Drugs: Methadone

Baroness Finlay of Llandaff Excerpts

Monday 28th October 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

No, the Government are suggesting that a PHE review in 2017 found that drug and alcohol treatment services are currently as good as or better than international comparators. They are cost-effective and the outcomes are good. However, we recognise that the number of deaths at the moment is too high, which is why the Home Office has commissioned a review of drugs policy by Dame Carol Black, and there will be a summit in Glasgow before the end of the year to find out what more can be done to improve these services.

[Baroness Finlay of Llandaff (CB)]

My Lords, do the Government recognise that methadone, apart from being an opioid substitute, is therapeutically a useful drug because it hits a different set of receptors from many other opioids? Each individual opioid is unique in its pharmacological profile and action, so there are real dangers in labelling methadone as only an opioid substitute. Patients who need it for symptom control can worry that they are stigmatised by being prescribed methadone, and there can be difficulties in supply therapeutically. In addition, any review of addiction and addiction services cannot look only at substituting one drug for another but must also look at the fundamental underlying drivers to the addiction that has occurred. It must give support in the long term, because these people remain at risk of returning to their addictive habits.

[Baroness Blackwood of North Oxford]

The noble Baroness in her question has outlined her expertise in this. She is quite right that the evidence base for the effectiveness of methadone is robust. It is provided for by NICE guidance and UK drug misuse and dependence treatment guidelines. Those have recently been updated in the Orange Book, which provides clinical guidance to clinicians and was published in 2017. There is also an update coming to NICE guidelines on how to manage drug dependency, which will be published in 2021. Therefore, up-to-date guidance is available for clinicians which ensures that they are able to provide both therapeutic and dependency management to those on prescription but also on withdrawal treatment. I therefore reassure the House that this is being taken extremely seriously by the Department of Health and Social Care, and by all related departments.

Sexually Transmitted Infections: England

Baroness Finlay of Llandaff Excerpts

Thursday 5th September 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

The noble Lord is of course an expert in where we should target our research. The NIHR is a £1 billion fund which is not targeted specifically. However, it is right that we should target research into STIs to ensure our response to the challenges. We know that STIs are increasing so we should include research into them.

[Baroness Finlay of Llandaff (CB)]

My Lords, how much is the Department of Health and Social Care doing with the Department for Education to ensure that in schools young people are aware of the emergence of antimicrobial resistance among STIs and to make the use of condoms more fashionable? Many young people feel that they are not the things to use, when they are actually the best form of protection.

[Baroness Blackwood of North Oxford]

The Government have made it clear that we want all young people to be happy, healthy and safe, especially when it comes to relationships. That is why we are making relationship and sex education compulsory for all secondary-age pupils from September 2020. That is intended to equip young people with the skills to maintain their sexual health and overall well-being. The noble Baroness is absolutely right that that will be effective only if it is cool and works well in terms of communication with young people.

NHS Pensions: Taxation

Baroness Finlay of Llandaff Excerpts

Tuesday 9th July 2019 Lords Chamber

Asked by

[Baroness Finlay of Llandaff]

To ask Her Majesty’s Government what action they are taking to tackle the 50% increase in waiting times for NHS patients due to the changes in rules on pension contributions for consultants which affect the number of clinical hours they are able to work.

[Baroness Finlay of Llandaff (CB)]

My Lords, I beg leave to ask a Question of which I have given private notice.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)]

My Lords, we will be consulting shortly on proposals to make NHS pensions more flexible for senior clinicians in response to evidence that shows that pension tax charges as a result of the tapered annual allowance are having a direct impact on retention and front-line service delivery. These proposals aim to maximise the contribution of our highly skilled workforce, who are crucial to delivering the NHS long- term plan.

[Baroness Finlay of Llandaff]

My Lords, I declare my interest as a past president of the BMA. Can the Government state exactly when the consultation will begin, how long it will run for, how it will be organised and when it will report? Do they recognise that, of 4,000 consultants recently surveyed, 60% said that they would retire at or before 60 years of age, and over half of those cite the sudden unexpected tax bills as a reason? This is particularly urgent because in August we have new graduates starting, who need additional supervision as they begin to get used to working in the clinical arena, yet we are already seeing consultants dropping sessions, which will adversely impact on clinical services. Doctors seem to have only two options now: to retire or to leave the NHS pension scheme, and until they can do that, they are financially penalised for working. One paediatric intensivist I was talking to said that he is £300-plus out of pocket by working a weekend.

[Baroness Blackwood of North Oxford]

I thank the noble Baroness for her important Question, which she has asked before. Retaining and maximising the contribution of our highly skilled clinical workforce is crucial to the delivery of patient care. We are preparing to provide pension flexibility that appropriately balances the benefit of new flexibilities with their affordability. We have listened, and we are discussing the issue with the Treasury. As a first proposal, the consultation will set out a potential 50:50 option, offering 50% pension accrual and halved contributions. The BMA requested this as an option earlier this year and has welcomed it as a step in the right direction. The consultation will be an opportunity to listen to a range of views and will be genuinely flexible and open; we will bring it forward as a matter of urgency. I hope that that is a reassuring answer for the noble Baroness.

NHS Long-term Plan

Baroness Finlay of Llandaff Excerpts

Monday 1st July 2019 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I declare my interest as a past president of the BMA. It will take some years for the new workforce plan to come through. Given that the current NHS medical workforce crisis involves consultant and GP staff having to drop clinical sessions to avoid huge tax bills, what consideration is being given to abandoning the concept of annual allowance in relation to defined benefit pension schemes, and allowing tax relief to be limited by the lifetime allowance? The current situation means that people are dropping sessions. Combined with the GMC regulations around retirement and revalidation, this is forcing clinicians into permanent retirement, rather than coming back to work additional sessions, which would relieve the pressure on waiting lists in clinics, would help with teaching and supervision, and would offer experienced surgical hands in operating theatres to assist in complex operations.

[Baroness Blackwood of North Oxford]

The noble Baroness, as ever, asks a very perspicacious question. She will know that as part of the GP contract negotiations, pensions and other issues were raised, and are still under discussion. Similarly, issues around secondary care doctors are in discussions with the Treasury. These discussions are quite technical but the issues are under consideration. I am unable to give her a complete answer now, only to tell her that we are very alive to the issue and trying to find a way through.

People with Disabilities: Reporting Abuse

Baroness Finlay of Llandaff Excerpts

Monday 17th June 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

Absolutely. The right reverend Prelate makes a very sensible, common-sense point: this is exactly why work is going on between the NHS and the ombudsman to ensure that, within the NHS, there is a sensible and consistent complaints process that is accessible to all who try to make a complaint within the system, no matter their circumstances.

[Baroness Finlay of Llandaff (CB)]

My Lords, I declare my interest as chair of the National Mental Capacity Forum. Do the Government recognise that many people are frightened of reporting any form of abuse, because of recriminations? Even when they do, they are asked for evidence of the abuse and it may be very difficult for them to provide any kind of objective evidence. Therefore, within the whole care sector we need a change in culture: we need staff to learn ways of dealing with some of the most challenging behaviours that they may face, recognising those and differentiating them from other forms of aggression, which may be drug- or alcohol-fuelled, or whatever. That requires investment, so that the CQC and other organisations, in inspecting, will look at the quality of education provided to staff at every level. It is often the lowest-paid staff who need the most education and they cannot access it.

[Baroness Blackwood of North Oxford]

As ever, the noble Baroness speaks with experience and wisdom. Speaking up and raising concerns where there has been abuse or where something has gone wrong should be straightforward and met with openness and a desire to get to the bottom of the problem. She is absolutely right that there is often a cultural barrier—a fear of aggression or recrimination. A patient or carer making a complaint should feel that they will be listened to and believed, but a staff member raising a concern should also feel that there are safe avenues for them to do so. That is why we have put in place the national guardian and the “freedom to speak up” guardian. When it comes to carers and patients, that is also why we are working with the ombudsman to ensure that there are clear routes of complaint across the whole NHS so that it is straightforward for people to make complaints and they feel that these avenues are protected for them.

NHS: Shortage of GPs and Nurses

Baroness Finlay of Llandaff Excerpts

Wednesday 8th May 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

The noble Baroness is right that driving out variation within the NHS is one of the key commitments of the long-term plan: it can be seen as a priority throughout every commitment within it. One of the ways in which we intend to do this is through the new undergraduate medical school places; the expansion in medical schools has been targeted specifically to address that. Those medical schools will be placed in key areas—Sunderland, Lancashire, Chelmsford, Lincoln and Canterbury—to ensure that we recruit doctors from right across the nation. That is something that I think she will welcome.

[Baroness Finlay of Llandaff (CB)]

My Lords, I declare an interest as the author of Medical Generalism, a report for the Royal College of General Practitioners some years ago. Do the Government recognise that while their moves to increase supply are admirable and welcomed by everyone, the problem is retaining staff? We have an increasing number of medical and nursing staff who, for reasons to do with taxation, their pensions and their revalidation processes, find that it is just not worth their while to carry on with the onward, uphill struggle to carry on providing services. I recently met some who have dropped off the medical register simply because the revalidation processes were just too cumbersome for them. These are good clinicians, whose skills are now being lost. Their skills are also being lost from the pool of people to teach the next generation of doctors coming through the system. These pressures are now having a knock-on effect in emergency departments, where waiting lists are going up inexorably, and we know that that is being reflected in the four-hour waiting targets. Talking to staff in emergency departments, they are routinely seeing situations that used to be unusually busy.

[Baroness Blackwood of North Oxford]

I thank the noble Baroness, who is very expert in this area. She is absolutely right that there is no point in our bringing new trainees into the system if we do not retain the expertise and the teaching quality within the system. We can be very proud of the quality we have within the system, which is why we have put in a number of programmes to address this. We have put in a targeted, enhanced recruitment stream to attract doctors into parts of the country where there have been consistent shortages. We have put a broad offer of support for GPs to remain within the NHS, including GP Career Plus, the GP Retention Scheme, the Local GP Retention Fund and the national GP Induction and Refresher Scheme. We have also put in place a number of schemes for nurses, including a scheme that will attract nurses into specific, targeted areas, such as mental health, learning disabilities and district nursing, where we believe we should make the career more attractive. We recognise that there is more to do, and in areas such as pensions, which the noble Baroness rightly raised, we are taking that issue up with the BMA and the Treasury.

Mental Capacity (Amendment) Bill [HL]

Baroness Finlay of Llandaff Excerpts

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

[Baroness Murphy (CB)]

My Lords, I do not really share the enthusiasm or optimism of the noble Baroness, Lady Tyler, although I often shared her views on what needed to be done at earlier stages. We are all rather tired of this Bill and I see nothing to be gained from hindering its passage, but I cannot let it pass without expressing my profound misgivings. We—the Members of this House—have failed to do what we were supposed to do. Our task was to make the deprivation of liberty safeguards—now the “liberty protection safeguards”—more practical, more focused on those at risk, more cost-effective and safer, and we have allowed the Bill to disintegrate into a sprawling, all-encompassing bit of a nightmare. The procedures may be simpler—we have cut out one layer of bureaucracy—but we have allowed these provisions to be extended even further than Cheshire West, even pursuing people in their own homes in a way which I do not think many families will appreciate.

The one thing everyone, including the JCHR, was hoping we would do was to introduce a realistic definition of a deprivation of liberty. In the end, we in this House just copped out. We could not agree; we got into a mess; the lawyers could not agree either; so we have just said, “No, let us put it all in a code of practice”. As many noble Lords will know, I wrote some of the early codes of practice for the Mental Health Acts, and I know that codes of practice suffer from mission creep—they get more and more stuff in which is quite difficult for people outside in practice who will implement it, and do not get updated very regularly because it is difficult to do so. Indeed, if there is no clause in statute, which most codes are fixed around—and there will not be, of course, as is intended—it will have to be arranged around Article 5. That will leave a situation in which the lawyers will have a field day, and in which we will still be waiting for case law to give us some guidance.

Meanwhile, the numbers are going up. My latest count was 140,000—I think the official number a couple of months ago was 125,000. There will be a lot more soon. About a third—it may be even more than that—will be waiting for over a year, and 75% of them are elderly people with dementia, who will probably die before they get their rights looked at. Will it make any difference to them? Generally, it will not make one whit of difference. If we had done our job properly, the numbers would have gone down, and there is a chance that those at greatest risk—for example, people with severe dementia who are kept in locked units, who never see the light of day, and people with severe disabilities in residential care—would have been seen sooner and would have had their care plans addressed in respect of their freedoms.

Meanwhile, these last three years have seen an industry grow up around the implementation of DoLS. It is now called DoLS by everybody out there—I am not sure that most people know what that means. A costly public service has developed which has a life of its own, and which, as we have seen, takes money directly out of care budgets. When Staffordshire quite sensibly tried to call a halt and said, “Hang on a minute, let’s go for the worst cases: those most at risk, those with the most profound disabilities or where there is a disagreement”, somebody complained, and they were told in no uncertain terms by the Local Government Ombudsman to get on with it and to get back to doing everybody. So the waiting list grew yet again. Of course, many other county councils and metropolitan councils were making similar decisions, but they have all had to go back to compiling the waiting list, which grows and grows.

The other people who will love the Bill are the lawyers. Just imagine how you will be able to debate the nuances of Article 5 meanings when the code of practice fails to live up to expectations.

This Bill should be a lesson to us all. It is legislation which arose from a Supreme Court judgment—an impeccable theoretical case, made without any thought to the practicalities that would affect 2 million people. The Law Commission was as tied up in knots as everyone else and could not see a way through. My goodness, it worked long and hard on it in an admirable way, but it could not get beyond the problems of having to satisfy Cheshire West and the Supreme Court’s judgment. This House’s inability to grasp the Bill will not provide any more than a hit-and-run assessment of one patient’s disabilities and whether they are deprived of their liberty. It will not provide any more care for people, and it will be a bit of a disaster.

I have been as guilty as everyone here because I was not here for Report, when perhaps I should have been here to say this more clearly—I am sure that my colleagues quite often feel cross with me when I am not here, and I apologise for that. However, I am not blaming the Ministers either, who have, unfortunately, changed during the passage of the Bill, which has taken a lot longer than it should have done. They have struggled as best they can with a complex, technical Bill; nor am I blaming the team at the Department of Health, because Sharon Egan and her team have been squashed between the lawyers, the DoLS industry, the obvious need to make things viable and less depleting of care budgets, and the impossibility of satisfying everyone.

The only flexibility left—because we will pass the Bill—is that before the Bill is commenced, the Government should pause and do a few more sums; otherwise, we shall be back here in another three years, looking at how we can make this legislation more viable. Many more millions of hours of care staff time will have been wasted in failing to improve the care of mentally incapacitated people. Their rights need protecting, but this Bill will not do it.

[Baroness Finlay of Llandaff (CB)]

My Lords, I have taken a slightly different view. I declare my interest as chair of the National Mental Capacity Forum, and I am grateful to my leadership group in that forum for their comments, constant advice and constructive criticism. I am also most grateful to the Bill team, the noble Lord, Lord O’Shaughnessy, and the Minister for having listened. We have certainly given the Bill what we could term a bumpy ride. I think that needed to happen and do not apologise for it at all. From what I understand, the way the code of practice is now being developed will result in a far better situation.

Access to Medicinal Cannabis

Baroness Finlay of Llandaff Excerpts

Tuesday 9th April 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

The noble Lord is right that it is important that guidance is provided. The point of bringing the guidance forward is to look at the most up-to-date evidence available across the country. The challenge with medicinal cannabis is that the evidence base is developing. Currently, more than 100 clinical trials are ongoing worldwide. We are bringing the NICE guidance forward in the autumn to take all that clinical evidence into account in the most up-to-date guidance, so that patients can benefit and clinicians can have more confidence in prescribing. The NIHR call for clinical trials has been brought forward so that the evidence base can be strengthened even further as we go forward because, in the long term, the only way for us to move from an unlicensed prescribing route, which is where we are now, to a licensed route is through clinical trials and a greater evidence base. That is what the Government are keen to encourage.

[Baroness Finlay of Llandaff (CB)]

Do the Government recognise that, whenever patients take part in a clinical trial, there will also be some patients who access the medication outside that trial? Are the Government establishing a confidential database to monitor the outcomes of every child who is prescribed a cannabinoid to look at its efficacy and any harms reported, so that we can get a cross-population database of the effects that could then feed into the evidence-accruing processes? It may be that a royal college such as the Royal College of Paediatrics and Child Health would be able to assist the Government by providing a confidential haven for such clinical data to be collected.

Safety of Medicines and Medical Devices

Baroness Finlay of Llandaff Excerpts

Thursday 28th February 2019 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, like others I congratulate the noble Lord, Lord O’Shaughnessy, on securing this debate, and welcome the illuminating contribution from my noble friend Lord Carrington in his maiden speech.

I will focus in this debate on the role of the National Institute for Health and Care Excellence, which is building on its 20 years of experience, and will look forward to what needs to be done. I declare that I am vice-chair of a guideline review group on ME and chronic fatigue syndrome, a review that was precipitated by patient voices and has good patient representation on it. I should also declare that my husband has done a great deal of work on patient and family-reported outcome measures, which may be relevant here.

NICE guidance covers, as we all know, the safety and efficacy of interventional procedures and the managing of specific conditions and medicines in different settings. Its technology appraisals of new pharmaceutical and biopharmaceutical products, procedures, devices and diagnostic agents are recognised around the world. Any device under consideration must have a valid and current certification, which comes from the EU at the moment, and be registered with the Medicines and Healthcare products Regulatory Agency. But the EU certification process itself seems at times to be flawed.

NICE has now gone into formal partnership with the MHRA to try to share intelligence and understanding, and to monitor key issues. However, adverse event reporting is a major problem for them in this work because it relies on clinicians notifying such events, as through the yellow card scheme. As with any voluntary reporting system, reporting is incomplete—sometimes woefully so. There is an inherent bias to report the positive benefits of interventions in research papers and underreport adverse effects. There were 62,000 adverse incidents reported over the last three years, a third of which had serious repercussions. However, this is only a small number compared with those that have happened across Europe.

In recognition of this, NICE rigorously reviews its current guidelines and seeks the sources of adverse events. Unfortunately, safety outcomes are poorly addressed in randomised trials; large numbers of treated patients are needed to reliably detect uncommon yet serious events from sources such as large case series, surveys, registers and individual case reports. Sometimes unpublished evidence is the sole source of such information. There are databases, including the US Food and Drug Administration’s manufacturer and user facility device experience database, called MAUDE. Importantly, this is available to the public and is used by sources in this country.

It is essential that safety information and evidence of harm are collected and rapidly disseminated. NICE’s medicine awareness service, with its network of prescribing associates and monthly digest of important new evidence in medicine, aims to reach out widely. But it must be strengthened, and it must have a database to draw on.

Changes to NHS structures in recent years have made dissemination more difficult because responsibility for the implementation of such guidance does not fall to any single body—hence NICE’s agreement with the four nations, a document on safely introducing new procedures. But we need to do much more to strengthen this. All NHS providers should ensure their governance structures require reporting of outcomes, including adverse events, as well as dissemination of information. Clinicians undertaking any interventional procedure, and the suppliers of devices and equipment, should be routinely asked whether any complications have arisen in the short or longer term rather than just leaving it up to them to decide whether such complications are serious enough to report. Patients must be asked too.

All this data can be entered on a mandatory relevant national register, maintained to a sufficiently high standard to deliver evidence to clinicians for decision-making and for informed funding decisions. The quality of registers at the moment seems to be disappointingly variable. Without efficacy and safety information, problems will continue to go undetected and unpublicised.

I turn briefly to another aspect of the control of medical equipment, which is the problem of purchasing. The review by the noble Lord, Lord Carter, highlighted the wastage of duplication and variable pricing—but price is not the only determinant. I will relate a simple problem that concerns syringes. The bulk buying of cheaper syringes seemed to be a good idea. However, they had to be discarded because the plunger was loose-fitting, which meant that, on injection, the contents of the syringe were bypassed and we did not know how much of the drug had been injected into the patient. Contracting had to revert rapidly to a previous, reliable supplier.

Many pieces of tubing, wiring, cannulae et cetera are used every day in clinical practice. They must be of the highest standard and must not break or fracture inside a patient, because major surgery might be required to remove them. I suggest that the light-touch regulation that we have had in the EU should be replaced by a tighter, more rigorous system, so that things are manufactured to a higher standard and we know where the components have come from.

In the last moments of my speech, I remind the House of a speech by Baroness Jowell, to which the noble Lord, Lord O’Shaughnessy, also referred in his opening remarks. She was inspiring on 25 January last year when she called for adaptive clinical trials and the right of patients to try novel therapies. The parents of Charlie Gard, who had type 2 mitochondrial DNA depletion syndrome, wanted him to try nucleoside therapy, which had been tested on type 1 but not type 2 of the condition. The drug would have been taken orally and dissolved in milk—with the only known side-effect being diarrhoea—at an estimated cost of around £5,000. Charlie died before his first birthday, having been denied the possibility of trying this, and his parents, with whom I have had several conversations, live in their bereavement with the haunting thought, “If only we could have tried it”.

In her speech calling for a new approach to novel therapies, Baroness Jowell said:

“It is about the power of kindness, support for carers, better-informed judgments by patients and doctors, and sharing access across more and better data to develop better treatments”.—[Official Report, 25/1/18; col. 1169.]


Sometimes we must allow people to take risks for the benefits of others, because data is critical. Safety sometimes means that we have to allow carefully assessed risks rather than resort to inactivity, so that we can develop new evaluation processes.

Mental Capacity (Amendment) Bill [HL]

Baroness Finlay of Llandaff Excerpts

Tuesday 26th February 2019 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, I take this opportunity to welcome the Minister to her new role. I am very much looking forward to working with her, and thank her for meeting me yesterday.

I was pleased that the Government listened to the concerns that many of us raised when this Bill was on Report, and that they agreed to introduce a statutory definition in the Bill. They subsequently brought forward a new clause in the other place, introducing what some have termed an exclusionary definition of deprivation of liberty.

I believe that there are serious problems with the government definition. My overriding concern is that as it currently stands, the government amendment defines only when a person is not being deprived of their liberty. A definition based on someone not having their liberty restricted does not, in my view, allow for a clear assessment of whether a cared-for person is currently being deprived of their liberty. The whole of the definition is couched in the negative, and splattered with double negatives, which I consider very difficult to understand.

I also have concerns over Clause 1(4) in the government definition, which I believe is unnecessary. When it is in someone’s best interest to receive emergency or routine medical care, there is already a clear consent procedure—even when that patient lacks capacity. As currently worded, it is discriminatory between physical and mental illnesses. I have taken much advice, and I am grateful to people in the sector—charities, lawyers, human rights groups, academics and others—who have offered invaluable expertise in this very complicated issue. I note that some leading academics have described the Government definition as too complicated, unclear and out of step with Article 5 of the ECHR, and therefore likely to lead to costly litigation. I accept that my last two points run contrary to what the Minister has said, but this demonstrates what a highly complex, contested and difficult-to-interpret area this is. Nothing is that clear-cut.

What is needed is a definition which is simple, easy to understand and provides practitioners, and above all, families and cared-for people, with a clear understanding of where they stand. The purpose of any definition is to provide absolute clarity to practitioners. Perhaps more importantly, it should tell cared-for people and their families when they are deprived of their liberties and thus have certain rights which they can call upon. It is, frankly, of little use if people cannot use it to make such a determination, and my conclusion at the moment is that the definition does not serve that purpose.

We need a definition which, as well as being simple and easy to understand, allows guidance and information to be developed for families and practitioners that will allow them to make a real-world determination of whether the care arrangements they are putting in place when their loved ones lack capacity amount to a deprivation of liberty.

The definition that best captured the recommendations from the Cheshire West case of the noble and learned Baroness, Lady Hale is that the person concerned is under continuous supervision and control and is not free to leave. I believe that the wording in Amendment 1B meets these vital tests. My definition of what constitutes a deprivation on liberty is based on the principles outlined in the noble and learned Baroness’s judgment in the Cheshire West case. I believe that it would allow practitioners and family members to clearly test their individual circumstances against that definition.

This is complex and I think many of us have found it difficult to get our head round it, but it is so important that the definition is compliant with Article 5 of the ECHR. The definition that I have put forward meets that test. It may not be perfect but it provides a basis for moving forwards. I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, I commend the noble Baroness, Lady Tyler, for the amount of work that she has put into her amendment, along with others of us who have worked on it. I do not want to take a lot of time repeating what she has already said in explaining it. However, I would like to pick up on some criticisms made by the Minister and question them.

The Minister spoke critically about the concept of “valid consent” yet, as far as I have understood, consent must always have three pillars to it: the person must have capacity to make that decision; they must have accurate information on which to make a decision; and it must be made voluntarily and free of coercion. With those three pillars in place for all types of consent, I was slightly confused by the Minister’s suggestion that this could somehow apply if people did not have capacity to provide consent. The other area where I was confused when she spoke relates to the Government’s own amendment, where we have a double negative. Amendment 1 says:

“A person is not deprived of liberty in a particular place if … the person is not subject to continuous supervision”.


However, the amendment tabled by the noble Baroness, Lady Tyler, has turned the two negatives into a positive as while a person would be “subject to continuous supervision”, she has added the very important words “and control”.

A lot of people who are supervised one way or another are free to do what they want, but there is a safety barrier around them. They are not being controlled in the way that they behave; it is simply that to protect them from dangers to which they may be subject, there is a degree of supervision. That is called good care of another citizen, and we all do it all the time in relation to each other if we see someone about to get into a situation which is dangerous, whether or not they have mental capacity. The difference in this situation is that if somebody is deprived of their liberty, something is being taken away from them and controlled by another person. The amendment from the noble Baroness, Lady Tyler, has captured that difference between a duty-of-care supervision and that control.

I know that there are difficulties in defining a negligible period of time but I note the concept, in the Government’s own amendment, of whether somebody is free to leave a place permanently. How long would we determine “permanently” to be? Is it days, weeks, months or years when, again, it is a concept but is not defined specifically? With those questions, I am concerned that the Government’s criticism of the noble Baroness’s amendment does not stack up equally with the criticisms that have come from many quarters over the Government’s amendment, which is indeed quite difficult to understand, particularly because of the double negatives in it.

I draw the House’s attention to the fact that, if I am correct, the Law Commission’s original report did not include a recommendation of a definition. Perhaps what we see here is that it is incredibly difficult to come up with a definition that applies across the enormous range of circumstances that people who lack capacity may find themselves in. I am concerned that the Government’s amendment is intended, in the words of the Minister, to be able to respond to evolving case law. I suggest that that is a recognition that there will be legal challenges to the Government’s own definition, just as much as to any other, and I am unsure how that will be avoided by anything in the Bill. I will therefore strongly support the amendment in the name of the noble Baroness, Lady Tyler.

--- Later in debate ---

[Baroness Meacher (CB)]

I shall speak very briefly. I welcome very much Amendments 13 and 22 in particular in relation to independent hospitals. In Committee, a number of us raised that issue and were very concerned that independent hospitals, which are often hundreds of miles away from a person’s home, could act as the responsible body and make crucial decisions where perhaps they have a commercial interest in keeping that person on their premises.

With the permission of the current Minister, I will applaud the noble Lord, Lord O’Shaughnessy, because I feel I know that he played a key role in making sure that these amendments found their way into the Bill. The stipulation that the local authority shall be the responsible body is important. Although I understand what the noble Baroness, Lady Thornton, is saying, it seems to be a huge step forward to take the responsible body away from the independent hospital. I would like to feel that local authorities—the professionals dealing with the assessment of such cases—would have a real interest in making sure that those people returned home, if at all possible, as soon as possible. That is what all this should be about.

The other matter I will raise briefly is that of people in domestic settings, where deprivation of liberty is at stake. At our recent meeting with the Bill team we were assured that such cases would be dealt with under this new piece of legislation in the course of the normal care planning process, rather than requiring a reference to the Court of Protection. When an elderly person is caring for a demented husband or wife, the last thing they need is some bureaucratic requirement. This seemed very important, and I was delighted when the Bill team gave us an assurance that this, too, was being dealt with.

There is nothing in the Commons amendments on this, but I wonder whether the Minister could give the House an assurance that it will indeed be the case that people in domestic settings will be dealt with within the local authority planning process, and will not require a reference to the Court of Protection.

[Baroness Finlay of Llandaff]

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

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

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

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

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

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

[Baroness Barker (LD)]

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

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