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 9:25 am on 15th January 2019.

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Photo of Caroline Dinenage Caroline Dinenage Minister of State (Department of Health and Social Care) 9:25 am, 15th January 2019

With your leave, Mr Austin, I will address the amendments in my name before I speak to the Opposition’s amendments. This group of amendments relates to pre-authorisation reviews, which are conducted by an approved mental capacity professional, or AMCP. The AMCP provides an additional level of scrutiny for cases that need it, such as where somebody has raised an objection. Amendment 9 requires an AMCP to conduct the pre-authorisation review should arrangements mean that the cared-for person receives care or treatment mainly in an independent hospital. It also clarifies that cases can be referred to an AMCP by the responsible body, providing that the AMCP accepts the referral. The other amendments in the group are consequential on this.

I am sure that hon. Members of different parties have been as distraught and dismayed as I have at the widespread reporting of cases of inappropriate restrictive practices, such as the prolonged use of seclusion. They will recognise that the scrutiny of cases in independent hospitals must be absolutely robust. Stakeholders are right to raise their concerns about this, as many did in the debate on the Bill in the other place. The Government have acted to address those concerns by requiring authorisations in independent hospitals to be considered by an AMCP, regardless of whether an individual objects to their arrangements. We have added a further level of security to the process. The AMCP will meet the person, complete any relevant consultations, and review assessments to decide whether the authorisation conditions are met.

Amendment 9 also clarifies that the AMCP can conduct pre-authorisation reviews in any case, not just where an individual objects. The Government’s view has always been that certain cases might benefit from scrutiny by an AMCP due purely to their complexity or nature. The amendment will apply to all cases, not just cases where the independent hospital is the responsible body. The statutory code of practice will be used to explain in detail how these powers should be exercised. For example, authorisations that relate to people with an acquired brain injury might benefit from consideration by an AMCP, as the nature of their illness means that it can often be difficult to establish whether they have capacity, and their capacity might fluctuate. AMCPs will also play a key role should particularly restrictive arrangements be proposed.

The code of practice is a statutory document that will be approved by both Houses and will form the basis of the responsible body’s decision to refer cases to an AMCP, which could extend to cases in which physical restraint is used. The approved mental capacity professional will then decide whether to accept the referral, in line with the code of practice. It is important that AMCPs are focused on cases that need additional scrutiny, so that the system can be targeted and can deliver protection to all those who need it more quickly. That is why AMCPs have a role in making a judgment about whether to accept referrals. The amendments strengthen the safeguards in the Bill, and I hope the Committee will support them.

Let me turn to the amendments tabled by the Opposition. I thank hon. Members for initiating this important discussion about objections and access to AMCPs. Amendment 37 would provide for access to AMCPs in specific circumstances. The Government absolutely agree that AMCPs should review authorisations where appropriate, but the issue is that, by putting too much detail in the Bill, we can sometimes be caught out by what is left out. The Bill already requires that an AMCP completes the pre-authorisation review if it is reasonable to believe that the cared-for person does not want to reside in, or receive care or treatment at, a certain place. The objection can be raised by anyone with an interest in the cared-for person’s welfare. The Bill already requires that arrangements are necessary, proportionate and the least restrictive possible. That is to be considered as part of the pre-authorisation review.

The Government amendment previously discussed requires that an AMCP reviews every authorisation from an independent hospital, even if there is not an objection. That is an example of our commitment to protecting the most vulnerable.