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We hope and expect that, as more homes and hospitals become familiar with the meaning of “deprivation of liberty” and how to avoid it, the annual number of assessments will fall to about 5,000 by 2014-15, which will lead to about 1,250 authorisations. As I indicated, those are estimates based on information that we have, but I hope that they give noble Lords an indication of the kind of figures that, we think, we are describing. I accept, however, that we are moving into a field where those estimates, good as they may be, will none the less need to be tested. Those are the assumptions that have been made.
Baroness Barker: Is the Minister able to tell us which local authority she was referring to? As she will know, residential and nursing home care provision differs radically between different authorities.
Baroness Ashton of Upholland: I do not have the information on that, but I will either get it or write to the noble Baroness. She is right: I have assumed for the purposes of this exercise that the Department of Health has looked at a number of local authorities and chosen one that, it thinks, is a representative area. I take on board the point that she raises about the difference in the type of care, numbers and so on, based on different populations, if nothing else. That is where we start from.
The noble Baroness, Lady Barker, asked three questions. She knows that I cannot talk about the current court case, as it is sub judice. However, it highlights the need for us to be doing what we are doing here and what we are proposing to add to the Mental Capacity Act. The Bournewood provisions will give clarity about what may lawfully be done to protect a vulnerable person who is not able to make decisions about their care. I believe strongly that this is needed by service users’ families and those who are providing and commissioning care. I cannot speak about the case, as it is still before the courts and we should not prejudge the outcome. However, we have always anticipated that the code of practice would be revised and reviewed in the light of case law. If there is anything to learn from the judgment, we will look at it. The noble Baroness was right to raise the issue.
I have been told that the local authority in question is Hampshire. The noble Baroness may consult her colleagues and come back to me if she feels that it is unrepresentative; I can think of a particular colleague whom she might consult.
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Baroness Barker: Hampshire is a large county with established residential and nursing care provision. It also has quite a number of very old older people, so I am happy to accept that it is a good authority to use.
Baroness Ashton of Upholland: I am grateful to the noble Baroness for that endorsement. I hope that she recognises that it is an appropriate basis on which to operate, with all the caveats that I have mentioned.
The noble Baroness asked about the magic number of one year. It is not really a magic number. As the noble Earl, Lord Howe, and the noble Baronesses, Lady Murphy and Lady Barker, have said, it is our anticipation that, for many people, any form of deprivation of liberty, either because of infection, as the noble Baroness, Lady Barker, indicated, or because of other circumstances, will be for a short period of time. We have built in effective safeguards to trigger a review of that decision at appropriate points by the individual, those representing them or the care home. It is important that, as we train and deliver the process, people understand that that is what they should do. A lot of this is not necessarily in the Bill but in the good practice that will follow from it.
A year seemed appropriate to us; it is a well known length of time, it is defined and it is clear. It is also a recognition that we are not looking to reassess too frequently people whose condition is ongoing but are trying to deal with them appropriately.
A number of organisations have raised concerns that it will be a case of, “When in doubt, go for 12 months because 12 months is the maximum period available”. As I have indicated, a lot of that depends on the training, the code of practice and the approach that people take. I do not anticipate that we will see that happen except where absolutely necessary. Best interests assessors are critical to that process; their role is to ensure that that is done only where appropriate.
The noble Baroness referred to a default period of a year covering people in a temporary state of confusion. That is categorically not what we anticipate. It is important to approach this from that point of view.
The noble Earl, Lord Howe, raised an issue that runs through a number of the amendments before us regarding family members’ knowledge of the system. I hope that we will return to that theme when debating later groups of amendments and discuss how we make sure that those representing the individual, whether family members or others, can understand and get the information that they need to support the person appropriately.
I think that we have the balance right. A maximum period of one year feels right to me. It is on the condition that this is not a default position and should be used only where appropriate. We anticipate seeing many cases where people’s deprivation of liberty will be for substantially shorter periods. As I have indicated, a lot of this depends on the code of practice, guidance and training that we offer. We intend to make sure that it is crystal clear. I hope that, on that basis, the noble Baroness will feel able to withdraw the amendment.
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Baroness Murphy: I thank the Minister for that careful reply. She has in part addressed at least some of my concerns that the period will go on too long. I shall reflect on the response and come back if there are further concerns. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 63 to 65 not moved.]
Earl Howe moved Amendment No. 65A:
Schedule 6 , page 103, line 28, leave out from “representative” to end of line 29 and insert “before any assessment is undertaken”
The noble Earl said: The amendment would ensure that a relevant person’s representative was appointed in time for them to contribute to the assessments as opposed to what appear to be the Government’s proposals for the appointment to be made after an authorisation is granted. The reasoning behind our amendment is that the representative should be appointed when assessments are commissioned, particularly before the best interests assessment is carried out, so that the representative can inform the authorisation process. A person’s representative is likely to be a family member, a friend or someone who knows the person well, who will be in a good position to advise on a patient’s wishes and feelings and especially on their best interests.
The Government’s proposals in briefing documents and the Explanatory Notes state that the representative will be appointed only after an authorisation has been made. On the face of it, that seems at odds with paragraph 125 of Schedule 6, which states that information or submissions from a person’s representative or IMCA advocate must be taken into account during assessments, when doing so would obviously be impossible if a representative cannot be appointed at that stage. A separate paragraph in Schedule 6, paragraph 49(6), deals with future assessments after an authorisation has already occurred, with all the necessary assessments. That also states that information from the representative should be taken into account, so it would be valuable to hear from the Government why a representative should be involved in future assessments for authorisations but not the first one.
The original Bournewood case is often quite instructive. It is not clear at what point in the authorisation process the person who is being deprived of liberty would be enabled to object through their advocate or representative. In the Bournewood case, would HL’s carers, as representatives, have been able to express his objection and ensure that his objection was accepted? That is quite a telling test. The amendment links to the wider issue of the role of family members and the representatives of people in the Bournewood gap. It would be valuable to hear of any further steps that the Government would be willing to take to strengthen the role of representatives in the process. I beg to move.
Baroness Ashton of Upholland: I gather that available in the Printed Paper Office are the draft regulations relevant to the appointment of the relevant person’s representatives as well as draft regulations for the eligibility and selection of the deprivation of liberty
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The noble Earl raises an important point, and I am checking to ensure that the Bill is correctly drafted. We have sought to say that the crucial person at the beginning of the assessment process should be the best interests assessor, who is appointed with the specific function of ascertaining what is in the best interests of the individual concerned and, in so doing, to take into account a range of views, especially from family and friends.
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The noble Earl will know that there can be conflicting and different views, and views from a distance if I may describe them as such, but those will be taken into account. Part of what we are asking them to do is to reflect on whether, having talked with family and friends, they wish to recommend somebody as the person’s representative. In many cases, certainly in the case of family members I have spoken to, it may be very obvious who the person ought to be. In other cases it might not be. It is a very important role. On the first assessment the best interests assessor would consider that and recommend an individual, if there were such a person; then they would take over the role to act on behalf of the individual.
The noble Earl mentioned the thread that runs through a number of these amendments: ensuring that those invited to take on this role receive the highest quality information. Some stakeholder organisations are concerned that professional independent mental capacity advocates are very used to the system and to undertaking an advocacy role but that family members might find it new and difficult. One of the challenges that I need to look at is how we ensure that we level up the playing field and ensure that representatives, who may be family members or friends, can access high quality information and support to enable them to act effectively on behalf of someone beyond their natural desire to do so, having been chosen or decided to undertake that role because of their affection for and commitment to the individual concerned.
Paragraph 125 of the Bill applies to the initial assessments and the review assessments. There would be a representative at the review assessments because, once that person is appointed, he will play a key role in those assessments. Paragraph 49(6) applies where there is consideration of an existing assessment at review or renewal of an authorisation. Again, a representative would be in place. The Bill’s drafting recognises that an individual would be in place at the relevant time.
We have tried to ensure that the best interests assessor plays a critical role at the beginning and is appointed specifically to do that, and that the representative follows on from that process—the best interests assessor playing a key role identifying who that might be—and continues it. We think that is
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Earl Howe: I thank the Minister for explaining the Government’s position. Of course I take note of it. I am particularly grateful for the elucidation that the Minister offered on the Bill’s drafting. Clearly, I shall need to consider what she has said, which I shall do before the next stage. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Barker moved Amendment No. 66:
The noble Baroness said: At this hour I do not wish to rerun many of the debates that we have just had on the previous amendment moved by the noble Earl. However, as the noble Baroness will be aware, this group comprises probing amendments on the role of the Bournewood case.
I wish to make a point which, the noble Baroness will not be surprised to hear, has been raised by the Making Decisions Alliance and the Mental Health Alliance. On the previous amendment the noble Baroness talked about there being an advocate independent of family members. We understand that. Anybody who discussed the Mental Capacity Act will know only too well that what is determined as being in the best interests of a person who lacks capacity sometimes coincides with the wishes of their family members but sometimes does not.
However, the point that I wish to draw out with these amendments is that it is important that somebody is present who is independent also of the authority making the authorisation. That point was perhaps not reflected in the previous discussion. We are talking about people who are being deprived of their liberty—it is a unique deprivation of liberty given the financial questions which surround it. Whether or not a patient is befriended, it is particularly important that they have access to that independent advocate throughout. That is principally what the amendments are about. I beg to move.
Baroness Ashton of Upholland: I am grateful to the noble Baroness. The amendments take us back to our previous discussion about the ability of those representing the individual to access the quality of information and advocacy support that I indicated we need to think about, not in the context of the Bill but to level up the playing field more generally.
We recognise the importance of the role that independent mental capacity advocates will play and the critical nature of family members or carers. They can be independent of the care home or the hospital where the individual is being looked after. We do not want to appoint where there is clearly somebody who
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We have been quite careful to try to differentiate between those who clearly have somebody who can act on their behalf with the right support, and who will look after the best interests and the needs of the individual very carefully from a position of being their friend or loved one—bearing in mind everything that I have said previously about making sure that they know how to do that effectively—and those who might need independent support because they are not in that position. We should not mix them up in a way that would prevent family members acting in the best interests of those individuals.
That is the right and appropriate way forward. We want to make sure that those representatives are told how to ask for reviews and how to go to the Court of Protection if they felt it necessary, and that support and advice are available to them. We consider that, once we have the person’s representative in place, we do not need the independent mental capacity advocate, whose role should cease because the representative has taken over that function as appropriate. They should be invited and enabled to do so with the right kind of support.
We believe that we have got the balance right between independent professional advice and support in particular cases and at particular moments, and enabling family members, with the right level of support, to act on behalf of their loved ones. When the noble Baroness reflects on the matter, she will perhaps see that we have sought to get that balance right. However, as I indicated, I accept that it is very important to ensure that the representatives can act in an individual’s best interests because they have the information and support that they need.
Baroness Barker: I thank the Minister for her full reply. I will have to go away and consider it, because we are talking about a unique situation in which the interests of the care home or authority, the family members and the individual are involved. I am not clear about exactly by whom and by what process it is established that a decision is in the best interests of the person when that may be inconsistent with one or two of the other interests. I will study with great care what the Minister said, but perhaps I may ask her similarly to consider my point again. If she can offer further clarification, perhaps in writing, I would very much appreciate it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 66A not moved.]
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Baroness Barker moved Amendment No. 67:
“Duty to provide a second opinion for serious medical treatment(1) This paragraph applies to a person (P) who is deprived of liberty in accordance with this schedule if an NHS body is proposing to provide, or secure the provision of, serious medical treatment within section 37(6) to him.
(2) P shall not be given the treatment unless a registered medical practitioner (other than the medical practitioner in charge of the care of the patient) has certified in writing that the patient is not capable of understanding the nature purpose and likely effects of that treatment but that it is in the best interests of the patient in accordance with this Act that the treatment be given.
(3) Before giving a certificate under sub-paragraph (2), the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient’s medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner.”
The noble Baroness said: This is a much more straightforward amendment, ensuring that vulnerable patients lacking capacity are not given serious medical treatment without a second medical opinion on its necessity. Where serious medical treatment is contemplated for a person lacking capacity to consent who qualifies for additional safeguards, Section 37 of the Mental Capacity Act 2005 imposes a duty on the responsible NHS body to ensure that support and representation for that person is sought from an IMCA. Examples of the sort of treatment that might be considered serious include ECT, therapeutic sterilisation and withholding of artificial nutrition and hydration.
A significant percentage of those covered by these proposals are patients who would meet the criteria for detention under the Mental Health Act, but for their compliance with the treatment proposed for them, or, indeed, because some may be unaware of their treatment being administered to them. Many others will be receiving medication and treatment for either or both mental and physical conditions. Under the Mental Health Act, there is a statutory second medical opinion procedure for medication beyond three months and ECT. The same safeguards should be replicated here.
I shall assume that the Minister will understand the motivation behind this, because we debated it at considerable length during the passage of the Mental Capacity Act. Where serious medical treatment is to be, and perhaps sometimes needs to be, carried out upon a person who cannot, because of a lack of capacity, consent, we need the highest possible standards and safeguards. I beg to move.
Baroness Murphy: I support this amendment. There is a tendency to think of these proposals as another imminent job creation scheme for doctors. That is exactly how people addressed the second-opinion appointed doctor issue in 1983; it was not welcomed by many. In fact, however, it has been a tremendous safeguard in the Mental Health Act, and has led to senior doctors, who were previously godlike, understanding that they must think long and hard about the best interests of the patient when they are providing care for someone without capacity, as in this case, or who is resisting treatment.
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