Mental Capacity (Amendment) Bill [HL]

Baroness Barker Excerpts

2nd reading (Hansard - continued): House of Lords
Monday 16th July 2018 Lords Chamber

[Lord O'Shaughnessy]

My Lords, I thank all noble Lords for an incisive, illuminating, at times technically complex but always wise debate, which has been a credit to the House. I will attempt to answer as many questions as I can. I will not try to cover all of them as we actually would be here all night, but I will have time to explore the major categories of issues. I hope noble Lords will indulge me as I do that.

I welcome my noble friend Lady Barran and congratulate her on a very passionate and moving speech. It is clear that she has already been a force for good in the world and we look forward to her bringing her singular qualities to the stage which she now fills with such great authority. I hope noble Lords also noticed the attendance for the first part of the debate of my honourable friend the Minister for Care, Caroline Dinenage, who obviously takes a close interest in this. She was at the briefing and we are working closely together to try to get the right Bill through this process.

I think the general tone of the debate was that there is a strong desire to reform the DoLS system and to end, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, pointed out, the lawlessness and the highly unsatisfactory current situation. My noble friend Lady Barran brought this to life. The truth is that the current system has overwhelmed local authorities and others. As the noble and learned Lord, Lord Brown, pointed out, Cheshire West has extended the definition to whom this should apply, such that the backlog of cases is now extraordinary. The only consequence of that is a denial of access to justice. The challenge we have in the Bill is to make sure that we do not have access to justice just in theory but that it actually happens, and it cannot happen if more than 100,000 people are getting it in theory but not in practice.

As somebody who was new to this before preparing for the Bill, the situation almost sounds too good to be true. We are going to extend the number of people who have access to safeguards but we are also going to stop the system being overwhelmed and save money. This is achievable because it is about introducing a proportionate system that reflects the needs and wishes of the people whom it is there to protect, rather than having a maximalist approach that in theory applies to everyone but in reality does not and is sometimes random in its application, which is clearly unacceptable.

As many noble Lords have pointed out, the system that we need to create must be patient-led. It needs to have proper oversight and to deliver that access to justice which we have discussed. Clearly, if, as the noble Baroness, Lady Finlay, pointed out, only one in 20 have benefited from the current system, it is highly inefficient. As many noble Lords also pointed out, there is a huge urgency here.

Many noble Lords pointed out the benefits of the new system. I will come to some of the challenges but, ultimately, this is about making sure that caring organisations take a more active role in the assessment of deprivation of liberty. Where they do so and integrate it into their care planning, we will provide a proper system of oversight and support for individuals deprived of their liberty in general but, specifically, for those who object, or whose families who care for them object. That is ultimately what we are trying to do and it is the intention of the Bill.

Several noble Lords, including the noble Baronesses, Lady Jolly, Lady Greengross and Lady Thornton, asked about our consultations to date. There have been very wide consultations but this debate has shown that there is much work to be done over the summer, not just with noble Lords but with stakeholder groups, to ensure that we are not only explaining the consequences of what is proposed—I think there are still some misunderstandings about that—but able to demonstrate the benefits and, critically, learn how we can further improve what is proposed.

I turn to some of the issues raised. Several noble Lords including the noble Lord, Lord Touhig, the noble Baronesses, Lady Barker, Lady Finlay, Lady Greengross and Lady Tyler, the noble and learned Lord, Lord Brown, and the noble Baroness, Lady Murphy, talked about the absence of a statutory definition. I can tell the House that we are aware of that and are listening particularly to the recommendations of the Joint Committee. However, the debate demonstrated some disagreement over the right way forward. There are various options, such as definitions in the Bill or through a code of practice, but we clearly need to get to an answer in order to proceed.

We have talked about wanting a system that has the person’s wishes and best interests at the heart of the process. That was raised by the noble Lord, Lord Touhig, and endorsed by the noble Baronesses, Lady Barker, Lady Finlay, Lady Greengross, Lady Meacher, Lady Browning and Lady Hollins. It is absolutely right for us to be clear that there is no watering down of the interests of the individual concerned through this process. As the noble Baronesses, Lady Barker and Lady Finlay, pointed out, capacities can fluctuate; as the noble Baronesses, Lady Browning and Lady Hollins, pointed out, they can also be varied—strong in one area and weak in another. Any system needs to take account of that and I can tell the House that it is absolutely not our intention to water down the role of a person’s expressed wishes. The best interest test still applies absolutely in the care setting, but the necessary and proportionate test is to account for those cases where a person may wish to do something regarding their liberties which is contrary to their best interests for their individual care. Striking that balance and making sure that there is proper oversight, with proper advice for people who are unable to enunciate their own wishes, is at the core of getting the Bill right.

As noble Lords have also pointed out, getting the Bill right is actually about getting a statutory code of practice right. It is out of date and there is a degree of urgency about improving it. I will return to that in a moment but, in talking about the statutory definition, I will finish on the power of attorney and the role of families. They still have primacy under the Mental Capacity Act, the principles underpinning which still apply. It will not be possible to deprive a person of liberty when the attorney acting on their behalf has stated that their best interests are served otherwise. I want to make that clear but it is something that we will need to explore and explain better. Attorneys will be part of the group that is to be consulted, and the Bill creates an explicit requirement for further consultation with families. Family members can also act as appropriate persons, so I think there is a greater strengthening of the role of those acting on behalf of a person deprived of their liberty in the process of scrutinising that and making sure that it is done appropriately.

[Baroness Barker]

If this matter is unclear to some of us who can claim to be fairly well informed on it, clearly, there has been a communication problem. Might I suggest to the noble Lord that it would be enormously helpful—as it has been in similar situations—to have a copy of the Act, as amended by the Bill, for us and interested parties to look at? Believe me, it makes the whole business a great deal clearer and easier to understand.

[Lord O'Shaughnessy]

That is an excellent suggestion. I should be clear: any confusion comes from a failure to communicate on our behalf, rather than there being any suggestion that noble Lords who are extremely expert on this do not understand what is proposed. There is a need to explain better exactly how all this will work in practice.

Obviously, the system depends on the quality and independence of the reviews, assessments and authorisations that take place; that issue was particularly raised by the noble Lord, Lord Touhig, and the noble Baroness, Lady Hollins. There were also questions asked by the noble Baronesses, Lady Tyler, Lady Murphy, Lady Jolly and Lady Thornton, about the capacity of those carrying out assessments in local authority care homes, the NHS and so on to do them properly and in a way compliant with the law. I agree with noble Lords that in the coming weeks we will need to set out much more clearly how that independence support and those assessments will be staffed and provided, making sure that there are sufficient resources and proper training. I am reassured that training in the implications of the Mental Capacity Act is part of medical training, and that there are Health Education England resources for that. Clearly, all that will need to evolve as we go through this process and the Act itself is amended.

The noble Baronesses, Lady Barker, Lady Greengross, Lady Tyler and Lady Murphy, and the noble and learned Lord, Lord Brown, asked about the interaction with mental health legislation and whether we should have delayed publication. The noble Baroness, Lady Tyler, described a tension between the two Acts. We are conscious of the interface—that is the term used—but there is an urgency to reform the system, notwithstanding its interaction with the Mental Health Act. We do not yet have a timescale on completion of the review and any subsequent legislation that might be required. There has been lots of talk about the work to reform—the committee, the Law Commission, the Joint Committee and so on—and we need to get on with this, cognisant all the time that subsequent changes may need to be made once we have the outcome of the Mental Health Act review. It is not in my gift to promise time for legislation in the future but we are cognisant of the need to make sure that our interface works, once we have the review itself completed.

Several noble Lords asked why the Bill does less than the Law Commission. We could spend a lot of time going through that, but I do not propose that we do so at this point. We can achieve non-legislatively several of the Law Commission’s proposals; it is made up of lawyers, so they prefer law but there are other ways of doing things. One of the key issues raised is the Bill’s not applying to 16 and 17 year-olds. There is clearly an important interplay here with the education, health and care plan process, but I have listened to noble Lords on the subject today and shall reflect on whether we can do something about it.

The code of practice was raised by the noble Baronesses, Lady Finlay and Lady Greengross, and my noble friends Lady Barran and Lady Browning. Getting it up and running quickly is critical. Detailed work is going on, and we need to be very specific in it to provide reassurance about how it will work. Unfortunately, I do not have a timetable yet for its production, but I will endeavour to get hold of one. We need to make sure that its implementation is properly resourced. The CQC will continue to inspect its implementation, so there will still be that quality oversight.

A few other issues were raised. Many noble Lords referred to “unsound mind” being an unhelpful and, frankly, out-of-date phrase. I do not disagree. The concern here is the interaction with the jurisprudence and the ECHR itself. If we were to move on that—I make no commitment at this point—we would need to think it through very clearly, but I would like to explore it.

The noble Baronesses, Lady Barker and Lady Jolly, asked about legal aid. I can confirm that it is, and will still be, available on a means-tested basis. The noble Baroness, Lady Meacher, and my noble friend Lady Browning asked about advance consent—an issue that the Law Commission also raised. Again, there is an important distinction to be made here between an advance decision to refuse treatment, which will continue to be respected and is untouched, and advance consent to a future deprivation of liberty. Although that was in the Law Commission report, officials engaged in the process indicated that this did not receive support from families. There was a concern that you could sign yourself up to being deprived of your liberty at some point in the future, so it did not garner support. Perhaps it was the wrong subset or sample of people; nevertheless, we need to consider the best way forward on that.

Finally, the noble Baroness, Lady Thornton, asked about the equality impact assessment. I do not have an answer at this stage about why it was not carried out but I will endeavour to get one.

To conclude, I hope that I have been able to summarise the main issues and topics. Clearly, there are some very big questions that still need to be answered, but I return to the point that my noble friend Lady Browning made, which is that we need to solve the problems this time. We cannot introduce another Bill or piece of legislation that just creates a problem three years down the line. It is not just about the Bournewood gap; it is about making sure that we avoid, and do not create, any other gaps. The words “nightmare” and “disaster” have been used to describe the current system, and that is why we need to act now, but clearly we need to act in such a way that we do not create another problem further down the line.

It has been clear from this debate that there is still much work to be done to provide the right kind of reforms that we all want to see. Looking at the Chief Whip, I am sure that we will have adequate time in Committee to make sure that the Bill is in the best possible shape. We saw a nod of the head from the chief, so that is good. This debate has demonstrated—the noble Baroness, Lady Thornton, said as much—that there is no group of people better qualified to improve this legislation and make sure that we get the right reforms. I look forward to engaging with noble Lords and others throughout the coming months to make sure that we can achieve that and deliver a Bill that provides for people deprived of their liberty the fair and proportionate access to justice that we all want to see.

Health: Stroke Survivors

Baroness Barker Excerpts

Thursday 28th June 2018 Grand Committee

[Baroness Barker (LD)]

My Lords, I say to the noble Lord, Lord Lingfield, that it is an absolute joy to take part in this debate with him this afternoon.

Following on from the noble Baroness’s comments, I can recount that about 20 years ago a lady called Mary Anne MacLeod Trump woke up in a hospital ward in New York following a stroke. Most of her nurses thought that she was speaking gibberish, but she was very lucky because one of her nurses was Irish and knew that she was speaking Gaelic. In fact, Mrs Trump had been born on the island of Lewis in Scotland and, unlike her son, did not routinely speak gibberish—it was just the effects of a stroke—and she recovered. The noble Baroness is quite right.

The noble Lord, Lord Lingfield, set out for us the state of stroke care in England and Wales today. However, one point is so obvious that he did not make it: we have a national health service and, consequently, we are in a uniquely good place to gather information about the detection, diagnosis and treatment of stroke and about people’s recovery from it. That is something that we often overlook but it is very important. Just in the last 10 years or so, the work that the noble Lord, Lord Darzi, has done in London in reorganising stroke services has had a measurable effect. Our National Health Service is able to measure, at scale, the effectiveness of new thrombolytic or clot-busting drugs as they come in. That is why we have a real forward steal on the rest of the world in this highly complex area.

In another place back in December, MPs talked a lot about the development of mechanical thrombectomy —I am pleased that I got that out; it is not the easiest word to say. It is a marvellous step forward in the acute treatment of stroke. The ability of surgeons to remove clots and stop further neurological damage makes an immense difference to patients and their recovery.

We are, unfortunately, able to have a 24 hours a day, seven days a week, service in only very few places. Like the noble Lord, I am very lucky to be living up the road from St George’s Hospital: we are okay. Other places are not. The ambition, surely, ought to be to make that service available at specialist neurological centres around the whole country, and easily accessible to the majority of the population as soon as possible.

A particular problem with thrombectomy is that it requires the input of several different medical disciplines, specifically surgeons and others who are not normally part of a stroke response unit. Far be it from me to accuse the NHS of territorialism, but getting surgeons to change their ways is not the easiest thing to do. I ask the Minister, therefore: will thrombectomy services be commissioned via specialist commissioning, and if the provision of the service requires redesign and redefinition—not just of the services but of the medical roles in the team—how that will happen? Does he believe, as I do, that STPs may well face a real battle to get so many people from different disciplines to change the way they work?

My understanding is that the department has not yet decided to refresh the stroke strategy; it is relying on the 2013 cardiovascular disease outcome strategy. Does the Minister believe that that is an adequate way for the department to require the NHS to look at some pretty significant changes among staff?

I also refer the Minister to the experience of some MPs who looked at provision in their local areas. They mentioned the tension between university hospitals and district general hospitals. It requires the might not just of NHS England but the department to look at this problem.

My next point is on research. We have one centre of excellence in research—certainly in thrombectomy—which I think is the University of East Anglia. It is one of several across Europe. I am a Liberal Democrat spokesperson and am therefore bound to ask what the Government are doing to make sure that, post Brexit, research and research collaboration continue? I know that the Royal Society is looking across the piece at the impact of Brexit on research, taking an unbiased and pragmatic view of it. I simply ask the Minister to tell us how the Government will keep an eye on that.

My third observation is that in 2016 Stanford University reported remarkable results from a very small-scale study—about 16 patients—on the use of stem cell therapies. These are often considered to be wonder solutions to quite an array of neurological conditions. I would not go that far: there is a lot to be done by neuroscientists before they realise the potential of stem cell therapy in all sorts of conditions, but principally such neurological diseases as Parkinson’s and possibly Alzheimer’s. If and when those trials are replicated on a larger scale and get to a further stage, where they might lead to some form of therapy, will the NHS build on its track record of work in stroke treatment by taking advantage of such developments?

On the question of rehabilitation, much of what the noble Lord, Lord Lingfield, said pointed to a system in which we have highly skilled staff but not enough of them. We have highly skilled therapists, physiotherapists and nurses—I have been in awe of the ones I have had to deal with—but we need to enable them to impart information first to care workers and secondly to family members, who are there in that golden six-week gap in which recovery can be advanced if people know what to do. To what extent are we asking our NHS acute staff, as part of their duty of care, to pass on information to carers to make sure that they can be there to assist and improvise with things which work?

What do the Government intend to do about the collection of data on post-acute service provision as part of the overall stroke strategy? The bulk of stroke recovery happens in the weeks and months afterwards.

The difference between acute provision and community provision would be that acute provision will help you deal with a physical deficiency, and a community service will help you deal with a lack of confidence. For most people, life after a stroke means living with a lifelong lack of confidence, but that can be aided, helped and treated.

We have done a lot in this country of which we should be proud, but with clever thinking we could do a lot more.

Abortion

Baroness Barker Excerpts

Wednesday 6th June 2018 Lords Chamber

Asked by

[Baroness Barker]

To ask Her Majesty’s Government, in the light of the result of the referendum to repeal the eighth amendment of the constitution of the Republic of Ireland, what assessment they have made of its impact on the ongoing criminalisation of women seeking access to abortions across the United Kingdom.

[Baroness Barker (LD)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as the chair of the All- Party Parliamentary Group on Sexual and Reproductive Health.

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

My Lords, under existing arrangements women across the United Kingdom have access to high-quality, safe abortion services. Parliament decided the circumstances under which abortion can be legally undertaken. It is accepted parliamentary practice that proposals to change the law on abortion come from Back-Bench Members and that decisions are made on the basis of free votes.

[Baroness Barker]

I thank the Minister for that Answer. Do the Government not think it is wrong that women in Northern Ireland can be coerced to continue with a pregnancy under legislation passed in 1861 by MPs, all of whom were men elected solely by men? Does he not agree that to overturn Sections 58 and 59 of the Offences against the Person Act would enable the men and women of Wales, Northern Ireland and England to determine under what circumstances women should be able to access safe, legal abortion?

[Lord O'Shaughnessy]

It has been the position of successive Governments that abortion policy and law is a devolved matter for Northern Ireland, to be decided by elected politicians in Northern Ireland on behalf of the people of Northern Ireland. That is our position: they should be the group that makes the decision.

Abortion: Misoprostol

Baroness Barker Excerpts

Tuesday 20th March 2018 Lords Chamber

[Lord O'Shaughnessy]

This is obviously a concern. There has been an increase in women buying online the drugs necessary for medical abortions, and that is something on which we are attempting to crack down. It is worth pointing out that 90% of abortions are NHS funded and therefore provided for in that way. The noble Baroness was talking about medical abortions at a late stage; it is worth pointing out that, actually, there has been an increase in the number or percentage of abortions that are happening at an early stage, which is obviously in the interests of women’s health.

[Baroness Barker (LD)]

The noble Baroness, Lady Eaton, mixed up two completely different things. She mixed up early medical abortions and late abortions. Can the Minister confirm that a 2011 court case brought by BPAS established that the Secretary of State has the power to allow early medical abortions to happen at home? If he agrees, and if the evidence from the Scottish trial is convincing and underpinned by the decision of the Scottish courts, will the Secretary of State then undertake to look at the development of a facility for legal abortion which may well be to the benefit of thousands of women in this country, particularly those who live in rural areas?

[Lord O'Shaughnessy]

I am aware of the opinion in that judicial review. It is worth pointing out that there is still uncertainty about the legal position. This is why we will watch the developments in Scotland carefully and proceed cautiously. It would be wrong of me to prejudge either the opinions that come from the court or indeed any evidence if this scheme does get up and running in Scotland.

NHS: Charitable Donations

Baroness Barker Excerpts

Thursday 22nd February 2018 Lords Chamber

[Lord O'Shaughnessy]

My noble friend makes an important point. Gift aid is a wonderful scheme that obviously has driven huge contributions. She is quite right that public sector bodies cannot provide the gift aid opportunity, which is why in the health sector those charities attached to hospitals exist. She makes an excellent suggestion for what councils should do and I shall take it up with my colleagues in that department.

[Baroness Barker (LD)]

Can the Minister tell the House whether integrated care trusts can have associated charities so that people can make donations not just to healthcare but to social care in their area?

[Lord O'Shaughnessy]

The noble Baroness asks a very interesting question. Clearly these are emerging organisations and most of the charities are attached to hospital trusts—although not exclusively: some are attached to primary care. None of these are yet quite in being. Once they are in being, this will be an excellent suggestion that we should take forward.

NHS and Social Care: Winter Service Delivery

Baroness Barker Excerpts

Thursday 25th January 2018 Lords Chamber

[Baroness Barker (LD)]

My Lords, I thank the noble Baroness, Lady Wheeler, for the opportunity, as the noble Baroness, Lady Pitkeathley, just said, to return again to this subject. I will not make a long speech as I would like to leave as much time as possible for the debate that will follow. On behalf of my colleagues on these Benches, I wish the noble Baroness, Lady Jowell, all the very best and ask her colleagues to convey that to her.

The noble Baroness, Lady Pitkeathley, is right: we have been back to this ground so many times. In preparing for this debate, I thought back to many of the debates that we have had in the past. The origins of the problem we are looking at go back to the National Health Service and Community Care Act 1990. In that Act, for the very first time, welcome things happened: we began to break down procedures within the NHS and to cost and quantify them. But the problem was that we made them into individual units of activity, and to this day, within the NHS, the systems that join up those individual units are failing. They fail completely when they have to be matched up with the social care system, which is completely different.

Those problems were identified and partially addressed in 2003 with the Community Care (Delayed Discharges etc.) Act, when the then Minister, the noble Lord, Lord Hunt of Kings Heath, was sitting there trying to answer questions from very talented opposition spokespeople such as me. We asked him a question that he never could answer, which was why the then Government thought that the answer to the problems in the NHS was to fine social services departments. I never understood that. We still have, within the whole system of discharge, a system of penalties.

[Lord Hunt of Kings Heath (Lab)]

Perhaps I can answer the noble Baroness. Surely the point is that both local government and the NHS were being properly funded at that point. Therefore it was entirely appropriate to have a system to encourage local authorities to do the right thing.

[Baroness Barker]

The issue that I think the Government were trying to solve was one for which we have never had any evidence: that of local authorities trying to game the system. It is correct that the overall amount of funding has gone down, but we have not had evidence of people gaming the system.

We have never had a system, or even part of a system, that incentivises GPs and those in charge of social care to prepare for winter pressures, invest in programmes that will see older people through the increased incidence of illness that we know happens in winter, and avoid unnecessary admissions to A&E. What has changed in that time is that we now have better data and better information systems, but in many ways we are still failing to take all that and improve those systems. At the moment we still have ambulance services being rated on completely different systems across the country so we cannot generate data.

The Government have done some things that are very welcome. Everyone agrees that the primary care streaming system, into which they put £100 million, is a worthwhile initiative. Unfortunately, the initial evidence is that it is failing simply because it takes people from another part of the system—GPs—and locates them in hospital. What are the Government going to do to properly monitor that system in its entirety as part of an overall approach to winter pressures, to see whether it is worth more investment or whether it simply takes resources from other parts of the system?

On the question of beds, we have a national system of monitoring general and acute beds and ways of measuring the overall occupancy rate. We do not have a method of assessing the number of beds in relation to need. For example, we can open up a load more beds, as the NHS always does at times of crisis, but if there are no more staff to look after the people in those beds then we are not really addressing the need. We need to refine the measurement of this so that we have a metric along the lines of “nurses per bed per day”. That is the point at which things become really bad. I remember talking to a nurse about a patient—actually my mother—and being told that she was far too good to be in hospital and would be going home. She died two days later, which was not a surprise to any of us. I say that because it is not an uncommon experience for patients.

We have been through this time and again. The one thing that we have failed to do is incentivise GPs to work with community organisations from the summer onwards to predict the people in their area who are going to be most at risk and to put in place very low-level, simple and low-cost packages of care for them that can be there very quickly when they are discharged. The biggest cause of delayed discharge is not the absence of social care but the absence of community nurses and NHS staff available to work in the community to ensure that we do not send people home only to see them return unnecessarily into acute care.

Social Care: Sleep-in Payments

Baroness Barker Excerpts

Thursday 7th December 2017 Lords Chamber

[Lord O'Shaughnessy]

I absolutely recognise the picture that my noble friend paints. We know the impact of the decision on backdated pay on those providers of social care of all kinds—charities, families and others. We are looking carefully at this, and there is a market analysis going on at the moment to find out the number of affected providers, the number of affected staff and the overall cost implications. Discussions are taking place with the European Commission to make sure that whatever route we take, we know it will be legally possible.

[Baroness Barker (LD)]

My Lords, these providers have been hit this year with a bill of £400 million. HMRC has given a one-month deferment of its decision, which is not enough time for them either to raise the money or to make alternative arrangements. Does the Minister agree that this can only be solved satisfactorily, without detriment to people with learning disabilities and people who are cared for, if there is a rescheduling of the liabilities? Are the Government looking, with HMRC, at drawing up a longer deferment schedule to allow them to raise the money?

[Lord O'Shaughnessy]

Again, I would point the noble Baroness in the direction of the social care compliance scheme that has been set up, which allows precisely that deferral of payments. It allows for a period of up to 15 months for assessments to take place while providers work with HMRC to provide the payment. I should also point out that although HMRC would usually levy fines in the case of underpayment of taxes after 28 days, those fines have been waived in these cases, as one would expect.

Older Persons: Care and Human Rights

Baroness Barker Excerpts

Tuesday 11th July 2017 Lords Chamber

[Lord O'Shaughnessy]

Rules affecting this House will, of course, be decided by its Members, who are probably the least likely group in the entire country to be ageist. The noble Lord is quite right to highlight this incredibly serious point. Any form of negative stereotyping or discrimination is, of course, wrong. I mentioned a couple of things that the Government are already doing and a lot is going on to counter any kind of discrimination. This Government have got more older workers into employment and are tackling the discrimination in the workplace that, unfortunately, still takes place.

[Baroness Barker (LD)]

My Lords, given the salutary experience of the general election, does the Minister now agree that the previous Conservative Government were wrong to kick the Dilnot commission recommendations into touch and that now would be the time to get that report back off the shelf, dust it down and hold proper discussions about the funding of long-term care?

[Lord O'Shaughnessy]

The noble Baroness is quite right that this is a nut we have to crack. The Government are going to begin consulting widely on proposals at the end of the year and this consultation will be on specific proposals rather than being open ended. As we have discussed in this House before, it is important that we do that in a spirit of consensus, because I do believe that there is a way forward which all parties can support.

NHS (Charitable Trusts Etc) Bill

Baroness Barker Excerpts

Friday 26th February 2016 Lords Chamber

[Baroness Barker (LD)]

My Lords, I thank the noble Baroness, Lady Massey, for introducing the Bill today with such clarity. In preparing for today’s debate, the words “history” and “innovation” kept coming into my mind. The charitable sector is full of some wonderful historical stories, and the legacy of charity law is that from time to time one comes upon them.

Back in a previous century, when the first ever law was passed requiring a charity to have a board of trustees, one Dr Barnardo thought that he had better be in compliance with the law. He gathered together a few of his friends and acquaintances for a meeting. These august people resolved that they would meet again upon the death of Dr Barnardo, and they duly waited until this great social innovator, who did remarkable things in a wholly independent way, was not there to be hidebound by a board of trustees upholding the law.

It is interesting to think about that on a day when we are to hear the maiden speech of the noble Lord, Lord Bird. As those of us who work in the charitable and voluntary sector know, he has been at the forefront of bringing about innovation and change, not just in what charities and the charitable sector do but in how they do it. He has been at the forefront of bringing to the world of philanthropy and good deeds the disciplines of business. In so doing, he has made it very clear to the sector that some of the old strictures under which charities used to work need to change and, in particular, that we must have different forms of organisations in order to pursue what we need to do. I am very much looking forward to hearing what the noble Lord is going to say.

The legislation talked about by the noble Baronesses, Lady Blackstone and Lady Massey, is, in a sense, historical. It arose when there was a limited form that a charity could take and when there were very strict laws about the ways in which charities could hold property. If they belong to a charity that is an unincorporated association, noble Lords may know that special holding trustees have to be appointed to hold property in trust. So it is quite right today that in trying to bring about the best of business and to free charities up to pursue what they do in the most effective way, we should begin to make the sorts of changes that are in the Bill. It is, I know, very technical stuff, but it means in practice a great deal, and it will make a great difference to the ability of a body to do its basic job.

I want to make one other point that I think is important at the moment. It has been a terrible year for charities. Charities have been in the firing line right, left and centre—sometimes quite fairly but other times not. Being a trustee at the moment is really difficult and I imagine will become more difficult, because, when money is tight, people begin to look in even greater detail at what charities do. There has never been a more important time to support trustees in their governance of charities. Charities and trustees play an important part in our civic and social life and, therefore, anything that helps and supports trustees to do their job properly is to be welcomed. In this Bill, sorting out the anomalies between a charity and the bodies with which it works can be only to the good.

I want to ask one technical question of the Minister. It is a question that has been around before; it arose in your Lordships’ House when the Bill setting up foundation trusts and so on was going through. A certain noble Lord, Lord Hunt of Kings Heath, was at the Dispatch Box when we bowled him this question from opposition: will this Bill in any way affect the reporting, and particularly the accounting, burden on charities? NHS charities have always had a double burden of accounting: they have to account for their work as charities but they also have to account for their income and expenditure within NHS accounts. If the Minister could supply an answer to that, I would be very grateful. This is a Bill for the future, as much as a Bill that takes account of anomalies in the past. I wish it well.

Four Seasons Group

Baroness Barker Excerpts

Monday 11th January 2016 Lords Chamber

[Lord Prior of Brampton]

My Lords, clearly, it is a matter principally for local authorities. However, the Government are making available in the spending review another £1.5 billion for the better care fund and allowing local authorities to raise a special precept of 2%. The oversight provisions of the CQC cover 45 providers, which cover some 20% of the market. It is intended that that will give early warning to local authorities of any likely collapse.

[Baroness Barker (LD)]

My Lords, can the Minister confirm that anyone who has their care package funded by a local authority is entitled to alternative provision? Anyone who is a self-funder under the law is entitled only to advice. Are the Government taking steps with local authorities to ensure that older people and their families are aware exactly what their entitlement would be in the event that their care home were to close?

[Lord Prior of Brampton]

My Lords, it is up to local authorities to have contingency plans in place in the event of the closure of a home in their area. As I said earlier, the Local Government Association has indicated that at least 95% of local authorities have contingency plans in place.