House of Commons portcullis
House of Commons
Session 2007 - 08
Publications on the internet
Public Bill Committee Debates

Draft Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008

The Committee consisted of the following Members:

Chairman: Mr. Joe Benton
Binley, Mr. Brian (Northampton, South) (Con)
Cooper, Rosie (West Lancashire) (Lab)
Cryer, Mrs. Ann (Keighley) (Lab)
Gidley, Sandra (Romsey) (LD)
Grogan, Mr. John (Selby) (Lab)
Hepburn, Mr. Stephen (Jarrow) (Lab)
Lewis, Mr. Ivan (Parliamentary Under-Secretary of State for Health)
McCabe, Steve (Lord Commissioner of Her Majesty's Treasury)
Milton, Anne (Guildford) (Con)
Morgan, Julie (Cardiff, North) (Lab)
Mudie, Mr. George (Leeds, East) (Lab)
Pugh, Dr. John (Southport) (LD)
Soulsby, Sir Peter (Leicester, South) (Lab)
Stanley, Sir John (Tonbridge and Malling) (Con)
Stuart, Mr. Graham (Beverley and Holderness) (Con)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Sarah Hartwell-Naguib, Committee Clerk
† attended the Committee

Sixth Delegated Legislation Committee

Tuesday 24 June 2008

[Mr. Joe Benton in the Chair]

Draft Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008

4.36 pm
The Parliamentary Under-Secretary of State for Health (Mr. Ivan Lewis): I beg to move that,
The Committee has considered the draft Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008.
The regulations are made under new schedule A1 of the Mental Capacity Act 2005, which was inserted into that Act by the Mental Health Act 2007. They form part of a wider package of measures to implement the deprivation of liberty safeguards, which provide for the lawful deprivation of liberty of those people who lack capacity to consent to arrangements made for their care or treatment in either hospitals or care homes, but who need to be deprived of liberty in their own best interests.
It is important to make it clear that the deprivation of liberty safeguards are about protective care, not about giving health and social care professionals arbitrary powers of detention. In fact, quite the opposite: they put in place legal safeguards to ensure that people are not deprived of their liberty in hospital or care home settings unless it is absolutely necessary to do so in their own best interests. I cannot stress enough that the regulations are to be used as a last resort, where it is only possible to provide care or treatment for people who lack capacity in circumstances that amount to deprivation of liberty. They are not to be used as a form of punishment or for the convenience of professionals, carers, or anyone else.
The safeguards are a response to the decision of the European Court of Human Rights in the well-known case of HL v. UK, more commonly referred to as the Bournewood judgment. As many Committee members know, that case involved an autistic man who was admitted to Bournewood hospital on an informal basis and remained for several weeks. He was prevented from leaving the hospital and denied access to his carers, despite the fact that he was not detained under the Mental Health Act 1983 or any other legislation. The European Court found that he had been unlawfully deprived of his liberty in violation of article 5 of the European convention on human rights.
I have met the carer of the young man in those circumstances. It is quite horrendous for a person to be admitted to hospital, for a long period, with the family being denied any access to them without any legal or moral justification. When meeting a family member or carer who has been in that a position, it is possible to understand why it is so important to get the balance right in such circumstances.
Specifically, the safeguards put in place mechanisms to prevent an unlawful deprivation of liberty from occurring. They include a requirement for hospitals and care homes to seek authorisation from their primary care trust or local authority if they believe that they can only care for a person in circumstances that amount to a deprivation of liberty. That will prevent health or social care practitioners from making arbitrary decisions about depriving someone of their liberty, as was the case in HL v. UK. The safeguards also include a provision for people who are deprived of liberty to challenge their deprivation in a court of law, as well as requiring a robust assessment process to be undertaken to determine whether it is appropriate to deprive a person of their liberty under a standard authorisation.
Before outlining the provisions, I shall explain some of the processes in the 1983 Act and some of the key terms that I have used, as I think that that will help the debate as it progresses. I say gently that it is sad that the Liberal Democrats have sent no representatives to participate in a Committee of such importance and where such fundamental issues are at stake.
It is important that we understand the specific terms. The 1983 Act refers to care homes and hospitals, the two settings in which the safeguards apply, as managing authorities. Primary care trusts and local authorities are termed supervisory bodies. To deprive someone of liberty, managing authorities must apply to supervisory bodies for a deprivation of liberty authorisation. There are two types of authorisation: urgent and standard. A standard authorisation can be issued only if a series of six robust assessments indicates the need to do so.
We envisage the standard authorisation to be the most common type, applied for before a person is deprived of liberty and after careful care planning methods have indicated that less restrictive measures are no longer possible. The alternative, an urgent authorisation, will be issued only in rare circumstances where it has become apparent that it is necessary to deprive someone of their liberty immediately in their own best interests.
The six assessments are the age assessment, the no refusals assessment, the mental capacity assessment, the mental health assessment, the eligibility assessment and the best interests assessment. The regulations underpin the assessment process and provide the eligibility requirements and selection criteria for deprivation of liberty assessors. That is important, as it will ensure that assessors have the skills and experience needed to undertake each of the six assessments.
The regulations also set out the time scales within which assessments must be completed and specify the information to be submitted with a request for an authorisation of deprivation of liberty. Finally, they establish arrangements for when there are disputes about the place of ordinary residence of a person who is to be deprived of liberty, providing that the local authority that receives the request for a deprivation of liberty authorisation must act as the supervisory body until any dispute is resolved. That is essential, as it will ensure that such disputes do not cause delays in providing authorisation for deprivation of liberty.
It is our intention that the safeguards will go live next April, but it is important that the regulations are in place now in order to enable us to work with training providers to implement training for assessors and allow those who will implement the safeguards to become familiar with the legal framework in which they will be operating. It is essential that we have a trained work force in place in sufficient numbers to deliver the safeguards in a safe and managed way.
The deprivation of liberty safeguards are an important measure to guard against further human rights violations. They add to the raft of measures that we have put in place recently to raise standards and improve quality of care. They ensure fundamentally that some of the most vulnerable people in our society will receive better care and protection. We have consulted widely with stakeholders and have received widespread support for the measures. I commend the regulations to the Committee.
4.43 pm
Anne Milton (Guildford) (Con): As the Minister pointed out, the regulations deal with the deprivation of liberty for treatment or care or to protect people from harm. They arose from the Bournewood case of 2005, which highlighted the need for additional safeguards. I join the Minister in being disappointed that the Liberal Democrat spokesman could not be here. Deprivation of liberty is a matter that we should all take seriously.
According to current figures, about 500,000 people have a mental disorder and lack capacity. That 500,000 includes about 190,000 with severe learning difficulties and about 230,000 older people with dementia. As we are all aware—I know that the Minister is—the figure for people with dementia is growing and ever-worrying.
A Department of Health study in 2000 concluded that one in 10 of that number, approximately 50,000, would receive additional restrictions for their protection, including those that deprived them of their liberty. Possibly, the Government believe that the numbers will be lower; they are all estimates. One particular estimate for a local authority suggests that 17,000 people in residential care may be subject to an assessment in 2009-10 and a further 25,000 may be in hospital. The total number for England and Wales might be as high as 21,000. However, the estimates rightly conclude that there will be additional costs at start-up—£13.6 million in the first year—and that those costs will reach a plateau of £4.3 million by around 2015. The implementation costs are estimated at about £2.6 million. Costs will be split between the NHS and local authorities, and will be about 20 and 80 per cent. respectively.
There is considerable speculation in those estimates and considerable assumptions are made. With the growing number of people suffering from dementia, it is difficult to count the cost this far ahead, in particular the cost to local authorities. As the Mental Health Act was progressing through Parliament, Age Concern commented:
“at present, many older people without capacity are effectively detained (for example in care homes or hospitals) without consenting. Some, by their behaviour, could not be described as compliant, and as yet have no safeguards. Assessment and care review are key to ensuring that their human rights are not infringed, and it is vital that all those who are effectively deprived of their liberty have adequate safeguards and processes to enable them (or a representative) to challenge detention.”
I share that view, and the views of the many organisations that have been consulted. For the reasons outlined by Age Concern, I welcome the regulations.
There are five key principles of the Act. The first is a presumption of capacity. The second is the right of individuals to be supported to make their own decisions. That is quite a tricky area. The line is very fine between allowing people autonomy—respecting their right to make choices about themselves—and protecting them.
The third principle is that individuals must retain the right to make what might be seen as eccentric or unwise decisions. That brought a certain smile to my face, because many people in this place might be accused at times of making eccentric or unwise decisions. It is important that people should be allowed to do so. At times, we all make what others might consider eccentric decisions, just because they do not agree with those decisions or because they themselves would not make them. Everybody has a right to be eccentric and, as someone over 50, I will guard that right fiercely.
The fourth principle is that action taken must be in the best interests of the person, and the fifth is that an intervention for the deprivation of liberty should be the least restrictive possible. We need to ensure that the minimum intervention is incurred.
There are several areas of concern I would like to flag up to the Minister. One is that the objective of the regulations is to ensure that people are deprived of their liberty only when there is no other or lesser way of ensuring that they get the treatment and care that they need. My only concern is to ensure that that is uppermost in the minds of those involved and that at no time must the deprivation of liberty to ensure that people have care or treatment be for the convenience of the care providers rather than for the person involved. All too often, we see the convenience of staff, and sometimes the convenience of family, taking precedence over what is right for the person who needs care.
There is also concern about the additional workload for local authorities. If a care home seeks authorisation, the local authority will be involved and, quite rightly, considerable and extensive assessment will be needed. We hope there would be extensive and considerable assessment, but that will come at a cost. There is a lot of concern among local authorities about whether those costs will be adequately funded. They are concerned about how such costs are sometimes reimbursed to local authorities and about the formulae used.
My local authority, for instance, has been a net loser to the tune of £300,000 on concessionary bus fares. It is a feature of the formula that we have done very badly, because people use a lot of buses. Such considerations are particularly important in this case, because we are keen for local authorities never to cut short or hasten their assessments because their work loads are too great, as they do not have enough staff because they do not feel that the funds are available.
There will also be additional training needed so that staff can make assessments. Again, I would not like to feel that local authorities will skimp on those in any way. As I have said, we are talking about depriving people of their liberty. The time frame for assessments is very tight, so the pressure will very much be on local authorities.
I wish to raise two more issues with the Minister, one of which is advocacy. There is a lot of concern that people have adequate advocacy and that it is in place prior to the regulations coming into effect. The other issue, which I raised in the debates on the Health and Social Care Bill, is people who are detained who have infectious or contagious diseases. Although I am not one to collect numbers unnecessarily, there must be accurate reporting, auditing and collection of numbers. When we are considering depriving people of their liberties, it is importantly to examine retrospectively who has been detained and why. In the early stages, we must look very closely to ensure that regulations are being enacted in the right way.
Otherwise, I welcome the regulations. I am sure that the Minister will confirm that there will be ongoing discussion with local authorities, the NHS and all those involved in the implementation of the regulations, to ensure that when they are enacted they will work smoothly and in the interests of the people who will be deprived of their liberty.
4.52 pm
Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2008
Prepared 25 June 2008