Covid-19 Update

Baroness Barker Excerpts

Monday 16th March 2020 Lords Chamber

[Lord Bethell]

On the provisions for those on zero-hours contracts, that is an area that is particularly knotty and difficult. It is absolutely the focus of the current negotiations on statutory sick pay and other provisions; it is one we care very much about getting right. As for the advice for those in the House of Lords, I cannot repeat the advice of the CMO more times than I have already. I very much hope that everyone will follow it.

[Baroness Barker (LD)]

My Lords, based on the models that the Government are using, can the Minister say when he thinks we will reach the peak transmission spike?

[Lord Bethell]

The situation is fluid. The CMO spoke about this in detail at the press conference. He is not speculating or giving an exact date, because the modelling is not as clear as one would hope it to be. However, it will certainly be within weeks, rather than months.

Mental Capacity (Amendment) Bill [HL]

Baroness Barker Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 24th April 2019 Lords Chamber

[Lord O'Shaughnessy (Con)]

My Lords, I want to speak briefly to offer some thanks to everybody who has participated in getting the Bill to this point.

First and foremost, I thank noble Lords. The noble Baroness, Lady Finlay, said that the Bill had been given a bumpy ride. As I was in the driving seat for some of that, I can tell noble Lords that it certainly did feel rather bumpy. However, once we got over the bumps and decided we could work together, we made considerable improvements to the Bill, driven largely, it has to be said, by this House and the expertise within it. The compromise reached on the issue of a code of conduct is a good example of that and reflects extremely well on the process this House has gone through in its desire to reach pragmatic solutions—perhaps there is a wider lesson for politics in that.

I want also to express my thanks to those in the Bill team, who have stuck with this and shown considerable and growing intellectual flexibility as the process has gone on. I am sure all noble Lords would want to thank them for both their input and feedback and the grace with which they have dealt with this.

I thank also my noble friend the Minister. This Bill was one of many passes I gave her when she took over, and she has handled it with great intelligence and grace, as she always does. I am delighted we have got to this point and that she has steered it so safely.

Finally, and most importantly, I thank those affected by this legislation: the cared for and the carers. I am sorry to hear the opinion of the noble Baroness, Lady Murphy, which I take very seriously. I am an optimist naturally, but it is not just my natural optimism that means I cannot agree with her gloomy outlook. I hope she is wrong, and I hope she will not mind my saying so. I believe that through this legislation we have made some positive changes and done some good for the cared for and their carers. I am sure this is a subject to which we will return, but, in the meantime, I hope the lives of those people have been improved by the work we have put in over the past few months.

[Baroness Barker (LD)]

My Lords, it has been a privilege to work again on a subject that we have now worked on several times in this House, from the original pre-legislative scrutiny and original legislation through to the post-legislative report on the implementation of the previous Bill. Apart from anything else, it shows the excellent results that can be achieved from the process that we put into scrutinising legislation and scrutinising its subsequent implementation. In light of all of that, I will say that I take a slightly different view from the noble Baroness, Lady Murphy. I think that we have done a very good job. The problem is that the legislation that came to us was fundamentally flawed, and we could not change that. But we changed the legislation where we could, and those changes will make it better.

The noble Baroness hit on two fundamental issues that are problematic. The first is the nature and scope of the Cheshire West ruling and the second is the lack of understanding of the original DoLS legislation. When it was introduced, the training for professionals—all sorts of different professionals—was lacking. Much of what has happened since has meant that we have fallen into a system that is deeply bureaucratic. A number of professionals are scared to exercise their professional judgment. Consequently, a whole bureaucracy has grown up around DoLS which, had it been introduced in the right way, would not have happened. Therefore, the noble Baroness was right to say that the Law Commission was trying to deal with that issue and could not. I have no doubt that what we have in front of us will not solve the problem. I doubt very much whether it will deal with the backlog of cases, about which people are rightly exercised.

My question is one that we were all concerned about—the resourcing for this. One of the first things that we did when we met the Bill team was to query the resourcing—half a day’s training for some doctors and no need for training for people in care homes. Much of that has got lost as we have gone deeper into the wording of the Bill. Will the Minister talk about the resourcing of training and the implementation of the code of practice? I have no doubt that, in due course, there will be further test cases that will shine a light on the deficiencies of this legislation and we will come back to dealing with the fundamental issue: how do we ensure that someone whose liberty is going to be deprived by an agency of the state can be enabled to understand their rights, and their carers enabled to understand their rights, in order that they and the professionals who work with them can ensure that everything is put in place to minimise the deprivation of liberty? If we had done that properly in the first place, we would not be dealing with the deficient legislation that we are now.

The noble Baroness, Lady Murphy, is right that we have not dealt with it, but I take some hope from a lot of the stramash, to use a Scottish word, that we have been through and the attention that has been paid to all of this by the department, by people in the sector and by the lawyers themselves. This is not the greatest job we have ever done, but what we should do today is put a marker down for the evidence that needs to be collated and gathered for the time in the future when we will, inevitably, return to this subject.

[Baroness Meacher (CB)]

I have a couple of points. Other noble Lords made detailed points about the work of this House and the contribution that noble Lords have made to the Bill—very effectively, I think. My experience, although in a sense peripheral, has been that this House has worked very effectively with both the noble Lord, Lord O’Shaughnessy, and the noble Baroness, Lady Blackwood, in their roles as Minister and with the Bill team, and has achieved a certain amount—which is all we ever expect. We do not normally expect to turn Bills upside down and back to front, but we have achieved certain things.

I will mention a couple of things for which I am grateful to the Government, if I am right that we have really seen them home. One of my concerns was the huge and growing number of people in domestic situations where very vulnerable carers are caring for very vulnerable loved ones. Of course we need some sort of safeguard to ensure that the deprivation of liberty, if it occurs, is proportionate, reasonable and all the rest of it, but I was very worried that these poor carers would have layers of bureaucracy that they really could cope with, in addition to the bureaucracy they already had to deal with. I think we had an agreement from the Government that the procedures for assessing deprivation of liberty, proportionality and the rest of it will be undertaken in the local authority’s normal care-planning process, in the work that local authority officials are already doing. That seems a very constructive way forward which will greatly benefit a huge number of carers and cared-for people. It is a small thing, but it may be quite significant.

Health: HIV

Baroness Barker Excerpts

Monday 25th March 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

I thank the noble Baroness for her question. She is absolutely right that the key to us making progress is prevention and early intervention and also understanding about any crossover consequences with other illnesses. She is also right that the key is closing the gaps now. In 2017, 43% of diagnoses were made at a late stage of HIV and, although there has been a decline, the largest group diagnosed at late stage were black African heterosexual men and women. It is important that we close those gaps. Some key projects have been working on that through the HIV Innovation Fund so when we bring forward plans for HIV 2030 it is important that we find out how we can close those gaps if we are indeed to get to zero by 2030.

[Baroness Barker (LD)]

My Lords, does the Minister agree that in order to end HIV by 2030 all children need to understand their own risks through comprehensive relationship and sex education and that schools that refuse to teach it are jeopardising the health of all pupils? Does she agree that that should not happen?

[Baroness Blackwood of North Oxford]

Knowledge about safer sex and sexual health is essential for young people. They must be equipped to understand and to make safe, informed and healthy choices. That is why we have brought in compulsory SRE for the first time, which all schools should be required to teach.

Mental Capacity (Amendment) Bill [HL]

Baroness Barker Excerpts

Tuesday 26th February 2019 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I apologise—I should have declared my interest as chair of the National Mental Capacity Forum at the beginning of the previous debate. Like others, I thank the noble Lord, Lord O’Shaughnessy, for having made sure that the Bill is now in much better shape than it was when it came to us.

I am very grateful to the Minister for confirming that the whistleblowing amendments are there, and in fact are, if I have understood correctly, stronger than when they left this House. I have a couple of questions for her, though. One relates to the group of people who can become approved mental-capacity professionals. I was concerned that she did not include speech and language therapists in her list. People who have communication difficulties can be extremely difficult to assess. Those with a brain injury affecting the speech area can be very difficult indeed to assess because they may also have frontal-lobe disorders, as the noble Baroness herself well understands.

I know that the regulations will be brought forward, and I hope that the Minister will be able to consider additional training—not part of general undergraduate training but additional, postgraduate training for speech and language therapists to be able to develop a full set of competencies and undergo the same training as other people. I think that, without it, we will end up with duplication of assessments and duplication of costs.

My other question relates to portability. I hope that the Minister can confirm that the portability concept, which was so welcomed in the liberty protection safeguards, remains and will be applicable so that people can move between different settings without needing a reassessment. Obviously, emergency medical treatment can arise at any time with anybody, and that is covered separately for someone who lacks capacity and must be treated: that would come under a best-interest decision-taking process anyway.

My last query relates to the determination conditions and the assessment. I have a slight concern on reading the amendments that the assessments seem to be separated from the determination. If I heard the Minister correctly, she said that the care-home managers would not be making either the assessments or the determinations. We had a lot of concern over care-home managers and conflicts of role in previous debates, and I would be grateful if she would confirm that this is my correct understanding, and that we have not had a way whereby the care-home manager can undertake the assessment, and then somebody else, based on that assessment, will make a determination, because the validity of the assessment will determine the validity of the later determination.

Those are my queries in relation to this, and the determination and assessment question relates in particular to Amendments 28 to 38, to which the Minister has already spoken.

[Baroness Barker (LD)]

My Lords, I will make three quick points. One is to thank the Minister for the way in which she set out the ways in which the Government listened to the debates at an earlier stage in this House. We had deep misgivings about the lack of attention that we have been able to pay to independent hospitals. I am very glad that the reassurance that they will no longer be the responsible bodies has been given by the Government in another place.

Anybody who has followed our deliberations in great detail, as some people have, will know that we have had to spend an awful lot of time during the passage of this legislation focusing on care-home managers and the inappropriate responsibilities that they were given in the initial draft of the Bill. I am not entirely convinced that in relation to independent hospitals or local authorities we have entirely separated responsibility for assessment, responsibility for determination of what constitutes a care package and deprivation of liberty, and responsibility for the financing of those care packages. If the Bill had started off in a better shape, perhaps we would have been able to spend much more time on that, as we should have done. Therefore, it is important that at this stage we take on board the points made in Amendment 41A tabled by the noble Baroness, Lady Thornton, and make sure that we have not left a conflict of interest anywhere in the Bill.

[Lord O'Shaughnessy]

My Lords, I thank the noble Baronesses, Lady Meacher, Lady Finlay and Lady Thornton, for their kind words. However, the credit for the improvements in this group, outlined by my noble friend the Minister, should go to this House. As everyone involved in the Bill will remember, we had some interesting, challenging and sometimes not quite bad tempered but difficult debates as we attempted to get this right. It is only because in the end noble Lords took a constructive approach to working together that we were able to make these changes. It is a credit to the process and to the people involved in it that we have been able to solve so many of these problems, whether they be on whistleblowing, independent hospitals or other issues.

I will reflect quickly on the intention behind the amendment regarding independence, as set out by the noble Baroness, Lady Thornton. In a sense, avoiding conflict of interest has been at the heart of the changes that everyone has wanted to see made to the Bill, and, as I understand it from what she has said, that is her intention here. My belief is that that is dealt with in this case by making the responsible body, which has responsibility for appointing the AMCP, the local authority or the health board in Wales—or, more specifically, not making it the independent hospital. That then puts it on a level playing field with care homes, which was obviously the subject of huge discussion during our debates. This is where I seek reassurance from the Minister.

If we are satisfied that the changes we have made on the care home front to make sure that the responsible body is the only person who can appoint an AMCP also make sure that there is not a conflict between the AMCP and their role in commissioning, given that local authorities often, although not always, commission social care places and in a sense have that contracting relationship between the local authority and a care home, and given that we are trying to put the independent hospital on a similar footing, and if we are also satisfied, which I think we are—or we were during the passage of the Bill and subject to the amendments that have been brought forward—that there is the appropriate independence and that there are appropriate mechanisms for avoiding conflicts of interest for care homes and the appointment of AMCPs, by deduction it ought to follow that they will be in place because of the Government’s amendments on independent hospitals, and even more so because every single independent hospital case will be referred to an AMCP.

If it is true, as I believe it to be as a consequence of the government amendments, that the commissioning relationships are essentially the same and that the responsibility to appoint an AMCP will essentially be the same for the local authority, whether it is vis-à-vis a care home place or a place in an independent hospital, I hope that it will be possible for my noble friend to reassure the noble Baroness, Lady Thornton, that what she is asking for is already the case and therefore that her amendment is not necessary. However much I applaud the intention behind it, as I said, I think that it would repeat what is already the case. With that reassurance to noble Lords, I hope that we will be able to move on on this issue.

Healthcare (International Arrangements) Bill

Baroness Barker Excerpts

2nd reading (Hansard): House of Lords
Tuesday 5th February 2019 Lords Chamber

[Baroness Barker (LD)]

My Lords, I, too, congratulate the noble Baroness, Lady Blackwood of North Oxford, on the clarity with which she introduced this legislation. On the basis of her speech, I look forward to many spirited debates with her in your Lordships’ House. I have a fair degree of sympathy with her as she has to bring forward this Bill under the constraints of her maiden speech. I thought she did that extremely well.

Before we get lost in a Bill which is bereft of detail, it is important to reflect on the purpose of the law, which is to enable citizens to understand and exercise their rights and to enable them to fulfil their obligations as citizens. It is not to provide a blank cheque or a blanket set of excuses to the Executive. This Bill is deficient in that respect. I do not believe that any citizen of this country reading the Bill would understand their rights and responsibilities under it as of April. The noble Lord, Lord Foulkes, who went first, reported the thunder of the Delegated Powers and Regulatory Reform Committee. Some noble Lords have heard me use the description of that committee given by Mark D’Arcy, which is that they are a group of people among whom the raising of an eyebrow can be considered severe criticism. A report such as its report on the Bill is the equivalent of throwing a chair through a window because it is pretty strong:

“Clause 2 has a breath-taking scope. Indeed, the scope of the regulations could hardly be wider … There is no limit to the amount of the payments … There is no limit to who can be funded world-wide … There is no limit to the types of healthcare being funded … The regulations can confer functions (that is, powers and duties, including discretions) on anyone anywhere”.


I and many Members of your Lordships’ House have many a time sat through debates in this House about the detail of primary legislation that enables citizens of this country to go abroad for healthcare and the circumstances in which that would be approved by the National Health Service. There is nothing in this Bill about that. I wonder whether the Government are not setting themselves up for a slew of court cases at some point in the future in which people who have been unable to receive treatment in this country see that it is possible to have such treatment in another part of the world, as the noble Lord, Lord Kakkar, said, and try to do so. In particular, I am thinking of things such as fertility treatment. I do not imagine that that is the intention behind the Bill, but it is certainly possible.

We seem to be moving from a situation in which over time we have worked with our European partners, who have broadly comparable health systems and systems of publicly funded health provision which exercise similar clinical standards, and are seeking to extrapolate from that agreements with countries across the world where that does not apply and where the public provision may be extremely limited or expensive, as in the case of the United States. I think we are in some difficulty. The noble Lord, Lord Lansley, was correct when he put it to the House that the Government are putting in place temporary, almost emergency, continuity arrangements for public healthcare but have given us this Bill, which is so bereft of detail that it can be much more widely interpreted. That is a problem, not just for individuals but for business.

I shall tell your Lordships about a young man I talked to about 18 months ago on this very subject. He was desperately worried about his future. He is a young man who would expect to go abroad during his career and to be a high earner and highly successful. The problem is that he is HIV positive, which means that it would simply not be possible for him to pursue his career in many places. He would be unable to do so in the Commonwealth because he would have to divulge his status and either he would not be admitted or he would not be allowed to live in a country legally. He cannot go to the Middle East, and he cannot go to America due to the healthcare costs. Therefore, he can see his world and his job prospects shrinking. Coming forward at such a late date with a Bill that is so lacking in detail makes life difficult for people like him.

I noticed during the discussions in another place that questions were put to the insurance industry, which was very honest. It is as much in the dark as anybody else. It was very forthright in saying that there are only two conditions that it can deal with under the changes in our arrangements with Europe: either having the EHIC or not having the EHIC. Frankly, if we do not have it, the cost of travel insurance will go up. Not only that but it will not be as easy for people with pre-existing conditions or disabilities to get insurance to travel for business or pleasure as it is for the rest of us.

I want to concentrate on one area which I do not think has been mentioned so far—the reciprocal provision between the United Kingdom and the Republic of Ireland. From what has been said, I understand that citizens of the Republic of Ireland and the United Kingdom benefit from the common travel area arrangements. We also have arrangements that are currently underpinned by the Belfast/Good Friday agreement. I understand that it is not the Government’s intention to cease the common travel arrangement. It is very beneficial to people on both sides of the border: people can access specialist treatment in the Republic of Ireland; equally, citizens of the Republic can travel for treatment in the north.

Ministerial Statements are extremely important, so, when the noble Baroness responds, I would like her to explain whether under the terms of this legislation the arrangements between the United Kingdom and the Republic of Ireland will be those in place as of 29 March and, if not, whether they are to be updated. For example, if treatments that are not currently available were to become available in the future in either the United Kingdom or the Republic of Ireland, would citizens of either country be able to take advantage of them? That is a very important point.

I think that we are in some difficulty with this Bill, and there is a particular danger for women. They might well get pregnant within whatever the timescale is, depending on what arrangements are agreed, and they might need treatment under maternity and gynaecology services. I would like to think that at the very least we might be able to give them some reassurance that they will, if only on an emergency basis, be able to seek treatment. I have absolutely no doubt that medical people the world over will abide by the oath of their profession; they will not seek to deny treatment to anyone in urgent need. However, that is not the point; the point is that we need to try to secure arrangements around which individuals and businesses can build their lives and construct their future prosperity.

I agree with my noble friend that this is not taking back control; it is a constitutional land grab. As a matter of principle, we should not let legislation as deficient as this pass through without an intense amount of scrutiny, and I hope that the Government are willing to come back with the degree of detail that should have been in the original Bill.

Human Fertilisation and Embryology (Parental Orders) Regulations 2018

Baroness Barker Excerpts

Wednesday 12th December 2018 Grand Committee

[Lord Winston (Lab)]

My Lords, forgive me for a brief intervention. I do not have any problems at all with the basic notion of what is in front of us. It is possible that I was the first person to do a surrogacy agreement using IVF, so I have a certain amount of background in this rather murky subject.

One thing that slightly concerns me is the issue of paternity or maternity genetically, because we now have a situation where children can normally trace their genetic parent. That is on the birth certificate. Here we have a slightly odd situation. For example, particularly with a gay or lesbian couple, or where someone has not only had their uterus but their ovaries removed, someone may end up receiving a donor egg which is then implanted into the surrogate mother after fertilisation. So an embryo could be put into a surrogate mother who is happy with that, but it is not genetically her embryo.

I am just trying to raise the issue of clarity. Given that Parliament in its wisdom decided that people should be able to trace their genetic mothers, someone who had given an egg in that situation could suddenly be presented with a child they did not know they had, even though their own treatment had failed 20 years or earlier. When the Minister wraps this up, can he provide some clarity on what would happen, because there is human rights issue both ways here?

[Baroness Barker (LD)]

My Lords, I thank the Minister for introducing this debate in the way that he did and giving the background to the instruments before us today. I should declare that I am a member of the All-Party Parliamentary Group on Surrogacy. I have a long-standing interest, fuelled by many a night sitting listening to the noble Lord, Lord Winston, as we went through various bits of legislation but principally by the work done by Surrogacy UK in 2016 when it produced a report. There was a debate in December of that year. Baroness Warnock was no longer a Member of your Lordships’ House, but the noble and learned Lord, Lord Mackay of Clashfern, was. Those of us who had been involved in legislation on this matter from the beginning in the 1980s accepted that the overall legislative framework we now have is not really fit for purpose, not least because of the many scientific advances that have happened in the intervening years. As the noble and learned Lord, Lord Mackay, observed in that debate in 2016, there are now many more ways in which families, as well as children, are created.

The Minister was right that the original stimulus for the legislation was the case of a man who in 2015 had a child by surrogacy abroad, brought the child back and found that the child’s status was incompatible with our law at the time, which stated that parental orders could be made only in respect of a couple. That was two and a half years ago. In the meantime, others have found themselves in similar limbo. The courts have had to make what are essentially temporary orders. Those orders are above all for the welfare of a child: a child is being cared for by somebody who is not their legal parent and has no legal responsibility for them. We should not lose sight of that.

This measure is a welcome step forward which offers a degree of certainty not only to individual parents or intended parents who find themselves in this position but to the children. I am pleased that the Law Commission is now undertaking an extensive review of the legislation. The All-Party Parliamentary Group on Surrogacy is conducting its own hearings on the matter. For just a small all-party group, the hearings have been extremely interesting. We have had a huge number of people give evidence, some with very conflicting views. I think that we will end up with an interesting report that feeds into that work. My guess is that the Law Commission will take about two years to produce a report.

My reason for mentioning all that is that time ticks by for individuals as we debate these matters. I do not suggest for a moment that we should do anything in a rush, but, at the same time, it is incumbent on us to deal with some matters urgently, because to do so is in the interest of individuals.

There are some ways in which a single person applying for a parental order will be still be left outside these remedial orders. I understand that a case is before the courts at the moment of a woman whose relationship with the biological father of a child has broken down. She is now in the position of being a single person who has no biological relationship with the child but nevertheless wishes to have parental responsibility. Another tragic case is before the courts in which one member of a couple has died subsequent to the fertilisation process having taken place.

However long the Law Commission takes to do its work, which it should do extensively and thoroughly, I think that we will continue over the years to have a small number of cases that are intensely important both for intended parents and for children. It is therefore likely that we will find ourselves back in this House making more revisions of regulations of this kind before we get the comprehensive review of surrogacy law that we need so that practitioners, medics, intended parents and children all have a better understanding of where we should be legally in this day and age.

[Viscount Craigavon (CB)]

My Lords, I will say a few words, partly reflecting what the noble Baroness, Lady Barker, said. I spoke on this subject in her debate some time ago.

We should be extremely grateful to the Law Commission for taking on this, in my opinion, very difficult and rather controversial work. Only an organisation like that is going to bring this to some sort of conclusion, but as the noble Baroness, Lady Barker, said, it will take considerable time, and understandably so—we do not want to hurry it. However, one or two problems are going to slip through the net before it reaches its conclusion. The noble Baroness, Lady Barker, mentioned particular problems and some of them might be resolved, as she said, by further orders but some will still be in difficulties because some women simply do not have the time to spare in their reproductive cycles to wait for these problems to be solved.

There is another example, similar to what the noble Lord, Lord Winston, was saying. In rather rare cases of cancer, the treatment disallows women from being able to be genetically connected to the child who is being born. That is another example where we might be in difficulties over the long time period we have. I very much welcome these regulations, and I hope the department will keep an eye on difficult cases that come up. We will be looking after them as well.

--- Later in debate ---

[Lord O’Shaughnessy]

Yes, because the court retains a copy of the original birth certificate. I am going to need to clarify this because it is tricky and there is a danger if I try to describe it now. I do not want to do that. I think the noble Lord is asking for clarification, but I am going to need to write to him, if he will accept that, to clarify the situation.

[Baroness Barker]

I hope I am going to be helpful. If I am right, I think that at the point at which a parental order is given, a new birth certificate is issued. That rather mirrors the procedure under adoption, which is the same. The point is that a child always has the right to find out their genetic history but they may not know the means of their birth. From all the things that I have listened to in this House, that makes them probably like a good 40% of people who were not adopted or the result of fertilisation but who have a different father from the one they thought they had; I do listen.

[Lord Winston]

I do not want to delay things, but surrogacy is a special situation because the child is developed in another uterus, so there are epigenetic factors which may act on that child’s development. We are now beginning to understand—for example, from the study that I am involved with in Singapore—that things which happen when the baby is in utero can affect cognitive development and other sorts of development later in life. It is therefore slightly different from a normal donated gamete in a usual IVF setting or simple artificial insemination. That is why I wondered whether there will be clarity about the exact nature of the bearing mother as opposed to the genetic mother, because that seems to be important. Is that recorded on the certificate?

--- Later in debate ---

[Baroness Barker]

I am glad that over the years I have had to do my homework because I am now going to be in debates with the noble Lord, Lord Winston. I think that the issue is covered by the licensing of the clinics which are under an obligation to maintain a record if they are HFEA-licensed in this country. I believe that in certain jurisdictions abroad to which people go for surrogacy, notably California and Canada, clinics are similarly required to meet certain standards of record-keeping.

[Lord O’Shaughnessy]

That is absolutely right. It is fantastic to be able to bow to the wisdom of noble Lords. In effect, although this is a rather inadequate way of describing it, there is a paper trail of whether it is the surrogate parent—the original genetic donor, if there is one, that is different from the parent who subsequently gets the parental order—when that is done through licensed clinics. The child has a pre-existing right to pursue that information and they are able to do so, if they want to, when they become aware of the circumstances of their birth. I think I have got that right. The noble Baroness, Lady Barker, is nodding, which means I can be confident.

I congratulate the noble Baroness on her tenacity in pursuing this issue and I congratulate other noble Lords as well. It has taken longer than it should have done to make this remedial order; I can only reflect on how much has happened in the last two and half years, which may be some of the reason behind that. The department is very aware of the need to watch this space. There are court cases going on. Clearly it would be inappropriate for me to comment specifically on them but, as the noble Viscount, Lord Craigavon, pointed out, thorny and difficult cases will continue to emerge and we need to deal with them as they arise if they have policy implications. We also need to ensure that we keep up the impetus through the Law Commission review, which I understand will be two years of inquiry and then a year of drafting legislation. That is why it will take three years; these things have a natural pace to them. The critical point is that at the end of the process, the Government—as the noble Baroness, Lady Thornton, pointed out, whoever is in government at that point—should then be in a position to take that legislation forward. One would hope that if the Law Commission has done its work, that is something on which there is a pre-existing consensus and we can all move forward.

I am incredibly grateful to noble Lords for their wisdom and sagacity. This has been a very high-quality debate. I will provide the specific clarification to the noble Lord, Lord Winston, and circulate it to other noble Lords who have taken part in the debate. I thank them once again for their contributions.

Mental Capacity (Amendment) Bill [HL]

Baroness Barker Excerpts

3rd reading (Hansard): House of Lords
Tuesday 11th December 2018 Lords Chamber

[Baroness Watkins of Tavistock (CB)]

My Lords, I concur with what other noble Lords have said and ask the Government to take one more look at the remaining conflict of interest relating to independent hospitals. It appears they will be able to employ their own AMCPs and, as the responsible body, authorise the deprivation of liberty of people in the hospital. This could pose a huge conflict of interest. The team has taken a great deal of trouble to remove this in the care home setting, and it seems it would be relatively straightforward to do so for independent hospitals. I fully support the amendments outlined today.

[Baroness Barker (LD)]

My Lords, I too thank the Minister for bringing forward this amendment and for having taken the time and effort to discuss the thinking of the department with many of us. I pay tribute to him and to the noble Baroness, Lady Stedman-Scott. They were rookies—this was their first ever Bill—and they have done a tremendous job, not least because it is a fairly open secret that many of us think this is one of the worst pieces of legislation ever brought before this House. I seriously mean that; we have said it several times. Together, they have enabled all of us in this House to play a very responsible role in turning some very bad legislation into legislation that is still in many regards highly deficient, but not as bad as it was.

As the noble Baroness, Lady Murphy, said, inevitably we failed to see the wood for the trees. We were so busy dealing with big defects in what was presented to us that we did not really get the chance to stand back and look at what would be an efficient overall system. It is for people in the House of Commons to look at what remains to be done to improve the Bill as it comes to them.

Part of it is that we spent so much time looking at the role of care home managers, we did not get around to thinking about how AMCPs, IMCAs and appointed persons could work together more efficiently to ensure that the most vulnerable get the most attention. It is unfortunate that Sir Simon Wessely’s review came to us only last week, with, at its very heart, the important issue of objection, the implications of which we should have been able to discuss in this Bill. I am sure we will need to return to that.

On this amendment, I thank the Minister for widening the triggers to include the involvement of an AMCP. But I want to flag up to those who will look at this in future the change in the role of care home managers and the role they will continue to play in renewing deprivations of liberty for up to three years, which is a big concern.

I also want to return to an issue that has been raised before: why, in this Bill, do we continue to deploy the best interest argument when it comes to ensuring that somebody has an IMCA? Several times we have asked to see the evidence base for creating that hurdle to access an IMCA, and the Government have yet again not given us any. A lot of people, particularly older women with dementia, will not get an IMCA because they will not be deemed to be objecting.

Perhaps the Bill’s biggest deficiency, and one we have not discussed much, is that practically nothing is in regulation; large swathes of it will be left to a code of practice. If one goes back to the Mental Capacity Act, however, one finds regulations that relate primarily to those who will be enacting this legislation. Regulatory conditions are applied to those who can be an AMCP, and to what their training has to be, and to those who can act as an IMCA, and to their ongoing duties to maintain contact when people move and to step in when the appropriate person, for some reason or another, ceases to fulfil the obligations it was initially assumed they would.

I say to those who will look at this in the House of Commons: the Government must be required, apart from anything else, to come forward with a great deal more detail than we have been able to elicit from them. With that, I welcome what is before us today.

[Baroness Thornton (Lab)]

My Lords, I join other noble Lords in welcoming this amendment, which we will of course support. It is a little disappointing that we have not made all the progress that we wished around the AMCP. We are half way there with the pre-assessment regime in this amendment and have a commitment that the other part will be undertaken in the Commons. As the Minister and other noble Lords will be aware, the Bill has to end its passage here anyway, so we will be able to see whether those commitments have been fulfilled to ensure that the safeguards are in place.

As we discussed on Report, and in the helpful meeting with the Bill team, the amendments we were seeking—to ensure that the care home manager is not responsible for decisions about independent consultation —have been responded to. However, I am not sure we are quite there yet.

As the noble Baroness, Lady Watkins, pointed out, a question remains about independent hospitals employing their own AMCPs and whether that is a conflict of interest that needs to be dealt with by the Bill. As other noble Lords have said, we need to ensure that if the person who expresses concern is a member of staff, they will be protected under the whistleblowing regime. I accept that, as the noble Baroness, Lady Finlay, said, that would not necessarily be included in the Bill, but it simply has to be there, otherwise this will not work.

The noble Baroness said that we are going to congratulate each other, but I shall do that next.

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[Lord O’Shaughnessy]

My Lords, I will use the opportunity of my closing speech to offer my sincere thanks to all those in the House who have contributed to the passage of this Bill. I hope that I will not miss out any names from this list, but I want to thank the noble Baronesses, Lady Thornton, Lady Jolly, Lady Tyler, Lady Barker, Lady Wheeler, Lady Finlay, Lady Hollins, Lady Murphy, Lady Watkins and Lady Meacher, as well as the noble Lords, Lord Hunt and Lord Touhig, and the noble and learned Lord, Lord Woolf, for their contributions. I also thank my noble friend Lady Stedman-Scott for her steadfast support. In her first time at the Dispatch Box she was stupendous and set a high bar for future performances. Lastly, I thank my noble friend Lady Barran, who gave us an excellent maiden speech during the passage of the Bill, and congratulate her on her promotion to the Whips’ Office.

I believe that, by working together constructively over the past six months, we have much improved the Bill. In doing so, we have provided a system that will protect much better the 2 million people in our society who have impaired capacity. As noble Lords have brought to life during the passage of the Bill, that is something of which many of us have personal experience. I think that there is broad agreement that the current system does not work and needs to be changed, to put the cared-for person at the centre of it. I also believe that during the passage of the Bill through this House, and in response to suggestions and ideas from noble Lords, we have made some significant improvements. Once again I beg to disagree with the noble Baroness, Lady Murphy. We have not made just superficial changes: rather, some really important changes have been made.

The Bill will now apply to 16 and 17 year-olds as well as those aged over 18. We have carefully designed a role for care homes while eliminating conflicts of interest and being clearer about their role in the system. We have been explicit that the person completing assessments must have appropriate skills and knowledge, and a statement to the responsible body must be written. The Bill no longer contains the outmoded and unwanted references to “unsound mind” and we have also strengthened the provisions around appointing IMCAs, including a presumption that they now will be appointed. I hope that in practice that deals with the concern just expressed by the noble Baroness, Lady Barker. We have also made sure that the cared-for person must be consulted so that their voice is heard in every case, and today we have amended the Bill to enable families and staff whistleblowers to raise concerns much sooner and for those concerns to be acted on.

I should also say that the House has made its own opinion known in defeating the Government on the issue of specifying that arrangements should be necessary and proportionate in order to prevent harm to self, and I can confirm that the Government will not seek to change this position in the Commons. The Government will also carefully consider the amendment passed by noble Lords on rights of information being provided to the person.

The Bill will now move forward to the Commons and I can give some reassurance about several of the issues that noble Lords raised in the last debate. As I say, we have committed to make sure that the amendment passed today will be reflected in the sense of being able to raise concerns at the review stage. We will also provide clarification about referrals to AMCPs, including independent hospitals. That was a commitment I gave on Report and I am very happy to repeat it. It will look not only at independent hospitals but at whether there are other circumstances, and what they ought to be, when a referral to an AMCP ought to be direct.

I should also say a word in response to the noble Baronesses, Lady Meacher and Lady Hollins, about the definition of deprivation of liberty. Again, I can confirm that this is something we intend to deal with in the Commons. I hope the noble Baronesses will be reassured on that. We have achieved a lot, and even if there is more that we wanted to achieve, the contributions of noble Lords have directly influenced the changes that we intend to make in the Commons. So, although it is for those in the other place to pass the amendments, noble Lords should be congratulated on their role in designing them. I hope that they will get support when we move them in the other place.

A further question was asked about the flexibility of reviews by, I think, the noble Baronesses, Lady Hollins and Lady Barker. We will need to consider that. It is worth pointing out that it is a flexibility, not a timeframe, and that it is meant to allow for continuity in situations where the circumstances of the person are not changing. Clearly, safeguards in the system will allow for much quicker reviews if there is a reason for them. Indeed, the amendment we passed today is another way in which such a review could be triggered. So I will certainly take on board the noble Baronesses’ points about flexibility, but I think that there are enough safeguards in the system.

I hope that I have answered all noble Lords’ questions. I am sure that the conversation will continue. There is much work still to do. I thank the hard-working policy team for their engagement in this process, as well as all the stakeholders who have contributed, given us their thoughts, challenged us at times and as a consequence made this legislation better.

I want to end with some reflection. We know that these are difficult and divisive times in our country and in Parliament, but we have shown through the passage of the Bill that we can work together to improve legislation, reform public services and protect vulnerable people. We should all bear that in mind as we move through the days and weeks ahead. With that, I thank noble Lords for their contributions and I beg to move.

[Baroness Barker]

My Lords, I do not want to detain the House but I have one or two important things to say. First, the House owes a debt of gratitude to the ministerial team for their work in getting us to this point. The noble Lord, Lord O’Shaughnessy, should take a great deal of the credit for enabling all the things he listed as achievements of the House, going forward. Obviously, the Bill leaves us in a much better state than when it arrived.

There was one contribution by a Member of your Lordships’ House that we have not acknowledged but should: that of the noble Baroness, Lady Browning. She has not been able to take part in many of our debates but she made an important contribution when she stood up and said that the Bournewood gap still exists. For all our work, it does, and it will continue to exist until such time as we sit down and really consider mental health and mental capacity legislation, including who makes the decisions about who comes under what piece of law. Until we sort out that gap, people will still be deprived of their liberty. We can call it by a different name, but they will be.

I will ask the Minister to reflect on one thing. Nobody came to this legislation believing that DoLS had to be preserved. Everybody knew that it was wrong. Everybody understands that we need to make greater and better use of the limited professional resources for overseeing the lives of people detained for one reason or another. We should listen to the noble Baroness, Lady Browning, and reflect on what else Parliament may have to do over the next five, six or seven years to make sure that the gap is addressed once and for all so that people are not wrongfully detained.

[Baroness Finlay of Llandaff]

My Lords, I will very briefly add my thanks to the Minister, the noble Baroness, Lady Stedman-Scott, and the Bill team, for listening. I also thank everyone from outside who brought their own experience, either individually or as part of a professional group, a voluntary sector group or the care home sector. I thank personally those in the Welsh Government who arranged meetings for me and also brought expertise, coming from a different health service framework. That was important because this legislation must apply across England and Wales. So I add my thanks to others.

Sexual Health Services

Baroness Barker Excerpts

Thursday 29th November 2018 Lords Chamber

[Lord O’Shaughnessy]

My noble friend makes an excellent point: we have cause for optimism not least because of the work that he, the noble Lord, Lord Cashman, and so many others have done. I mentioned the decline in diagnoses year on year. The UK has met the UN’s 90-90-90 ambition in every part of the country, including London. Having done that, which is a huge achievement, of course we should set our sights higher. I should be very happy to discuss with noble Lords exactly what our target should be. Clearly, a zero infection rate must be where we want to get to in the end.

[Baroness Barker (LD)]

My Lords, given the Minister’s Answer to the noble Lord, Lord Cashman, about the general population, does he agree that the over- representation of people from black and minority ethnic communities, with high incidences of HIV and late diagnosis, is a continuing problem that Public Health England has yet to address?

[Lord O’Shaughnessy]

I agree with the noble Baroness that that is a continuing problem. Infection with certain diseases is disproportionately distributed. Testing and screening are not taking place uniformly among different groups. Public Health England published an action plan about a year ago on how to improve sexual health services and is trying to address that specific issue.

Mental Capacity (Amendment) Bill [HL]

Baroness Barker Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 27th November 2018 Lords Chamber

[Baroness Barker (LD)]

My Lords, my name is attached to some of the amendments in this group, most notably Amendment 88. I endorse everything that the noble Baroness, Lady Watkins, said in her introduction. It is paramount that those detained under this legislation, and their friends and family who care for them, must know in exact detail that they are being detained under a law that stipulates that their detention should be the least restrictive option for their care and what their rights are.

In speaking to my amendment, I wish to return to a theme I have spoken to throughout our discussions: the role of a code of practice. As I said in our previous discussions on the right to information—as set out in cols. 335-38 of Hansard on 15 October—there is a fair amount of unease and disquiet among stakeholders about the Government’s understanding of the duty to provide information and its place in legislation. It is important to state again that statutory codes do not exist without a statute, and the majority of laws do not have a code of practice. Codes are there only for when non-legal people are using a law directly. No one expects non-legal people to read or necessarily understand a statute and so a code is provided. Such a code follows what is in statute and sets it out in lay terms and at length. But it would not exist if the obligation in law was not clearly set out.

We have had some case law about the Mental Capacity Act code of practice. In 2018, in the case of An NHS Trust and others (Respondents) v Y, the Supreme Court said:

“Whatever the weight given to the Code by section 42 of the MCA 2005, it does not create an obligation as a matter of law to apply to court in every case”.


In the Mental Health Act code, which has been in force for a very long time, and to which the original drafters of the Mental Capacity Act looked when drawing up the legislation back in 2005, there is an explicit duty on hospital managers to provide information to a person who is detained and to the relevant interested persons responsible for their welfare.

No doubt the department will stick to its line that a code of practice is adequate. However, for the reasons I have outlined, which I think are compelling, we do not. I therefore simply wish to indicate that if the noble Baroness, Lady Watkins, is minded to push her amendment to a vote, she will have support from this side of the House.

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[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)]

My Lords, I first thank the noble Baroness, Lady Watkins, for introducing this group of amendments, both for her own speech and for representing the noble Baroness, Lady Hollins, as she does. I thank all noble Lords for their contributions. These amendments clearly relate to providing information to the cared-for person, which is a critical issue that we have debated throughout this Bill.

Amendments 49 and 85, tabled by the noble Baroness, Lady Finlay, require that the authorisation record must be provided to the cared-for person, or their representative, their donee of lasting power of attorney, or a court-appointed deputy, and also to the team providing care in the person’s place of residence. Amendment 83, tabled by the noble Baronesses, Lady Barker and Lady Thornton, specifies that the authorisation record must also include details of how the deprivation of liberty, or its effect on the person, will be reduced. I will deal with Amendment 29, the first amendment in this group, shortly.

I introduce these amendments in order to talk about less restrictive care. Less restrictive care is a central aspect of the new liberty protection safeguards, as a result of the necessary and proportionate assessment. This was emphasised by the Law Commission in its final report, which concluded that,

“integral to the question of whether the deprivation of liberty is proportionate (as well as necessary) is consideration of whether there is a less intrusive alternative”.

Less restrictive care is also a vital principle of the Mental Capacity Act—as set out in Section 1(5)—and therefore should be considered at all stages of the process. It is already considered as part of the current DoLS system.

Given the abiding role of “best interests”, as discussed in the last day of Committee, as a principle of the Mental Capacity Act, it does not need to be restated in the Bill. Indeed, our belief is that the liberty protection safeguards scheme will drive less restrictive care, as it will require the responsible body to specify a programme of regular reviews. This review should be triggered if there is a significant change in the cared-for person’s circumstances. Critically, this means that if there are practicable, less restrictive alternatives available, the authorisation will cease to have effect as the arrangements will no longer be necessary and proportionate.

Amendment 86, tabled by the noble Baronesses, Lady Hollins, Lady Thornton, Lady Jolly and Lady Watkins, would require the responsible body to ensure that the cared-for person, appropriate person and IMCA, or independent mental capacity advocate, are given a copy of the care plan as soon as possible and those consulted with should be provided with a copy unless there is good reason not to do so. As has been mentioned, this was discussed at every stage of the Bill, in the Chamber and outside it. I agree that it is vital that relevant people are given full information about the authorisation and the rights of a cared-for person, including rights to review and to challenge authorisation.

The key point, and the reason why we do not support these amendments, is that this is already the case in law, which clearly provides that people must be given appropriate information. This is required by Article 5 of the ECHR, as enacted into UK law by the Human Rights Act. Article 5(2) sets out that everyone deprived of their liberty must be informed promptly and in a language that he or she understands. This should set out the reasons for the deprivation of liberty. Where a person has been informed of the reasons, he or she may apply to a court to challenge the lawfulness of their detention in accordance with Article 5(4). It is plain from the wording of Article 5(2) that the duty on the state is to proactively provide specific information to the individual or their representative. Whether the information provided is sufficient must be assessed depending on circumstances, but, as a minimum, people must be given information in simple, non-technical language that they can understand.

It is also worth noting that the Law Commission’s draft Bill did not explicitly outline what information should be provided. The Government took forward the Law Commission’s approach, as we have been encouraged to throughout by noble Lords, because we are satisfied that Article 5 makes it clear that a person has the right to information. So while I have carefully considered whether the Bill should be amended to explicitly state what information should be provided, I believe that it would be better to set out specific details in the code of practice.

On the specific point from the noble Baroness, Lady Barker, about statutory codes of practice having to sit within a framework of law, the Human Rights Act, which enacts the ECHR into British law, provides the route into law. Therefore, I believe that the code of practice is the appropriate place and has that anchor in statute. Furthermore, it is appropriate to set this out in the code of practice because it will allow us to fully and accurately capture the detail of all the people who should be provided with information, exactly what information should be provided and how, and to be able to amend it without having to amend primary legislation over time.

One of the problems with the original DoLS legislation is that it is overly prescriptive. Indeed, this House found in its post-legislative scrutiny of the Mental Capacity Act that the provisions for DoLS were “overly complex”. These amendments set out, for example, who should be provided with the authorisation records, but they exclude others who might need the care plan, such as members of the care team providing support in the community, not in the person’s place of residence. We believe it is precisely that level of detail that is better set out in the code of practice.

Amendment 29, tabled by the noble Baronesses, Lady Hollins, Lady Thornton, Lady Jolly and Lady Watkins, specifically seeks to address this point. This amendment outlines that a person must be fully informed of their rights and ensure that appropriate persons and IMCAs understand their rights and duties. Further to this, Amendment 88, tabled by the noble Baroness, Lady Barker, would require the cared-for person and their representative to be informed, in addition to any person likely to be carrying out the arrangements, if their authorisation ceases to have effect.

I absolutely agree that it is vital that people are informed of their rights. Let me be clear that this Bill does not take away or amend any rights. Article 5 is already clear that people have a right to information. However, we want to use the code of practice, rather than the Bill, to outline how this applies. As I said, this is so that we can provide a level of detail there that would simply not be appropriate in the Bill. We would also use the code to detail, for example, the role of the IMCA and/or the appropriate person’s role in the provision of information and ensuring that people are supported in understanding their rights.

In closing, I want to address Amendment 87 which supports, as it were, this set of amendments. As the noble Baroness, Lady Finlay, pointed out, Amendment 87 would require an approved mental capacity professional to complete an investigation where the relevant parties disagree over any aspect of an authorisation. If agreement is still not reached, it would require independent mediation. I agree with her that it is vital that the new system of liberty protection safeguards ensures that the voice of the person is heard and that there is an appropriate level of scrutiny in all authorisations. That is why we have been explicit that the person must be consulted with, as we will discuss later, and why, as a result of government amendments brought forward after listening to noble Lords, if there is no appropriate person acting as a representative, there is now in effect a presumption that an IMCA should be appointed. Again we will discuss that later. It is also why we have tabled amendments to remove conflict of interest and to make clear who should and who should not carry out pre-authorisation reviews.

So while the Government recognise the important role that mediation plays within the NHS, we do not believe that it is necessary to make it a compulsory feature of the system. There are fantastic systems of mediation already available, through private, public and charitable sectors; indeed, the noble Baroness gave us an example of a further initiative in this area. It is worth noting, on this point, that the Mental Capacity Act code of practice already provides guidance about mediation. In answer to her specific question, while we do not think it is necessary to have it in the Bill, I can confirm that guidance on the use of mediation will be in the code of practice and we will make sure that that is as up to date as possible and comprehensive in taking account of new schemes.

I will finish by saying that while I applaud and recognise the importance of the right to information, not just for the cared-for person but for everybody representing them, the Government’s view is that this is already adequately accounted for in law, so we do not need to set it out in the Bill. Indeed, it may be counterproductive to do so, by not being able to be comprehensive of every category of person. For that reason, I fear that we are not able to support these amendments.

[Baroness Barker]

Can the Minister confirm that, if the amendment in the name of the noble Baroness, Lady Watkins, is passed, it does not preclude the Government from setting out anything they like in the code of practice, at considerable length, to explain the detail of what information should be conveyed to whom and how? Does he agree that it might be helpful to have her amendment in the Bill, if only to bridge the rather large chasm between Article 5 rights and the code of practice? Would her amendment not be rather helpful?

[Lord O’Shaughnessy]

On the noble Baroness’s first point, of course there is nothing to stop us setting out anything in the code of practice. The concern would be whether there would be a clash between what was set out in the Bill and what was set out in the code of practice or in Article 5. That is one of our concerns and it is for that and other reasons that unfortunately we are not able to support that amendment.

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[Baroness Barker]

My Lords, like the noble Baroness, Lady Finlay, I do not intend to pay much attention to many of the amendments in this group because the Government made significant moves last week in relation to the role of the care home manager.

In relation to Amendment 121, I take this opportunity to raise again an issue I mentioned during our deliberations last week. There has been a great deal of talk about the Bill and the code of practice, but there has been very little said about regulations under the Bill. In particular, very little has been said about the functions of IMCAs in representing and supporting people under the schedule which are a bit different from the role of the IMCA in other circumstances under the rest of the Mental Capacity Act. Unlike DoLS, the Bill does not make detailed provisions for this or any regulations.

Can the Minister confirm whether amendments will be forthcoming in this area in relation to the functions of IMCAs? Specifically, will the Government look at amendments in relation to Section 35 of the Mental Capacity Act to place a clear duty on the responsible authority to make arrangements to enable IMCAs to be available and to represent and support cared-for persons under paragraph 36 of Schedule 1 to this Bill and in addition to support the appropriate person to fulfil their functions under paragraph 37? Can the Minister also confirm that the existing regulation power under Section 36 of the Mental Capacity Act will be extended to reflect the IMCAs’ function under the schedule?

A particular concern that has been raised with us by stakeholders is that there is no current reference in paragraph 36 to maintaining contact with the cared-for person and supporting their rights under the schedule. Given that the intention is that under the Bill authorisations will be made for much longer periods than was intended under the original Bill—longer than 12 months—it is rather important that someone who is acting in the role of an IMCA continues to have an ongoing involvement with that person. I understand why on this occasion it may not be entirely appropriate to put that in the Bill, but it is an issue of such significance that it might well come under the aegis of regulations.

[Lord O’Shaughnessy]

I thank the noble Baronesses for speaking to the amendments in this group. Before I deal with their questions, I say to the House that I take note of the significant margin in the vote on the previous group of amendments. That is something that the Government will reflect on.

I am grateful for the recognition by the noble Baronesses of the progress that we made on the last day of Report in defining the care home manager much better. I am grateful to everyone who has contributed to that process; we have made progress.

I turn to the specific questions posed by the noble Baroness, Lady Finlay. She asked about determining that arrangements are necessary and proportionate and inspecting proposals, conditions and indeed the care plan. The preauthorisation reviewer—as we are about to discuss, we are tightening up who can carry out that role—will thoroughly scrutinise arrangements and need to satisfy themselves that they are necessary and proportionate. It is also worth saying that in making the determination they have the power, if they so wish, to meet the person to determine that, which clearly is important. There is another critical matter, although we will come to this when we talk about conditions so I do not want to pre-empt that discussion too much: in making an authorisation, the responsible body can also then set a timetable of regular reviews to take place so that there is a process of ongoing review to ensure that the “necessary and proportionate assessment” test is always being passed.

We also said—this deals slightly with one of the points that the noble Baroness, Lady Barker, was making—that if the responsible body is not satisfied that the care home manager is capable of fulfilling this function, they can take on the role of organising assessments themselves. That is, to use the phrase that we coined last time, a backstop that provides some reassurance that any variable quality in provision should not affect the process by which assessments are made and organised and the preauthorisation reviews carried out.

It is absolutely the case that responsible bodies will be able to demand to see care plans and care and support plans as part of their deliberations. That is something that they can ask for, and we would expect that they will be provided because the whole point of the process that we are trying to move to is that decisions on and circumstances around deprivations of liberty are actually integrated into care planning and therefore ought not to be divisible in that sense. I hope that that provides reassurance, but if I can provide more by follow-up, I shall be happy to do so.

The noble Baroness, Lady Barker, asked some specific questions, which I shall need to consider, on the regulation-making power. I do not want to get that answer wrong without considering it, but we can meet in the coming days to ensure that she is reassured on that. A group of government amendments about IMCAs that we will discuss later provides greater reassurance on their role, in that, if they are agreed to, there will be a presumption in favour of an IMCA, removing the gatekeeper role that we have discussed. Also, the preauthorisation review will be carried out only by a responsible body, which must apply that presumption of access to an IMCA, so there will be much greater rights to advocacy on an ongoing basis.

The noble Baroness makes an excellent point about maintaining contact. As we move to a system of regular reviews, it is important to make sure that someone is alongside the cared-for person who can flag up any problems—for example, that a less restrictive care option is available, or that there is an objection. As we discussed, passive objections can materialise many weeks or months later. That ongoing role is clearly very important, whether it is for the IMCA or the appropriate person, the family member, or whoever. I give her the commitment that we will determine that in the code of practice.

I hope that I have answered the questions from both noble Baronesses and that on that basis, the noble Baroness will feel comfortable withdrawing her amendment.

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Doing this in regulations allows us to provide the necessary detail and, given the complexity of the care home sector, will ensure that there are no loopholes. It will also provide a further opportunity for consultation with the sector, given the wide range of issues that will need to be considered. I am confident that these amendments strengthen the preauthorisation review process and in turn ensure that everyone’s arrangements receive proper, independent scrutiny. I beg to move.

[Baroness Barker]

My Lords, I think the Minister deserves our congratulations on having met all the conditions that we around the House said we believed were important. I am sure that the Government always intended to have some of these matters as part of the legislation, but making them explicit in the context of the Bill is helpful. Not least, it will be helpful to care home managers themselves, who will welcome the protections from unjust accusations of undue influence in future. On behalf of these Benches—and, I should imagine, others—we welcome that.

[Baroness Thornton (Lab)]

My Lords, I agree with the noble Baroness, Lady Barker, and welcome these amendments. As the Minister said, they are very important and deal with the issues of conflicts of interest and the preauthorisation review. I congratulate the Minister on navigating us to this point, and certainly we will be supporting the amendments.

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[Baroness Finlay of Llandaff]

My Lords, Amendment 35 is a failsafe mechanism that will save a great deal of court time in the future and make it clear where the process has halted if things go awry. The failsafe is that an approved mental capacity professional—AMCP—can veto authorisation if the AMCP has grounds to object. However, it is important that the AMCP cannot authorise arrangements. In other words, the default position is to preserve liberty and not to impose restrictions on a person without a very sound reason. It is important that we are explicit about the extent of the AMCP’s powers, whether on the face of the Bill or in subsequent regulation, as we will need to be more prescriptive about these powers in the statutory code of practice than we have been to date, for the sound reason of flexibility and the independence of the AMCP.

The reason I tabled the amendment and feel it should be in the Bill is that there is a risk that local authorities facing financial stringencies might be inclined to authorise arrangements that are less costly, thereby revealing an inherent conflict of interest where a local authority is funding a person’s care. We have had many debates about conflicts of interest in relation to care homes but we must remember that in a whole-health and social care system which is under financial pressure, all kinds of little conflicts and pressures can creep in.

The other amendments in this group specify the different criteria whereby an approved mental capacity professional must conduct the review. I am not going to go through each line of these amendments—they are quite self-explanatory—but they show the importance of that degree of independence before taking the major step of imposing restrictions on somebody’s liberty and conditions under the new liberty protection safeguards process. I beg to move.

[Baroness Barker]

My Lords, I will speak briefly to Amendment 77 in my name, which was drawn up because of the experience of many relatives. I make particular reference to the case of Stephen Neary, where relatives had to deal with local authorities which were telling them wrongfully what their position was in law. A great deal of responsibility was put on to the relatives to oversee the right interpretation of the law. This amendment seeks to ensure that, where they are acting in the best interests of someone who is cared for, relatives would be able to meet an AMCP and trigger their involvement. In our earlier discussions, there was an underlying sense on the Government Benches that the involvement of professionals can often be an unwelcome intrusion into families. In fact, many of them do not find that at all. Many find that the first occasion when they come into contact with a professional is the point at which all sorts of information and understanding becomes available to them in support of their loved ones.

Although I am not seeking to press this amendment today, I hope that the Minister might think about it and, if he is disposed to do so, make some supportive statements.

[Baroness Thornton]

My Lords, I will speak briefly to Amendment 46, which is in my name and supported by the noble Baroness, Lady Barker. It provides that the care home manager, or any person interested in the cared-for person’s welfare, is responsible for being satisfied that an AMCP should carry out a pre-authorisation review. The Committee has already discussed this and the important safeguards which we will be seeking come under Amendment 76A. Some of the important matters raised by the noble Baronesses, Lady Finlay and Lady Barker, have been addressed by the Minister in the Government’s amendments. I look forward to his reply.

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[Lord Touhig (Lab)]

My Lords, at Second Reading I said that there was much to be concerned about in this Bill and that I really hoped the Government would be in listening mode. For the most part, the Government have listened and have made improvements, thanks to the willingness of the Minister and Bill team to listen and to the hard work and commitment of noble Lords on all sides of the House, who have pursued improvements with all the energy they could command.

Government Amendments 41 and 96, requiring a care home manager to provide a written statement to the responsible body to authorise and renew arrangements, seem pretty obvious. Most of us would think that it is common sense to provide a statement in writing, but my late mother would often lament that I would find that, in life, sense is not that common. We certainly welcome these amendments.

The same applies to Amendments 47 and 59, which will ensure that the determination that arrangements are necessary and proportionate is to be made in an assessment, and that a record of this assessment must accompany the statement from the care home manager to the responsible body before an order to authorise arrangements is made. This is also most welcome. On this side, we certainly welcome these amendments.

[Baroness Barker]

My Lords, I also welcome these amendments and want to make a brief observation. Since the summer, like many other noble Lords, I have spent a great deal of time talking to practitioners and stakeholders. If one were to try to thoroughly amend and improve the DoLS and LPS systems, you would start not with the role of the care home manager but with the paperwork and the bureaucracy. Before the code of practice is written, the Government would do well to spend some considerable time talking to local authorities and practitioners about paperwork and communication, because that is perhaps the biggest cause of the backlog of people who have yet to have a proper assessment.

I hope that the Minister will take on board what noble Lords have said on this matter. It is not a commitment to the current way of doing things; rather, although noble Lords are committed to ensuring that people are sufficiently informed, we are not averse to changing and modernising the systems to make them work more efficiently.

[Lord O'Shaughnessy]

I am grateful to the noble Lord, Lord Touhig, and the noble Baroness, Lady Barker, for their support for these amendments.

I want to reflect on the last point made, which is very important. The reference is to a written statement, which tends to bring to mind a piece of paper, but of course what we are really talking about are digital records. A great deal of thought has to be put into whether a paper system—or digital records—passing back and forth is the best way to go about this, or whether we can make a technological intervention. That is particularly true if we want these authorisations to be much more dynamic, so that their consistency and application can be assessed over time. There might be technological interventions we can make to make that process easier. I take that advice on board. We will absolutely talk to local authorities, cared-for people, their representatives, charities and others in making sure that we do it right. Noble Lords will be aware that the Secretary of State is a true technophile, and I imagine he would relish the opportunity to inject a bit of innovation into this area to make everyone’s life easier. I will take that point forward.

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Moved by

[Baroness Barker]

60: Schedule 1, page 12, line 12, after “necessary” insert “to prevent harm to the cared-for person”

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Moved by

[Baroness Barker]

61: Schedule 1, page 12, line 12, at end insert “and that the arrangements will continue to be necessary and proportionate for the period of time for which the arrangements are sought.”

[Baroness Barker]

My Lords, Amendments 61 and 67 return to two issues that I and the noble Baroness, Lady Finlay, raised at earlier stages in our debates.

Amendment 61 pertains to what happens when the circumstances or condition of a person deprived of their liberty change. As we have said on previous occasions, that may be someone with dementia whose condition deteriorates or, as in the cases cited by the noble Baroness, Lady Finlay, it could be someone with a brain injury whose condition improves and who regains some of their capacity. It is the intention under the Bill that deprivations of liberty will last considerably longer than under current circumstances.

I seek an assurance that there is an ongoing duty on care home managers and those responsible for arranging and carrying out assessments to revisit people whose conditions are likely to change to ensure that their detention is still the least restrictive option.

In Amendment 67, I use the word “conditions” in a completely different sense. As has been said, under DoLS people carrying out assessments and authorisations have the right to say that it would be in order to detain someone and deprive them of their liberty provided that certain conditions are met. The noble Baroness, Lady Finlay, has given us memorable examples of what those conditions might be. However, in truth, the most common condition concerns medication and reviews of medication.

The Government have consistently said that the Bill does not alter that—and that, as ever, the matter will be dealt with in the code of practice—but I am simply asking for a statement from the Minister setting out the legal force by which it will be possible in future for those who are responsible for depriving people of their liberty to do so on the basis of conditions which must be met. The importance of those conditions— particularly when we talk about DoLS in the community —is that they can make something a least restrictive option and therefore admissible.

It is for that reason that I have returned to these two amendments today, and I beg to move.

[Baroness Finlay of Llandaff]

I have added my name to Amendment 61 because it is important that we recognise that no one has a crystal ball—we cannot predict what is going to happen. Even people we think might be seriously impaired, as the noble Baroness, Lady Barker, said, can sometimes improve and it can be quite unexpected.

It is inconceivable that the course of a person’s illness will match the timetable of annual reviews—that is not the way bodies behave when they have an impairment; if someone does not improve within an expected time frame, they must be reassessed. Otherwise, there is a real possibility that they will languish with inappropriate restrictions on their liberty when such restrictions are no longer necessary or proportionate. In fact, in the case of medication reviews, they may have become inappropriate because they may be on medication that is unnecessarily a sedative.

Of course, those who deteriorate will also need phased authorisations and reviews. Without the Government laying out explicitly this degree of uncertainty in the timeframe and the fact that wherever there is expected to be uncertainty, it should be specified, I fear that there will be pressure to define the amendment’s principle by going to court. We will then end up with a court precedent that is not necessarily applicable to a lot of people, but which they will get caught up in anyway. We will end up with a risk-averse response. I hope the Government will be able to accept, if not the actual wording of the amendment, the principle that the timeliness and the timeframe need to be specified wherever possible to avoid that confusion.

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[Lord O’Shaughnessy]

I thank the noble Baronesses for introducing their amendments and giving us the opportunity to discuss this important issue. I will set out why the Government have taken a different approach and attempt to explain it.

It is not that we do not think conditions are important. The use of conditions should be baked into the care plan and the arrangements put forward for authorisation, rather than being added only at the point of authorisation. This is not to say that the conditions—let us call them the elements of the arrangements—pointed out by the noble Baroness, Lady Tyler, and other noble Baronesses are not critical. Obviously, they are critical to making sure that the elements are the least restrictive. This is about when they are put in place in the care planning and authorisation process. I shall explain our approach, which I hope will satisfy noble Lords, but we can see whether further discussions are required.

I will deal with the amendments in order. Amendment 61 states that it should be determined by the responsible body,

“that the arrangements will continue to be necessary and proportionate for the period of time for which the arrangements are sought”.

We absolutely agree that this should form part of our model and I confirm that this will be considered by the responsible body.

Furthermore, under the Bill, the responsible body is required to specify a programme of regular reviews at the point of authorisation. In a sense, it gets to specify at the point of authorisation how frequently reviews should take place, to seek whether changes in arrangements or other changes have taken place. This means that the care home manager—or the responsible body, if it is carrying it out directly—will be continually required to consider whether arrangements are necessary and proportionate. That is baked into the system we are introducing.

Amendment 67 specifies that conditions can be put on authorisations and, of course, conditions exist under the current DoLS system. However, with the backlog, by the time they come into force, it is often too late, because the person has been subject to the arrangements for some time before the conditions can be applied. In developing the liberty protection safeguards system, we have taken a different approach; for that reason, conditions have not been included in the Bill. Again, it is worth pointing out that this is consistent with the approach adopted by the Law Commission, which concluded that conditions, as currently provided for under the DoLS system, were not necessary under its new scheme. The Law Commission’s final report states on page 112 that, instead of DoLS conditions, the scheme,

“focuses on particular arrangements and what will be authorised are very specific arrangements. Further, it is only arrangements which result in the minimum amount of deprivation of liberty possible that will be authorised, otherwise the necessary and proportionate condition will not be met. So the arrangements will need to be described in a way which builds in any conditions”.

In other words, arrangements under the Bill can be detailed in such a way as to have the same effect as conditions. For example, the authorised arrangements could include enabling the person to be taken out on trips with one-to-one support, or their care plan could specify that additional staff should be provided to enable the person to be taken out more frequently.

It is our view that doing this provides greater protections for the person. This approach means that conditions—or, if noble Lords prefer, specific arrangements—are considered as part of care planning, before an authorisation is sought, rather than being bolted on afterwards. Rather than being something that happens after the person is deprived of liberty, they would be an integral part of care planning, with the proposed arrangements submitted to the responsible body for review.

Notwithstanding this approach, I know the noble Baroness, Lady Barker, is keen to have a statement from me about current practice, under which a DoLS lead, or best-interests assessor, can insist that deprivation of liberty is authorised only if stated conditions are made. We are not proposing to change the ability of the responsible body, whether the responsible body itself or an AMCP, to make conditions as part of an authorisation. It will still be possible for that to happen. We are trying to ensure that the decision on appropriate conditions is made earlier in the care-planning process, so that they are incorporated into the arrangements that are then put to the responsible body for review, rather than being added when the review takes place. Failure to comply with these conditions, specifically because they have been within the authorisation, would mean that the authorisation would cease to have effect, and must be reviewed. There we come to the ongoing important role that appropriate persons, IMCAs and others will have, in making sure the person is supported, so that if there are any changes in their condition, or their circumstances, a review is triggered.

I recognise this is a fiendishly complicated thing to describe, and I have probably done a fairly inadequate job of it. However, I strongly believe that, in making this change, we are not trying to remove conditions, but move the concept of applying conditions to earlier in the care-planning process. That is the right thing to do. The responsible body will continue to be able to add subsequent conditions if it feels it is necessary for an authorisation. I genuinely believe that is a better system. Clearly, the proof of the pudding will be in the eating. On how this will happen in practice, there will need to be clear guidance and training to make sure that people are trained to do this, both at the care home, and in other NHS bodies, and to make sure that reviewers are capable of assessing such arrangements and making their own subsequent conditions, if they feel it is necessary. That guidance and training is something we aim to provide, of course.

I hope I have explained why we take the point the noble Baronesses made in tabling these amendments very seriously, and shown that the system allows for it. It puts this consideration earlier in the planning process, we hope with better effect. We have been guided by the Law Commission’s approach in this way. I hope this has been persuasive, but if further discussion and elaboration is needed, I would be more than happy to give it following today’s debate.

[Baroness Barker]

I thank the Minister very much for his response. We are arguing not about two opposites but about a gap that I am trying to close, the answer to which lies in why conditions happen. They happen not necessarily because of any failure of care planning, which I think the Minister is talking about, or to improve care planning, but because in real life people end up being cared for in a particular place. Things to which they object or limitations in their care become apparent at the point at which someone goes to do the authorisation.

I am all in favour of improving personalised care planning and so on, but the one thing that DoLS and best-interests assessors have been absolutely united in saying is that this makes a practical difference when they go to see people. I am very happy that the Minister said that it would still be the responsibility of a responsible body to make sure that conditions are being met, and that, if they were not or if it became apparent that further conditions needed to be put in place, they would still be able to do so. With that reassurance, I am content that we have probably closed the gap that I was trying to close. On that basis, I am willing not to press the amendments.

Amendment 61 withdrawn.

Moved by

[Baroness Barker]

62: Schedule 1, page 12, line 12, at end insert “in relation to the likelihood and seriousness of harm to the cared-for person”

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[Baroness Thornton]

My Lords, right from the beginning of this Bill—at Second Reading and in Committee—concerns have been expressed across the House about how the interests of the cared-for person can be ensured through the process of using the AMCP when that person is at their most vulnerable and may not be articulate at all. The noble Baroness, Lady Finlay, articulated exactly what we are saying. Amendment 76A, in my name and those of the noble Baroness, Lady Barker, and the right reverend Prelate the Bishop of Oxford, is an essential fail-safe that we believe needs to be in the Bill.

Like the Minister, we have sought across the House to prioritise the issues that we thought were most important for the cared-for person. I think we have come through rather well in improving this Bill together, and mostly without having to resort to Divisions. I hope that the Minister will accept Amendment 76A, because it is certainly in line with the aspirations that he has expressed to the House about safeguarding the cared-for person. If he is not prepared to do that, certainly on these Benches we hope that the noble Baroness, Lady Finlay, will seek the opinion and support of the House, because it is certainly there.

[Baroness Barker]

My Lords, it has been a concern of all noble Lords who have taken part in discussions on the Bill that a person could be deprived of their liberty without seeing an appropriate professional at any time. We have argued back and forth about the extent to which access to an appropriate professional should be universal, automatic or whatever.

With this amendment, the noble Baroness, Lady Finlay, and those of us who have attached our names to it are trying to ensure that where the people who are most closely associated with a person have a genuine and deep concern—I imagine it would be a shared concern—but not necessarily a formal role, they can alert a professional to come in and make an assessment. We are trying to close a loophole that we think is still there.

If we can do that, we will be well on the way to doing what the Minister has indicated the Government are trying to do: to make the most effective and efficient use of professional resources amid a level of demand which we know cannot currently be met. We have moved some way from what we would ideally like to see and this amendment represents something of a compromise. I hope we can reach agreement on this last part of the link.

[Lord O'Shaughnessy]

I am grateful to the noble Baronesses for tabling these amendments and giving us the opportunity to debate this very important issue. I will come to Amendment 76A last, because clearly that is the one about which there has been the most debate and, in a sense, has the most import. First, I will deal briefly with the other amendments in the group.

Amendment 81 would require the person who conducts the pre-authorisation review to be a,

“registered health or social care professional”,

with appropriate skills, knowledge and experience. I think and hope that we dealt with that adequately on our previous day on Report. Those qualifications will be set out in the code of practice. Indeed, we might want to go more broadly than we have done historically on this.

Amendment 76 would require that where there is a dispute between the responsible body and the professional who completed the pre-authorisation review, it would automatically go up to an AMCP. I agree that in some cases that would be the right and prudent thing to do. In other cases, it may be able to be resolved between the two parties. Again, we dealt with that before and it is something I want to consider in our deliberations about the kinds of cases that an AMCP would look at.

The debate on Amendment 76A has been helpful in bringing out the core concern here: the role of whistleblowers. We have talked about the cared-for person, their family members, the appropriate person, IMCAs and others, but this is about the people who are doing the caring or who are employed by the organisation or organisations that are doing the caring. It is absolutely right—indeed, the Bill requires—that an AMCP must conduct a pre-authorisation review if there is a reasonable belief. Clearly, a note of concern being raised by a staff member would qualify because they would have understanding and knowledge of the care of that person.

Last week we had a Statement on the Gosport inquiry, in which the health system not listening to whistleblowers was critical in these issues not being dealt with for years and people losing their lives as a consequence. As the Government said in response to that, we are working with BEIS—the department with responsibility for such legislation—to see if there is anything we can do to strengthen the rules around whistleblowers. I take very seriously the concerns that have been raised by noble Lords. As I said, with Gosport and indeed many other instances, whether they involve one person or, sadly, dozens of people, this kind of issue crops up again and again. I understand its importance.

The concern I have at this point actually relates to the drafting. Because it would provide an automatic trigger, rather than one that gave some consideration to the seriousness of the case, there is a risk that it could be abused or that frivolous cases could be raised and put to an AMCP when it was not really justified. That is, in a sense, an issue with the drafting

I want to deal with this if we can. My suggestion, if noble Lords are willing, is to meet between now and Third Reading to discuss this topic—as well as any others we want to discuss, of course—to work out the right approach. This would enable us to get to the bottom of it, work out what is right and think about that in the context of other whistleblowing issues, of which we are all aware. It would ensure that if we all agree on the need to legislate, we can agree on what that ought to look like. Again, I emphasise the importance with which I regard this issue. I hope and believe that we can do something in the coming days to deal with it in a way on which we all agree, while having the effect that we want. On that basis, I hope that the noble Baroness is prepared to withdraw her amendment.

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[Lord O’Shaughnessy]

Before I address this amendment, I again thank noble Lords for their willingness to talk further on Amendment 76A so that we can reach the right conclusion.

The noble Baroness, Lady Thornton, quite rightly talked about the role of Amendment 82 being to make sure that the cared-for person has rights and that they are at the centre of the authorisation process. Of course, that is absolutely right. The reason why we have not taken the approach that the reviewer should meet all people in the system is because we want to provide a more proportionate system that nevertheless contains significant safeguards so that if there are any concerns about the nature of a review then not only would the reviewer, whether a responsible body or an IMCA, meet the person but there are opportunities for escalation beyond that.

Let me be absolutely clear that in cases where the person objects to the arrangements, the Bill already requires AMCPs to meet the person, where practicable and appropriate, when they complete the preauthorisation review. This amendment would require a face-to-face visit in all preauthorisation reviews, not only those completed by an AMCP, regardless of whether it is appropriate or practicable to do so.

I of course appreciate there will be circumstances where it is right and proper for the person conducting the preauthorisation review to meet the person, even in cases where the review is not completed by an AMCP. That is not precluded by the Bill. Indeed, it would be our expectation in some cases that that would happen. For example, if the person completing the preauthorisation review is concerned that adequate consultation has not taken place or if there is a question over the validity of any of the assessments provided, we think it right and proper for the person conducting the preauthorisation review to meet the cared-for person. Details about that, including scenarios, will be set out in the code of practice.

However, we also want to make sure that the system is proportionate. One of the problems we have at the moment is that it is not proportionate, and that is why we have a backlog. There are straightforward cases. For example, when someone who consented to living in the care home subsequently loses capacity and there is no reason to suspect that they would object to continuing to live in the care home, a meeting with the cared-for person would be very unlikely to change the outcome. In such cases, the person may have already undergone an assessment process and the person will also have access to representation—we are about to come on to IMCAs. Unless there are concerns about the validity of the assessments, it would not normally be necessary or proportionate to meet the person who, after all, had agreed to live in the care home.

A further potential effect of this amendment would be to require the person completing the preauthorisation review to meet the cared-for person, even if the person refuses. This is a topic we have discussed before. We do not think it goes with the ethos of the Mental Capacity Act, particularly in cases where someone has expressed a desire not to do so. It is important to stress that that is not just our conclusion but is also the conclusion of the Law Commission after its work. We believe that a targeted approach will be much more effective in making sure that those safeguards are in place.

While I understand the noble Baroness’s desire for reassurance that the cared-for person will be met, I do not think it would be appropriate in all cases. We have been clear during the passage of the Bill in the amendments that we have laid, and as we will specify in the code of practice, that there will be many circumstances when it is appropriate to do so but equally there will be circumstances when it is not appropriate. Therefore, we do not think it would be right to have a blanket application of this approach of the preauthorisation reviewer meeting the cared-for person. I hope that on that basis the noble Baroness will feel reassured and will withdraw her amendment.

[Baroness Barker]

During our deliberations the Minister has several times talked about people being forced to meet an IMCA or an AMCP when they do not want to. We have asked him to supply evidence of that. He has not yet done so, even though we are at this stage in our deliberations. Clearly this is a matter that may well return at a further stage in the Commons. I ask him again please to write to noble Lords with that evidence.

[Lord O’Shaughnessy]

I would be more than happy to do so.

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Moved by

[Baroness Barker]

89: Schedule 1, page 15, line 8, at end insert—
“(d) there are practicable less restrictive options that would meet the authorisation conditions”

[Baroness Barker]

This amendment follows on in some way from the previous discussion. It relates to a practical issue. We keep returning to the fact that authorisations are going to be made, potentially for a longer time—they can be renewed for up to three years —yet there is not much in the way of safeguards for those people for whom the initial authorisation and the process of review is no longer the least restrictive option. This again uses the importance of putting something in the Bill rather than sticking it in the back of a code of practice to ensure that in the process of reviewing an authorisation and bringing it to an earlier conclusion there is information about less restrictive options for that person that would meet the authorising conditions.

This is mostly the case for people who are discharged from hospital into a care home and whose care is then very often not reviewed. At that stage their care may be taken into consideration along with the sale of their own property. That is why it is important that we consider this issue as the Bill goes through, so that by enabling there to be longer authorisations for most people we are not putting a subgroup of people in jeopardy by not having this requirement to continue to look at less restrictive options. I beg to move.

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[Lord O'Shaughnessy]

I am grateful to the noble Baroness for moving the amendment and the other noble Baronesses who have spoken to it. The example given was very illuminating, and I rather like the idea of that happening automatically if you leave a vacuum cleaner in someone’s room. I might try that with my children and see what happens.

The key point here is that we want the least restrictive arrangements necessary to provide for the person’s ongoing care. That is the animating idea behind the liberty protection safeguards system. We believe that the effect of the amendment is catered for through the “necessary and proportionate” test. Let me explain that. When the Law Commission published its final report on this, it concluded that,

“integral to the question of whether the deprivation of liberty is proportionate (as well as necessary) is consideration of whether there is a less intrusive alternative”.

So consideration of whether an ongoing restriction continues to be necessary and proportionate is already baked in.

As I said, the nature of the authorisations to be given by the responsible body under the new system will instigate a system of regular reviews. To give an example, it might stipulate a review for someone with fluctuating capacity, where there is reason to believe that a review might be required after a period. The system being set up enables regular reviews in a way that provides greater specificity than is the case now.

The noble Baroness, Lady Barker, was concerned that, as the length of an authorisation was extended, although that might be all right for some people, it might not for others. That is a fantastically important point, but in the process of authorisation the responsible body will be able to stipulate more frequent reviews. Our hope would be that that would come from the care home manager or other person organising the arrangements in the process of their care planning, because they will have worked out, by looking after that person, that there is reason for regular review, but it could equally be something that the responsible body attaches as a condition to the arrangements.

The effect is that when less restrictive alternatives are practically available, the authorisation ceases to have effect. It is no longer applicable. As I said, that could be determined by continuous review, regular review or be flagged by anyone—a staff member, a family member or others—with an interest in the cared-for person’s welfare, which would trigger an updated review of the situation to see what less restrictive care was available.

Although I absolutely agree with the intent behind the amendment, the “necessary and proportionate” test is already in the Bill. It provides precisely the effect that the noble Baronesses seek. Indeed, because of the way we are dealing with specific arrangements in the authorisation process, it is something for which the responsible body can stipulate a system of regular reviews. I hope that, on that basis, they will be reassured that we are conscious of the importance of this issue but believe that it is dealt with in the Bill as amended, and that the noble Baroness will feel comfortable withdrawing the amendment.

[Baroness Barker]

I thank the noble Lord very much for those statements. He will understand that, given the state in which this Bill arrived in your Lordships’ House, there was a great deal of genuine concern among stakeholders that the people making the decisions—largely, care home managers—might not be in a position to know what would be a less restrictive option for somebody: to be either in their own home, or supported in the community. In this Report stage, it has been useful to go back over that ground and to put more clarification around the frequency and timing of reviews. That will be a tremendous test for this new system, given the way in which it has been set up for there to be a period of two-year renewals. Nevertheless, at this stage, I thank the Minister and beg leave to withdraw the amendment.

Amendment 89 withdrawn.

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[Baroness Barker]

My Lords, like all other noble Lords, I welcome the Government’s change of heart on this matter and am glad that they have understood the very real concerns about conflict of interest in relation to care home managers. However, I would like to take this opportunity to raise one other potential conflict of interest to which we have not really had time to pay much attention, and that is within the responsible body. The responsible body may well be the local authority which is funding somebody’s care home place. During meetings, stakeholders have been very concerned that the person within the responsible body who makes these decisions should not be within the commissioning part of that body, as there is the potential there for another conflict of interest.

Some further work will have to be done—I suspect either in regulations or in a code of practice—to make sure that we do not enable another conflict of interest to take place which is probably more important than a conflict of interest relating to a care home manager. It is just a case of being sure that all the decisions—although principally these decisions—are taken by a person within the responsible body but not within the financial decision-making parts of it.

[Baroness Thornton]

I have an amendment in this group which covers the same ground that we have been talking about for the last 20 or so minutes. It is probably not essential to pursue this amendment because the government amendments on this matter seem very comprehensive.

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[Baroness Barker]

I just want to be clear: am I right that the code of practice would not be amendable when any debate came? Would it come before this House simply for information purposes?

[Lord O'Shaughnessy]

That would be correct at the point at which it came before the House, but it would be published for consultation before then. There will be an opportunity for everybody—noble Lords, Members of the other place and stakeholders—to consider a draft and to recommend changes. The final product would be laid before Parliament.

We discussed the Mental Health Act review a little bit last week. We await its conclusions. Many of us have had conversations with Sir Simon Wessely about what it is likely to conclude, and about the interaction between the Mental Health Act and the mental capacity Bill when enacted. Since we are expecting its recommendations in the middle of next month—I think the scheduled date is the 12th—we will have an opportunity to consider the review’s recommendations before we move to the new system. Indeed, given that those recommendations will be out at about the time the Bill moves to the Commons, they will clearly be the subject of debate there. The Government will need to respond to those findings as we go through the Commons stages.

Amendments 143A and 147A, tabled by the noble Baroness, Lady Thornton, would require the Government, before the new system could come into force, to conduct public consultation on the Act with vulnerable people and other stakeholders and publish a report on its findings, as well as to publish their response to the Mental Health Act review and an equality impact assessment. I hope that I have dealt with the issue of public consultation, as well as consultation on the code and, equally, on the Mental Health Act review. The noble Baroness is quite right to bring the equality impact assessment to the House’s attention. It was prepared prior to introduction and required amendment following input from the Welsh Government. It will now need to be amended further to reflect the changes made in the Bill. I can commit to publishing the equality impact assessment before the Bill makes it to the Commons so that there will be ample time for consideration before it is debated there.

If the House will allow me, I will finish by thanking all noble Lords for their perseverance and patience during a sometimes difficult and challenging debate. We know that we all want to achieve the same end to our journey; there has been disagreement at times on the right way to get there. I am deeply grateful to all noble Lords for their contributions. The Bill has been immeasurably improved already in its passage through this House. That is a very good thing in itself and will have a very positive impact—notwithstanding the slightly gloomy prospect given by the noble Lord, Lord Hunt—when it goes to the other place and on to implementation.

Once again, I extend my sincere gratitude to all noble Lords. I hope that I provided reassurances on the amendments in this group and that they will feel able not to press their amendments.

Mental Capacity (Amendment) Bill [HL]

Baroness Barker Excerpts

Report: 1st sitting: House of Lords
Wednesday 21st November 2018 Lords Chamber

[Lord O’Shaughnessy]

I will come to that. I am using that technical point to illustrate that there are concerns with the amendments as laid. We recognise the importance of this issue and the strength of feeling on it in the House. As I have said, I see merit in the argument for having this defined in statute, and I am sympathetic to that point of view. I can therefore give noble Lords some assurance, and confirm today not only that we are working on this matter, but that we intend to bring forward an amendment in the Commons to give effect to a definition. We want to work with all noble Lords and other stakeholders, and of course the JCHR, to ensure that we can table an effective amendment that achieves our shared aims and gains the level of consensus that we all want to achieve, and that we shall be able to lay it and have it agreed during the Commons stages of the Bill. I hope that in providing that commitment, I have been able to reassure noble Lords of the strength of our intentions. We absolutely want to do this, and we want to get it right. I still think it will take a bit more time, but I know that, working together, we can achieve that.

[Baroness Barker (LD)]

I thank the Minister very much for his response to the amendments tabled by my noble friend Lady Tyler and the noble and learned Lord, Lord Woolf. I acknowledge that he has listened to the arguments made in this House over the past few weeks. I understand why he cannot make a commitment to come back within the timescale of the Bill in this House. This is an important matter, and many different people have a great deal of expertise, practical knowledge, legal knowledge and so on, to put into the process of coming up with a definition, which will be extremely difficult.

Would the Minister therefore be so good as to write to noble Lords as soon as he can, setting out the timetable of the work the department intends to undertake and the people they intend to involve in discussions, which I hope will include practitioners, stakeholders and academics, medical experts and so on, as well as Members of your Lordships’ House who have reviewed the operation of the current law and found it deficient? Could he do that as soon as possible so that, when we come to consideration of Commons amendments when the Bill comes back to this place, we will be able to give this subject the attention it merits rather than the rather perfunctory consideration that we usually have to give to arguments that come back to us within a very technical parliamentary framework?

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[Lord Hunt of Kings Heath]

My Lords, I realise that in the last group I mentioned general medical practitioners. I ought to inform the House of my forthcoming appointment to the General Medical Council.

We have had a lot to read in the last few days, and are clearly going to have to take a lot of this on trust, but the thrust of the amendments is welcome, and I am grateful to the Minister for tabling them. As he said, they strengthen the role of local authorities and give them a clear remit to intervene where they feel that, for one reason or another, the care home manager cannot discharge the responsibilities given in relation to the authorisation application appropriately.

In the letter that the Minister sent to a number of noble Lords, he set out factors that might be considered by the local authority as a responsible body. These would be:

“Whether the person has a care plan with the responsible body … local intelligence about a local provider of care homes”,


which would suggest that the responsible body takes over the process;

“insight from local commissioners or concerns about performance … sustained absence of a registered manager”—

or presumably when the turnover of managers is high, as it can be; and—

“an increase in concerns raised by residents, their carers or families … a new service or category of care provision, and/or … provision of poor or incomplete statements”.

To me that sounds very comprehensive and welcome.

What arises from this is that the responsible body will have to make a considerable judgment and, to make it, will need a very clear understanding of the care homes in its area. Could the Minister say a little about how he thinks that local authorities might be supported in that role? Clearly, they now have a major role which they have found it hard to discharge, for reasons that have been discussed. It is important they are able to do this in a consistent way.

The Minister mentioned the code of practice. It is a statutory code of practice, which I think means that it must be followed unless the local body has very good reason not to do so. It would be interesting to know what plans the department has for checking with the local authorities—not in a heavy-handed way—how well it is going after time and implementation, and seeing whether there is consistency across the country as a whole.

[Baroness Barker]

My Lords, I too welcome the Government’s change of mind. They started with a very different understanding from ours of the current roles of care home managers, local authorities, best-interests assessors and DoLS assessors. I think we still have a difference of opinion about how life works in practice, but these amendments show a considerable movement, if not complete agreement on that part, and therefore we welcome them. I feel it is right to remind the Minister that when the Select Committee of your Lordships’ House did the post-legislative scrutiny on the Mental Capacity Act and its workings five years after its implementation, there was an overwhelming lack of information and data both in local authorities and throughout the health service. I rather think that we have been perhaps unnecessarily preoccupied in this Bill with who carries out a particular function rather than looking at the way those functions could possibly be streamlined and better audited.

I do not think that the work of a local authority best-interests assessor or a DoLS lead, however they may be termed under the new scheme, is actually going to change that much, but I welcome the attempt here to meet us half way, and I thank the Minister for that. Well, perhaps it is more than half way in terms of our assessment that what was being asked of care home managers was beyond their capacity to deliver. Big questions still need to be asked about their role in the overall scheme. If we had not spent quite so much time on this, we might have been able to look more closely at greater efficiencies in terms of reporting and so on. For the moment, however, I welcome these amendments.

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Moved by

[Baroness Barker]

16: Schedule 1, page 8, line 10, at end insert—
“(aa) if the arrangements are carried out in an independent hospital, the designated NHS trust;”

[Baroness Barker]

My Lords, following our previous discussion, we turn to an area that has not received sufficient attention because we were so focused on care homes and care home managers. My Amendment 16 addresses the position of independent hospitals. I think independent hospitals in Wales might in part be addressed in Amendment 16A, tabled by the noble Baroness, Lady Thornton, and grouped with my amendment.

In the process of talking to stakeholders over the past few weeks, it became clear that many of the concerns that we have expressed over conflicts of interest for care homes also apply to independent hospitals, and therefore it seemed to us important to state in the Bill that where a person is deprived of their liberty and is in an independent hospital, the CCG or the local health board is the responsible body as, as we have discussed in great depth and tortuous detail over the past few weeks, is the parallel case for care homes and local authorities.

It is unfortunate that we missed this and have not discussed it as much as we should have. People deprived of their liberty in independent hospitals perhaps have the worst of both worlds. They do not have the protection of the Mental Health Act and they are perhaps less likely to come to the attention of an external body, such as a local authority, because their care is unlikely to have been through the care planning process. Therefore, they could be at a greater point of vulnerability. They may also be more likely to be deprived of their liberty because the deprivation may be something to do with medication. That is why I tabled this amendment, so that we could perhaps return to this at Third Reading. It is important that the Government make clear their intention that there should be clarity about the position of people held in these establishments, and that they do so swiftly and in sufficient detail. I beg to move.

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[Lord O’Shaughnessy]

Absolutely—I would be more than happy to do so. I have tried to demonstrate our intention to deal with the issue, but we remain open-minded about the best way to do it. We have concerns with the amendments as laid—we were trying, if anything, to turbo-boost the approach. I recognise that the noble Baroness is concerned about an overfamiliarity between individuals, which she is trying to make sure that we avoid. There may be other concerns with the model that we are considering. I am more than happy to take that offline, and that would be a very fruitful discussion.

[Baroness Barker]

I am grateful to the Minister for his response, which I will need to think about long and hard. One thing that noble Lords will have to take into consideration is whether an AMCP would have the power to refer a case to the Court of Protection if they felt it necessary. That would be a big factor. I listened very carefully to the Minister, who used the term “hospital manager”. He will know that it has a particular meaning in the Mental Health Act. I have no crystal ball, and neither do other noble Lords, but were the role of the hospital manager in the Mental Health Act to be something on which the forthcoming review sought to make a decision, then would this not be another case for our looking in detail at the synchronisation between this legislation and the Mental Health Act? I welcome the Minister’s response. There is a bit more work to do, and considerable constructive welcome for continued work. With that assurance, I beg leave to withdraw.

Amendment 16 withdrawn.

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Moved by

[Baroness Barker]

27: Schedule 1, page 10, line 8, after “necessary” insert “to prevent harm to the cared-for person”

[Baroness Barker]

My Lords, I have good news for the Minister. After all these weeks, I have finally accepted his argument that the best-interests principle in the Mental Capacity Act remains and applies to all decisions made under the Bill. I now agree with him that it is therefore not helpful to reiterate the term “best interests”, as we suggested in previous amendments at a previous stage. The even happier news is that the noble Lord, Lord Hunt of Kings Heath, agrees with me on that.

However, I am afraid that peace and harmony may not have broken out completely. Noble Lords will recall from previous debates that we have argued that the requirement that an arrangement be “necessary and proportionate” seems to be a weakening of the protections for an individual, sitting as it does with no direct connection back to those earlier best interests. We all agree that deprivation of liberty is a very important matter, and the law needs to be in compliance with Article 5. That is why we think the Bill contains a deficiency, because lawful detention is not considered directly in relation to best interests. Therefore, through these amendments, which relate both to the authorisation and the determination, we have attempted to reiterate the current wording of the DoLS legislation regarding a determination being necessary and proportionate in relation to harm to the person. In other sets of amendments and at previous times, we have had discussions about whether decisions are taken on the basis of harm to the person whose liberty is being deprived, or of harm to others. We have tabled this amendment to make it clear that it is harm to the person, and that the proportionality relates to the potential harm to that person if they are not deprived of their liberty.

Much of today’s discussion about deprivations of liberty in domestic settings originates in the failure of many professionals, in making judgments, to remember the part of the safeguards which states that deprivations of liberty must be the “least restrictive option”. It is not wrong to deprive somebody of their liberty, but it must be the least restrictive option to avoid harm to that person. We have therefore concluded—again, in discussion with stakeholders—that this amendment to the Bill would lead to greater clarity.

I can hear the words “code of practice” coming to the fore. One point on which we have never had an agreement is reliance on the code of practice. Very few pieces of legislation have a code of practice, and in health there are only two: this Act and the Mental Health Act. Anything which resides in a code of practice rests upon statute in order to be lawful. When there are arguments about whether a deprivation of liberty is lawful, those arguing the case, particularly judges, do not go to the code of practice but to the statute. What is contained in the statute may be minimal, as this is; we are simply talking about a sentence which says that that action must be “necessary and proportionate” with regard to the harm to that person. A code of practice can go on for pages and pages and include numerous examples, as it should, so that practitioners know where they are. But it does not and never will carry the legal force which comes from the wording in the Act.

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[Lord O'Shaughnessy]

As the noble Baroness knows, I am all for harmony and agreement.

I thank the noble Baronesses for laying these amendments, and I accept the point made by the noble Baroness, Lady Barker, about her gracious acceptance of the role of the best-interests test. I recognise that she has some serious concerns about this legislation, which I take seriously. I have been determined to work closely with her, and I am grateful for her reciprocation in that process as we have moved ahead.

These amendments seek to specify that the necessary and proportionate assessment must be undertaken by reference to whether an authorisation is needed explicitly to prevent harm to the person. We know that an assessment of whether the arrangements are necessary and proportionate is key to ensuring that liberty protection safeguards will afford people their protections and human rights, and is a requirement of the European Convention on Human Rights. There are many factors which would need to be considered in the necessary and proportionate assessment, including the wishes and feelings of the person, whether any less restrictive measures can be put in place and the risk of harm. That is the issue that is the subject of these amendments.

Importantly, these amendments raise the issue of considering risk of harm to the cared-for person during the assessment by including that expressly and explicitly in the Bill. However, my concern is that that may be at the cost of other factors that ought to be properly considered during the assessment process. If these amendments are passed, one of the factors which may not be properly considered in the assessment process is the risk of harm to others, which the Law Commission said should be explicitly considered within a necessary and proportionate assessment, as well as risk to self. There are cases currently under the DoLS system where the risk of harm to others is an important factor in the justification for deprivation of liberty, such as a person with Lewy body dementia who may need restrictions in order to prevent harm to people in the community.

Furthermore, ensuring that no harm could come to a person is in some cases intertwined with ensuring that no harm comes to others. For example, there could be a retaliatory attack as a result of harm caused by a person to someone else. These amendments would mean that by focusing solely on harm to self in the Bill, it could be more difficult for assessors to make those balanced decisions. I therefore have some concerns about the amendments tabled by noble Baroness, as they could perpetuate the current confusion surrounding cases that involve some degree of harm to others. They could also lead to an increased use of the Mental Health Act, since the liberty protection safeguards might be interpreted as being ruled out in all harm-to-others cases. We would not want to see the Act used in this way.

Therefore, in the spirit of consensus and moving forward, I have carefully considered whether the Bill should be amended—or whether the Government could support such amendments—to explicitly set out inclusion of the risk of harm to the person. I am afraid I am going to disappoint noble Lords by saying that it would be better set out in the code of practice. I emphasise that we have considered the issue in detail, and we believe that the code of practice has sufficient force. On that basis—although I know that she will not do so—I encourage the noble Baroness to withdraw her amendment.

[Baroness Barker]

I thank the Minister for his reply. The problem that I have is that it leaves the guidelines for decisions to deprive people of their liberty because of harm to others in a code of practice, not the legislation. I do not believe that that is the right place in which to make that law. I absolutely accept that it is sometimes necessary to make a decision about a deprivation of liberty, and that part of that decision-making might be about the risk the person poses to others. However, that should not be determined in legislation fashioned on a set of principles and practices that are about harm to self, which is what the Mental Capacity Act is all about. A substantial judgment that will impact on people’s lives is buried away in a place where it is very unlikely ever to rise sufficiently up the scale of legal concerns or ever to be tested in court. That is my problem; that is what I think is wrong. It is therefore important that we in this House make a statement now to the Government about the importance of this issue, so I would like to test the opinion of the House.

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Moved by

[Baroness Barker]

28: Schedule 1, page 10, line 8, at end insert “in relation to the likelihood and seriousness of harm to the cared-for person”