Draft Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008


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Mr. Lewis: I thank the hon. Member for Guildford for a constructive and reasoned contribution and for generally welcoming the regulations. I agree with virtually everything that she said, but I just want to correct some statistics. It is important to get them on the record as accurately as we can, although I accept that they are estimates.
We estimate that the number of people who will require assessments is about 17,000 in care homes, as I think the hon. Lady said, and 4,000 in hospital, and therefore a total of 21,000. I think that the hon. Lady said that there may be 25,000 in hospital, so we need to be clear about that. I accept that those are estimates.
The hon. Lady asked about older people with dementia. It is important to say that we published last week a consultation on the first ever national dementia strategy. We all know that dementia is now one of the great challenges facing the health and social care system. Perhaps more importantly, it is a great challenge that faces an increasing number of families in our society. It is important that the scale of our response matches that of the challenge. It is a stark statistic that in the next 15 to 20 years, one in three people over the age of 65 will have the condition of dementia when they die. We have only just begun to realise the full implications of that reality, and the regulations are relevant to people in those circumstances.
The hon. Lady also said that decisions about the deprivation of liberty must not be made for the benefit of either professionals or family members. We need to understand that those judgments often have to be made in very difficult circumstances. An individual could be behaving in a highly inappropriate and embarrassing or particularly aggressive way, but that in itself does not necessarily justify the deprivation of liberty. That raises the question of having to ensure that there are professionals on the front line who have the appropriate training to be able to make those difficult judgment calls, which sometimes require them to resist pressure from other professionals, family members or the individual themselves before coming to the right conclusion and decision. The decision cannot be based simply on the convenience of providers or family members, but genuinely has to relate to the individual concerned.
As the hon. Lady said, it is important that independent people are available, wherever possible, to represent the individual facing those circumstances. There is a debate about how quickly we can get the necessary advocacy services in place, but we are trying to improve that and make progress. We have to recruit people who can act as independent advocates, which will be crucially important if we are to ensure that individuals genuinely have the right to be represented as those difficult decisions are being made.
Jeremy Wright (Rugby and Kenilworth) (Con): I know that the Minister already recognises that there is a particular problem for those who do not have family members available to act as advocates on their behalf. The Mental Capacity Act already provides for independent advocates, but, as he also knows, in other contexts those independent advocates are not always engaged as much as they ought to be. Has any thought been given, either in the field of training or in guidance, to ensuring that when an assessment such as the one we are discussing today takes place, a particular effort is made with those who do not have family members engaged on their behalf to ensure that the independent advocate is approached proactively, rather than simply waiting for the advocate to respond to any application that is made?
Mr. Lewis: The hon. Gentleman is absolutely right. The nature of the representative that a person will need to support them will depend on their circumstances. When there are assertive and articulate family members who clearly have a view, that is a different set of circumstances from those in which no family member is available. It is important that part of the staff training recognises that it is not simply about waiting for people to emerge in those roles, but about proactively being responsible for seeking out advocates to ensure that the person is properly represented. It is also important to recognise that sometimes a family member will not be an appropriate advocate because their view might conflict with that of the individual facing those circumstances. That a family member on such occasions would be an appropriate advocate should not be assumed in all circumstances.
Anne Milton: I have personal experience of that issue, in circumstances where young adults with learning difficulties are supported by a charitable trust that has bought homes and is moving many of those young people out of residential care into group homes. That is phenomenally successful, and their skills improve dramatically, but it is heavily resisted by their families, who feel anxious, uncertain and unsure because previously their son or daughter has been in what they perceive to be a safe environment. That is a terribly complex area. We should continue to be concerned about advocacy and whether the family are the best people to be advocates.
Mr. Lewis: The hon. Lady raises a very important point. A couple of weeks ago, we launched our 10-year strategy for carers, in which we made it clear that we want professionals to treat carers as expert partners, because in many family situations the carer provides the vast bulk of the care and support—far more than the state or any professional. Furthermore, we should recognise that in many family circumstances the aspirations, desires and needs of the individual being cared for are exactly the same as those of the carer. All too often professionals say that there is a difference in opinion or aspiration when there is not.
The hon. Lady is absolutely right to refer to the history of social progress. After the closure of the long-stay mental handicap hospitals in the 1980s, relatives and professionals said, “These people can’t possibly live within the community and society. They cannot be supported to live independently.” Some in society still take that view, yet we all know stories of people with the most severe and complex needs who now live independent lives in the community, some of whom receive 24/7 support and others relatively minimal support. We must be careful not to restrict people’s opportunities.
That is a very sensitive and difficult area, and now that people with disabilities live full and long lives—thankfully—it has become even more of a challenge for society. Everybody talks about the demographic implications of an ageing society, but people forget that, because disabled people’s lives are no longer curtailed as a consequence of their disability, more and more parents will have adult children with disabilities, such as learning disabilities—the context of these regulations. Difficult tensions will always need to be resolved over the rights, aspirations and needs of the person vis- -vis the family member.
One of the most powerful ways in which to persuade people is through peer networks—parents talking to parents and relatives talking to relatives about how change is possible. Many of those whom family members thought could never live independently or have a high quality of life living in ordinary communities have now made tremendous strides and lead independent lives. It can be very difficult for professionals and even politicians to sell to families service changes that might look like cuts or ideologically driven change, rather than policies that are genuinely in the best interests of disabled people. It is important that we do not simply seek to dragoon people into change, but think of imaginative ways in which to highlight those with some of the most complex and challenging disabilities who live full and independent lives in the community.
When we talk about living independently—living in one’s own home, perhaps needing 24/7 support, but perhaps less—we should remember that it is not the same as making people totally independent. Most people are interdependent on friends, family members, work mates, neighbours, communities and social networks. Too often ideologically the independent living agenda has led to us allowing people to live very lonely and isolated lives. Equally, this is not just about celebrating the fact that people have their own home, but about their quality of life as a consequence of that self-determination and that right to live the kind of life that most people in our society take for granted.
Having worked with people with learning disabilities for many years before being elected to Parliament, my view is that for too long we have capped and limited the potential of people with learning disabilities. When they are given the opportunity, I have seen many people with the most complex conditions, who have been labelled as the most challenging and the most challenged, demonstrate tremendous talents, skills and abilities and live with a significant level of independence.
As the hon. Lady says, it is important that whenever possible, we try to take family members with us when making these decisions. However, it seems to me that our first duty is to the person who is using the service. We must do everything we can to establish what that person’s aspirations, needs and wants are. There will be circumstances in which that is nearly impossible and so we must give considerable weight to the views of family members and those who know those individuals best.
This issue will never totally go away. It will be debated constantly as policy moves on and as society progresses. I always remember the debates in the 1970s and 1980s about the impossibility of closing down those dreadful long-stay mental handicap hospitals. We all know that one of the great successes in this country, which we never got a great deal of credit for by any international standards, was that most of those resettlements were a great success, unlike the closure of some of the psychiatric hospitals, where people with severe mental illnesses were left in bed-and-breakfast hotels without adequate and appropriate support.
These are important issues and there is always a delicate balance between the right to self-determination and the protection of people who are vulnerable. In debating the reform of social care, including giving people personal budgets, direct payments and greater control over their own lives, we should start from the principle that it is right to give people self-determination and maximum control. That is the starting point, but individual circumstances require us to look at the level of support that we need to put in place to protect such individuals from exploitation and abuse. That support can also help to make the person’s control and personal choice real. It is no good saying overnight to people who have never exercised any control or choice over their lives, “Over to you—you can control your life.” For some people, a tremendous amount of support and help must be put in place to make that a reality.
In conclusion, I welcome the hon. Lady’s constructive comments. She has raised a number of important issues about getting implementation right. The policy is clearly significantly welcomed, but it is important that we get the delivery and implementation right. I urge the Committee to accept these regulations.
Question put and agreed to.
Resolved,
That the Committee has considered the draft Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008.
Committee rose at eight minutes past Five o’clock.
 
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