Clause 47
Mental Health Bill [Lords]
12:15 pm

Mental Capacity Act 2005: deprivation of liberty

Photo of Rosie Winterton

Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

I beg to move amendment No. 47, in clause 47, page 44, line 19, after ‘paragraph’, insert ‘42(2)(b),’.

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Frank Cook (Stockton North, Labour)

With this it will be convenient to discuss Government amendments Nos. 48 and 53.

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Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

The amendments have been tabled in response to concerns that were expressed in the other place. They will amend clause 47 and schedules 6 and 8 to the Bill.

Clause 47 will amend the Mental Capacity Act 2005 to introduce safeguards to protect the rights of a person who is deprived of their liberty. The new deprivation of liberty safeguards are necessary for people who lack the capacity to consent to arrangements made for their care. The measure is being introduced in response to the European Court of Human Rights 2004 judgment in the case of HL v. UK, which is commonly referred to as the Bournewood judgment. The Court identified the need for protection from arbitrary deprivation of liberty for people who have a mental disorder and who lack capacity to consent to arrangements made for their care, but who are not detained under the 1983 Act.

We considered the judgment and decided that the Bill needs to include formalised procedures covering who may propose admission, for what reasons and according to what criteria, and how those should be assessed. Limits must be placed on how long the deprivation of liberty may continue before a review, which will include a clinical reassessment that says that a person still has a mental disorder. There must be a right to have the lawfulness of the deprivation of liberty decided speedily by a court and for a representative who can offer a challenge on a person’s behalf to be appointed.

The proposed safeguards will address those matters. They will permit the deprivation of liberty only in circumstances in which that is necessary in a person’s own best interests and to protect them from harm, and when that cannot be achieved in a less restrictive manner.

The proposals will give vulnerable people the protections that they currently lack. The safeguards will give additional protection to those in a hospital or care home in circumstances that deprive them of liberty. The law will clarify for hospitals, care homes, service users and their families the circumstances in which a person may be lawfully deprived of their liberty. That will enable hospitals and care homes to ensure that they are acting lawfully.

The cornerstone of the new arrangements is that the deprivation of liberty will be lawful only if it is specifically permitted by a formal authorisation concerning a particular individual in a particular care home or hospital, or by order of the Court of Protection. An authorisation may be given only if six criteria—called “qualifying requirements” in the Bill—are met, and it will last for up to 12 months. Except for a short period in urgent cases, all authorisations must be given by the relevant authority on the basis of the decisions of a properly qualified assessor. The schedule calls such authorisations “standard authorisations”. The job of granting standard authorisations falls to “supervisory bodies”. For care homes, the supervisory body granting the authorisation would be the relevant local authority, for hospitals, it would be the PCT, and in Wales, the National Assembly.

The amendments to the Mental Capacity Act have been welcomed by all those who were involved with that legislation, not least the hon. Member for Tiverton and Honiton, who has taken great interest in this matter. Our amendments introduce a power to make regulations to reduce the maximum length of standard deprivation of liberty authorisations, as agreed in the other place, in response to concerns that authorisations could be granted for too long a period.

Before I come to the detail, I would like to explain our policy on the duration of authorisations. Our aim, which I am sure the whole Committee shares, is that if deprivation of liberty needs to be authorised, it should be for the shortest time possible. We will make that very clear in the Mental Capacity Act code of practice and in training facilities. In the other place, Baroness Ashton committed to strengthening that point in the code, and officials are working on a revised version, which will be subject to consultation. That is why we are setting the authorisation period on a case-by-case basis according to the best interests assessor’s recommendation.

The assessor will look at the person’s circumstances and the likelihood of change and make a recommendation based on their best interests. There are cases in which it will be perfectly reasonable to grant an authorisation for 12 months, and others in which the period will be much shorter because it may become possible, through rehabilitation and support, for the person to be cared for at home.

If a change in circumstances means that the deprivation of liberty should end, the hospital or care home is required to request a review. The relevant person or the representative who is appointed to support them can also trigger a review or apply to the Court of Protection at any time. Those safeguards mean that if a deprivation of liberty is no longer needed, it can and will be ended. We will provide information and support to families and carers to ensure that they can effectively help their loved ones to make use of the safeguards.

I am confident that the measures will deliver our aim of ensuring that the deprivation of liberty does not continue for longer than is necessary for the person’s protection. Concern was expressed in the other place that authorisations would have a default duration of 12 months, but I am confident that that will not happen. I reiterate that we will make it very clear in the code of practice that authorisations for 12 months should be recommended only if the assessor is confident that the person’s circumstances are unlikely to change in that time. However, to allay those concerns, we committed in the other place to take certain powers. Amendment No. 48 will give us the power in England, and Welsh Ministers in Wales, to reduce the maximum authorisation period if monitoring of the operation of safeguards provides convincing evidence that it is necessary to do so.

Amendments Nos. 47 and 53 provide that the regulations, if made, would be debated in both Houses of Parliament and in the National Assembly for Wales. I hope that the power will not be needed, but it is prudent to include it in the legislation. I therefore invite the Committee to support the amendments.

12:30 pm
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Angela Browning (Deputy Chairman (Organising and Campaigning), Conservative Party; Tiverton and Honiton, Conservative)

Seeking to comply with the judgment of the European Court of Human Rights is probably one of the most important ways for the Government to use the Mental Capacity Act. There was considerable debate in the scrutiny Committee on both that legislation and on the draft Bill, and although I welcome the Government’s decision finally to use the Act, I still have some concerns that I would  like to flag up to the Minister today. It is important that we get this part of the Bill absolutely right, because it deals with depriving a very complex and vulnerable group of people of their liberty outwith the Mental Health Act 1983. The Bournewood case was, as we know, about lack of protection under that Act.

The Minister gave some welcome clarification about the duration requirement for authorising deprivation of liberty. She wrote to us all on 17 April outlining some of the amendments that would be moved in Committee in this area, most of which she addressed just now. However, I remain concerned about the rather vague language used on time scales—language that will be enshrined in the code of practice. It is of course right that the duration should be the absolute minimum that is necessary, and should be assessed on a case-by-case basis. Actual practice, however, could well be based on available resources rather than on the best interests of the patient.

How, therefore, does the Minister calculate the additional resources that will be required for the procedures associated with this part of the legislative reform, which implements Bournewood judgment compliance? There are significant resource implications that I believe have not been addressed and that, of themselves, might skew the determinations. In due course I shall mention some of the lawyers’ concerns on that, with particular regard to the concerns on marrying up the Mental Capacity Act and the Mental Health Act that have been expressed by the lawyer who handled the Bournewood case.

I realise that the Minister and her officials have had a difficult task since the appearance of the judgment, so I am not complaining. They had to decide which Act was the appropriate one to consider, and I think that they have chosen the right one. Now, however, we are reaching the detail of implementation, and it is important not to be satisfied just with putting something on the statue book in the belief that that is an end of the matter. Will the Minister therefore consider the safeguards that might be needed on time factors, notwithstanding her proposed amendments and the contents of the code of practice?

Sometimes there are advantages to lightly worded recommendations, because they give flexibility in areas where it is needed, but we need to be cognisant of certain matters that have arisen—including some that have arisen even since the Bournewood judgment. Not least among them is the issue of defining liberty and deprivation of liberty, which remains a matter of some obscurity, as we know from a recent court case involving Surrey county council. That is because such cases now involve people deprived of their liberty not only in hospitals, but in wider care in the community and in residential and nursing homes. Has a person been deprived of liberty when they are not free to go out of the door, or when they are not free to go out of the door unless accompanied by a suitable relative or friend? The case involving Surrey county council concerned an elderly person with dementia in a residential setting. If such people are trying constantly to get out of the front door, is their being contained within the building to be interpreted as an indication that they are being deprived of their liberty?

Those who looked at the Bournewood case when it reached the House of Lords were clear that, had HL  tried to leave the Bournewood hospital, it would have clearly been wrong to have let him go because, in his own interests, it was better that he be contained within the building while he was undergoing treatment. That was the determination of the Lords. However, the European Court found in favour of HL after hearing his lawyers’ arguments.

Will the Minister consider the definition of deprivation of liberty, because several references have been during our proceedings to the opportunities for lawyers when there is lack of clarity and a grey area that allows different interpretations? Because the right hon. Lady has not actually defined deprivation of liberty in the Bill or, for that matter, in the code of practice, it may well lead to further legal challenges that the legal profession might welcome. That should be something that the Minister should reconsider during the final considerations on formulating the code of practice or the Bill.

I certainly welcome the Minister’s keeping her word and the Government’s pledges in Committee in another place. The six qualifying requirements to deprive someone of their liberty are sensible and well drafted. There is an age requirement, the mental health requirement, the mental capacity requirement, the best interests requirement, the eligibility requirement and the no refusals requirement. We are still at a stage when for some people the Mental Health Act will be applied, and for others the Mental Capacity Act will be applied. I want clarification from the right hon. Lady. If, under the initial assessment, it is appropriate to apply the amendments to the Mental Capacity Act, how will changes in circumstance be regulated so that patients who might move between the scopes of the two different Acts can be assured of the protections that they need? I am still not 100 per cent. sure that such provisions have been correctly drafted because there is a rather vague definition of deprivation of liberty and, under the Mental Capacity Act, we now seem to have embraced a wider group of people.

I refer the Minister to a bundle of documents that were provided to the Committee. The Government supplied an excellent guide, “The Bournewood Safeguards”. I am looking at the easy-read version.

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Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

It is quite the best.

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Angela Browning (Deputy Chairman (Organising and Campaigning), Conservative Party; Tiverton and Honiton, Conservative)

It is very good. I commend the Government on how they issue such guides. The document explains who will usually use the Bournewood safeguards—in other words, who will come within the scope of clause 47, to which the Minister has tabled the amendments. They include

“people who have serious learning disabilities”,

which goes without saying, but then we come to a group that covers the Surrey county council case, which is

“older people with mental illnesses like dementia”.

That group is not small and I suggest to the Minister that it is growing. We know from demographics that we have an increasingly elderly population, although such conditions do not exclusively affect the elderly. People in that group might be detained against their liberty. It  is a pretty wide and large group, and it is going to expand. I return to the question of resources. How will the Minister ensure that adequate resources are available to implement the safeguards that she is building into the clause? My suspicion is that the Government have underestimated how many people will be dealt with under the clause. If resources are not available, the safeguards will not prevent people from falling through the net.

I mentioned earlier the concern about the definition of deprivation of liberty and the question of the same individual moving between the regimes of the Mental Health Act and the Mental Capacity Act, but I should also like to draw attention to the difficulties identified by the legal profession, which has taken a close interest in the Bill. We benefited from MH55, a paper submitted by Robert Robinson, a solicitor with Scott-Moncrieff, Harbour and Sinclair in London, who pursued the Bournewood case. He quotes the conclusion of the Joint Committee on Human Rights, which commented unfavourably on the guidance. It stated:

“We consider that deprivation of liberty is a less flexible and elusive concept than might be thought from the draft illustrative guidance. Since we posed this question to the Government”—

clearly, the Minister or her officials have had some discussion with lawyers on the subject—

“Munby J. has delivered judgment in J.E. and D.E. v. Surrey County Council and E.W., holding that the crucial issue in determining whether there is a deprivation of liberty is not so much whether the person’s freedom within the institutional setting is curtailed, but rather whether or not the person is free to leave.”

Such areas are complex and grey, but while they remain so, and as further case law emerges that only compounds the problem of definition, it seems that while seeking to fill the Bournewood gap, we are considering a much wider group of people than was alluded to in the original Bournewood case, shocking as it was. I met H.L., an adult in his 40s, after he left the Bournewood hospital. It must be said that for many years, he was an in-patient in that hospital, so his condition had quite a long track record, but none the less there were complications. I shall not digress too much into the Bournewood case, but it triggered the need to change the law, as it eventually went before the European Court of Human Rights and was found to involve a contravention of article 5 of the convention.

Given that the lawyers still feel that as more case law is made, an even wider group of people will be encompassed by the measures, clarity in the definition of deprivation of liberty is essential. The Minister must also examine the resource implications. I have alluded to just one group of people, purely because a court case involved somebody from it. The Government seem to think, judging by the documentation that they have put out, including the easy-read version of the Bournewood judgment, that we are talking about a small, discrete group, whereas the lawyers seem to be saying that many more people will be subject to this legislation than the Government are indicating.

Not only does that have implications for the deprivation of liberty—a wider group of people will be involved—but there are important resource implications. The Minister may not able to give specific  answers today on the issues that I have raised, but before the page is closed on the Bill and it becomes an Act of Parliament, she should, yet again, be prepared to discuss this, face to face, with the lawyers. They have had a great involvement with the case and clearly know it well, so if they have ongoing concerns, it is important that the Minister is made aware of them.

I am not a lawyer, so I am giving the layman’s version of what the lawyers have sent me and the rest of the Committee. I hope that the Minister understands that this is an important part of getting things right. There is no party political divide, because we all want her to get this right, but I hope that before coming back to the House on Report, she will consider that this part of the Bill should be examined carefully and she will give an audience to those lawyers who continue to have concerns.

12:45 pm
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Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

It may be helpful if I give an example of how the process might work. Let us consider a patient who is in his 70s and is physically fit and strong, but who has advanced dementia. He has been cared for at home by his wife, who has been struggling to cope with his behaviour. He is admitted to a care home in an emergency after his wife falls and breaks a hip. Understandably, the upheaval of the move has meant that he is extremely disturbed. Restrictions are needed to keep him calm and safe, and the family are asked not to take him out of the care home because he becomes so disorientated and distressed. The care home considers this to amount to a deprivation of liberty and applies for an authorisation.

In those circumstances, the local authority would arrange for an assessment to be carried out. Let us suppose that the psychiatrist who has been seeing the gentleman as an out-patient confirms the diagnosis of mental disorder and assesses the likely impact of the care proposed and the capacity of Peter—that is what I shall call him—to consent. A social worker with extensive experience in the care of the elderly, who has no connection with the gentleman’s case, is appointed to make an independent assessment of what is in Peter’s best interests. The outcome of the assessment is that deprivation of liberty is authorised for three months and Peter’s son is appointed to act as his representative.

Let us then suppose that after nine weeks, Peter’s wife comes back home, much recovered, and wants her husband to return to live with her. The son requests a review of the authorisation, and the best interests assessor, after speaking to Peter, his wife, their son and the care home, recommends that he should return home. The authorisation would be terminated, and the gentleman would return home, with the support of carers provided morning and evening.

I understand the desire of the hon. Member for Tiverton and Honiton to define the deprivation of liberty, but it is almost impossible to give a definition that could be used in every case. In the code of practice we have tried to identify factors that the courts have used to determine whether a person is deprived of liberty. Some of the factors that we have given are:

“Restraint was used, including sedation, to admit a person who was resisting;

Professionals exercised complete and effective control over care and movement for a significant period;

Professionals exercised control over assessments, treatment, contacts and residence”,

if a decision has been taken that the person would be

“prevented from leaving if they made a meaningful attempt to do so;

A request by carers for the person to be discharged to their care was refused”—

that was particularly relevant to the case with which the hon. Lady is familiar—

“The person was unable to maintain social contacts because of restrictions placed on access to other people;

The person lost autonomy because they were under continuous supervision and control.”

It is right that there is an ability to examine each individual to see whether it is considered that what is happening is a deprivation of liberty. It is difficult for us to consider every case in which someone is deprived, because it often depends on the individual and what they consider to be a deprivation of their liberty as well as the views of those around them.

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Madeleine Moon (Bridgend, Labour)

There is a situation that might well arise in the circumstances that my right hon. Friend the Minister described. Would it be a deprivation of liberty if it were agreed that the gentleman could go home, and his family wanted him home but could not have him without the provision of the care package of two calls a day that she described, and the local authority was unable to implement it? In the scenario that was described, that is the hitch—a local authority’s ability to put in the care package. I would welcome clarification of that.

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Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

But I believe that that is why the best interests assessor would come into it. The assessor would have to balance what was happening in the care home with what it would be possible to achieve in the home. One may well be dependent upon the other, so that the authorisation would be terminated if it were felt that the appropriate packages were in place. My officials are nodding encouragingly, so I assume that that is right.

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Angela Browning (Deputy Chairman (Organising and Campaigning), Conservative Party; Tiverton and Honiton, Conservative)

I hope that the Minister’s officials will continue to nod encouragingly. I am genuinely trying to be helpful, but I have reservations because the lawyers have raised them with us. I wish to return to the case of an elderly person with dementia, perhaps wandering around in a residential setting and trying to leave. In the case that I mentioned, JE and DE v. Surrey County Council and EW, with which I am sure the Minister’s officials will be familiar, Munby J. referred in his judgment to

“the necessary objective element in a deprivation of liberty”.

That was a judge determining his own interpretation of a deprivation of liberty, and he said in his summing up:

“In the type of case with which I am here concerned, the key factor is whether the person is, or is not, free to leave”.

If that is how the courts are determining it, I wonder why the Minister cannot be a little more clear about her definition.

Photo of Rosie Winterton

Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

Because, as the hon. Lady has pointed out, the courts in that case looked at the individual’s circumstances. We have tried in the code of  practice to say, “These are the types of things that the courts have looked at.” If we said in legislation, “These are the only things that can amount to a deprivation of liberty,” we could be open to some of the challenges that brought about the provision in the first place. We do not want to try to stipulate that and so exclude people who might feel, or whose carers or family might feel, that there had been a deprivation of liberty because we had specifically set that out in legislation. It would be almost impossible for us not to lay ourselves open to even more legal challenges. Having said that, I would be more than happy for the audience with the lawyers, suggested by the hon. Lady, to take place—not least because it sounds very grand. However, I may defer to my officials on that issue so that they can discuss with the relevant lawyers in the Department whether such an audience would be appropriate.

I turn briefly to the relevant figures. We have estimated that about 21,000 assessments will need to be made in the first year; after that, we estimate that there will be about 5,000 per year. We are discussing that with the relevant local authorities and will keep the issue under review.

Given those reassurances, I hope that the Committee will accept the Government’s amendments, which, as I say, are meant to be safeguards on an important issue.

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Angela Browning (Deputy Chairman (Organising and Campaigning), Conservative Party; Tiverton and Honiton, Conservative)

I appreciate the Minister’s offer to consider the audience and shall do my best to pass that on. However, will she comment on my point about the need for clarity between patients who might move from one Act to the next?

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Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

As I said, we try to ensure that patients have as much information as possible about their rights and the safeguards that are in one or other of the Acts. Obviously, different criteria apply to each, and we shall try to make that as clear as possible.

Amendment agreed to.

Clause 47, as amended, ordered to stand part of the Bill.

Further consideration adjourned.—[Claire Ward.]

Adjourned accordingly at three minutes to One o'clock till this day at half-past Four o'clock.