Mental Health Bill [HL]

My Lords, I am grateful to the noble Baroness for raising the issue again. I agree that it is very important that relatives and friends take the trouble and time to ensure they are content with the packages of care provided in care homes, wanting them to be of the highest possible standard. From her experience of chairing a health authority, the noble Baroness will know how important it is that those who may be extremely vulnerable get the highest quality of care. We are fortunate in the quality of care that many of our elderly people enjoy. Nonetheless, we must be extremely vigilant. As the noble Baroness would expect, I looked very carefully at the Joint Committee on Human Rights report published on 4 February. There is a bit of confusion in the report on which I need to get back to the committee. It refers to Article 6, which concerns the right to fair trial. As the noble Baroness will know, that is not linked to the process of means testing to determine the extent to which someone contributes to the cost of their care in a care home. Access to justice, to a court, to challenge a deprivation of liberty authorisation is provided for with non-means tested legal aid available for the purpose. I just wanted to put that on the record. The NHS body or local authority that authorises the deprivation of liberty may well also be involved in commissioning care arrangements, but it will not always be so. As the noble Baroness said, where private arrangements have been made between family and a care home, the situation will be different. We do not consider, having provided additional safeguards to protect human rights of people who are unable to consent to arrangements for their care, that that is a reason of itself to alter the arrangements to apply commissioning and funding of health and social care for individuals. NHS care and treatment is free at the point of delivery, but major implications of providing free care and treatment would arise in relation to care homes. People receiving those new safeguards will largely be those with severe learning difficulties or older people with severe dementia or similar problems. Many such people will be living in residential care settings and any financial contribution that they make is determined by the national policy of means testing. For some individuals, the need to ensure their safety may have led to greater restrictions in their best interest which amount to what has been described as a deprivation of liberty. But I emphasise—I want to say this very clearly—that if a person is in a care home and subject to a standard authorisation to deprive them of their liberty, that can be only because an independent assessor has said that it is necessary in their best interests to keep them safe. That is a critical part of why the provisions are so important in the context of the Mental Capacity Act. It is part of their care package to ensure that they are safe and well cared for that an element of deprivation of liberty must take place, but the safeguards to protect human rights are now built into the Bournewood provisions. Because of that, we do not believe that that should lead to changes in how their care is commissioned and funded. We think that it would provide unacceptable inequities between those care home residents who are deprived of liberty and those who are not. In many cases, deprivation of liberty does not result in someone being unable to do many things. It may be a deprivation of liberty only in certain circumstances: for example, when they need to eat or in the evening, if they are prone to wander. That is a very different set of circumstances from that which might prevail under mental health legislation. For those reasons, although I completely understand why the noble Baroness has brought it back, I am not inclined to accept the amendment. I know that the noble Baroness accepts that the provision is part of providing high quality care for the individuals concerned. I hope that she will withdraw the amendment.