Mental Health Bill [HL]

My Lords, let us begin from the principle that, if an application is made for an authorisation of deprivation of liberty and it is not granted, the deprivation of liberty should not take place, as it would be unlawful. We consider it extremely unlikely that any managing authority would recognise and comply with a duty to request an authorisation of a potential deprivation of liberty and then go ahead with an unlawful deprivationof liberty if the authorisation was not granted, particularly—this is an important safeguard—as the outcome would be known by the commissioner of the care, by the friends, by the family, by the person concerned and by any IMCA who was involved. The first two sub-paragraphs of the amendment do the same as the current paragraph 58. My difficulty comes with what follows in sub-paragraphs (3) and (4), because it does not work. They assume that if the authorisation has been turned down the reason is that the proposed care is not in the person’s best interests, but that might not be the case; for example, the assessor might have concluded that the care being suggested would not of itself be a deprivation of liberty, in which case authorisation could not be granted and would not be needed. They might decide that the use of the Mental Health Act needs to be considered. They might decide that the person does not have a mental disorder or that the person has the capacity to consent. The sub-paragraphs assume and indeed require that the person will continue to be cared for by the managing authority that made the application, but that may not be in the person’s best interests. If authorisation is not granted, decisions will need to be made about how to avoid the deprivation of liberty. The assessor’s report will inform the decision, but there are likely to be a number of options. The person may need to be in a different care home or in hospital. The person may remain in the same place but thecare plan may need to be reviewed or a proposed restriction not instituted. The person may remain in their own home. The commissioning and the care planning decisions will have to be taken in the person’s best interests, as we have already discussed, with the views of families, carers and friends taken into account. Our difficulty is that we are dealing with many varied circumstances. I have tried briefly to illustrate some of them. Undoubtedly, cases and circumstances will arise that I have not outlined and we cannot foresee, and the difficulty is that we cannot define in statute what should happen in every case. That is why we have taken the choice to address the issue of what should happen when authorisation is turned down in the code of practice. I will read a little bit: "““The managing authority is responsible for ensuring that they do not deprive a person of their liberty without an authorisation. The commissioners of care are responsible for ensuring that the care package is commissioned in compliance with the Bournewood safeguards. The action they will need to consider if a request for an authorisation is turned down will depend on the reason why the authorisation has not been given””." We then give examples, some of which I have indicated. The monitoring of the safeguards that we will establish will be a further protection against unlawful deprivation of liberty. We also state in the code that the supervisory body should consider alerting the monitoring body if it is concerned that unlawful deprivation of liberty will not be avoided. On the basis that there are so many different circumstances and that the code, which has statutory effect, will tackle that effectively, we believe that there is nothing between the noble Baroness’s objectives and mine, but that we need to tackle this issue in the way that I have suggested. I hope that she will feel able to withdraw her amendment.