Lord Falconer of Thoroton (Lab)

I thank the noble Baronesses, Lady Smith of Newnham and Lady Hayter of Kentish Town, for sharing their significant and painful experiences. I thank the noble Baroness, Lady Fox, for doing the same in relation to the last months of her mother’s life. This group deals with the question of whether there should be special provision for people in care homes. Two routes are suggested: first, in the amendment from the noble Baroness, Lady Eaton, which was spoken to by the noble Baroness, Lady O’Loan, that there be a higher evidential standard; and, secondly, that a series of additional tests should be raised. I think that everybody in the Chamber is agreed that care homes vary across the country; there are those of the highest possible standards and those that do not have the same high standards. It is also the case—a point made forcibly and effectively by the noble Baroness, Lady Watkins—that one should not confuse the fact that there are people in long-term care and people in high-tech nursing homes who are being rather elided here. People become institutionalised and may suffer long-term cognitive problems from being in care homes for a long time. The question raised is whether additional steps beyond those provided for in the Bill should be put in place to check that such people, particularly those who have been in care homes for the long term, have capacity. The current arrangements require that the co-ordinating doctor is satisfied, after discussion with the patient and anybody else, that they have capacity, and similarly in relation to the independent doctor. Then, the panel has to be satisfied, and then the co-ordinating doctor has to witness the second declaration of the patient. The co-ordinating doctor can witness that second declaration only if he or she is satisfied that, among other things, the patient has capacity. Fifthly, the doctor providing the assistance also has to be satisfied that the patient has capacity. The question posed is whether, despite the fact that there are five separate occasions on which a doctor or a panel have to be satisfied of capacity, for somebody in a long-term care home, one should make additional provision for separate assessments or have a higher evidential standard.