me that it is essential that the CCG, the local health board or the relevant local authority should act as the responsible body in such circumstances, and that in each case an AMCP should carry out the pre-authorisation review and, critically, retain oversight throughout the duration of the detention. Families need to be able to raise concerns with a person who is genuinely independent; I do not believe that that can happen if the independent hospital is given total responsibility.

Amendment 19 will deliver what is needed if we are genuine about our concern to protect vulnerable individuals. I ask the Committee to agree to it.