Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Lord O'Shaughnessy

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.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Lord O'Shaughnessy

Tuesday 26th February 2019 Lords Chamber

[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.

Human Fertilisation and Embryology (Parental Orders) Regulations 2018

Debate between Baroness Barker and Lord O'Shaughnessy

Wednesday 12th December 2018 Grand Committee

[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.

--- 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]

Debate between Baroness Barker and Lord O'Shaughnessy

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

[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.

Sexual Health Services

Debate between Baroness Barker and Lord O'Shaughnessy

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]

Debate between Baroness Barker and Lord O'Shaughnessy

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

[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.

--- Later in debate ---

[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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[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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[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.

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[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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[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.

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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]

Debate between Baroness Barker and Lord O'Shaughnessy

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 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.

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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.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Lord O'Shaughnessy

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Lord O'Shaughnessy]

I thank the noble Baroness, Lady Finlay, for tabling these amendments and precipitating this discussion. I will move straight on to the substance of the amendments. Amendment 61 provides that local authorities must make arrangements for a named person to be in charge of training and revalidation of approved mental capacity professionals and that local authorities must make arrangements for contracts with neighbouring local authorities and health bodies as required.

On the issue of approvals and training, the Bill is clear that local authorities must approve individuals to become AMCPs, and regulations under paragraph 33 will make provision around training, qualifications and other eligibility criteria. The question of what kind of training there should be and who pays is something that we discussed at some length on the last Committee day. That was more in relation to care home managers, which was primarily the focus of the questions of the noble Lord, Lord Hunt. The same read-across applies to AMCPs as well. On that occasion, I committed to bringing forward more details of what the training would look like. I also confirmed that, in England, Health Education England and ADASS would be responsible for working with Skills for Care, and Social Work England. Those are the bodies that would be responsible for overseeing and designing the training. The noble Baroness, Lady Jolly, asked about the rights of individuals. Of course, that would be the centrepiece of any training programme to make sure that those rights are properly respected.

On the specific question about local authorities naming an individual, I say that the Bill does not prevent them doing so. It is something that they are able to do and, in our view, it does not need to be set out in primary legislation. There is no such requirement for best-interests assessors or approved mental health professionals, I understand, and that has not caused any difficulties in practice. To that extent, we can mimic the arrangements in place there.

Making arrangements with other local authorities is again not precluded by the Bill. Clearly, that is something that local authorities will want to do, depending on the arrangements they have commissioned in care across different authorities. I can confirm that we will provide guidance on this in the code of practice.

Amendment 61A adds to the criteria that must be met for a person to become an AMCP. They must be,

“a registered professional, with a minimum of three years clinical experience”.

A list sets out whom that could include; that list has been added to by one tonight, which in some senses exemplifies the nature of the problem. I completely agree with the noble Baroness: we need to set out not only the kind of professionals but the kind of qualifications and experience. There has to be a balance and a mix between all of those. That will be set out in regulations. The noble Baroness, Lady Barker, asked about the proper place to set out the rigidity or robustness, and we believe that the appropriate place would be in regulations, which provide a degree of flexibility that would not apply if we enshrined this in primary legislation. That is why we are proposing the approach of defining the groups that should be acting as AMCPs.

[Baroness Barker]

How many cases have been taken to the Court of Appeal on the basis of regulations not being observed, as opposed to something in an Act? I do not expect an answer now, but I would like to know.

[Lord O’Shaughnessy]

I am afraid that I do not know, but I will write to the noble Baroness and circulate the letter to all noble Lords.

To conclude, I hope that I have provided the noble Baroness, Lady Finlay, with the reassurances that she was looking for and that she will be prepared to withdraw her amendment.

--- Later in debate ---

[Baroness Barker]

I thank the Minister for that explanation. Given that the Bill as drafted is essentially a “get out of jail free” card for bad care home owners, the Government must have a really good evidence base to have come forward with a proposal as sweeping as that. I wonder whether the Minister can share with us the evidence that has led to the Government putting this in the Bill. It really should be quite convincing, given that it has got to this stage. It would be helpful if he would let noble Lords see that evidence.

[Lord O'Shaughnessy]

I am happy to discuss the issue with all noble Lords, as I have said in the past. I return to where I started: the intention of this approach is to make sure that independent advocacy is not imposed on someone who genuinely does not want it. It is not to provide a “get out of jail free” card for poor care home managers. If that is a concern, I take it very seriously, but it is not the intention of the Bill. However, if it is the case, something needs to be remedied. Let me assure noble Lords that I will make best efforts to do so as we move forward from Committee.

This has been a very useful discussion. In some sense it has provided a degree of continuity from our discussion last week, while moving on to the issue of advocacy, which we will clearly explore further. I hope that, with the reassurances I have given at this stage, the noble Baroness will feel able to withdraw her amendment.

[Baroness Finlay of Llandaff]

My Lords, this debate has been extremely interesting and, in many ways, gets to the nub of some of our concerns. In looking at the Bill, one thing I have tried to do is to benchmark its procedures to see how they would work. I was involved in prosecuting appalling care in EMI homes. I am trying to see how we could have discovered sooner that there were problems there.

I share the concern about the care home manager having too much power. Having said that, I have found the Minister’s answers today reassuring, as they were on the second day in Committee. I suggest, however, that the number of objectors will be very few, because many of these people have such impaired capacity and are not in a position to object—it may be other people who speak up on their behalf.

Children: Gender Dysphoria

Debate between Baroness Barker and Lord O'Shaughnessy

Wednesday 17th October 2018 Lords Chamber

[Lord O'Shaughnessy]

I absolutely agree with my noble friend that more research is required. Clearly, long-term research is also required here to track people throughout their lifetime and to understand the physical and psychological outcomes. The NHS England service was developed on the basis of peer-reviewed research—the best research available. However, it is still in its infancy, and we need more research to make sure that the correct services are being given to children and young people who, in many cases, are in quite significant distress.

[Baroness Barker (LD)]

My Lords, will the Minister confirm that surgery for gender dysphoria is never carried out before the age of 18, and that young people receive hormone treatment only after extensive periods of assessment, not just by psychologists and psychiatrists but also by endocrinologists, all of whom have to work to clinical guidelines?

[Lord O'Shaughnessy]

Yes, I am happy to confirm to the noble Baroness that no surgery should be offered to under-18 year-olds; no cross-sex hormones, which change biological gender, should be available to under-16 year-olds and even the use of hormone blockers is highly unusual for those under the age of 15. That is set out in the guidance and adhered to by the Tavistock and Portman trust, which delivers the service for children.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Lord O'Shaughnessy

Committee: 2nd sitting (Hansard): House of Lords
Monday 15th October 2018 Lords Chamber

[Baroness Barker (LD)]

My Lords, I wanted to respond in part to the points made by the noble Baroness, Lady Murphy. The original legislation was brought in on the basis of agreement across all parties in the House; so, too, was the report which reviewed the workings of the Mental Capacity Act. There was a unanimous view that DoLS need to be revised; they are not working.

It is interesting that many of the criticisms that have come to light in recent months have been from people who do not defend the current system but who have grave concerns not just about capacity but about some basic assumptions being made—not just about the role of care managers but about how the arrangements will work in practice. There is a quite legitimate view that the legislation will not solve the problem nor necessarily deal with a backlog; it will just shove it somewhere else. We need to think our way carefully through that because, as I will go on to say in debates on later amendments, there is no doubt that there is a watering down in the legal protections proposed by the Government. The noble Baroness and the noble Lord, Lord Hunt, are therefore right that we should examine in some detail exactly what the Government are proposing, because up until this point it has been quite difficult to understand it.

I thank the Minister for sending his letter of 4 October —he did so in the characteristically open and respectful way in which he treats this House. However, I want to ask a question which is germane to what the noble Baroness, Lady Finlay, is trying to achieve in her amendment. The letter states:

“Care home managers will be responsible for arranging the assessments that are needed for the authorisation. In most cases, they will use assessments that have been completed by a social worker or a medical professional or others as part of the care planning process. This means we will reduce the duplication that exists in the current DoLS system and ensure that people access the safeguards they need”.


Exactly what assessments is the Minister talking about? DoLS assessments are different from assessments under the Care Act. It would be very helpful if he could say that, because it is one of the fundamental assumptions that we are all working to and which may turn out to be incorrect.

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

My Lords, I want first to thank noble Lords for their amendments and for their contributions to the debate. Reflecting on our first day in Committee and on Second Reading, it seems to me that an enormous number of the questions with which we are dealing are about the creation or definition of a new role for the care home manager—a number of the amendments that we will consider today deal specifically with it. I shall deal with those and the many questions that noble Lords have asked.

Given that it has been more than a month since we had the first day in Committee, I would like to reflect on some of the other issues that were discussed on that first day to demonstrate that there has been some progress. I will also explain why, although we are undoubtedly dealing with some difficult and complex issues that we know we have to get right, I am confident that if we work together, we can do that. I am quickly going to pick three issues in respect of which there has been some progress.

The first issue that was raised is extending the scope of the Bill to include 16 and 17 year-olds. I said in Committee that we would look at that and I can tell noble Lords that we will bring forward proposals to include that group in the scheme. I will also reflect on the points made by the noble Lord, Lord Hunt, and the noble Baronesses, Lady Thornton, Lady Finlay and Lady Barker, about the role of the cared-for person being front and centre. In fact, that was the one obligation to consult that was not translated from the Law Commission report into the Bill. Clearly, if we want to get the improvements that we want to see, it is essential that that person’s wishes and feelings about proposed arrangements be at the heart of the model, so we will ensure that the Bill reflects this.

--- Later in debate ---

[Lord O'Shaughnessy]

As the noble Baroness says, there are conflicts of interest of various kinds; the important point is that there are protections against any conflict of interest. Typically, those will be through the regulatory authorities, whether the professional bodies or the CQC, which of course inspects all care homes and has found that 80% of them provide good or outstanding care. I believe that there are systems within the current regulatory framework that will provide for that oversight and prevent conflicts of interest. There is also the fact that the responsible body will carry out the reviews and that there is an opportunity to refer to an AMCP.

[Baroness Barker]

My Lords, the Minister has made several points, each of which needs to be gone over with great care—but I want to take him back to one of them. In his letter of 4 October, he said that the Bill is explicit that a necessary and proportionate assessment must be completed by someone who is suitably qualified and that case law establishes who is qualified to conduct other assessments. However, that is not actually so. What the Bill says in paragraph 16 of Schedule 1 is:

“The determination required by this paragraph is a determination that the arrangements are necessary and proportionate … The determination must be made by a person who appears—(a) to the care home manager, if the arrangements are care home arrangements, or (b) to the responsible body … to have appropriate experience and knowledge”.


So that wording does not say that it has to be a medically qualified person, and I am not sure whether case law establishes that a capacity assessment must be carried out by a nurse or a social worker. Under the Mental Capacity Act, you get best interest assessors who are not medically qualified; that relates to an amendment tabled by the noble Baroness, Lady Finlay. I suggest to the Minister—and I will suggest this quite a lot—that it should be in regulations rather than in the code that the minimum standards for completing assessments should be made.

On the first day in Committee the Minister said:

"Care home managers are already required to make applications and to consider capacity and restriction. Effectively, the new model recognises what they are doing but also allows for a further escalation”.—[Official Report, 5/8/18; col. 1829.]


At the moment care home managers do not make many of the assessments. They do not do capacity assessments. They do not make decisions about whether somebody is objective. It is not up to them whether an advocate comes in to see somebody. It is taking the truth to its outer limits to liken what happens now to what is intended under LPS.

When the Minister uses the word “escalate”, what is clearly understood not just by noble Lords but by stakeholders is that many of the protections, such as access to an advocate or to an AMCP, have deliberately been weakened in the Bill from what they are under DoLS. So I do think the Minister is somewhat overstating the case. That is what has given rise to many of the fears that have been expressed by a remarkably wide range of stakeholders. I therefore take some issue with what he said.

[Lord O’Shaughnessy]

We believe that case law does establish that suitably qualified people need to be appointed. Clearly that is something we need to continue to discuss to persuade the noble Baroness that that is the case, but that is our understanding. As she pointed out, “suitably qualified” can include medical and other qualifications.

On care home managers’ capacity, they are of course carrying out some assessments. The intention is they will carry out more assessments. I agree with the noble Baroness on that point. The point that the noble Baronesses, Lady Barker and Lady Thornton, raised was about the capability and capacity of this group of people to carry out these roles. On our previous day in Committee I committed to explain how we would ensure that that group of people had the requisite training and skills to carry out these kinds of assessments.

The noble Baroness made a point about weakened access. I want to update the House on our thinking about making sure that the person is consulted. We are trying to create a more proportionate system such that, where all those concerned with the care of a person are content that the arrangements have been properly put in place, it does not need to be escalated and reviewed by an AMCP or similar person. The problem we have at the moment is that the system takes every decision to the highest possible level. This is not about weakening access but about trying to have a proportionate system and also about making sure—we will debate this further tonight—that at every stage there are the right opportunities to seek advocacy support and to refer concerns so that an AMCP or responsible body can intervene and review a case if necessary.

Unless we find a way to deliver a more proportionate system we will simply be re-enacting the system we have now, which is not working. This is why I am so keen to work with noble Lords to make sure that we can determine the proper role and responsibilities of, and checks and balances on, care home managers so that we can get the system right and deliver a reform that saves money, enables more people to have their cases reviewed and enables us to make sure that people are protected, which is what we want to do.

--- Later in debate ---

[Lord O'Shaughnessy]

I am grateful to Members of the Committee for their sympathy and for giving me breathing space. I was flustered by flipping forward and almost missing out this group of amendments.

As the noble Baroness, Lady Finlay, said, the issue of concern is the distinction between the person who is responsible for somebody’s care and the person who manages a care home—they are of course different. What we are trying to get right here—I understand that this is what the amendments are exploring—are the relevant responsibilities of those people, bearing in mind that we want to integrate liberty protection safeguards into the process of care planning.

The noble Baroness, Lady Barker, knows huge amounts about this topic and I very much respect her opinion. She pointed out that DoLS assessments are different from assessments under the Care Act. There are some overlaps. As she will know, there are similar questions or parts in both assessments concerning consent, for example, but she is right that they are different types of assessments. I want to explore whether her or indeed the Committee’s concern is that those assessments should not be carried out by care home managers or whether—a more positive view—they should be carried out by certain types of professional. Those are subtly different points. Perhaps I may give her the opportunity to respond in a moment, as I am really keen to explore this matter.

Clearly, we are trying to make sure that those who have the professional expertise to carry out certain types of assessments do so. Equally, we are trying to make sure that a co-ordinating body has responsibility for ensuring that these assessments are carried out in a proportionate way and are included with care assessments in an overall care plan, with people being answerable to the relevant regulatory bodies. If the noble Baroness would not mind, I would be grateful if she, along with other noble Lords, gave her perspective on that. I want to make sure that we determine the appropriate role of the care home manager.

[Baroness Barker]

I thank the Minister very much for that because it enables me to point out something that I am sure he and all noble Lords know—that, when it comes to deprivation of liberty, the body which is ultimately responsible for that in court is not the care home but the state body, which would be the NHS body or the local authority. The Minister said that responsible bodies currently receive from care homes the referral forms and then do a desk-top assessment of those. Yes, they do that; however, they do it in the knowledge that the person will be seen by a qualified person. The problem with the Bill as it stands is that that is not an automatic assumption that a responsible body can make because of the gatekeeping role of the care home manager.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Lord O'Shaughnessy

Monday 15th October 2018 Lords Chamber

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

Well, I shall see whether I can lift the gloom from the noble Lord. I think that there was a slight mischaracterisation, in that the Government are listening. Indeed, we have responded and made changes. I hope that in responding to these amendments I will be able to show further that we are taking a positive and constructive view on improving the Bill, making sure not that it removes rights but quite the opposite—that it provides access to liberty-protection safeguards for people who do not currently enjoy them.

I begin by thanking the noble Baroness, Lady Barker, for leading the debate and I also thank other noble Lords. I shall go directly to her Amendment 17. Of course she is right, as are other noble Lords, about the arrangements for the cared-for person—person P—being written. I am very happy to confirm to all noble Lords that that is our intention and that we will make sure that the Bill reflects it.

With regard to other amendments, the entire thrust of policy across government, whether in health and care or anything to do with data, is about providing more people with the information that the state holds about them. I can give the absolute commitment to noble Lords that that is what we intend to do in the Bill and in changes that we make to the Bill going forward. It is essential that cared-for persons, their families, appropriate persons, IMCAs and so on are given full information about their authorisation and their relevant rights, including their rights to review and appeal. I can tell noble Lords that that will be set out fully in the code of practice.

On the code of practice—I can see the noble Baroness, Lady Barker, grimace—I will say two things. First, it is a statutory code of practice involving a consultation arrangement and a laying before Parliament—noble Lords know how these things work. The noble Baroness asked about the force of the code of practice and it is true that the Bill says “have regard to”. But case law confirms—I am happy to write to noble Lords with this opinion—that the code of practice must be followed unless there are cogent reasons not to do so. That means that there will be some occasions when the code is not practised, but those not following it will have to justify, potentially in court, why they did so in the interests of a person’s care. So the code of practice is statutory and it has very great force. It is worth pointing that out, not least because on this group and future groups we will be talking about information or an instruction that will be within the code of practice. I will take the opportunity to make that clear at this point.

[Baroness Barker]

I thank the Minister for that. This is a very important part of our discussion. I have two questions which I am absolutely certain he will not be in a position to answer, but I hope that he will write to me. First, how many cases of a failure to follow the code of practice rather than a failure to follow the law have gone to the Court of Protection? Secondly, can the Minister confirm that the original Mental Capacity Act code of practice was never reviewed and that it is not possible to make individual amendments to a code of practice: it has to be changed in its entirety? I shall not put the Minister on the spot now but we need to return to those matters in a further discussion because they are really important.

[Lord O'Shaughnessy]

The noble Baroness is quite right: I do not have the answers to those questions, but they are very good questions and I will make sure that we answer them for noble Lords in a communication following this debate.

On the point about access to information, I think that two other aspects are worth considering. One is that under the general data protection regulation, which came in on 25 May this year, the cared-for person or their family, IMCA or somebody holding a lasting power of attorney—that is, somebody acting on their behalf—will, and indeed does, have access to their authorisation record. I believe, although I will clarify, that that has to be done free of charge. I know that that is certainly the case with medical records and GPs. In terms of access to information, that is an important advance.

Again, I want to get further clarification on exactly what is involved, but the NHS and the LGA have created a programme of local health and care record exemplars. It happens in a few parts of the country and it is about creating a single health and care record that contains all the information about a person’s health and care. Obviously it spans both health and care settings. That will be available not only to inform the care carried out by a clinician or someone in a caring role but information to that person and those with responsibility for them.

That obviously has huge implications for improving joined-up care. It is an important programme by which we set a lot of store. What I will take away from this discussion is the need to ensure that what we are describing here, around access to information by the cared-for person or by those caring for them, ensures that they will have access to the local health and care record, which would contain the kind of information we are talking about. If it does, we have a vehicle; if it does not, we need to think about what the right vehicle is.

The amendments in this group also support the IMCA to help the cared-for person understand their rights under liberty protection safeguards. I can confirm that this will be a key role for the IMCA. It will be defined in their job description and, again, contained in the code of practice.

Once again, we have already made changes, and are committing to changes in the Bill, that will deal with the questions raised about access to information. I absolutely concur with the sentiment behind the questions. There is good reason to believe that expanding programmes and mechanisms in the system will give us the opportunity to do that, and in a much more thorough way than is done now. I want to continue to work with noble Lords to make sure that we get that right as we move towards Report, so that it is properly reflected in the Bill. I hope that, on the basis of my comments and reassurances, the noble Lord, Lord Touhig, will feel a little less despairing and the noble Baroness will be prepared to withdraw her amendment.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Lord O'Shaughnessy

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 15th October 2018 Lords Chamber

[Baroness Finlay of Llandaff]

It might be of assistance if I intervene here. If the noble Baroness is referring to amendments in the group beginning with Amendment 58A, I understand that if she does not speak to them now, they can be dealt with in the next group.

[Lord O'Shaughnessy]

I am no expert in parliamentary procedure but my understanding is that, as they come after the amendment we are considering now and indeed the one that we would consider next, they can be retabled.

[Baroness Barker]

I am grateful. I will do that.

[Lord O'Shaughnessy]

I am grateful to the noble Baroness, Lady Finlay, for initiating this discussion. Clearly the purpose of her amendments is to make sure that an authorisation cannot be renewed if it wholly or in part ceases to have effect. In some cases, an authorisation will not be renewed if in part it is no longer valid, but there might be other cases where minor changes to the restrictions are needed and that should not prevent an authorisation being renewed. We want to provide further detail in the code of practice and I would appreciate the opportunity to work on that with her.

The noble Baroness has also tabled amendments outlining that authorisation records should detail when arrangements are not authorised or if they are authorised with conditions, and that in care home cases responsible bodies should consider other relevant information, as well as information provided by the care home manager. I can tell her that in some cases if arrangements are not authorised, it might be useful to include them in the authorisation record. However, given the debate that we had on the previous grouping about the general trend towards the inclusion of data or information within records that are then made available to patients, their families and so on, I want to reflect on whether they should always be included and I will come back to that on Report.

The Bill allows the responsible bodies to consider information other than that provided by the care home manager, and further detail on the circumstances and kinds of information will be provided in the code of practice. On that basis, I hope that the noble Baroness is reassured and will feel able to withdraw her amendment.

Health: Contraceptive Services

Debate between Baroness Barker and Lord O'Shaughnessy

Thursday 11th October 2018 Lords Chamber

[Lord O’Shaughnessy]

I thank the noble Lord for his question and reiterate the point I made; of course public health budgets have been under pressure and we know why that is. Nevertheless, there are some positive outcomes in the changing of services, such as services moving online, as they have done in London with good effect. It is also worth saying that, in the same survey that the noble Lord referred to, more than 50% of local authorities had either kept the same levels of service or increased them. That is also worth focusing on. Nevertheless, I recognise that there are pressures and that there are behaviours that we do not want to see, such as increasing abortions among the over-30s. We are making the case, and will be doing so in the spending review, for the benefits of public health spending on issues such as this.

[Baroness Barker (LD)]

My Lords, the provision of access to contraception is a part of the GP contract, but there is a growing number of GP practices that neither provide the service nor refer their patients elsewhere. What are the Government doing to stop that unacceptable situation for growing numbers of women?

[Lord O’Shaughnessy]

The noble Baroness is quite right that there is an obligation in the GP contract. We are in the process of renegotiating the contract for the next financial year, and I shall certainly take that issue back and feed it in to the team that is carrying out the negotiation.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Lord O'Shaughnessy

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Lord O’Shaughnessy]

I shall give just a brief response to that. It is a good idea. The Government think that the proposals for care homes, how they will carry out commission-needs assessments and the process for reviewing and authorising where necessary are a critical part of creating a more proportionate system that does what it says it will do, rather than the current system, which says it will do a whole bunch of things and then does not actually do them. That is where we want to get to.

I am being robust, as it were, in defence of the model. I want to explain—I think noble Lords are enthusiastic about this—how this will work in practice with the kinds of people who are most likely to be in the most difficult situations, so there is a clear understanding of the safeguards that exist to prevent conflicts of interest, provide independent oversight, make sure there is advocacy to support, and so on. It is clearly the case that there is not yet that understanding, and we need it to proceed.

[Baroness Barker]

I thank the Minister for his explanation, which has been very helpful. Over the next few weeks, while he is seeking to give further clarification, I wonder whether it would be possible to explain this. One of the Government’s arguments is that the consideration of deprivation or the safeguarding of liberty should come much earlier in the care planning process. Most care is commissioned, most of it by local authorities. Can the Minister explain—perhaps not now at this late hour—how the commissioning of services will change to reflect the new system?

[Lord O’Shaughnessy]

There is a useful flowchart that exemplifies it and brings it to life. I will make sure that it is shared. I agree that we need to find ways of bringing it to life, and that is something we can do outside this Chamber.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Lord O'Shaughnessy

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Baroness Barker (LD)]

My Lords, I apologise for being slightly late. I was taken by surprise at the swiftness with which we concluded our previous business.

I thank the noble Baroness, Lady Finlay of Llandaff, for many of the points that she made in her speech. It took a lot of work to get the concept of an advance statement on wishes into this legislation, and I, like her, regret that it has not been more widely adopted or accepted, particularly by the medical profession. She will know that when the Select Committee reviewed the legislation, one of the biggest disappointments was the extent to which the Mental Capacity Act had not been understood by the medical profession. She will perhaps remember that when representatives of different parts of the medical profession come to talk to us, they began by saying that in an A&E department it is extremely difficult to work out somebody’s advance decision. We knew that when we passed the initial legislation, but that legislation was not meant solely to take its lead from that; it was meant to apply to a whole range of matters just within medicine. It is a shame that the medical profession still relies on a very conservative interpretation of the existing legislation and takes a read-out from emergency situations when it really should not, as there is plenty of time to discuss with the person what is happening and to understand their previously stated wishes and feelings.

I am glad that the noble Baroness has raised this issue. She is right that at the heart of the Bill is a fundamental change from the Mental Capacity Act. There will no longer be a whole series of decision-specific assessments of people who lack capacity, and that is not something that I object to. Over the last few years while this legislation has been in place, we have quite often found people being subjected to unnecessary assessments. It is quite clear that when somebody has a medical assessment for advanced dementia, say, they will not have the capacity to make the same decision, even though they go to live in a different place. I accept that it is possible to make a decision of a lack of capacity and to carry that forward throughout a person’s care. What I am not clear about, though—given that people will be subject to fewer assessments, and therefore be less likely to have changes in their conditions brought to light—is the extent to which that will interplay with somebody’s statement of advance wishes. I would rather like it if the Minister, in his response, could talk about how that will work.

I agree with the noble Baroness, Lady Finlay. The safeguards on liberty and safeguarding have been thoroughly confused by many people. That is fundamental. Whether we turn this around from safeguards against deprivation of liberty or safeguarding the liberty of somebody, I do not think that anything I have seen in the Bill has yet addressed that fundamental misunderstanding. In fact, in some cases, it probably compounds it. I want to put that on record as we discuss the many issues the noble Baroness, Lady Finlay, has introduced so well.

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

My Lords, I thank the noble Baroness, Lady Finlay, for her amendment and the noble Baronesses, Lady Thornton and Lady Murphy, for their amendments. I am delighted that the noble Baronesses were able to make it on time so that we could start on our deliberations of what are clearly very important issues.

The purpose of these amendments is to clarify that a liberty protection safeguard authorisation cannot override a valid decision to refuse care or treatment by the donee of lasting power of attorney or a court-appointed deputy or contained in a valid advance decision to refuse treatment. The comment that the noble Baroness, Lady Finlay, made at the start of the debate, about conflict and avoiding conflict by recognising valid decisions where they have been made, was very important. I hope that all noble Lords know that the intention of the Bill is to enhance the role and agency of those deprived of their liberty and those with an interest in the care and welfare of that cared-for person. That is why this debate on the first grouping of amendments is so important.

This debate gives me the opportunity to clarify and confirm that the Bill does not allow a decision to be made that conflicts with that made by a donee of a lasting power of attorney or a court-approved deputy’s valid, best interests decision. I am glad of the opportunity to do that. Section 6(6) of the Mental Capacity Act already provides for this, and the Bill does not change that. Therefore, an authorisation under the liberty protection safeguards could only be given if it was in accordance with a valid decision—namely, one that is authorised in the lasting power of attorney—by the attorney or deputy.

The Bill also does not change the current position regarding advance decisions to refuse treatment, and those will remain an important part of care planning. I absolutely recognise the important role that the noble Baroness, Lady Barker, and others in this House played in introducing that. I assure all noble Lords that there is neither the intention nor action in the Bill to water down the power and validity of those in any way. If a person has made a valid advance decision to refuse medical treatment, that treatment cannot be given and it would not therefore be possible to deprive someone of liberty in order to provide it. We intend to give further explanation of the legal position in the code of practice. I hope that that answers some of the key issues raised by the noble Baronesses, Lady Finlay, Lady Thornton and Lady Murphy, in their comments.

Those comments were echoed by my noble friend Lady Browning, and she is quite right to discuss the importance of support for those with communication difficulties so that they are able to enunciate the kinds of decisions and indications of future treatment that would adhere to their own wishes. We will return to this issue later in Committee, particularly when we get on to the issue of IMCAs—the advocates—but she is right to reiterate the point made in the proposed amendments that those acting on behalf of the cared-for person, whether they are the family, have an interest in care or have been formally appointed to do so, are, in the end, responsible for taking those decisions on behalf of that person, and their decisions should be respected, as the noble Lord, Lord Cashman, pointed out.

The fundamental question that underpins these amendments is: why is the Bill not explicit on these issues when, as the noble Baroness, Lady Thornton, pointed out, the Law Commission’s Bill is? Because there is no change in the current position, there is therefore no reason to outline what is already the case. Nothing is changed about what is already in the Act by what is being proposed through this Bill. Therefore, there is no need to reiterate what is already the case and will not be changed. I hope through the course of this debate that we have aired this issue. It is one that the Government agree with and, in the way that the Bill is structured, I can confirm to the Committee that there is no change in the status quo about the validity of those decisions.

With those reassurances, I hope that the noble Baroness is prepared to withdraw her amendment. I recognise that there is great concern, not least among many of the campaign groups, service providers, commissioners and others who are implementing these rules and laws every day, and they need to know that there is consistency. As we move between now and Report, I am more than happy to meet with noble Lords and others to discuss these issues and make sure that we can give every reassurance so that they can be sure that the law as it stands today has not changed and will not change as a consequence of this Bill.

--- Later in debate ---

[Lord O’Shaughnessy]

I am very grateful to all noble Lords who have contributed to the debate for their desire to be brief, which I know was shared by others who have not been part of the discussions on the Bill, but it is also important to be comprehensive in discussing these issues because, as pointed out by the noble Lord, Lord Touhig, the best interests of the people being cared for is what this is all about.

I know that this is an issue for noble Lords; it was raised at Second Reading and has been raised again in this debate. It is important to state that best interests decision-making for care and treatment remains fundamental to the Mental Capacity Act. In a way, it is the founding stone around which the rest is built. The liberty protection safeguards sit under the aegis of the Act. The Bill does not change that. One request made by noble Lords at Second Reading was for us to publish the Act as amended by the Bill. We have done that; I understand that it is in the Library. I can make sure that a digital copy is circulated, and I will make sure that it is sent to all concerned. Clearly, understanding the flow of how it is read in not just legislation but the code of practice is critical. I want to make that clear and I understand that important desire.

Under the current system, there are two different best interests tests: one exists under Section 4 of the Mental Capacity Act—the decision, usually made by a clinician, to provide care or treatment—and a second, separate, additional one falls within the tests required for the DoLS system. The Law Commission recommended that the DoLS tests be replaced with a necessary and proportionate test. In that sense, we are following where it led. Prior to a liberty protection safeguards authorisation being considered, the decision will need to be taken, normally by a clinician, that the care or treatment enabled by the arrangements is in the person’s best interests. As I said, that will apply under Section 4. Subsequently, it must be demonstrated that the arrangements to enable that care and treatment are necessary and proportionate. Of course, that is the single test applied by the liberty protection safeguards; it is a secondary test following a consideration of best interests.

The current requirement that the deprivation of liberty must be necessary, proportionate and in the person’s best interests is instead replaced by a single, primary best interests test in an attempt to avoid confusion and conflict—the word used by the noble Baroness, Lady Finlay, at the beginning of the debate—between two determinations. The focus of the second-stage test on what is necessary and proportionate is an attempt to remove this confusion. It is not an attempt to downgrade in any way the primary and prior importance of a person’s best interests being taken into consideration.

As well as giving that assurance, I want to pick up on the point made by the noble Baroness, Lady Finlay, that avoiding risk to the cared-for person will form part of the necessary and proportionate test. There is already a principle in the Mental Capacity Act to use less intrusive arrangements, which will continue to remain, unamended, an important principle in the new model. As was brought to light by the noble Baroness, Lady Finlay, and other noble Lords, the application of “necessary and proportionate” requires a degree of granularity that makes it difficult to overdetermine in legislation, and that is the reason why the code of practice is so important. That is why it will contain a range of scenarios, principles, circumstances and so on of what the application of a necessary and proportionate test should look like.

I hope that I have been able to assure noble Lords, whose considerations I take very seriously, that best interests are foremost in our minds and will remain so in the legislation, unamended by the changes brought in by the Bill. Clearly, I want to make sure that this sentiment and its legal power are understood by all concerned, particularly if there is concern in the wider sector. As I said, I do not believe that a second test is necessary; as said by the Law Commission, it could be counterproductive. It is important that we make sure of a clear understanding of the primacy of the best interests test. I would like to explore that with noble Lords to make sure that it is properly understood by all; we can do that between now and Report. On that basis, I hope that the noble Baroness will be prepared to withdraw her amendment.

[Baroness Barker]

I thank the Minister for his helpful response. As we begin to get to the heart of the debate, he will understand that he and the Bill team can perhaps see the Bill as a whole, but the rest of us are struggling to do so. Therefore, we have to test individual elements of it, perhaps to a greater degree than he may think is warranted. None the less, it was helpful of him to put those statements on record. With that, I beg leave to withdraw the amendment.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Barker and Lord O'Shaughnessy

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.

Abortion

Debate between Baroness Barker and Lord O'Shaughnessy

Wednesday 6th June 2018 Lords Chamber

[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

Debate between Baroness Barker and Lord O'Shaughnessy

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

Debate between Baroness Barker and Lord O'Shaughnessy

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.

Social Care: Sleep-in Payments

Debate between Baroness Barker and Lord O'Shaughnessy

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

Debate between Baroness Barker and Lord O'Shaughnessy

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.

National Citizen Service Bill [HL]

Debate between Baroness Barker and Lord O'Shaughnessy

Report stage (Hansard): House of Lords
Wednesday 7th December 2016 Lords Chamber

[Baroness Barker (LD)]

My Lords, Amendment 8 in this group stands in my name. The noble Lord, Lord Blunkett, said that this legislation was not controversial. The purpose and aim of this legislation is not controversial; there is agreement that the outputs such as those the NCS exists to deliver are ones that we all welcome. However, as I said at Second Reading, the decision to make this organisation permanent, to make it a royal charter body and to invest so much money in it is highly controversial. What this House has done, or what we have certainly tried to do from these Benches, is to draw to your Lordships’ attention the very many flaws within the basic design of this legislation and in its detail. We do so because we have seen in recent memory programmes of this kind, such as the Work Programme, fail to deliver in their own terms as well as doing damage to the rest of the sector.

I know that, on the one hand, the Minister wants to establish the NCS as a body that is completely insulated and isolated from the rest of the voluntary sector, not bound by the same rules and accounting obligations. On the other hand, he has to accept that if the NCS as a commissioning body is to deliver on its objectives, it will have to work very closely with the rest of the sector. The noble Earl, Lord Listowel, is absolutely right: at this size, the new body will have a profound effect on those other organisations. The Minister has, all the way through, elegantly batted off any suggestion that this organisation should be required to be accountable and report in any greater detail than that which is set out in the original Bill, but I put it to him that the requirement in my amendment to report on how many young people have gone on to participate in other social action opportunities and the impact that the NCS programmes have had on the wider social action sector should be fundamental parts of the raison d’être of the NCS. If it cannot do that, then we as parliamentarians have to question why so much money is being invested in it.

I think that this is a very modest requirement. If the Minister says that this is too much of an imposition upon the NCS Trust, I am afraid that, yet again, we will be forced to wonder whether the NCS is being overrated and overstated as an organisation and whether it really is safe to invest this much money in it. I hope that the Minister will accept this amendment.

[Lord O’Shaughnessy (Con)]

My Lords, before I address the amendments in this group, I thank the Minister for his comments on the previous group. I did not say anything because I did not think anything more needed to be said, but the amendment is very welcome and a sensible compromise on the part of the noble Lord, Lord Blunkett.

There are two definitions at play in this group of amendments. The first is around the intention of the trust, as it were, in its impact on the wider social action sector, as addressed in Amendments 2 and 4. The other is more about reporting the consequences of those actions, as addressed in Amendment 8. I have a great deal of sympathy with the amendments in the name of the noble Baroness, Lady Royall. I think we all want the NCS to be a spur rather than to crowd out wider social action. Like her, I am extremely committed to promoting the idea of a journey of service.

Whether these amendments are needed is in question. The evidence on the NCS so far is that it is acting as a spur through its commissioning work. It is not a direct delivery agent itself. I forget how many new and established agencies it commissions through its work, but it is clearly already providing income and capacity for the sector and it is difficult to imagine that it will not do more of that as it grows. If my noble friend the Minister were to give a commitment on a review, I hope that would satisfy the intent of Amendment 4.

Amendment 8, in the names of the noble Baroness, Lady Barker, and the noble Lord, Lord Wallace of Saltaire, is a bit more difficult because it is about what happens afterwards as a consequence of the action rather than the intention. It would certainly add to the reporting burden. I am also not sure whether it is the sort of thing on which the NCS Trust would have the capacity to report. It strikes me that the noble Baroness is asking for something that is more properly the work of the sponsoring department, rather than the delivery agent itself. Therefore, although I understand why she has tabled the measure and I understand the concern in all the amendments in this group to make sure that the impact is positive rather than one which crowds out other provision, I am not sure that the suggestion in Amendment 8 is proportionate in terms of the functions and purpose of the NCS Trust, nor would it be productive.