Covid-19: NHS Long-term Plan

Baroness Browning Excerpts

Tuesday 15th September 2020 Lords Chamber

[Lord Bethell (Con)]

My Lords, the right reverend Prelate is right; health inequalities are a massive priority for the Government. Covid has demonstrated how health inequalities play out when an epidemic such as this one hits the country. That is why we put education and levelling-up on health generally as major government priorities, why we are investing in 50,000 new nurses and 40 new hospitals, and why health remains a number one priority for this Government.

[Baroness Browning (Con) [V]]

My Lords, my noble friend will be aware that the long-term plan has set an ambitious target for 2028 of 75% of cancers being diagnosed at stages 1 and 2. Does he agree that this must involve GPs, and that GPs having face-to-face consultations with patients is the only way that this target will be achieved?

[Lord Bethell (Con)]

We are enormously proud of the commitment to early intervention on cancer. This is the absolute core of our life science priorities. It is envisaged that we will have a revolution in the diagnostic capabilities of the NHS in order to hit these targets and, where necessary, face-to-face GP appointments will be made available. However, I am not sure that every single appointment needs to be face to face. One of the learnings of more than half of the 100 million consultations that took place between March and June was that telephone and video appointments can be extremely productive.

Covid-19

Baroness Browning Excerpts

Thursday 3rd September 2020 Lords Chamber

[Lord Bethell (Con)]

The right reverend Prelate is entirely right to raise this point; it is emerging as a massive concern. The idea that Covid will somehow pass through Britain and leave people untouched, a bit like simple winter flu, is beginning to prove worryingly untrue. Her anecdote from Bristol is completely consistent with what we are seeing across the piece. In particular, those who have had acute infection but also, I fear, some who have had relatively asymptomatic or low-symptom Covid have found in later weeks and months symptoms of fatigue, arrythmia, renal impact, scarring on the lungs and memory loss. These are extremely worrying symptoms. Sir Patrick Vallance, the Government Chief Scientific Adviser, is running an operation to understand what the right reverend Prelate rightly calls long Covid; we are using big data to analyse the scans we have collected from acute patients and to understand the impact of asymptomatic infection. This is an extremely worrying manifestation of Covid, one that we are acutely aware of, and we are investigating very urgently.

[Baroness Browning (Con) [V]]

My noble friend will be only too aware of the consequences of non-Covid patients’ reluctance to present themselves at hospitals and even to GPs for treatment and support. With the winter months approaching, what can he do to make sure that, at a local level, in advance of people having symptoms, they are reassured that they will be safe to approach the NHS? The idea that “it will be all right on the night” and just requires encouragement has clearly not been enough in the past and, I fear, will not be enough in the coming months.

[Lord Bethell (Con)]

My Lords, my noble friend is entirely right that confidence in attending NHS venues is hard hit by Covid. One of the inspiring and interesting things that has happened has been the switch to using telemedicine—video and telephone calls—for referrals. This has been particularly and interestingly used in mental health, where attendance at clinics is something that many patients would wisely seek to avoid, but in fact the delivery of mental health therapy through telemedicine and calls has proved to be incredibly effective and has worked very well. We are working hard, through the NHS, to try to de-weight attendance at venues, particularly big central hospitals, and move much more towards attendance in the community, or through technology, in order to give patients a choice and to increase our engagement at a time when people are fearful of going back to their GP surgeries.

Covid-19: Personal Protective Equipment

Baroness Browning Excerpts

Thursday 16th July 2020 Lords Chamber

[Lord Bethell [V]]

My Lords, I completely share the concerns of the noble Baroness, Lady Andrews, about a second peak and we are working to prepare for that. I respect the views of the PAC and emphasise that our approach to PPE is incredibly serious. A huge amount of work has gone into it and a huge amount of progress has been made.

[Baroness Browning (Con) [V]]

Can my noble friend identify what lessons have been learnt so far from both the quantity and quality of the PPE that has been used in homes and hospitals? What action will be taken to minimise cross-infection for those who have to go into people’s domestic homes and who often work in more than one location?

[Lord Bethell [V]]

My Lords, the big lesson from Covid is that the quantity of PPE needed for a disease like this is massively more that could ever have been expected, particularly compared with our past experience. It has hit every country in the world and has hit the global supply chains incredibly hard. A benign lesson is that British manufacturers are capable of stepping up the challenge, and I salute their work. Contamination from itinerant workers was always one of the greatest challenges of the care sector, and we have put in a huge amount of work and financial resources to avoid the need for workers who move from home to home.

Hospitals: Patient Safety

Baroness Browning Excerpts

Thursday 21st May 2020 Lords Chamber

Asked by

[Baroness Browning]

To ask Her Majesty’s Government what steps they are taking to update the guidance given to hospitals about ensuring the safety of patients who do not have Covid-19 who require life-saving emergency treatment.

The Question was considered in a Virtual Proceeding via video call.

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

My Lords, despite Covid-19, the day-to-day health of the nation remains the business of the NHS. That is why the NHS has issued a new operating framework to help hospitals to continue providing essential and emergency care for patients who do not have Covid-19. This guidance is being kept under review. I have placed a copy of the framework in the Library.

[Baroness Browning (Con)]

Emergency admissions, of which we have seen many, though perhaps not enough, have resulted in people being very afraid of going into hospital, because there has been a lack of information for the general public. For example, what happens at the triage stage, what sort of PPE will people be wearing and how will they be protected? What can the Minister do to reassure the public that they will be safe and, on top of their emergency, will have the absolute minimum chance of getting Covid-19?

[Lord Bethell]

My Lords, I acknowledge that people’s concerns have led to a decline in attendance at A&E. That is why the NHS is running an “Open for business” media campaign, encouraging all patients in need of urgent or emergency medical care to seek appropriate treatment, including, where appropriate, attendance at A&E.

Health and Social Care: Malnutrition

Baroness Browning Excerpts

Tuesday 5th November 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

The noble Lord is quite right that this is about leadership not only at board level but from the very top. It has been instructive that not only the Secretary of State but the chief executive of NHS England, Simon Stevens, have made it one of their priorities to ensure that the quality of food and food safety standards throughout the hospital and care systems should be improved. This is one of the key ways that we will drive out malnutrition from our health and care sector.

[Baroness Browning (Con)]

Could my noble friend please take a look at the frail elderly living alone at home who are not necessarily regularly seen by doctors because they do not present with symptoms? Very often, the older people get the more difficult it is, as the body starts to age, for them to absorb nutrients, even when they are eating a mixed diet. Could she take a look at that particular group, in the way that we look at people who have regular check-ups with a GP for heart problems and diabetes, to ensure that they are not just deteriorating? It is not until they deteriorate to the point where they become ill and symptomatic that people start to notice that there is a problem.

[Baroness Blackwood of North Oxford]

My noble friend is absolutely right. Evidence is on the rise that malnutrition is worse among older age groups and is both a cause and consequence of ill health. We must make sure that we are identifying and intervening as early as possible to make sure we are not leading to some of the challenges raised by the noble Baroness. That is why the malnutrition universal screening tool has been developed by the Malnutrition Advisory Group to assist those in nursing and in general practice to intervene as early as possible to prevent some of the challenges that she has identified.

Mental Disorder: Autism and Learning Disabilities

Baroness Browning Excerpts

Tuesday 5th November 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

I thank the noble Baroness for taking on the chairing of the independent panel. I cannot think of anybody better placed to do so. When it comes to her question about the detention of an individual to improve their behaviour, again, I do not think that anybody in this place or elsewhere could disagree with her. On changing the Mental Health Act, we commissioned the independent review led by Sir Simon Wessely, who is also a leader in the field. He reported in December. In its findings, the review made it clear that we need to modernise the Mental Health Act, ensure that views are respected and ensure that patients are not detained for any longer than is absolutely necessary. Sir Simon stated that there is “no clear consensus” on removing autism from the Act, and that,

“we have heard also about the many negative consequences that could arise from being outside this framework … this should be kept under review”.

Obviously, we will not respond to that immediately. There will be a White Paper by the end of the year. We will consider this carefully and we recognise the strength of feeling on this matter.

[Baroness Browning (Con)]

In support of what the noble Lord, Lord Touhig, and the noble Baroness said—we greatly welcome her chairmanship of the review—there is a very good reason for removing autism as a mental disorder: it is not a mental disorder. It is as simple as that, although it is true that people with autism, including children, will have comorbidities and will develop a mental health condition on top of their autism. I do not know whether the Minister understands my frustration, but I have been raising this issue in Parliament for nearly 28 years. The real problem is that we do not have sufficient psychiatrists who understand and can differentiate between autistic behaviour and what they believe to be psychotic behaviour. Once patients start the spiral of medication for psychosis, the autism disappears and the person disappears altogether.

[Baroness Blackwood of North Oxford]

My noble friend puts this very clearly. The Government accept completely that autism and learning disability are not mental disorders. The question is whether being excluded from the legislation would cause challenges or difficulties for those who may have autism and mental disorders. We will have to consider that carefully as we go into the process of considering a review of the Mental Health Act. As my noble friend just said, we recognise that we will have to go through a careful process. We also recognise the strong feelings—and the correct view—that autism and learning disability are not mental disorders. There is no disagreement on that point.

Carers: Support

Baroness Browning Excerpts

Monday 17th June 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

The noble Baroness has raised an important point, which is that we need to provide carers with the support they need, because they do an amazing job. Unpaid care is a vital part of a sustainable health and social care system. This is why the long-term plan has put in place an ambition to ensure that we provide sustainable support across the public health system, and will ensure that we have a quality mark for primary care to highlight best practice. I am very sorry to hear about the experience of the carer in the case that the noble Baroness highlighted and would be pleased to follow this up with her directly, after today’s Question Time.

[Baroness Browning (Con)]

After decades of being a carer myself, I can say to my noble friend that it would help carers enormously for there to be an integrated approach to the carer and the person they are caring for. I cannot remember how many times I filled in a form asking what my needs are, and wrote across it, in large letters, “If the needs of the person I care for were met, my needs as a carer would be greatly reduced”. Until there is that joined-up approach in practice, carers will continue to suffer.

[Baroness Blackwood of North Oxford]

As so often, my noble friend speaks with common sense and insight. This is something that our carers innovation fund is supposed to root out, with its creative and innovative ways to drive reform and improvement through the system. That is why we brought it in, but it is also a commitment of the long-term plan. Best-practice quality marks in primary care are supposed to drive better identification and support of carers in the system. We will ensure that we see that.

Mental Capacity (Amendment) Bill [HL]

Baroness Browning Excerpts

Tuesday 26th February 2019 Lords Chamber

[Baroness Browning (Con)]

My Lords, I will be brief. I too had concerns about this definition when the original legislation went through pre-legislative scrutiny—it seems an eternity ago now. It does not seem to be any easier for my noble friend to put this in the Bill. But there are some concerns. I declare my interests as a vice-president of the National Autistic Society, which has written to me, along with other similar charities, to say that it has concerns, not so much on the substance but on the clarity.

As my noble friend has just pointed out, there are two areas here. One is the clarity of the legal definition which lawyers will need, and that is important. But also, as the noble Baroness, Lady Tyler, has said—I assume this will be in the guidance and consultations that my noble friend is now undertaking—it needs to be in clear English for practitioners, relatives and people deprived of their liberty. If anybody asks in the future what Parliament’s intention was at the time—a question which I understand is sometimes asked in courts of law and to which we perhaps pay scant attention when we are legislating—I hope that on both counts, in terms of the legal definition and the guidance for others who are not lawyers, my noble friend will make sure in those documents that Parliament’s intention in defining deprivation of liberty is clear.

[Lord Mackay of Clashfern (Con)]

My Lords, this area of the definition of liberty is, and always has been, extremely difficult. The Strasbourg court has wrestled with it. It is absolutely vital from the legal point of view—I understand the distinction that has been made and I will mention that again—that this definition should be in accord with the convention; otherwise, we will have trouble maintaining this in the face of challenge. It is difficult to say that the Government’s definition is not in accordance with the convention. It seems clear that it is so. Therefore, all the decisions taken here and in Strasbourg in respect of it are available to help in the formulation of guidance.

If a different definition is taken which does not expressly subscribe to the convention, there is certainly room to try to squash definitions or applications which are in line with this definition as amended by the noble Baroness. It is perfectly open to use the legal definition in the main, in accordance with the convention, and then to help people as best we can to understand what it is all about by giving guidance, which is not authoritative in the same way as judicial decisions. There is quite a lot of scope for trying to do that with guidance which will be in accordance with what the practitioners have asked for. I should say that I am an honorary vice-president of the Carers Trust, but that does not affect what I have to say about it. I can see the need to help people in the actual work they have to do; this is a legal definition, and not all legal definitions are absolutely self-apparent to people who are not lawyers. But the guidance provided for can help in that respect, and there is a serious risk that, if we do not do something of that kind, the result will be litigation which could affect the viability of this clause in the future.

--- Later in debate ---

[Baroness Blackwood of North Oxford]

My Lords, It is vital that those who are deprived of their liberty are provided with the information necessary for them to be able to exercise their rights. Although there is a duty to provide information in Article 5 of the European Convention on Human Rights, noble Lords have rightly flagged that the Bill should be explicit about this duty, and amended the Bill to this effect.

The Government listened to noble Lords and agreed that the Bill should be explicit on this matter. However, the amendment tabled in this place was not clear about when information should be provided; we felt that this drafting could cause some confusion for practitioners, so we tabled alternative amendments. Amendment 24 clarifies that, as soon as practicable after arrangements are proposed, the responsible body must take such steps as are practicable to ensure that the person understands the key steps and safeguards in the authorisation process. This is particularly important to ensure that people are aware of their options to challenge the authorisation. Importantly, there is also a duty to provide the same information to any appropriate person who is providing representation and support to the person. This is important in ensuring that family members and those close to the person are also provided with the necessary information to enable them to effectively provide representation and support to the person.

The duty on the responsible body is to take steps as soon as practicable to provide the person with the information. This means that this should be done as soon as possible after the responsible body is aware that arrangements are proposed. The responsible body will need to identify an appropriate person or appoint an IMCA at the earliest possible stage to provide support and representation for the person; the same principle applies for the duty to provide information. Information should be provided in the early stages of the process so that the person can make an informed decision regarding the support they receive through the process, and is able to exercise their rights. The code will provide details about how this will work in practice. We have already established a working group on the code of practice, which includes stakeholders from across the sector, ensuring that information is provided at the earliest possible point to form a part of these discussions.

Amendment 24 also introduces a general duty to publish information about the authorisation, including: the process; the circumstances in which an IMCA should be appointed; the role of the appropriate person; and the right to challenge an authorisation in court. This ensures that anyone who has an interest in the welfare of the person is subject to liberty protection safeguards authorisation, has access to the important information about a person’s rights, and is able to raise objections on behalf of the person.

Amendment 25 requires that the responsible body remind the cared-for person and any appropriate person of this information after the authorisation is granted. The information that needs to be provided to the person, and to any appropriate persons, includes details of the authorisation process, access to representation and support from an appropriate person or an IMCA, the right to request a review, and circumstances in which an AMCP will consider a case, which includes objections and the right to challenge authorisations in court.

On the matter of challenging authorisations in court, the responsible body under Article 5 of the European Convention on Human Rights has a duty to ensure that relevant cases are referred to the Court of Protection. I know that there has been a particular concern about ensuring that in very rare cases where it is not in the person’s best interests to receive support and representation, those people are enabled to challenge in the Court of Protection if they want to. In these cases, the responsible body will need to ensure that the cases are referred to the court. If it fails in this duty, it can be challenged in court.

I understand that Amendment 25A, tabled by the noble Baroness, Lady Watkins, seeks to require responsible bodies to keep a record of the decision and justification for not immediately giving a copy of the authorisation record, and if an authorisation record is not given within 72 hours, there must be a review into whether the lack of information is appropriate. I understand her desire to ensure that information about an authorisation record is provided promptly. However, we think that the drafting of the amendment would cause some issues; for example, it is not clear who is responsible for the duty to record or carry out a review. I am certainly willing to reflect on how best we can ensure that information is shared promptly, but I hope that I can reassure the noble Baroness that we will generally expect the information to be provided earlier than this, and we will set out reasonable timescales for the responsible body in the statutory code of practice. I hope that, with this reassurance, she will decide not to press her amendment.

The House has made clear its view that the Bill should be explicit about the duty to provide information. The Government have listened: these amendments outline clearly the duty to provide information at the earliest possible stage; to require, as far as possible, that the person understands the information they are being given; and to take action on it if necessary. I hope that noble Lords will accept these changes made by the House of Commons, and on that basis, I beg to move.

[Baroness Browning]

Is my noble friend able to define what the Government describe as “as soon as practicable”, which she said was going into the code of practice? Linked to that, how will it be defined for those people who will need the support of speech and language therapists, of an approved mental capacity professional or of an IMCA? It seems that we will need information to be provided at a very early stage, so that it can be considered and then decided whether there is a need for additional support. Can she give us some indication of how she is going to deal with that in the code of practice?

[Baroness Watkins of Tavistock (CB)]

My Lords, I welcome the Minister to her new role, and look forward very much to working with her. I also acknowledge that the Government have gone a very long way in responding to previous amendments in the name of Lady Hollis and myself with regard to the supply of information to the cared-for person and other relevant bodies.

I turn briefly to my Amendment 25A. While I fully appreciate that it is not always practicable for the responsible body to ensure that a copy of the authorisation record is given to the cared-for person and other bodies immediately after authorisation, as outlined, Commons Amendment 25 is not at all specific about the time limits. I believe this means that busy clinical staff may not always feel it necessary to chase up this issue and make time swiftly to explain issues to the cared-for person or the appropriate person. This needs to be done quickly enough in terms of ongoing deprivation of liberty safeguard orders for appeals or challenges to the authorisation to be made, if individuals so require.

Mental Capacity (Amendment) Bill [HL]

Baroness Browning Excerpts

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

[Baroness Thornton (Lab)]

My Lords, I will speak to Amendment 20, which is in my name on the Marshalled List and has been grouped with the amendment in the name of the noble Baroness, Lady Finlay.

During the briefing we had with the Bill team and the Ministers, my notes tell me that the first clause is a key change to the new regime, and that it is concerned with the portability of deprivation of liberty. I understand that the noble Baroness’s amendment makes sure that Section 4B—on the deprivation of liberty necessary for life-sustaining treatment or vital act—and Schedule AA1 are compatible with the provisions set out in the rest of the Bill and that they do not conflict with a valid decision to refuse care or treatment. The noble Baroness raises some important and substantial issues right at the beginning of the Bill and raises issues of conflicts which will need to be resolved.

Amendment 20 in my name comes from paragraph 15 of proposed new Schedule AA1 in the Law Commission’s draft Bill, quoting it exactly. It prevents the responsible body authorising arrangements for the cared-for person to reside in, or receive care or treatment somewhere, if those arrangements conflict with a valid decision by a donee of a lasting power of attorney or of a deputy appointed by the Court of Protection. As I say, the wording is exactly the same as that in the Law Commission draft Bill.

Under deprivation of liberty, a deputy and attorney may object to any deprivation of liberty and effectively block it, pending an application to the Court of Protection. I can see no obvious reason for excluding this from the Bill. The Government claim that it is already in the main provisions under the original Act—in Section 6(6) —but this is only the case where the basis for the deprivation of liberty is in “best interests”. If the basis for DOL is risk to others, that would not necessarily be the case, and so for the avoidance of doubt it is important to include this clause. If we do not, the risk of litigation on this point is probably quite high.

Deputies and donees should be able to refuse a deprivation of liberty, so this amendment seeks to ensure that the views of those donees and deputies, who have been appointed by the cared-for person to make the decisions in their best interests—as was eloquently outlined by the noble Baroness, Lady Finlay—are given appropriate weight with regard to where the cared-for person resides for care and treatment.

I am pleased to say that this amendment and what the noble Baroness, Lady Finlay, said, enjoys widespread support from the organisations who have found the time, even under the pressure we have all been under, to say that they support this. They include Mencap, VoiceAbility, Mind, the National Autistic Society, Liberty, Age UK, Sense and many others. The amendment looks at the clash or overlap between the different regimes that govern this area of law. I must ask why the Government did not adopt the Law Commission formulation. The Minister should be aware that I will return to that theme throughout Committee, because the Government seem to have cherry picked the Law Commission report, and some of the most important safeguards of liberty seem to have been omitted or watered down by the Bill.

[Baroness Browning (Con)]

My Lords, I refer to my interests in the register. I will pick up on two points that have been raised in the amendments, particularly the amendment in the name of the noble Baroness, Lady Finlay.

At Second Reading, I too raised my concern about the status of attorneys with lasting power of attorney, particularly over wellness and health. These are some of the most personal decisions. In some ways, I am more concerned about that than about attorneys who have power over the money. Money always seems a rather black and white matter—it either is or is not a good idea. But there are many shades of grey over health and, in particular, well-being. I should like to link this with decision-making and the other point in the noble Baroness’s amendment, about the need for qualified speech and language support to interpret and make sure there is a clear understanding of what “P”’s interests really are.

When you look at certain people with certain disabilities, particularly those with communication disorders—such as autism, learning disabilities and, of course, dementia—it is not always the case that they cannot express a view. But getting to that view—unless it is a real, life-threatening medical emergency—takes quite a long time. First, particularly those with autism and a learning disability, the individual has to be comfortable and familiar with the person asking the questions, however experienced. It is no good sending a stranger in for a five-minute cup of tea and a quick chat and thinking that person will then disclose their innermost feelings. How many of us would?

The point is that getting to that view might often be about something known for many years by someone who has been appointed as an attorney with a lasting power of attorney. I believe the two things are linked in those cases. We know from the Alzheimer’s Society that such a lot can be achieved for the quality of life and well-being of people with dementia and Alzheimer’s by giving enough time, when asking a question, to allow the person to process the information before they give an answer. Brain function is very different in these people. They need time to process the question they are being asked and to process how they will communicate the answer; it can take quite a long time.

This point was picked up quickly by the Alzheimer’s Society which says, for example, on a very simple matter, that when people with Alzheimer’s in residential care homes are asked whether they would like tea or coffee and do not immediately reply, they are processing the question and that can take a long time. They might prefer coffee today, but because they had tea yesterday, the answer may be quickly assumed—“I expect you will have tea, you always have tea”—before they can even process the information and the way they will communicate the answer.

How much more complex it is, and how much more time is needed when people are being asked more complicated questions about potentially life-changing decisions. This cannot be left only to someone with speech and language experience, important as that is, and such people need to be experienced. But people with a lasting power of attorney, who might have held an LPA for many years, and who know the individual extremely well, are in a prime position to act as an interpreter when important decisions are being made.

I believe my noble friend is aware of my view on this already. Those of us who served on the original Bill and its pre-legislative scrutiny many years ago know that a lot of thought went into the existing Bill on LPAs. To have one part of a Bill give rights to an individual through their attorney but then to diminish that in another part of the Bill, through amendment, seems not only wrong but seriously, morally wrong. I hope my noble friend will address this point when he replies to this amendment.

[Baroness Murphy (CB)]

My Lords, I have added my name to Amendment 20, tabled by the noble Baroness, Lady Thornton, and I give my strong support to the amendment in the name of the noble Baroness, Lady Finlay. I pay tribute to the good sense that the noble Baroness, Lady Browning, has just brought to our debate.

A theme that will run through our discussions and will come up again when we come to advance decision-making is that we must have more respect for those who have been trusted by an individual to make decisions on their behalf. We must encourage people to make plans and to think about the future, and we must ensure that those who make the very wise decision to appoint a lasting power of attorney are respected. As we have already heard, we do so in other parts of the Bill, and we should not remove that when we come to the question of deprivation of liberty. We must incorporate it in the general scheme of things. It seems absolutely crucial that we respect decisions made by people who have power of attorney and by the court’s appointed deputies. I strongly support the amendment.

Mental Capacity (Amendment) Bill [HL]

Baroness Browning Excerpts

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

[Baroness Browning (Con)]

My Lords, it is a great pleasure to be present during this important debate to hear the maiden speech of my noble friend Lady Barran. We all wish her well in her contributions to your Lordships’ House. I refer to my interests in the register and to the fact that I am a carer and a deputy holding LPAs for vulnerable relatives.

I fully understand why my noble friend the Minister has a certain sense of urgency in bringing this legislation forward. As we have heard, there is clearly a problem that is hitting individuals and our health and care institutions, because of the backlog that is accruing. Clearly, there is a sense of urgency to try to resolve this. However, I begin by saying to my noble friend: it has to be resolved correctly this time. I say “this time” having served on the pre-legislative scrutiny committee for the Mental Capacity Bill, having worked on the Bill when it went through the Commons, having served on the post-legislative committee in your Lordships’ House, and having worked on all existing mental health legislation that we are currently reviewing.

There was a recurring theme on all those committees—there are people around the House who were with me on those committees and who know that we seem to have been doing this for ever. We were only too well aware of the Bournewood gap, which my noble friend mentioned when completing his remarks, and we still have not plugged that gap. It is essential that we plug it this time. Recommendation 21 from the post-legislative scrutiny committee of this House considered that we had inadvertently created a new Bournewood gap and that that should be closed. I have to say to my noble friend that I do not think that the Bill as drafted closes that gap. It is a good attempt, but I would like to have seen some pre-legislative scrutiny on this rather small but important Bill.

Let me share this with the House. At the weekend, I received correspondence from the professional carers of HL in the Bournewood case, which I was involved in many years ago. In respect of the Bill before us, they say it is bizarre that the Court of Protection gives authority to deputies to exercise control over P’s accommodation and care provision. As this Bill stands, it prevents them having any real power in the process. Mr E goes on to state that their acid test is this: if HL v Bournewood happened today, would he be any better protected? As a House dealing with the Bill before it goes to another place, we have to make absolutely sure that we get it right this time.

Concerns have been expressed across the House on behalf of interested parties and the charitable third sector, particularly by my friend the noble Lord, Lord Touhig—he and I both serve as vice-presidents of the National Autistic Society. This brings forward another issue. A lot of noble Lords have spoken today about vulnerable people. That is who we are trying to address in this legislation to get it right. However, vulnerable people are on a spectrum and they all have different needs—they are all vulnerable but how one approaches them and resolves decision-making challenges for them is very different. For example, dealing with somebody very old who has been very disabled by a stroke and is in permanent residential or nursing care is very different from dealing with a 20-something year-old who needs residential care and is on the autistic spectrum. In the work that I have been involved in with younger autistic adults, it is often said that if you get the right person asking the right questions in the right way, those adults understand what the problem is and what the choices are. They have capacity but they have difficulty in knowing how to come to a decision for themselves about the right way forward. There is a world of difference between a professional going through that process and exercise with somebody and dealing with somebody who, as I just explained, might be very elderly or has had a stroke.

Then there is the question of communication. Across this whole spectrum of people are people with communication disorders. How they communicate, whether they need speech and language therapists to assist them or whether they are non-verbal but can still communicate, needs to be taken into account. For that process to take place and for that assessment and decision to be made, it is absolutely essential that time is given.

I know that many Members of both Houses—I am not sure how many—have taken part in training courses run by the Alzheimer’s Society in how to communicate with somebody who has advanced Alzheimer’s. To be frank, it is not all that different from how you communicate with people who are learning disabled or on the autism spectrum. When asking a question or putting information to them, you wait for them to process that information and give them plenty of time before they then express, in whatever way is appropriate for them, an answer to that question or indicate what their preference would be. That is not a cheap option. That type of assessment is not cheap or fast.

Although I understand the urgency to bring down this backlog and treat people individually, we must understand how some of these processes require very skilled people to carry out the assessment. They should be well-trained, experienced people, ideally who know the individual, although that is not always possible. These are the challenges in getting this legislation right.

I totally concur with many issues raised today. Best interests are very important and I am concerned that that phrase is not in this legislation. As someone who holds a lasting power of attorney for health and social care, I am only too well aware that my duties in law as a private individual—not as a professional—are that I should always assess and put that person’s best interests first. If I am doing the job properly, I should notate how I went about the process. Yet we are saying in this legislation that somebody who has that legal duty in respect of another individual does not have to take that into account. They will not be consulted and will not be at the heart of the decision-making as far as P is concerned when assessments and decisions are made. There seems to be a contradiction between two different legal requirements on people in the same Act. I hope my noble friend will address that because I am now very nervous, as somebody who holds this responsibility of lasting power of attorney for another that, somehow, putting their best interests first, which I am legally required to do, will not be taken into account when another area of law is challenging the validity of that responsibility. Again, we must get this right. We cannot leave this as a gap in the process, because it is very important.

Then there are the assessments themselves and the question of training and the quality of that training for the people who carry them out. We should make sure that, even if we save money publicly on reducing the backlog and the numbers, there will be an investment in training for people who currently do not have that training. Certainly, the post-legislative scrutiny committee understood only too well from the evidence that we took a few years ago that there is a paucity of people who really understand the legislation in terms of what they are meant to do as professionals. It was very patchy then and, from what we have seen, it does not appear to be any better now. Nothing has improved all that much.

I want to raise briefly the people who have registered advance decision-making rights to refuse treatment. I am grateful to Cardiff University for its briefing, which sets out the position and explains how this issue is affected by the legislation before us. It states that the Mental Capacity Act enabled people to make ADRTs to refuse in advance specified medical treatments at a time when they may lack capacity to give or refuse consent. The Act created for the first time a mechanism for a person to specify who they would like to make those decisions, which brings us back to lasting powers of attorney. Both provisions were meant to enhance respect for personal autonomy, so it is important that, whatever is in the Bill when it leaves this House, nothing in it should reduce in any way that respect for personal autonomy. Under DoLS there was a “no refusals” test, which meant that an authorisation could not be issued if the purpose of the deprivation of liberty was to provide treatment where the person had made an ADRT refusing it, or which an appropriately empowered attorney refused to consent to on their behalf. This meant that DoLS could not be used to trump the past expression of a person’s wishes and feelings about what would happen when they had had capacity. I hope my noble friend will look again and bring some clarity to this issue. The legislation we are discussing today really is not clear on how those advance decisions will be treated, not only in terms of their relevance but whether they will be recognised as they should be now.

I finish with a quote from evidence we took in our committee on a case that was prevalent at the time and remains a test case—that of Steven Neary. His father sent a letter to the committee. It is worth bearing in mind that we are not dealing just with numbers, money and legislation, but with real people living real lives and for whom there are lasting consequences. Steven’s father, Mark Neary, really fought the fight on his son’s behalf. After he had succeeded, he wrote to say, “Two years on, I still have to deal on a daily basis with the trauma Steven experienced as a result of the DoLS legislation being turned upside down by Hillingdon. It is painful to watch. Two years on, I still have to deal with my own feelings of anger, sadness and guilt that I was not able to protect Steven from the nightmare. Living with his and my feelings—I wouldn’t wish that on my worst enemy. That is why there is still so much to do in making sure that the Mental Capacity Act and DoLS truly protect the vulnerable people that the Act was designed for”. We must get it right this time.