Baroness Finlay of Llandaff (CB)

My Lords, Amendments 16 and 114 propose that anyone who is currently, or was in the year preceding their first declaration, deprived of liberty under the Mental Capacity Act will be considered to lack capacity for the decision to seek an assisted death. Amendments 16A and 114A extend this to those on whom an application has been made but not necessarily completed. Given the data, there is good reason why these amendments from the noble Baroness, Lady Keeley, should be considered. Section 4 of the Mental Capacity Act 2005 requires that decisions made on behalf of individuals who lack capacity are made in their best interests and with the least restriction of freedom. This amendment can only probe the eligibility assessment process because we are at a transition point from the overloaded deprivation of liberty safeguards system possibly to liberty protection safeguards. Implementation of the 2019 Mental Capacity (Amendment) Act, with the concomitant refresh of the MCA code to incorporate liberty protection safeguards guidance, is planned for early next year, but no firm date has been set. Deprivation of liberty safeguards authorise arrangements that restrict liberty in hospitals and care homes for those aged 18 or over when necessary for care and safety in their best interest and there is no other way to look after them. A standard authorisation under Section 4A can be given by a local authority, valid for up to one year, to a hospital or care home after a series of six assessments within a 21-day period. Section 4B allows for an urgent, seven-day deprivation of liberty, renewable once, to sustain life or for vital acts pending a Court of Protection decision or while the standard process is under way. Urgent DoLS applications arise from acute crises. In 2023-24, 58% of applications were urgent. Temporary incapacity in acute hospital settings is often due to acute delirium in cardiovascular events, infection or medication effects. Of course, when a person improved and regained capacity, the DoLS became inapplicable. However, the system is completely overloaded. There were over 334,000 applications in England alone in 2023-24, taking an average of 144 days for assessment. Only 44% were fully assessed and only 19% were completed within the required statutory 21 days. This goes to the heart of the problem. As local authority records are not integrated with health records, neither the panel nor the assessing doctors in the Bill will always have details of applications and outcomes. Different medical record systems exist in different trusts. Access to GP records is variable, absent or very limited, because some GP practices have not signed to give trusts access to their GP records. There is no access to social care clinical information systems, no information sharing between social care and medical records, and no access to the details of safeguarding information held by local authorities. Although police call-outs may trigger the GP being notified that a call-out has occurred, no details are given, meaning there is no access to police records of what went on. Even when psychiatry services ask, such information is not readily given from the police national computer network. We will discuss later whether a panel can access this information, as it may be a clear pointer to domestic abuse. Without a requirement to even interview the family, how will anyone know what has gone on? Hence the amendment. The very fact that an impairment of capacity serious enough to precipitate a DoLS application has occurred should act as a yellow flag when eligibility is being assessed. Although the numbers are relatively small, the 2023-24 data shows that 3% of fully assessed DoLS applications were rejected. However, it is noticeable that half were due to a change in circumstance and a fifth because the criteria were not fulfilled. I expect to be told that this amendment, intended to protect vulnerable adults, has adverse implications for individuals with temporary hospital-related incapacity, potentially restricting autonomy because they had had a previous episode of seriously impaired capacity. However, individuals with irreversible conditions, such as advanced dementia or lifelong severe cognitive impairment, may remain ineligible long term, which aligns with this safeguard’s intent. I am grateful to my noble and learned friend Lady Butler-Sloss and my noble friend Lady O’Loan, who have supported this amendment, and to the noble Baroness, Lady Keeley, whose amendment to my amendment intends to increase safety by capturing the larger number comprising 56% of applications that had not been completed. I anticipate that the Minister will say that this amendment poses legal difficulties for those who lack capacity when it was temporary but serious enough to prompt DoLS, as it creates a statutory presumption rather than case-by-case assessment for anyone with a DoLS or LPS history. I hope therefore that this short debate will mean that a previous impairment of capacity will act as a yellow flag: an indicator that risk may be elevated when an application is assessed. It is known that an episode of impaired capacity serious enough to trigger restricted liberty can signal further episodes of delirium in over a fifth of people, or be the first pointer to dementia. I hope this will encourage recognition by the noble and learned Lord, Lord Falconer, of the need to re-examine the balance of safety in cases where unrecognised indications of impaired decision-making could all too easily lead to an excess of poor assessments and inappropriate assisted deaths. I beg to move. Amendment 16A (to Amendment 16)