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Session 2008 - 09
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Public Bill Committee Debates



The Committee consisted of the following Members:

Chairman: Jim Sheridan
Buck, Ms Karen (Regent's Park and Kensington, North) (Lab)
Clarke, Mr. Charles (Norwich, South) (Lab)
Cooper, Rosie (West Lancashire) (Lab)
Evans, Mr. Nigel (Ribble Valley) (Con)
Field, Mr. Frank (Birkenhead) (Lab)
Gidley, Sandra (Romsey) (LD)
Gummer, Mr. John (Suffolk, Coastal) (Con)
Hope, Phil (Minister of State, Department of Health)
Jenkins, Mr. Brian (Tamworth) (Lab)
Johnson, Ms Diana R. (Kingston upon Hull, North) (Lab)
Milton, Anne (Guildford) (Con)
Mitchell, Mr. Austin (Great Grimsby) (Lab)
Mulholland, Greg (Leeds, North-West) (LD)
Soulsby, Sir Peter (Leicester, South) (Lab)
Whittingdale, Mr. John (Maldon and East Chelmsford) (Con)
Wilson, Mr. Rob (Reading, East) (Con)
Ed Waller, Eliot Barrass, Committee Clerks
† attended the Committee

Third Delegated Legislation Committee

Monday 16 March 2009

[Jim Sheridan in the Chair]

Draft Mental Capacity (Deprivation of Liberty: Monitoring and Reporting; and Assessments - Amendment) Regulations 2009

4.30 pm
The Minister of State, Department of Health (Phil Hope): I beg to move,
That the Committee has considered the draft Mental Capacity (Deprivation of Liberty: Monitoring and Reporting; and Assessments - Amendment) Regulations 2009.
I thank you for chairing today’s proceedings, Mr. Sheridan, and for allowing us the opportunity to be under your stewardship. The regulations are made under new schedule A1 to the Mental Capacity Act 2005, which was inserted into the Act by the Mental Health Act 2007. They form part of a wider package of measures to implement the Mental Capacity Act deprivation of liberty safeguards.
Sometimes, people need to be deprived of liberty, in their own best interests, to protect them from harm. Schedule A1 to the 2005 Act allows the lawful deprivation of liberty of those people who lack the capacity to consent to arrangements made for their care or treatment in hospitals or care homes. From the start, I wish to reinforce the message that the deprivation of liberty safeguards are about protective care. They are not about giving health and social care professionals arbitrary powers of detention, but quite the opposite. They put in place legal safeguards to ensure that people are not deprived of their liberty in a hospital or care home setting unless it is absolutely necessary, in their own best interests and for the shortest possible time.
I cannot stress enough that the safeguards are to be used as a last resort and when it is only possible to provide care or treatment for people who lack capacity in circumstances that amount to the 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 specifically put in place processes to prevent an unlawful deprivation of liberty occurring.
On 1 April, when new schedule 1A comes into force, primary care trusts and local authorities will be responsible for administering and overseeing the safeguards at a local level. From that date, hospitals and care homes will be required to seek authorisation from their primary care trusts or from their local authority if they believe that they can only care for a person by depriving them of their liberty. As it has been a while since the House has had the opportunity to discuss the safeguards, I shall remind members of the Committee of the key terms and processes under the Act before outlining the provisions in the regulations, as that will be conducive to the debate.
Under the Act, hospitals and care homes—the two settings in which the safeguards will apply—are referred to as “managing authorities”. Primary care trusts and local authorities are termed “supervisory bodies”. To deprive someone of liberty, the managing authorities must apply to their supervisory body—the PCT or local authority—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, which are commissioned by the supervisory body, have specified the need to do so. Frankly, we expect that to be the most common type of authorisation applied for in advance of a person being deprived of liberty and after careful planning measures have shown that less restrictive measures are not an option.
The alternative—an urgent authorisation—should be issued only in relatively rare circumstances when it becomes apparent that there is an immediate need to deprive someone of their liberty in their own best interests to protect them from harm. Fundamentally, the safeguards make it mandatory for the person deprived of liberty to have a representative to support them in all matters connected with their deprivation of liberty. At any point during the deprivation of liberty period, the person or their representative can request a review of the authorisation by the supervisory body or they can challenge their deprivation of liberty in the Court of Protection.
I am sure that all members of the Committee will agree that the safeguards are robust and will protect individuals from arbitrary detention. However, it is essential that the safeguards are subject to independent scrutiny to ensure that they are being used in a safe and appropriate way, and that is the focus of the regulations. They place a duty on the new Care Quality Commission to monitor the safeguards. To enable the commission to exercise that function effectively, the regulations provide it with powers to visit and interview people accommodated in hospitals and living in care homes, and to inspect their records. They also place the commission under an obligation to provide reports, information and advice to the Secretary of State, as and when he considers it appropriate. The powers conferred on the commission by the regulations are in addition to the wider powers and enforcement tools available to it under the Health and Social Care Act 2008. The regulations should therefore be read in conjunction with the powers under that Act.
I would like to make it clear that the commission’s principal role in relation to the safeguards will be to monitor hospitals, care homes, PCTs and local authorities for compliance with the processes set out in schedule 1 to the Mental Capacity Act 2005. Its role is not to determine whether unlawful deprivation of liberty is occurring in specific cases—the Court of Protection fulfils that role. However, if during the course of an inspection visit, the commission believes that unauthorised deprivation of liberty is occurring, it may draw the matter to the attention of the managing authority, and—if it is not satisfied with the response—to that of the supervisory body. Managing authorities and supervisory bodies are required by law to act on any third-party request to investigate a situation in which unlawful deprivation of liberty may be occurring.
Given that we are about to move to a health and social care system that is regulated by a single inspectorate, I would like to refer to how the commission will exercise its functions in relation to the deprivation of liberty safeguards during the transition from the old system to the new in 2009-10.
Mr. Rob Wilson (Reading, East) (Con): Before the Minister moves on, it will be useful to know what sort of numbers we are talking about. How many people were deprived of their liberty last year?
Phil Hope: I will endeavour to answer the hon. Gentleman’s question in due course, when inspiration comes to me. I will find a response to his intervention; if not, I will write to him after the Committee.
As the deprivation of liberty safeguards fall outside the existing regulatory system, the commission will operate interim arrangements for monitoring the safeguards until April 2010, when the bulk of the new registration system will be introduced. The routine programme of visits and information gathering under the existing systems will include a sample of people deprived of their liberty. New data on the safeguards, collected by the information centre for health and social care, will be used to develop an evidence base to trigger additional fieldwork activity by the commission throughout 2009-10.
Finally, the regulations make two minor amendments to the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008, which were debated by this House last summer. The first amendment will provide that under the safeguards, assessors will be eligible to carry out assessments only where they have an appropriate policy of insurance, indemnity arrangements or a combination of both. Under the existing regulations, only assessors covered by a policy of insurance are eligible to carry out assessments. It was never our intention to limit eligibility to only the professionals with such policies, and the amendment rectifies that oversight. Our key priority is to ensure that we have a sufficient number of assessors in place to support the implementation of the safeguards.
The second amendment relates to ordinary residence. Many hon. Members will be familiar with that term, as it determines where responsibility lies between local authorities for the provision of adult social care. Under legislation, the supervisory body for care homes is the local authority in which the person is ordinarily resident. Unfortunately, as hon. Members will also be aware, ordinary residence is often the cause of disputes between authorities. Therefore, we have made provision, under the 2005 Act, for the Secretary of State to determine which local authority is the responsible authority when a dispute that cannot be resolved locally arises. The amendment to the regulations will enable local authorities to recover costs when a determination by the Secretary of State concludes that another local authority is responsible for exercising the supervisory body function. The amendment aligns the deprivation of liberty safeguards with other legislation, under which an ordinary residence determination can be sought, and costs recovered, from another local authority.
To sum up, the deprivation of liberty safeguards are an important measure to guard against further human rights violations. It is essential that we do not have another case like HL v. UK, in which a vulnerable person was deprived of liberty in violation of the European convention on human rights. The safeguards put in place mechanisms to prevent that occurring, but that alone is not enough. It is vital that any system that deprives individuals of a fundamental convention right is subject to independent scrutiny.
I am pleased to be able to tell the Committee that no one deprived of their liberty last year came under the safeguards, because the Mental Capacity Act deprivation of liberty safeguards only go live in April 2009. We expect 21,000 to be assessed in the first year of operation, and no more than 25 per cent. will be lawfully deprived of their liberty, approximately 5,000 people in all. The Mental Capacity Act deprivation of liberty safeguards will be the exception and not the rule in care home and hospital settings. Those are the numbers that the hon. Member for Reading, East asked for.
The regulations, together with the powers conferred on the commission by the Health and Social Care Act 2008, provide the scrutiny in relation to the deprivation of liberty safeguards. As such, I commend them to the House.
4.41 pm
Anne Milton (Guildford) (Con): I echo the Minister’s comments that it is a pleasure to serve under you this afternoon, Mr. Sheridan. I shall not draw attention to basketball matches—[Interruption.] Guildford Heat beat the Chairman’s basketball team in the final.
I thank the Minister for running through what the legislation is all about in some detail. It is quite complex, so clarification was useful. I do not intend to keep the Committee any longer than necessary, except to reiterate the obvious concerns about the deprivation of people’s liberty. I would like to raise some of those concerns and highlight them, because the Minister was not involved in consideration of the Health and Social Care Bill, when some of the deprivation of liberty concerns were discussed.
This is a disappointing way of making legislation. My understanding is that the instrument is to be inserted into schedule A1, which was itself inserted by the Mental Health Act 2007 into the Mental Capacity Act 2005. It feels a little bit like we are going around in a circle because the original legislation was not adequately drafted. I am sure that the Minister will take that on board, because he must have found locating the source of all this as complicated as I did. It is disappointing, and the explanatory notes say that
“It was never the Government’s intention to prevent professionals with indemnity arrangements”,
for example,
“rather than policies of insurance...from becoming assessors”.
My comment to those who make legislation is that it is a shame to start from this point. However, we are where we are.
The issues of concern are about the deprivation of liberty. I am slightly surprised that possibly 5,000 people a year will be affected. I expected—anticipated—that figure to be slightly lower. During consideration of the Health and Social Care Bill, the issue raised by the Mental Health Act Commission, which is being replaced by the CQC, was that the CQC would have less of an emphasis on issues arising from people being detained. There is no doubt that people who have been deprived of their liberty—people who are not free—are some of the most vulnerable and needy. Arguably, they have less of a voice personally—possibly through family and friends—so the role that the CQC plays is absolutely vital. The concern raised last year was that some of the more headline issues that the CQC would be involved in—the obvious one to come to mind is health care-acquired infections—will override and take priority. However, deprivation of liberty is the issue that we must make sure that the CQC takes seriously, even if it is not as high-profile as some of the other issues.
I understand that the PCT will have local responsibility for ensuring that the safeguards are adhered to. That will raise concern in some areas where PCTs perhaps do not understand the importance. A lot of priorities compete for their time, and I hope that the Secretary of State will continue to ensure that the PCT is aware of the seriousness. Sadly, such issues come to mind only when there is a disaster or a very public case, when it is too late.
The Medical Protection Society has welcomed the change in insurance arrangements and, although it is a slightly odd thing for me to say, I am pleased that the Secretary of State will step in when there is a dispute about which local authority is responsible. I can see huge opportunity for a lot of messing around and to-ing and fro-ing as to who is responsible for payment. When it is open to dispute, I urge that decisions are made at an early stage, because one sees such cases time and again. We all see them in our casework, and I am sure that the Minister will have seen cases that linger on because no one can make a decision as to who is responsible.
Before I sit down, will the Minister comment on the figure of 5,000? It feels very high. I would like his reassurance that the CQC will take this very seriously. The Minister did not comment on how often reporting will take place. I guess that many hon. Members will be keen to see an annual report or breakdown of the numbers involved by constituency, even if there has not been anything in the papers or a case in which things have gone wrong. It is important that hon. Members are aware of the number of cases in which people are deprived of their liberty, and the circumstances under which that happens, to reassure them that the Secretary of State is taking precautionary measures. If I get the Minister’s reassurance on those matters, I will be happy to let the regulations go through without further ado.
4.47 pm
Greg Mulholland (Leeds, North-West) (LD): This is an issue that I am sure we can agree is enormously important. It is right to start by recognising that it is a challenge to come up with an improvement to the secondary legislation from last year, which robustly, adequately and properly protects people’s human rights—some of the most vulnerable people’s human rights, as the hon. Lady has said—and at the same time addresses the concerns raised by some members of the legal profession and by care homes, particularly small care homes, which fear that the way in which the regulation is being introduced could become a burden to them. In his concluding remarks, perhaps the Minister could emphasise that a lot of those concerns are misplaced.
The Minister will be aware that concerns have been raised about the measure potentially being an additional regulation on care homes. That is a fear of the smaller care homes in particular. Some in the legal profession have raised concerns that care home providers and owners could be vulnerable to prosecution for wrongly detaining people, or for not detaining them and facing charges of negligence if they have not properly done so. Will the Minister tell us whether those matters have been fully considered, and whether there has been an impact assessment on the implications?
We have talked about various figures. The figure that I have states that approximately 50,000 people in England are in need of assessment as to whether they need the qualifying requirements to remain. Those numbers are a challenge. However many people turn out to be involved per year, that is a significant change. Will the Minister reassure us that those concerns have been taken on board?
I shall return to the comments that I made at the beginning. I acknowledge that this is a challenge. It is an important issue and different concerns need to be balanced. However, we all agree strongly that it is important to concentrate on the human rights of the individuals concerned. Whatever and however decisions are made, we must ensure that they are made properly and that people’s human rights are fully respected.
4.51 pm
Phil Hope: We have had a short but interesting debate and I will try to address the key issues raised in my response. These are complex and serious matters. The hon. Member for Guildford is right: we are talking about some of the most vulnerable and needy people in the community and it is important for us to get it right. I heard what she said about the process. It is good that we have identified where the issues need to be addressed in the regulations, and that we have done so before the regulations came in rather than afterwards. Although I understand her criticism, I think that we can also be congratulated on ensuring that that system has been put in place.
I will return to the question about numbers, which was raised by the hon. Member for Reading, East and the hon. Member for Leeds, North-West, and the concern that was expressed. It is not easy to estimate with confidence the numbers of people who might come within the scope of the deprivation of liberty safeguards. No one came under their scope last year, because the safeguards will come in only in April 2009. I cannot give figures for previous years because the rules did not apply.
Let me reinforce what I said at the beginning. It has always been our intention that deprivation of liberty authorisations should be avoided wherever possible. They should be given only in cases where it is in the relevant person’s best interests and the only way to keep them safe. That is why we are doing this.
Figures vary, but we estimate that authorisation will be justified for between 1,000 and 5,000 cases a year. I gave the upper figure in my earlier reply to the hon. Member for Reading, East, but that is the expected range of figures. There will be more people who need to be assessed—that is a different issue. There might be questions about whether someone is or should be deprived of their liberty, and we anticipate that initially, care homes and hospitals will be cautious—that point was made by the hon. Member for Leeds, North-West. They will apply for authorisation if there is any question that it might be needed. In the first year, we estimate that about 21,000 people will be assessed leading to about 5,000 authorisations.
In response to the concern of the hon. Member for Guildford about those figures seeming high, we expect the annual number of assessments to fall as care homes and hospitals become more familiar with the meaning of deprivation of liberty measures and how to avoid them. We expect the figures to fall to about 5,000 assessments leading over five to 10 years to about 1,250 assessments. I accept that there is uncertainty, but I hope that the hon. Lady and the Committee have been given a feel for how we expect the measure to operate—initially with a bulge, and then settling down to levels that might be more reassuring.
The hon. Member for Leeds, North-West asked what the safeguards are. I would like to put it on the record that the safeguards provide for an independent representative to represent the person who has been deprived of liberty. The person’s deprivation of liberty authorisation must be consistently reviewed and monitored, and no deprivation of liberty can last longer than 12 months. The person who has had their liberty taken away from them, and their representative, can appeal that deprivation of liberty at any time. There are strong safeguards within the system.
I turn to the purpose of the regulations. I do not want to open up the whole debate that occurred when the original Act was passed, but the role of the CQC in scrutinising the way that care homes, hospitals, PCTs and local authorities run the whole system is relevant. I can reassure the hon. Lady that the Care Quality Commission is required to produce an annual report under the Health and Social Care Act, and that the Mental Capacity Act deprivation of liberty safeguards will form part of that report. The regulations also enable the Secretary of State to request additional information, as appropriate, which can be in between those annual reports. I hope that that gives the hon. Lady the assurance that she was seeking on the question of frequency of reporting. The points that she made about payments by local authorities are right; I would hope that the fact that a decision can be made by the Secretary of State will sharpen the minds of local authorities when they want to reach an agreement and that the threat itself will encourage good behaviour.
I hope that I have answered the questions that hon. Members raised. The safeguards provide important protection for some of the most vulnerable people in our society. They add to the raft of measures we have put in place recently to drive up standards and improve quality of care. Fundamentally, they ensure that some of the most vulnerable people receive better care and protection. By providing independent oversight of the safeguards, the regulations, together with the powers in the Health and Social Care Act 2008, will ensure that the deprivation of liberty safeguards are operated in a safe and effective way. I urge the Committee to accept the regulations.
Question put and agreed to.
4.57 pm
Committee rose.
 
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