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

My Lords, I thank the noble Earl and the noble Baroness for their questions and their usual forensic way of drawing the House’s attention to the issues raised by the regulations. They are indeed short regulations with a huge job to do. It is right for them to raise a number of questions, and I hope that I will be able to answer them in my remarks. The noble Earl asked about the CQC’s role applying only to hospitals and care homes and not to PCTs and LAs. The CQC will be monitoring the activity of PCTs and local authorities as part of its wider role in monitoring the activity of PCTs, which will be obliged to report to the information centre about their activities in relation to the safeguards. On the administrative process, the regulations complement the powers that the CQC has under the Health and Social Care Act 2008. In particular, they place specific duties on the CQC in relation to the safeguards given by Schedule 1A to the Mental Capacity Act. The noble Earl raised the issue of a duty to visit and accommodate and asked about people running hospitals and staff issues. The CQC has the power to monitor hospitals as part of its wider functions and now, specifically, in relation to the safeguards. Interim monitoring arrangements will apply during 2008-09 until the new registration is implemented. That will include all the individuals involved in the MCA DoLS. On monitoring and reporting, the protection and promotion of human rights throughout health and adult social care is, as we know, at the heart of the CQC’s work. Its role regarding the MCA DoLS will be to monitor the system run by local authorities with social services responsibilities and primary care trusts. The CQC takes its role in monitoring the operation of deprivation of liberty very seriously as part of its overall aim of driving up standards of care. It will intervene where it believes that standards of care are failing and, where necessary, take appropriate action. The CQC and the Department of Health are working together to ensure a robust process and methodology to monitor the operation of MCA deprivation of liberties, which will take place from 1 April. That will include a routine programme of visits and information-gathering under existing systems on 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. The CQC has made a commitment to include a reference to MCA deprivation of liberty in its annual report to Parliament 2008-09. I am not sure that the noble Baroness will regard that as sufficient, so I undertake to take up her last comment. The noble Earl, Lord Howe, raised the issue of advocates and personal representatives and asked why they are not mentioned in the regulations. We have spent a great deal of time discussing that. The training and monitoring of advocates is already established as a result of their being in place since April 2007 under the Mental Capacity Act. There is local monitoring via those who have commissioned the services. Representatives have a duty to have regard to the code of practice and must be family members who will be code advisors and will be monitored by the monitoring authorities and supervising bodies where necessary. Of course, that issue can be raised with the Court of Protection. The noble Earl also raised the operation of Schedule 1A. Monitoring authorities and supervisory bodies will comply with the legal requirements by completing the standard forms made available to them by the department and supervisory bodies, which are returned for data collation quarterly. All the processes generated by the safeguards have been captured to offset the need for a separate set of standards and national minimum standards. The noble Earl asked about privately funded people. The answer is no. PCTs and local authorities have been given money to cover the estimated number of assessments, irrespective of whether they are publicly or privately funded. They have been given approximately £12 million in England and Wales for 2009-10, so no levy against the provider is anticipated to be required. I will need to write to the noble Baroness and the noble Earl about what would happen if the assessed numbers were exceeded. The CQC will use the data collected by the information centre for health and social care to develop an evidence base to trigger additional fieldwork activities, as I have already said. This information will include the number of requests, as we have discussed already, as well as the number of rejections and the reasons why the deprivation of liberty was not granted. This is part of developing an evidence base, which should enable the commission and local performance management agents to target the areas that they need to inspect. The noble Baroness, Lady Barker, mentioned reporting. There is a power in the regulations for the Secretary of State to request information from the CQC as and when he wants. That will allow him to request information between annual reports, where this is already mentioned, as specified in the regulations. I have tried to cover most of the points that have been made. The noble Baroness, Lady Barker, also asked how the CQC will undertake its duties and whether it will pick up cases where authorisation should have been granted but was not. Third parties can seek an assessment at any time, even where an assessment has previously been made. Third parties include the CQC, and we hope that that, combined with data collection, will allow the CQC to be aware of how many assessments have been granted, how many declined, and why. On the 28-day disclosure period, as the noble Baroness knows, we removed it from the regulations as a result of the consultation, which indicated that it would be more appropriate for the CQC to determine what constitutes a reasonable timescale in which to request information. It might wish to request urgent information immediately and not be bound by the 28-day disclosure period. The CQC has general powers to request information under the Health and Social Care Act 2008, and failure to provide information when requested under these powers could constitute an offence. Therefore, an additional requirement on the monitoring arrangements was not considered necessary or helpful. As I said in my opening statement, these safeguards provide important protection for some of the most vulnerable people in our society. They add to a raft of measures that we recently put into place to drive up standards and improve the quality of care. Fundamentally, they ensure that some of our most vulnerable people receive better care and protection. By providing independent oversight of the safeguards, I hope that these regulations, along with the powers in the Health and Social Care Act 2008, will ensure that the deprivation of liberty safeguards operate safely and effectively, and I urge the House to accept them. Motion agreed. Sitting suspended.