Clause
47
Mental
Capacity Act 2005: deprivation of
liberty
Ms
Winterton:
I beg to move amendment No. 47, in
clause 47, page 44, line 19, after
‘paragraph’, insert
‘42(2)(b),’.
The
Chairman:
With this it will be convenient to discuss
Government amendments Nos. 48 and 53.
Ms
Winterton:
The amendments have been tabled in response to
concerns that were expressed in the other place. They will amend clause
47 and schedules 6 and 8 to the Bill.
Clause 47 will amend the Mental
Capacity Act 2005 to introduce safeguards to protect
the rights of a person who is deprived of their liberty. The new
deprivation of liberty safeguards are necessary for people who lack the
capacity to consent to arrangements made for their care. The measure is
being introduced in response to the European Court of Human Rights 2004
judgment in the case of HL v. UK, which is commonly referred to
as the Bournewood judgment. The Court identified the need for
protection from arbitrary deprivation of liberty for people who have a
mental disorder and who lack capacity to consent to arrangements made
for their care, but who are not detained under the 1983 Act.
We considered the judgment and
decided that the Bill needs to include formalised procedures covering
who may propose admission, for what reasons and according to what
criteria, and how those should be assessed. Limits must be placed on
how long the deprivation of liberty may continue before a review, which
will include a clinical reassessment that says that a person still has
a mental disorder. There must be a right to have the lawfulness of the
deprivation of liberty decided speedily by a court and for a
representative who can offer a challenge on a person’s behalf to
be appointed.
The
proposed safeguards will address those matters. They will permit the
deprivation of liberty only in circumstances in which that is necessary
in a person’s own best interests and to protect them from harm,
and when that cannot be achieved in a less restrictive
manner.
The proposals
will give vulnerable people the protections that they currently lack.
The safeguards will give additional protection to those in a hospital
or care home in circumstances that deprive them of liberty. The law
will clarify for hospitals, care homes, service users and their
families the circumstances in which a person may be lawfully deprived
of their liberty. That will enable hospitals and care homes to ensure
that they are acting lawfully.
The cornerstone of the new
arrangements is that the deprivation of liberty will be lawful only if
it is specifically permitted by a formal authorisation concerning a
particular individual in a particular care home or hospital, or by
order of the Court of Protection. An authorisation may be given only if
six criteria—called “qualifying requirements” in
the Bill—are met, and it will last for up to 12 months. Except
for a short period in urgent cases, all authorisations must be given by
the relevant authority on the basis of the decisions of a properly
qualified assessor. The schedule calls such authorisations
“standard authorisations”. The job of granting standard
authorisations falls to “supervisory bodies”. For care
homes, the supervisory body granting the authorisation would be the
relevant local authority, for hospitals, it would be the PCT, and in
Wales, the National
Assembly.
The
amendments to the Mental Capacity Act have been welcomed by all those
who were involved with that legislation, not least the hon. Member for
Tiverton and Honiton, who has taken great interest in this matter. Our
amendments introduce a power to make regulations to reduce the maximum
length of standard deprivation of liberty authorisations, as agreed in
the other place, in response to concerns that authorisations could be
granted for too long a period.
Before I come to the detail, I
would like to explain our policy on the duration of authorisations. Our
aim, which I am sure the whole Committee shares, is that if deprivation
of liberty needs to be authorised, it should be for the shortest time
possible. We will make that very clear in the Mental Capacity Act code
of practice and in training facilities. In the other place, Baroness
Ashton committed to strengthening that point in the code, and officials
are working on a revised version, which will be subject to
consultation. That is why we are setting the authorisation period on a
case-by-case basis according to the best interests assessor’s
recommendation.
The assessor
will look at the person’s circumstances and the likelihood of
change and make a recommendation based on their best interests. There
are cases in which it will be perfectly reasonable to grant an
authorisation for 12 months, and others in which the period will be
much shorter because it may become possible, through rehabilitation and
support, for the person to be cared for at home.
If a change in circumstances
means that the deprivation of liberty should end, the hospital or care
home is required to request a review. The relevant person or the
representative who is appointed to support them can also trigger a
review or apply to the Court of Protection at any time. Those
safeguards mean that if a deprivation of liberty is no longer needed,
it can and will be ended. We will provide information and support to
families and carers to ensure that they can effectively help their
loved ones to make use of the safeguards.
I am confident that the
measures will deliver our aim of ensuring that the deprivation of
liberty does not continue for longer than is necessary for the
person’s protection. Concern was expressed in the other place
that authorisations would have a default duration of 12
months, but I am confident that that will not happen. I reiterate that
we will make it very clear in the code of practice that authorisations
for 12 months should be recommended only if the assessor is confident
that the person’s circumstances are unlikely to change in that
time. However, to allay those concerns, we committed in the other place
to take certain powers. Amendment No. 48 will give us the power in
England, and Welsh Ministers in Wales, to reduce the maximum
authorisation period if monitoring of the operation of safeguards
provides convincing evidence that it is necessary to do so.
Amendments Nos. 47 and 53
provide that the regulations, if made, would be debated in both Houses
of Parliament and in the National Assembly for Wales. I hope that the
power will not be needed, but it is prudent to include it in the
legislation. I therefore invite the Committee to support the
amendments.
12.30
pm
Angela
Browning:
Seeking to comply with the judgment of the
European Court of Human Rights is probably one of the most important
ways for the Government to use the Mental Capacity Act. There was
considerable debate in the scrutiny Committee on both that legislation
and on the draft Bill, and although I welcome the Government’s
decision finally to use the Act, I still have some concerns that I
would
like to flag up to the Minister today. It is important that we get this
part of the Bill absolutely right, because it deals with depriving a
very complex and vulnerable group of people of their liberty outwith
the Mental Health Act 1983. The Bournewood case was, as we know, about
lack of protection under that
Act.
The Minister gave
some welcome clarification about the duration requirement for
authorising deprivation of liberty. She wrote to us all on 17 April
outlining some of the amendments that would be moved in Committee in
this area, most of which she addressed just now. However, I remain
concerned about the rather vague language used on time
scales—language that will be enshrined in the code of practice.
It is of course right that the duration should be the absolute minimum
that is necessary, and should be assessed on a case-by-case basis.
Actual practice, however, could well be based on available resources
rather than on the best interests of the patient.
How, therefore, does the
Minister calculate the additional resources that will be required for
the procedures associated with this part of the legislative reform,
which implements Bournewood judgment compliance? There are significant
resource implications that I believe have not been addressed and that,
of themselves, might skew the determinations. In due course I shall
mention some of the lawyers’ concerns on that, with particular
regard to the concerns on marrying up the Mental Capacity Act and the
Mental Health Act that have been expressed by the lawyer who handled
the Bournewood case.
I realise that the Minister and
her officials have had a difficult task since the appearance of the
judgment, so I am not complaining. They had to decide which Act was the
appropriate one to consider, and I think that they have chosen the
right one. Now, however, we are reaching the detail of implementation,
and it is important not to be satisfied just with putting something on
the statue book in the belief that that is an end of the matter. Will
the Minister therefore consider the safeguards that might be needed on
time factors, notwithstanding her proposed amendments and the contents
of the code of
practice?
Sometimes
there are advantages to lightly worded recommendations, because they
give flexibility in areas where it is needed, but we need to be
cognisant of certain matters that have arisen—including some
that have arisen even since the Bournewood judgment. Not least among
them is the issue of defining liberty and deprivation of liberty, which
remains a matter of some obscurity, as we know from a recent court case
involving Surrey county council. That is because such cases now involve
people deprived of their liberty not only in hospitals, but in wider
care in the community and in residential and nursing homes. Has a
person been deprived of liberty when they are not free to go out of the
door, or when they are not free to go out of the door unless
accompanied by a suitable relative or friend? The case involving Surrey
county council concerned an elderly person with dementia in a
residential setting. If such people are trying constantly to get out of
the front door, is their being contained within the building to be
interpreted as an indication that they are being deprived of their
liberty?
Those who
looked at the Bournewood case when it reached the House of Lords were
clear that, had HL
tried to leave the Bournewood hospital, it would have clearly been wrong
to have let him go because, in his own interests, it was better that he
be contained within the building while he was undergoing treatment.
That was the determination of the Lords. However, the European Court
found in favour of HL after hearing his lawyers’
arguments. Will the
Minister consider the definition of deprivation of liberty, because
several references have been during our proceedings to the
opportunities for lawyers when there is lack of clarity and a grey area
that allows different interpretations? Because the right hon. Lady has
not actually defined deprivation of liberty in the Bill or, for that
matter, in the code of practice, it may well lead to further legal
challenges that the legal profession might welcome. That should be
something that the Minister should reconsider during the final
considerations on formulating the code of practice or the
Bill.
I certainly
welcome the Minister’s keeping her word and the
Government’s pledges in Committee in another place. The six
qualifying requirements to deprive someone of their liberty are
sensible and well drafted. There is an age requirement, the mental
health requirement, the mental capacity requirement, the best interests
requirement, the eligibility requirement and the no refusals
requirement. We are still at a stage when for some people the Mental
Health Act will be applied, and for others the Mental Capacity Act will
be applied. I want clarification from the right hon. Lady. If, under
the initial assessment, it is appropriate to apply the amendments to
the Mental Capacity Act, how will changes in circumstance be regulated
so that patients who might move between the scopes of the two different
Acts can be assured of the protections that they need? I am still not
100 per cent. sure that such provisions have been correctly drafted
because there is a rather vague definition of deprivation of liberty
and, under the Mental Capacity Act, we now seem to have embraced a
wider group of
people.
I refer the
Minister to a bundle of documents that were provided to the Committee.
The Government supplied an excellent guide, “The Bournewood
Safeguards”. I am looking at the easy-read
version.
Ms
Winterton:
It is quite the
best.
Angela
Browning:
It is very good. I commend the Government on how
they issue such guides. The document explains who will usually use the
Bournewood safeguards—in other words, who will come within the
scope of clause 47, to which the Minister has tabled the amendments.
They include
“people who
have serious learning disabilities”,
which goes without saying, but then we
come to a group that covers the Surrey county council case,
which is
“older people
with mental illnesses like
dementia”.
That group is
not small and I suggest to the Minister that it is growing. We know
from demographics that we have an increasingly elderly population,
although such conditions do not exclusively affect the elderly. People
in that group might be detained against their liberty. It
is a pretty wide and large group, and it is going to expand. I return to
the question of resources. How will the Minister ensure that adequate
resources are available to implement the safeguards that she is
building into the clause? My suspicion is that the Government have
underestimated how many people will be dealt with under the clause. If
resources are not available, the safeguards will not prevent people
from falling through the
net.
I
mentioned earlier the concern about the definition of deprivation of
liberty and the question of the same individual moving between the
regimes of the Mental Health Act and the Mental Capacity Act, but I
should also like to draw attention to the difficulties identified by
the legal profession, which has taken a close interest in the Bill. We
benefited from MH55, a paper submitted by Robert Robinson, a solicitor
with Scott-Moncrieff, Harbour and Sinclair in London, who pursued the
Bournewood case. He quotes the conclusion of the Joint Committee on
Human Rights, which commented unfavourably on the guidance. It
stated:
“We
consider that deprivation of liberty is a less flexible and elusive
concept than might be thought from the draft illustrative guidance.
Since we posed this question to the
Government”—
clearly,
the Minister or her officials have had some discussion with lawyers on
the
subject—
“Munby J.
has delivered judgment in J.E. and D.E. v
. Surrey County
Council and E.W., holding that the crucial issue in determining whether
there is a deprivation of liberty is not so much whether the
person’s freedom within the institutional setting is curtailed,
but rather whether or not the person is free to
leave.”
Such
areas are complex and grey, but while they remain so, and as further
case law emerges that only compounds the problem of definition, it
seems that while seeking to fill the Bournewood gap, we are considering
a much wider group of people than was alluded to in the original
Bournewood case, shocking as it was. I met H.L., an adult in his 40s,
after he left the Bournewood hospital. It must be said that for many
years, he was an in-patient in that hospital, so his condition had
quite a long track record, but none the less there were complications.
I shall not digress too much into the Bournewood case, but it triggered
the need to change the law, as it eventually went before the European
Court of Human Rights and was found to involve a contravention of
article 5 of the
convention.
12.45
pm
Given that the
lawyers still feel that as more case law is made, an even wider group
of people will be encompassed by the measures, clarity in the
definition of deprivation of liberty is essential. The Minister must
also examine the resource implications. I have alluded to just one
group of people, purely because a court case involved somebody from it.
The Government seem to think, judging by the documentation that they
have put out, including the easy-read version of the Bournewood
judgment, that we are talking about a small, discrete group, whereas
the lawyers seem to be saying that many more people will be subject to
this legislation than the Government are
indicating.
Not only
does that have implications for the deprivation of liberty—a
wider group of people will be involved—but there are important
resource implications. The Minister may not able to give specific
answers today on the issues that I have raised, but before the page is
closed on the Bill and it becomes an Act of Parliament, she should, yet
again, be prepared to discuss this, face to face, with the lawyers.
They have had a great involvement with the case and clearly know it
well, so if they have ongoing concerns, it is important that the
Minister is made aware of them. I am not a lawyer, so I am
giving the layman’s version of what the lawyers have sent me and
the rest of the Committee. I hope that the Minister understands that
this is an important part of getting things right. There is no party
political divide, because we all want her to get this right, but I hope
that before coming back to the House on Report, she will consider that
this part of the Bill should be examined carefully and she will give an
audience to those lawyers who continue to have
concerns.
Ms
Winterton:
It may be helpful if I give an example of how
the process might work. Let us consider a patient who is in his 70s and
is physically fit and strong, but who has advanced dementia. He has
been cared for at home by his wife, who has been struggling to cope
with his behaviour. He is admitted to a care home in an emergency after
his wife falls and breaks a hip. Understandably, the upheaval of the
move has meant that he is extremely disturbed. Restrictions are needed
to keep him calm and safe, and the family are asked not to take him out
of the care home because he becomes so disorientated and distressed.
The care home considers this to amount to a deprivation of liberty and
applies for an authorisation.
In those circumstances, the
local authority would arrange for an assessment to be carried out. Let
us suppose that the psychiatrist who has been seeing the gentleman as
an out-patient confirms the diagnosis of mental disorder and assesses
the likely impact of the care proposed and the capacity of
Peter—that is what I shall call him—to consent. A social
worker with extensive experience in the care of the elderly, who has no
connection with the gentleman’s case, is appointed to make an
independent assessment of what is in Peter’s best interests. The
outcome of the assessment is that deprivation of liberty is authorised
for three months and Peter’s son is appointed to act as his
representative.
Let
us then suppose that after nine weeks, Peter’s wife comes back
home, much recovered, and wants her husband to return to live with her.
The son requests a review of the authorisation, and the best interests
assessor, after speaking to Peter, his wife, their son and the care
home, recommends that he should return home. The authorisation would be
terminated, and the gentleman would return home, with the support of
carers provided morning and evening.
I understand the desire of the
hon. Member for Tiverton and Honiton to define the deprivation of
liberty, but it is almost impossible to give a definition that could be
used in every case. In the code of practice we have tried to identify
factors that the courts have used to determine whether a person is
deprived of liberty. Some of the factors that we have given
are:
“Restraint
was used, including sedation, to admit a person who was
resisting;
Professionals
exercised complete and effective control over care and movement for a
significant period;
Professionals exercised control
over assessments, treatment, contacts and
residence”,
if a decision
has been taken that the person would
be
“prevented from
leaving if they made a meaningful attempt to do
so;
A request by
carers for the person to be discharged to their care was
refused”—
that was
particularly relevant to the case with which the hon. Lady is
familiar—
“The
person was unable to maintain social contacts because of restrictions
placed on access to other
people;
The person
lost autonomy because they were under continuous supervision and
control.”
It is right
that there is an ability to examine each individual to see whether it
is considered that what is happening is a deprivation of liberty. It is
difficult for us to consider every case in which someone is deprived,
because it often depends on the individual and what they consider to be
a deprivation of their liberty as well as the views of those around
them.
Mrs.
Madeleine Moon (Bridgend) (Lab): There is a situation that
might well arise in the circumstances that my right hon. Friend the
Minister described. Would it be a deprivation of liberty if it were
agreed that the gentleman could go home, and his family wanted him home
but could not have him without the provision of the care package of two
calls a day that she described, and the local authority was unable to
implement it? In the scenario that was described, that is the
hitch—a local authority’s ability to put in the care
package. I would welcome clarification of
that.
Ms
Winterton:
But I believe that that is why the best
interests assessor would come into it. The assessor would have to
balance what was happening in the care home with what it would be
possible to achieve in the home. One may well be dependent upon the
other, so that the authorisation would be terminated if it were felt
that the appropriate packages were in place. My officials are nodding
encouragingly, so I assume that that is
right.
Angela
Browning:
I hope that the Minister’s officials will
continue to nod encouragingly. I am genuinely trying to be helpful, but
I have reservations because the lawyers have raised them with us. I
wish to return to the case of an elderly person with dementia, perhaps
wandering around in a residential setting and trying to leave. In the
case that I mentioned, JE and DE v. Surrey County Council and
EW, with which I am sure the Minister’s officials will be
familiar, Munby J. referred in his judgment
to
“the necessary
objective element in a deprivation of
liberty”.
That was a
judge determining his own interpretation of a deprivation of liberty,
and he said in his summing
up:
“In the
type of case with which I am here concerned, the key factor is whether
the person is, or is not, free to
leave”.
If that is how
the courts are determining it, I wonder why the Minister cannot be a
little more clear about her
definition.
Ms
Winterton:
Because, as the hon. Lady has pointed out, the
courts in that case looked at the individual’s circumstances. We
have tried in the code of
practice to say, “These are the types of things that the courts
have looked at.” If we said in legislation, “These are
the only things that can amount to a deprivation of liberty,” we
could be open to some of the challenges that brought about the
provision in the first place. We do not want to try to stipulate that
and so exclude people who might feel, or whose carers or family might
feel, that there had been a deprivation of liberty because we had
specifically set that out in legislation. It would be almost impossible
for us not to lay ourselves open to even more legal challenges. Having
said that, I would be more than happy for the audience with the
lawyers, suggested by the hon. Lady, to take place—not least
because it sounds very grand. However, I may defer to my officials on
that issue so that they can discuss with the relevant lawyers in the
Department whether such an audience would be
appropriate.
I turn
briefly to the relevant figures. We have estimated that about 21,000
assessments will need to be made in the first year; after that, we
estimate that there will be about 5,000 per year. We are discussing
that with the relevant local authorities and will keep the issue under
review.
Given those reassurances, I hope
that the Committee will accept the Government’s amendments,
which, as I say, are meant to be safeguards on an important
issue.
Angela
Browning:
I appreciate the Minister’s offer to
consider the audience and shall do my best to pass that on. However,
will she comment on my point about the need for clarity between
patients who might move from one Act to the
next?
Ms
Winterton:
As I said, we try to ensure that patients have
as much information as possible about their rights and the safeguards
that are in one or other of the Acts. Obviously, different criteria
apply to each, and we shall try to make that as clear as
possible.
Amendment
agreed
to.
Clause 47,
as amended, ordered to stand part of the
Bill.
Further
consideration adjourned.—[
Claire
Ward
.]
Adjourned
accordingly at three minutes to One o'clock till this day at half-past
Four
o'clock.
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