Mental Health Bill [HL]

moved Amendment No. 75A: 75A: Schedule 6, page 73, line 4, at end insert— ““No charges for accommodation, care or treatment provided to P while deprived of liberty 2A Where the managing authority deprives P of his libertyby detaining him as mentioned in paragraph 1(2), the appropriate NHS body or local authority which has authorised the detention shall make arrangements for the provision of the accommodation with care or treatment, and it shall be free of charge.”” The noble Baroness said: My Lords, we return to a subject that we debated in Committee. Anyone who has read the record of our proceedings will know that the matter is, in essence, fairly straightforward; namely, whether it is right for a person who has been deprived of his liberty to have to pay for the period in which he is subject to authorised detention. I think it would be entirely accurate to reflect our Committee stage by saying that we on these Benches feel that that would be wholly wrong and that the Government are of a different view. There are two reasons for bringing this matter back. The first is to underline its importance. We are talking about people in care homes and hospitals who are not free to leave and who are therefore unable to remove themselves from the situation. They are being detained and having to pay for it, and, in our view, that is simply wrong. It places them in a unique position in that they are unequal to anyone else who is lawfully detained. The detention is subject to Article 5 of the European Convention on Human Rights, as is detention under the Mental Health Act. Article 14 prohibits unjustified discrimination in the application of the other articles, including Article 5. There is not necessarily any difference between people who are detained under Bournewood provisions and people in the same accommodation who are looked after under Section 117 of the Mental Health Act. They may both lack capacity, be compliant and have a mental disorder or disability and need residential care—perhaps a high level of care—and they can both be subject to legislation in their own interests; yet one person would be charged for being there and another person would not. Not surprisingly, this point was picked up by the Joint Committee on Human Rights in its report on the Bill. The committee states at paragraph 91: "““In our opinion, to charge someone for accommodation in which they are deprived of their liberty potentially engages civil rights and obligations, and therefore the right of access to a court to determine those rights under Article 6 of the Convention. ""There is a potential discrimination for the purposes of Articles 5 and 6 and Article 14, in that a person deprived of their liberty in their own best interests in a hospital will not be charged for the detention whereas a person deprived of their liberty in their own best interests in a care home will””." The two other points that I wish to raise were matters that we did not get a chance to talk about on the previous occasion because we were rather hurried. I refer to the purpose behind the amendment. In her reply to me last time round, the noble Baroness said that, if we were to make the change that I was suggesting so that such care was free, there would be a perverse incentive for relatives to ensure that their relatives came under the Bournewood provisions in order to evade paying for the care. I am not wholly convinced by that argument. I can see why the Minister made it, but our reason for bringing forward the amendment is to get relatives and everyone else to look at the standards of the care packages that are provided for people who lack capacity. My second point concerns the status of independent care homes. This time, the amendment would ensure that, when a person was deprived ofhis liberty, the supervisory body would make the arrangement and contract with the care home. The provisions to safeguard the Bournewood-type patients throw into stark relief the fact that residents in independent care homes are not protected by the Human Rights Act in the same way as patients in hospitals or residents in local authority homes. That is because independent care homes are not considered to carry out public functions. It seems rather irrational that a care home manager in one establishment can identify a potential deprivation of liberty and yet such deprivation may be treated completely differently elsewhere because the place in which it is happening is not deemed to be carrying out a public function. For those good reasons, I thought that I would again try to persuade the Minister to think about the matter and perhaps to persuade her colleagues that there may be a bit more at stake here than simply public finance. I beg to move.