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Tuesday, 27 November 2018

Government defeated over liberty safeguards for vulnerable detained in care system

Written by Nick Lester

The Government has suffered a further defeat at the hands of peers demanding strengthened safeguards for vulnerable people detained in care homes or hospitals.

The House of Lords backed by 277 votes to 192, majority 85, a change to draft legislation to give the person being looked after and their representatives an explicit right to upfront information about the process, including the reasons why the individual may be detained and the appeal procedure.

The Government's Mental Capacity (Amendment) Bill aims to replace the current deprivation of liberty safeguards scheme with a new simpler system.

But independent crossbencher Baroness Watkins of Tavistock, a professor of nursing, said as it stood there was "a fundamental imbalance in the proposals", with the power often lying with health and social care bodies.

She said: "These amendments seek to redress that balance in part by ensuring critical information is provided to the individual concerned... and those advocating on their behalf."

Lady Watkins added: "These amendments are an important addition in ensuring that people are empowered throughout the process."

Consultant physician and independent crossbencher Baroness Finlay of Llandaff (pictured) said: "Information to the family and those who care deeply about the welfare of the person is the cared-for person's safeguard against exploitation or bad care, or simply having their needs ignored."

She argued it was imperative that the cared-for person was "placed at the heart" of the process.

Responding, Health Minister Lord O'Shaughnessy said: "I do agree it is vital that relevant people are given full information about the authorisation and the rights of the cared-for person, including rights to review and to challenge authorisation."

But he added: "This is already the case in law, which clearly provides that people must be given appropriate information."

There was already a duty on the state "to pro-actively provide specific information to the individual or to their representative", he told peers.

Lord O'Shaughnessy said: "This Bill does not take away or amend any rights."

On the provision of information, he added: "The Government's view is that this is already adequately accounted for in law, that we do not need to set it put onto the face of the Bill, indeed it may be counterproductive to do so."

Peers have previously inflicted a defeat on the Government in backing a change to the Bill that would ensure a priority in decisions taken for those without the mental capacity to consent would be "to prevent harm to the cared-for person".

Copyright (c) Press Association Ltd. 2018, All Rights Reserved. Picture (c) UK House Of Lords.