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

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 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 the 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 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 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.