PARLIAMENTARY DEBATE
Mental Capacity (Amendment) Bill [Lords] - 12 February 2019 (Commons/Commons Chamber)

I beg to move amendment 1, page 5, line 10, at end insert—

“(3A) Before making any regulations under subsection (3)(b), the Secretary of State must lay before Parliament a report on—

(a) the likely effects of the provisions of this Act on persons undergoing rehabilitation for brain injuries, and

(b) the interaction between the provisions of this Act and the processes for prescribing for brain injury rehabilitation therapy.”

With this it will be convenient to discuss the following:

Government amendments 5 to 32.

Amendment 2, in schedule 1, page 15, line 24, at end insert—

“(d) the effects of any treatment undergone by the cared-for person, including prescription brain injury rehabilitation therapy.”

Government amendments 33 to 37.

Amendment 49, page 16, line, leave out from “out” to the end of line 16, and insert

“by the responsible body.”

This amendment would require the responsible body to carry out the consultation in all cases.

Government amendment 38.

Amendment 50, page 17, line 13, at end insert—

“(ca) the arrangements are being authorised under paragraph 16 of this Schedule, or”

This amendment would require an AMCP to review all cases where the responsible body is authorising arrangements based on a statement provided by a care home manager.

Government amendment 39.

Amendment 48, page 18, line 21, at end insert—

“Authorisation charges

24A No charges may be made in relation to the steps taken in determining whether the responsible body may authorise the arrangements for the cared-for person.”

Amendment 3, page 18, line 35, at end insert “or

(c) at the end of a period of prescription brain injury rehabilitation therapy undergone by the cared-for person.”

Amendment 4, page 20, line 4, after “met” insert

“taking into account any treatment to be undergone by the cared-for person, including prescription brain injury rehabilitation therapy.”

Government amendments 40 to 46.

Amendment 51, page 23, line 1, leave out paragraphs 39 and 40 and insert—

“39 (1) The responsible body must appoint an IMCA to represent and support the cared-for person if–

(a) one or more of sub-paragraphs (2), (3), (4) or (5) applies, and

(b) sub-paragraph (6) does not apply.

(2) The cared-for person makes a request to the responsible body for an IMCA to be appointed.

(3) The responsible body has not identified an ‘appropriate person’ to support and represent the cared-for person in matters connected with the authorisation.

(4) The responsible body has identified an ‘appropriate person’ to support and represent the cared for person in matters connected with the authorisation, and they have made a request to the responsible body for an IMCA to be appointed.

(5) The responsible body has reason to believe one or more of the following—

(a) that, without the help of an IMCA, the cared-for person and any appropriate person supporting and representing them would be unable to understand or exercise one or more of the relevant rights;

(b) that the cared-for person and any appropriate person supporting and representing them have each failed to exercise a relevant right when it would have been reasonable to exercise it;

(c) that the cared for person and any appropriate person supporting and representing them are each unlikely to exercise a relevant right when it would be reasonable to exercise it.

(6) The cared-for person objects to being represented and supported by an IMCA.

(7) A person is not to be regarded as an ‘appropriate person’ to represent and support the cared-for person in matters connected with this schedule unless—

(a) they consent to representing and supporting the cared-for person,

(b) they are not engaged in providing care or treatment for the cared-for person in a professional capacity,

(c) where the cared-for person is able to express a view about who they would like to represent and support them, the cared-for person agree to being represented and supported by that person,

(d) where the cared-for person is unable to express a view about who they would like to represent and support them, the responsible body has no reason to believe that the cared-for person would object to being represented and supported by that person,

(e) they are both willing and able to assist the cared-for person in understanding and exercising the relevant rights under this Schedule, including with the support of an IMCA if appropriate.

(8) The ‘relevant rights’ under this schedule include rights to request a review under Part III of this Schedule, and the right to make an application to the court to exercise its jurisdiction under section 21ZA of this Act.”

This amendment would broaden the provision of advocacy, ensuring that advocates are provided as a default unless the cared-for person does not want one.

Government amendment 47.

I will speak to amendment 1 and the three other amendments in my name and the names of several colleagues.

I want to start with enormous praise for the national health service, which in many cases makes the key decisions on everything that we will talk about today. Sometimes those are very difficult decisions, including for families, and they need to be managed with care and sensitivity. Ensuring that we have the right law in place to enable clinicians to make the right decisions is vital. I was on the Public Bill Committee for the Mental Health Act 2007 under the Labour Government, and I remember many of the rows and difficulties then. Ensuring that legislation fits the complicated circumstances of real life is not all that easy, and in particular, the definition of what might be proper treatment is not readily come by.

Often lobbyists get a really bad press. My experience of lobbyists in this field is entirely positive, including those working for the pharmaceutical industry, who do an amazing job in providing new drugs that can save people’s lives and manage their conditions much better, and the many charities in this field. When lobbyists are decried, I sometimes want to point out that they play an important part in ensuring that Members of Parliament know exactly what they are doing when it comes to legislation.

All the amendments that I have tabled relate to acquired brain injury. I am aware that several other colleagues who are members of the all-party parliamentary group on acquired brain injury are here today. I do not want to make an apology for that, but I want to explain why I have tabled these amendments. It is partly because I believe that acquired brain injury, though recognised and understood by some, is something of a hidden epidemic in Britain.

Something like 1.4 million people in this country are living with an acquired brain injury. A new person presents at accident and emergency with a brain injury every 90 seconds. Many of these injuries have lasting effects that are completely invisible to an ordinary member of the public. For instance, the person standing in front of us in a queue who is being difficult might look as if they are drunk or just being difficult, but they may have a brain injury. We would have no idea, and the person feels trapped and finds the situation as difficult as we do. The more we come to an understanding of acquired brain injury in this country, the better.

There are many different causes of brain injury, including road traffic accidents, accidents about the home and stroke. One cause that has been brought home to me recently is carbon monoxide poisoning. Not only the high level of carbon monoxide poisoning that follows an incident, but a sustained low level of carbon monoxide due to poor central heating systems or facilities or something like a Calor gas burner in a home, can end up causing a long-term brain injury. This particularly affects some of those who live in the worst housing in the land, and who are the poorest and least able to afford, for instance, to have their boiler mended or assessed every year.

Is my hon. Friend aware of the problem that some members of the armed forces face with acquired brain injury? It may be because they were involved in or close to the explosion of an improvised explosive device, or because they had a gunshot wound, when the head covering was hit but not penetrated, and the shock can lead to acquired brain injury.

My hon. Friend makes a very important point. I know the role she has played, in particular in the all-party group on the armed forces, and of course in the NATO Parliamentary Assembly. She is absolutely right, and there are sometimes coup and contrecoup elements of damage to the brain. There is also some evidence to suggest that some people diagnosed with post-traumatic stress disorder have actually been suffering from a brain injury.

Interestingly, the Ministry of Defence has done some of the most innovative work in relation to brain injuries—physical brain injuries, as it were—and it has been able to transfer some of the skills and research involved in that work to the wider population, which is all to the good. However, I think that the way in which the mind sits inside the brain and the brain sits inside the skull is one of the areas of research that is still underdeveloped, and we still need to do a great deal more about it.

Other causes include brain tumours and chronic traumatic encephalopathy, where somebody may have had a series of relatively minor concussions. There is a complete misunderstanding of what concussion actually involves, particularly in sport. This might be leading to some of the long-term sustained problems of, for example, people in my own constituency who played rugby for many years and had repeated concussions. They may suffer from dementia, depression and anxiety in later life, but have no understanding that that may relate to a brain injury, rather than to anything else.

While we are talking about sport, may I say that this does not involve only rugby players? There is now evidence that footballers, particularly those heading the ball, suffer sustained brain injuries. It used to be interpreted as dementia, but it is a lot more serious than that. Has my hon. Friend had any discussions with the Football League about that?

I have had lots of discussions, some of them more fruitful than others, with the Football Association.

It is wholly to be deprecated that FIFA still will not allow a full substitution for an assessment of brain injury during a match. Ten minutes are needed to do a proper assessment on the pitch, but at the moment only three minutes is available in a FIFA match. There can be no substitution, and it is not therefore in the team’s interests to take the person off the pitch. I think that this must change. If there is one thing that I hope Parliament will say to FIFA about this in the next few months, it is that this must change. People we talk of as heroes, such as Jeff Astle, have died because of heading the ball. If those who are heroes to our young people today end up suffering in later life because of what they sustained in their footballing career, we will have done them a terrible disservice.

Does my hon. Friend agree that this applies equally to those who play rugby league, and in fact perhaps more, given the impact that some tackles occasionally have?

My hon. Friend makes a very good point. One of the things about rugby league and about rugby union, which I know rather better, being from south Wales—[Interruption.] I do not think it is parliamentary to tut-tut from the Chair, Mr Deputy Speaker, if you don’t mind my saying so. The truth is that many of the players today are bigger, stronger and faster, so the impacts may be much more significant than they were in the past. Curiously, when we watch some of the commentary on Twitter and Facebook about matches, we see a kind of rejoicing in the physical pain that people are going through, and I think we really need to roll that back. We need to roll that back so that we are actually caring about the players. Quite often the players themselves will be desperate to go back on. It should not be the player who makes that decision; it should be an independent doctor who makes it. [Interruption.] I think you want to intervene on me, Mr Deputy Speaker.

The tut-tut was to say that the hon. Gentleman would benefit from knowing both types of rugby. The only thing I would add, just to help his case, is that in rugby league a player is taken off for a full assessment by a doctor and not allowed back on. That is the benefit on which rugby league is leading the sport.

I am glad I took that intervention. It is unusual to get an intervention from the Chair, but I think we welcome this new style of chairing.

It was a clarification.

I am tempted to make a point of order! No—you are absolutely right, Mr Deputy Speaker.

The key thing is to have the same protocols for all sports, so that there is the same protection. A child might play rugby league one year and rugby union the next; if there are different protocols, that will undermine the whole system. Incidentally, the point also applies to a whole range of other sports—hockey and ice hockey, as well as American football, in which there is growing interest in the United Kingdom. We should not let the issue be led by litigation, which is what has happened in the United States of America: we should let it be led by the medical science, which is rapidly changing.

My hon. Friend is being generous in giving way. One of the things that concern me most is that it is easy to label someone with any form of brain injury—whether dementia, Parkinson’s or anything else—when they also have an infection. What can be seen as difficult behaviour can be misunderstood when it is caused by the infection rather than by any acquired injury or illness.

Yes. People will also attribute bad intention to the person when what is happening is that the short-term memory is simply not functioning properly. For instance, someone with very little short-term memory may find it difficult to turn up on time, as I mentioned earlier. That may be not because they are being lazy, truculent or difficult but simply because their brain does not work in that way. It may mean that their capacity is so diminished that, according to the Bill, they cannot make decisions. Alternatively, it might just be one of the elements that needs to be dealt with—they need to find tricks to circumvent the problem, and medical and clinical professionals can help.

This is why I tabled my amendments. Neurorehabilitation, when done well and on a sustained basis, can take an individual from being low functioning and high dependency, perhaps needing three or four people just to be able to wash themselves, clothe themselves and provide for themselves physically, to a much higher level of personal functionality and much greater independence. I have made that argument from a different place, in the sense that taking someone from needing four people to look after them to just one person coming in once a day for an hour or so could be an enormous financial saving to the taxpayer. That is why neurorehabilitation and the work that has been done in many cases can be so important.

Neurorehabilitation is really important in relation to the Bill. We might be able to take somebody from a place where they are not truly able to make a decision about what treatment they should be undergoing and, according the Bill, deprive them of their liberty, to a place where that would no longer be appropriate. My anxiety is that if there is no incentive in the system to ensure that neurorehabilitation is provided to people, there is a danger that we just discard them and leave them by the side, particularly as we are now talking about a three-year term rather than a one-year term. I think the clauses at the end of the Bill militate in favour of renewal, rather than providing a clear option not to renew at that point.

I have an anxiety that perhaps in some care homes and other places there just might be an incentive to think, “Well, this person isn’t going to get better so we’re not going to do anything to try to help them to get better.” I do not want to give up on so many people. Thanks to what the Government have done with the major trauma centres, we now save about 800 or 1,000 more lives every year following road traffic accidents and the like, but we need to give people quality of life. We do not have enough people working in this field. We need to recruit many more people. If 20 people were inspired by what we are talking about today to go and work in that field—there are so many high rewards for people working to take people from high dependency to low dependency—that would be a success in itself.

Does my hon. Friend agree that the all-party group inquiry heard some remarkable examples of people who have gone through the pathway with neurorehabilitation prescriptions and are increasingly able, with great work and support on everyone’s part, to carry out many functions?

Absolutely. One key thing that we saw repeatedly—this is an issue for the Bill, I think—was the fluctuating nature of some brain injuries. For instance, fatigue is a very common feature of many brain injuries. I do not mean just feeling tired because you are sitting at the back of a debate in the House of Commons and somebody is wittering on for far too long and you fall asleep, but real, genuine fatigue. I mean the kind of lassitude that leaves you unable to move from one side of the bed to the other. It is often misunderstood, because it might look like laziness to somebody with a judgmental eye. That lassitude can pass or go through phases and can sometimes be a bit difficult to explain or predict. I am therefore really keen that we ensure, in all the processes in the Bill, that anyone with an acquired brain injury is regularly and repeatedly reassessed so that they have an opportunity to escape. That is important.

The hon. Gentleman is making some good points. The only point I would make to him is that without a deprivation of liberty order—I agree that they should be open to review, and I am sure the Minister will go on to talk about how that can happen—some of the people he talks about may have to be put under the Mental Health Act 2007 due to the fluctuating nature of their capacity. That would be much more restrictive and could lead to them being sent to entirely the wrong places to be cared for. I would just give that caveat and that warning to him about the potential consequences of what he is saying.

I think the hon. Gentleman has just read, in some weird way, what I was about to say—he has a very special mental capacity of his own if he is able to read my notes from that distance. He is absolutely right, however, and I do not want to drive a coach and horses through the Bill at all. I fully accept that there is a requirement for some elements of it.

I have an anxiety about the pace at which the Bill is going. It is a shame that the code is not yet available, because it would significantly affect how we viewed some of the issues that we are talking about today. All the things in my amendments should probably be in the code, rather than on the face of the Bill—that is what the Minister said to me yesterday, and I should have given her a much harder time, by the way—but why do we not have the code now? We are not going to have it before the Bill receives its Third Reading, and I think that is a mistake. It is not as though we have lots of wonderful business to be getting through.

Yes, I do have that anxiety. I want to be a bit critical of the Government on that, because this is a two-year Session of Parliament and there is no reason why this could not have been done in a proper way. I am slightly conscious that there is not a great deal of time left today, however, so I am keen to bring my remarks to a close.

Before my hon. Friend concludes, since the code is going to be so central to the operation of the Bill, and since none of us will have seen it before the Bill concludes its proceedings, does he think that it is vital for the Minister to say today that there will be proper and extensive consultation on the code before it is implemented?

Yes. The Government have effectively already said that, but to be really nasty, we should have had the code before today, in all honesty, even if it was only in draft form, so that we would be able to see what we are really talking about, and I would then not have been talking about these amendments.

I want to bring my remarks to a close as soon as I can. We need to build in an incentive to make sure that there is proper neurorehabilitation provision for people with acquired brain injuries. All too often, patients and carers in this field feel as though they are being processed. That is not because health clinicians are nastily minded, but because people sometimes end up having to deal with so many different departments that they feel as though they are being pushed from pillar to post. That is why it is really important that the Government strike the right note when it comes to the next stage of introducing the code.

Amendment 1 simply says that

“the Secretary of State must lay before Parliament a report on”

the “likely effects” of the Bill on ABI before it comes into effect. Amendment 2 requires the “relevant person”, who could be somebody managing a care home, to consider

“the effects of any treatment undergone by the cared-for person, including prescription brain injury rehabilitation therapy”

in addition to the length of time since the assessment was originally made. Amendment 3 would mean that an authorisation that was not renewed would lapse after 12 months, after a time specified in the original authorisation, or, as I would like it to be,

“at the end of a period of prescription brain injury rehabilitation therapy”.

I think that is key to making sure that there is an incentive to ensure that therapy is provided. Amendment 4 refers to the renewal of an authorisation and requires the responsible body to take into account

“any treatment to be undergone by the cared-for person, including prescription brain injury rehabilitation therapy”.

I do not think that any of those amendments would do the Bill any harm—no harm at all—and I am feeling a bit more grumpy with the Minister than I was yesterday when I met her, so who knows? We might end up voting on them.

It is good to see the hon. Gentleman on his feet, but I hate to see him grumpy. He will have my response to his all-party group next week. I promised him a recommendation by recommendation response to his report, the launch of which I attended, and he will have it next week.

I am very happy with this Minister, but the other Minister—

She’s nicer than me.

That is true, but she has to prove her mettle on this. I do not mean that in a nasty way; I simply mean that we want some changes.

A lot of people want to speak, but we have to finish at 6 o’clock, so we only have 90 minutes.

I am here today to prove my mettle.

I will start by stating the obvious: our liberty is our most fundamental human right. The challenge today is that the current system of deprivation of liberty safeguards no longer provides protection to all the vulnerable people entitled to it. The system has proved to be overly bureaucratic and inefficient to apply, and case law has resulted in article 5 of the European convention on human rights being understood in a very different way, and this has, in effect, widened the definition of deprivation of liberty eighteenfold. The result is a long backlog of applications that has built up over time such that today about 125,000 people may be subject to a deprivation of liberty without formal authorisation.

The Bill introduces a new system—the liberty protection safeguard—based on work of the Law Commission that involved more than three years of consultation and consideration. It is designed to provide robust protections and to be simpler so that protections may be afforded quickly and effectively to those who need them. It is absolutely right that any proposed changes to the protection of some of the most vulnerable people in our society be scrutinised closely, however, and I am grateful for the close examination of the Bill by hon. Members and noble Lords during the Bill’s passage here and in the other place.

I thank the hon. Member for Rhondda (Chris Bryant) for raising the issue of how liberty protection safeguards will work for people who have a brain injury or may need to be deprived of their liberty while receiving care or treatment. I also thank him for his chairmanship of the all-party group on acquired brain injury. He does an outstanding job and is a great advocate for the group.

A leading charity in this area, Headway, reports that every 90 seconds someone is admitted to a UK hospital with an acquired brain injury or related diagnosis, such as trauma, stroke, tumour and neurological illness, and many of these will require some form of rehabilitation. For some people, this can be a lifelong need. Having met the hon. Gentleman yesterday to discuss his concerns, I understand that neurorehabilitation can in some cases help people to regain capacity over time and that his amendments are intended to account for this and to ensure that a deprivation of liberty occurs only when strictly necessary.

I would like to provide some reassurance that the first principle of the Bill is that a deprivation of liberty should occur only where it is considered essential and where authorisation conditions are met. I can assure the hon. Gentleman that we have considered carefully how this model will work for this group of people and are confident that the reformed model will embed consideration of deprivation of liberty into the earliest stages of care and treatment planning so that from the outset these arrangements will work alongside neurorehabilitation therapy and adhere to the less-restrictive principle of the Mental Capacity Act 2005.

I understand the Minister’s concern not to impinge on the rights of disabled and elderly people, but is she not concerned that more than 100 social care and disability organisations have written to her raising continuing concerns, including about the Bill adversely affecting the rights of people who rely on care and support services. Does she think they are wrong, or does she think they have legitimate concerns that still need to be properly addressed?

Of course, any organisation representing these vulnerable people that raises concerns deserves to have them listened to, and I am sure that the vast majority are legitimate concerns, which is why we have been listening so carefully up until this point. The right hon. Gentleman will know how many amendments we have made in the other place, in Committee and today.

We will continue to listen and collaborate as we deal with the code of practice, about which I shall say more in a moment. A working group of third-sector organisations is helping us to put the document together so that it is not rushed. It is not being prepared for the purposes of Parliament, but it will come before Parliament. Following a wide public consultation, both Houses will vote on it. That collaboration has been and will continue to be important: it is not the end of the conversation, but very much part of it.

May I pursue the intervention from the right hon. Member for North Norfolk (Norman Lamb)? Is the Minister satisfied that the definition of the deprivation of liberty will not lead to litigation in the courts? Some constituents have written to me saying that the proposed changes could open a legal can of worms. Can the Minister reassure me that this will not end in expensive litigation, either for constituents or for the Government?

I do not think it is ever possible to say that. This particular area of law has always been open to legal challenge. We decided to include a definition because so many stakeholders, as well as the Law Commission and Members of the other place, thought it essential, but the wording is very specific.[Official Report, 13 February 2019, Vol. 654, c. 7MC.] It refers to what does not constitute a deprivation of liberty rather than what does, because we did not want to leave out accidentally something that could open up a legal challenge further down the line. This is where the code of practice comes into its own. It will include case studies and examples, so that those affected by the Mental Capacity Act will have a better understanding of how it works for them.

The Minister has just mentioned case studies, and she has mentioned them before. She has circulated case studies to a few people, but they were not circulated to me or to any other members of the Committee, which I think was very discourteous. We keep hearing about things that are in the distance—over there—and will come together at some point, but those case studies have not been circulated, and they should have been.

I think that there must be some confusion. The case studies will be part of the code of practice. They will be gathered together in the document, and third-sector organisations will contribute to ensure that we cover every cohort. We must bear in mind that we are trying to cater for wildly different groups of people. The document will have to cover the young person with an acquired brain injury to whom the hon. Member for Rhondda referred, a 16-year-old who has had a learning disability since birth and the 97-year-old with dementia. It must not be the box-ticking one-size-fits-all exercise for which the current legislation provides.

We are aware that mental capacity assessments may be of particular concern to the group of people mentioned by the hon. Member for Rhondda. Assessing the capacity of people with acquired brain injuries can be particularly challenging, and will require skilled and careful consideration. Government amendments 28 to 37, which I shall discuss later, outline our intention to publish regulations in order to ensure that the assessors have the appropriate knowledge and experience.

We agree that the likelihood of capacity to fluctuate should be ascertained during the assessments, and we will expect that to be considered in the authorisation, in the length of authorisation and in the frequency of reviews. Fluctuating capacity is complex and fact-specific and deserves in-depth and detailed guidance, which is why we will include the details in the code of practice. I appreciate what the Opposition amendments are trying to do and I fully agree with their spirit, but I hope that my commitment to work with others on the code has given the hon. Gentleman and other members of the all-party parliamentary group the reassurance that they need.

Through the scrutiny of the Public Bill Committee and the ongoing engagement with stakeholders, we have identified a number of areas in which the Bill could be strengthened further. As I have said before, I firmly intend to introduce a more effective, efficient system of robust safeguards, moving away from the one-size-fits-all approach that no longer works. I am committed to doing this in a very collaborative way, and where possible to identify legislative improvements that can be made to work. I am committed to looking at this again, and as a result a number of Government amendments have been tabled that improve the Bill and the way in which liberty protection safeguards work.

Amendment 5 aligns the definition of a care home manager in Wales with that in England. The Bill as currently drafted defines care home managers in Wales as a registered manager. This amendment changes that so that it is linked to the registered service provider. Amendments 7 to 23 will remove any perceived conflict of interest where a deprivation of liberty occurs in an independent hospital. Under amendment 14 the responsible body in cases where arrangements are mainly carried out in an independent hospital would be the local authority in England and in Wales the local health board for the area in which the hospital is situated. This removes any potential misuse of power or conflict of interest in independent hospital settings. Amendment 22 outlines that in England the responsible body is the local authority responsible for the education, health and care plan or the care plan under the Care Act 2014. If a person does not have one of these, the responsible body is that in the area where the hospital is situated.

What provision does the Minister think should be made in the code for the families? Often the adult children or the parents know these people extremely well and have very caring approaches, and they may have wisdom to inform the decision, but there might be the odd occasion when the family member has their own agenda and not that of the vulnerable person. So what should the role of the family be?

The role of the family is much greater in this amended legislation than it is currently. A number of families have told us through our work on this Bill that they feel very disenfranchised by the current system. For example, in the new system a family member or a loved one can be an approved person.[Official Report, 13 February 2019, Vol. 654, c. 7MC.] That would be the person’s advocate through the process. That method brings family members and loved ones much closer into the decision-making around this whole system.

I received some correspondence from Age Concern, as the Minister knows. It wanted to raise two specific issues; I spoke to the Minister about this, but I want to raise it again to have it recorded in Hansard. The issues are the definition of the deprivation of liberty, which I understand the Government are including in the Bill, and access to advocacy. I reiterate, too, the point made by the right hon. Member for Wokingham (John Redwood): the importance of having family and loved ones as part of the process. We must not disenfranchise them; if we do that, we are doing this wrong. So will the Minister confirm that those things are in place?

Yes, that definition is included in the Bill, and it is also expected that people will have an advocate. That is an approved person; it can be a family member or loved one or it can be an independent mental capacity advocate, or indeed both if the family do not feel they are fully equipped to be able to support their loved one.

So the wishes and feelings of the loved ones and their families are at the heart of the Bill?

The wishes and feelings of the vulnerable person are at the centre of the Bill, and the wishes and feelings of their family will definitely be taken into consideration if their family is the approved person. We must always leave a little space in case the person does not want their approved person to be a family member for whatever reason.[Official Report, 13 February 2019, Vol. 654, c. 8MC.] The wishes and feelings of the individual must be at the heart of this, and that was at the heart of the original Mental Capacity Act 2005.

Does the Minister agree that one of the most essential things everyone should do while they are well is make sure they take out an enduring power of attorney that names the person they want to oversee their health and wellbeing should they be in a situation such as this? Also, many families are intimidated into making bad decisions out of fear that the care home might say, “If you don’t do as we say, or if you complain, move your parent.” Giving power into the hands of care home managers is a very dangerous situation.

As a Justice Minister, I was responsible for lasting powers of attorney and we spent a lot of time trying to convince people to make those sorts of decisions for themselves as early as possible.

I am going to make little progress now because I have a lot more to say and I know that other Members want to speak as well.

What assurances can the Minister give that the regulations will be genuinely co-created with practitioners and cared-for people? If they are not, how can we be sure that the amendments are not a way of clandestinely watering down the protections of the Bill?

The Bill is very clear about the skills and qualifications necessary for those carrying out the assessments, but the code of practice that goes alongside the Bill will be carried out in partnership. We already have a working group made up of third sector organisations that are working to ensure that the statutory document that goes alongside the Bill is as robust as we can make it.

I would like to thank the Minister for meeting me earlier to discuss the Bill. She was very generous with her time. On the question of the code, does she envisage that there will be training on the code for these professionals? If so, how long does she think the training will take, and when will it be properly in force for local authorities to utilise?

Yes, we envisage that there will be training and we will be working with partners such as Skills for Care to look at the best ways of implementing that sort of support.

Could the Minister outline the role of care staff in preparing the documentation and making ready for the assessments, as opposed to the role of the responsible body—the local authority—that will make the assessment?

I am actually coming to that very section of the Bill now.

We are proposing that a review of an authorisation will be completed by an approved mental capacity professional when an objection is raised by someone with an interest in the cared-for person’s welfare. It is vital that objections can be raised not just by the person themselves but by others who have an interest in their welfare. This could be a member of the care staff, a close friend or a family member. The Government amended the Bill to clarify that objections can be raised at a pre-authorisation stage, and these new amendments clarify that objections can be raised at any time throughout the authorisation and can lead to a review of the ongoing need for deprivation of liberty.

Amendments 39, 40 and 42 relate to authorisations that need to vary in order to prevent them from ceasing because small variations need to be made. Under the current deprivation of liberty safeguards system, an authorisation is tied to one specific location. This creates a situation in which a person has multiple authorisations if they need to move between settings. If a person is in a care home and has a planned stay in hospital, for example, a new application has to start from scratch. The Law Commission recommended that authorisations should be able to cover more than one setting to remove that duplication. There is an exception if someone needs to go into hospital in an emergency, when variations can be made without a review taking place first, but one should be held as soon as possible afterwards. In some cases, the responsible body will change even though the person still resides in the same location. For example, a care home resident may become eligible for NHS continuing healthcare, but their location and care will not change.

Opposition amendment 49 seeks to require the responsible body to carry out the consultation required by the Bill in every case, removing the ability of the care home manager to complete the consultation. We are clear that it is not appropriate for certain functions to be conducted by the care home manager, which relates to what the hon. Member for Hornsey and Wood Green (Catherine West) was saying. The Bill explicitly prevents anyone with a prescribed connection to a care home, which will be set out in regulations and will include care home managers and staff, from completing the assessments required for an authorisation and the pre-authorisation review. We are clear that decision making lies with the responsible body, not the care home manager.

Consultation is another matter. We expect, as part of good care, that care providers are consulting with the people in their care, and with those with an interest in that person’s welfare, to establish their needs, wishes and feelings. That applies regardless of whether someone is subject to a liberty protection safeguard and should happen on an ongoing basis. Having care home managers complete the consultation required by the Bill is simply building upon current good practice. The Bill has clear safeguards for that purpose. Objections do not need to be raised through the care home manager. They can be raised directly to the responsible body by the person or by someone interested in their welfare. If there are concerns about the care home manager’s ability to complete the consultation required under the Bill, the responsible body can decide to take on the care home function and complete the consultation itself.

Many hon. Members will have had a large amount of correspondence from constituents on this matter. Does the Minister accept that there is huge concern about the operation of the provisions and about the role of care home managers more generally? The amendments seek to address that concern, but that feeling remains.

I accept that there were a number of concerns, but we made changes to say that care home managers would not in any way be responsible for authorisation or for pre-authorisation reviews.

I am afraid that I will not take any more interventions because Mr Deputy Speaker might fall out with me entirely. In short, care home managers will be responsible for consultation, which is already part of good care.

Amendment 50 would require an approved mental capacity professional to complete the pre-authorisation review, where care home arrangements are being authorised and where the care home manager provides a statement to the responsible body. The Law Commission recommended the creation of the AMCP role and also recommended that their use should be focused on those cases where their input is needed. The commission recommended that AMCPs should consider cases where an objection is raised and the Bill does that. The Bill also allows other relevant cases to be referred to an AMCP. We expect, for example, cases where there are complex circumstances, or particularly restrictive practices are proposed, to be referred by the responsible body to an AMCP. We have also specified that an AMCP must carry out the pre-authorisation review in independent hospital cases. However, we agree with the Law Commission that not every case should be considered by an AMCP. By having a targeted system, with a greater focus on more complex cases, we can ensure that people receive the protection to which they are entitled.

Turning to amendment 51, I thank hon. Members for raising advocacy, about which we spoke at length in Committee. Advocacy is of the utmost importance for ensuring that the voice of the person is heard. That is why this Bill creates a presumption of advocacy for everyone who is subject to arrangements under liberty protection safeguards. During our engagement with stakeholders, many people and their families told us that the DoLS system was something that was done to them without family involvement. That is why this Bill introduces the appropriate person role described by the Law Commission. Family members and those close to the person will be able to be an appropriate person and provide representation and support. We recognise that that role can be challenging, which is why it will be conducted only by those who are willing to do it. Otherwise, people will be able to request an independent mental capacity advocate to support them in providing that important representation.

Like Opposition Members, we want to ensure that people receive advocacy, but we recognise that we should not impose it on people, nor should it become a formality without real effect. Our Bill already delivers on amendment 51.

Will the Minister give way?

I am afraid that I cannot take any more interventions at this stage.

Our Bill allows the person themselves to request an IMCA from the responsible body if they have the capacity to do so, and it explicitly states that an appropriate person can request an IMCA or that the responsible body should appoint an IMCA if it believes that the appropriate person having the support of an IMCA would be in the cared-for person’s best interest.

I agree that the appropriate person has a challenging role with vital duties to ensure that the person exercises their rights, and we want to work with others in the sector to establish how best to support them in this role. There is existing provision in the Bill to address the concerns raised by amendment 51. In some areas, the amendment adds uncertainty and over-complication.

This Bill is about protecting vulnerable people and replacing a one-size-fits-all system.

I thank my hon. Friend for giving way and for listening to many of the concerns that have been expressed about the Bill, as shown in the Government amendments. How are we going to deal with the extraordinary backlog of cases, which has left over 125,000 people without protection? The safeguards she has set out will stop this being a rushed process, but will she say something about the backlog?

The backlog of 125,000 people without the safeguards they need, with their families lacking reassurance and with the people who care for them lacking legal protection, is an enormous concern. That is why, during the long period in which we will set out the code of practice, we will be supporting local authorities to go through those backlogs. From day one, when the system is implemented, any new applications and those still in the backlog will be processed using the new system.

With grateful thanks for your patience, Mr Deputy Speaker, I will now sit down. This new system puts individuals at its very heart, and it removes the one-size-fits-all, box-ticking exercise we have unfortunately come to live with under the current system.

The opening two speeches have taken 55 minutes, and we have to finish at 6 pm. I recognise that a lot of other people want to speak, and I certainly do not want to put pressure on the Opposition spokesperson, who also wants to make a speech. When other people come in, please remember that we want to get through everybody.

We should not be in this position of having less than two hours on Report. This Bill has been rushed. We were in the same position on Second Reading, and it is absolutely unacceptable for such an important Bill to be rushed through as it has been today. I spoke to the Minister about this yesterday. She could have chosen to bring the Bill back on a different day, and I am sorry that she has not.

I am every bit as concerned about this Bill as I was on Second Reading. It remains deeply flawed. It weakens the current safeguards for people who lack capacity, and we have not even had a clear answer to the question that the hon. Member for Totnes (Dr Wollaston) just asked about the current backlog of DoLS applications. It is not clear how that will be cleared.

The Minister said at the start of Committee that she would work constructively with other parties on this Bill, but that has not been reflected in our experience. She has dismissed many of the serious concerns raised both by Opposition Members and by the many charities and representative groups outside the House with an interest in the Bill.

I said in Committee that our amendments were the bare minimum required to ensure that the Bill is fit for purpose. The Government rejected all our amendments in Committee, and, despite some movement on one or two issues since, the Bill retains the majority of the significant flaws it contained on Second Reading. It is sad that, having been through all the stages, this is where we are.

We have tabled further amendments to address some of the glaring holes that remain in the Bill, and I thank all the stakeholders who have helped us, including the Alzheimer’s Society, VoiceAbility, Mencap and Lucy Series. Without these amendments, we simply do not believe that the Bill is fit for purpose, and we oppose it progressing further.

I very much agree with that. We have heard about a code of practice and regulations, but we cannot see any of these things. With this Bill, we should have had the promised detail on the code of practice. We should not be passing the Bill without it.

First, I wish to talk about amendment 50, which addresses the role proposed in the Bill for care home managers. A number of Members have raised that issue, and we fundamentally disagree with that role, in the same way that we disagreed with the role in the liberty protection safeguards system being given to independent hospitals, which the Government are now amending. There is no logic in the Government removing one conflict of interest from the Bill and not the other.

When this Bill was introduced in the House of Lords, it placed almost all power and responsibility for the LPS in the hands of care home managers. It would have allowed them to be judge and jury, deciding when to deprive people of their liberty. I accept that the Bill has been marginally improved from the original position. The Government were forced to make concessions in the House of Lords, but what they have done so far is the bare minimum. The Bill still hands far too much power to care home managers. Stakeholders across the sector, including care home managers themselves, are very concerned about this. Care England, the representative body for care homes, has said:

“As providers we are very concerned about the inherent conflict of interest associated with placing Liberty Protection Safeguards assessment responsibilities on care home managers “

I also want to quote something that was written in evidence to the Public Bill Committee. A submission made by the Albert House nursing home stated:

“Managers in Care Homes are already stretched and heaping further responsibility on them could lead to more people giving up and looking for easier work.”

It seems clear that even care home managers do not want this responsibility to be given to them. I cannot understand why the Government are insisting on doing so, unless of course the reason is just cost saving.

Under the Government’s proposals in the Bill, local councils will be able to delegate the assessment and consultation process to the care home manager whenever they see fit. That risks creating a postcode lottery, where some local councils with adequate resources carry out LPS assessments themselves, while others will have to reduce their role to simply rubber-stamping the applications they get from care home managers. That cannot be right.

We have to be clear in this Chamber that one issue facing the current system is that some local councils are not able to properly resource their DoLS teams following years of cuts to their funding. This Bill would allow cash-strapped local councils to outsource the process entirely, with serious consequences for cared-for people. If care home managers organise the authorisation process, they decide who carries out medical assessments, and who determines whether the arrangements are necessary and proportionate. I have heard colleagues expressing concern that the statement provided by the care home manager forms the basis of authorisation. We know that many local councils do not currently have the resources to fund their DoLS teams properly now. Conservative Members have talked about the backlog and concerns about that, but in recent weeks we have seen a further £1.3 billion taken out of grant funding to local councils. The Minister has given us no reassurance that the Government will provide any new funding for the proposed system.

While my hon. Friend is on the subject of care home managers, may I ask whether she agrees that if they are responsible for the consultation, which is supposed to be one of the safeguards protecting a person’s liberty, the person cannot possibly be at the heart or centre of the Bill? Such a provision drives a coach and horse through the notion that their liberty is being protected.

I absolutely agree with that. Local councils face a serious resource issue, and we see a pressing of this role away to care home managers. I have got some examples with me, but I do not know whether I will have time to go through them. However, we can see that there will be a strong temptation in local councils simply to presume that the care home manager is right. We have to recognise that over-stretched professionals in local councils will sometimes simply accept the word of care staff without fully investigating the case.

In the Public Bill Committee, I talked about the recent case of Y v. Barking and Dagenham. This was the case of a young man who was placed in an inappropriate care home. Initially his parents were satisfied with his placement, but over time the quality of his care deteriorated. We hear a lot and have great concerns about restraint. That young man was restrained in that care home 199 times in two years and suffered significant harm. Y eventually got out of that placement, following a court-appointed guardian visiting and raising concerns, but it took the intervention of somebody outside the care home—that is the key thing.

The hon. Lady is making a powerful case and she talked about many such cases in Committee. Does she agree that this shows exactly why the DoLS system needs overhauling? It is not offering the required protections for vulnerable people, which is why this Bill is so urgent.

I could not disagree with the Minister more, because what she is doing is putting people into the lion’s den. I do not know whether she is listening to me, but I am reading her a case where the difficulties arose because the local authority listened to care staff and did not listen to the parents’ objections at all. That is the difficulty. Under the new LPS system, that young man would not have had any safeguards or protection, because the care home staff would have been the people sorting out his authorisation.

Under the new system, family members and parents will be listened to, because they will be the approved person, the representative and the advocate. Their voices will be heard, which is not happening currently.

It is not helpful if the Minister and I argue about this. We have had this argument enough times in Committee. She just needs to see that there is a level of concern. I am quoting a case where significant harm was done to a young person in a care home because the parents were not listened to and the care staff were.

I can understand where the hon. Lady’s concerns come from, but having had detailed discussions with my hon. Friend the Minister, I am reassured, perhaps more than the hon. Lady, by the systems and some of the amendments that have been put in place to take into consideration concerns about conflicting provider interest. She makes a good point on the lack of funds and resources and cash-strapped local authorities. Without the money to support local authorities, there is a real risk that scrutiny of care homes and the processes in place under the legislation will be sadly lacking, to the detriment of people under deprivation of liberty orders. What reassurance has she had, if any, during the passage of the Bill that the funding crisis affecting social care and local authorities is being addressed by the Government, both in respect of this legislation and otherwise?

I thank the hon. Gentleman for that question. We have had no reassurances whatever. In fact, since the Committee finished, £1.3 billion has been taken out of central Government funding to local councils. Whatever our position was when we were in Committee, things are now much, much worse.

The Minister does not agree, but it is disturbing that we are still in the position on Report of trading the arguments back and forth. We gave lots of examples. There is provision in the Bill for an approved mental capacity professional. With our amendment we want to be sure that we do not have cash-strapped local councils delegating responsibility. There is talk under some amendments to bring in reviews, but reviewers have to be able and willing to stand up to care home managers, and that is a difficult thing.

As my hon. Friend the Member for Bridgend (Mrs Moon) said earlier, care home managers have a lot of power. They have the power to evict and the power to stop visits. Amendment 49 would work with amendment 50 to address the role that the care home manager could play. It is one of the most concerning provisions in the Bill, and it must be addressed if the new liberty protection safeguards are to be fit for purpose.

I do not in any way want to stigmatise care home managers, but I ask Government Members to accept that we are talking about a situation where at least 20% of care homes require improvement or are rated inadequate. Care home manager vacancies are at 11%. We are not talking about a situation where all care homes have a proper care home manager in place, or where they are all doing as well as they could. If the Minister reads many CQC reports, she will see that care homes often fall down on care planning. CQC inspectors often find that there is not a proper or adequate care plan for the situation.

Is my hon. Friend satisfied that rights of appeal are being managed correctly in the Bill?

No. On the Opposition Benches, we are not satisfied with very much about the Bill, but I am talking about our amendments for care home managers because we feel that safeguards have been weakened. I will give an example, because there are many cases where the powers of care home managers are used to shut down any opposition to what they are doing. A person whose husband was in a care home visited him every day and took a keen interest in his wellbeing. He had lost the ability to speak and had little mobility. She found that he was in pain and when she raised that with staff, they failed to act and dismissed her concerns. She then raised it with the care home manager who warned her that if she continued to take up staff time, she would be banned from visiting her husband who was actually nearing the end of his life. That is an awful thing—that a wife would be banned from visiting her husband near the end of his life. It was only with the help of an outside organisation that the cause of the pain was identified. If relatives, including spouses, were prevented from visiting in the situation that I have just described, how could they be raising a major objection? How could they be challenging the care home manager? The appeals question that my hon. Friend the Member for Hornsey and Wood Green (Catherine West) just raised with me is very concerning.

Under the current provisions of the Bill, care home managers are expected to carry out the consultation process, and yet this is the one opportunity that the cared-for person and their family have to register any objections to the proposed arrangements. The process needs to be carried out independently so that people can feel free to speak their minds. Amendment 49 achieves that. It prevents the local council from delegating the consultation process to the care home manager, and then this crucial step must be carried out by the local council itself.

In Committee, the Minister said she believed that it could be appropriate for a care home manager to carry out that process, because those with an interest in the welfare of the cared-for person can flag up objections, but that would not always work in practice. For that to happen, a family member would have to know that they had the right to do that. They have to know with whom to raise their objection and then raise it in a timely manner. That is pretty key in relation to this business of care homes and to challenging on behalf of the cared-for person. It is not reasonable to expect people to understand the intricacies of the system. Similarly, we cannot expect everyone to have the confidence to negotiate the system for themselves. We here perhaps do not always think how hard it is to challenge those in authority, but it is a very difficult thing to do indeed. We need to offer a cared-for person a chance to object in a setting that they are comfortable with, without fear of reprisals from care home managers.

Government amendment 38 goes against the principles that I set out in relation to our amendment 49. It is unacceptable for the care home manager to be involved in that consultation with the cared-for person and their family, so we are in a situation where the two amendments are directly opposed.

Let me move on to our third amendment, amendment 51, on advocacy, because that addresses the provision of independent advocates for cared-for people. That is a crucial safeguard, which enables people to realise their rights under the Mental Capacity Act 2005. The advocacy system proposed in this Bill is excessively complex. It could see people being denied an advocate when they need one. Our amendment seeks to simplify the system, ensuring that advocacy becomes the default option. Stakeholders have told us that they are concerned about the use of a best interests test to determine whether somebody should receive an advocate.

Clearly, there is a situation in which the Minister thinks that a best interests test is used to avoid overriding the wishes and feelings of the cared-for person. We agree that advocacy should never be forced on somebody, but we must be explicit about this principle of advocacy being available as the default.

My hon. Friend is so generous in taking interventions. Does she agree that there is no consistency in the choice of advocates across the regions?

That may well be the case, but the difficulty here is that we have a complex system when we should have a simple system that clarifies that an independent advocate, an IMCA, should not be appointed if a cared-for person objects to it, but that everyone who wants or needs an advocate can get one. There should be an absolute right to request that an advocate be appointed both for the cared-for person and for any appropriate person who is representing them.

Our amendment would ensure that support is provided where an appropriate person is not able, on their own, to give the cared-for person the support that they need. That is particularly important, and there are many examples. I am sure that the vast majority of responsible bodies would not exploit loopholes, but we feel that there are loopholes in the current situation.

Budget pressures are another concern. There are concerns that advocates may not be allocated because of Government cuts to local council budgets. We feel that it is important that the wording from the existing Mental Capacity Act is retained. Let me give an example. The concern was put succinctly in evidence submitted to the Public Bill Committee by the Doughty Street Chambers Court of Protection team, who said:

“The requirement to ‘take all reasonable steps’ is a weakening of the current requirement that the supervisory body must appoint an IMCA...It is therefore possible that a ‘cared for person’ may qualify for an IMCA but that due to resource issues the reasonable steps taken do not result in such an appointment, and this safeguard may not be available.”

From everything the Minister has said, I know that she agrees about the importance of advocacy, and we have heard a lot of case studies, one of which I will briefly mention. My hon. Friend the Member for Slough (Mr Dhesi) described a case that has stuck with me since. An advocate was visiting a man in a care home who was clear that he wanted to leave and move back to his own home. When the advocate looked into the matter further, they discovered that the man’s home had been put up for sale by the local council to fund his care. He had no idea that that was happening and was extremely upset. With the help of an advocate, he was able to challenge the local council’s decision and prevent his home from being sold. I recall that example from Committee, and it is a powerful one that demonstrates just how important an advocate can be. Without one, this man’s home would have been sold without his knowledge, and he would then have been forced to remain in a care home that he wanted to leave. There are countless examples of how important an advocate can be.

I rise to support the Bill and, in particular, to speak in favour of Government amendments 24 and 33.

Before I do so, let me respond to some of the points that have already been made. First, with regard to the timescale in which the Bill is being taken forward, there has been plenty of opportunity for colleagues to look at its details. I draw Members’ attention to the fact that there have been not just one but two detailed reports on this issue by the Joint Committee on Human Rights, one in June 2018—our seventh report of this Session—and then, in October 2018, our 12th report, in which we considered the draft Bill in some considerable detail. At that point, we welcomed the recommendations of the Law Commission. Of course, the Law Commission had itself been some three years in preparing its recommendations, so the Bill can hardly be described as rushed.

Does the hon. Lady recognise that the Law Commission objects to the fact that its recommendations were not taken up by the Government when they constructed the Bill?

I was about to say that the Joint Committee welcomed the Law Commission’s recommendations because they clearly highlighted the need for changes to be made.

As we pointed out in our seventh report, as far back as last June, the Cheshire West case that the Minister mentioned had resulted in a 10-fold increase in the number of DoLS applications. That is why there has been such a backlog. That case placed extreme pressure on local authority resources. Some 70% of the almost 220,000 applications for DoLS authorisations in the year up to our report were not authorised within the statutory timeframe. Consequently, many incapacitated people continued to be deprived of their liberty unlawfully. Those responsible for their care, or for obtaining authorisations, were having to work out how best to break the law. That is completely unacceptable, and it is why this Bill needs to brought forward in a timely way.

There also needs to be, as the Committee recommended in our 12th report, a definition in the Bill. I hear colleagues’ reservations about that definition, but, as we said—I am glad that the Government took up our recommendation—that it is important to give cared-for people and their families, and professionals, greater certainty about the parameters of any scheme so that we can ensure that scrutiny and necessary resources are directed where needed. We said:

“It is undeniable that any definition in statute may be refined by future case law”.

That remains that case. None the less, not to have endeavoured to provide a definition would, we believe, have been wrong.

Having made those preliminary comments, I will speak in more detail about amendment 24 and expand on the remarks made about the importance of family engagement and keeping the family informed. Information for the family and those who care deeply about the welfare of the person is the cared-for person’s greatest safeguard against exploitation and bad care. It is paramount that families have a role to play in their relatives’ care planning, wherever that is desired by the cared-for person, not least by giving them the option to stay fully informed and to object to proposed plans if they are not satisfied.

Families can play an important role in monitoring care if they are given sufficient information. The care itself is important. The quality of care will vary between and within care homes, but monitoring the care plan is essential to ensure that the cared-for person’s dignity is maintained. The cared-for person’s quality of life depends on how they are treated day in, day out and whether they receive care in a way that enhances their personal dignity or whether, sadly, they are treated less well.

Families are well equipped to monitor care, but only if they are kept informed. That is why I support amendment 24, which improves access to information for the cared-for person and their appropriate carers and supporters, which may well include their family. The requirement for information to be

“accessible to, and appropriate to the needs of, cared-for persons and appropriate persons”,

means that the cared-for person is placed at the heart of the liberty protection safeguards authorisation process. Not only that, but now that relatives can be informed about their loved one’s care plan, they will notice if the plan states something that is not happening and question why.

I am pleased to see that the amendment requires the publication of information on the cared-for person’s rights and the circumstances in which it might be appropriate to request a review or make an application to the court. People must know what their rights are and the legal procedures. This will not be costly. It will certainly be far less costly than the court cases that are likely to come if the requirement to provide information about all aspects of the process and the plan are not on the face of the Bill. It will save costs in the long term and ensure that the approved mental capacity professionals act always as they should.

The code of practice will play an important role. It would be helpful to see examples of family members working with the responsible bodies and the care teams to ensure that care plans are being delivered appropriately and are in the best interests of cared-for individuals. I am sure we all want to see that.

I turn to amendment 33. In the JCHR’s 12th report, we indicated that there has been concern as to

“whether care home managers have the necessary skills and knowledge to arrange or undertake the assessments and whether they are sufficiently independent to do so”

and whether care home managers are

“trained and resourced to take on these additional responsibilities.”

It is heartening to hear that the Government have listened and are clearly stating that care home managers and staff should not, and under these proposals will not, complete assessments. It is equally heartening that the Government, having listened to concerns expressed in Committee, are saying that all those doing such assessments must have the necessary skills, knowledge and qualifications—for example, as physicians, nurses or social workers—and that that will be specified in regulations. I want Ministers to put in place appropriate arrangements to assess whether implementation of this element of the Bill is working well—for example, to ensure that specifications of required qualifications and the experience of assessors are kept updated and that the revised system is working well and without difficulty in practice.

Ministers might consider taking up the recommendation in the JCHR’s 12th report that particular vigilance should be exercised by local authorities where care homes are rated by the CQC through an inspection as inadequate or requiring improvement, to ensure that those who are making referrals are properly competent to do so.

I want to speak primarily in support of the amendments in the name of the shadow Minister, the hon. Member for Worsley and Eccles South (Barbara Keeley), and others. However, I want to comment right at the start—I realise this is not the decision of the Minister—about the time we have to debate a Bill that deals with fundamental human rights. I just think it is absolutely outrageous, and we should place on the record our total opposition to the way in which, wholly inappropriately, it has been rushed through.

I should also say that I completely understand the need for reform. I said that on Second Reading, and I acknowledge the Minister’s sincerity on that. I recognise that we breach the human rights of the people who are on a long waiting list for anything to happen to them, but that is no justification for getting it wrong at this stage. Surely we must not weaken the protections for very vulnerable people, yet the organisations that have followed this process all the way through are very clear that that is precisely what we will do.

I just think this is extraordinary: the Government have commissioned a review of the Mental Health Act, and although we have not had the formal response yet, I expect that much of what the review calls for will be supported by the Government, yet the review moves in a diametrically opposite direction to this Bill. The review talks about “rebalancing the system” and about

“a real shift in the balance of power between the patient and the professional”.

The review also talks about

“a right to advocacy based on an opt-out approach.”

That is what the amendments in the name of the shadow Minister seek. This will not, as the Minister implied, force advocacy on anyone; this is about having it as the default option. The Law Commission has called for a right to advocacy as an opt-out approach, yet the Government are resisting it. Why are they resisting it? This reduces the rights and protections of vulnerable people, and for that reason it seems to me that it is unacceptable.

On Second Reading, I said that I would not oppose the Bill at that stage, and I said:

“Our assessment will be at the end of the process: is it workable? Does it genuinely respect and safeguard individuals’ human rights? Does it result in very vulnerable people being better protected than they are under the existing…flawed system?”

At that time, I asked the Minister to meet all of us, including interest groups, before going into the Committee stage. I said on Second Reading:

“Do not rush headlong into the Committee stage.”—[Official Report, 18 December 2018; Vol. 651, c. 744.]

Yet, within a fortnight, we were in Committee, which is exactly what I had urged her not to do.

Then we come to the views of the sector. I mentioned earlier that over 100 organisations, including care providers, disabled people’s organisations and charities, have written to the Minister. They make it clear that reform should not be at the cost of the human rights of people who rely on essential social services. I want to deal, specifically and finally, with the conflict of interest issue. They say in that letter to the Minister that

“serious conflicts of interest will be placed upon care managers who will be in control of key information about assessments and review processes.”

The Law Society—surely we should take its concerns seriously—says of care home managers that

“any task or role they undertake must be completely conflict free”,

and that they should not be arranging or carrying out critical assessments. Care home managers should not be responsible for consultation with the cared-for person. It describes the current process—it is not a past but a current concern about the Bill, as amended—as “deeply flawed”. It says:

“It is not difficult to envisage a vulnerable person being uncomfortable or reluctant to give an honest answer when questioned by the care home manager on their willingness to stay”—

in that care home—

“or their ‘happiness’ in the current placement.”

The Law Society’s concern is also about the capacity of care home managers to undertake this work, given that the whole system is under massive pressure. Bluntly, the quality of care home managers is such—many of them are really good, but some of them are not, frankly, good enough—that we cannot rely on them to undertake this vital work, which goes to the protection of the civil liberties of vulnerable people.

On the training that the Minister has talked about and the hon. Member for Congleton (Fiona Bruce) just referred to, I understand from impact assessments that there is half a day’s training for care home managers and two hours of training for social workers. What does the right hon. Gentleman think of that?

That is clearly insufficient when it comes to the vital task of playing a role in the protection of people’s civil liberties and human rights. That is what the Bill envisages.

Sue Bott, the deputy chief executive of Disability Rights UK, says:

“Given the rare unanimity across the health and social care sector and disabled people’s organisations we urge the Government to delay the Bill and look again at its provisions. It is better to have a co-produced piece of legislation that works for everyone than rush through a new law that, in its current form, will seriously undermine the human rights of disabled people.”

I urge the Minister to listen carefully to that—the “rare unanimity” across the sector. When I was responsible for taking the Care Bill through Parliament, we ensured that by the end pretty much everyone was on board, although it was a slow and sometimes frustrating process.

The Minister will be applauded if she now recognises that these concerns about the amended Bill are not past ones but current ones. If we are to get people on board and ensure that everyone agrees that we are properly protecting the human rights of very vulnerable people, the right thing to do now is pause, before the Bill goes back to the House of Lords, to ensure in particular that the provisions on conflict of interest of care home managers and the rights of advocacy are properly addressed. If the Minister can do that, she will go a long way towards bringing people on board. I am sure that that is what she wants.

Given the restrictions on time, I will curtail my speech and take out remarks I might have made; I am conscious that colleagues would also like to speak.

I always agree with the passion of the right hon. Member for North Norfolk (Norman Lamb) on these issues, but I do not agree with his conclusions on aspects of the Bill. I am reassured by the Government amendments, particularly in relation to independent hospitals: such a hospital might have a potential business interest in keeping someone in its service, so it will not at any time judge whether that person needs to be under the deprivation of liberty safeguards.

It is important that we have a modern system; as has been mentioned, the backlog of 125,000 people under the existing system is utterly unacceptable. What standards there are will need to be changed. When I look at the Opposition amendments, particularly amendment 49, I take the Minister’s point that the consultation—actually talking to someone about their views and their care—is part of what we would expect a care provider to be doing. There must be clear, independent safeguards around deprivation of liberty, and the ability to have an independent check. In some cases, it would be better for someone who works with the individual every day to do the consultation, rather than someone literally turning up from the local authority or health board, who may not have had any contact with them. We are talking about people with issues when it comes to interacting and understanding some of the engagement, so I do not see why there should be consultation in all cases. We are talking about consultation, not decision, and I do not see what the issue is with that.

I turn briefly to the amendments moved by the hon. Member for Rhondda (Chris Bryant). The attention he brings to the issue of acquired brain injury is always welcome—particularly in the football world, on the day when an England 1966 hero passed away. The hon. Gentleman mentioned that those from that era often acquired head injuries as a result of heading heavy leather balls, particularly when wet. That is still an issue in football today. I join the hon. Gentleman in saying that the rules should be looked at. If that can be done in rugby without affecting the flow of the game, there is no reason why it cannot be done in football. Similar arguments were advanced in relation to video referees and they are now in place.

I am conscious of the time remaining for others to have their say, so I will just say that I support the Bill and that I do not see the need for the amendments tabled by the Opposition.

It will be obvious that three people have indicated they wish to take part. I am sure that they will all limit their remarks not to a very small amount, but if they could be limited to six or seven minutes then everyone will get a chance to put their view.

It is a pleasure to follow the hon. Member for Torbay (Kevin Foster).

It is my firm belief that the Bill is deeply flawed. Even with the concessions Ministers have made, and the forensic scrutiny and dogged determination of my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley) and her Opposition Front-Bench team, as well as those in the other place, the Bill will do very little to help the crisis in our mental health services. Even at this late stage, I would add my name to those of my many colleagues and a plethora of stakeholder organisations urging Ministers to delay the Bill to allow proper deliberation and discussion. Why do I say that?

First, we cannot debate the Bill without a clear sense of the issues at stake. We are talking about the state’s right to remove liberty from a citizen without trial or the judgment of their peers. That goes to the very heart of habeas corpus and our most fundamental human rights. It concerns the very liberties that this Parliament has stood for centuries to defend. When Parliament has played fast and loose with our right to be free from arbitrary imprisonment, the consequences have brought shame upon us, so we must always think very carefully before passing laws that remove a person’s liberty, no matter how compelling we consider the reasons.

Secondly, we must never forget the history of the treatment of people with mental illness in this country. We have a sorry and shameful history of incarcerating people with mental illness, autism, dementia and other conditions. Often the incarceration was unnecessary and cruel, and motivated by malice not medicine. Women in particular could be locked up for so-called “hysteria” when husbands wanted them out of the way. We must tread very carefully.

Thirdly, there is the question of scrutiny of the Bill. We must act only after the deepest of thought and most widespread discussion and consultation. Unfortunately, the Bill has not been subject to the widest consultation and the deepest discussion. The discussion and suggestions that we made in Committee seem to have been largely ignored by the Government. We might have expected Ministers to have learned the lessons from the Health and Social Care Act 2012, which was imposed without consultation and then had to be delayed after its flaws were exposed. It then cost us hundreds of millions of pounds for an unnecessary raft of reckless reforms.

The Bill has been rushed and the consultation with stakeholders has been incomplete. You do not have to take my word for it, Madam Deputy Speaker. Just consider the remarkable open letter issued on Friday 8 February by so many of the organisations closest to the issue: the Voluntary Organisations Disability Group, Disability Rights UK, Foundation for People with Learning Disabilities, Action on Elder Abuse, Dementia Friends, Sense, the National Autistic Society, Royal Society for Blind Children and Mencap, just to mention a few—a very few—of the more than 100 local and national organisations across England and Wales who wrote to the Care Minister and the Parliamentary Under-Secretary of State, Baroness Blackwood.

What did this huge coalition of caring organisations come together to say? They raised “serious concerns” and “significant objections”. They called the Department for Health and Social Care’s consultation “piecemeal”. They talked about “serious conflicts of interest”. They highlighted the facts that impact assessments have been late and limited in coverage, and that there is a lack of clarity about how the system will be regulated with independent oversight. They concluded:

“We believe that the reforms in their current guise pose a threat to the human rights of those requiring the greatest support in life.”

A threat to human rights is a serious charge. When so many organisations are making it, surely Minsters must listen and not just plough on regardless?

There is a saying in the disability rights movement: no decisions about us without us. When I served as a trustee of the Alzheimer’s & Dementia Support Services and as a Mencap Society committee member, that was a principle we held dear, yet those in their place on the Treasury Bench are not listening. To be clear with the House, we have a serious problem that needs fixing. We have vulnerable people waiting for months, families at the end of their tethers and mental health and care professionals feeling frustrated, and that is why the system is broken.

I congratulate my hon. Friend on a fantastic, very heartfelt and experienced speech. Does he share my concern that the foundations on which this is being laid—primarily on local government—are very weak, with an £8 million funding gap? The Government have not faced up to that crisis yet.

I thank my hon. Friend and I fully agree with him. The cuts to local government have been devastating and the Bill will merely exacerbate the situation.

Finally, we have come a long way in our understanding of mental illness, dementia and neurodiversity. I note with pride that a new group was founded this weekend—the Labour neurodiversity group—to build on the success of our party’s neurodiversity manifesto. We wish the group all the very best. We have made great strides in tackling stigma and prejudice, thanks to the efforts of people such as my right hon. Friend the Member for North Durham (Mr Jones) and my hon. Friend the Member for Liverpool, Wavertree (Luciana Berger), who deserve nothing but praise.

We are learning all the time and our laws must reflect our enlightened attitudes and the latest thinking, not the outdated views of previous eras. I am happy to associate myself with the Labour amendments being discussed this afternoon. If there is one I would highlight, it is the proposed amendment that guarantees a vulnerable person the right to an advocate. In too many cases, they have no one to speak up strongly on their behalf, to articulate their wishes and to champion their best interests. It is surely right that such a person should always be available.

As a member of the Bill Committee, I know that we made some progress in improving the Bill, but I remain unconvinced that it will be enough to rescue this piece of legislation and to provide a fair, workable system that ensures the best possible care for hundreds of thousands of people and guarantees their human rights. Many hon. Members have highlighted the 2017 Law Commission review.

The hon. Gentleman keeps talking about human rights, but what answer does he have for the fact that up to 125,000 people are currently being unlawfully deprived of their liberty, in breach of article 5 of the European convention on human rights? That is the problem that the Bill seeks to rectify.

I thank the hon. Lady for her intervention, but in terms of human rights, this issue is being raised not just by me, but by more than 100 pre-eminent organisations in the field. The only way to solve that is through funding—that is the only way in which we can lay this matter to rest. The hon. Lady highlighted the 2017 Law Commission review of the deprivation of liberty safeguards, which stated that the current regime is

“in crisis and needs to be overhauled.”

I agree. There is a crisis and the current system cannot cope, but surely the answer is not to replace bad laws with yet more bad laws, and that is what we are in danger of doing.

I will be brief. My hon. Friend the Member for Rhondda (Chris Bryant) has tabled an excellent amendment, which I support. We know that the system is broken. What we are doing is replacing it with an even worse system. Just to acknowledge how broken the system is, the Alzheimer’s Society’s national dementia helpline receives over 100 calls a month about the Mental Capacity Act, which is clearly confusing and complicated for people with dementia, as well as for their families and carers. However, as we have heard, so many different disability organisations and a whole range of charities, as well as the Law Commission, are saying that this Bill is not fit for purpose.

I particularly support the amendments tabled by my hon. Friend the Member for Rhondda. The Greater Manchester Neuro Alliance, which I have supported for several years now, has several concerns, particularly about a person who presents inconsistently and has a cognitive impairment, mental health problems or is simply vulnerable and does not accept or appreciate their illnesses and the limitations. One member of the alliance from Oldham told me:

“My son has been deemed as having capacity because he can answer questions yes or no but he can’t be left alone or allowed to go out unsupported, he doesn’t take his medication and doesn’t have the ability to plan or manage anything including lifesaving treatment every three weeks”.

Such examples are not addressed in the Bill.

I will move swiftly on, Madam Deputy Speaker. I share the concern that my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley) has expressed so clearly about care home managers and the conflict of interest in the Bill. It is a minefield and needs to be addressed. She made that point clearly.

Amendment 48, tabled by my hon. Friend the Member for Stockton North (Alex Cunningham), would rightly prevent cared-for people from being charged for the assessments required by the system, potentially providing a financial incentive to do the mental capacity assessments. Without the amendment, we cannot be sure that people will not be charged more for their care solely because they require liberty protection safeguards to be granted. If the Minister does not accept the amendment, I would like to know why. On advocacy, we need to ensure that the “best interests” test is changed to place more weight on a person’s wishes.

There are several other issues with the Bill. It has not had a sufficient airing. It has not been consulted on greatly, but I will hand over to my hon. Friend the Member for Stockton North.

I had hoped to address several of the amendments signed by my hon. Friends and me, because this is a bad Bill with huge opposition across our society. It fails to protect people adequately, meaning they could be locked up without a proper process of assessment and without advocacy support—and that includes 16 and 17-year-old children. The protections for them are also inadequate, as they are for their parents. Time is against me, however, so I will turn straight to amendment 48, which stands in my name and that of my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams).

There is a genuine concern among organisations in the sector that vulnerable people, particularly those receiving private care, may be charged for an assessment or for assessments to be carried out. I know the Minister got a bit fed up with me banging on about funding and about the fact that local authorities such as mine in Stockton-on-Tees have lost millions of pounds in funding and that budget reductions are continuing across health. I have also addressed the tight margins on which care homes operate and the need to ensure the sector remains viable.

We know that the sector is strained financially and might feel it has no choice but to implement fees and charges for the assessment of clients’ mental capacity. The intention of the amendment is to ensure that this does not happen. Several written submissions to the Public Bill Committee raised concerns about the absence of any provision for a fee for medical professionals to provide medical evidence.

This is the right point to refer to the revised impact assessment published by the Government. I and other Opposition Members have been contacted by academics accusing the assessment of perpetuating a myth by saying that GPs will provide diagnostic evidence and conduct capacity assessments for the LPS and that this will have no resource implications. What total nonsense. How has this conclusion been reached? I have not heard from a single body or GP arguing it will have no resource implications—quite the opposite.

The experience of judicial DoLS applications to the Court of Protection seems to be that GPs are very reluctant to provide such evidence, either because they do not feel skilled enough to do so or because they require payment. This means that someone will have to pay a fee for the medical assessment, and there is nothing in the Bill or the NHS charging regulations to prevent it from being passed on to the person themselves.

Evidence shows that that is already happening. Southfield House, a care home in Stockport, was found to be charging residents £250 if they required a deprivation of liberty authorisation. A complaint was lodged with the Care Quality Commission by Edge Training, but it was told in response that that was allowed. What was that £250 for? “An application to the local authority requesting an assessment” appears to cover it—and after that, there was the £125 annual fee. Individuals who are going through what can only be an extremely emotionally difficult process are being charged hundreds of pounds for the luxury.

It is frustrating that the care home is well within its rights to make those charges. A spokesman put it best:

“The social care sector…is currently under huge financial pressure. All tasks from care to admin to facility carry a cost”.

Because the sector is underfunded, the Government consider it appropriate to take financial advantage of the most vulnerable people in society.

I do not intend to press the amendment to a vote, but I think that the Minister must take on board the whole issue of charges. At present, the law gives care home managers and others carte blanche to charge exactly what they want. There are no limitations whatsoever. I ask the Minister, perhaps at the regulations stage, to come back with specific ideas to restrict care home managers and others from exploiting those vulnerable people.

I was expecting my hon. Friend the Member for Stockton North (Alex Cunningham) to go on a bit longer, but now that I have the Floor, let me say this.

There is quite a bit of consensus, certainly among Labour Members, that there are elements of the Bill with which we are not happy, and I am sure that we will vote on those in a few moments. What the Minister said earlier makes me hopeful that she will do her level best to ensure that the way in which the needs of people with acquired brain injuries can be met will be clearly laid out in the code of conduct. As my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams) said, some of the issues are very specific to them; they are different from those affecting other people in the same category.

The deprivation of liberty is one of the most important issues that Parliament ever has to consider. We all accept that, and it was referred to by both the Minister and my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley). I hope that we manage to get the code of conduct right, at the right time, and that the process we use ensures that as many as possible of the users, patients, carers and organisations that are involved in this matter on a daily basis have a real opportunity to feel that they can own that code. I think that that is the point at which the Minister might manage to assuage some of our concerns, although some Labour concerns are extremely strong.

As I told the Minister yesterday, I do not intend to press my amendment to a vote. She is smiling now. I therefore beg to ask leave to withdraw the amendment.

Question put and agreed to.

Amendment, by leave, withdrawn.

With the leave of the House, I propose to put Government amendments 5 to 37 together.

Schedule 1

SCHEDULE TO BE INSERTED AS SCHEDULE AA1 TO THE MENTAL CAPACITY ACT 2005

Amendments made: 5, page 8, line 6, leave out from “Wales,” to end of line 10 and insert

“the person registered, or required to be registered, under Chapter 2 of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2) in respect of the provision of a care home service, in the care home;”.

This amendment amends the definition of “care home manager”, in Wales, so it will be the person who is the registered service provider. This mirrors the approach taken for England.

Amendment 6, page 8, line 13, at end insert—

““Education, Health and Care plan” means a plan within the meaning of section 37(2) of the Children and Families Act 2014;”

This amendment is consequential on Amendment 22.

Amendment 7, page 8, leave out line 16

This amendment is consequential on Amendment 13.

Amendment 8, page 8, line 17, at end insert—

““independent hospital” has the meaning given by paragraph 5;”

This amendment is consequential on Amendment 13.

Amendment 9, page 8, line 27, at end insert—

““NHS hospital” has the meaning given by paragraph 5;”

This amendment is consequential on Amendment 13.

Amendment 10, page 8, line 46, leave out “Hospital” and insert “NHS hospital and independent hospital”.

This amendment is consequential on Amendment 13.

Amendment 11, page 8, leave out line 47.

This amendment is consequential on Amendment 13.

Amendment 12, page 9, line 15, after “6” insert “(1)”.

This amendment is consequential on Amendment 18.

Amendment 13, page 9, line 16, leave out “a” and insert “an NHS”.

This amendment amends paragraph 6(a) so that where arrangements are carried out mainly in an independent hospital the responsible body for those arrangements will not be the hospital manager.

Amendment 14, page 9, line 17, at end insert—

(aa) if the arrangements are carried out mainly in an independent hospital in England, the responsible local authority determined in accordance with paragraph 8A;

(ab) if the arrangements are carried out mainly in an independent hospital in Wales, the Local Health Board for the area in which the hospital is situated;”

This amendment makes provision for who the responsible body will be for cases where arrangements are carried out mainly in an independent hospital in England or Wales.

Amendment 15, page 9, line 18, leave out “paragraph (a) does not apply” and insert “none of paragraphs (a) to (ab) applies”.

This amendment is consequential on Amendment 14.

Amendment 16, page 9, line 27, leave out “neither paragraph (a) nor paragraph (b)” and insert “none of paragraphs (a) to (b)”.

This amendment is consequential on Amendment 14.

Amendment 17, page 9, line 28, leave out “(see paragraph 9)” and insert

“determined in accordance with paragraph 9”.

This amendment is consequential on Amendment 14.

Amendment 18, page 9, line 28, at end insert—

‘(2) If an independent hospital is situated in the areas of two or more Local Health Boards, it is to be regarded for the purposes of sub-paragraph (1)(ab) as situated in whichever of the areas the greater (or greatest) part of the hospital is situated.”

This amendment provides that, for the purpose of determining who is the responsible body, if a hospital is situated in the areas of two or more Local Health Boards, it should be regarded as situated in whichever of the areas the greater (or greatest) part of the hospital is situated.

Amendment 19, page 9, line 29, after “manager” insert

“, in relation to an NHS hospital,”.

This amendment is consequential on Amendment 13.

Amendment 20, page 9, line 45, at end insert—

(ca) if the hospital is vested in a Local Health Board, that Board.”

This amendment makes provision that the hospital manager for an NHS hospital vested in a Local Health Board will be that Board.

Amendment 21, page 9, line 46, leave out from beginning to end of line 12 on page 10

This amendment is consequential on Amendment 13.

Amendment 22, page 10, line 20, at end insert—

8A (1) In paragraph 6(1)(aa), “responsible local authority”, in relation to a cared-for person aged 18 or over, means—

(a) if there is an Education, Health and Care plan for the cared-for person, the local authority responsible for maintaining that plan;

(b) if paragraph (a) does not apply and the cared-for person has needs for care and support which are being met under Part 1 of the Care Act 2014, the local authority meeting those needs;

(c) in any other case, the local authority determined in accordance with sub-paragraph (4).

(2) If more than one local authority is meeting the needs of a cared-for person for care and support under Part 1 of the Care Act 2014 the responsible local authority is the local authority for the area in which the cared-for person is ordinarily resident for the purposes of that Part of that Act.

(3) In paragraph 6(1)(aa), “responsible local authority”, in relation to a cared-for person aged 16 or 17, means—

(a) if there is an Education, Health and Care plan for the cared-for person, the local authority responsible for maintaining that plan;

(b) if paragraph (a) does not apply and the cared-for person is being provided with accommodation under section 20 of the Children Act 1989, the local authority providing that accommodation;

(c) if neither paragraph (a) nor paragraph (b) applies and the cared-for person is subject to a care order under section 31 of the Children Act 1989 or an interim care order under section 38 of that Act, and a local authority in England is responsible under the order for the care of the cared-for person, that local authority;

(d) if none of paragraphs (a) to (c) applies, the local authority determined in accordance with sub-paragraph (4).

(4) In the cases mentioned in sub-paragraphs (1)(c) and (3)(d), the “responsible local authority” is the local authority for the area in which the independent hospital mentioned in paragraph 6(1)(aa) is situated.

(5) If an independent hospital is situated in the areas of two or more local authorities, it is to be regarded for the purposes of sub-paragraph (4) as situated in whichever of the areas the greater (or greatest) part of the hospital is situated.”

This amendment makes provision as to who the responsible body will be in cases where arrangements are carried out mainly in an independent hospital in England.

Amendment 23, page 11, leave out lines 45 to 47.

This amendment is consequential on Amendment 22.

Amendment 24, page 12, line 19, at end insert—

12A (1) The following must publish information about authorisation of arrangements under this Schedule—

(a) the hospital manager of each NHS hospital;

(b) each clinical commissioning group;

(c) each Local Health Board;

(d) each local authority.

(2) The information must include information on the following matters in particular—

(a) the effect of an authorisation;

(b) the process for authorising arrangements, including making or carrying out—

(i) assessments and determinations required under paragraphs 18 and 19;

(ii) consultation under paragraph 20;

(iii) a pre-authorisation review (see paragraphs 21 to 23);

(c) the circumstances in which an independent mental capacity advocate should be appointed under paragraph 39 or 40;

(d) the role of a person within paragraph 39(5) (an “appropriate person”) in relation to a cared-for person and the effect of there being an appropriate person;

(e) the circumstances in which a pre-authorisation review is to be carried out by an Approved Mental Capacity Professional under paragraph 21;

(f) the right to make an application to the court to exercise its jurisdiction under section 21ZA;

(g) reviews under paragraph 35, including—

(i) when a review will be carried out;

(ii) the rights to request a review;

(iii) the circumstances in which a referral may or will be made to an Approved Mental Capacity Professional.

(3) The information must be accessible to, and appropriate to the needs of, cared-for persons and appropriate persons.

12B (1) Where arrangements are proposed, the responsible body must as soon as practicable take such steps as are practicable to ensure that—

(a) the cared-for person, and

(b) any appropriate person in relation to the cared-for person,

understands the matters mentioned in sub-paragraph (3).

(2) If, subsequently, at any time while the arrangements are being proposed the responsible body becomes satisfied under paragraph 39(5) that a person is an appropriate person in relation to the cared-for person, the responsible body must, as soon as practicable, take such steps as are practicable to ensure that the appropriate person understands the matters mentioned in sub-paragraph (3).

(3) Those matters are—

(a) the nature of the arrangements, and

(b) the matters mentioned in paragraph 12A(2) as they apply in relation to the cared-for person’s case.

(4) If it is not appropriate to take steps to ensure that the cared-for person or any appropriate person understands a particular matter then, to that extent, the duties in sub-paragraphs (1) and (2) do not apply.

(5) In this paragraph “appropriate person”, in relation to a cared-for person, means a person within paragraph 39(5).”

This amendment inserts new paragraphs 12A and 12B of the new Schedule AA1 to require responsible bodies to publish information about authorisation of arrangements under the Schedule and to take steps at the outset of the authorisation process to ensure that cared-for persons and appropriate persons understand the process.

Amendment 25, page 12, line 32, after “practicable” insert

“and appropriate, having regard to the steps taken under paragraph 12B and the length of time since they were taken,”.

This amendment amends the duty in paragraph 13(2) of the new Schedule AA1 for a responsible body to take steps, as soon as arrangements are authorised, to ensure that cared-for persons and appropriate persons understand matters relating to the authorisation, to reflect the fact the body may have already have done that very recently under new paragraph 12B (inserted by Amendment 24).

Amendment 26, page 12, line 33, leave out from “any” to “understands” in line 34 and insert “appropriate person”.

This amendment amends the duty in paragraph 13(2) so that the duty to ensure that cared-for persons and appropriate persons understand matters relating to an authorisation does not also apply to independent mental capacity advocates (who can be expected to understand those matters) in line with the new duty in paragraph 12B (inserted by Amendment 24).

Amendment 27, page 12, line 34, leave out from “understands” to end of line 5 on page 13 and insert

“the matters mentioned in paragraph 12A(2)(a), (c), (d), (f) and (g) as they apply in relation to the cared-for person’s case”.

This amendment aligns the description of matters that must be explained to the cared-for person and any appropriate person with the list of matters in new paragraph 12A (inserted by Amendment 24).

Amendment 28, page 14, line 46, at end insert—

‘(1A) The person who makes the determination need not be the same as the person who carries out the assessment.”

This amendment makes it clear that a determination need not be made by the same person who carries out an assessment. A person could, for example, make a determination based on an assessment carried out previously by a different person (paragraph 18(6) of the new Schedule AA1 allows for this).

Amendment 29, page 14, leave out lines 47 and 48 and insert—

‘(2) The appropriate authority may by regulations make provision for requirements which must be met by a person—

(a) making a determination, or

(b) carrying out an assessment,

under this paragraph.

(2A) Regulations under sub-paragraph (2) may make different provision—

(a) for determinations and assessments, and

(b) for determinations and assessments required under sub-paragraph (1)(a) and determinations and assessments required under sub-paragraph (1)(b).”

This amendment provides power to make regulations setting out requirements which must be met for a person to make a determination or carry out an assessment. The requirements will relate to matters such as knowledge and experience. Different requirements may be set out for a person making a determination than a person carrying out an assessment.

Amendment 30, page 15, line 12, after “the” insert “determination or”.

This amendment is consequential on Amendment 29.

Amendment 31, page 15, line 14, after “the” insert “determination or”.

This amendment is consequential on Amendment 29.

Amendment 32, page 15, line 16, leave out “The” and insert “An”.

This amendment is to make it clear that the assessment being referred to is an assessment on which a determination under the paragraph is made.

Amendment 33, page 15, line 32, leave out “made on an assessment” and insert

“by a person, who meets requirements prescribed by regulations made by the appropriate authority, made on an assessment by that person”.

This amendment is to make it clear that a determination required under paragraph 19 of the new Schedule AA1 must be made by the same person who carries out the assessment on which that determination is based and that person must meet requirements set out in regulations.

Amendment 34, page 15, leave out lines 38 to 44.

This amendment is consequential on Amendment 33.

Amendment 35, page 15, line 46, leave out from “16,” to “by” in line 1 on page 16 and insert

“a determination may not be made”.

This amendment is consequential on Amendment 33.

Amendment 36, page 16, line 7, leave out “assessment” and insert “determination”.

This amendment is consequential on Amendment 33.

Amendment 37, page 16, line 9, leave out “assessment” and insert “determination”.—(Caroline Dinenage.)

This amendment is consequential on Amendment 33.

Amendment proposed: 49, page 16, line 12, leave out from “out” to the end of line 16, and insert “by the responsible body.”—(Barbara Keeley.)

This amendment would require the responsible body to carry out the consultation in all cases.

Question put, That the amendment be made.

Consideration completed. Colleagues, I will now suspend the House for no more than five minutes in order to make a decision about certification. The Division bells will be rung two minutes before the House resumes. Following my certification, the Government will table the appropriate consent motion, copies of which will be made available in the Vote Office and will be distributed by Doorkeepers.

I can now inform the House that I have completed certification of the Bill, as required by the Standing Order. I have confirmed the view expressed in my provisional certificate issued on 11 February. Copies of my final certificate will be made available in the Vote Office and on the parliamentary website.

Under Standing Order No. 83M, a consent motion is therefore required for the Bill to proceed. Copies of the motion are available in the Vote Office and on the parliamentary website and have been made available to Members in the Chamber. Does the Minister intend to move the consent motion?

indicated assent.

The House forthwith resolved itself into the Legislative Grand Committee (England and Wales) (Standing Order No. 83M).

[Dame Eleanor Laing in the Chair]

As the knife has fallen, there can be no debate in the Legislative Grand Committee. I remind hon. Members that, if there is a Division on the consent motion, only Members representing constituencies in England and Wales may vote.

Resolved,

That the Committee consents to the Mental Capacity (Amendment) Bill [Lords] as amended in the Public Bill Committee and on Report.—(Caroline Dinenage.)

The occupant of the Chair left the Chair to report the decision of the Committee (Standing Order No. 83M(6)).

The Speaker resumed the Chair; decision reported.

Third Reading

I beg to move, That the Bill be now read the Third time.

Our liberty is the most fundamental of our human rights. By passing this Bill, we can be proud that we have helped to promote the human rights of our country’s most vulnerable people and increased access to protections for the 125,000 individuals who are being deprived of their liberty and are not receiving the safeguards they deserve. That means 125,000 people whose families do not have the peace of mind that their loved ones are being protected, and 125,000 care providers who do not have the requisite legal protection.

Members of both Houses have contributed to the discussions and debates on this Bill, for which I am extremely grateful. We have made changes in both Houses to ensure that the liberty protection safeguards system introduced by the Bill does everything possible to protect human rights—to give a voice to the person and those close to them—while also ensuring that the system is targeted and not cumbersome to people, their families and our health and care sector. I committed from the outset that we would collaborate on this Bill, listen and take on board all the ideas and feelings of stakeholders and Members from both Houses, and many of the amendments we have put forward today are exactly in that collaborative spirit.

I thank my hon. Friend for the conciliatory way in which she has gone about dealing with this Bill, engaging with colleagues on both sides of the Houses, and putting forward some good and sound amendments to get the Bill to a better place. However, on the issue of funding, which was raised during the debate earlier, if we are going to make social care legislation or legislation of this sort appropriate and have the right safeguards in place, we need local authorities to have a better funding settlement. Is that something she can take away and raise with the Secretary of State for Housing, Communities and Local Government?

My hon. Friend raises a very important point. I am grateful to him for all his feedback on this Bill, because it is very helpful to be able to speak to somebody from a medical background to understand how such a Bill will work in practice at the sharp end. We have given councils access to £10 billion over this three-year period, which just shows the scale of the issues we are facing in adult social care. The Green Paper that will be published shortly will go further in setting out the long-term sustainability of the sector.

As we have heard today, there is no question but that the current DoLS system is failing. In 2014, a House of Lords Committee identified the system as being complex and bureaucratic, and since then the situation has only got worse. An increased number of cases means that local authorities are unable to process all the applications. With more than 48,000 people now waiting over a year, we cannot risk people being subject to overly restrictive health and care practices. This new system will enable quicker access to safeguards, meaning that we can ensure less restrictive practices are being used.

The Government tasked the Law Commission with reviewing the DoLS system and recommending improvements. After more than three years of careful work and consultation, it published its report, which stated the urgent need for reform. That was followed by a report from the Joint Committee on Human Rights, which also recommended having a more targeted system by focusing resources on those who are the most vulnerable or those who have the most complex circumstances, and on cases where objections have been raised. Coupled with this, we have ensured robust safeguards in the system, including independent review and oversight, alongside access to representation and support.

I am grateful to all our partners who have worked with us on this Bill. The input of third sector groups, those who work in the health and care sector and of course those who receive safeguards themselves has all helped to shape our Bill for the better. The Law Commission was absolutely right when it said that DoLS needed to be replaced as a matter of urgency, and that is why we have brought this legislation forward now. We cannot continue with the current system. We are proud to bring forward the Law Commission’s recommendations in this Bill, and we are proud to reform the system and introduce a less bureaucratic, more personalised approach that will work better for people, their families and professionals. I commend this Bill to the House.

It is appalling that we should have had less than two hours for Report stage of a Bill affecting the human rights of some 2 million vulnerable people who lack capacity—and we had less than two hours for Second Reading. Given that there is no appreciable business to occupy ourselves with next week, it is ludicrous that the Government should have forced the Bill through today.

The Bill that we are being asked to pass today is simply not fit for purpose; it simply replaces the current flawed system, which the Minister has just described, with a new one that is actually more flawed. There are a number of issues that we still consider unacceptable. The largest is that the Bill still creates a major conflict of interest in relation to the managers of private care homes. It is simply wrong that a business with a financial stake in seeing a deprivation of liberty authorisation granted can do all the legwork and then just have its recommendation rubber-stamped by the local council.

I hope that care home managers will seek to carry out their new role well, but we know that they are already overstretched. The Bill creates extra pressures.

Does the shadow Minister share my confusion and concern that the Mental Health Act review, which the Government commissioned, appears to be moving in one direction—strengthening the rights of individuals—while this Bill appears to be moving in precisely the opposite direction?

That is very much the case. We asked on Second Reading for some consideration of the interface between the two.

As well as the issue of care home managers, there is a real concern about the restrictions on access to advocacy under the Bill. Advocacy is a fundamental pillar of any system for authorising deprivation of liberty. The Bill means that vulnerable people who need an advocate may not get one, and amendments that could have changed that have been rejected. The use of a best interest test to decide whether someone gets an advocate has been widely criticised. The Government could and should have removed the reliance on the best interest test.

The maximum renewal period of a deprivation of liberty authorisation is tripled by the Bill. As the right hon. Member for North Norfolk (Norman Lamb) said, the Mental Health Act review is moving in one way while this Bill moves in another. The Bill could see people being detained for three years at a time without a full reconsideration of their case. The only safeguard against that being misused is a series of regular reviews, but we do not know how regular those will be or what they will look like.

In Committee, the Government introduced a new definition of deprivation of liberty to the Bill. It is woefully inadequate and will inevitably result in costly litigation. The Government introduced the definition late on, with next to no consultation. The clashes between that definition and existing case law will lead to court challenges. The definition will see some people deprived of their liberty without the safeguards they need, while the issue is sorted out in the courts.

The process that the Bill has been through could be used as a case study of how not to make legislation.

Will my hon. Friend give way?

I do not have time, I am afraid.

The Government have consistently tried to push the Bill through as fast as they can, with minimal consultation. It should be clear that stakeholders are united in thinking this a poor piece of legislation, and on many issues the Government have failed to address their concerns. On Second Reading in the House of Lords we heard the Bill described by Baroness Barker as

“one of the worst pieces of legislation ever brought before this House.”—[Official Report, House of Lords, 11 December 2018; Vol. 794, c. 1247.]

The Bill may have improved slightly, but there has been too little progress for us to support its becoming law. It would enshrine a fundamental conflict of interest and weaken the current safeguards of people without capacity.

It was clear from the start that the Bill was intended to shift the costs of authorising deprivation of liberty away from the state and on to private providers. This matter is too important for us to pass a Bill that we know will not work properly simply because Government budget cuts have created a problem. The Government chose to continue to cut local council budgets; as a result of that lack of resourcing, tens of thousands of people are being deprived of their liberty without authorisation. Letting the backlog build up was a political choice, but this Bill is not a solution. It will not adequately protect people’s human rights, and replacing one bad system with another will not be progress. If the Government were serious about protecting people’s liberty, Ministers would have paused the Bill, which we called on them again today to do, and given local authorities the resources they need to address the backlog. They could then have given this matter the time, consultation and consideration it needs before beginning a new Bill that does not weaken the protections that vulnerable people rely on.

I thank members of the Public Bill Committee, our excellent Whip, all the hon. Members who contributed to this shortened debate tonight and, particularly, the Clerk to the Committee. I urge right hon. and hon. Members to join us in voting against this flawed piece of proposed legislation that undermines the human rights of vulnerable people who lack capacity.

Question put, That the Bill be now read the Third time.