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Hospital and care homes may not always be best placed to judge whether people in their care who lack capacity are being deprived of their liberty. It is not always obvious that a deprivation of liberty is taking place and a hospital or care home may believe wrongly but in good faith that one of their residents is not being or does not risk being deprived of liberty. In such cases a request for an authorisation would not be made. Widening the pool of people who can call for an authorisation to other interested parties such as inspection bodies, family members, friends or advocacy groups who may become aware of a potential deprivation of liberty before a hospital or care home does would provide an important additional safeguard.

Few cases of deprivation of liberty are likely to involve deliberate abuse. However, I have concerns about the implications of leaving the right to request an authorisation of deprivation of liberty solely in the hands of the bodies responsible for the deprivations of liberty in the first place. Where a deprivation of liberty is taking place but is not justified and would not be authorised, the supervisory body would refuse an authorisation and rule that the deprivation of liberty is unlawful. Some hospitals or care homes may seek to avoid such a ruling by failing to request an authorisation. While the deprivation of liberty might well come to light eventually, it would do so more quickly if independent third parties had the right to request an authorisation. Such a right would also be a disincentive to hospitals or care homes which might otherwise avoid requesting an authorisation.

Amendments Nos. 63 and 64 are designed to ensure that third parties which request a standard authorisation are informed of the result of their request. I beg to move.

10.45 pm

Baroness Murphy: I know that my noble friend Lord Rix wished to make a point about the case that generated all this controversy. It resulted from the carers in the Bournewood case drawing it to the attention of the hospital that they did not feel that the patient should be detained. Unless we accept the amendment and changes in the safeguards, the Bournewood problem will not be solved.

Baroness Ashton of Upholland: I am grateful to the noble Earl and the noble Baroness. I had a very useful discussion this morning with a number of

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stakeholders, including representatives from the care home sector and other organisations, who made the very point that the noble Baroness made on behalf of the noble Lord, Lord Rix. The care homes were equally concerned to make sure that we did not move to a point where it was not clear who had the statutory duty and where the responsibility lay. I hesitate to say it, but requests could be made in an almost vexatious way, with people constantly asking questions. They wanted clarity.

In statute, we must be clear that we are putting a duty on one body to identify anyone at risk of deprivation of liberty and to apply for authorisation. I do not say that to dismiss the concerns, but we must make sure that we have one body applying for authorisation and that we minimise the potential risks for individuals not to receive the safeguards to which they are entitled. That is why we have put it this way in the framework of the legislation.

Where families are concerned that an authorisation should have been applied for, they will draw that to the attention of the care home or the hospital. It is important to recognise the reality of legal redress; therefore, a request should not be taken lightly. Families can take action through the complaints procedure, but if the question cannot be resolved, there is the opportunity to apply to the Court of Protection. There is a package of measures available but, having said that, I have been thinking about this quite a lot today. I am happy to go away and think whether there are any further steps I can take that would allay concerns, not least those of the family in the Bournewood case.

I begin from the principle that one body needs to have statutory responsibility; it is a question of how best we can make sure that families, carers, and others are able to raise their concerns without muddying the waters in a way that would not help. I hope that on that basis the noble Earl will feel able to withdraw the amendment.

Earl Howe: That was a very welcome assurance; I could not have asked the noble Baroness to do more. I hope that we can have constructive discussions between now and the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Countess of Mar: As it is nearly 10.50 pm, we have seven groups of amendments left and we have to go to bed by 11 o’clock, may I propose that the House do now resume?

Lord Grocott: I am a little startled to have had this proposed without any notice whatever, particularly from a senior Deputy Speaker. If that is the determination, the noble Countess will have to move this to a Division. She knows perfectly well that if she moves a Motion and we have a Division on it, that takes another quarter of an hour, whatever happens. I request that the noble Countess does not do that at this stage. I have no intention, nor does anyone else, of going on ad infinitum, but we certainly have time to debate another group. I respectfully suggest that

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the noble Countess does not move a Motion to resume the House at this stage.

The Countess of Mar: Can the Chief Whip assure me that the next group will not exceed the unusual retiring time of 11 o’clock on a Wednesday evening when the staff have to come to work at 11 o’clock tomorrow morning and there is still business to continue? Why do we not continue the next page on the next day?

Lord Grocott: I really do not think that we can negotiate the business of the House—it is already taking time to do so. I will say to the noble Countess—and it is farther than I would normally go—that I will talk to other members of the usual channels, including the Convenor of the Cross-Bench Peers, in the normal way. However, I strongly appeal to her to let us get on with this now and see where we get to.

Baroness Barker moved Amendment No. 61A:

“Request refused: supervisory body to make recommendations (a) a request is made for a standard authorisation; (b) the supervisory body are prohibited by paragraph 50(2) from giving the authorisation; (c) all assessments except the best interests assessment are positive; and (d) on the basis of the information taken into account in carrying out the assessment it appears to the supervisory body that there is, or is likely to be, a deprivation of liberty.

The noble Baroness said: The two amendments in this group would have been supported by the noble Lord, Lord Rix, if he were here. They both try, from slightly different angles, to address the same question. When the supervisory body refuses to authorise the deprivation of liberty but believes that an unauthorised deprivation of liberty is taking place, it informs the relevant people, including the police and the relevant inspection body, that that is happening. The purpose of these amendments is to find out from the Minister what steps will be taken once a deprivation of liberty has been identified but not authorised. The Bill does not contain any provision to ensure that the relevant inspection body is informed once the supervisory body has identified that a deprivation of liberty is taking place. Where something is wrong, but it has not been deemed to be a deprivation of liberty, who does what to make sure that that situation does not persist? That is, in essence, the question that lies behind this amendment. I beg to move.

Earl Howe: I shall speak very briefly to Amendment No. 65, which is designed to ensure that where the supervisory body refuses to authorise a

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deprivation of liberty, but believes that an unauthorised deprivation of liberty is taking place, it informs the relevant people, including the police and the relevant inspection body. I have tabled the amendment more as a means of probing the Government than anything else. Once a deprivation of liberty has been identified but not authorised, it is important to know what steps would be taken next. It seems essential that where an unauthorised deprivation of liberty is taking place steps are taken as soon as possible to ensure that it stops. I see that in paragraph 44 of Schedule 6 there is provision to ensure that where it appears to the best interests assessor that there is an unauthorised deprivation of liberty and that the relevant person does not meet the best interests requirement then he must include a statement to that effect in his assessment, but it does not give any indication that that information should be communicated to the various people, listed in paragraph 58, who have to be given notice of any decision not to grant a standard authorisation. In any case, the list in paragraph 58 does not contain any inspection agencies. Once again, I hope the Minister will agree to look again at this point, which has been brought to my notice by the Making Decisions Alliance.

Baroness Ashton of Upholland: The noble Earl is right to point out the role of the best interests assessor, who has to give reasons in the report of his assessment for his conclusion that deprivation of liberty is not in the person’s best interests. We think that that is the best way for that to be dealt with because he, rather than the supervisory body, will be in close contact with the person, his family, friends

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and carers and with care homes and hospital staff and will be best able to advise on how deprivation of liberty should be avoided. The way that Schedule 6 is drafted provides for the person concerned or anyone with an interest consulted by the best interests assessor and any independent mental capacity advocate to be told that the authorisation has not been granted. They will therefore be aware that the deprivation of liberty is unnecessary and will be expecting changes to take place in the care plan that has been established. I share the ambition to ensure that appropriate action is taken when unnecessary deprivation of liberty is identified. We think we can achieve that through the arrangements that we are making for the assessor to recommend how the deprivation of liberty can be avoided and through the code of practice. I am inevitably happy to think further about whether we can do more to strengthen that in the context of the code of practice and whether we have this right in the Bill.

Baroness Barker: I thank the Minister for that reply. She will understand the strength of feeling that lies behind this and the need to plug the gap. I am heartened by her comments and I look forward to her department coming forward with proposals. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Royall of Blaisdon: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

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