Queen’s Speech

Baroness Hollins Excerpts

Thursday 9th January 2020 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I will speak about mental health.

I am thrilled by the Government’s commitment to put mental health on an equal footing with physical health. However, this has to be about more than just mental health services. First, greater mental health awareness needs to underpin the Government’s approach to all public services. In her eloquent speech, the right reverend Prelate the Bishop of Gloucester reminded us of the early years manifesto and of the importance of both early intervention and understanding the impact of adverse childhood experiences on future relationships, later mental illness or an increased risk of offending.

The Government would do well to take a longer-term public mental health approach to prevention. In their new investment in schools, are they investing enough in the mental health of pupils and teachers, giving them the skills and resources they need both to implement fully the new curriculum in social, emotional and mental health, and to respond to mental health crises?

Other public mental health approaches are ripe for development and we have heard about some today; for example, measures to reduce the risk of harm caused by online abuse or the harm caused by the sensational and negative behavioural norms so often portrayed in our media, both in print and on television. Public interest journalism requires a responsible attitude; I submit that this includes some responsibility for the public’s mental health.

Of course, investment is needed in mental health services too. The gap between mental health and physical health services remains huge. The Government’s estimate is that mental illness represents 23% of the total so-called disease burden but receives only 11% of NHS England’s budget. Some proposals that could make a real difference in the medium term are: doubling medical school intake, particularly attracting candidates who might make good psychiatrists; making it mandatory for all GPs have psychiatry and paediatric training, as recommended by the Royal College of General Practitioners commission on generalism, chaired by my noble friend Lady Finlay; and consulting on the effectiveness of a fourth emergency service to attend mental health crises in the community and provide health-based places of safety.

I welcome the Government’s inclusion of learning disability and autism as clinical priorities in the NHS long-term plan, and their commitment to introduce learning disability and autism training for all healthcare professionals. As a precaution, I have tabled a Bill that would make such training mandatory; it may prove a useful vehicle to progress the Government’s aim of improving the safety of this group and reducing the health inequalities it experiences.

I am also concerned for the safety and well-being of staff in the public services. At the Second Reading of the Health Service Safety Investigations Bill in the last Parliament, I asked:

“If the HSSIB undertakes investigations of the systems failures that result in risks to the safety of patients, could we not include the safety of staff too? After all, the same systems underlie risks to both groups.”—[Official Report, 29/10/19; col. 915.]


Will the Government respond positively to the growing requests for staff safety to be included in this Bill?

I welcome the commitment to produce a national disability strategy, which should make it easier to think about the needs of disabled people early in the preparation of relevant policies rather than considering impact and relevance only later. As always, I will be looking at whether the lives of people with mental illness or learning disabilities, and the lives of autistic people, will be centre stage. I always say that if we can get it right for people with learning disabilities, we can get it right for everyone.

This brings me to social care. The social care crisis has considerable mental health consequences—for the people who need care and support as well as for those providing both formal and informal support. Fixing it requires the effective integration of health and social care. More than half of social care spending in England is on working-age disabled adults; that is, people who need various forms of support and not just personal care, which is more often needed by older adults. They may need help to access healthcare, manage finances, access community events, sustain contact with friends and family, and to gain and stay in employment. These are the cornerstones of good mental health. For example, having a job means more than just a pay packet; it encourages a sense of pride, independence and social contact. One positive action would be for the Government to recommit to making more apprenticeships available for people with learning disabilities and to provide them with more support to gain paid employment as part of the effort to reduce the disability employment gap.

A mental health Bill will be welcome if it truly addresses some of the needs I have sketched out. Could the Minister provide the House with any details of the proposed timescale for such a Bill and for the White Paper on the reform of the Mental Health Act? Currently, people at many life stages can be detained under mental health legislation because the right support is not available in the community to meet their education, communication, care, housing and health needs.

Media coverage and a recent report by the Joint Committee on Human Rights have brought the specific issue of how the Mental Health Act is being used to detain people with learning disabilities and autistic people right into the spotlight. I should remind the House that last November, the Department for Health and Social Care asked me to chair an independent oversight panel on this critical issue. I have agreed to do so. We will be looking at the care and future prospects of people with learning disabilities and autism who are currently being detained in segregation and seclusion in in-patient units, and considering how to avoid such admissions as well as the best way to ensure the best therapeutic care for them, their timely discharge and the right skilled support in the community. I look forward to working with Ministers and other noble Lords on these issues.

Mental Disorder: Autism and Learning Disabilities

Baroness Hollins Excerpts

Tuesday 5th November 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

We absolutely agree with the noble Baroness’s point. We need to ensure that everybody who can be cared for in the community is able to be cared for. That is why we have reduced the number of people in in-patient care by 22%; we have set a target to reduce that number by 50%. We are driving that forward as quickly as possible.

On the matter of the serious incident review of Bethany’s case, we have received the report and are working to release it as soon as possible. NHS England is taking action to improve Bethany’s situation and secure an alternative, more suitable, provider in the community as quickly as possible.

Regarding the case reviews of every individual, the Government have committed to providing each patient with a date for discharge or, where that is not appropriate, with a clear explanation of why and a plan to move them closer to being ready for discharge in the community. This significant commitment from the Government should be welcomed.

[Baroness Hollins (CB)]

My Lords, I declare two interests. First, I had an editorial published in the British Journal of Psychiatry last week, proposing that learning disability and autism should be removed from the Mental Health Act. Secondly, I have just agreed to chair a panel to review the cases of people with learning disability and/or autism who are in segregated care. Does the Minister agree with the treatability criterion in the Act, particularly with respect to the question of removing learning disability and autism from it? In other words, does she agree that, in detaining somebody in hospital under the Act, the excuse of doing so to improve—or with the intention to improve—their behaviour, even though their behaviour may be a reaction to inadequate social care, is an inadequate reason for detention under legislation?

[Baroness Blackwood of North Oxford]

I thank the noble Baroness for taking on the chairing of the independent panel. I cannot think of anybody better placed to do so. When it comes to her question about the detention of an individual to improve their behaviour, again, I do not think that anybody in this place or elsewhere could disagree with her. On changing the Mental Health Act, we commissioned the independent review led by Sir Simon Wessely, who is also a leader in the field. He reported in December. In its findings, the review made it clear that we need to modernise the Mental Health Act, ensure that views are respected and ensure that patients are not detained for any longer than is absolutely necessary. Sir Simon stated that there is “no clear consensus” on removing autism from the Act, and that,

“we have heard also about the many negative consequences that could arise from being outside this framework … this should be kept under review”.

Obviously, we will not respond to that immediately. There will be a White Paper by the end of the year. We will consider this carefully and we recognise the strength of feeling on this matter.

Health Service Safety Investigations Bill [HL]

Baroness Hollins Excerpts

2nd reading (Hansard): House of Lords
Tuesday 29th October 2019 Lords Chamber

[Baroness Hollins (CB)]

My Lords, it is a pleasure to follow the noble Lord. I remind the House of my interests in the register.

I will make two main points about the proposed legislation which I hope will be considered carefully. The first relates to the patient safety issues experienced by those with learning disabilities in accessing healthcare, and the second concerns the safety of the wider healthcare community and the role of fear.

As many of your Lordships know, people with learning disabilities face huge health inequalities, with an estimated 1,200 deaths every year that could have been avoided with better healthcare. Many reports have shown this starkly, perhaps none more so than Mencap’s 2007 report, Death by Indifference. The groundbreaking but shocking reports from the Learning Disabilities Mortality Review Programme revealed that people with learning disabilities are four times more likely to die from causes amenable to good healthcare. This is clearly unacceptable in the 21st century. However, will HSSIB be the body which will identify and change the system so that it is truly safer for people with learning disabilities? The Bill we are debating is a small but welcome step towards tackling some of these injustices. What could make a real impact are the proposed and welcome powers of this new body, not only to identify risks to the safety of patients but, as emphasised by other noble Lords, to,

“address those risks by facilitating the improvement of systems and practices”.

Will the Minister clarify whether in practice the new body will have the powers to ensure that learnings from investigations are implemented, and in a timely manner?

Too often, even when solutions to problems are found, implementation of these solutions is either delayed or forgotten about. A variety of factors can be attributed to this, including institutional resistance and lack of political will. One such example is the delay in the implementation of mandatory, co-delivered learning disability and autism training. While the Government have at last committed to its introduction, it is unlikely that people with learning disabilities, and the clinicians responsible for their care, will see the benefits of this in the near future. Fifty per cent of clinicians responding to a YouGov survey in 2017 said that on-the-job training about learning disability would help them to deliver safer and better healthcare.

The second, increasingly serious, issue I should like to raise is staff safety, support and the role of fear. I hope that noble Lords will forgive me for repeating some obvious points, but I want briefly to consider why we investigate serious incidents. Is it because it is usually easy to find somebody to blame and allow the courts and professional regulators to do the rest, passing convictions and apportioning damages? The problem with this approach is that, in all but the most serious cases of individual failure or malice, it does not stop the problem happening again. Serious incidents occur when systems fail. When investigations focus on individuals, systematic failures go unnoticed, nothing of value is learned and harm occurs again.

The case of Dr Bawa-Garba demonstrated this tension well. She was convicted of gross negligence manslaughter and struck off the medical register for her involvement in the tragic death of six year-old Jack Adcock. But there were system failures too. On the day of Jack’s tragic death, Dr Bawa-Garba was covering for two doctors. She had recently returned from maternity leave. This was her first acute shift on call, but she had not received any induction. The GMC says that induction after a period of leave is essential. Furthermore, the IT system responsible for delivering test results was broken.

Whatever her individual failures, it is clear that her criminal conviction and being struck off did little to prevent a similar tragedy in future. It did not address widespread staff shortages. It did nothing to address the way in which the NHS supports doctors returning to work after a period of leave or to fix our broken and outdated NHS IT infrastructure. Out of such tragedies, there should be opportunities to address system failures. Doing so successfully could prevent more deaths and greatly improve the experience of both patients and staff working in the health service.

For those reasons, the placing of the Healthcare Safety Investigation Branch on a statutory footing and the additional investigatory powers granted to it are welcome, but if we are to have a body which undertakes investigations of the systems failures resulting in risks to the safety of patient, could we not include the safety of staff too? After all, the same systems underlie risks to both groups.

I recently heard of a trainee psychiatrist, a young mother working part-time, choosing to wear protective clothing to work to prevent serious injury in the event of a knife assault. Was her fear of being attacked justified? Just the previous week, a colleague had been stabbed, seriously injured and airlifted to a trauma centre. Thankfully he survived. Is not his injury as important to investigate as any other serious failure in the health service? Could his injury have been prevented if both he and the person who injured him had been better supported?

A recent report suggested that in 2016-17, there was an average of 200 assaults on NHS staff every day. The same report found that staff in mental health trusts were more than seven times more likely to be assaulted than staff in other NHS trusts. The most recent NHS staff survey showed that more than one in five workers in mental health trusts had witnessed an error, near miss or incident that could have hurt a member of staff in the previous month.

Fortunately, grave assaults on staff, such as the one I just mentioned, are rare, but they are a grim reality. Last week, I met a young doctor who raised that concern with me. I worry that such young doctors will choose to leave the NHS rather than stay and work in it. We need them.

Incidents involving staff safety provide no less an insight into the workings of our health service than incidents threatening patient safety directly. The same systems failures underlie risks to both, and there can be no doubt that investigating risks to staff could also result to improvements in patient safety. A dilapidated estate, a lack of safe places for clinical assessments to take place and dysfunctional alarm systems in hospitals are just some of the realities that staff working in mental health services face on a daily basis, which no doubt have an impact on both patient and staff safety.

The National Confidential Inquiry into Suicide and Safety in Mental Health, which investigated patient homicides for two decades, had its funding cut recently. It is a great loss that it is no longer able to undertake its important work on homicide. It found that for the 11% of homicide convictions in the UK that involved mental health patients, around half of those patients were not receiving care as intended, either through loss of contact or non-adherence with drug treatment. These observations carry the hallmarks of system failures. The proposed body has an opportunity to pick up where the inquiry left off and investigate the errors, incidents and system failures that result in this worst-case scenario of patient homicide, in particular if the victim was a member of the NHS workforce. Will the Minister therefore consider explicitly including risk to staff in the remit of the proposed new body?

Queen’s Speech

Baroness Hollins Excerpts

Tuesday 22nd October 2019 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I refer to my interests as listed in the register.

In reflecting on the Queen’s Speech and its relevance for the nation’s mental health, I wondered how, in 2019, we would now understand Nye Bevan’s assertion that no society can legitimately call itself civilised if a sick person is denied medical aid because of a lack of means. Over the past 71 years we have deepened our understanding of what it means to be sick and what it means to be healthy. We have seen the futility of separating health from social care, and learned that a person’s capabilities are as essential a resource as their finances.

One of the earliest debates that I was involved with in this House related to the Health and Social Care Act 2012 and the issue of parity of esteem for mental health. Informally, in preparing for that debate, I asked Members of your Lordships’ House what they understood by “health” and “illness”. Your Lordships spoke about strokes, heart attacks, diabetes and so on, but at that time there was little mention of mental illness or mental health.

The conversation has changed since 2012. There is more and better-informed talk about mental health. However, despite the commitment to parity, only 40% of people with mental illness receive treatment, and only £1 in £10 of NHS spending goes on mental health. There has been a 14% fall in the number of mental health beds since 2014 and community services have not been equipped to compensate for this change. For example, at least seven people are known to have died between June 2018 and March 2019—people who had been assessed as requiring admission but for whom no mental health bed was available.

When people are admitted to hospital, as we have already heard from many noble Lords, they are likely to experience some of the worst estate within the health service. The Government’s recent announcement of,

“the biggest, boldest hospital building programme in a generation”,

contained no new funding for psychiatric hospitals.

We are now more cognisant of the social determinants of health. Theresa May noted in her first address as Prime Minister that people born into poverty will live nine years less on average, and we have heard again today about the reduction in life expectancy for black and minority-ethnic users of mental health and learning disability services.

We also better understand the detrimental effects on adult mental health of adverse childhood experiences, including abuse, neglect and parental death or separation. I hope that the Government will seriously consider the effects of proposed longer criminal sentences and the consequent further break-up of families on intergenerational cycles of mental ill-health.

It is difficult to recover from severe mental illness if you do not have shelter, yet half of delayed discharges from mental health beds are due to difficulties in securing appropriate housing and care packages, with some patients choosing to discharge themselves and be homeless rather than remain on understaffed mental health wards, while others remain detained under the Mental Health Act for prolonged periods because of their vulnerability should they be discharged to inadequate provision. This is clearly an inappropriate use of the Mental Health Act and of hospital beds, and it is a problem based on a deficit of adequate housing and social care.

Offering psychotherapy to someone who cannot be sure that tomorrow they will have a roof over their head is like providing medication to a patient in hospital but not feeding them. For people with serious mental illnesses, learning disability and autism, the division between health and social care is not just artificial but harmful.

It is time to extend the parity principle to social care as well as healthcare and ensure that both are adequately funded. Can the Government commit to employing the principle of parity of esteem in their response to the social care crisis by placing the social care needs of people with long-term mental disability on an equal footing with the social care of people with physical illness and frailty in later years?

Just because the health service does not cost money to use does not mean that everyone has the means to use it. Many people are unable to navigate an increasingly complicated healthcare system by themselves. Fragmented and ever-changing services are difficult enough for the professionals working in them to fathom, and it takes effort and luck for any patient to get the best out of the NHS.

With the failure of the Transforming Care programme and the abuse reported at Whorlton Hall eight years on from Winterbourne View, fears that a hospital admission could lead to abuse or even death are understandable. Ongoing review by the CQC into the use of segregation for young people with learning disabilities and autism is essential. These are some of society’s most vulnerable and overlooked people and we need to understand what has gone wrong, without apportioning blame. For this, the newly announced health service safety investigations Bill is welcome.

I hope that some of the difficulties I have highlighted will be addressed through increased integration of services in line with the Government’s commitment to the NHS long-term plan. I want to end by applauding my noble friend Lady Audrey Emerton’s extraordinary contribution both in this House and as a leader in nursing in enabling better life chances for people with learning disabilities. I personally will miss her wisdom and good humour and I wish her a contented retirement.

Child and Adolescent Mental Health Services

Baroness Hollins Excerpts

Monday 25th March 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

The noble Lord, Lord Hunt, is very experienced in this area and has been involved with local clinical commissioning groups. The NHS has already opened 117 additional new mental health beds, and we have introduced new waiting standards for psychosis and eating disorders among children. Progress is already being made, but we should not dismiss the frustrations of those trying to access services. That is why we have put in place ambitious new targets with the long-term plan: we want to see 100% of children able to access the care they need.

[Baroness Hollins (CB)]

My Lords, about two-thirds of children with autism and two-fifths of children with special educational needs experience mental health problems. But the provision of specialist clinical community child learning disabilities services is sparse. What are Her Majesty’s Government doing to ensure that the needs of those vulnerable young people are planned for in the new funding allocation?

[Baroness Blackwood of North Oxford]

The noble Baroness is right: those with particular needs, where autism or learning disabilities cross over into mental illness, must be taken into account. Some distressing figures show that those with learning disabilities do not get the physical health assessments that they need either. This must be taken into account and is in part why the children and young people’s Green Paper puts in place designated senior leads for mental health in schools and mental health support teams in and around schools, so that those needs can be identified as early as possible, and we can prioritise prevention and early identification of mental health needs when they arise.

Children: Oral Health

Baroness Hollins Excerpts

Tuesday 12th March 2019 Lords Chamber

[Baroness Hollins (CB)]

My Lords, there are greater unmet oral health needs for people with learning disabilities. These are issues that start in childhood and continue into adulthood. Does the Minister agree that the educational methods proposed for children should be adjusted to be suitable for children with learning disabilities and extended into adult life, as suggested by the Faculty of Dental Surgery? I welcome the new government guidance that was published last week on the oral health needs of children and adults with learning disabilities.

[Baroness Blackwood of North Oxford]

The noble Baroness makes a very important point about ensuring that dental care is available and accessible to all. Dental commissioning responsibilities are for NHS England, which is responsible for ensuring that dental services meet local needs and helping individuals who are unable to access a dentist. She has raised a very important point about access for those with learning disabilities and I shall ensure that this is raised within the department.

Mental Capacity (Amendment) Bill [HL]

Baroness Hollins Excerpts

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

[Baroness Meacher (CB)]

My Lords, I hope the House will indulge me for one or two minutes. I welcome the amendment and have no objections to it at all. However, I note that the Government have not come forward with amendments in relation to three other issues. The first is the risk to others and the interface with the mental health review. It would be helpful if the Minister could give us an assurance that the Government will not seek in the Commons to clarify the interface between this legislation and the mental health review. There is talk of using “objection” as the key criterion, but in my view we also need to consider the risk to others as a possible principle to be considered. Can we have an assurance that the Government will not seek to resolve this issue during the progress of this Bill in the Commons?

The second issue concerns independent hospitals, which we have debated. Although I certainly do not wish to reopen that debate, can the Minister give us an assurance that work will be done in preparation for the Commons stages on the very serious situation in which many people find themselves in independent hospitals? These hospitals are often remote and—if I may say so—not well run. People are incredibly vulnerable in them, often far more so than in homes. An assurance that that will be addressed in the Commons stages would be helpful.

The third issue regards domestic situations. Whatever the Government decide to do in the Commons, can they bear in mind the importance of trying to limit the levels of bureaucracy and, ideally, of not continuing to use the Court of Protection? Again, many very vulnerable carers caring for very vulnerable people do not have the resources to deal with a lot more bureaucracy—they already have a hell of a lot to deal with. Can the Minister respond on that point?

[Baroness Hollins (CB)]

My Lords, I share my noble friend’s concerns about the impact and relevance of Sir Simon Wessely’s review of the Mental Health Act. It is particularly concerning that the Bill will now proceed to the other place without careful consideration in your Lordships’ House of how it will interface with Sir Simon’s recommendations, which were published in his review only last week. His proposed new dividing line, which identifies whether the Mental Health Act or the Mental Capacity Act should be used in a given situation, will be based on whether P objects or, in the case of people with learning disabilities, whether P’s behaviour puts others at risk. The Mental Capacity Act, as it will be in its currently amended form, has a direct bearing on any changes to the Mental Health Act, and vice versa.

Given this new dividing line, does the Minister expect more or fewer people with a learning disability to move across from the Mental Health Act to the new LPS system? What research is the department doing to explore this, and what impact will the change have on the number of people with learning disabilities and autism detained in assessment and treatment units? Is there a risk that the gains made by the transforming care programme will be reversed? Related to this, and given the uncertainties, will the Government commit to extending the transforming care programme, which is otherwise due to close later this year?

My final point is that the Wessely review specifically recommends that the periods between reviews of renewal decisions should be reduced in the Mental Health Act. This Bill as it stands would allow a responsible body to detain a person for up to three years without renewal review. Surely the Government will want to take this issue equally seriously with respect to the Mental Capacity Act.

Mental Health Budget: Domestic and Sexual Violence

Baroness Hollins Excerpts

Thursday 22nd November 2018 Lords Chamber

[Lord O’Shaughnessy]

I am grateful to the noble Baroness for her recognition of the work that is going on in funding. It is important to point out that NHS England published a sexual assault and abuse strategy this April. That involved funding for sexual assault referral centres and a range of other innovations, including an Identification and Referral to Improve Safety project, which has now been rolled out in 800 GP practices. So work is going on not only to roll out these kinds of services but to make sure that many more victims are coming through to them. I know that the Women’s Mental Health Taskforce is due to report later this month and I will speak to my colleague, Jackie Doyle-Price, who is the lead Minister, to find out if we can give more specificity on how we track the number of users of these kinds of services.

[Baroness Hollins (CB)]

My Lords, we know that sexual violence in childhood, whether as a victim or secondary victim, correlates closely with mental illness in adulthood. Will the Government make childhood trauma a local commissioning priority and invest in trauma-informed models of care?

[Lord O’Shaughnessy]

The noble Baroness is right and I can reassure her that some of the additional £100 million of funding that the Government are providing for this issue is going on children who have been victims of abuse. Indeed, the draft domestic abuse Bill that we look to bring forward this Session will propose tougher sentences when a child has been involved in domestic abuse.

Mental Capacity (Amendment) Bill [HL]

Baroness Hollins Excerpts

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

[Baroness Finlay of Llandaff]

My Lords, I also welcome these amendments; removing “unsound mind” is a major step forward. I have a couple of questions for the Minister and I hope he can clarify. I may have misheard him but I understood him to talk about head injury. It would be helpful if he could clarify that he was referring to acute head injury—or acute brain impairment of any sort—as opposed to long-term damage such as frontal-lobe damage, which can happen when you have had a major brain injury. This can result in very long-term problems and difficult behaviours, which may mean that people currently need to be assessed as subject to deprivation of liberty. Could he clarify that we are not discounting a whole group of people who, it is generally felt, benefit from being properly assessed and safeguarded?

I would also like confirmation from him on another group. In January 2015, the then Mental Capacity Act deprivation of liberty safeguards policy lead in the Department of Health wrote out quite widely. There had been a concern about people who were nearing the end of life, including palliative care patients and patients in hospices. It was made clear in this letter that if somebody had consented to a care package and then went on—as part of their disease process when they were dying—to need some restrictions, and possibly to be moved to another place of care, that would not fulfil the acid test as such; neither would it in the case of people who were being nursed in a side room who were not under continuous supervision and control. The reason was that, in palliative care cases, there is often a time when the family cannot cope as the patient becomes unconscious, is moved to a hospice or develops another condition that had not been anticipated. It would be an inadvertent consequence if this letter from January 2015 no longer stood. It has been important and has made care easier. It was following this letter that we were able to change the regulations for what had to be referred to a coroner. That made a major difference, because families found it terribly traumatic to find a relative subject to a deprivation of liberty safeguard having to be referred to a coroner. I simply seek clarification on those two issues, but I in no way question the importance of removing “unsound mind” from the Bill. I hope this is the beginning of us seeing the end of that term, which is stigmatising.

[Baroness Hollins (CB)]

My Lords, I welcome the replacement of “unsound mind”, but I ask the Minister to consider adding a safeguard to ensure that no one has their liberty denied because of a mental disorder without first being seen by a qualified doctor. It is essential that individuals are assessed for a mental disorder and not another condition presenting as a mental disorder, such as delirium or the side-effects of medication, which are common among older people. It is important that consideration is given to whether the disorder can be managed without depriving the person of their liberty. This requires assessment not only of their mental state but of their past and current physical health and medication. The assessment is a core part of this process. It has great significance because it relates to the deprivation of a person’s liberty. Who can carry this out should be stipulated in the Bill rather than in a code of practice. I ask the Minister to reconsider bringing forward an amendment to add this requirement to the Bill.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I support the noble Baroness on the assessments. The Minister’s amendment is very welcome, but clearly the assessment is crucial. My understanding is that in previous debates, as the noble Baroness suggested, he said that the code of practice will set out which competencies will be needed to carry out this assessment. Like the noble Baroness, I ask him to consider, perhaps between now and Third Reading, whether this might be better put in regulations than in the code of practice. I always worry a bit about the use of “competencies”. It is a word now used in many recruitment processes, but what exactly does it mean? Will it be done by a registered medical practitioner with sufficient expertise in this field? If not, what is the justification? The change the Government have made is enormously welcome, but it is very important that we are confident the assessment will be carried out appropriately.

Mental Capacity (Amendment) Bill [HL]

Baroness Hollins Excerpts

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

[Baroness Finlay of Llandaff]

My Lords, I feel that I should apologise for leading on this group of amendments, but it was by chance that my number came up. It was not my choice: I did not ask to lead on it.

The role of Amendment 65, which is the one that I really want to speak to, is to state clearly that we must strengthen the voice of anyone who has any concerns so that they can speak up on behalf of the cared-for person. I note that my noble friend Lady Hollins’s Amendment 66 provides powers to the voice of the responsible body and would mean that the responsible body must listen to representations. Amendment 67 strengthens the word “must”. There is a great deal in these amendments. I will not take the time of the Committee by speaking to other noble Lords’ amendments, other than to say that this group of amendments contains a great deal of rich wisdom. I beg to move.

[Baroness Hollins (CB)]

My Lords, this group of amendments concerns the appointment of an advocate, or appropriate person, to support the cared-for person in exercising their rights. The appointment of an independent mental capacity advocate and the identification of an appropriate person rely on care home managers being able to arrange a capacity assessment and a best-interests decision and on them notifying the responsible body. I noted the Minister’s assurance on our last day in Committee that care home managers will not be making an assessment themselves. But how will errors be identified and what will happen if the care home manager gets it wrong? Will the Minister tell the Committee how that will be detected on the basis of a paper-based review by the local authority when the paper has been supplied by the care home manager? The responsible body should not rely simply on what the care home manager thinks.

My Amendment 66 gives the local authority discretion to appoint an appropriate person or IMCA without notification from a care home, with whom there may be a conflict of interest, if the responsible body has reason to believe that such representation and support is needed for the cared-for person. Reasons to believe might include notification by an AMCP or a third party, or local authority social services involved in care planning.

The provision of advocacy can have a transformative effect and be the first time that the cared-for person’s views, and those of their family, are forcefully represented to decision makers. A failure to listen to people or to give weight or credence to what they say lies at the heart of many of the tragedies that have shamed social care and health services over recent decades. For that reason, it is vital for people to get the support that they need to express their views and exercise their rights, either through the appointment of an appropriate individual, often a family member, or an independent mental capacity advocate.

As they stand, Clauses 36 and 37 of the Bill are confusing and poorly drafted, with inconsistencies. For example, the Bill states:

“An IMCA should be appointed if the cared-for person … has capacity to consent to being represented and supported by an IMCA, and … makes a request to the relevant person”—


but IMCAs are instructed to support and represent only people who lack capacity. My Amendments 67, 69, 70, 73, and 74 add emphasis and aim to address these inconsistences and ensure that every cared-for person has access to support from either an appropriate person or an IMCA who is both willing and able to help them understand and exercise rights of challenge.

As it is drafted, the Bill leaves open the possibility of circumstances where a person may have neither an IMCA nor an appropriate person and therefore no means of being able to exercise their rights under Article 5(4) of the European Charter of Human Rights. Rulings such as the AJ v A Local Authority judgment, in paragraph 35, stipulate:

“Article 5(4) may not be complied with where access to a court is dependent on the exercise of discretion by a third party, rather than an automatic entitlement … Where a person lacks the capacity to instruct lawyers directly, the safeguards required may include empowering or even requiring some other person to act on that person’s behalf”.


My amendments therefore remove best interests from the criteria for appointment of a representative, as this should play no role in determining whether people are able to exercise their rights of challenge. Will the Minister explain the basis on which he believes that Part 5 of the Bill as drafted is fully compliant with this ruling and with ECHR Article 5?

I am also concerned about the potential conflict of interest if those responsible for arranging and providing care, such as care home managers, also act as gatekeepers to the person’s ability to exercise their right of appeal through best-interest assessments. There should be a clear route for the cared-for person to be able to appeal and to get the support that they need to do this. We know that access to justice is already a serious problem under the current system. The appeal rate is below 1% and cases such as that of Steven Neary and others show how hard it is for families and detained people to challenge public bodies where they object to the arrangements. I understand that the Government estimate that the new arrangements will reduce the appeal rate even further to 0.5%.

My Amendments 76 and 77 recognise the considerable responsibilities being placed on an appropriate person. In some circumstances, an appropriate person such as a family member who knows the person may well be best placed to assist the cared-for person, but may need some assistance. Making sure that an IMCA is involved in these cases would enable them to fulfil this role with support.

Nothing in the Bill details the functions that the IMCA will perform. It would help the Committee if we understood why this has not been addressed. The Law Commission’s draft Bill provided powers to strengthen regulation provision—Section 36 of the Mental Capacity Act—around how an IMCA is to discharge the functions of representing or supporting, including challenging decisions and facilitating a person’s involvement in relevant decisions. The experience of DoLS over the last nine years has shown us the need for clarity on when the representative—an IMCA or lay person—can or needs to challenge the authorisation.

My Amendment 79 recognises this and reinserts regulation-making powers into the Bill, extending it in the case of an IMCA appointed under the LPS to make provision as to how that advocate is to support the cared-for person, and where relevant the appropriate person, in exercising the right both to make an application to court and to request a review. This provision is necessary to secure a person’s rights under Article 5(4).

The Bill recognises that the role that the appropriate person undertakes provides a vital safeguard for the cared-for person for the purposes of Article 5 of the ECHR, but the Bill fails to place a duty on the responsible body to keep under review whether the appropriate person is undertaking their functions. This is an important safeguard under the DoLS, where the relevant person’s representative role—essentially an identical role to the appropriate person—has a duty to maintain contact with the cared-for person. My Amendment 80 places a duty on the responsible body to keep under review whether the appropriate person is undertaking their functions and, if they can no longer fulfil them, to appoint another appropriate person or IMCA at that point.

The Minister has given reassurances, a number of times, that issues within the Bill will be addressed through the code of practice. The requirement to act needs to be in the Bill. How it is done and implemented could be set out in the code of practice. I hope that the Minister will accept that these amendments address serious and fundamental issues that need to be resolved within the Bill.

--- Later in debate ---

[Baroness Murphy]

May I just add that I think it is important to read all the amendments of the noble Baroness, Lady Thornton? She provides for any opportunity, any chance, that the individual may indicate that they have changed their mind, at which point those things come to an end, essentially. They have to be quite specific that if there is any doubt in somebody’s mind that this is no longer something that can be continued, that there is anxiety about them being implemented, then it comes to an end. So I think those things can be taken care of.

[Baroness Hollins]

My Lords, these amendments are examples of the long and complicated amendments which I think could end up going wrong, because they are trying to cover quite a lot, which will probably become gold-plated and give rather too much weight to the legal profession. I do not think that what Sir Simon Wessely planned to do is relevant here, because it is not really about mental illness but about dementia. If that is the case, people may not be in a position to change their mind at a later date, so these amendments are very complicated and probably rather unwise.

[Lord O’Shaughnessy]

I am grateful to the noble Baroness, Lady Thornton, for introducing this clause stand part debate. We had a chat earlier, so I shall not formally respond to her but instead deal with the amendments as laid, if that is all right with everybody. Clearly, these are very important issues that need to be dealt with properly.

Amendment 84 would allow individuals to provide advance consent to arrangements enabling care or treatment that would otherwise amount to a deprivation of liberty. As noble Baronesses have commented, the Law Commission recommended that provision should be made in the Bill to allow this. This would mean saying that cared-for people entering certain settings, such as hospitals and end-of-life care, where the arrangements are predictable and time limited, would not be required to undergo additional assessments if they needed to be deprived of their liberty. In the Government’s response to the Law Commission, we agreed that people should have choice and control over future decisions being made on their behalf, but we said that we needed to look at the detail of this specific proposal. I understand that there is enthusiasm among some noble Lords for such a recommendation, particularly, as has been said, as a way of alleviating unnecessary assessments for those in palliative and end-of-life care.

On palliative care, before I get on to more general concerns, I think it is important to note that the Government have issued some guidance about consent in the context of palliative care in the last few weeks of life. I realise that this talks only about one part of the time period that we might be talking about. The guidance says that if an individual has capacity to consent to arrangements for their care at the time of their admission, or at a time before losing capacity, and does consent, this consent would cover the period until their death, hence there is no deprivation of liberty. However, the guidance is also clear that this consent would no longer be valid if significant extra restrictions were put in place, after this point, to which the person had not consented. So there is a situation that pertains to people right at the end of life and provides some opportunity for challenge if restrictions change.

If we extend that time period out, not just to weeks but to months and years, it has been brought to light in this debate that, while there is a desire to make sure that a person’s advance consent is taken seriously and given legal force, concerns have also been raised, not least by the noble Baroness, Lady Finlay, about extending the application in such a way that it could actually deprive people of their protections and human rights. These are clearly concerns that we need to take seriously.

Concerns have also been expressed to the department, in engagement with stakeholders, that the inclusion in statute law of advance consent to being deprived of liberty might imply that there is an expectation that people should have an advance statement of wishes in place, and that people may be pressured into making an advance statement. I take the point made by the noble Baroness, Lady Murphy, that in some ways planning for the future may be a good thing but, equally, we do not want to force people to plan for the future when their desire is not to. We protect the right of people to make bad decisions; that is an important part of a person having a sense of agency and autonomy. Concerns have been expressed that that would be put in danger and people would feel pressured to do something that they might not wish to do.

Clearly, the Law Commission made this recommendation with highly laudable aims. However, we have concerns and are not yet convinced of the merits of the amendment. We have tried to deal with some of the issues around integrating planning through the creation of a system based on the production of a care plan. We have talked about the inclusion of a statement of wishes. I would like to know more about the proposal of the noble Baroness, Lady Barker, about advance statements of wishes. I would like to follow that up and understand it a bit better. The process we are envisaging would allow the inclusion of advance decisions to refuse treatment as part of future care planning. That is not affected by what we are discussing here but that would be allowed. We are not convinced of the merits of the amendment—indeed, we have some concerns about the implications of it—but I would be keen to understand a bit more about previous discussions of this topic and whether there are other ways to provide that sense of agency for the person who will be cared for without producing undue pressure on them or legal force in a way that would go against their interests and, in legal terms, their human rights.

Amendment 85 would create a new civil court remedy against some private care providers, including non-NHS hospitals and private care homes, if they have deprived someone of their liberty unlawfully. Again, this provision was proposed by the Law Commission. However, we do not believe that a new legal remedy is required. There is already an ability to seek damages under the Human Rights Act on the basis of a breach of Article 5 and usually Article 8. This is available in private cases, where a private care provider is depriving a self-funder of their liberty unlawfully. A remedy could be sought against the public authority responsible for the deprivation. Obviously, we need to hold private care providers to the same standards that we hold public care providers to. There are already a number of mechanisms that allow for this, and the law provides for them. There is the criminal offence of false imprisonment, as well as the existing law of false imprisonment for civil claims. So people can already bring legal action against private care providers.

On top of this, the Care Quality Commission in England and the Care Inspectorate Wales would also ensure compliance with the liberty protection safeguards. Clearly, they have a range of enforcement actions available to them that apply to the public and private sector alike. Furthermore, as commissioners, local authorities will—and do—have a role in ensuring that private care providers fulfil their legal duties. The Government believe that sufficient levers are already in place and that the creation of an additional civil route could increase care providers’ insurance costs at a time when, as we all know, we are working hard to make sure that there is funding in the system to provide adequate and good-quality social care to everybody who needs it.

I understand and agree with the desire to hold private providers to the same standards that we hold public providers to, but we believe there are existing remedies within the system and there is no need to require or implement new ones. On that basis, I hope the noble Baroness will not move her amendments.