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

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. Sub-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. Sub-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. Sub-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?