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

My Lords, these are important regulations, and I thank the Minister for introducing them. Their background is familiar territory to many of us. The judgment issued by the European Court of Human Rights in the Bournewood case gave rise to the provisions inserted by the Mental Health Act 2007 into the Mental Capacity Act 2005. Those provisions set out a framework for formally approving a situation in which an individual lacking mental capacity and receiving care or treatment may be deprived of liberty for their own protection. The framework comprises a series of safeguards designed to make sure that no one is deprived of their liberty inappropriately and therefore contrary to their human rights. The regulations place a duty on the Care Quality Commission to monitor and report on the way in which the safeguards are being operated. If we look at how the system is to work in practice in relation to a given individual, we will swiftly recall that the approval process involves two parties: the managing authority—in other words, the hospital or care home looking after the person—and the supervisory body; that is, the PCT or local authority. The managing authority makes an application to the supervisory body to authorise the person’s deprivation of liberty. The first and most obvious thing that strikes one from reading the regulations is that the CQC’s monitoring role appears to apply only to the actions of hospitals and care homes and not to the way in which PCTs or local authorities fulfil their part of the process. Can the Minister comment on that? For the MCA safeguards to work, they require not only the hospital or care home to implement the process properly but also the PCT or local authority to do so, and to do so in a manner that is sufficiently sensitive and expeditious to meet the circumstances of the particular case. Every case will involve, by definition, someone who is extremely vulnerable. Therefore, the whole system, not just half of it, has to work smoothly and well. Section 46 of the 2008 Act requires the CQC to, ""conduct reviews of the provision of healthcare provided or commissioned"" by PCT's, and, ""reviews of the provision of adult social services provided or commissioned"" by local authorities. Is the Minister satisfied that the essentially administrative processes involved in implementing the Mental Capacity Act safeguards are covered by the wording in the 2008 Act? If she is, that is well and good; but why then is the 2008 Act apparently inadequate for enabling the CQC to do the things specified in these regulations? Chapter 6 of the Act already grants the commission very wide-ranging powers in relation to inspecting hospitals and care homes. We then see that the duty placed on the CQC focuses on a duty to, ""visit and interview persons accommodated in hospitals and care homes"." Yes, to be sure, the individuals affected are absolutely central to the matter, but what about the people running the hospitals and care homes? They are the ones who are technically on the line here and whose adherence to the rules needs to be accurate if the safeguards are to work as intended. These people are the ones who need checking but they are not mentioned. Why is that? Again, if we look at the wording of the Health and Social Care Act we might conclude that the CQC already has the power to interview any person who manages a regulated activity. We find this in Section 63. But Section 63 also empowers the commission to interview, ""any person receiving care at the premises who consents to be interviewed"." If these regulations essentially repeat and duplicate that provision, as they apparently do, why do they not also repeat and duplicate the provision relating to hospital and care home managers? One of the safeguards built into the system is to make it mandatory for the individual whose liberty has been removed to have a representative to speak and act for them. There is no mention of advocates or personal representatives in these regulations. One could imagine the commission going into a care home and interviewing a resident there who is deprived of liberty and who is also the subject of a relevant authorisation. The interview could be entirely reassuring as regards the quality of that person’s life and the way in which that person perceives the regulatory process to have been complied with. But if the individual is someone who lacks capacity, it may equally be that he or she is unable to make a balanced judgment about the circumstances of their detention or the way in which the home had acted in implementing the safeguards. It would be unwise for the commission to rely fully on anything that it was told by the individual. The person best placed to give a balanced judgment would be the advocate or representative; but as things stand, the regulations do not appear to allow such an interview. I wonder whether the Minister could comment on that, as I am sure that this cannot be the Government’s intention? I am probably alone in thinking that there is a confusion at the heart of what the CQC is meant to be doing as it fulfils its monitoring role in this area. The commission itself has said that the focus of its monitoring needs to be on the experience of people with limited capacity when deprivation of their liberty is being considered or authorised, and on their quality of life. But is that right? The Minister in another place, Phil Hope, when the matter was debated on 16 March, stated: ""I would like to make it clear that the commission’s principal role in relation to the safeguards will be to monitor hospitals, care homes, PCTs and local authorities for compliance with the processes set out in schedule 1 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".—[Official Report, Commons, Third Delegated Legislation Committee, 16/3/09; col. 4.]" The noble Baroness said something similar just now. Interviewing the patients of hospitals and the residents of care homes and finding out about their quality of life will only get one so far towards monitoring the way in which the processes laid out in Schedule 1 to the Mental Capacity Act have been operated. The question that is central to that issue is surely this: do the people managing the hospital or care home fully understand what the law says, and are they implementing it in the correct way? The perceptions and experiences of the individual patient or care home resident are relevant to reaching a view on that issue, but they are not by any means the whole story; nor can the key question be answered by inspecting someone’s health or care records. Obviously, the CQC will be an independent body and the Minister cannot speak for it, but I should be very grateful if she could indicate to me what the CQC believes its monitoring role will entail in practice in terms of the actions it takes and the questions that it asks on the ground. The other thing that strikes me about this extension of the commission’s role is that in one important sense it represents a departure from its main remit as health and social care regulator. Contrary to some people’s perceptions, the CQC will not be an amalgam of the Healthcare Commission, CSCI and the Mental Health Act Commission. The reason why it is not is that it is not going to concern itself with monitoring and assessing the quality of care but rather with monitoring and assessing adherence to minimum standards of care. Those two things are very different, and the difference will become apparent in the way that the CQC actually operates and reports on the work that it does. Yet when it comes to the Mental Capacity Act safeguards, it would appear that we are not asking the CQC to monitor adherence to minimum standards; we are asking it to assess the quality of care. In the nature of the matter at issue, that must be so. I simply repeat what the CQC is reported to have said in the response to the recent consultation—that the focus of its monitoring needs to be on the experience of people with limited capacity when deprivation of their liberty is being considered or authorised, and on their quality of life. How can the commission do that by reference to a set of minimum standards? If Schedule A1 to the 2005 Act is to operate as intended, it will depend on those on the ground implementing its provisions in the least burdensome, most sensitive and most proportionate way. One can only reach a judgment on whether or not this has happened by reference to subjective and often nuanced considerations. This type of monitoring strikes me as different in kind from monitoring minimum standards of hygiene or nutritional care, for example. Can the Minister comment on this? We know, because the CQC has told us so, that it intends to adopt a risk-based approach to inspection and enforcement. At the same time, a hospital or a care home which may otherwise be providing excellent standards of care might inadvertently allow a situation to arise which amounted to depriving someone lacking full capacity of their liberty. It is not necessarily very difficult for that situation to arise, and the risk of it arising is a different sort of risk altogether from the risk of an establishment providing inferior care. It is certainly a very different sort of risk from the risk of spreading a healthcare-acquired infection, which will be the main focus of the CQC’s attention in the immediate term. If that is so, how confident can we actually be that the CQC will be able to monitor the operation of the Mental Capacity Act safeguards in an effective way? The CQC has said that its monitoring role in this area needs to be distinct from its wider regulatory role in health and social care. However it has also said that in practice the monitoring of deprivation of liberty under the Mental Capacity Act will not be a separate activity for it but rather integrated into its broader remit. Against that background I am not sure that we can look forward to anything more than a tokenistic measure of monitoring in this area, unless there is some as yet unknown way in which the CQC will be able to home in on those hospitals and care homes where, for whatever reason, a heightened level of risk of poor compliance exists. The response to the consultation suggests that the CQC intends to rely on the department’s defined data returns from councils and PCTs as the "statistical context" for its monitoring role. Quite what that means is unclear. If it means that those hospitals and care homes submitting the greatest number of applications for deprivation of liberty are the ones on which the monitoring effort should be principally directed, that would seem to be the exact opposite of good logic. The hospitals and care homes submitting the greatest number of applications are the ones that will be most aware of their responsibilities under the law and that are therefore most likely to be complying with it properly. Certainly they need to be monitored, but what about all the rest? It is the hospitals and care homes from which PCTs and local authorities never hear a dickey bird that are the ones to worry about most. The regulations themselves encourage the CQC to identify individuals that it considers should be the subject of an assessment under Schedule A1 to the Mental Capacity Act. In other words it is not just a case of monitoring those who have been the subject of an assessment; it runs broader than that. It would be helpful to hear precisely how the CQC intends to identify how best to direct its efforts in this area of its remit and how its risk-based approach will work. Finally, I should like to turn to a separate issue and ask the Minister what the position is as regards residents of private care homes who are self-payers. Unlawful deprivation of liberty is as much of a possibility for those people as it is for people whose care is publicly funded. There is a somewhat odd feature of the regulatory system here. In the case of a care home, the local authority is still the supervisory body even where it has not commissioned the care. Equally, if a private patient in an independent hospital is the subject of a relevant authorisation, it will be the PCT that assesses and grants the authorisation. So a PCT might be commissioning no NHS care whatever from a particular private hospital, yet for the purposes of these regulations it would find itself having to make an assessment and a ruling on the care and treatment of an individual being looked after in that hospital. So be it; but it does give rise to a question about the administrative and managerial costs associated with Mental Capacity Act authorisations and whether any sort of distinction will be made between authorisations involving publicly funded patients and care home residents and individuals who are privately funded. I have seen no mention made of a charge from a PCT or a local authority being in prospect for publicly funded patients. But where the individual is privately funded, will the Minister confirm that the local authority or PCT, as the case may be, will not be able to levy a fee or a charge on the private provider for processing the application and granting the authorisation? In this area of regulation, I see no obvious grounds for doing so, but it would be helpful to have her comment on that.