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

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.)