Motion to Approve
Moved By
That the draft regulations laid before the House on 23 February be approved.
Relevant Document: 7th Report from the Joint Committee on Statutory Instruments.
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 a 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 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.
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.
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.
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.