Environment Bill

Debate between Baroness Finlay of Llandaff and Baroness Meacher

Committee stage
Wednesday 30th June 2021 Lords Chamber

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

I have had one request to speak after the Minister, from the noble Baroness, Lady Meacher, so I call the noble Baroness.

[Baroness Meacher (CB)]

My Lords, I must be the most unpopular person in this House today, and I must apologise. I failed to tell the Whips which amendments I wished to speak to, so I was left off the list. However, I did add my name to Amendments 119 and 292, and I am speaking only because the noble Baroness, Lady Boycott, in particular, asked me to, as she is unable to be in the Chamber. The noble Lord, Lord Hunt, whose name is also on Amendment 119, also cannot speak . I want to make the point that it is not only the noble Baroness, Lady Bennett, who very much wants these amendments to be taken seriously. So forgive me, and I shall speak as briefly as I can; I have crossed out all sorts of bits.

Amendment 119 refers to paragraph 1 of Schedule 4. I have a significant concern about the wording of sub-paragraph (1), which is not dealt with directly in the amendment. It says:

“The relevant national authority may”—


not “shall”—

“make provision for imposing producer … obligations”.

As the Minister made very clear in his response, this leaves Ministers with lots of tools, but there is absolutely no assurance that they will use them.

We know that our Minister—indeed, our Ministers—need important issues to be on the face of the Bill. Otherwise, they will be steamrollered by other Ministers elsewhere, and prevented from doing really important work. This is not trivial; it is important.

Having raised that issue, I want to speak in support of Amendment 119. I think that it was the Minister, on day 1, who made the point that responsibility for superfluous plastic packaging or other waste generally lies squarely on the shoulders of producers—and I think we all know that. I realise that packaging is only one form of environmentally damaging plastic product, but many producers bury their products in a sea of plastic. The great benefit of Amendment 119 is that it focuses on the regulations, which would affect a lot of producers—but, even more importantly, it gives us a target date by which the regulations should be in place: 2024.

As others have explained, Amendment 292 is all about dealing with the appalling consequences of single-use nappies on the environment. Having had four children, and used terry nappies for all four of them, I was a bit shocked—believe me—at the idea of moving away from single-use nappies. But the noble Baroness, Lady Bennett, has set out very clearly the damaging effect of those nappies on the environment.

While understanding the concern of the noble Baroness, Lady Neville-Rolfe—from my perspective as a user of these other things—I have been introduced by the Nappy Alliance to the features of modern-style reusable nappies. I am assured that they really do not commit mothers, or indeed fathers, to the sort of work that those of us back in the day had to put up with. It really was quite appalling: you had buckets and buckets of them. They are apparently perfectly usable with washing machines and with very little parental input. That is very important to me, so I wanted to make that point.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Baroness Meacher

Tuesday 26th February 2019 Lords Chamber

[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.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Baroness Meacher

Report: 1st sitting: House of Lords
Wednesday 21st November 2018 Lords Chamber

[Baroness Meacher]

My Lords, I put my name to this amendment and I very strongly support it. Having been a Mental Health Act commissioner for many years and having visited independent hospitals as well as NHS hospitals and other establishments, I remember those independent hospitals as being the most alarming environments that I ever visited. Very often, the biggest problem was indeed the conflict of interest. People would get into those hospitals and be treated, and that was all good, but whereas in an NHS hospital the pressure all the time, from the day of arrival, is to plan the exit and aftercare in the community, once those hospitals had got the person better they had a lovely ride. The patient was there and was no trouble, no longer had symptoms and was miles—maybe hundreds of miles—from their family. They did not get visits. The conditions in which those people were held were shocking, and the degree of the deprivation of liberty was often deeply shocking. Did they go out in the grounds? Probably not. Did they go out for walks? Probably not. Any kind of a sense of liberty could be lost, not just for days, weeks or even months, but for years. We would do our tiny best, but the fact was that we might get round to one of those hospitals every two years. It was inadequate to say the least. I therefore urge the Minister to take this very seriously. We are worried about care homes, which are probably local and have the family nearby, if there is one. They can be a problem, but this is on another scale and of another degree of severity, so I strongly support this amendment and urge the Minister to consider it.

[Baroness Finlay of Llandaff]

My Lords, I, too, have put my name to this amendment. My noble friend Lady Meacher has laid out very clearly some of the problems and conflicts of interest that can arise. One of the difficulties is deciding which will be the responsible body. If the place where somebody is treated is quite a long way from whoever commissioned their care, it can create real problems for a local authority or a clinical commissioning group, which might be funding outside the range of common care for somebody to be some distance away. That is why we have to decide which is to be the responsible body, and that responsible body must take those responsibilities seriously. The advantage of the responsible body being a designated NHS trust is that the private hospital is likely to have consultant-level staff who are likely to have an NHS contract somewhere at another trust, which may be nearby, or if they are part of a specialised group they will be subject to a degree of oversight, appraisal and so on within that specialist area. They are less likely to have local GPs who would be answerable to clinical commissioning groups. One just does not know. They have to go to one or the other. The most dangerous of all would be to have what one might term a mixed economy of a responsible body in some situations and a clinical commissioning group or local health board in another.

In Wales, things are a little different because the local health board covers the hospital sector and the community, so we have clearly defined geographical boundaries with much easier lines of answerability. My feeling is that we need to plump for one. I hope that the Government will, and I can see that there may, on balance, be advantages in saying the designated NHS trust is the responsible body.

Conscientious Objection (Medical Activities) Bill [HL]

Debate between Baroness Finlay of Llandaff and Baroness Meacher

Committee: 1st sitting (Hansard): House of Lords
Friday 23rd March 2018 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I was not planning to intervene in this group, but the entire debate has focused on abortion. Amendment 1 also applies to the withdrawal of life-sustaining treatment at the end of life. That is a totally different situation from abortion. These people are finding life unbearable, they are finding their treatment intolerable, they are facing the fact that they are dying, and they want something to happen. They want to be able to have their life-sustaining treatment withdrawn. Of course under current law someone with a conscientious objection who might be expected to help with that process has an absolute right not to do so. The great concern of those of us concerned about the end of life rather than the very beginning of it is that a lot of people towards the end of life find themselves in hospices, and we hope more of them will do so over time.

If you extend conscientious objection to supervisors, managers and so on, hospices do not have armies of staff. The noble Lord, Lord McColl, made the point that there are 1 million-plus people in the NHS, so surely there are people who can undertake abortions. Yes, but if you are an elderly, very sick person in a hospice and the manager of that hospice, the supervisor or someone else has a conscientious objection, you are likely to find yourself unable to exercise your absolute right to have your life-sustaining treatment withdrawn. That right cannot be fulfilled. The GMC makes very clear in its guidance that no one should be able to exercise a conscientious objection unless they ensure that someone else will take over that role, but that is likely to be impossible.

[Baroness Finlay of Llandaff (CB)]

Does my noble friend Lady Meacher recognise that hospices do not provide life-sustaining treatment? It is the very ability of patients not to continue with whatever their life-sustaining treatment was—whether chemotherapy, artificial nutrition and hydration or ventilation—that is in question. In those units, symptom control is managed when patients refuse consent to continue. To treat a patient who has had life-sustaining treatment and says, “I do not want any more”, would be assault in law. That refusal of consent must be respected and, in the process, you have a duty of care. That duty of care is to provide all other care and comfort measures during the process as they die of their disease. That is a natural process, and hospices are about accepting death. You will not find people in hospices being ventilated against their wishes. There may be some people on non-invasive ventilation because they want to continue with it while having other care. We must be clear that the Bill will not jeopardise hospices. I will speak on the Bill in a moment, but would like to put that on record.

--- Later in debate ---

[Baroness Meacher]

I understand that in many hospices the emphasis is, as my noble friend said, on symptom control—in other words perpetuating, keeping things going—rather than enabling, encouraging and helping somebody to take their life in a dignified way.

[Baroness Finlay of Llandaff]

I am sorry, but I have to intervene again. I should have declared my interest as palliative care lead for Wales, as vice-president of Hospice UK and of Marie Curie, and as having set up a lot of hospices. Symptom control is not life-prolonging treatment; it is about keeping people comfortable during the time they are dying of their disease. It may run in parallel with other treatments and it may be provided when other treatments are withdrawn, but it certainly does not prolong life per se. There is evidence that if you leave people in pain, it is a powerful drive to respiration. When you make people comfortable and relieve their pain, they can let go of life and die, but it is not the morphine that has killed them, it is the disease. Symptom control does not force people to stay alive.

Assisted Dying Bill [HL]

Debate between Baroness Finlay of Llandaff and Baroness Meacher

Friday 16th January 2015 Lords Chamber

[Baroness Finlay of Llandaff]

I am grateful to the noble Lord for that illustration, which is very clear and well known to all Members of the House. It is for that type of reason that I have proposed the removal of the word “reasonably” from Clause 2(1)(b) of the noble and learned Lord’s Bill.

A number of clinicians have tried to predict prognosis—for instance, whether to take the risk of a heart or lung transplant, and when to introduce palliative care in non-cancer services for the frail elderly. However, they have found that they just cannot determine time. Prognostication is reasonably accurate on the population level but, as the noble Lord, Lord Winston, has just illustrated, it is not accurate at an individual level at all. It is no better than tossing a coin. Indeed, different studies have shown that a prognostication expecting someone to live for more than a year is not too awfully wrong. Similarly, expecting somebody to die within a month is more likely to be accurate than inaccurate. However, in the interval in between you honestly could toss a coin on it. It is for that reason that I suggested that, if the prognosis in the Bill really is to deal with those people who are distressed during their dying phase, the prognosis section should be shortened to six weeks.

There are other aspects to prognostication that I will point out to the noble and learned Lord, Lord Falconer. The national clinical director for end-of-life care told the commission that he chaired that predicting the course of a terminal illness is “fraught with difficulty”. In 2004 the RCGP made the same point to the Select Committee chaired by the noble and learned Lord, Lord Mackay:

“It is possible to give reasonably accurate prognoses of death within minutes, hours or a few days. When this stretches to months then the scope for error can extend into years”.

The Royal College of Physicians, giving similar evidence, said that,

“prognosticating may be better when somebody is within the last two or three weeks of their life … when they are six or eight months away from it, it is actually pretty desperately hopeless as an accurate factor”.

More recently, we have seen in the report from the inquiry into the Liverpool care pathway, chaired by the noble Baroness, Lady Neuberger, how prognoses of death within 48 hours have sometimes turned out to be wrong. The report called for further research into improving the accuracy of prognosis within the last weeks to days of life.

Yet, in the face of all this evidence, we are being asked to consider legalising assisted suicide or assisted dying for people with a prognosis of six months. The only conceivable explanation is that that is what Oregon’s assisted suicide law says. However, Oregon’s law has been shown to be fallible in the matter of prognosis. Oregon’s own data show that the time from the first request to death by whatever cause, whether through physician-assisted suicide or natural causes, ranges from 15 to 1,009 days, which is two years and nine months. Washington’s data show that, among those being given a prescription for lethal drugs and therefore expected to die within six months, the range was three to 150 weeks. I note that, in every year of that legislation since it has been passed, patients have lived well beyond 24 weeks or six months. The percentage ranges from 5% to 20% of a request for death.

The plain fact is that prognosis of “terminally ill” is highly unreliable over a range of six months. The DS 1500 has been used as a way to allow patients to access benefits rapidly, without having to go through assessment hoops. However, as those who have filled them out know only too often, it is only a guesstimate. Very often, patients vastly outlive the prognosis. We have had to have difficult conversations about how they should now go through the complete assessments. I tabled a Question to ask whether the Department for Work and Pensions collected data on the DS 1500. Unfortunately, it does not. It would be interesting to know for how many months that benefit had been drawn.

The plain fact is that this is unreliable. As a practitioner in the field, I can count the number of terminally ill people whom I have treated. I have not tallied them up among the thousands that I have looked after, but I could bore this House for weeks with the number of clinical stories of people who were expected to die within six months and who stayed alive for much longer. Those are the reasons behind these amendments. I hope that those who are arguing sincerely that the Bill aims to try to improve the dying process in those last days and weeks of life will seriously consider that they are asking people to make a prediction on which there really is not a scientifically accurate basis.

[Baroness Meacher]

The noble Baroness placed a great deal of emphasis on accuracy. Those points completely fail to take account of the fact that we all have a great will to live. Just because the individual finally has control and some autonomy does not mean that they will rush out to try to take some pills. I feel that this is a completely misguided set of arguments. The most important thing about the Oregon law, which has been in place for 17 years and works extremely effectively, is precisely that some people live for three years. They do not take their lives; they live for three years until life becomes unbearable. It is only at that point that they take the pills or whatever it is. We have to be very careful not to be misled, albeit one can come back with arguments that most doctors exaggerate the length of time that they expect people to live. Even that is not the point.

[Baroness Finlay of Llandaff]

When we legislate we need to know that there is accuracy attached to the terms. If we are asking doctors to make a declaration or statement of prognosis, they must at least know that there is some scientific basis behind it. In making a decision, there are three fundamental issues; first, the person must have accurate information; secondly, they must have the mental capacity to make that decision; and, thirdly, it should be voluntary and free of coercion. If you make the decision to end your life because you believe that what lies ahead in the next weeks and months is so terrible but, in reality, you might have improved dramatically and lived for years if you had had the care you needed, then I would say that you are not being supplied with accurate information and that it is therefore not a valid decision.

Criminal Justice and Courts Bill

Debate between Baroness Finlay of Llandaff and Baroness Meacher

Monday 20th October 2014 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I shall speak also to Amendment 43A, which takes the place of Amendment 43 on the Marshalled List. The intention was to have withdrawn Amendments 45 and 46, so I shall not refer to those two amendments today.

I must apologise to the Minister and your Lordships for coming into this debate rather late in the day. The noble Baroness, Lady Finlay, who I was going to say is not in her place but who now is, is the person who has raised the concerns about Clause 19 at earlier stages and had a very helpful meeting with the Minister.

Clause 19 introduces a new offence of ill-treatment or wilful neglect by care workers, including doctors and nurses. A similar offence for care providers is introduced in Clause 20. I have less of a problem with an offence of ill-treatment—it seems to me that that is a proactive act which is a little bit clearer—but I have no doubt that an offence of wilful neglect of an individual would lead to criminal investigations of good clinicians simply because patients may believe that they should have had medications or treatments which were not appropriate at the time or may have been judged not appropriate by the relevant clinician.

Our amendments would raise the bar for such offences for individual doctors and nurses by introducing the requirement that the care worker commits an offence only if their activities amount to a gross breach of a relevant duty of care owed to the individual who is allegedly ill-treated or neglected. Of course, I understand the history behind Clause 19 and the fact that offences already exist for ill-treatment and wilful neglect of children in certain circumstances and of adults who lack capacity. I suggest that such situations are rather different from those of competent adults in, for example, an acute hospital or GP surgery. My concern is that we have lost sight of proportionality here, and the consequences will be disastrous, both for good, conscientious clinicians and for the NHS, with its impending £30 billion funding gap.

Of course, none of us can accept ill-treatment or wilful neglect of patients—and I will come back to that in a while. I wonder whether those in the Government who designed this new offence for individual clinicians have really appreciated the devastating effect on conscientious care workers if they find themselves under criminal investigation when it is clear that they have used their clinical judgment in good faith or done their very best with the resources available to them.

The Government have stated that the offences are intended to deal only with the most serious incidents—that has to be right. However, the offence is broadly drafted and the police will have an obligation to investigate cases of alleged neglect unless it is absolutely clear at the outset that there is no case to answer. Almost any decision could potentially be investigated for wilful neglect, even though, later, the vast majority and probably the whole lot would not go all the way to prosecution and a guilty verdict. The question of proportionality is therefore highly relevant.

Criminal investigations are incredibly disruptive, time-consuming and costly. The potential cost to the NHS of disproportionate criminal investigations is impossible to estimate accurately, but my main concern is the unwarranted distress and catastrophic nightmare that such investigations would cause for the conscientious worker—and the vast majority facing investigation probably would be conscientious workers. It is not acceptable for the Government to say that it would be up to prosecutors not to prosecute other than in serious cases. It would be far too late at that stage to prevent the damage. Doctors and nurses are likely to find themselves suspended during a criminal investigation—it is very different from a disciplinary investigation. Their self-respect, and professional and public respect, will be in ruins. Huge damage will have been done before the matter comes anywhere near prosecutors. Does the Minister agree that the problem with Clause 19 is the investigations rather than, later down the line, the prosecutions?

I am aware of the Government’s consultation in March this year on the proposed formulation of the new offence. They claim, and I do not doubt it, that the 130 responses indicated broad support for the proposals. On the face of it, they sound eminently reasonable—how could one disagree with them that we need to deal with these problems—but I question the clarity of the consultation documents on the consequences of Clause 19 and those investigations. I do not believe that the British people would support the cost, disruption to services, and devastation caused to good workers, doctors and nurses that criminal investigations would create under these provisions.

I understand that the appalling consequences for doctors in hospital settings have been debated at earlier stages of the Bill. I agree with others that Clause 19 will be entirely disproportionate in its consequences for those hospital staff. I will focus on GPs because they are incredibly vulnerable to malicious complaints.

As things stand, we know that GPs daily experience fear of complaints. We know, and the Minister knows, that GPs regularly have to see 60-plus patients in a day. Many of those patients will have relatively minor ailments, but in that list will undoubtedly be patients with life-threatening illnesses. This means 10 hours of stressful, direct patient contact. Any one of those patients may leave the surgery dissatisfied, rightly or wrongly, with the outcome of the consultation. The patient may want an antibiotic and the doctor may know that it is not the right thing. The issue then is whether the doctor really has the time to explain the whole business about why an antibiotic may not be a good idea. That is their vulnerability: if they had all the time in the day slowly to explain to patients, or to people with learning difficulties or language problems or whatever it is, there would be no problems, but doctors do not have that luxury, and GPs certainly do not. Any angry patient could regard this as wilful neglect. Of course, it is not, and ultimately there would not be a prosecution, but the investigation will nevertheless have to take place.

The point then is not about the prosecution. Does the Minister really believe it appropriate for the threat of a criminal investigation to hang over GPs, nurses and doctors every time they go to work? I could not cope with work if every day—and every 10 minutes—I was worried that I might face a criminal prosecution for the judgment I was making. I say it again: we will not tolerate ill treatment or wilful neglect of patients. The question is whether Clause 19 and criminal investigations are the best way of dealing with these issues.

Have the Government assessed the likely impact of this new offence on the willingness of doctors to become GPs and on their early retirement plans? In this country we already have a shortage of doctors willing to train as GPs. Large numbers of doctors—six in 10, we understand—are planning early retirement. What will happen to the supply of GPs if Clause 19 comes into effect? The BMA describes the situation already as having reached crisis point. GPs are moving abroad as the pressures in this country become more and more unpleasant.

Applicants for GP training are at their lowest level for five years. Advertisements for GP partners that we know five or 10 years ago would have had 30 responses now receive maybe none. Nobody wants to be a GP partner these days even in quite desirable areas—and I happen to know a few. At the same time the pressure to transfer more care into the community rises year on year. I appeal to the Minister to think again before Third Reading. The Minister can quote from the ambitious figures for the number of GP training places to be made available, but will there be any trainees to fill those places? There is also the expectation—I would say a wish—that the number of trainee doctors becoming GPs will increase from 40% to 50%. Well, I doubt it if this clause becomes law.

Amendments 42 and 43A seek to raise the threshold for a criminal investigation of a professional care worker. I read the Minister’s letter to the noble Baroness, Lady Finlay, but I have to confess that I was not persuaded by the arguments. As I said, none of us can condone ill treatment or wilful neglect of patients. I have repeated that again and again because that is not the point here. The point is how we deal with these things not whether we do so. The Government have strengthened the Care Quality Commission and I applaud them for doing that. The Care Quality Commission needs to be able to deal with these things effectively, and much better they be dealt with through the Care Quality Commission than in this way. I hope the Minister can assure us that further thought will be give to this damaging clause before Third Reading. I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, I apologise for coming in just after my noble friend Lady Meacher had started speaking, due to traffic congestion. I am most grateful to her for having put the amendment so clearly. I endorse the point that nobody, but nobody, thinks that wilful neglect is all right. It is not all right. It is not to be allowed to even happen let alone condoned. The problem is that the burden of proof on the individual and on the organisation that employs them has been set at different levels as the clauses are currently drafted. The requirement is to prove gross neglect for an organisation but that had not appeared in relation to the offence committed by the individual. The difficulty is proving intent.

I had a meeting with the Minister at which he spent a great deal of time—I am very grateful to him—and he replied fulsomely with a long letter following that conversation. I remain unconvinced that the Bill will not effectively result in healthcare professionals being hung out to dry—that was a phrase I used before and I use it again—by an organisation that does not support its clinical staff adequately when serious complaints come in. At the end of the day, it is not wilful neglect but it is interpreted and viewed by understandably distressed relatives as neglect of their relative who may have suffered serious harm within the system or become extremely ill because of the progress of the disease. Although the work conditions for the staff have made it extremely difficult for them to function well, they have not been guilty of wilful neglect.

I stress that I do not think this applies only to nurses and doctors. If a physiotherapist or an occupational therapist declines to comply with a request from a patient or their family, that could be interpreted by the family or patient as wilfully withholding something that they feel they need. There is then some unintended adverse incident further down the line that was not predicted and the complaint goes against that healthcare professional. No one should underestimate how damaging it is to a healthcare professional to have a complaint made against them, and how most extremely conscientious healthcare professionals can feel quite destroyed by a complaint. However, an accusation of wilful neglect that goes to the police would certainly destroy somebody’s professional reputation. Even if it proceeds no further, they will find it very difficult to shed the trauma of that experience of being referred to and investigated by the police.

I hope the Minister can clarify exactly how intent will be interpreted and implemented, and how it will be proven that an organisation has intent to neglect patients. I suggest that the organisation can prove that it did not directly intend to but, actually, if it is really badly managed and is not supporting its front-line workers, it is neglecting patients because it is not allowing its staff to do their duty properly. However, I can see that such an offence would be very difficult to stick anyway. Certainly, if the burden of proof is higher for the organisation than for the individual, as I said before, I foresee that people will be hung out to dry.

Immigration Bill

Debate between Baroness Finlay of Llandaff and Baroness Meacher

Wednesday 12th March 2014 Lords Chamber

[Baroness Meacher (CB)]

In moving Amendment 62, I shall speak also to Amendment 62A. The purpose of Amendment 62 is to ensure that treatment for any injury resulting from domestic abuse or female genital mutilation is exempted from NHS charges even if the victim does not have permanent leave to remain, or indeed if her immigration status is not clear. I should explain at the outset that these are probing amendments and I understand from the Minister that these matters will be dealt with by the Department of Health in regulations. Having said that, this amendment provides an opportunity for this House to try to influence those regulations. I think that I am right that there will be no further opportunity to do that.

Clause 34 defines for the first time the term “ordinarily resident”. If the person is not ordinarily resident they may be charged for health treatment. If they have paid the surcharge they should be covered for health services but many other people are already living in this country—I understand in the realm of about half a million—who have not paid the surcharge and are eligible for NHS charges. Further, Clause 34 brings ordinary residents into line with permanent residents. That means that instead of being here with a visa for a settled purpose such as a job, a university course or to reunite with a spouse for a minimum of one year, an immigrant will need to be here for a minimum of five years in most cases before they are fully covered for healthcare. This is why Amendment 62 is important and relevant to health charges, as I understand it.

In his letter of 12 March, the noble Lord, Lord Taylor, said that short-term visitors and those without lawful immigration status will,

“continue to be liable to pay overseas visitor charges for secondary care treatment under NHS regulations”.

This is similar to the letter from the Minister for health quality, who said that,

“illegal non-EEA migrants and short-term visitors (under 6 months) will continue to be liable to NHS treatment charges as they are now”.

I am told that this is not precisely the case, as the National AIDS Trust’s excellent briefing points out. In fact, the Government plan to introduce new charges for primary care, apart from GP and nurse consultations, and for A&E services for this group and for any migrant who cannot show that they have paid the levy. The need to assess patient entitlement in primary care or A&E would be an unhelpful distraction in an emergency situation. This might be done after someone receives treatment—but that, too, is an alarming position for someone who may have little or no money.

In his subsequent note and his latest briefing, the Minister gave assurances about a number of vulnerable groups who will not be subject to the surcharge or charges for treatment under the NHS charging regulations. There is no mention of the victims of domestic violence or FGM in relation to either. Do the Minister and his colleague, the Minister for Health, intend to exclude these two groups from the surcharge and, in the case of those already here without permanent residence, from NHS charges? If not, it is a matter of great concern that the moral and humanitarian case previously accepted concerning these groups appears to have been set aside.

As to the practical difficulties in determining who the exemptions for domestic abuse and FGM would apply to, I understand that medical checks would be needed if these groups are to be exempt from the surcharge. I appreciate that could be problematic in the circumstances, but in the case of NHS charges for failed asylum seekers, irregular or undocumented migrants, short-term visitors and others without permanent residence, does the Minister not agree that if a patient in any of these groups has been domestically abused or damaged by FGM, they should not be charged for treatment? It would be helpful to have clarification on this point on the Floor of the House, if the Minister is able to give it, albeit that such provisions would ultimately be made in Department of Health regulations.

If irregular migrants and refused asylum seekers who would not have paid the surcharge cannot access primary care services, apart from GP and nurse consultations to address comparatively minor health problems, they will eventually present elsewhere—probably at an A&E department—at much greater cost, as I referred to in relation to an earlier amendment.

A different but important point is whether the NHS will be expected to report back to the Home Office if a patient’s migration status requires them to be charged for NHS services. There is a concern about this in view of the comment of the Home Office Permanent Secretary to the Home Affairs Select Committee that the Home Office intends,

“to improve its radar screen into the NHS”.

I find that rather chilling. If it became known that a visit to the doctor could lead to a report to the Home Office, people could be deterred from seeking healthcare. Can the Minister assure the House that this will not be the case?

The Government have previously recognised the important role of the NHS in identifying victims of abuse and helping them to recognise, consider and exercise their option to escape from that abuse. Also, in the case of FGM—where we have not had a single prosecution—the NHS is seen as probably the best hope of identifying perpetrators and providing evidence to support the prosecution case. I look forward to hearing the Minister’s view on that.

On Amendment 62A, the Government have agreed that no charge will be made for health services to victims of human trafficking. I am dealing with this issue separately because, in a sense, these people are in a different situation. The aim of the amendment is to put this commitment in the Bill and to require the Government to produce a strategy and procedures to ensure that the victims of human trafficking are promptly and effectively identified for the purposes of the clause. This is a probing amendment which I hope the Minister can endorse, thus assuring the House that there will be regulations in place to achieve its aims so that victims receive the necessary medical treatment. The UK would thus satisfy our international obligations.

According to the Catholic Bishops’ Conference, the UK Human Trafficking Centre shows that more than half—54%—of trafficking victims were not recorded by the national referral mechanism in 2011. UKHTC notes that people who have been trafficked are often treated as irregular or illegal migrants. They may, of course, have been given false, stolen or genuine but fraudulently obtained identity documents. They will most likely then be treated as immigration offenders despite not acting under their own volition. This is quite understandable but it will need attention to avoid this kind of thing happening.

As the Bill is currently worded, these victims would not be exempt from the charges for health services if they are in one of these obscure groups. Also understandably, people who have been trafficked and coerced into criminal activities are often treated as offenders rather than victims. They are unlikely to benefit from exemption from health charges. A 2013 report by Anti-Slavery International highlighted a lack of awareness of trafficking indicators among authorities. If these victims are not identified, they are likely to get a criminal record, go missing, be deported and be retrafficked. They become victims a second time round.

All this will increase the fear of victims and their suspicion of the authorities. Help with later investigations is less likely to be forthcoming. At the moment, the authorities rely on those who are trafficked to disclose their status quickly or face detention—and, for obvious reasons, often that does not happen. If not identified immediately on arrival, trafficking victims are unlikely to be identified subsequently, and hence the importance of subsection (2) of the amendment. There is a need for,

“a strategy and procedures to ensure that victims of human trafficking are promptly and effectively identified”.

We are particularly concerned about trafficked children. I understand that at the moment social workers receive no mandatory training in identifying a trafficked child. We know that in the context of the draft Modern Slavery Bill there is a commitment to roll out specialist training and other measures. Can the Minister give the Committee a commitment that rigorous enforcement of health charges will not be introduced until the safeguards associated with the Modern Slavery Bill are rolled out?

Let us get things in the right order. Does the Minister agree that before the planned safeguards are introduced, they will be put before the modern slavery commissioner, who is to be appointed under the modern slavery legislation? Indeed, to clarify these matters, can he provide the Committee with information about the planned timing of the introduction of the new enforcement rules for health charges and of the implementation of proposals in relation to the Modern Slavery Bill? I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, my noble friend Lady Meacher has introduced this group of amendments with great clarity. I have added my name to Amendment 62 and I will speak to Amendment 64. Other Peers who have added their name send their apologies for not speaking at this late hour. I do not want to add much more to what has been said about domestic abuse and female genital mutilation except to say that I have a major concern as to how this will actually work in practice unless these groups are exempt.

What happens if a girl comes into the country, her status is not established, and she has infected wounds? What happens to the girl who has been mutilated and has urinary and voiding difficulties or suffers chronic pain? What happens during pregnancy, when delivery can be incredibly complicated? If it is not properly managed, a woman may literally burst because scar tissue is not elastic. We recognise FGM as an absolutely awful form of abuse and it is shameful that there have not been prosecutions already. If we put these women into the charging category, we will almost reverse the message we have sent to society about this terrible act.

The other problem arises with domestic abuse. If a woman arrives at A&E with severe facial injuries including fractures to the bones of her face or her chest wall, they may be life-threatening. If her ribs have been stoved in, it may be a life-threatening injury such as a pneumothorax and treatment will have to begin straightaway. Emergency service personnel are going to be put into a terribly difficult position. Another problem is that, in the societies from which many of these women come, sadly they are not afforded the rights they have in our society, and they are not given the respect they deserve. I am fearful that there may be a tendency to blame the woman if attempts to stay fail because she is a burden on the man, thus making it more difficult for him to stay.

Amendment 64 is about people who are released from detention. Currently, people can receive treatment while they are being held in an immigration detention centre and the course of treatment will be ongoing when they leave, but this may not be the case in the future. The consequences will be particularly acute in the area of mental health. It is well documented that the experience of an immigration detention centre is damaging to the mental health of many detainees. Without ongoing support, those mental health problems will be exacerbated rather than ameliorated at the point of release. The problem we are faced with is where to set the boundary and how it will actually be implemented.

These are probing amendments, but when regulations come before the House we will not be able to amend them. We will be faced with either accepting or rejecting them. That is why we need to tease out these issues very carefully at this stage.

Pensions Bill

Debate between Baroness Finlay of Llandaff and Baroness Meacher

Wednesday 15th January 2014 Grand Committee

[Baroness Meacher]

My Lords, I will speak to Amendment 62ZA, but before doing so I must apologise to your Lordships—I have already apologised to the Minister—because I am running against a very tight deadline. I tabled this amendment assuming it would come up on Monday. Before addressing the amendment, I give my very strong support to Amendment 59, moved brilliantly by the noble Baroness, Lady Hollis. I have no doubt at all that the replacement of the widowed parent’s allowance by the bereavement support payment has positive features, but the limitation of that benefit to one year is absolutely cruel. The noble Baroness, Lady Hollis, really got across the point that bereavement is not just a short-term problem. It brings several years of very considerable distress and discomfort for the children, as well as for the parent left behind.

The aim of Amendment 62ZA is to remove the widowed parent’s allowance and its predecessor, WMA, from the list of benefits treated as income other than earnings for the purposes of universal credit entitlement. I realise that that would be a very big step for the Government, but the result would be that claimants with no other income or earnings would keep the value of the WPA in full. Those with earnings in excess of the personal allowance would of course pay tax on it, but they would at least receive the majority of the benefit.

This is a probing amendment. The Children’s Society has calculated that, without the amendment, those entitled to widowed parent’s allowance could find themselves worse off by about £400 per year compared to those with no entitlement and no national insurance contributions. An important point is that WPA is a contributory benefit. It is only payable when the deceased parent has paid sufficient national insurance contributions. The clear assumption behind the benefit is that a surviving parent with all those contributions should surely benefit over and above surviving parents with no contributions. We regard it as an anomaly that under the universal credit rules this advantage from having national insurance contributions would be stripped away. Do the Government really intend that outcome? I do not think so. The proposed bereavement support payment, which will of course replace a number of benefits including the WPA, clearly identifies bereaved parents with national insurance contributions as being entitled to benefits which are not available to others. There is therefore a real discrepancy between the two basic assumptions behind the two benefits.

Although the bereavement support payment will be limited in time—hopefully it will be provided for at least three years, which seems to be an absolutely basic requirement—nevertheless it will be of greater value to most of those entitled to it than the widowed parent’s benefit. The contributory principle is well and truly recognised by this new benefit. At the same time, as I understand it, those receiving the widowed parent’s allowance will continue to do so when bereavement support payment takes over for new claimants. The WPA will continue to be treated as income other than earnings, which again is a different principle. This means that the benefit will continue to be deducted pound for pound from the claimant’s universal credit entitlement. The result is that a widowed parent with no other income will experience zero benefit from his or her national insurance contributions, thereby entitling them to the WPA.

The situation is, of course, even worse for widowed parents who continue to work. The gross sum of the widowed parent’s benefit will be subject to income tax. I find that absolutely extraordinary. Working claimants may have their WPA deducted in full from their universal credit entitlement, but will also pay tax on the gross income that they have not received. Those are the parents who could end up £400 per year worse off. I would be grateful if the Minister could confirm that that is a correct reading of the situation.

Can the Minister confirm whether the Government really intend that those bereaved parents with a national insurance contribution record should be no better off than those with no such record and that those in work should really find themselves even worse off? Will the Minister confirm that many current recipients of the widowed parent’s allowance will continue to be disadvantaged in this way even after the introduction of the bereavement support payment? Finally, does the Minister accept that only relatively well-off bereaved parents, whose earnings take them above the ceiling for universal credit, will actually benefit from having a national insurance contribution record? Can that be right?

[Baroness Finlay of Llandaff (CB)]

My Lords, I support these amendments very strongly. The points about bereavement have been made most eloquently. However, I would like to add the scenario where one parent dies suddenly rather than as a result of a protracted illness, where the shock of the death may be absolutely overwhelming. That could be suicide, murder or a sudden death. There is another scenario, too, which is where the surviving parent was involved in a road accident and does not even start to grieve until much later. The children who are bereaved know that one parent is already dead and, for many months, they may not know whether the other parent will survive or not. The shortening of time is quite cruel, and I use that word advisedly. A year is a very short time in the life of anyone bereaved, and the anniversary of the death often marks a major step change in the way that they live their lives. That applies to children as well as the bereaved parent.

The government proposal to increase the lump sum is most welcome because the current lump sum gets nowhere near the immediate expenses incurred. However, it is essential that the Government consider this proposed three-year period, or until the child is seven, if that would be longer than three years, because pre-school children certainly need that security and will become very clingy when they realise that one parent has gone. A scenario might arise with an accident where not only has the parent died but another sibling. It is not uncommon, sadly, for a family of five or six to be suddenly left as a family of two—multiple losses all in one go in a horrendous road accident.

We know that the outcomes for children who are not well supported in bereavement are much worse. When we think about the cost of bereavement support, it must be put in context of the cost to society of young people who have been bereaved who have not had adequate support and have experienced excessive strain and mental health problems. That increases their risk of suffering from depression, attempting suicide and experiencing drug addiction, alcoholism, underage sex, unplanned pregnancies and so on. That cost must be offset against what appears, at face value, to be a demand for an increase in the amount that the Government will put there for bereaved parents. The long-term continuity becomes really important.

The only other point I will make, which was made to me by a young lady doing work experience with me, is that these days not that many parents are married. The issues highlighted in Amendment 62ZB are therefore really pertinent to the way that youngsters live today. I can see that administratively, if the parents are not married, it can become more complicated for government, but I do not believe that that is beyond the scope of being worked out. It is important to realise that the person who the child has lost and needs support to grieve over may not be their biological parent.