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