Care Quality Commission Review: Deaths in the NHS

Debate between Baroness Finlay of Llandaff and Baroness Chisholm of Owlpen

Tuesday 13th December 2016 Lords Chamber

[Baroness Chisholm of Owlpen]

I thank my noble friend for that question. Yes, national data are important, but we also have to remember that data can vary terrifically from region to region. Of course, collecting data is absolutely vital, and there will be national data, but we also need to ensure that the data are suitable for the particular area from where they have been collected.

[Baroness Finlay of Llandaff (CB)]

My Lords, given the lamentably low involvement in investigations of families and others who loved the person who died, how will their experience be audited and monitored in future? As the Minister rightly said—I declare an interest as chairman of the National Mental Capacity Forum—such families often describe not being listened to during the period of illness prior to death, and then not being listened to around the time of death. Without auditing their experience of their involvement in investigations, there is a danger of it being tokenistic and that nothing will really change in the longer term, even though they have a great deal to offer. Will the Minister commit to involving some of the bereavement groups that might provide support and independent monitoring of people’s experiences, and undertake to catalogue centrally the reasons that emerge from such investigations? Only then will we understand if trends really are occurring across the country that need to be dealt with at national level, rather than allowing things to slip at local level.

[Baroness Chisholm of Owlpen]

The noble Baroness, who is very experienced in these areas, makes an important point. The plan is certainly to publish the information quarterly, in accordance with the regulations that the Secretary of State is going to lay before the House, so that local patients and the public can see whether and where progress is being made. Alongside those data, evidence will be published of learning and action that are happening as a consequence of that information, and the information will be fed back to the NHS Improvement regime at a national level so that the whole of the NHS can learn more rapidly from individual incidents.

Policing and Crime Bill

Debate between Baroness Finlay of Llandaff and Baroness Chisholm of Owlpen

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to the noble Baroness. Lady Hamwee, for speaking to me beforehand; we have had some discussion. I would like to go straight to answering both those questions, from my perspective, as I was the person who tabled the original amendment. I must declare my interest, as I now chair the National Mental Capacity Forum. I took over and started to do that in September of last year.

In terms of consultation, when I was listening to the voice of the person who had been on the receiving end of the Mental Capacity Act it was very evident very quickly that the automatic requirement for an inquest was causing an enormous amount of distress to families. It was also through that process that Ann Coffey MP consulted widely in her constituency and further afield—and coroners have been asked. So this was not brought forward lightly.

There was also consultation with the adviser to the Care Quality Commission, who feels strongly that DoLS are a useful process for safeguarding people who are particularly vulnerable. He was very supportive of the process following the judgment of the noble and learned Baroness, Lady Hale, which clearly laid out the acid tests under which DoLS should be applied.

As for cost savings, I see there being absolutely none. Actually, there is a possibility that costs might go up. Although unnecessary inquests will not, I hope, happen, so coroners will not be taken away from inquests that really do need to happen by the bureaucratic process of the unnecessary inquests, of which there were almost 7,000 last year, that find that death was due to natural causes, it is possible—indeed, I hope that this will happen—that more people will be inclined to make a deprivation of liberty safeguards application if there is a doubt about whether somebody is being deprived of liberty, because the deterrent of knowing how much distress would be caused to people, including families, will be removed.

Care home, clinical and hospital staff find it very distressing to say, “We’re going to go through this process of applying for a deprivation of liberty safeguards authorisation—and, secondarily, by the way, that means that there will automatically be a coroner’s inquest”. For those who culturally need a burial very rapidly after somebody has died, that causes profound upset—as it does to other families. As one coroner’s officer said, to me, “Sadly, sometimes the first time the families realise there has to be an inquest is when I have to pick up the phone to tell them, and they are deeply distressed”.

I suggest that by putting this measure in place we are removing a barrier to the deprivation of liberty safeguards, which are a way of protecting the rights of the most vulnerable person, because there is an inspection process. It must be necessary, proportionate and in the person’s best interests, and the person has a power to appeal to the Court of Protection against a deprivation of liberty safeguard. So people have far greater rights than somebody who ought to have a deprivation of liberty safeguard authorisation in place but where no application is being made. So I hope that this will increase the rights of the most vulnerable as well.

The process of scrutiny is that the Care Quality Commission has to be notified when a standard DoLS is in place. It will know whether a place has unusually many or unusually few DoLS applications, and will look in depth at the quality, the atmosphere and the culture around the way that care is given there. With all due respect to coroners, I think that the CQC is far more likely to detect where things are going wrong than a coroner’s inquest on a single case. But I reiterate that if a family have any concerns whatever, irrespective of whether there was a DoLS in place, they can ask for a coroner to look at a case when somebody has died. If they are suspicious, they can ask the question.

[Baroness Chisholm of Owlpen]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for raising this important issue. The Government take seriously their responsibilities to the very vulnerable group of people in society whom this amendment concerns. I also thank the noble Baroness, Lady Finlay, for her deep knowledge of this issue, and for the words that she has spoken this evening.

Coroners in England and Wales play a critical role in investigating the deaths of persons where there is a suspicion that death may have resulted from violence or unnatural causes, or indeed where the cause of death is unknown. Coroners will continue to have this duty with regard to persons who have been deprived of their liberty as authorised under the Mental Capacity Act 2005. There is no restriction on when or by whom deaths can be reported to a coroner. Indeed, the registrar of deaths has a duty to report deaths to the coroner where he or she considers that the coroner’s duty to investigate may apply.

The Government recognise that there is a need to improve the scrutiny of deaths that are not investigated by a coroner. The Coroners and Justice Act 2009 contains provisions to introduce medical examiners who will contact the deceased’s family and those involved in the deceased person’s care to identify any concerns as part of a reformed death certification process.

We consulted on our proposals earlier this year and aim to publish our response to the consultation in the new year. This will of course be particularly relevant to vulnerable people in hospitals and care homes, regardless of whether they are being deprived of their liberty. Medical examiners will not just be responsible for scrutinising individual deaths not investigated by the coroner but will have a role in analysing data on deaths across their area. They will identify patterns and contribute to lessons that will reduce avoidable deaths. They will also have a duty to report to coroners deaths for which a coroner’s investigation may be required.

The effect of Clause 155 will be that the death of anyone subject to a deprivation of liberty safeguards authorisation, or an appropriate Court of Protection order, will no longer trigger an automatic coroner’s investigation. We supported this change in the law in the light of views expressed by the then chief coroner, his honour Peter Thornton QC, in his 2015-16 annual report. He called for immediate action to remove deprivation of liberty safeguards cases from the definition of “in state detention”—a point that, just prior to his recent retirement, he reiterated to the Minister for Victims, Youth and Family Justice.

The issue here is not simply one of the resources needed to undertake these inquests. The then chief coroner had addressed this to some extent through his 2014 guidance, revised in 2016, which set out a streamlined process. But, as he has said, these inquests “serve no good purpose”. It cannot be right that more than 20% of inquests undertaken each year are unnecessary, with all that that implies in terms of added anguish for bereaved families.

I thank the noble Baroness for raising the profile of this important issue, but I hope that she will accept that the Government’s recently completed consultation on reforming the death certification process will, when its proposals are implemented, complement and support the work of our coroners who investigate suspicious deaths.

I think that the noble Baroness, Lady Hamwee, asked who we consulted in the consultation. The Ministry of Justice consulted the former and current chief coroner. Having said that, we consider that this removes any further need for further consultation on the coroner’s statutory duties, and I hope that the noble Baroness will therefore be content to withdraw her amendment.

Policing and Crime Bill

Debate between Baroness Finlay of Llandaff and Baroness Chisholm of Owlpen

Report: 2nd sitting (Hansard): House of Lords
Wednesday 7th December 2016 Lords Chamber

[Baroness Chisholm of Owlpen]

My Lords, I remind the House that Clause 120 amends the definition of alcohol in Section 191 of the Licensing Act 2003. The current definition of alcohol covers spirits, wine, beer, cider or any other fermented, distilled or spirituous liqueur. The clause adds “(in any state)” to the definition; the purpose of this is to ensure that all alcohol, no matter in which form it is sold, is covered by the requirements of the 2003 Act.

Amendment 171A seeks to exempt powdered and vaporised alcohol from the 2003 Act and instead to control it as a class C drug under the Misuse of Drugs Act 1971. Controlling powdered and vaporised alcohol as a class C drug would, in effect, prohibit the possession, production and distribution of these forms of alcohol.

Alcohol is a legal substance and the Government’s approach is to minimise the harm caused by alcohol by regulating its sale and supply. The 2003 Act seeks to reduce harm through promotion of the licensing objectives. These are: the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm. The 2003 Act also contains a number of criminal offences, including selling alcohol to a child under the age of 18 and selling alcohol without a licence.

The Government believe that the focus on the four licensing objectives provides sufficient safeguards for the sale of alcohol. It would be contradictory and disproportionate to regulate the sale of liquid alcohol but make alcohol illegal when it is provided in another form, such as powder or vapour. The classification of harmful drugs in the 1971 Act is predicated on an assessment of their respective harms and in accordance with recommendations made by the Advisory Council on the Misuse of Drugs. The 1971 Act places a duty on the Secretary of State to consult the advisory council before bringing a substance within the controls provided for in that Act.

Quite apart from questions over the merits or otherwise of controlling powdered and vaping alcohol in this way, the absence of such a consultation having been carried out means it would be inappropriate to amend the 1971 Act in the manner proposed by this amendment. The Government are not aware of any evidence that the harms posed by powdered and vaporised alcohol are such that it is necessary to consider controlling it as an illegal drug. Powdered and vaporised alcohol are not substances of which the misuse is having or capable of having harmful effects sufficient to constitute a social problem, as is the test under the 1971 Act. Unless and until there is evidence to suggest that these forms of alcohol are meeting that test, I believe that a regulatory approach is the appropriate one.

Clause 120 will ensure that the four licensing objectives continue to be met despite innovations in alcohol products and that the public, especially children, continue to be protected from irresponsible sales of alcohol. On that basis, I would ask the noble Lord to withdraw his amendment.

[Baroness Finlay of Llandaff]

Before the noble Baroness sits down, will she undertake to ask the ACMD to put this issue on its agenda and keep a watchful eye on it in the future? I declare an interest in that I was a member of the ACMD when khat was being looked at.

[Baroness Chisholm of Owlpen]

I thank the noble Baroness for that question. Home Office officials have discussed powdered alcohol with the Department of Health and Public Health England and are very much keeping it under review. They may well have to do things at a later date but, for now, they are just keeping a watchful eye on it.

Policing and Crime Bill

Debate between Baroness Finlay of Llandaff and Baroness Chisholm of Owlpen

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I thank the Minister and her officials for their time and help over the issue of this amendment. I declare my interest as independent chair of the National Mental Capacity Forum, and it is in that role that I have heard repeatedly about a problem relating to people who die when subject to deprivation of liberty safeguards. This new clause amends the meaning of state detention in Section 48 of the Coroners and Justice Act 2009 to correct the problem that I will now explain. I want to explain first how the amendment works and then some of the background as to why it really is needed.

The amendment removes the duty on coroners to conduct an inquest in all cases where the deceased had an authorisation for the deprivation of their liberty in place either under deprivation of liberty safeguards or a Court of Protection order or because the deprivation of liberty was otherwise authorised by the Mental Capacity Act 2005.

Subsections (2) and (3) of the new clause amend Section 48 of the Mental Capacity Act 2005 to provide a new definition of state detention. To do this, there is a new subsection inserted into the Coroners and Justice Act 2009 to provide that a person is not considered to be under state detention for the purposes of that Act when they are deprived of their liberty under the relevant sections of the Mental Capacity Act 2005. This covers the deprivation of liberty safeguards, which can be from a Court of Protection order, from a DoLS authorisation or, where the deprivation of liberty was urgently required, pending a decision by the Court of Protection on the authority to restrict the person’s liberty. The second amendment makes a consequential change to the Long Title of the Bill.

Let me explain why this new clause is needed. After the Cheshire West judgment, the number of DoLS applications has risen enormously. This was the subject of a debate in this House on 16 March 2015. Prior to the Cheshire West judgment, in 2012-13, there were 11,887 DoLS. In 2014-15, 122,775 individuals had an active DoLS application either granted or in process. That is more than a tenfold increase in the number of DoLS. Some of these people were seriously ill and some died. In 2015, there were 7,183 such deaths. The vast majority of those were expected, anticipated and accepted by the family and those responsible for care. These were not deaths that came as a surprise to anyone. When that family was then told that the death must be referred to the coroner for an inquest they were often shocked and worried, as if there were some sort of accusation against them or others. They could not progress with their grieving and arrange the funeral, as they then had to wait for the inquest.

In 2015 the average time for inquests was 20 weeks, although coroners tried very hard to ensure that deaths under DoLS, when clearly of natural causes, were dealt with more quickly. To put the numbers in context, of the more than 7,000 deaths under DoLS, 6,760—or 94%—were found at inquests to be natural.

The distress to the bereaved has become a common cause of complaint to the Department of Health. In addition, it is not a good use of coroners, who should be investigating deaths where there is any suspicion whatever. Indeed, I remind the House that the Ministry of Justice’s Guide to Coroner Services states:

“Registrars of births and deaths, doctors or the police must report deaths to a coroner in certain circumstances. These include where it appears that: no doctor saw the deceased during his or her last illness; although a doctor attended the deceased during the last illness, the doctor is not able or available, for any reason, to certify the death; the cause of death is unknown; the death occurred during an operation or before recovery from the effects of an anaesthetic; the death occurred at work or was due to industrial disease or poisoning; the death was sudden and unexplained; the death was unnatural”—

so that includes all suspected suicides—

“the death was due to violence or neglect; the death was in other suspicious circumstances; or the death occurred in prison, police custody or another type of state detention”.

The Ministry of Justice document goes on to say:

“If you believe that a death of this kind has not been reported to the coroner, you may report it yourself”.

In other words, relatives who have any concern can themselves report to the coroner. It goes on to say:

“You should do this as soon as possible and before the funeral. The coroner will then inform you of the action he or she proposes to take”.

Nothing in the amendment removes the obligations to inform the coroner if there is any suspicion whatever around a death. The amendment is to remove the mandatory requirement to hold an inquest where the deceased was deprived of their liberty under all relevant sections of the Mental Capacity Act—or, indeed, where the deprivation of liberty was to provide care to them.

Under the Mental Capacity Act a person who lacks capacity may be detained in circumstances which amount to deprivation of liberty. No detention amounting to deprivation of liberty may be permitted without lawful authorisation, because it would otherwise constitute false imprisonment. The Mental Capacity Act provide safeguards known as DoLS and Court of Protection orders to be made depriving a person of liberty for their care. It also allows for the deprivation of liberty of a person for the purpose of giving life-sustaining treatment only where a decision of the court is pending.

I want to address a concern that has been raised with me in relation to anyone who dies under the care of a mental health trust. A suicide or an unexpected or a sudden death must always be referred to the coroner, but I would expect there to be a routine review of any death in a mental health trust or similar organisation. Such a review should be available to the Care Quality Commission inspectors and I would expect the inspectors to ask about the number of deaths that had occurred in people subject to a deprivation of liberty safeguard application or authorisation. They should look in depth at the quality of the review of care that had taken place. Additionally, anyone who has concerns at any stage should raise those concerns, whether through whistleblowing or through the complaints process.

Complaints and how they are handled also form part of CQC inspections and I believe that such searching questions are far more likely to detect poor care than relying on a referral to the coroner, who is only looking at one instance and cannot see how care is delivered across a whole organisation. The recent incidents of poor care of those with learning difficulties that have come to light are certainly alerting inspectors that they must be more rigorous in their inquiries than before. To summarise, I hope that this amendment will correct an anomaly that has caused more than 6,500 bereaved families unnecessary distress in the last year alone. I beg to move.

[Baroness Chisholm of Owlpen]

My Lords, I am grateful to the noble Baroness, Lady Finlay, for this amendment. The Government are pleased to be able to offer our support for this amendment, which will minimise the stress on bereaved families at a very difficult time for them. The amendment will fully address the concerns that no family, having watched and comforted their loved one through his or her final days, should then be unnecessarily subject to the anxiety and confusion of having their death investigated by a coroner. I thank the noble Baroness for raising the profile of this important issue and for her valuable input, which the Government very much welcome and support. I commend her amendment to the Committee.