Healthcare (International Arrangements) Bill

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

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

[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.

[Lord O’Shaughnessy]

I shall follow the theme expounded by the noble Baroness, Lady Finlay, and talk about Northern Ireland and the Republic of Ireland. It will come as no surprise to noble Lords that with a name such as mine I have family in Ireland, but more importantly, I had several meetings with Irish Health Ministers during my time as Minister and I want to provide insight and reassurance from those conversations. Noble Lords will understand that during those conversations we had to discuss difficult issues—more challenging topics, shall we say—within the Brexit realm, but there was absolute clarity in every meeting about the intended outcome being continued cross-border delivery and co-ordination of healthcare. That could be done under the aegis of the common travel area and the Belfast agreement and there was no reason for the fact of the United Kingdom leaving the European Union to interrupt that. Clearly that needed to be established as well as the legal processes and basis, but that was deep, long-standing and productive work.

I wonder whether the Minister can update the Committee to give a flavour of where we have got to; it is not just about the Republic and the north, as people from the Republic of Ireland use tertiary healthcare services in the UK. This is an incredibly deep and long-standing relationship with huge benefits, and I am sure that the Minister will be able to confirm that we are at the right point in those discussions to provide reassurance. I can tell her that it has always been the intention of the UK Government, and it was clearly the intention of the Irish Government, to achieve that.

Perhaps I may reflect briefly on the amendments in the name of my noble friend Lord Lansley, which in a sense are about clarifying who benefits. I absolutely agree that that is necessary, and I am sure that the Minister will be able to respond.

I shall risk partially agreeing with the noble Lord, Lord Foulkes, and my noble friend Lord Dundee in the sense that they make a very strong case for our agreement with the European Union incorporating pensioners and those with long-term conditions, as indeed is the case now. I do not think that that needs to be in the Bill, not least because their amendments include the word “preserves”. Of course, these are ongoing and dynamic relationships that will change over time; nevertheless, that is the Government’s objective.

The noble Lord, Lord Foulkes, made a very compelling case for the Bill having a global reach when he talked about those with long-term conditions being unable to travel outside the EU because the arrangements are not in place. I hope that that is a sign that there might be agreement across the aisle about how it is necessary to formulate these agreements so that when our people travel to Australia, New Zealand, Serbia, Gibraltar, Guernsey and other places, they are able to do so with the same kind of reassurance with which they are able to travel in Europe now.

Health: Pancreatic Cancer Treatment

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Wednesday 19th December 2018 Lords Chamber

[Lord O’Shaughnessy]

I agree with my noble friend and am grateful to her for raising this topic. The truth is that outcomes of pancreatic cancer are very poor, and have not improved, as she said. We are determined to change that through a number of routes. The Prime Minister has committed herself and the Government to improving early diagnosis of cancer, so that more cancers are caught earlier, which will be critical for those often caught at a late stage, such as pancreatic cancer. The faster diagnostic standard that I mentioned will help, as will a series of rapid diagnostic centres that have been rolled out around the country. I take the point that we need to do a lot more, and the NHS long-term plan gives us an opportunity to do that.

[Baroness Finlay of Llandaff (CB)]

Can the Minister inform the House how access to treatment will be rapid, given that many people with pancreatic cancer need highly specialised techniques, such as a celiac plexus block from integrated specialist services, but who are currently at the mercy of random commissioning by clinical commissioning groups, or even for the gaps to be filled by different charities? I declare an interest as a vice-president of Hospice UK and of Marie Curie.

[Lord O’Shaughnessy]

I am grateful to the noble Baroness for that question. Obviously, rapid diagnosis is important, but she is quite right that it needs to progress to treatment. The main way we are trying to address that issue is to increase the cancer workforce at every level—nurses, radiologists, endoscopists, oncological doctors, and others. Unless there are the staff to carry out those procedures, we will not get the outcomes that we want.

Health: Cancer

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Thursday 29th November 2018 Lords Chamber

[Lord O'Shaughnessy]

I do agree with that point, and indeed it was one of the policies announced by the Prime Minister in October. Of course we need to make more progress on early diagnosis. One-year survival rates have improved in the past 10 years but we still lag behind our continental neighbours, as we have done for decades. The noble Lord mentioned GP referrals, which have been in the news this week. The threshold for referrals from GPs to specialist cancer doctors has been reduced in line with the NICE guideline. The consequence has been that in the past seven years, the number of people referred to a specialist cancer doctor has increased by 1 million—that is, an increase of 115%. Therefore, we are seeing more referrals at an early stage. We are seeing many more appointments and of course those will feed through over time into our survival figures.

[Baroness Finlay of Llandaff (CB)]

My Lords, what is the Government’s estimate of the funding needed for better radiological equipment; to train radiographers to be able to report, given the shortage of radiologists; to develop AI, given that the diagnosis of malignant melanoma using AI has been shown to be as accurate as diagnosis by a dermatologist; and to invest in pathology services? Without quantifying the amount and making sure that NHS England and CCGs sign up to these things, I worry that our diagnostic facilities will never catch up with those of other countries.

[Lord O'Shaughnessy]

The noble Baroness pinpoints some really important issues that we need to deal with. The good news is that the number of radiographers has increased by 3,500 in the last eight years, but of course we need to do more and the cancer workforce plan includes plans to recruit more specialists. Greater investment in equipment is taking place, the Prime Minister has announced investment in specialist cancer centres, and the first proton beam therapy centres in this country have now opened. Finally, AI has extraordinary benefits. It is now able to diagnose some tumours better than most expert specialists. We have made some commitments in this area through the expansion of digital pathology and radiology, and we will be doing more.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

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

[Lord O’Shaughnessy]

On the noble Baroness’s first point, of course there is nothing to stop us setting out anything in the code of practice. The concern would be whether there would be a clash between what was set out in the Bill and what was set out in the code of practice or in Article 5. That is one of our concerns and it is for that and other reasons that unfortunately we are not able to support that amendment.

[Baroness Finlay of Llandaff]

Does the noble Lord agree that one of the differences here between Article 5 rights normally and this group of people is that these are people who lack capacity to make their own decision, which is why they are being deprived of their liberty? They are particularly vulnerable and unable to speak up for themselves and depend on others. Therefore, if we have something in the Bill—and it may be that the wording in Amendment 29 is not right—brought back by the Government at Third Reading, we would know that there is an explicit right to information to be given to people when they lack capacity, as well as giving it to people when you have done everything to confirm that they have capacity for it.

[Lord O’Shaughnessy]

I recognise the point that the noble Baroness is making. As I said, our belief is that the rights that currently exist, and are in no way amended or reduced as a result of the Bill, provide what she is asking for. Unfortunately, I am not able to give a commitment that we will be able to return to this issue at Third Reading.

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[Lord O'Shaughnessy]

I am grateful to the noble Baronesses for tabling these important amendments. It is critical to get right the role of approved mental capacity professionals and when they should review cases under the liberty protection safeguards system. AMCPs will be a vital part of the system. They will be qualified, knowledgeable and experienced professionals. It is intended that they will act independently, both of the care provider and the responsible body, and that they will make a determination on proposed arrangements after meeting the person and reviewing relevant information.

Amendment 35, tabled by the noble Baroness, Lady Finlay, explicitly prevents the responsible body overriding a determination of the AMCP. The responsible body is responsible for approving the authorisation, but an AMCP is required to complete the pre-authorisation review if it is reasonable to believe that the person objects to the arrangements. The AMCP can also conduct the pre-authorisation review in other cases. Where an AMCP conducts the pre-authorisation review they will determine whether the authorisation conditions are met.

The critical issue here is the consequences of the AMCP determining that the authorisation conditions have not been met. We are absolutely clear that the responsible body should follow the AMCP’s determination, and indeed any responsible body that did not do so would be taking on a significant legal risk. The responsible body might believe that it has a good reason to disagree with the AMCP’s assessment, but in that case the proper course of action would be to discuss this with the AMCP. If the responsible body then tried to override the AMCP’s decision, we would expect the AMCP to raise concerns—first, with the responsible body itself. If the local authority is the responsible body, the concern can be escalated to the Local Government Ombudsman, and if a CCG is the responsible body, it can be escalated to the regional director of commissioning in NHS England. Concerns regarding NHS organisations and independent hospitals can also be raised directly with the CQC in England or Health Inspectorate Wales. Therefore, I hope that noble Lords are reassured that mechanisms are in place to stop any unjustified behaviour on behalf of responsible bodies.

Amendment 77, tabled by the noble Baronesses, Lady Barker, Lady Finlay and Lady Jolly, makes explicit that a pre-authorisation review must also be conducted by an approved mental capacity professional if relatives or those with a genuine relationship to the person object to the arrangements, if there is restriction on contact, if the care home manager or responsible body considers the case to be exceptional, or if the arrangements are for mental disorder or the arrangements include covert medication.

The Government agree that families and carers play an important role in liberty protection safeguards. As the people who know the cared-for person best, they will often know what the person’s wishes and feelings are and whether they do, or would, object to what is being proposed. The Bill already states that a pre-authorisation review must be completed by an AMCP if there is a reasonable belief that a person objects to residing in or receiving care and treatment at a particular place. We are clear that an objection raised by someone with an interest in the cared-for person’s welfare can also give rise to a reasonable belief that the person objects, and this will be confirmed and clarified in the code.

We all agree that deprivation of liberty is a serious matter, especially when accompanied by measures such as high levels of restriction, covert medication and restrictions on contact. Such measures should be put in place only following a best-interests meeting and in some cases will require a court application. This is confirmed in the current MCA code of practice and will continue to be a key aspect of the new code.

I agree that in some circumstances such cases should be considered by an approved mental capacity professional. The Bill expressly allows for a pre-authorisation review to be completed by an AMCP in other cases, as is clear from paragraph 19(1). However, although the Bill is clear about how the lodging of an objection will lead to a review by an AMCP, I have heard clearly from noble Lords and stakeholders that there is a concern about referring appropriate cases to an AMCP. I hope that noble Lords will be glad to hear that I have been persuaded that we need to clarify on the face of the Bill that other cases can be referred to an AMCP.

In the previous day on Report, I stated that we would revisit, in the Commons, the issue of referral to AMCPs, specifically regarding those in independent hospitals. I can now confirm we will be looking at this issue more widely, including the specific concerns raised in the debate and in the amendment, as part of our considerations for government amendments in the other place. I look forward to working with all noble Lords to make sure that we get this right.

I turn briefly to Amendment 46 in the names of the noble Baronesses, Lady Thornton and Lady Barker. The amendment would mean that in care home cases the statement to the responsible body must indicate whether any person interested in the person’s welfare is satisfied that the person does or does not object. I understand that the intention here is to create a mechanism for those with an interest to be able to raise objections. I have already said that the Bill specifies that the statement must reflect any consultation that has been completed with those with an interest in the cared-for person’s welfare, and our later amendments will also make it explicit that that includes the person themselves under the “duty to consult” government amendments. The IMCA and the appropriate person will also have a role in reflecting these concerns.

To conclude this group of amendments, Amendment 104 states that a review is triggered if a person with an interest in the cared-for person’s welfare has raised concerns. As I said, that will be the case. Amendment 109 would change the Bill to reflect the effects of Amendments 34 and 104.

I hope that in answering points raised on these important issues, I have been able to give two kinds of reassurance. The first is that the process of triggering a review will be clearly set out. The Bill as it stands, as well as amendments that we are making, will mean that anybody with an interest in a person’s welfare will be able to trigger a review and that will lead to a consideration by an AMCP. Secondly, in the rare cases where there is a dispute between an AMCP and a responsible body, there will be avenues to escalate such a disagreement to mediation and resolution.

Furthermore, we are determined to get the role of the AMCP right. We think it is necessary to go beyond specifying that those in independent hospitals can see an AMCP and to think of other cases as well, and we are intending to bring forward amendments at the Commons stages of the Bill. I hope that that provides the reassurance that the noble Baronesses are looking for and that the noble Baroness, Lady Finlay, will be prepared to withdraw her amendment.

[Baroness Finlay of Llandaff]

I think I can speak on behalf of all noble Baronesses who had their names on these amendments. We are most grateful to the Government for listening and find all that the Minister said in his speech in response to this group of amendments reassuring and positive. We look forward to working with the Government as these new criteria evolve. I beg leave to withdraw the amendment.

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[Lord O’Shaughnessy]

My Lords, before introducing these amendments, I thank the noble Baroness, Lady Barker, for accepting my explanation on the previous group. I am conscious that we need to explain this in more detail, but I am grateful to all noble Lords and to the noble Baroness, Lady Thornton, for not pushing this point. This is something that we can clarify to get to a better system.

The amendments in this group are clearly central to the Bill, because they are all about putting the cared-for person at the centre of the new liberty protection safeguards. Noble Lords have been at pains to highlight a concern that the cared-for person is not listed explicitly as a person to consult. That has clearly always been our intention, but it is nevertheless quite right that that should be explicit in the Bill.

Amendment 71 clarifies that the cared-for person must be consulted as part of the consultation under new paragraph 17. Amendment 63 sets out that the person’s wishes and feelings must be considered as part of the determination that the arrangements are necessary and proportionate. Amendments 110 and 111 update other parts of the Bill to reflect the new explicit consultation requirement and to make some other minor drafting changes.

The consultation required by the Bill is important in establishing the cared-for person’s wishes and feelings, and identifying objections to the arrangements. It is also an important way of involving the person and their families in the process, and making sure that the liberty protection safeguards authorisation is something that happens not just to them, but with them. It has always been our position that the person should be consulted, but it is quite right that we set this out explicitly. Through these amendments we have also been explicit that the person’s wishes and feelings must be considered as part of the necessary and proportionate determination.

Briefly, Amendment 68, tabled by the noble Baronesses, Lady Finlay and Lady Jolly, would also ensure that this point is considered. I hope they will feel that the Government’s amendments have dealt with their issues and that they will feel happy not to press their amendments.

[Baroness Finlay of Llandaff]

I am looking to the noble Baroness, Lady Jolly, because I am sure she will agree with me. I am grateful and happily give way to the government amendment, which does what we wanted to do. We will not do anything with our amendment. I thank the Minister for his clarifications.

[Lord O’Shaughnessy]

I thank the noble Baroness for her agreement. I beg to move.

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[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.

[Baroness Finlay of Llandaff]

I am grateful to the noble Baroness, Lady Thornton, for clarifying on the record that we are talking about Amendment 76A. With the caveat that the meeting will include all of us who have been involved in and feel so concerned about this matter, I will withdraw the amendment, knowing that we will bring something back at Third Reading in this House and not leave it to the code of practice or the Commons. I beg leave to withdraw the amendment.

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[Lord O'Shaughnessy]

I am grateful to the noble Baroness for moving the amendment. Obviously, it is worth having an opportunity to restate that we clearly agree with her that it is necessary that anybody with an interest in a cared-for person’s welfare is able to trigger a reasonable request or, indeed, an objection on their behalf that constitutes a reasonable belief. That is something that we have discussed in terms of people who are supportive, such as family members, appropriate persons, IMCAs, and so on. Clearly, we have agreed to talk further about the role of whistleblowers and staff members.

I can reassure the noble Baroness that what she is asking for is already contained in numerous places in the Bill. The amendment deals specifically with paragraph 31(3)(b) of Schedule AA1. It is implicit in the description,

“person with an interest in the arrangements”,

that that includes people who have an interest in the cared-for person’s welfare. That is the purpose of the Bill. As I have made clear, any objection from someone who has an interest in the person’s welfare constitutes a reasonable belief, as set out elsewhere in the Bill. I am grateful for the opportunity to return to this issue and hope that I have reassured the noble Baroness that this is absolutely included in the definition.

[Baroness Finlay of Llandaff]

Before the Minister sits down, will he confirm that “interests” does not include the interests of the care home manager, where it may be a cheaper option, and that the interests of the cared-for person are definitely at the centre of the clause as written? I want to be absolutely sure that it cannot be misinterpreted in the future to mean “interests” in a much broader sense than the interests of the cared-for person.

[Lord O'Shaughnessy]

That is a very valid question. We have tried to deal with the conflict issues in other amendments. It is absolutely not the intention that that ought to be misused for the purpose referred to by the noble Baroness. I will need to get specific clarification about the implications of this, but I can reassure her that that is not the intention of it. If it needs to be clarified in a letter to noble Lords and, subsequently, in a code of practice then that is what we will do.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

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

[Lord O'Shaughnessy]

My Lords, we now come to the largest group of amendments on the issue that has perhaps taken up most of our attention in the progress of the Bill so far, and quite right too.

The government amendments in this group relate to ensuring that care home managers have an appropriate role in the liberty protection safeguards system that we are seeking to implement. You would have to have had ears of cloth not to have heard the concerns raised by noble Lords and stakeholders throughout the passage of the Bill about the proper role of care home managers. I agree that we must be absolutely clear at this stage in legislation about what is the right role for those care home managers. I also agree that there should be no scope for any conflict of interest—not when we are talking about the safety and care of very vulnerable people—and that we should ensure that all assessments are completed by those with the appropriate experience and knowledge. Furthermore, people should always have confidence that they will have access to independent support and representation.

I will shortly address the specific amendments in this group. Before I do so, I would like to draw noble Lords’ attention to other germane government amendments, which we will deal with on the second day of Report but which are important to consider in the round with the amendments in this group. Those include proposals that we have made to ensure that only responsible bodies can arrange the pre-authorisation review and that care home managers will be explicitly excluded from completing the pre-authorisation review. This is important because pre-authorisation should not confirm poor care planning or perpetuate a system where someone is receiving care in an inappropriate setting. The amendments that we have laid and which we will deal with on the second day will counteract any incentive the care home manager might have to ensure that a resident stays in a care home inappropriately. We are also determined to make sure that the care home manager cannot act as a gatekeeper to the IMCA appointment, and we have laid amendments accordingly.

There has been a great deal of discussion about the role of care home managers in authorisation. I have strongly and deeply considered noble Lords’ concerns in the context of what we know works now in the current system. There is a desire to make sure that the liberty protection system that we intend to introduce builds on what works and changes what does not. Under the current DoLS system, care home managers have the role of identifying that someone may lack capacity and need restrictions as part of their care. In practice, they must complete form 1, which brings together all of the current assessments for a person. This is then sent to local authorities, which appoint a best-interest assessor to conduct a further assessment ahead of providing the authorisation. This is an appropriate role for care home managers to undertake, and is the role we are proposing and clarifying through our amendments.

Amendment 30 requires the responsible body to make a decision on whether it is content that it is appropriate for the care home manager to carry out the relevant functions prior to authorisation, including arranging assessments and carrying out consultation. Amendment 90 applies this decision to reviews as well. This is an important change because it provides additional protections in cases where there may be concerns about a particular provider and its capability for conducting its role, and it allows responsibility to take on all the relevant functions in these cases. There may also be cases where there are no concerns about quality of care, but there may, for example, be particularly strong social worker involvement and it may make sense for them to take on those functions.

This power to remove the care home manager from the process can be enacted at any point, and we would expect it to be done at the earliest possible point, particularly if there are concerns. We will use the code of practice to set out the detail so that it is applied consistently by different local authorities, with clear criteria for the responsible body to make a decision on whether to retain responsibility for the relevant functions. In the case of care home residents, this significantly strengthens the role of local authorities in terms of oversight, intervention and supporting the quality of the operation of the scheme. If the responsible body has decided that the care home manager should be responsible for providing the statement and carrying out the other functions, the care home manager will bring together the information, evidence and assessments needed for the responsible body to make a decision on whether to authorise the liberty protection safeguard. In many cases, this will bring together recent valid assessments that can be used for this purpose.

As has been said previously, care needs change over time. We recognise that putting hard and fast rules on the validity and timeliness of assessments would not recognise the reality of what happens. That is why we will set out in the code of practice what we would expect to see in terms of valid and up-to-date assessments. The Bill also enables the responsible body to step in, if they are not confident in the validity of the assessments, by refusing to authorise the arrangements. Let me be clear that all the assessments would involve consultation with the person. In addition, the Bill will require the care home manager, or the responsible body, to complete the consultation with the person and other interested persons.

Some noble Lords have stated their concern that there is a potential conflict of interest if care home managers were to conduct assessments. The Government agree that there is a potential financial conflict if care home managers were to complete assessments for people in their own care homes, particularly when it comes to considering whether there are less restrictive alternatives. Amendment 52 explicitly excludes care home managers or others from undertaking the assessments if they have a specified connection to the care home, in particular if there is a financial connection. This will be set out in regulations. We will use the regulations to ensure, in England, that care home staff are not able to conduct assessments where they have a potential financial conflict of interest and the Welsh Government will have the power to do the same. Doing this in regulations allows us to provide the necessary detail, given the complexity of the care home sector, to ensure that there are no loopholes. For example, we would not want someone who works in another care home run by the same company to conduct the assessments.

Noble Lords have rightly asked questions about who undertakes the assessments and in particular why there were no clear requirements on the expertise of those who undertake capacity and medical assessments. That refers tangentially to the issue raised by the noble Baroness, Lady Hollins, before. Although that is already provided for in binding Article 5 case law, I have been persuaded that more clarity is needed. Amendment 52 clarifies that capacity and medical assessments must be carried out by someone with appropriate experience and knowledge. Capacity assessments should be completed by a registered professional such as a nurse, social worker or occupational therapist, and medical assessments must be completed by a physician. We will set out in the code of practice the experience and knowledge that we would expect to see for those undertaking assessments.

On the point about experience and knowledge, Amendment 53 tabled by the noble Baroness, Lady Finlay, would have the effect of requiring that the person who conducts the assessment has the appropriate skills and knowledge. The noble Baroness is absolutely correct that the person who completes the assessment should have the necessary skills to be able to conduct the assessment. Amendment 52 already provides for that within the description of experience and knowledge and we would expect that to cover the necessary skills. We will define that in the code of practice so that it explicitly describes the skills, using the term “skills” and describing the kinds of skills that ought to be required of the person carrying out assessments.

There are also some minor amendments that clarify definitions of care home manager and responsible bodies. Amendment 8 updates the definition of care home manager. Amendment 9 corrects the definition of care home manager in Wales. Amendments 11, 15 and 24 set out a definition of English and Welsh responsible bodies. Amendment 17 removes the definition of local health board as it is now superfluous.

I hope that noble Lords have had a reasonable chance to examine all the government amendments in this group. They have been carefully crafted to reflect to the best possible extent all the concerns set out by noble Lords at Second Reading and in Committee to remove any concerns about conflict of interest and make sure that care home managers are not, to coin a phrase, marking their own homework. They have an important role in organising assessments, but it is effectively an administrative function with proper oversight, and assessments will be carried out by those with the proper qualifications, expertise, skill and knowledge. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, there is a tone of disappointment because I welcome all the government amendments, but the role of my amendment to government Amendment 52 was twofold. First, I am disappointed that speech and language therapists were not in that list read out by the Minister, because we had a debate about the importance of communication skills. When communication is impaired, particularly with disorders that affect any part of the speech or throat cycle, it is very difficult to assess someone’s capacity.

I included skills because I worry that experience and knowledge are sometimes just not enough. If the Government insist on “skills” going into the code of practice, I hope that the Minister will be able to confirm that the skills will be assessed and reviewed at appraisal, and that they demonstrate an understanding of the impact of fear—being frightened—on the way the person behaves.

The assessors must have a high level of communication skills and awareness of all the different ways that communication can be enhanced. I hope that they would also have an awareness of the impact of different types of medication on someone’s capacity, because sometimes changing the medication can really improve a person’s ability to make a decision for themselves.

Amendment 53 links to Amendment 74, which is in my name and will come up later. I am concerned that, without strong reassurance, some of these issues could slip by and we could inadvertently end up having superficial assessments of some people and not the thorough and in-depth ones they deserve. The whole principle of the Mental Capacity Act is to empower people to make their own decisions, and we are talking about trying to have the least restrictive option so that we can enhance a person’s liberty as much as possible. If that assessment is not meticulous with the appropriate skills, the wrong judgments could end up being made.

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[Lord O’Shaughnessy]

That is a perfectly reasonable question, but the AMCP would absolutely look at every case. There would not need to be an objection raised. I was just explaining the hierarchy for non-independent hospital cases. It would be, in a sense, going to the second-highest port of call for scrutiny that we are considering in other cases to highlight the seriousness of it. There would not be that gatekeeper point which the noble Baroness is worried about.

[Baroness Finlay of Llandaff]

How would we be clear that we knew about all the people who had a deprivation of liberty, if we are depending on that independent hospital to notify and call in an AMCP? That AMCP may be one with whom they end up having an uncomfortably close or cosy relationship. How could there be a degree of independence, when the person signing it off as the responsible body would still be the one with a vested interest in keeping their beds full and their income going, which was the very thing that concerned us about the care home? Is the Minister prepared to meet us and discuss this outside? I understand the intention to have everyone assessed by an AMCP, but I am worried that if we leave it to go to the Commons, some of the concerns that have been raised here may not get carried over.

[Lord O’Shaughnessy]

Absolutely—I would be more than happy to do so. I have tried to demonstrate our intention to deal with the issue, but we remain open-minded about the best way to do it. We have concerns with the amendments as laid—we were trying, if anything, to turbo-boost the approach. I recognise that the noble Baroness is concerned about an overfamiliarity between individuals, which she is trying to make sure that we avoid. There may be other concerns with the model that we are considering. I am more than happy to take that offline, and that would be a very fruitful discussion.

Breast Scans

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Monday 19th November 2018 Lords Chamber

[Lord O'Shaughnessy]

The noble Baroness is of course right. It is precisely because of interference with the image that the trial was discontinued and the evidence not collated. Such cushions are used for women across the country who are particularly sensitive or after surgery, but I have asked the committee to consider whether there are ways in which they can be used more systematically to relieve discomfort without interfering with the crucial image that needs to be captured.

[Baroness Finlay of Llandaff (CB)]

My Lords, will the Minister undertake to ask Sir Mike Richards to look at the need for large paddles for ladies who have large breasts and who may currently need to have two separate images taken on the same side, with the two images then put together, which does not always give a good picture? Not all breast screening services can supply larger paddles to have larger films.

[Lord O'Shaughnessy]

I am more than happy to do so. If the review is not the correct forum for consideration of such an issue, I will refer it to the advisory committee instead.

Health: Stroke

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Wednesday 14th November 2018 Lords Chamber

[Lord O'Shaughnessy]

I understand the noble Baroness’s frustration about the gap between the strategy and the plan but it was right to include the work undertaken on the stroke plan within a long-term plan, because clearly that covers every aspect of how the NHS is working. In the meantime, I point out to her that the NHS RightCare programme for cardiovascular disease has been set up. It is aimed specifically at dealing with some of the variation in service that she talked about. But there is good news in stroke care: not only is there less incidence than 10 years ago but 30-day mortality rates have more than halved, so there is progress which we need to build on.

If the noble Baroness and the House will allow me, I would like to use this opportunity to pay tribute to my noble friend Lord Skelmersdale, who died very recently. He was a predecessor in this role and a great champion of stroke care, both as a Minister and as chair of the Stroke Association for 10 years. I am sure that everyone in the House would offer their sincere condolences to his family and friends.

[Baroness Finlay of Llandaff (CB)]

My Lords, will the Government outline the plans to roll out thrombectomy, which is sucking out the blood clot and is done under remote X-ray control? It has massively improved outcomes, even on thrombolysis, which tries to dissolve the clot. Such services need to be available across the UK on a 24/7 basis because stroke does not respect the clock or the calendar.

[Lord O’Shaughnessy]

The noble Baroness is absolutely right. In 2017, NHS England announced a rollout of the mechanical thrombectomy procedure to 24 centres across England. It is expected that 10% of stroke patients will be eligible. It leads to big reductions in disability after stroke, is now approved by NICE, and will be a significant part of the long-term plan which we will publish by the end of the year.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

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

[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.

[Lord O'Shaughnessy]

I thank the noble Baronesses for tabling their amendments about renewals. I deal first with Amendment 58A, moved by the noble Baroness, Lady Thornton, which, as she said, would have the effect of meaning that authorisations cannot be renewed for longer than 12 months. As she pointed out, this would go against the Law Commission’s recommendation, which was that there could be circumstances under which renewals took place for up to three years, particularly following an initial review after up to 12 months and if it was unlikely that there would be a change in the person’s condition.

These three-year renewals are in place so that those who are in a stable condition and unlikely to recover are not subjected to annual assessments. The Bill does provide the safeguard—referred to by the noble Baroness—which ensures that an authorisation would need to be reviewed if there is a change. We would also want to make sure that there are appropriate reviews of arrangements when annual reviews under the Care Act take place. It would be up to the responsible body to set review periods. In care home settings, the care home manager must report to the responsible body on any reviews that have been carried out. As the Bill stands, there are significant safeguards to prevent abuse or lack of care of the vulnerable person.

All that being said, I know how strongly noble Lords and stakeholders feel about this issue. The noble Baroness, Lady Thornton, made a valid point about aligning the review process with the terms set out under the Care Act. I would like to give further thought to this, particularly in the context of the discussions which will be taking place about the proper role of the care home manager. There is clear concern about a proper system of oversight and regular review where responsibility has been devolved to the care home manager. If the noble Baroness will allow me, I will follow that up after this debate.

Amendment 58B, tabled by the noble Baroness, Lady Finlay, considers an authorisation ceasing to be renewed if it has lapsed wholly or in part. We will want to give further consideration to that. As discussed earlier in Committee, there are circumstances under which one might be happy for an authorisation to continue after a very minor change. That might be the proper process to align this to, and I want to give further thought to this.

Amendment 58C asks that, when deciding whether to renew authorisations in care home cases, responsible bodies should consider other relevant information, as well as that provided by the care home manager. I can confirm that the Bill does allow responsible bodies to consider information other than that provided by the care home manager. That would, inevitably, be in other formats too. We will set out more detail on that in the code of practice.

Amendment 62A would add the word “arranging” to the scenarios in which the care home manager was required to notify the responsible body that an IMCA should be appointed. The amendment intends to make sure that that happens at the earliest stage, including when the assessments are being arranged. That is what the word “proposing” in the Bill achieves. We are satisfied that the language currently in the Bill means that care home managers would be looking at this issue when they are beginning to propose an authorisation, which is the earliest point at which planning for, arranging or bringing together the assessments would take place. I would be happy to demonstrate what underpins our belief that this is the case. I do understand what the noble Baroness is driving at; it is something which we are trying to achieve.

On that basis, I hope that the noble Baronesses are willing to withdraw or not move their amendments.

--- Later in debate ---

[Lord O'Shaughnessy]

I am happy to discuss the issue with all noble Lords, as I have said in the past. I return to where I started: the intention of this approach is to make sure that independent advocacy is not imposed on someone who genuinely does not want it. It is not to provide a “get out of jail free” card for poor care home managers. If that is a concern, I take it very seriously, but it is not the intention of the Bill. However, if it is the case, something needs to be remedied. Let me assure noble Lords that I will make best efforts to do so as we move forward from Committee.

This has been a very useful discussion. In some sense it has provided a degree of continuity from our discussion last week, while moving on to the issue of advocacy, which we will clearly explore further. I hope that, with the reassurances I have given at this stage, the noble Baroness will feel able to withdraw her amendment.

[Baroness Finlay of Llandaff]

My Lords, this debate has been extremely interesting and, in many ways, gets to the nub of some of our concerns. In looking at the Bill, one thing I have tried to do is to benchmark its procedures to see how they would work. I was involved in prosecuting appalling care in EMI homes. I am trying to see how we could have discovered sooner that there were problems there.

I share the concern about the care home manager having too much power. Having said that, I have found the Minister’s answers today reassuring, as they were on the second day in Committee. I suggest, however, that the number of objectors will be very few, because many of these people have such impaired capacity and are not in a position to object—it may be other people who speak up on their behalf.

--- Later in debate ---

[Baroness Finlay of Llandaff]

It could have wide-reaching consequences, but a lot of people who have lost capacity and are in a state of high dependency are already in nursing homes, so they are already being cared for in the system and may be subject to deprivation of liberty. Some of them have long-term continuing funding for their care, but they have been there for a long time and the donee, who is managing all their affairs and advocating on their behalf, is very concerned about their welfare in the event of them failing.

[Lord O’Shaughnessy]

I am grateful to the noble Baronesses and the noble Lord, Lord Hunt, for tabling amendments in this group. I am very aware of the complexity of this issue. For a lay person such as me, some of the terminology can be confusing. I will do my level best to be as clear as humanly possible, but if I fail in that endeavour I will write to noble Lords and explain better what I am attempting to explain now.

The effect of Amendment 83, as the noble Baroness, Lady Thornton, said, would be to confirm in law that a donee of a lasting power of attorney or a deputy appointed by the Court of Protection was unable to consent on a person’s behalf to a deprivation of liberty. If they could provide such consent, the person would not be considered to be deprived of their liberty and no safeguards would need to be provided.

The Law Commission report stated that it was already the position in law that a donee or deputy could not consent to a deprivation of liberty. We confirmed in our response to the Law Commission’s report that the Government agreed with its view on the current legal position, and the Bill does not change the current situation. While the Bill creates a duty to consult with any donee of the lasting power of attorney or a deputy, it does not enable a donee or deputy to consent to the deprivation of liberty on behalf of the cared-for person. In other words, under this Bill the cared-for person would still be deprived of their liberty in those circumstances and would still need to be provided with safeguards to satisfy Article 5, which is of course the whole purpose of DoLS and liberty protection safeguards. In that sense the amendment, with which we agree, would serve only to duplicate existing legislation and is not necessary. I hope I have provided an adequate explanation to noble Lords, but obviously I am willing to set out in more detail exactly why we believe the current situation is not changed by the Bill as it stands.

I turn to the amendments in the name of the noble Baroness, Lady Finlay. Amendment 83ZA would require the Office of the Public Guardian to provide documentation, which may be in electronic form, to identify the donor and donee or donees of a lasting power of attorney and to recall the documentation if the donee’s power is revoked. As the noble Baroness pointed out, this is designed to make it easier for attorneys to provide proof of the existence of a registered LPA. It is right that there ought to be a robust system of proving that there is a valid power. My understanding is that the Ministry of Justice and the Office of the Public Guardian are actively considering how to offer a digital means of providing evidence of a valid LPA, and we expect to bring forward proposals in due course. I am happy to pursue that further with colleagues in that department and that office to understand greater details of their plans and to share those with noble Lords if they are forthcoming, which I hope that they will be.

Amendment 87E, in the name of the noble Baroness, Lady Finlay, would allow the donee of a lasting power of attorney to nominate someone to replace them if they were no longer able to fulfil their duties—I think that means if the lasting power of attorney was no longer able to fulfil their duties—while Amendment 87G would allow a replacement attorney to be nominated by the donor at the time of registering the LPA to take over the power if the donor decides to remove the power from the donee.

I do not need to reiterate to noble Lords just how critical it is to get the law and the rules in this area right; as the noble Baroness, Lady Watkins, pointed out, the rules around this would not apply only to this Bill. It is worth pointing out that there is provision in the original Mental Capacity Act to allow a person making a lasting power of attorney to nominate a replacement in the event that their attorney is unable to continue, but I think the point that the noble Baroness, Lady Finlay, was getting at is that there is a slight chicken and egg situation here: at the point where they no longer have capacity but the person whom they have previously appointed is no longer able to fulfil their role or the cared-for person no longer wants them to do so, they cannot go back in a time machine and appoint someone else—in other words, they cannot know what they do not know. I have just made things really clear by getting all Donald Rumsfeld about it all.

Having said all that, I want to consider if there is a way of unlocking that paradox, but clearly the implications of that would go well beyond the remit of what we are discussing here. I do not want to make any promises that it is not in my power to keep. I would appreciate the opportunity to explore this further so that we can consider how to give the donor more opportunities to have a sense of choice and agency as they think ahead to the future. I would have thought that we must be able to provide for that without creating extra complications. I look forward to taking that up with the noble Baroness and other noble Lords who are interested in the topic. On that basis, I hope the noble Baroness will feel able to withdraw her amendment.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

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

[Lord O'Shaughnessy]

That is helpful, and I am sure the noble Baroness, Lady Finlay, will respond to those comments from her perspective. The noble Baroness goes to the point of the noble Baroness, Lady Tyler, about making sure we get the definition of the role of the care home manager right and the various types of case studies. As the noble Baroness said, there are self-funders, those in local authority-funded homes, those in homes funded by the NHS and so forth. In a sense, that is the point I was trying to make in the first group of amendments as I realise that we have not clarified that to a sufficient degree so as to put people’s minds at ease that what we are proposing is appropriate and deals with people’s concerns or exposes those concerns as being well founded and then enables us to do something about it by the time we come back on Report.

I apologise again for the false start in my response. However, this has been a useful debate and I am keen to hear the reflections of the noble Baroness, Lady Finlay, as, I hope, she withdraws her amendment.

[Baroness Finlay of Llandaff]

I thank the Minister; I am very grateful to him. If I have understood it correctly, the noble Baroness, Lady Barker, supports my Amendment 30A, which requires that a registered professional—who, if they really get it wrong, would lose their registration—who has responsibility for the care plan and appropriate experience and knowledge, should make the determination. In other words, it is not good enough just to be a professional. I go back to the example of people with a head injury, who need a highly specialised assessment and overview so that a lead can be taken on the care planning process.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

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

[Baroness Finlay of Llandaff]

It might be of assistance if I intervene here. If the noble Baroness is referring to amendments in the group beginning with Amendment 58A, I understand that if she does not speak to them now, they can be dealt with in the next group.

[Lord O'Shaughnessy]

I am no expert in parliamentary procedure but my understanding is that, as they come after the amendment we are considering now and indeed the one that we would consider next, they can be retabled.

[Lord O'Shaughnessy]

I am grateful to the noble Baroness, Lady Finlay, for initiating this discussion. Clearly the purpose of her amendments is to make sure that an authorisation cannot be renewed if it wholly or in part ceases to have effect. In some cases, an authorisation will not be renewed if in part it is no longer valid, but there might be other cases where minor changes to the restrictions are needed and that should not prevent an authorisation being renewed. We want to provide further detail in the code of practice and I would appreciate the opportunity to work on that with her.

The noble Baroness has also tabled amendments outlining that authorisation records should detail when arrangements are not authorised or if they are authorised with conditions, and that in care home cases responsible bodies should consider other relevant information, as well as information provided by the care home manager. I can tell her that in some cases if arrangements are not authorised, it might be useful to include them in the authorisation record. However, given the debate that we had on the previous grouping about the general trend towards the inclusion of data or information within records that are then made available to patients, their families and so on, I want to reflect on whether they should always be included and I will come back to that on Report.

The Bill allows the responsible bodies to consider information other than that provided by the care home manager, and further detail on the circumstances and kinds of information will be provided in the code of practice. On that basis, I hope that the noble Baroness is reassured and will feel able to withdraw her amendment.

[Baroness Finlay of Llandaff]

I am most grateful to the Minister for that clarification. I agree that some parts of this would be better in the code of practice than in the Bill, particularly because they might need modification as experience develops. If they are in primary legislation, we are effectively stuck with them for a time, whereas otherwise they can be altered. Therefore, I beg leave to withdraw the amendment.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Monday 15th October 2018 Lords Chamber

[Lord O'Shaughnessy]

I thought Amendment 81 was tabled in the name of the noble Baroness, Lady Murphy. Anyway, it does not matter in whose name it was, those reassurances are in the Bill. If there are any niggling concerns about that we can, of course, make that clear offline. On that basis I hope the noble Baroness will be prepared to withdraw her amendment and begin those discussions in earnest.

[Baroness Finlay of Llandaff]

I thank the Minister for that reply. Fuelled by the optimism of my noble friend Lady Murphy, we are moving forwards, and as the Minister has said, we need to give it a go but we must also take all the stakeholders with us. We will need some careful round-table discussions about this. I take completely the point about medication, and not using that word in the amendments I have drafted is an omission that needs to be corrected.

When I was considering emergencies, I was concerned about situations that are not necessarily life-threatening but still constitute some kind of emergency. They arise quite commonly in social care out in the community and emergency primary care settings. I do not think that they can be ignored when we are looking at a definition. We have to be quite broad, otherwise we might suddenly find that a gap emerges again, which would not be helpful. I look forward to thinking with others and I hope that they are more successful than I have been today. I beg leave to withdraw the amendment.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

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

[Lord O’Shaughnessy]

I am grateful to the noble Baroness for clarifying that. I will seek to understand the implications of the Bill for those cases, and I will make sure that I write to her and all noble Lords with an explanation of what is envisaged.

[Baroness Finlay of Llandaff]

I hope the Minister will forgive me because we are now on an incredibly important part of the Bill. If we can get together and work through it, I wonder whether we need to look at a way that a specific person from the local authority—I gather that it happens in some parts of England and Wales but not everywhere—has a link to different care settings and gets to know them well. We are talking about the people we know about, but the people who are most vulnerable are those we do not know about, who have not been notified into the system. If that person knows a place and the quality of the care there, they may be inclined to have a lighter touch there than on places where there has perhaps been a turnover of staff, a change of management, and so on. They may feel that they want to do some face-to-face assessments to verify the quality of the care being provided—not in the CQC role, but in terms of the care delivered to the person who has impaired capacity.

I put that out there now because I am sure that this debate is being watched and monitored. It might be interesting to see whether we get any feedback on some of the points we have raised during the debate, because so many people have expressed concern and want to know what we are saying.

[Lord O’Shaughnessy]

I shall give just a brief response to that. It is a good idea. The Government think that the proposals for care homes, how they will carry out commission-needs assessments and the process for reviewing and authorising where necessary are a critical part of creating a more proportionate system that does what it says it will do, rather than the current system, which says it will do a whole bunch of things and then does not actually do them. That is where we want to get to.

I am being robust, as it were, in defence of the model. I want to explain—I think noble Lords are enthusiastic about this—how this will work in practice with the kinds of people who are most likely to be in the most difficult situations, so there is a clear understanding of the safeguards that exist to prevent conflicts of interest, provide independent oversight, make sure there is advocacy to support, and so on. It is clearly the case that there is not yet that understanding, and we need it to proceed.

--- Later in debate ---

[Lord Touhig]

This is a very small but very important amendment. Having spent 27 years in newspapers and publishing, I constantly came across issues and stories where people were having all sorts of difficulties, public services failed and systems failed because of lack of information. Certainly from my time as a councillor, as an MP and as a Minister, I passionately believe that we must be open and transparent and must share information. That is key to this part of the Bill, and we certainly strongly support the points made by the noble Baroness.

I do not intend to detain the House more than that, other than to say that the noble Baroness, Lady Finlay, may not be aware that, when I was a Wales Office Minister and she was a new Member of this House, she terrified my officials. They would come in and say, “Minister, it’s that Baroness Finlay again; she wants information on so and so”. She is pursuing her quest for information even today, which I think is very important and valuable. We strongly support her efforts in this area.

[Lord O'Shaughnessy]

I am grateful to the noble Baroness for tabling this amendment and to the noble Lord, Lord Touhig, for endorsing it. I will not detain the House other than to say that, clearly, the intention to make sure that there is not a discrepancy and, where there is, that there is a flag, is one that we share. We need to be alert to any issues of concern that would warrant further investigation, or indeed referral to an AMCP.

This is something that I think best sits within the code of practice, and I can confirm and commit that instructions along these lines will form part of the code of practice, as well as many other examples of where an authorising body should be seeing signs of concern. I am grateful for the opportunity to confirm that, and I hope that reassures everyone.

[Baroness Finlay of Llandaff]

I am grateful to the Minister and to the noble Lord, Lord Touhig, for his remarks in support—including his humorous ones. On the basis of that, I beg leave to withdraw the amendment.

National Health Service: Assaults on Staff

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Wednesday 20th June 2018 Lords Chamber

[Lord O’Shaughnessy]

I have to take issue with the point the noble Lord makes. It is absolutely not the case that the Government value property more than staff. We all value the work that NHS staff do every day in very difficult conditions. That is one of the reasons that we announced our historic funding settlement at the beginning of this week. On the problem that the noble Lord raises, he is right to say that, looking back over NHS Protect’s data, starting in 2008-09, there has been a steady rise in the number of assaults on and incidents of abuse of NHS staff. Clearly that is completely unacceptable. However, there is disagreement about the reasons for that, and it is worth dwelling on that. They include not just the greater volume of patients and better reporting, but the increase in mental illness and dementia, and more severe mental illness being dealt with in hospitals rather than police cells. I do not use that as an excuse, but merely to explain that there is some uncertainty about the reasons for it. It was under NHS Protect’s aegis that this steady rise happened. It has fulfilled its function, which is to make sure that security management services are available to every NHS trust—but in the end it has to be down to every trust to take responsibility for the safety of its staff, and that is the system we are moving ahead with now.

[Baroness Finlay of Llandaff (CB)]

My Lords, given that alcohol is involved in more than 60% of assaults in the acute sector, more than 30% of assaults in the mental health sector and more than 70% of assaults in the ambulance sector, will the Minister explain why the Government have abandoned progress with the sobriety scheme pilot, which showed a very high success rate in avoiding reoffending in alcohol-fuelled crime? It would provide a tool for non-custodial sentencing where people are known to have assaulted NHS staff under the influence of alcohol.

[Lord O’Shaughnessy]

I will look into the specific issue that the noble Baroness mentions. I do not have the details in front of me. I know that all local authorities provide free, taxpayer-funded rehabilitation services for those who are suffering from alcohol addiction. I should also point out that this Government have increased progressive taxation on stronger alcohol, such as white cider, specifically to try to change people’s drinking habits and to reduce alcohol-related violence.

Carers: Health and Well-being

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Tuesday 12th June 2018 Lords Chamber

[Lord O’Shaughnessy]

The noble Baroness makes a very important point. Indeed, in the carers action plan there is a specific commitment from the department to work with local authorities to improve social work guidance in terms of spotting carers, many of whom are not even aware that they are formally designated as carers, and signposting them to the right support. There will also be an awareness-raising campaign among social workers so that they understand their duties.

[Baroness Finlay of Llandaff (CB)]

Will the Government’s action plan have a specific focus on children and adolescents who are carers, often of a single parent who may have physical and/or mental health problems? The child often carries the whole responsibility, and is sometimes also responsible for their siblings. When they have an adverse experience, such as coming home and finding their parent deteriorated or dead, they need an enormous amount of support. Therefore, the education system also needs to be involved in any strategy looking at children.

[Lord O’Shaughnessy]

The noble Baroness is quite right; it is hard to imagine what the burden must be on those young carers who are looking after parents and siblings. Young carers are explicitly mentioned in the action plan; again, I point to two commitments in that. First, there is a young carers identification project, which is working with Carers UK to make sure that we can find young carers. Secondly, the DfE has committed in its children in need review to make sure that young carers are getting the educational support they need in school and out of school to make sure that their educational outcomes do not suffer.

Learning Disabilities Mortality Review

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Wednesday 9th May 2018 Lords Chamber

[Lord O'Shaughnessy]

The point that the noble Baroness makes about the involvement of people with learning disabilities in this process is critical. I did not respond to a question from the noble Baroness, Lady Jolly, about communications with people with learning disabilities. Having written a manifesto in the past and having had it translated into the Easy Read format, I know that this is critical. I know that there are attempts to make sure that communications are made in that format where it is helpful to do so.

On the noble Baroness’s question about training, we have a really good template which my honourable friend Caroline Dinenage mentioned in the other place yesterday, and that is dementia training. It is tiered, with tiers 1 and 2, and it has been rolled out very broadly across the health and care sectors with great success. Therefore, I think that we have a template for doing this, and I know that my honourable friend is taking that forward. It was a specific recommendation in the report by the University of Bristol. My honourable friend committed to take forward with NHS England all those recommendations, and that is what we will endeavour to do.

[Baroness Finlay of Llandaff (CB)]

My Lords, given that the report recommends that there should be a named healthcare co-ordinator, yet there is a serious shortage of experienced learning disability medical and nursing staff and it will take some time for trainees to feed through the system, have the Government considered discussing with the GMC and the Nursing and Midwifery Council ways of attracting back into the service older, currently retired professionals who might have a great deal of wisdom and might be motivated to work in a specific area, act as a person’s advocate and provide on-site teaching in conjunction with the person? They could take on the role of communicator and navigator to develop a strategic pathway for the person with learning difficulties or disabilities, and they could also have a role in teaching people about the signs of sepsis, pneumonia and so on, so that there are early alerts.

[Lord O'Shaughnessy]

The noble Baroness makes an excellent point. Clearly there is a need to recruit healthcare co-ordinators. One positive thing that I would highlight is a recommendation in the report from the University of Bristol regarding the sharing of health action plans between health and care agencies. That is already happening and is one positive step. Her idea about bringing back into the profession more experienced professionals to act as advocates is a very good one. A concerted effort is being made to do that through the Return to Practice programme. I do not know whether there is a specific strand relating to people with learning disabilities but I will take that away and investigate it.

On her point about signs of sepsis, pneumonia and other diseases, which are among the causes of this early mortality, some good progress is being made. NHS England is creating new pathways in those areas specifically designed for people with learning disabilities, and I believe that it will be publishing some of them this year.

HPV Vaccinations

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Monday 26th March 2018 Lords Chamber

[Lord O'Shaughnessy]

My noble friend is quite right to highlight the link between HPV and oral cancer. The growing evidence base is one of the things which the JCVI is taking into consideration. There is absolutely no doubt that HPV causes around 99% of cervical cancers. The link to other cancers, such as the one my noble friend mentioned, is not quite the same and is still disputed, but it is one of the issues being considered.

[Baroness Finlay of Llandaff (CB)]

My Lords, given that the Government have recognised the importance of HPV, do they also recognise that some boys who are having a homosexual relationship will not come forward and may, therefore, be at very high risk prior to being offered immunisation? Boys also act as a reservoir for HPV among girls. There may be girls whose parents do not consent to them having immunisation but they are particularly at risk because 70% of cervical cancers are caused by HPV.

[Lord O'Shaughnessy]

Yes, of course. Among the technical issues which the JCVI has to take into account is the risk profile of boys at different ages and with different sexual behaviours.

Emergency Hospital Admissions

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Wednesday 7th March 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

Is the Department of Health and Social Care, in conjunction with NHS England, monitoring the completeness of 24/7 nursing coverage in the community? Even though the pilots, which will have a virtual ward, will help determine the most vulnerable patients, those patients will still need hands-on nursing at the time they need it. If it is not available, they will inevitably end up being transported to hospital.

[Lord O’Shaughnessy]

One of the issues the NAO reports is that we do not yet have good enough data on what is happening in the community. The creation of the community services dataset will enable us to track precisely what is available in the community in every area. Concerns have been raised in this House before about the number of district nurses, which unfortunately has fallen over recent years. It has now shown a small increase year on year and we hope we are starting to turn the corner on community nursing numbers, too.

NHS: Waiting Lists

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Monday 26th February 2018 Lords Chamber

[Lord O'Shaughnessy]

I think we all know what happened in 2010, but it might be worth pointing out that 10 years ago, half of patients waited more than 18 weeks for referral to treatment and that is now only about 10%.

[Baroness Finlay of Llandaff (CB)]

My Lords, given that many consultants report feeling demoralised and worn down by constant pressure from the number of clinical problems they are dealing with and the administrative pressures that they find themselves under, what discussions have the Government had with NHS England, and what discussions has NHS England had with trusts, on ways that consultants and their teams could have better administrative support and better ways to achieve upgrades in equipment that they may need to undertake specialised procedures? At the moment, they are having to apply and reapply for funding, which wears them down and takes away from clinical time.

[Lord O'Shaughnessy]

I shall write to the noble Baroness on what NHS England is doing about the specific issue. I think her real point is about morale. We know that NHS staff do an incredible job under a great deal of pressure, dealing with that rising demand. We are doing two things to try to alleviate that situation. One, which we have talked about, is increased numbers coming through training so that we can increase staffing. The other is pay. Getting rid of the pay cap and allowing for an Agenda for Change pay increase is a good way of saying thank you to those staff.

NHS: Winter Crisis

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Wednesday 7th February 2018 Lords Chamber

[Lord O'Shaughnessy]

As the noble Baroness knows, last year we had two significant spending announcements —there were two Budgets—in the March Budget on social care and in the November Budget for NHS funding, with billions extra being put into the service to meet very quickly rising demand. The review that will come out in summer will be a retrospective review of planning and the success of planning for winter. There will also be important lessons to be learned from it I am sure.

[Baroness Finlay of Llandaff (CB)]

Are the Government planning to ask NHS England to review the number of beds available, given that staff at the moment are starting shift after shift with no beds available and having patients who need IV therapy or even ventilation in their departments who cannot possibly be sent home? Staff morale is inevitably being undermined because they just do not know where they can put these patients.

[Lord O’Shaughnessy]

The noble Baroness is quite right to highlight the issue of bed occupancy; it is very high. The service managed to get it down below 85% before Christmas but inevitably it has risen since then. There is a big improvement in delayed transfers of care; we need that to continue to happen, and it was welcome that the Secretary of State for local government announced more funding for social care so that we can increase those transfers into social care and free up space in hospitals.

NHS Winter Crisis

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Monday 5th February 2018 Lords Chamber

[Lord O'Shaughnessy]

I thank the noble Baroness for her questions. I am glad she had a positive experience this morning at the hospital she mentioned. She is quite right that bed occupancy is very high at the moment. A good job was done in getting it down below 85% across the system in the run-up to Christmas, but of course it has filled up subsequently. An important part of dealing with this is the social care side, as we know, and the extra funding that has gone in is having some impact on these so-called DToCs—delayed transfers of care—and freeing up a number of beds.

The noble Baroness is right of course that money is important, particularly as we have the demands of a growing and ageing population. More money was of course announced in the November Budget for the short term. As for the long term, there is obviously a very informed and lively discussion going on not just among the Liberal Democrats but across the system and across politics about what is the right long-term solution. Obviously, as I have said before, issues of taxation are for the Chancellor and not for me, but I would be delighted to meet her to discuss those plans. What I can say, on behalf of the Secretary of State, is that we understand that there needs to be sustainable, long-term increases in NHS funding. We have to find the right way to do that.

[Baroness Finlay of Llandaff (CB)]

Do the Government recognise the concern of the Royal College of Emergency Medicine that the revised way of collecting data by NHS England does not allow meaningful comparisons because it includes walk-in and minor injury units, some of which are off site from the level 1 major emergency departments? Its concern is that this may be giving an overoptimistic impression of throughput and does not reflect the huge pressures on level 1 units. Will the Minister undertake to meet the president of the Royal College of Emergency Medicine with me to discuss some of its concerns?

[Lord O’Shaughnessy]

This is an afternoon of agreeing to meetings—but, yes, I would be delighted to do so. I am not knowledgeable enough about the issue that the noble Baroness mentioned but, while of course there is a huge difference in the kinds of workloads of those different types of A&E, the target incorporates all of them. They all have the obligation to reach the four-hour waiting time standard and we want to make sure that, whatever the situation and whatever the venue, we can do that.

Public Health: Strength and Balance Programme

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Thursday 18th January 2018 Lords Chamber

[Lord O’Shaughnessy]

I have not seen an extrapolation of the benefits the noble Baroness talks about but they would clearly be significant. There are a number of schemes going on at a local level, which it is important to point out. One of them, which we have discussed before, is the “Dance to Health” programme that started with six pilots two years ago. That is now a nationwide scheme across England and Wales. Local authorities should look at precisely that kind of activity. Public Health England is committed to making sure that local authorities understand the Chief Medical Officer’s targets, so that we see more of these programmes taking place.

[Baroness Finlay of Llandaff (CB)]

My Lords, I declare my interest as president of the Chartered Society of Physiotherapy. There is evidence that every £1 spent on physiotherapy can save £1.50 on the cost of a fall along the whole trajectory. There is also evidence that targeted, multifactorial risk assessment of people at particular risk can decrease falls by 60%. Therefore, will the Minister make sure that falls prevention is viewed across the whole of the NHS and not only delegated to local authorities and programmes outside, because that would miss some of the people who are at the highest risk of falls?

[Lord O'Shaughnessy]

I am grateful to the noble Baroness for pointing out the benefits of physiotherapy. She might be aware of a scheme in Middlesbrough that is providing for people who have fallen a precise pathway from physio into community activities involving strength and balance work. As ever, one of the challenges is to make sure that all local authorities know about such programmes and put them in place. They are not necessarily expensive, but they take a bit of time. I will make sure that Public Health England is taking that attitude of spreading good practice across the country.

NHS Winter Crisis

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Monday 8th January 2018 Lords Chamber

[Lord O’Shaughnessy]

My Lords, I am happy to endorse calls for more funding for the National Health Service. That is precisely what the Chancellor provided in the Budget.

[Baroness Finlay of Llandaff (CB)]

My Lords—

NHS: EEA Doctors

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Tuesday 12th December 2017 Lords Chamber

[Lord O'Shaughnessy]

I point the noble Lord to the Prime Minister’s letter, in which she talks about the fact that the rights will be written into law as we leave the EU. He is right to point out the position of nurses and midwives; that is the only category where fewer EU staff are working in the National Health Service year on year. However, as we have talked about many times in the House, new language tests may have had a critical role in that and that is something we are reviewing it to make sure that we can continue to welcome nurses from abroad.

[Baroness Finlay of Llandaff (CB)]

Given the current vacancy factor, and the fact that we have some refugees who are doctors and some who are nurses with an enormous amount of clinical experience but whose English language skills need to be improved, what are the Government doing to provide targeted English language training and apprenticeship attachments so that these refugees can enter the workforce and become economic contributors?

[Lord O'Shaughnessy]

This is an excellent idea that the noble Baroness has shared it with me before. We are looking at it and we have a workforce strategy coming out, so I will do my best to ensure that it includes something on this.

Health: Atrial Fibrillation and Stroke

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Tuesday 12th December 2017 Lords Chamber

[Lord O'Shaughnessy]

The noble Lord is quite right that this is a very easily diagnosable condition through checking pulses. The device that he described and other ones are doing that. They are in every GP surgery and form part of the health checks that the noble Baroness talked about. As I said, I do not have the figures for just how many of those are taking place, but we know that 300,000 people are undiagnosed with this condition. Many of them will be in regular contact with the health service, and this is about making sure that GPs use the opportunity to carry out those tests, which will inform the treatment that follows.

[Baroness Finlay of Llandaff (CB)]

My Lords, could the Government undertake to ascertain from NHS England why the commissioning of day-case ablation for the treatment of atrial fibrillation is way below the European average, given that it is shown to be safe and effective, and to improve symptoms and the rate of return to work? It also almost certainly, although this is not yet completely proven, decreases the incidence of strokes, so it can be a preventive measure.

[Lord O'Shaughnessy]

Yes, I shall certainly write to NHS England to find that out, and I will write to the noble Baroness with that information.

Social Care

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Thursday 7th December 2017 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I declare my interests as vice-president of Hospice UK and my role with the Royal College of Emergency Medicine. I will ask the Minister three short questions. Will the voluntary sector be closely involved, given that there is a £1 billion contribution to care from hospices and the voluntary sector, which looked after 212,000 patients last year, providing health and social care that otherwise would have fallen to statutory funders? Secondly, given that falls are the major cause of deterioration in the health of older people, and the lack of social care in preventing falls and in being able to take people out of hospital afterwards, will the Minister assure me that this will look at the flow through hospitals and the requirements of social care provision in an integrated way? Thirdly, while the Minister has mentioned young carers, will he specifically provide assurance that this will also look at child carers, some of whom might be at primary school age? They are often forgotten when people look at the burden on carers because they are, in a way, invisible apart from in the school sector.

[Lord O'Shaughnessy]

I can absolutely provide that reassurance on the voluntary sector. The noble Baroness is quite right to highlight the vital role it plays—it is essential and critical to this sector. On falls, she will know just how important reducing falls is. The disabled facilities grant is increasing. It is not a well-known bit of government spending and not talked about much, but it amounts to about half a billion pounds a year. It can have a really big impact by keeping people in their homes for up to four years longer, reducing falls by 40%. It is something we have had the opportunity to discuss in this House recently. It is critical. She is quite right to focus on the frontier between health and social care and making sure that it flows and works well.

On child carers, I will write with more details about what the action plan covers, but clearly we will make sure that it looks at all carers, because a carer could be of almost any age. As she pointed out, it includes very young children as well as people in their 80s and 90s. A true carers approach would encompass all of them.

Health and Social Care

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Thursday 12th October 2017 Lords Chamber

[Lord O'Shaughnessy]

There has been a 20-year search for a solution to this problem. It was not me who said that; it was the chief inspector of hospitals, who said:

“I think the one thing I regret is that 15 or 20 years ago when we could see the change in the population the NHS did not change its model of care”.


This is something we have all grappled with, but we have not yet come up with the solution that we need. That is why, through this consultation, we will be looking not just at finance but at quality of care, variation and sustainable staffing to rebuild the consensus that we need to move forward.

[Baroness Finlay of Llandaff (CB)]

Given that the report has pointed out that staff resilience is not inexhaustible and that services are at breaking point, do the Government recognise the enormous contribution of voluntary sector providers, particularly—I declare my interest in the area—in palliative and end-of-life care and hospice services, which are maintaining patients in the community and taking a great deal of pressure off statutory services? Are the Government giving any consideration to a national funding formula, such as I propose in my Access to Palliative Care Bill, which has had its First Reading?

[Lord O'Shaughnessy]

I join the noble Baroness in paying tribute to voluntary sector providers and volunteers, whether family members or others, who support care throughout the NHS and social care. There need to be more paid staff to meet the needs of our growing and ageing population, which is why the Secretary of State announced a 25% increase in the number of training places and more nursing associates. That is being put in place to make sure that the system, which is described in the report as stretched, has the capacity it needs to meet patients’ needs.

End of Life Care

Debate between Baroness Finlay of Llandaff and Lord O'Shaughnessy

Tuesday 5th September 2017 Lords Chamber

[Lord O'Shaughnessy]

I thank the noble Baroness for raising this very important issue. On the tool and the cost effectiveness, we know how important it is to invest in these services. What we have now is not by any means a perfect service, but we do have the first national framework, NICE guidance and the CQC inspecting the quality of end-of-life care and showing up where there are still issues in provision. That is why we are working with Together for Short Lives and I think that the tool the noble Baroness has highlighted will help make the case to providers in order to do that.

There is significant funding going in from clinical commissioning groups and also what is called a care currency—a way of looking at that spending and making sure that it is being distributed to provide the care that is needed in a way that is predictable for the providers. In addition, another £11 million goes in from NHS England to support it. So there is always more to do but I think we are making good progress.

[Baroness Finlay of Llandaff (CB)]

My Lords, I declare my interests, both as having established integrated paediatric palliative care services in Wales and as vice-president of Hospice UK. Does the evaluation that the Government have asked for from Together for Short Lives include evaluation of the experience of the family, including siblings, of the care? Are they able to access what they need when they need it, particularly on a 24/7 basis when the child is at home and crises may arise out of hours, to ensure that unnecessary and inappropriate emergency admissions are not happening because a family does not know what else to call for? Does the family feel supported—there is evidence of better long-term outcomes, both in the bereaved parents and in bereaved children?

[Lord O'Shaughnessy]

The noble Baroness is a true expert on this topic and we had a very good debate on the subject, which she initiated, in March this year. In terms of the experience of care, I will check exactly what the charity is looking at. I know that there is now a measure—a questionnaire—of maternity bereavement which is looking at the experience of care and trying to learn from that, and I will see whether that is more broadly the case in terms of siblings and others, and indeed for non-neonatal child deaths. On 24/7 provision, again, we know that it is not yet universal but a couple of pilots are taking place on 24/7 nursing community care, so we are making some progress on that. Indeed, one of the metrics by which we will measure our success is the number of admissions and the time spent in hospital in the final 30 days of life, which speaks to the point she was making in trying to keep those who are dying out of hospital if that is not where they want to be.