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When the Speaker is notified that a Member is suffering from a mental disorder, as the noble Baroness intimated, he arranges for the Member to be examined by independent registered medical practitioners experienced in mental disorders—appointed by no less than the august person of the president of the Royal College of Psychiatrists, to whom we owe much in relation to our debate today.

I know that the provision reads as if it is stigmatising and discriminatory, because legislators suffering from serious physical illnesses are not covered by similar provisions in other legislation. I think that a case can be made for it in the sense that the nature of mental disorder could affect whether a Member thinks he can still adequately do his job. We are also talking about cases where the individual is not being treated informally with their valid consent but compulsorily. The individual is being treated in hospital, so their freedom of movement is reliant on their being granted leave. Their ability to come to the legislature, or to be brought there to participate and vote, is therefore not in their own hands. That is rather distinct from the type of physical illness that the noble Baroness mentioned.

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It is true that Section 141 has not, to our knowledge, been used since the Act became law. However, if a legislator is still detained at the end of six months, it is not entirely wrong to suggest that their constituents—and we should think of the public interest; no one has mentioned the electorate or those whom the Member of Parliament is there to serve—should have the right to seek alternative representation. That could not be done without the legislator’s seat being vacated. Overall, however, I think it is a matter for the other place.

Baroness Wilkins: I thank noble Lords for their support for this amendment and the Minister for his response—which was extremely disappointing. I should like to reflect on the matter, and I am sure that the other place will equally reflect on it. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 58 had been withdrawn from the Marshalled List.]

Earl Howe moved Amendment No. 58A:

The noble Earl said: I want very briefly to raise a couple of additional points about places of safety.

Section 135 of the 1983 Act is concerned with the situation where a person with a mental illness is living somewhere where he is being ill treated or is neglecting his own care. A power is given to the police to obtain a warrant to enter the premises and remove the person to a place of safety. As in Section 136, a period of 72 hours is specified as the maximum time in which a person can be so detained. For the reasons I gave earlier, I believe that this ought to be a much shorter period. I am suggesting 24 hours.

However I also want to flag up what appear to be rather odd provisions in Section 135(6). A place of safety is defined here as, among others,

That description is one which is normally applied to care homes for the elderly. A care home is not the right environment for someone experiencing an acute psychotic episode. I therefore wonder whether it is time to look again at this provision.

Similarly, I have doubts about the catch-all description at the end of subsection (6), which refers to:

That also does not seem appropriate if we are trying to cater for someone with an acute health need.

Those are purely probing points at this stage. I should be interested to hear what the Minister has to say about them. If he has nothing to say now, I would of course be willing to accept a letter from him in due course. I beg to move.

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Lord Hunt of Kings Heath: I apologise to the noble Earl. The reason I went off is that I thought when he moved Amendment No. 54 that he referred also to the content of Amendment No. 58A. Perhaps I could write to him in view of what he said.

Earl Howe: I am grateful to the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 [Mental Capacity Act 2005: deprivation of liberty]:

[Amendment No. 59 not moved.]

Clause 38 agreed to.

Schedule 6 [Mental Capacity Act 2005: new Schedule A1]:

10.30 pm

Baroness Barker moved Amendment No. 60:

“No charges for accommodation, care or treatment provided to P while deprived of liberty

The noble Baroness said: I cannot tell you how delighted I am to stand up at this hour and start discussing a matter so technical that only a very few people understand it, but that is my misfortune. The next few amendments refer to the Bournewood gap. In the Chamber tonight we have some of the few people in this country who understand what that means. It might help if I briefly explained what the Bournewood gap refers to, small and technical though these matters are.

The provision has come about as a result of a court case in which a person who did not have mental capacity went into care as a voluntary patient. When he attempted to leave, he was deemed not to have capacity to make that decision. He and his carers were unable to remove him from that deprivation of liberty. He took his case as far as he could and won. The court gave a judgment about deprivation of liberty. As those who took part in the many debates on this during the passage of the Mental Capacity Act will remember, we knew for some time that the Government had to bring in legislation to close that gap. He did not have rights equivalent to those of someone detained under mental health legislation.

The Government, to comply, have brought forward proposals amending this legislation and the Mental Capacity Act. The department has helpfully issued a code of practice seeking to explain what this is all about. Page 9 of the code defines the meaning of deprivation of liberty, quoting almost verbatim from the European Court judgment. It also contains a small section on how one identifies when there has been a deprivation of liberty. It is a particularly difficult matter. In its judgment the court said:

I am not a lawyer, but that is a lawyers’ charter. It is well understood by everybody concerned that this matter will be determined over time by case law. Therefore, what I am going to say, and what others and the Minister may say, could be important to future decisions in court about this law and its interpretation. So, late as it is, I am afraid that we have to go through these matters.

The purpose of the amendment is to establish that where a person is deprived of his liberty in a care home under the Bournewood provisions, he comes under a care management scheme and the local authority or NHS body that commissions the care does not impose any charges for such care while the authorisation is in place. This issue is specific to those in care homes, because others detained under the Bournewood provisions are normally detained under the Mental Health Act or do not have sufficient personal capital, savings or income to pay for the care. Their care is usually free.

Those who are subject to a Bournewood authorisation in a care home, uniquely among those who are deprived of their liberty, should not be expected to pay for their care while they are under that detention. Their detention is subject to Article 5 of the European Convention on Human Rights—it is detention—and Article 14 prohibits unjustified discrimination in the application of any other articles, including Article 5. So while there may not necessarily be any difference in the conditions of somebody detained under the Mental Health Act or the Mental Capacity Act, there would be for those people.

I am perhaps going to pre-empt the Minister saying that she has every sympathy with me but that this could be quite expensive because of the number of people involved. That point has been made by other authorities. We on these Benches are of the opinion that there are two important points. One is that we should not set the precedent in law that those who are deprived of their liberty should be made to pay for their care. That is a dangerous precedent. But the second and perhaps most important point is to make sure that when old people—and it is largely older people who lack capacity—are taken into care homes, a proper care planning approach is taken and care is ordered in such a way that it does not deprive them of their liberty. We should aim for good practice where people are not unnecessarily prevented from going out as they wish and are able. This measure is in part about principle and in part about good practice. I beg to move.

Baroness Ashton of Upholland: I am grateful to the noble Baroness for giving us some of the background and for setting out the reasons why we are debating this issue. I urge noble Lords to take themselves back to those fabulous days when we debated at enormous length an important piece of legislation which I was very proud to take through your Lordships’ House and pay tribute to the noble Baroness, Lady Barker,

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and the noble Earl, Lord Howe, for the work they did in helping us to do that as effectively as we did. Other noble Lords know the part they played in this regard and I want to pay particular tribute to Lord Carter for the work that he did. Without him I am sure we would not have ended up with such an important piece of legislation.

I am very sorry the noble Lord, Lord Rix, is not with us. I know he is in hospital and doing well. I am sure noble Lords will join me in wishing him well and hoping he will be with us soon, certainly for Report stage, as I need to hear his voice in this debate.

We are in the Mental Capacity Act. The reason we are taking these clauses in the Mental Health Act is because, as noble Lords will recall, we were trying to find a solution that drew a consensus that dealt with the particular case, as the noble Baroness has said, of the Bournewood Hospital which kept someone described as an informal patient in hospital against the wishes of his carers. The European Court of Human Rights found that there had been a deprivation of his liberty in contravention of Article 5(1) and Article 5(4) of the European Convention on Human Rights. As a consequence the Government has moved to seek to address this problem in the most appropriate way.

Adults have the right to make their own decisions; in some cases they are not able to do so. The Mental Capacity Act set out some critically important principles about the issues to do with capacity and what we should do if a person lacks the capacity to take the decision themselves. We recognise that some people who lack capacity to consent—and I will return to this—need to be deprived of liberty but are not detained under the Mental Health Act. Additional safeguards are needed to protect the human rights of these people. They must be protected from arbitrary detention and given speedy access to the courts.

This is not about taking new powers to detain people. It is about giving safeguards to the most vulnerable in care homes and hospitals who need to have their liberty curtailed and considered and who, in some cases, need to be deprived of aspects of their liberty in order to keep them safe and protected and to provide the highest quality care. That is a fundamental issue which we need to address.

The noble Baroness, Lady Barker, rightly says that we have not tried to define it, but I want to say what I believe she is looking for in terms of what the European Court of Human Rights has identified in judgments in cases to date as contributing to the deprivation of liberty. Briefly, they are: restraint was used, including sedation, to admit a person who is resisting; professionals exercised complete and effective control over care and movement for a significant period; professionals exercised control over assessments, treatments, contacts and residence; 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 from their care was refused; the person was unable to maintain social contacts because of restrictions placed on access to other people; and the person lost autonomy because they were under continuous supervision and control. I

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hope that that sets out some of the areas, but we have determined that ultimately this is for the courts to decide.

I have made it clear that this is not about punishment and not about a deprivation in the wrong context. Looking at who should pay should be in the context of the well established principle of means testing, from which the Government have no intention of moving away. I know that noble Lords from other parties take a different view and we can debate at length the resources in the health service and the Government as a whole. Means testing has been a long-established principle. Therefore I do not have the sympathy for the amendment which the noble Baroness would have wished me to have. Hand in hand with it, there is a suggestion that the deprivation of liberty is negative; somehow being perceived as taking away from someone something that they would prefer to have. The whole basis of the Bournewood principle is that people are deprived of their liberty because they need to be made safe and secure and given high-quality care. I see no reason therefore to suggest that the means-testing element should be disapplied. If one accepts—and I do—the principle of means testing in these cases, it is in order to provide high-quality care. The principles behind the Bournewood provisions are precisely that.

Furthermore, I do not accept the care plan approach, although I understand why the noble Baroness is raising it. Indeed, I had the privilege of meeting stakeholders this morning when we talked around this issue. While it is important to ensure that the highest quality care plan approach is taken by those working with individuals who lack capacity, I do not think you would necessarily get that or get to the point of saying, “We won’t deprive them of their liberty because if we do we have to pay”. That is not the right way to approach this issue. I accept that the underlying issue is to ensure that the decisions and the approach to the deprivation of liberty should be made only where it is in the right and proper interest of the individual and the best interests assessor will have the responsibility for so doing. But it would be wrong to take the approach that says, “If you’ve got to pay for it, perhaps it is an incentive not to do it”. It is precisely in order to support and care for such people that we wish to do it.

I do not accept that as a principle and therefore would reject the amendment and hope that the noble Baroness will withdraw it. However, I understand the issues underlying it and hope that within the code of practice we can ensure that the highest quality care is always provided in order to support people who lack capacity and who for reasons of good high quality care need to have a deprivation of liberty to some degree or other. I hope that on that basis the noble Baroness will withdraw her amendment.

Baroness Barker: The noble Baroness replied with her customary fullness of detail and consideration and I thank her for that. One aspect that ought to be stressed is the different ways in which care for older people in residential homes is paid for. The difference

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between self-funders and those who have their care commissioned by local authorities is an important factor in all this. Perhaps the Minister’s reply underestimates the forces that might be at work in any case, depending on who is paying for the person’s care. That may be a big consideration in whether an authorisation is triggered in the first place. That is an important consideration.

It is important to say that detention and deprivation of liberty is more than a mere technicality. Just because people lack capacity—

Baroness Ashton of Upholland: I did not suggest for a minute that it was a technicality—I know that the noble Baroness is not accusing me of that. It is a critically important issue. The point I was making was that it is done in order to provide high quality safe care for someone, not as either some kind of punishment or detriment to their life. It is a necessity to keep them safe and secure to provide high quality care.

Baroness Barker: I fully accept that point and I apologise if I misrepresented what the Minister said, but she might concede that where there is a deprivation of liberty that is an evident indication that there is something wrong with someone’s care—

Baroness Ashton of Upholland: I do not accept that because if we think about some of the circumstances of care that one is providing for individuals, the deprivation of liberty might be in order to ensure that they are secure and safe—one can think not only of elderly patients who may suffer from dementia but also, for example, those with severe learning difficulties perhaps on the extreme end of the autistic spectrum—and be classified in a range of ways: to ensure that they are able to socialise; to eat effectively; to be able to go outside properly; and so on. I do not think that it is about the quality of the care being negative but about ensuring that patients obtain the highest quality care.

Baroness Barker: There we have a difference because I believe that it is likely to indicate that there is something inappropriate about the care being received. We have not yet discussed that the amendment as proposed would cover independent care homes. That is an important point that will need to be considered at any future stage. I fear that at this hour, no matter how long I bowl on this important point, I am not going to get anywhere. I thank the Minister for her consideration and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe moved Amendment No. 61:

(a) at that time, or (b) at some later time within the next 28 days, to meet all the qualifying requirements.”

The noble Earl said: In moving the amendment I shall speak also to Amendments Nos. 63 and 64. As currently drafted the Bill states that wherever the managing authority of a hospital or care home

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identifies that a person who lacks capacity is being or risks being deprived of liberty it must apply to the supervisory body for a standard authorisation of deprivation of liberty. I believe that there is a strong case for extending the right to apply for such an authorisation to anyone who becomes aware that a person who lacks capacity is being or risks being deprived of liberty. Deprivation of liberty is a serious matter. As soon as anyone becomes aware that it is taking place it should be assessed and authorised or refused as quickly as possible. That could best be achieved by extending more widely than is currently envisaged the pool of people who are entitled to request an authorisation.

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