Healthcare (International Arrangements) Bill

Debate between Baroness Finlay of Llandaff and Baroness Thornton

Committee: 1st sitting (Hansard - continued): House of Lords
Tuesday 19th February 2019 Lords Chamber

[Baroness Finlay of Llandaff]

I should declare my interest as a past president of the BMA and a current BMA member, because I would like to refer to its brief on this. The BMA has indeed highlighted the potential problem, as the noble Baroness, Lady Brinton, set out, of having 27 reciprocal arrangements all containing different terms. This will inevitably put pressure on front-line NHS staff, who will be expected to be familiar with and administer these different arrangements.

There is an additional problem that the association has highlighted, however: if the 190,000 UK state pensioners who are signed up to the S1 scheme and living in the EU need to return to the UK to receive care, health services will face drastically increased demands and costs. The Nuffield Trust has calculated that if those individuals return to the UK for treatment, that could incur additional costs to health services of between £500 million and £1 billion per annum, and require an additional 900 hospital beds and 1,600 nurses to meet demand. That is quite apart from the additional medical and allied healthcare professional staff, and all the clerical and managerial staff. The potential pressure on services, which are already stretched to bursting point, cannot be ignored.

As the noble Baroness, Lady Brinton, said, the difficulty is in how the money is recouped, where it goes and who can use it, as well as in accounting for it. While we are talking about cost recovery, I shall pick up on general practitioners. It is difficult to know where that money goes and to whom it is reported. If it is the clinical commissioning group, would it be expected to bill the person, who may well have disappeared from the UK by the time any such processes go through? Receptionists are not familiar with billing. The complexity of administering a multiple arrangement scheme cannot be ignored.

My final question goes back to one I have raised previously about the devolved Administrations. Given that there are now different healthcare systems in the four countries of the UK, each administered and managed slightly differently, what discussions have the Government had to date about recouping costs both as they stand and in the event of a large influx of pensioners currently living and receiving treatment abroad?

[Baroness Thornton (Lab)]

My Lords, I knew that the noble Baroness, Lady Brinton, would make a very thorough job of moving this amendment, so I was not just being lazy but was making sure that the Committee got the best person to introduce it. The noble Baroness mentioned the BMA’s brief, to which I shall refer. While the amendment refers to NHS trusts, any funding incurred by primary care providers in administration of the new healthcare arrangements should also be met. As a member of a CCG, I think that probably means CCGs. That is quite important.

Healthcare (International Arrangements) Bill

Debate between Baroness Finlay of Llandaff and Baroness Thornton

Committee: 1st sitting (Hansard): House of Lords
Tuesday 19th February 2019 Lords Chamber

[Baroness Thornton]

My Lords, I shall briefly reply to the remarks of the noble Baroness, Lady Jolly. I think the noble Lord, Lord Lansley, asked some very good questions and I looking forward to hearing the answers. These are genuine probing amendments to seek reassurance and understanding about the Bill. My noble friend Lord Foulkes and the noble Earl, Lord Dundee, spoke very well, so I do not intend to repeat their remarks.

I think I need to declare an interest as I have quite a large family in Cavan just the other side of the border in the Republic. They have asked me what I think is going to happen—not that I know the answer—and I imagine they are not alone among citizens of the Republic of Ireland and Northern Ireland in asking those questions because, as the noble Baroness, Lady Jolly, said, there is enormous cross-border traffic. We had a very useful briefing from the BMA, which firmly believes that continued access to medical care in Northern Ireland and the Republic of Ireland is very important. Cross-border arrangements have been established. They provide high-quality care for patients in a range of areas which the noble Baroness, Lady Jolly, mentioned, and it is important that those services are not destabilised during or after the Brexit process. We are seeking reassurance about some very practical issues regarding the treatment of children and other people in the Republic and in Northern Ireland.

[Baroness Finlay of Llandaff]

My Lords, I support the amendments in this group. They go to the very heart of the human aspect of healthcare provision. If you have a sick child who needs to go to a cardiology clinic, you may well have other children, and you need to be able to look after all of them as well as focusing on the one who is sick. Anything that endangers the services that have taken years to set up and which are known to be working well will have a major downstream effect not only on individual patients but on all others in the family when you have cross-border flow.

When we talk about people who are already ill travelling, quite often they are going to major family events or reunions. They are not going just for the sake of having a nice holiday. To deny them the ability to travel because the cost of insurance is prohibitive or because they will not have reciprocal cover could have quite severe downstream effects on the mental health and psychological welfare of some of the people who have been affected by it. While these are probing amendments, they go to the heart of why we need to have things in place.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Baroness Thornton

3rd reading (Hansard): House of Lords
Tuesday 11th December 2018 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I will very briefly add my thanks to the Minister, the noble Baroness, Lady Stedman-Scott, and the Bill team, for listening. I also thank everyone from outside who brought their own experience, either individually or as part of a professional group, a voluntary sector group or the care home sector. I thank personally those in the Welsh Government who arranged meetings for me and also brought expertise, coming from a different health service framework. That was important because this legislation must apply across England and Wales. So I add my thanks to others.

[Baroness Thornton]

My Lords, I hope this is the final remark. This is indeed the place where, as the noble Baroness, Lady Murphy, said, we all say how wonderful we are; and I think we probably are. The Minister has set the homework that the Commons needs to undertake to get this Bill into even better shape; it needs to consider length of renewal periods, the interface with Simon Wessely’s review, the role of IMCAs, remaining conflicts of interest, impact assessments and implementation, and indeed, the issue of the definition of deprivation of liberty, which the Minister has undertaken to tackle. It also needs to discuss money, budgets and so on, as we have not done so during the passage of the Bill.

I have a few thanks to add to those of other noble Lords. First, I thank the organisations that have given us so much support during the passage of the Bill. If noble Lords cast their minds back to the summer, we were thrown into this Bill at very short notice, as were those organisations. I thank Mencap, VoiceAbility, Mind, the National Autistic Society, the Alzheimer’s Society and the Relatives and Residents Association. I must also mention Lucy Series at Cardiff University, who provided some fantastic briefing.

I thank colleagues from across the House who put things on hold over the last few months to respond to the challenge of this Bill. Indeed, the noble Baroness, Lady Jolly, and I were exchanging emails while we were on holiday at the end of the summer. I thank the Minister and the Bill team for their work. I thank the Minister for listening and for always being available. If I am honest, I think that members of the Bill team might have been on a bit of a learning curve about how to deal with legislation in the Lords, but they eventually seemed to get it. We are much nicer here when it comes to dealing with Bills—but Bills are hard work for everybody involved. Finally, I thank my own team. In the Chamber I thank my noble friends Lord Hunt, Lord Touhig and Lady Wheeler, as well as my noble friend Lord Cashman for his support in the early days. Outside the Chamber I thank Molly Critchley and Bernadette Daly, who have been absolutely brilliant. We will meet our Commons team tomorrow to talk about what we think they need to do.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Baroness Thornton

Report: 2nd sitting (Hansard): House of Lords
Tuesday 27th November 2018 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I declare an interest. Some years ago I was involved in helping the police prosecute people who were responsible for care but who were delivering terrible abuse in what was then termed an EMI home. A care assistant, encouraged and supported by her friend who worked on the domestic side, thought, “This wouldn’t be good enough for one of my relatives”. As we explored the cases, families in their statements commented on all they had noticed but said they did not feel able to raise concerns, let alone complain. They feared that their relative in the home would be victimised if they said anything or raised any questions. It was case records that revealed repetitive patterns of entry that gave the clues to support the statements that relatives gave to the police and provided evidence against those abusing these people, which led to a successful prosecution. The Minister has already said that the triggers for an AMCP review will be expanded. We look forward to working with him and officials on this. That should cover Amendment 76 when there is a dispute. Amendment 74 has, of course, fallen through pre-emption.

I shall focus on Amendment 76A, because it supports the whistleblower and ensures an independent review. Without that, we will fail those who need protection and leave whistleblowers with no option other than to stay silent and say nothing—or, if they can pluck up the courage, go to the CQC or the police, with all the disruption, expense and risk of losing their job that that involves. It would also mean a delay in alerting when things are not as they should be. The other amendments in this group concern other ways of triggering a professional expert review. I know that we have legislation designed to protect whistleblowers, but for domestics—cleaning and kitchen staff—and care assistants, who are often those who spend most face-to-face time with people, who need the job and may not be able to find alternative employment where they live, it takes enormous courage to say that things are not right. Sadly, it is more courage than many people can pluck up.

A Guardian report, published on Friday, cites examples of “terrible indignity and neglect” in for-profit care homes across the country. Whistleblowers have risked their jobs and livelihoods to report cases of,

“inappropriate and disproportionate use of physical restraint”,

on residents with autism, and carers failing to manage medicine safely. In this article, Eileen Chubb, founder of Compassion in Care—a charity that campaigns on behalf of whistleblowers for better levels of care—was quoted as saying:

“We have seen first hand the appalling consequences of poor care … company after company making millions whilst on the frontline vulnerable people are left without the basics to sustain life”.


Carers who break the silence surrounding abuse, such as the whistleblowers at the home cited, deserve protection.

Even if a care home is a good home and receives a good rating from a CQC inspection, relatives may visit only intermittently and may not be aware that the care that they think is being given to their relative just is not happening for them. They will not be aware of the minute-to-minute, hour-to-hour aspect of a person’s care. It is the staff there for hours on end who can benchmark that care. They may realise that the person has become increasingly withdrawn and increasingly less communicative, and perhaps cries at night and seems very unhappy. The staff must confidently be able to ask for a review without prejudice.

This amendment will play an important role in giving protection both for residents and for those who call for a review. It calls for a review because it is far less threatening for somebody who has a concern to be able to ask for an independent review from an AMCP who can come in and assess what is going on—they do not feel that they need the body of evidence to make an accusation of malpractice. That is why this should be in the Bill, even if all the other ways of triggering a review are consigned to the code of practice. I feel quite strongly that when staff feel that something is not right and want to say so but their seniors are not recognising it, they must have the ability to protect the cared-for person, because the cared-for person is so vulnerable. I beg to move.

[Baroness Thornton]

My Lords, right from the beginning of this Bill—at Second Reading and in Committee—concerns have been expressed across the House about how the interests of the cared-for person can be ensured through the process of using the AMCP when that person is at their most vulnerable and may not be articulate at all. The noble Baroness, Lady Finlay, articulated exactly what we are saying. Amendment 76A, in my name and those of the noble Baroness, Lady Barker, and the right reverend Prelate the Bishop of Oxford, is an essential fail-safe that we believe needs to be in the Bill.

Like the Minister, we have sought across the House to prioritise the issues that we thought were most important for the cared-for person. I think we have come through rather well in improving this Bill together, and mostly without having to resort to Divisions. I hope that the Minister will accept Amendment 76A, because it is certainly in line with the aspirations that he has expressed to the House about safeguarding the cared-for person. If he is not prepared to do that, certainly on these Benches we hope that the noble Baroness, Lady Finlay, will seek the opinion and support of the House, because it is certainly there.

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[Baroness Finlay of Llandaff]

I am most grateful to the Minister for realising the seriousness of this issue and that our current whistleblowing policies are inadequate. I do not share his concern about vexatious reporting because if you got such reporting from a staff member, it would be pretty obvious pretty quickly. The review would have happened and if one person is better protected, it is far safer than many people being inadequately protected. I accept that my drafting—I am grateful to the Public Bill Office—may not be perfect and because the Minister will come back to this at Third Reading, we will have a meeting and then be able to bring back an amendment.

[Baroness Thornton]

May I seek clarification from the Minister? He said that he would come back to Amendment 76A. Is this about Amendment 76 or Amendment 76A?

[Lord O'Shaughnessy]

It is Amendment 76A.

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[Baroness Finlay of Llandaff]

My Lords, I support the amendment. I would like to put an illustrative example before the House, although I know this is Report so I will be very brief. I heard recently about someone who had sustained a head injury, living in a place where he received care, who got very aggressive whenever people suggested that he should attend to his own personal hygiene or tidy up. Any type of reasoning or persuasion completely failed. The solution was not to restrict what he did at all but rather just to walk in, put a vacuum cleaner in the room and go out again. He seemed to then go into an automatic mode of vacuuming, cleaning up, tidying up and then washing, and everything was sorted, including his personal hygiene.

I mention that because it is important for us to realise, when we are thinking of restrictive options, that sometimes you need to be imaginative to find the least restrictive option for people. Letting people out a certain amount can be far more effective than being so risk-averse that you limit what they can do.

[Baroness Thornton]

Yet again, the noble Baroness, Lady Finlay, brings us a helpful example. I put my name to the amendment and we support it. It is part of a suite of amendments about keeping the cared-for person as far as possible empowered to make their own decisions, which must be intrinsic to the Bill. The amendment would ensure that the least restrictive method is always used.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Baroness Thornton

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

[Baroness Finlay of Llandaff (CB)]

My Lords, I should like to comment on these amendments. Before I do that, I thank the Minister on behalf of everyone for listening, as well as for his willingness to meet Peers and to move on the things that had caused enormous concern to many of us.

I have a couple of concerns regarding these amendments. I commend the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for trying to get us back to a definition. I completely agree that if we do not have a definition, the matter will go to court and we will end up back in a circle that we do not want to be in. The problem I see is the non-negligible period, which will be really difficult to define. If somebody is in a confined space for even 10 minutes or a quarter of an hour, that could be absolutely terrifying for them and completely unjustifiable. We have a difficulty in trying to use time as a measure, but I understand why it is there as well.

In his amendment, the noble and learned Lord, Lord Woolf, certainly includes the principle of consent, which means that there should be information that the person has capacity and that their care and treatment are voluntary. I was a little worried, however, that his proposed new paragraph 2(1B)(d) in the amendment, which would require two clinicians to confirm in writing, rather ran counter to the principles set out in Part 1 of the Mental Capacity Act itself, Section 1(2) of which states:

“A person must be assumed to have capacity unless it is established that he lacks capacity”.


It almost turns itself on its head if you must have somebody to verify that they have capacity.

I note that in his letter to us, the Minister stressed the importance of supporting liberty as much as possible and valid consent wherever possible. Would the Minister be prepared to say that we can work on this between now and Third Reading? If we can reach a definition that seems right by then, we will have done the whole community a great service.

[Baroness Thornton]

My Lords, I thank the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for bringing forward the amendments. I can see that the Government have a decision to make about which way to go on them.

Listening to the Joint Committee on Human Rights is always a good idea. We discussed a statutory definition during the previous stage of the Bill, when the Minister repeated that he,

“should like to take some time between now and Report to consider the opinion expressed by noble Lords and in the report of the Joint Committee about the benefits of a statutory definition”.—[Official Report, 5/9/18; col. 1849.]

I understand why the noble Baroness, Lady Finlay, is thanking the Minister already but it may be slightly premature. I know what she means, but let us wait until the end of the next day and a half. It is important that the Minister shares with us now where that thinking has led him.

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[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.

[Baroness Thornton]

My Lords, I shall speak to my amendment, which is in this group. The noble Baroness, Lady Finlay, said that the Government need to opt for something here to solve this problem. Mencap, in particular, and VoiceAbility have been very exercised by this because, as noble Lords have said, there is a conflict of interest when an independent hospital can be responsible for authorising deprivation of liberty for people in the hospital for the purposes of assessment and treatment of a mental disorder. My amendment names the CCG or local health board as the responsible body to remove that conflict of interest.

Since the Winterbourne View learning disability abuse scandal in 2011, the Government have been trying to reduce the number of people in these settings but, it must be said, largely without success. There remain 2,350 people with a learning disability and/or autism in these settings who in many cases could, with the right support, be in the community, but half of them are in independent hospitals. The independent hospital sector is expanding—to the horror, it must be said, of very many people. The average cost of a placement in an assessment and treatment unit for people with a learning disability is £3,500 a week. It can be as high as £13,000 a week. The average stay is of five and a half years. This is really not acceptable. Many noble Lords may have seen the excellent piece by Ian Birrell in the Mail on Sunday—not a newspaper I would normally read—which looked at the companies and the significant profits they make from these very lucrative contracts. The article details two giant US healthcare companies, a global private equity group and a Guernsey-based hedge fund, as well as two British firms and a major charity. The point is that these bodies are responsible for deprivation of liberty, and that can neither be acceptable, nor indeed what the Government intended. The Minister needs to provide us with some solution to this problem.

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[Baroness Finlay of Llandaff]

I endorse the comments of the noble Baroness, Lady Barker, in moving this amendment. One of the reasons that it should be in the Bill is that we have been trying to have the cared-for person at the heart of our deliberations, and the wording here is completely compatible with other parts of the Mental Capacity Act.

There is a terrible tendency when people look at the least restrictive option to also think about what might be convenient for them. The least restrictive option might not be the easiest, and might mean that staff have to behave in quite a different way. By wording these two amendments in this way, we are looking at the risk of harm to the person specifically, and are keeping the person at the heart of this. There always will be a risk that decisions will be contested in court and will need to go to court, and an application to the court may be judged specifically against that test, because it is in the Bill. If it is in the code of practice, there is a real danger that it could be downgraded.

[Baroness Thornton]

I put my name to this amendment, and we on these Benches very much support the intention behind the amendments in this group.

I bow to the fact that the noble Baroness, Lady Barker, has lived and worked with this for a very long time indeed, has reviewed the Mental Capacity Act and was very influential in the way it was formed. There has been a lot of discussion with stakeholders about this group of amendments and how we can best express “necessary and proportionate” in a way that will strengthen the Bill and prevent harm to the cared-for person. These amendments do that, providing clarity. Again, as I mentioned in the previous debates, because this is to do with protection and powers, it has to be in the Bill and not the code of practice. I hope that the Minister will agree to the amendments, because it is probably the best way forward, and that he will end this discussion in harmony and agreement.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Baroness Thornton

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Baroness Thornton]

The amendment would reduce the maximum time for which an individual can be held in detention without renewal from three years back to 12 months. The Bill would allow responsible bodies to renew an authorisation of deprivation of liberty in some cases for up to three years, while simultaneously reducing the safeguards that a renewal process would require. The amendment would shorten that three-year period to a maximum of 12 months.

Why is that important? Tripling the potential length of an authorisation period to three years creates a stark difference between the Mental Capacity Act and the Mental Health Act, apart from anything else, and moves away from best practice in other countries. Paired with the new LPS renewal process, which weakens safeguards designed to prevent lengthy detentions, a three-year authorisation will be likely to face legal challenge.

At its core, the new LPS system is intended to safeguard vulnerable people who have been deprived of their liberty on mental capacity grounds. The possibility of a three-year period of detention with limited safeguards gets the balance wrong between safeguarding vulnerable individuals and the desire to reduce the bureaucracy of the system.

Strasbourg case law confirms that a lawful deprivation of liberty for the purposes of Article 5(1)(e) of the ECHR must include both “limits in terms of time” and “continuing clinical assessment of the persistence of a disorder warranting detention”. Therefore, in order to comply with Article 5, any system must contain, first, a provision for the termination of the authorisation after the maximum time has expired and, secondly, an ability to terminate an authorisation before the time limit has expired if the deprivation of liberty is no longer necessary.

A three-year renewal limit is likely to pose problems for responsible bodies, especially in cases concerning conditions such as learning disabilities, acquired brain injuries and other non-degenerative mental impairments. The courts are likely to intervene to interpret those paragraphs concerning renewals—paragraphs 27(a)(ii), 28(b)(ii) and 29(1)(b)—as narrowly as possible. Capacity assessments are time specific, and a three year-old capacity assessment cannot be relied on as accurate evidence for detention. Therefore, we propose to reduce the three years to 12 months.

It is notable that a 2017 paper comparing mental health legislation in five different jurisdictions—Canada, Australia, Scotland, the Republic of Ireland and England and Wales—states that renewal orders vary in different jurisdictions,

“with the time periods for subsequent orders being longer in duration up to a maximum of 12 months, except in Ontario (3 months) and Victoria (6 months)”.

The Law Commission states that a three-year period should be considered only in the context of robust safeguards and constant review. Given the weakening of the safeguards throughout the rest of the Bill, it would be inappropriate to triple the length of time for which an authorisation can last.

In his opening remarks on the Bill, the Minister stated:

“It is essential that the system afford the necessary protections for the most vulnerable people”.—[Official Report, 16/7/18; col. 1061.]

The Bill as currently drafted would in this respect not deliver that protection. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, I have three amendments in the group designed to remove any ambiguity about authorisations, in that an authorisation would fall if it partly fell—in other words, if the person’s condition had either improved or changed to such an extent that the plan in place was no longer applicable, even in part, that would warrant a complete review. I accept that it would have to be a light-touch revision, because some things might not have changed, but I am not comfortable with simply allowing it to be reviewed and people to say that these parts of the condition no longer apply.

Amendment 58C is to stress the need for evidence to be supplied to support statements. I hope that the Minister will be able to provide me with some assurance. That evidence might come from photographs, video recordings of behaviour or whatever. That may be quite different to the written word. I worry that one person’s observed written word may not adequately portray a picture, particularly where the cared-for person has become withdrawn. Someone might interpret that as their being compliant, when actually they may be deeply unhappy. A broader direct recording of the person could be helpful.

I tabled Amendment 62A because I was concerned that the care home manager might be in the process of arranging for adaptations to be made to meet the cared-for person’s needs in line with that person’s wishes and feelings, and that the Bill’s wording does not provide enough flexibility to consider the arrangements to meet the individual’s needs.

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[Baroness Thornton]

Amendment 83 concerns the power of attorney and restrictions on it. This amendment comes from Clause 3 of the Law Commission’s draft Bill. I said right from the outset that in Committee we would test the Bill against those issues that the Law Commission had decided to put into the draft Bill and ask why they had been dropped. Many of them are absolutely at the heart of the safeguards that are necessary for vulnerable and cared-for people. The amendment would insert a new section into the Mental Capacity Act, which expressly prevents,

“a donee of a lasting power of attorney or a deputy”,

appointed by the Court of Protection from consenting on a person’s behalf,

“to arrangements which give rise to a deprivation of … liberty”.

This is the position in the current law but this statement makes it explicit. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, I have three amendments in this group, which are there simply because the topic is lasting power of attorney. I do not have an argument with Amendment 83 at all. It is absolutely right that the person’s best interests must be considered and that someone cannot just give consent on their behalf.

The amendments that I have tabled are designed to solve three current problems that we have with lasting powers of attorney. The first, Amendment 83ZA, relates to the identity documentation that somebody must produce to show that they are the donee of a lasting power of attorney. These are bulky papers which have to be registered and stamped by the Office of the Public Guardian, and then produced. For many people who are donees, those papers may be at their home; that may be a long way away from wherever the cared-for person—the donor—is. When that donor has lost capacity, the donee can either carry the sheaf of papers around with them all the time or just hope to be going via their home filing cabinet to pick them up before they go to see the person.

I hope that we might move toward something a bit more modern in electronic identification—something like the driving licence, which is a small card on which you can have a registration number. You could also have a picture of the donor as well as one of the donee, which would allow a second layer of recognition. That would also, I hope, focus the mind on the fact that the donor must be at the centre of all the decision-making. Its validity could easily be checked against a number, so that if it had been updated—and for some reason the previous form had not been returned—a simple check with the Office of the Public Guardian might verify its status.

Amendment 87G is designed to solve another problem that has been arising: that a person may appoint several people to hold their lasting power of attorney in the event that they lose capacity. However, as time goes on it has happened that they lose confidence in one of those people, for whatever reason. Maybe there is a dispute in the family or they feel that the person is no longer able to take a decision in their best interest, for whatever reason, and they want to revoke having that person as a donee. The problem is that it is quite a complicated process and they have to go back to square one. This amendment is designed to make it much easier for them to state that they no longer want one person listed but they want the others to remain. I have discussed this with the Public Guardian, who sees it as a problem at the moment that the revocation of a donee is difficult.

Amendment 87E arises out of a problem which is also beginning to occur. I should declare an interest here because it is a problem that is close to my heart: a member of my family has severely impaired capacity and her spouse, who is the only person who can act on her behalf, is becoming older. There is concern about what happens if he cannot act on her behalf and take decisions. At the moment, it is only when the donee loses capacity that others can go to the Court of Protection for a court-appointed deputy. The aim of this amendment is to allow the donee to make some provision so that, in the event of their losing capacity—either temporarily if they have a fall with a fracture, a head injury or have pneumonia, or permanently so they become frail and possibly demented—they can make provision ahead of time in the cold light of day. The alternative is the family, with one family member who lacks capacity and the person who was taking care of their affairs now acutely ill and in crisis, having to go to the Court of Protection to get a court-appointed deputy, which can take some time.

I have discussed this with the Court of Protection, which wants to be helpful in moving things forward, and with Alan Eccles, the Public Guardian, who is extremely sympathetic to the problem and can see that people who took out a lasting power of attorney, or prior to that an enduring power of attorney, and never expected to live as long as they have could now find that the donee is at greater risk of becoming frail than they anticipated. Donors are outliving their prognosis not just by months, but by years and possibly decades.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Baroness Thornton

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 15th October 2018 Lords Chamber

[Baroness Thornton]

My Lords—

[Baroness Finlay of Llandaff]

My Lords—

[Baroness Thornton]

You go ahead of me.

[Baroness Finlay of Llandaff]

I beg your pardon; I have an amendment in this group as well. Oh dear, I seem to have spattered them in every group.

I have a real concern that triggering a review that is based on whether or not the person is thought to be objecting is far too narrow, and that anyone who has concerns about that person should be able to trigger a review independently—whether that is family, friends or somebody working in the place where the cared-for person is supposed to be being cared for.

I have an interest, or at least an experience, to declare: some years ago I was asked to help the police look at a care home where they had serious and justified concerns. The alert had come from somebody working at an extremely junior grade within the care home, not from anybody senior or from a professional. Following that, I was asked to review the case notes in detail. The people concerned all had severely impaired capacity and, often, an inability to express themselves—but, by meticulously looking at the case notes, one could see trends, and when I mapped them against the staff off-duty rota the trends became clearer.

I am very concerned that, if we leave this just as it is written, we will not allow the very people who have contact, possibly on a day-to-day basis, to put up a red flag about what may be happening in one person’s life. It may be that nine out of 10 people in an institution are very happy, but if one of them is not and one member of staff has got to know them and sees subtle changes in their behaviour, that member of staff must be empowered, with the cover of anonymity, to trigger an independent review, because that may be the only way to protect the cared-for person.

I put in my amendment that a review should be triggered if,

“the rationale … is based on the risk to others”.

The concept of “risk to others” is quite difficult to justify being in this Bill rather than in the Mental Health Act as the sole rationale for using the Bill, so I think that it becomes an exceptional circumstance that warrants that type of review. Similarly, if the restrictions are on contact with named persons, I worry that there could be a bias from the staff towards the named person. When somebody is very upset, they may appear to be an aggressive or angry visiting relative and may be a bit more difficult to handle—but actually it may be that that is simply the way that they are expressing their anxiety and their emotions towards the person who is now deteriorating and want to do their best for them. I worry about excluding a close relative without great justification; it should not be undertaken lightly.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Baroness Thornton

Monday 15th October 2018 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, three amendments in this very important group are in my name. I fully support the stress being placed on the need to see whether, with additional help and support, the cared-for person could make their own decision. It is always better if they can take their own decision over any aspects of their care that need to be in place. For example, providing support to young people with learning difficulties or people with an expressive disorder may require special skills, time and patience to support them to make their own decision. However, the Mental Capacity Act is clear that every effort must be made to support people.

It is also right that the way in which support is provided, as well as the evidence for why such support may have failed, should be recorded—as in Amendment 23, which I strongly support. Decisions should be based on evidence as much as possible, not on the personal opinion of the assessor, although there will always be a degree of interpretation of evidence. For people in community and supported living settings, this will be important to stress as they may agree with and consent to certain aspects of the care plan but not understand others—so it is not an all-or-nothing. However, even if the person does not appear to understand, everything must be explained as fully and clearly as possible. It will be important for any such evidence submitted to support the deprivation of liberty to come from the professional responsible for the care plan, whoever that is.

We have already debated the role of the care home manager. For consistency, I have removed the care home manager from this part of the Bill. I should apologise to care home managers for my use of “secretary” in relation to their role, which could be misinterpreted. I did not mean to cause offence; I just wanted to make sure that we recognise that the care manager and the care home manager are often different people.

In response to the amendment tabled by the noble Baroness, Lady Jolly, I would advise caution. In some situations, a specialist clinical psychologist may be better than a medical practitioner at undertaking the assessment. I would hate for us to end up with the view that the doctor would always be the best person to do the assessment because I do not think that they always would be; there may well be others.

I welcome the addition of speech and language therapists. They have a great deal to offer to people with expressive disorders and can often establish communication when other people think that the cared-for person lacks capacity but in fact they simply cannot express themselves.

[Baroness Thornton]

Yesterday or on Friday—whenever it was—we received a very helpful briefing from the Royal College of Psychiatrists. I found what it had to say on Amendment 22 very useful:

“The Royal College of Psychiatrists believes that only a ‘Registered Medical Practitioner’ should be able to determine whether an individual has a ‘disorder or disability of the mind’ … Currently the authorisation arrangements in Part 2 of the Bill say that a capacity and medical assessment has to be made, but does not say who has to make it. It is likely that the Government is assuming that this would be carried out by a ‘Registered Medical Practitioner’ but it would be helpful to have it on the face of the Bill.


The JCHR report was clear that in order to comply with human rights law, any deprivation of liberty under Article 5(l)(e) requires ‘objective medical evidence of a true mental disorder of a kind or degree warranting compulsory confinement, which persists throughout the period of detention’.


Given this requirement for ‘objective medical evidence’, there needs to be a guarantee in the Bill that only a Registered Medical Practitioner with appropriate training has the power to determine whether someone has an ‘unsound mind’ or ‘mental disorder’”.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My Lords, unless training becomes mandatory on some level, the problem is that we will always train those who are willing to be trained while not reaching those who perhaps need to be trained more. If we could make training a little bit like fire training or manual handling, with very short bursts of realistic training, it might be much more effective. Over the years I have seen very costly, ineffective training and very low-cost extremely effective training. Often the most effective training includes a realistic assessment because assessment drives learning. I strongly support the comments made by my noble friend Lady Hollins because case-based training involving the people themselves has a huge emotional impact and therefore embeds change in the behaviours and attitudes to the person on the receiving end. On a slightly optimistic note, I am rather hoping that within Wales, we might manage to get an agreement that all doctors at every grade need at least a minimum awareness of the Mental Capacity Act and that we might then be able to build on that. I keep my fingers crossed.

The other point that we have to be careful of when we talk about training is that this is not about broadcasting information that might sound quite legalistic and frightening. One of the most important skills is listening, and listening skills have often failed in these cases, such as the ones referred to already in which the relatives were not listened to early on. They were not believed early on, the cared-for people were not adequately listened to and things spiralled down. Some of that lack of listening is just a result of poor communication skills training. I am not sure that we have to be overspecialised, but we need to raise the skills of everybody across the board. It needs to be embedded in revalidation—you might train somebody now, but in five years’ time there will be drift. The training, therefore—particularly if people are being trained to take on specific responsibilities—needs to be refreshed over time to ensure that it remains authentic.

[Baroness Thornton]

My Lords, this has been a very useful and essential discussion about training. The noble Baroness, Lady Hollins, is quite right that there needs to be a strategy. I am concerned that there does not seem to be a strategy, so can the Minister tell us what consultation there has been about how this training—even the minimal familiarisation—would be achieved? Even the Minister accepts that that is clearly not going to be acceptable.

In terms of the stakeholders, the MHA—a charity providing care, accommodation and support for older people throughout the UK—heard from a care home manager in Hereford, who said, “As home managers without a mental health nursing background, it would be impossible to expect a home manager to undertake these assessments, as with the continuing health assessments, which we are deemed unable to complete as we are not healthcare professionals”. Well, quite.

Age UK says that at present there are no fewer than six assessments for a DoLS application. In order for care home managers to be able to conduct these assessments—or indeed be party to them, if only to act as secretaries, as outlined by the noble Baroness, Lady Finlay—they are going to need the requisite training.

The LGA point out that the Government should recognise the problems caused by these additional responsibilities and the financial pressures—as mentioned by my noble friend Lord Hunt—put on care homes by the provisions in the Bill, especially when the sector is already facing significant challenges in terms of both resources and workforce recruitment and retention.

Voiceability expressed its concerns about the new requirements on care home managers. It is concerned that this transfer of responsibility sets up potential conflicts of interest, which we have already discussed. Mencap says that there has to be significant consultation with the care sector about the implications of the new requirements on care home managers.

I am just wondering how we have got to this point in the Bill without that consultation having already taken place. We need to play catch-up because this is such an important area: not only are there funding implications, but we should not be expecting people who do not have appropriate skills to be carrying these responsibilities.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Baroness Thornton

Committee: 2nd sitting (Hansard): House of Lords
Monday 15th October 2018 Lords Chamber

[Baroness Thornton]

I hate to interrupt the Minister, but I think he might be answering the next group of amendments. I am not sure—perhaps he is answering both groups together—but it feels as though he is answering a speech I have not yet made.

[Baroness Finlay of Llandaff]

I would like to intervene for a moment as I think this has been a valuable debate, even though short. I shall pick up on the point made by the noble Baroness, Lady Barker, on conditions, which are incredibly important. She cited one example, and I return to the musician to whom I referred earlier. Most professional musicians will feel that their instrument is an integral part of their own personality. If they lose speech, they will communicate through their instrument, especially their mood—their feelings, responses and so on—so it is a terrible deprivation of liberty to separate a musician from their instrument.

If the musician plays a trumpet or another loud instrument and they are in a care home, it will be important to find somewhere they can go to play their instrument without disturbing everybody else. It sounds humorous but it is incredibly important to people. I was struck when I visited a care home some time ago and saw a man playing a piano. I thought he was a volunteer brought in to play—beautifully—to people. When he finished playing, I started to engage in conversation with him and it became clear that, while his recall for the symphony he had been playing from memory was superb, he could recall or discuss remarkably little else from which I could gain a modicum of sense. As a result, we had a bizarre conversation, other than about the symphony.

Conditions are absolutely essential. My hope would be that, in the code of practice, we require conditions to be put into the care plan that must be enacted on a daily basis. This should not be just a set of recommendations that could be ignored. My concern is that we link care planning to the delivery of care; that is extremely important.

I was grateful also for the support—albeit somewhat tentative—from the noble Baroness, Lady Tyler. I draw a distinction between the care manager and the care home manager. The care manager should be the person overseeing the direction of care planning; they could be the district nurse for somebody at home, or whoever runs the supported living environment on a day-to-day basis and looks at alterations in the care plan.

In a large care home, the care home manager often manages the building and the staff. They make sure that regulations are maintained and that the lifts work, dealing with all the things that happen on a day-to-day basis, but can have remarkably little contact with individuals. I do not want to sound disrespectful to care home managers when I say that I would envisage their co-ordinating role as much more like that of an administrative secretary, rather than as somebody who gets information directly from the person or the family. However, I would want them to make sure that the family had been consulted, that all the people who cared about the person had been spoken to and that that information was properly documented, with a package being put together for the local authority to inspect. I believe that the local authority will know which care homes on their patch are working well and which need an eye to be kept on them. I think I have half given my response to the Minister’s response.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Baroness Thornton

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

[Baroness Finlay of Llandaff]

My Lords, I have an amendment in this group that does not sit terribly well with the first two—but so be it. I will be brief. These attempts to define a deprivation of liberty are nobly submitted, but I worry about potential unintended consequences from the wording. I will not go through them in detail, but I hope that the Minister will assure us that this is something we can take away and look at. One difficulty is that one person’s imprisonment—a deprivation of liberty—might not be a deprivation of liberty to another, so this may be very personal in some aspects.

On Amendment 81 in relation to a “vital act”, I hope that the noble Baroness, Lady Murphy, will take reassurance from me—I do not know whether the Minister will agree with this or not—that anything done must be in a person’s best interest. Part of that is that it is a benefit and not a burden—or it may be a burden, but the benefits outweigh the burden. That has to be a fundamental principle in clinical decision-making.

The reason I tabled Amendment 82, which relates to an urgent authorisation, is that, looking through, I was concerned about unintended consequences from the way the legislation was written. I could see two, possibly—but they may be misplaced anxieties. First, in a true emergency situation, as a consultant in emergency medicine said to me, you just get on and do what you have to do. You do not go and look at paperwork. So, in an emergency situation, you may have to restrict somebody’s liberty to do what you have to do, which is in their best interest. You do not do something that is not in their best interest—and the last thing we want to do is impose any more bureaucracy or paperwork.

So I suggest that, possibly in the code of practice and not in the Bill, it should be clear that an urgent authorisation is an authorisation to begin longer-term care, but in an acute situation, in a clinical decision, nobody would expect people to even begin this process until we get to about 48 hours. I say that because a clinical decisions unit will normally have people staying in it for under 24 hours, as they may even on an acute medical ward, before being moved to a longer-term in-patient unit where their longer-term care may be assessed. Of course, we have people who have a transiently impaired capacity because of illness and the treatment of that will restore their capacity, such as the diabetic whose diabetes is out of control through either hyperglycaemia or hypoglycaemia, and things such as hypocalcaemia as well. None of those should be included.

The concern at the other end was that an urgent authorisation could be used for example to take a confused person with advanced dementia where care at home had completely collapsed. Possibly their main carer at home had suddenly been admitted to hospital. They would then have to be moved into a nursing home placement at great speed, but that may not be what they want and they cannot consent to it. They would have to be moved to that place, be in a placement and be assessed there. There needs to be some time limit so that this cannot linger on for months or years, with somebody saying, “Oh, well, they are here under an urgent authorisation”, rather than a longer-term authorisation. That is why I tabled the amendment. I accept that it is not perfect, but I hope it is something we can look at. It may be that the code of practice can clarify those issues.

[Baroness Thornton]

I have added my name to the amendment tabled by the noble Baroness, Lady Jolly, precisely because I thought we needed to have this discussion. That was exactly right. I would hate to choose between the two amendments, but this sets out when deprivation of liberty occurs:

“Arrangements that give rise to a deprivation of … liberty”,


are when the cared-for person is placed,

“under continuous supervision and control”,

they are “not free to leave” and the responsible body believes that it is in the cared-for person’s “best interests”. That is worth putting on the face of the Bill if at all possible.

The Joint Committee on Human Rights made a strong argument in favour of a statutory definition. I read its report and it seems absolutely right that that is what we should do. I would be interested to hear what one of the lawyers in our midst might have to say about this: whether they think that it would be a useful thing to do and whether the stabs we have made at it so far are helpful. We are interested in this discussion but we realise that this is the beginning of the discussion rather than something that may be appropriate right now.

When listening to the noble Baroness, Lady Finlay, talking about her amendment, it occurred to me that this is one of those occasions when technology is important. When you have an emergency admission, you need to be able to input the name of the person into a PalmPilot, which will tell you whether a DoLS is already in place and whether a do not resuscitate order has been made. Recently I have had experience of exactly this situation with a family member. Because the information was not readily available in an emergency, we ended up where we did not want to be. I just add that to the debate because I know that the Minister and his boss are very interested in technology and its uses in the health service. This is another of those occasions where it might be useful.