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.