Contribution
My Lords, I will speak to Amendment 112 in the name of the noble Baroness, Lady Eaton, who cannot be with us today. I have put my name to this amendment, and Amendment 111.
Although this is a small group, it addresses a very important matter. I endorse what the noble Lord, Lord Deben, said. I extend my sympathy to the noble Baroness, Lady Hayter, because I know what it is like to have someone in a care home. In my case it was someone who had dementia for years and was in a very deteriorating situation. It is profoundly difficult. However, there are huge variations in the standards in these homes. Because of that, this is trying to introduce an additional safeguard for the situation where all is not as well as it might be.
For example, in the care homes during Covid, people were put under DNRs as a matter of process by the care homes. It should not have happened, but it did happen. That was the result. If you are in a care home and fall down the stairs, you may have a broken hip and all sorts of consequential problems. Ambulances, certainly in the part of the country where my mother was, do not attend care homes for at least four hours. They are not priorities. So there are difficulties with care homes.
Importantly, it is about care homes and nursing homes. The residents of care homes and nursing homes often have very few visitors. Some of them have family who come to them, but many of them do not. Another experience I have had is that they latch on to you and want you to visit them, too, because they are lonely. They have little or no contact outside the home and can become very isolated and alone, although they are living in a community within the care home in which they must live. The British Geriatrics Society gave evidence to the Select Committee emphasising that robust specialist assessment is essential where decisions carry finality—and there is no more final decision than this.
Amendment 111 would therefore require a heightened evidential standard, demonstrable through a specialist clinical assessment, for residents of registered care or nursing homes. One in three people with dementia in the UK is never diagnosed. Alzheimer’s Research UK told us that the dementia diagnosis rate in England was 66.3% in December 2025. Dementia incidence is over 20% higher among Black adults compared with the UK average.
The noble and learned Lord, Lord Falconer, has agreed that it is necessary to make provision for those who have been made subject to a DoL. He said last week that he was preparing the amendments, for those who are between 18 and 25 and those subject to DoLs, and that he is considering what additional assessment could apply. We have talked about that a little. Age UK confirms that 70% of care and nursing home residents suffer from cognitive impairment. They have a heightened risk of delirium and confusion arising from infection, dehydration and medication effects. Compassion in Care, based on more than 1,000 calls from care workers and family members, found that the predominant concern raised by both groups was the issue of capacity, with 97% of helpline callers raising the issue of fluctuating cognitive capacity of care home residents.
The issue of UTIs was raised in 97% of calls. The issue of lack of fluids was raised in 89% of calls. Lack of fluids is a very common problem, because people with cognitive impairment or a form of dementia may not receive sufficient hydration. When a drink is provided, they may forget it. My mother used to welcome the drink and get all excited that a cup of tea had been delivered to her, then just ignore it. She would not drink it unless we coaxed her repeatedly to do so. That is not an uncommon experience. Also, the elderly are very susceptible to UTIs, which require antibiotic treatment. Very often, the UTI is recognised first by the visitor, not by the care home staff, because the visitor can see the level of confusion which is consuming the person who is in distress.
A significant proportion of people who are living with dementia or cognitive impairments are not diagnosed until the later stages of the disease. Standard mental capacity assessments conducted by non-clinical professionals often fail to take these factors into account when seeking to establish capacity. The high proportion of undiagnosed dementia among care home residents presents a margin of error that, I would respectfully suggest to your Lordships, no legislature can reasonably and responsibly ignore.
To address the problems identified, Amendment 111 would require a higher evidential standard. Amendment 112 would provide for residents of registered care and nursing homes. The explanatory statement states:
“This amendment provides that, for residents of registered care or nursing homes, capacity may only be established following (1) a specialist clinical assessment ruling out reversible causes of fluctuating or impaired capacity, and (2) a capacity determination conducted by a consultant psychiatrist with relevant expertise. It further clarifies that an MCA assessment alone is insufficient given the heightened medical and institutional vulnerability to unstable capacity in care home settings”.