The
Committee consisted of the following
Members:
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 todays 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 homesthe two settings in which the
safeguards will applyare 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
bodythe PCT or local authorityfor 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
alternativean urgent authorisationshould 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 commissions 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 casesthe 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,
andif it is not satisfied with the responseto 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.
Gentlemans 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 Ministers
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 Chairmans 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
peoples 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 Governments 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
expectedanticipatedthat 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 libertypeople who are not
freeare some of the most vulnerable and needy. Arguably, they
have less
of a voice personallypossibly through family
and friendsso 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 inthe obvious one to come to
mind is health care-acquired infectionswill 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
Ministers 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 peoples human rightssome of the
most vulnerable peoples human rights, as the hon. Lady has
saidand 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.
With regard
to the key points, I will deal only with the crux of the Mental
Capacity Act deprivation of liberty safeguards. The hon. Lady has
covered the other
secondary and important issues adequately. In terms of the
insurancethe indemnity that has been mentionedwill the
Minister clarify whether the regulations bring the inspectors in line
with requirements for other CQC inspectors, or will there be a
difference? If there is to be a difference, could he explain and
clarify that?
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 peoples 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 persons 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 assessedthat
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 cautiousthat 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 operateinitially 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 persons 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.