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

My Lords, I, too, thank the noble Baroness, Lady Thornton, for introducing the regulations with her customary thoroughness and attention. By the time one gets to regulation, it is possible to be so deeply into the detail that one can lose sight of the big issue. It is important to start by stating that we are talking about the only circumstance in which a person can be held against their will in an institution and be required to pay for that detention. It is really serious that someone should ever be in that position. Those of us who debated the case that gave rise to this, which was known as the Bournewood gap, and listened to stories from people throughout the passage of the Mental Capacity Act and Mental Health Act understand how desperate and hopeless people can feel in that situation. They did not have a right of access to help, which anybody else being detained in any other circumstances would have. That is why it is important. We have a problem with these regulations, which on first sight are rather slim. They are but one aspect of the implementation of the Mental Capacity Act, which has been extensive. The work that has been done since to revamp the system of appointees, donors and the Court of Protection has been extensive, and this is one part of it. The principal problem was identified by the noble Earl, Lord Howe. It is about conferring powers on a body—the CQC—which is comparatively new, but it is not yet clear to anyone quite how that arm’s-length body will go about undertaking its duties. Having read the consultation documents, the responses to them and the regulations that have been produced in the light of them, there remains one central concern. The organisations that represent people who are most likely to find themselves deprived of their liberty fear that the CQC will not pick up on cases where a deprivation of liberty authorisation should have, but has not, been requested. What will the CQC do when it thinks that someone is being deprived of their liberty? Will it monitor cases where a deprivation of liberty authorisation was not granted but only because it was advised that there should be a change to a person’s care plan to give them a less restrictive alternative? That is the central concern that is not answered by these regulations, and therefore it is right that we continue to ask questions of the Government. The noble Earl, Lord Howe, is right that the CQC will go about its work in a very different way from either of its predecessors. I am not sure, and will be interested to know, whether compliance with the law would be regarded as being a minimum standard. If it is, the duties of the CQC will become much more extensive than one might otherwise think. The organisations that responded to the consultation have a number of remaining questions. The estimates of the number of people likely to fall into this category seem somewhat low. I know that the Minister in another place, Mr Phil Hope, explained that there was an expectation that, as the system was introduced, care home owners, hospitals, PCTs and strategic health authorities overseeing them would become more familiar with the concept of deprivation of liberty and would therefore expect the numbers to go down. That is a triumph of hope over experience. I welcomed what the noble Baroness had to say about the CQC being required to conduct a series of sample investigations and the development of an evidence base. If, in the light of that, it becomes apparent that the government estimates are wrong, will there be a revision of the resources available to the CQC to pursue those matters? I note what the noble Earl, Lord Howe, said about the CQC's role. He is right to question the fact that the Bill does not say anywhere that the CQC should assess either PCTs or providers of MCA services. It should be able to do that. I am concerned that there is a cost attached to all this. At the moment, it is not clear where the cost will be borne. We should not overload the system such that we divert the CQC from doing the one thing that it will be uniquely placed to do: to talk to individuals in those homes who may lack capacity. It will have a right of access to them that no one else will have. What it does with that is yet to be seen. I have two questions. In the draft consultation, it was proposed that where there had been a deprivation of liberty authorisation, the CQC should investigate within 28 days. That was criticised by most of the respondents to the draft order—rightly. Depriving people of their liberty for 28 days is unacceptable. In response, the Government removed the 28-day limit from the regulations. That could be read in two ways: either as a weakening of the regulations or as a strengthening of them in that the Government might anticipate that the CQC would act much more rapidly and get things done more quickly. If that is the case, can the noble Baroness tell us what the Government expect to be the average response time of the CQC? That is a key matter that determines what the resources will be. My final point concerns reporting. The noble Earl, Lord Howe, was right: this is an activity of a different magnitude and importance from that which much of the CQC's work will be about. I understand that the CQC will report to Parliament and that reports on the regulations will form part of the CQC's report. It will be regrettable if this matter—a matter of such importance, which cannot really be addressed in any other way—were to be lost in the midst of a general report. Does the noble Baroness agree that there ought to be separate reporting on an annual basis to Parliament? After all, we are talking about vulnerable people who lack mental capacity being deprived of their liberty. That is one of the most serious possible situations in all of health and social care.