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

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. 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.