The Mental Capacity (Deprivation of Liberty: Monitoring and Reporting; and Assessments -Amendment) Regulations 2009

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations contain measures relating to the monitoring and reporting of the operation of Schedule A1 to the Mental Capacity Act 2005 (“Schedule A1”), which concerns the deprivation of liberty of residents of hospitals and care homes. They also amend provisions in regulations 3(2) and 19 of the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 (S.I. 2008/1858) (“Standard Authorisations Regulations”).

The Care Quality Commission has a duty to monitor the operation of Schedule A1 (regulation 2).

The Commission must report to the Secretary of State on the operation of Schedule A1 when requested to do so by the Secretary of State (regulation 3).

In order to fulfil its monitoring or reporting responsibilities, the Commission may visit hospitals and care homes, visit and interview residents of hospitals and care homes and inspect records relating to the care or treatment of such residents for the purposes of Schedule A1 (regulation 4).

The Commission may provide advice or information to the Secretary of State at any time, but must do so when requested by the Secretary of State (regulation 5).

The Standard Authorisations Regulations are amended to make two changes. Regulation 3(2) provides that in order to be eligible to carry out an assessment, a person must be insured in respect of any liabilities arising from that assessment. This is amended to provide that the person must satisfy the supervisory body that they have an adequate and appropriate indemnity arrangement to provide the necessary cover and this may be provided by insurance, indemnity or a combination of both (regulation 6(2)).

Regulation 19 is amended so that where as a result of a determination of ordinary residence the identity of the local authority as to which should exercise the functions of the supervisory body changes, one local authority may recover from another any expenditure it has incurred (regulation 6(3)).