Mental Health Bill [HL]

In the absence of the noble Lords, Lord Rix and Lord Adebowale, I wish to speak to the amendment for three reasons. First, we began to discuss the Bournewood provisions two weeks ago. Since then, at the end of last week, there has been a court case in which there was a finding against Surrey County Council that may turn out to be very important. I am sure that the Minister will decline my invitation to pass an opinion on it, but I think that there is already fairly widespread agreement that it amounts to a significant change in the definition of ““deprivation of liberty””. In view of that judgment, will the Minister’s department consider issuing new guidance on the matter of deprivation of liberty? If so, it is entirely valid that we should discuss the amendment moved by the noble Baroness. Secondly, how did the department come to its figure of one year? How long is the average stay in a residential home of someone who is likely to come under the provisions? I accept that people who are likely to be deprived of their liberty in residential homes often have significantly different characteristics from those detained under the Mental Health Act in that many of them have Alzheimer’s and many of them are very frail. I hesitate to say this in the presence of someone as eminent as the noble Baroness, Lady Murphy, but it is not unknown—in fact it is fairly frequent—for older people’s cognitive abilities to be impaired for simple physical reasons. They may get infections, for example, and become confused, but these are only temporary states of confusion and can change. In that circumstance, a maximum period of a year, which could easily become a default if there were not the resources to go round, is too long. In replying to these points, can the Minister give an assurance that people who are likely to be in a temporary state of incapacity are not being unduly detained for long periods?