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We accept that we have more consultation to engage in on that issue, as on several others that noble Lords have identified. Coastal areas are pretty complex. I accept entirely that the issue of ports is an important part of the debate. I have stretched myself as far as golf courses, against my better judgment, and now I am on to caravan parks, and the issue of parks and gardens raised by the noble Lord, Lord Greaves. It is not reasonable for the Government to be asked to express much more in detail at this stage.

Lord Greaves: I hesitate to encourage the Minister to go on any longer: we are all waiting for our dinner. Can I do a deal with him? I was wondering if he would ever get on to parks and gardens. If the Minister or his colleague will write to me about their thinking on the problem of parks—which is a serious issue, because Natural England believes that it needs a change in order to do its job properly—I will not ask him to say any more about it today, and will not press it further.

While I am on my feet, I will just say that my recollection of the pre-legislative committee is rather different from that of the noble Baroness, Lady Byford, in terms of the balance of views. Nevertheless, the wording was agreed unanimously: that is the important thing.



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Lord Davies of Oldham: I am grateful to the noble Lord: he has struck a deal. That is all I have to say.

Lord Greenway: I am most grateful to all noble Lords who have taken part in the debate on this grouping. It has indeed been very wide-ranging. Part of the problem has been the regrouping of amendments in order to try to save time. Many amendments were put together, hence the wide-ranging debate.

I am grateful to the Minister for what he said about boatyards and yacht clubs. I understand that most of their concerns have been covered. The Minister said that where they were not covered, he would look into it: I am grateful for that.

As far as concerns port development land, I appreciate that my amendment was widely drawn. However, as with the amendment of the noble Lord, Lord Geddes, we are referring to land possibly for the extension of a container berth, not necessarily to the reams of derelict port land referred to by the noble Lord, Lord Crickhowell. That can be developed for residential or other purposes, and the path easily rerouted around it. It is not necessarily a problem.

Reading between the lines, it is obvious at the moment that Natural England would like the path, if possible, to go across land that in future may be required for port development. Nevertheless, a lot of land alongside ports comes into other categories that are also of concern, such as wetlands and mudflats, so development may be impractical. We will have to see what happens. There should be no problem in moving a path—it is fairly easy to construct—if land is required for another purpose and there is provision for that. I am grateful to the Minister and beg leave to withdraw the amendment.

Amendment A270 withdrawn.

Amendment A271 not moved.

Lord Hunt of Kings Heath: I know that the next group will probably be short, but our discussions might go on longer than expected, so it is appropriate that I beg to move that the House be resumed. I suggest that Committee stage begin again not before 8.30 pm.

House resumed. Committee to begin again not before 8.30 pm.

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

Statutory Instrument
7th Report Joint Committee Statutory Instruments

Motion to Approve

7.29 pm

Moved By Baroness Thornton



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Baroness Thornton: My Lords, these 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 either in hospitals or care homes.

The provision of independent scrutiny is the focus of these regulations. They place a duty on the new Care Quality Commission to monitor the new safeguards. To enable the commission to exercise this function effectively, the regulations provide it with powers to visit and interview people accommodated in hospitals and 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 appropriate.

The powers conferred on the commission by these regulations amplify and complement 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 in the 2008 Act. I remind the House that the deprivation of liberty safeguards are about proactive care. The legislation requires all less restrictive options to be considered before a care home or hospital makes an application to deprive someone of their liberty. The safeguards are to be used as a last resort. People with deprivation of liberty safeguards authorisations will be the exception and not the rule in any care home or hospital setting. The safeguards are not to be used as a form of punishment, or for the convenience of professionals, carers, or anyone else. They are not a rubber stamp for poor care.

Specifically, the safeguards put in place processes to prevent an unlawful deprivation of liberty occurring. They are designed to ensure that people are not deprived of liberty in a hospital or care home setting unless it is absolutely necessary, in their own best interests and for the shortest possible time. If people who lack capacity need to be deprived of liberty in their own best interests to keep them safe, the safeguards protect them by providing a representative to act for them and protect their interests, a right to challenge their deprivation of liberty in the Court of Protection and a right for their deprivation of liberty to be reviewed and monitored regularly.

On 1 April 2009, when Schedule A1 comes into force, primary care trusts and local authorities will be responsible for administering and overseeing the safeguards locally. From this date, hospitals and care homes will be required to seek authorisation from their primary care trust or local authority if they believe that they can care for a person only by depriving them of their liberty.

These are robust safeguards which will protect individuals from arbitrary detention. However, it is essential that the safeguards themselves are subject to independent scrutiny, to ensure that they are being

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used safely and appropriately. That is at the heart of the regulations. We are confident that the new commission will provide robust, independent scrutiny of the safeguards. The commission’s principal role will be to monitor hospitals, care homes, PCTs and local authorities for compliance with the processes set out in Schedule A1 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 an unauthorised deprivation of liberty is occurring, it may draw it to the attention of the managing authority and, if it is not satisfied with the response, to the attention of the supervisory body. Managing authorities and supervisory bodies are required by law to act on any third party request to investigate a situation where 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 body, I will make reference here 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 system. The regulations would give the Care Quality Commission the function of monitoring the operation of the Mental Capacity Act deprivation of liberty safeguards from April 2009. The Care Quality Commission has modified its existing methodologies for the inspection of care homes and NHS private and voluntary hospitals under the Care Standards Act and the Mental Health Act to incorporate the monitoring of safeguards in these settings. The monitoring arrangements will be carried forward when the commission starts to implement the new regulatory system set out in the Health and Social Care Act 2008 in full from April next year.

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.

Finally, these 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 provides that assessors under the safeguards 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 those assessors covered by a policy of insurance are eligible to carry out assessments. It was never our intention to limit eligibility to only those professionals with policies of insurance. Therefore, the amendment in these regulations rectifies this oversight. Our key priority is to ensure that we have sufficient numbers of assessors in place to support implementation of the safeguards.

The second amendment relates to ordinary residence. Many noble Lords will be familiar with this term, as it determines where responsibility lies between local

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authorities for the provision of adult social care. Under the Act, the supervisory body for care homes is the local authority in which the person is ordinarily resident. Unfortunately, as many noble Lords will also be aware, ordinary residence is often the cause of disputes between authorities. Therefore, we have made provision in the 2005 Act for the Secretary of State to determine which local authority is the responsible authority where a dispute arises which cannot be resolved locally.

The amendment to the regulations enables local authorities to recover costs where a determination by the Secretary of State concludes that another local authority is responsible for exercising the supervisory body function. This 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, where a vulnerable person was deprived of liberty in violation of the European Convention on Human Rights. The safeguards put in place mechanisms to prevent this occurring, but this alone is not enough. It is vital that any system that deprives individuals of a fundamental convention right is subject to independent scrutiny. These regulations, together with the powers conferred on the commission by the Health and Social Care Act 2008, provide this scrutiny in relation to the deprivation of liberty safeguards. As such, I commend the regulations to the House.

Earl Howe: My Lords, these are important regulations, and I thank the Minister for introducing them. Their background is familiar territory to many of us. The judgment issued by the European Court of Human Rights in the Bournewood case gave rise to the provisions inserted by the Mental Health Act 2007 into the Mental Capacity Act 2005. Those provisions set out a framework for formally approving a situation in which an individual lacking mental capacity and receiving care or treatment may be deprived of liberty for their own protection. The framework comprises a series of safeguards designed to make sure that no one is deprived of their liberty inappropriately and therefore contrary to their human rights.

The regulations place a duty on the Care Quality Commission to monitor and report on the way in which the safeguards are being operated. If we look at how the system is to work in practice in relation to a given individual, we will swiftly recall that the approval process involves two parties: the managing authority—in other words, the hospital or care home looking after the person—and the supervisory body; that is, the PCT or local authority. The managing authority makes an application to the supervisory body to authorise the person’s deprivation of liberty. The first and most obvious thing that strikes one from reading the regulations is that the CQC’s monitoring role appears to apply only to the actions of hospitals and care homes and not to the way in which PCTs or local authorities fulfil their part of the process. Can the Minister comment on that? For the MCA safeguards to work, they require not only the hospital or care home to implement the process properly but also the PCT or local authority

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to do so, and to do so in a manner that is sufficiently sensitive and expeditious to meet the circumstances of the particular case.

Every case will involve, by definition, someone who is extremely vulnerable. Therefore, the whole system, not just half of it, has to work smoothly and well. Section 46 of the 2008 Act requires the CQC to,

by PCT's, and,

by local authorities. Is the Minister satisfied that the essentially administrative processes involved in implementing the Mental Capacity Act safeguards are covered by the wording in the 2008 Act? If she is, that is well and good; but why then is the 2008 Act apparently inadequate for enabling the CQC to do the things specified in these regulations? Chapter 6 of the Act already grants the commission very wide-ranging powers in relation to inspecting hospitals and care homes.

We then see that the duty placed on the CQC focuses on a duty to,

Yes, to be sure, the individuals affected are absolutely central to the matter, but what about the people running the hospitals and care homes? They are the ones who are technically on the line here and whose adherence to the rules needs to be accurate if the safeguards are to work as intended. These people are the ones who need checking but they are not mentioned. Why is that? Again, if we look at the wording of the Health and Social Care Act we might conclude that the CQC already has the power to interview any person who manages a regulated activity. We find this in Section 63. But Section 63 also empowers the commission to interview,

If these regulations essentially repeat and duplicate that provision, as they apparently do, why do they not also repeat and duplicate the provision relating to hospital and care home managers?

One of the safeguards built into the system is to make it mandatory for the individual whose liberty has been removed to have a representative to speak and act for them. There is no mention of advocates or personal representatives in these regulations. One could imagine the commission going into a care home and interviewing a resident there who is deprived of liberty and who is also the subject of a relevant authorisation. The interview could be entirely reassuring as regards the quality of that person’s life and the way in which that person perceives the regulatory process to have been complied with. But if the individual is someone who lacks capacity, it may equally be that he or she is unable to make a balanced judgment about the circumstances of their detention or the way in which the home had acted in implementing the safeguards. It would be unwise for the commission to rely fully on anything that it was told by the individual. The person

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best placed to give a balanced judgment would be the advocate or representative; but as things stand, the regulations do not appear to allow such an interview. I wonder whether the Minister could comment on that, as I am sure that this cannot be the Government’s intention.

I am probably alone in thinking that there is a confusion at the heart of what the CQC is meant to be doing as it fulfils its monitoring role in this area. The commission itself has said that the focus of its monitoring needs to be on the experience of people with limited capacity when deprivation of their liberty is being considered or authorised, and on their quality of life. But is that right? The Minister in another place, Phil Hope, when the matter was debated on 16 March, stated:

“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”.—[Official Report, Commons, Third Delegated Legislation Committee, 16/3/09; col. 4.]

The noble Baroness said something similar just now.

7.45 pm

Interviewing the patients of hospitals and the residents of care homes and finding out about their quality of life will only get one so far towards monitoring the way in which the processes laid out in Schedule 1 to the Mental Capacity Act have been operated. The question that is central to that issue is surely this: do the people managing the hospital or care home fully understand what the law says, and are they implementing it in the correct way? The perceptions and experiences of the individual patient or care home resident are relevant to reaching a view on that issue, but they are not by any means the whole story; nor can the key question be answered by inspecting someone’s health or care records. Obviously, the CQC will be an independent body and the Minister cannot speak for it, but I should be very grateful if she could indicate to me what the CQC believes its monitoring role will entail in practice in terms of the actions it takes and the questions that it asks on the ground.

The other thing that strikes me about this extension of the commission’s role is that in one important sense it represents a departure from its main remit as health and social care regulator. Contrary to some people’s perceptions, the CQC will not be an amalgam of the Healthcare Commission, CSCI and the Mental Health Act Commission. The reason why it is not is that it is not going to concern itself with monitoring and assessing the quality of care but rather with monitoring and assessing adherence to minimum standards of care. Those two things are very different, and the difference will become apparent in the way that the CQC actually operates and reports on the work that it does.

Yet when it comes to the Mental Capacity Act safeguards, it would appear that we are not asking the CQC to monitor adherence to minimum standards; we are asking it to assess the quality of care. In the nature of the matter at issue, that must be so. I simply

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repeat what the CQC is reported to have said in the response to the recent consultation—that the focus of its monitoring needs to be on the experience of people with limited capacity when deprivation of their liberty is being considered or authorised, and on their quality of life. How can the commission do that by reference to a set of minimum standards? If Schedule A1 to the 2005 Act is to operate as intended, it will depend on those on the ground implementing its provisions in the least burdensome, most sensitive and most proportionate way. One can only reach a judgment on whether or not this has happened by reference to subjective and often nuanced considerations. This type of monitoring strikes me as different in kind from monitoring minimum standards of hygiene or nutritional care, for example. Can the Minister comment on this?

We know, because the CQC has told us so, that it intends to adopt a risk-based approach to inspection and enforcement. At the same time, a hospital or a care home which may otherwise be providing excellent standards of care might inadvertently allow a situation to arise which amounted to depriving someone lacking full capacity of their liberty. It is not necessarily very difficult for that situation to arise, and the risk of it arising is a different sort of risk altogether from the risk of an establishment providing inferior care. It is certainly a very different sort of risk from the risk of spreading a healthcare-acquired infection, which will be the main focus of the CQC’s attention in the immediate term. If that is so, how confident can we actually be that the CQC will be able to monitor the operation of the Mental Capacity Act safeguards in an effective way? The CQC has said that its monitoring role in this area needs to be distinct from its wider regulatory role in health and social care. However, it has also said that in practice the monitoring of deprivation of liberty under the Mental Capacity Act will not be a separate activity for it, but rather integrated into its broader remit. Against that background I am not sure that we can look forward to anything more than a tokenistic measure of monitoring in this area, unless there is some as yet unknown way in which the CQC will be able to home in on those hospitals and care homes where, for whatever reason, a heightened level of risk of poor compliance exists.

The response to the consultation suggests that the CQC intends to rely on the department’s defined data returns from councils and PCTs as the “statistical context” for its monitoring role. Quite what that means is unclear. If it means that those hospitals and care homes submitting the greatest number of applications for deprivation of liberty are the ones on which the monitoring effort should be principally directed, that would seem to be the exact opposite of good logic. The hospitals and care homes submitting the greatest number of applications are the ones that will be most aware of their responsibilities under the law and that are therefore most likely to be complying with it properly. Certainly they need to be monitored, but what about all the rest? It is the hospitals and care homes from which PCTs and local authorities never hear a dickey bird that are the ones to worry about most. The regulations themselves encourage the CQC to identify individuals that it considers should be the

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subject of an assessment under Schedule A1 to the Mental Capacity Act. In other words it is not just a case of monitoring those who have been the subject of an assessment; it runs broader than that. It would be helpful to hear precisely how the CQC intends to identify how best to direct its efforts in this area of its remit and how its risk-based approach will work.


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