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Health and Social Care Bill

Amendments Nos. 94 to 97 relate to the visits that the Care Quality Commission and Welsh Ministers will be required to carry out for the purpose of monitoring the application of the Mental Health Act in England and Wales respectively. There is no doubt about the importance that we attach to these aspects of the commission’s work. On numerous occasions in previous debates I have stressed how important it is that the commission has the skills and expertise required to carry out the functions that it will inherit from the MHAC, including appropriate visiting arrangements. At Second Reading in another place, my right honourable friend the Secretary of State for Health also paid tribute to the emphasis that the MHAC places on its visiting programme, and signalled his expectation that the new commission will continue with that approach. At Second Reading, my noble friend Lord Darzi, the Minister for health, stressed how important it is that the commission has the skills and expertise to carry this out. That proportionate regulation does not mean adopting a tick-box mentality; it means assessing the risks of individual providers and the services they provide and prioritising inspection activities accordingly. Both the commission and the Welsh Ministers will be obliged to conduct these visits. Both will also be required to demonstrate how they have fulfilled those obligations in their annual reports. In addition, Clause 2 requires the commission to have regard to the need to safeguard and promote the rights and welfare of vulnerable adults when carrying out its functions, which would include its investigative and visiting functions under the Mental Health Act. So I believe that the Bill provides the safeguard intended by Amendments Nos. 94 and 96. I turn now to Amendment No. 95, which would extend the monitoring remit of the commission and Welsh Ministers under the Mental Health Act to apply to the deprivation of liberty safeguards under the Mental Capacity Act 2005. The Mental Capacity Act 2005 provides a statutory framework for acting and making decisions on behalf of individuals who lack the mental capacity to do so for themselves. The Government recently amended the Act, through the Mental Health Act 2007, to make it lawful to deprive such an individual of their liberty in a care home or hospital, if it is in their best interests. The Act also provides detailed safeguards to ensure that such a deprivation of liberty is independently authorised. We propose to make regulations in due course to give the Care Quality Commission the responsibility to monitor the operation of these safeguards in England. In Wales, I understand the intention is that the monitoring of the deprivation of liberty safeguards in hospitals is to be undertaken by the Healthcare Inspectorate Wales, the body that will also monitor Mental Health Act functions. For care homes and local authorities, monitoring of the safeguards will be undertaken in Wales by the Care and Social Services Inspectorate Wales. Amendment No. 97 focuses on the visits which are fundamental for the monitoring of the application of both the Mental Health Act 1983 and the Mental Capacity Act 2005. Given the commission’s duty to have regard to the need to safeguard the rights of children and vulnerable adults, I agree it will be very important that the training provided to those carrying out the visits ensures that they have a good understanding of civil, legal and human rights. It will ultimately be the duty of the new commission, as it is for the current commissions, to determine what skills and experience are required by its staff to fulfil its obligations, as it will for the Welsh Ministers. However, to ensure that the transition is as smooth as possible and that no expertise is lost, we are in the process of developing a human resources strategy for the new commission. A similar approach is being adopted in Wales. It is clear that the commission will also need to consider its functions in the context of the Human Rights Act, including its responsibilities as a public authority under that Act. Welsh Ministers, too, will have to act in accordance with the conventions enshrined in the Human Rights Act by virtue of the Government of Wales Act 2006. It is clear from the MHAC’s success in incorporating a human rights framework into its work that no additional statutory responsibility is necessary to accomplish this. The Joint Committee on Human Rights said that the Healthcare Commission and CSCI could learn from this work—I agree with that. I would expect the new commission to learn from and continue this approach. I hope that I have been able to demonstrate that the commission will have due regard to these functions. While understanding the noble Lords’ concerns, I believe that we must trust the ability of the commission as an independent organisation to fulfil its statutory obligations properly. I therefore ask noble Lords to withdraw these amendments.