Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008

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Baroness Thornton
rose to move, That the draft regulations laid before the House on 20 May be approved.

The noble Baroness said: 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 safeguards that provide for the lawful deprivation of liberty of those people who lack capacity to consent to arrangements made for their care or treatment in hospitals or care homes but who need to be deprived of liberty in their own best interests.

Let me make clear that the deprivation of liberty safeguards are about protective care. They are not about giving health and social care professionals arbitrary powers of detention; quite the opposite. They put in place legal safeguards to ensure that people are not deprived of their liberty in hospital or care home settings unless it is absolutely necessary to do so, in their own best interests. I cannot stress enough that they are to be used as a last resort, where it is only possible to provide care or treatment for people who lack capacity in circumstances that amount to deprivation of liberty. They are not to be used as a form of punishment or for the convenience of professionals, carers or anyone else.

The safeguards are a response to the decision of the European Court of Human Rights in the well known case of HL v UK, more commonly referred to as the Bournewood judgment. As many noble Lords will know, this case involved an autistic man who was admitted to Bournewood Hospital on an informal basis and remained there for several weeks. He was prevented from leaving the hospital and denied access to his carers, despite the fact that he was not detained under the Mental Health Act 1983 or any other legislation. The European Court found that he had been unlawfully deprived of his liberty in violation of Article 5 of the European Convention on Human Rights.

Specifically, the safeguards put in place mechanisms to prevent an unlawful deprivation of liberty. These mechanisms include a requirement for hospitals and care homes to seek authorisation from their PCT or local authority if they believe that they can only care for a person in circumstances that amount to a deprivation of liberty. This will prevent health or social care practitioners from making arbitrary decisions about depriving someone of their liberty, as in the case of HL v UK. The safeguards also include a provision for people deprived of liberty to challenge their deprivation in a court of law, as well as requiring a robust assessment process to be undertaken to determine whether it is appropriate to deprive a person of their liberty under a standard authorisation.

Before outlining the provisions in the regulations, I will briefly explain some of the processes in the Act and some of the key terms that I have already used, which will be conducive to the rest of the debate. Under the Act, care homes and hospitals—the two settings in which the safeguards apply—are referred to as “managing authorities”. PCTs and local authorities are termed “supervisory bodies”.

To deprive someone of liberty, managing authorities must apply to supervisory bodies for a deprivation of liberty authorisation. There are two types of authorisation: urgent and standard. A standard authorisation can only be issued if a series of six robust assessments indicates the need to do so. We envisage this to be the most common type of authorisation, applied for in advance of a person being deprived of liberty after careful planning methods have indicated that less restrictive measures are no longer possible. The alternative, an urgent authorisation, will be issued only in rare circumstances, where it becomes apparent that there is a need to deprive someone of their liberty immediately, in their own best interests.

The six assessments are: the age assessment, the no refusals assessment, the mental capacity assessment, the mental health assessment, the eligibility assessment and the best interests assessment. The regulations underpin this assessment process. They provide the eligibility requirements and selection criteria for deprivation of liberty assessors. This is important, as it will ensure that assessors have the skills and experience needed to undertake each of the six assessments.

The regulations also set out the timescales within which assessments must be completed, and specify the information to be submitted with a request for an authorisation of deprivation of liberty. Finally, they put in place arrangements for when there are disputes about the place of ordinary residence of a person who is to be deprived of liberty. They set out that the local authority that receives the request for a deprivation of liberty authorisation must act as the supervisory body until the dispute is resolved. This is essential, as it will ensure that such disputes do not cause a delay in providing an authorisation for a deprivation of liberty.

The safeguards will go “live” from next April, but it is important that these regulations are in place now to enable us to work with training providers to put in place training for assessors, and to allow those people who will be implementing the safeguards to become familiar with the legal framework under which they will be working. It is essential that we have a trained workforce in place, in sufficient numbers to deliver the safeguards in a safe and managed way.

The deprivation of liberty safeguards are an important measure to guard against further human rights violations. They add to the raft of measures we have put in place recently to drive up standards and improve quality of care. Fundamentally, they ensure that some of the most vulnerable people in our society receive better care and protection. We have consulted widely with stakeholders and have received widespread support for these measures. I commend the regulations to the House.

Moved, That the draft regulations laid before the House on 20 May be approved. 21st Report from the Joint Committee on Statutory Instruments.—(Baroness Thornton.)

Earl Howe
My Lords, the House will be grateful to the Minister for introducing these regulations in her customary clear and helpful way. I do not want to detain noble Lords unduly, as we support the regulations. However, they cover some issues of considerable importance, and I should like to record a number of comments and to ask a few questions.

My first comment relates to the code of practice which lays down the procedures which have to be followed in order that the new standards on the deprivation of liberty are met. I welcome the way in which the consultation on the draft code of practice produced changes to the final version, in particular the clearer role for the family of a person whose liberty is removed, the ability of a carer or family member to apply for an assessment on behalf of such a person, the provisions relating to the appointment of an independent mental capacity advocate and the tightening of the conditions surrounding emergencies, where an urgent authorisation is called for. As was all too apparent from our debates on what is now the Mental Capacity Act, the code of practice is a cornerstone of the way in which the law in this area will operate, and I believe that it now commands wide acceptance.

However, one issue has been brought to my attention by the National Autistic Society. Point 4.14 of the code provides that the supervisory body should consider whether any appointed assessor has experience with working with the user group concerned in each case. People with autism are noted as an example of a service user group. That is welcome as far as it goes, but it is disappointing that it does not take the form of a legal requirement. Autism is a complex condition. Its diagnosis depends on skilled and experienced professional input. The NAS makes the point, and I agree, that it is not enough to provide merely that the supervisory body should consider whether an assessor has the relevant experience.

Part 3 of the regulations relates to the selection of assessors. The best interests assessment must be undertaken by an approved mental health professional, social worker, nurse, occupational therapist or chartered psychologist with the skills and experience specified in the regulations. However, Regulation 12(1) stipulates that anyone who is,

“involved in the care, or making decisions about the care, of the relevant person”,

cannot be appointed to undertake this assessment. I seriously question the appropriateness of this provision. Numerous best interests determinations on other matters are made by professionals, such as social workers, for people in their care. There does not seem to be any automatic conflict of interests if a person's social worker, for example, makes a best interests determination for deprivation of liberty safeguards for someone in a care home. If the system were to allow this, it could make the process more efficient, as the assessor would know the person and other people involved in their care, and it might well be more comfortable for the person being assessed if they knew the assessor. However, the decision about who to appoint as best interests assessor would remain with the supervisory body, so this would still allow a different assessor to be selected in certain situations; for example, where there were disputes within a family, the professional was already known to the family and might be viewed as not being impartial.

Regulation 16 in Part 5 contains requirements relating to the information which has to be provided in any request for a standard authorisation. Paragraph (2)(a) refers to relevant medical information. One could also make a good case for saying that any relevant social care information should be supplied. Paragraph (2)(e) refers to the person's communication needs, which seems unsatisfactorily vague. I should like to see a reference here to whether the person's first language is not English and whether they have interpretation needs. It would also be helpful to see included in these provisions a requirement for any written statements that the persons may have made when they had mental capacity. Section 4(6)(a) of the Act covers best interests. An important part of the best interests determination is what the person, when of sound mind, says he wants. A written statement is a way of enabling the person to plan ahead, should he lose capacity in the future. Paragraph (2)(j) relates to the name, address and telephone number of people with a possible direct interest in the welfare of the person, such as a court-appointed deputy or the donee of a lasting power of attorney. It would be good to see added to the list a reference to any other representative whom the person had for any previous authorisations of deprivation of liberty.

I also have questions about the broader picture. When the deprivation of liberty safeguards were consulted on, various organisations raised concerns about the resource implications for PCTs and local authorities. How have the Government reacted to those concerns? It is estimated that 80 per cent of people who are assessed as a result of the deprivation of liberty safeguards are in the care of local authorities. It is also estimated that the cost for local authorities and the NHS of providing these assessments will be in the region of £13.6 million in the first year, which means that 80 per cent of the cost will fall to local authorities. What consideration has been given to ensuring that local authorities can meet these costs?

The problem here is that it is difficult to estimate with confidence the number of people who might need to be covered by the deprivation of liberty safeguards. I note that doubts were expressed about the validity of the figures contained in the impact assessment. The Government believe that there are likely to be very few people of unsound mind who lack capacity and whose situation will bring them within the scope of these regulations. The estimate that we have appears to be based on an approximation of numbers from one local authority, from which a national total has been extrapolated. It would be helpful to hear from the Minister what the Government's best guess is on the numbers.

The uncertainty over numbers and the resource implications makes it all the more important that we are reassured, after a suitable interval, that the regulations are working as we all want them to. When are the safeguards likely to be reviewed to ensure that they are being implemented effectively?

Baroness Barker
My Lords, it is a pleasure to return to this legislation, of which the House should be proud. It is immensely gratifying to see that the spirit in which the Bill was addressed by noble Lords on all sides of the House is also displayed in the Government’s consultation on the code of practice. During the passage of the Bill it was acknowledged that, good though the legislation was, the code would be the key to whether it would work as intended in practice.

Like the noble Earl, Lord Howe, I supported much of the draft code of practice and support much of the revised code of practice, which has been changed following the consultation. The clarity around the concept of ordinary residence will make a significant difference to people whose liberty might be restricted.

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I also think that it is right that the code of practice quotes examples of situations in which a deprivation of liberty would not take place. For example, locking up a home may not be a deprivation of liberty but may be a protective measure that is in the best interests of the people who live there. That is very helpful.

I wish to raise one or two concerns. The department is now saying that it has moved away from the position that it previously took, that a person could not be a best interests assessor if they worked at the same hospital or in the same care home as the person for whom an authorisation is being requested. I have considerable reservations about that, because best interests assessments are now not solely to be confined to welfare; they will include financial matters. I worry that we may be setting up situations in which there are conflicts of interest. An assessor who works for a home or a chain of residential homes may not be directly involved in a person’s care; the person may be looked after by other staff. That situation seems more likely to happen in small residential homes. I am concerned about people being put under pressure to arrive at a best interests assessment that is not right for the person in their care.

I, too, want to consider the department’s assessment of the likely number of applications. It was helpful to see the department’s calculations, almost like long division, on the subject. I have a similar question to that asked by the noble Earl, Lord Howe. Paragraph 30 states that a large part of the assessment of numbers is based on extrapolation from one authority. I wish to go further and ask whether it is the same local authority that was used as a basis for calculations during the passage of the Bill, which was Hampshire. The reason for asking for that identification is that local authorities vary greatly, as do their populations. If one did an assessment of an inner-city borough such as Newham, with its age profile, one may well come up with a completely different set of stats from somewhere on the south coast, where some people live to a great age.

The second issue is the point made in annexe A1.2, which gives a breakdown of the calculation of the time needed by different professionals to come up with an assessment. It includes eight hours of an approved social worker’s time to carry out a best interests assessment, have discussions with the family and write a report. That is one working day in which to do quite a complex task. In addition, it is calculated that there would be three hours of time from a senior manager of the supervisory body—a PCT or local authority—to arrange assessments, determine the representative, keep records and make notifications of decisions. That is half a day. That seems a remarkably short time in which to make decisions that have a huge impact on the well-being of individuals and to get the co-operation of all the many other people and service providers to ensure that deprivation of liberty is not taking place.

I, too, welcome the statement from the Government that they are going to keep the matter under review, but I would like to know when they intend to carry out a review and how frequently reviews will be done. What will happen if, in the course of a review, it becomes apparent that a significant number of people are not being fully assessed and are being deprived of their liberty? What if it is not possible to make sure that our services comply with the European Court’s decision, simply because we do not have enough trained staff in place who are fully able to make the decisions in a thorough and timely way? I ask the noble Baroness to respond to those questions.

Baroness Thornton
Thank you, my Lords; it is nice to be back, in a way. I shall try my best to respond to the questions asked by the noble Earl and the noble Baroness. The best interests assessment was included to ensure the independence of the best interests assessor, and the mental health assessment will be included in that care. I assure the noble Earl that medical care includes social care.

The noble Earl asked about the requirement of social care information in Part 5 of the regulations. I shall expand on that. Regulation 16(2)(c) states that any relevant care should take it into account, as well as any relevant medical information. Regulation 16(2)(e) refers to communication needs. We would expect that to include, for example, consideration of whether English is the person’s first language.

I think these points were included in the questions asked by the National Autistic Society, from which I also received a very helpful briefing. I was asked why the regulations do not explicitly state that assessors must have experience of working with the service user group of the person being assessed. The regulations specify that supervisory bodies must be satisfied that assessors have the skills and experience appropriate to the assessment being carried out. That means that supervisory bodies must consider each case on an individual basis and ensure that every person assessed for a deprivation of liberty authorisation has an assessor who is right for their particular case.

The code of practice reinforces that principle and makes clear that the supervisory bodies should consider a number of factors when selecting assessors, including the assessor’s experience of working with the person’s service user group, the person’s cultural background and their communication needs. We have consulted a wide range of stakeholders to develop the code and the regulations, and we are confident that the approach we have taken is widely accepted and will work.

When will MCA DOLS be reviewed? Sorry about the initials. The safeguards will be reviewed, but we do not have a definite date for the review, so I can see a Question coming up here. I shall pursue that. Both the noble Earl and the noble Baroness raised the issue of resources to cover the costs of the deprivation of liberty safeguards. We have announced funding for local authorities and PCTs to cover the cost related to our estimated number of assessments arising from the implementation of the Mental Capacity Act deprivation of liberty safeguards, and we have committed to covering the additional costs for the Court of Protection in relation to Mental Capacity Act deprivation cases. In the first year of implementation, 2009-10, costs are estimated to be £13.9 million. The costs are assumed to fall to a steady state of £4.3 million by 2015-16, based on around 7,000 assessments being required each year.

The noble Baroness, Lady Barker, is completely correct that this does not necessarily mean a deprivation of liberty. It might be one of a range of circumstances, as she said, which are about safeguarding people’s interests. Best interests assessors can be social workers under Regulation 5(2)(b) as long as they are not already involved in the person’s care, which is to ensure independence and ECHR compliance. The noble Baroness is right that the local authority is Hampshire, and the figures are based on a worst-case scenario from the Hampshire local authority.

I will return to the issue of independence. I looked at the code of practice to reassure myself that it was comprehensive. I will not take the House’s time by reading paragraph 4.13, but it has a very comprehensive list that is there to ensure that assessors are indeed independent and will give an independent view.

I hope that I have covered most of the points, but if I have not, I promise that I shall write to noble Lords. As I said in my opening speech, these safeguards provide important protection for some of the most vulnerable people in our society. By setting out the requirements relating to the assessment process and assessors, the information required for standard authorisations and arrangements for authorisation where ordinary residence disputes take place, these regulations will help to ensure that supervisory bodies and managing authorities have the information that they need to implement the safeguards in a safe and effective way.

On Question, Motion agreed to.