Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Jolly and Baroness Barker

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

[Baroness Barker]

My Lords, I want to make a couple of quick points. The noble Baroness, Lady Murphy, is of course right that the whole issue of DoLS and the community is known to be a problem. However, the examples she gave seem to me to be examples of people not understanding the DoLS legislation and applying it wrongly, rather than the legislation necessarily being wrong. It is always important to make the case for the rights of families to reject undue intrusion, but I want to share with her the case of a young man with whom a learning disability organisation was working. The organisation achieved great results and he did really well. Prior to his involvement with the organisation, he would sit all day in a part of the living room that had been bricked off by his parents, with his own chair, his own television and being fed through a hatch. That was in a domestic setting. I need not tell the noble Baroness that we need to be quite careful when drawing up legislation.

It is a great shame that we have been presented yet again with a piece of legislation that came out of nowhere when we could have had a proper consultation. The people who are out working in the field at the moment having to administer DoLS understand many of the problems. They know that issues that arose partially from the application of the Cheshire West ruling and the High Court judgment have caused a problem. But amending a really bad Bill is not the way to deal with this problem.

[Baroness Jolly (LD)]

I want to make a couple of points, but I first draw the attention of noble Lords to my interests in the register relating to learning disability. It is interesting how to read this amendment. I looked at it and thought about individuals in domestic settings, and the charity that I chair does just that. We put four or five individuals into a domestic setting. A proportion of them will have a DoLS. If noble Lords go into the house, it looks just like an ordinary home. Each resident pays rent and would consider it very much their home. Carers offer 24-hour support and locks are well and truly in evidence. Over the weekend, I asked our director of operations what proportion of the people we support were subject to DoLS, and she said thousands. It is just the norm.

I understand that the noble Baroness’s intention was to take this into a family setting where there is mum, dad and a child who may well be an adult—certainly, we see parents in their 80s caring for their children with a learning disability who may be in their late 50s or late 60s, and the parents are at their wits’ end. All that fits with this amendment so, whatever its merits, the wording needs to change but it is certainly worth pursuing.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Jolly and Baroness Barker

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

[Baroness Jolly (LD)]

My Lords, a cared-for person has rights, and it is the duty of all those dealing with that person to understand those rights and to ensure that they are respected and recognised. I am certain that the rights of a cared-for person should be at the heart of liberty protection safeguards. One way to ensure this is to provide an automatic referral pathway to an AMCP in those cases of dispute, objection or disagreement that cannot easily be resolved. We know that a group of cases referred to court has been pivotal in ensuring that people’s rights are upheld in the field of mental capacity. These cases provide AMCPs with the authority to refer to the court. If this authority is on the face of the Bill, it will provide an added level of reassurance that the interests and wishes of the cared-for person will be fully considered.

Cared-for people are found in many different settings in this context—in hospitals, care homes and, indeed, their own home—whether they are supported by friends and family or by a care provider. I believe that this amendment will have particular relevance in cases involving potential deprivations of liberty within the cared-for person’s own home. Although the Minister’s letter addressed after Second Reading stated that all applicants will be subject to an independent review before authorisation, the Bill as it currently stands does not reflect this—nor the ability of the AMCP to refer to the court any issues that have evaded amicable resolution. I wonder whether the Minister will look at this when he sums up, and bring back some government amendments on Report to resolve these omissions.

[Baroness Barker (LD)]

My Lords, some amendments in this group are in my name. The purpose of putting these amendments down is to enable a debate about the extent to which the Bill relies on family members to take responsibility for escalating up and—as it seemed to us when we started to read the Bill—challenging care home providers, as well as challenging any deprivation of liberty. We know from the experience of Mark Neary that he relied heavily on provisions of the Mental Capacity Act—particularly covering review procedures—to equip him with what he needed to challenge what was being done to his son. It seemed to us that, because of the way the Bill was written, there was a greater expectation that it would fall to relatives to bring matters before the court, which is not easy to do.

We realise that going to court is an expensive and time-consuming business. We do not want to refer cases to court where there is no need to do so—we want to rationalise—but in our view this part of the Bill is inadequately written. It does not contain sufficient safeguards, and therefore we wanted a debate on these matters to probe exactly what support family members will have where there is a need to challenge decisions made under LPS.

Epilepsy: New Treatments

Debate between Baroness Jolly and Baroness Barker

Monday 2nd February 2015 Lords Chamber

[Baroness Jolly]

Certainly. As I said, clinical commissioning groups are looking at the majority of epilepsy services. On stroke, across the country there is a huge move to set up stroke care pathways. The noble Lord will know about that as well.

[Baroness Barker (LD)]

My Lords, are all CCGs required to commission therapeutic drug treatment programmes and to share the data nationally so that there can be shared learning on what works best for patients?

[Baroness Jolly]

This is a really big issue for epilepsy. As I said, CCGs commission the majority of services. NHS England commissions the specialised stuff. There needs to be a far more effective data-sharing programme to know where we stand on these issues.

NHS England: Major Incidents

Debate between Baroness Jolly and Baroness Barker

Wednesday 28th January 2015 Lords Chamber

[Baroness Barker (LD)]

My Lords, does the 2013 guidance that was issued to all trusts still stand? Is the purpose of that guidance not only to enable individual hospitals to signal to their CCGs that they are having a problem coping but to alert other hospitals in the surrounding area that there is a capacity issue which has to be dealt with on an emergency basis?

[Baroness Jolly]

I think that is right. The document produced in the West Midlands is the only one of its kind. Other areas have not done the same, so they would be relying on that document. Decisions like this affect the whole health economy, so not only would CCGs be involved but directors of public health, any other acute trusts within the area, community trusts, partnerships trusts, ambulance trusts and primary care organisations. It is an effort on behalf of them all to support a hospital or an A&E department that is in trouble.

Care: Budget

Debate between Baroness Jolly and Baroness Barker

Wednesday 28th January 2015 Lords Chamber

[Baroness Jolly]

The Government have been trying very hard to give direction. One issue that we have been trying to direct is integrated care, joining up care services. However, public finances are in a precarious position. The deficit is still projected to be over £100 billion. The report from Age UK is a very good and interesting read, but I discussed it with officials this morning and we could not follow some of the figures and ways of working from its results.

[Baroness Barker (LD)]

My Lords, will the Government extend the better care fund into future years in order to transfer resources from the NHS to social care, so that the number of people having to go into hospital can be reduced?

[Baroness Jolly]

Certainly, that is the Government’s aim, and we legislated to establish the better care fund, providing £5.4 billion from this year through to next year. Quite what happens thereafter will depend on the result of the election in May.

NHS: GP Salaries

Debate between Baroness Jolly and Baroness Barker

Monday 26th January 2015 Lords Chamber

[Baroness Jolly]

Certainly those changes under the last Government are well recorded but GPs wages have been falling every year in real terms since 2005-6. The expenses-to-earnings ratio increased from 62.7 to 63.7 and the additional funding announced at the end of last year will support general practice and out-of-hospital care more widely to improve infrastructure and pilot new ways of working.

[Baroness Barker (LD)]

My Lords, following the Royal College of General Practitioners report in June 2014 about the difficulty of getting doctors to practise in areas of deprivation, what progress has been made to ensure that poorer areas have the requisite number of GPs?

[Baroness Jolly]

I can tell my noble friend that today has brought good news. NHS England, Health Education England, the Royal College of GPs and the BMA today published a 10-point plan to boost GP numbers. As part of this, NHS England is working with the BMA and the royal college to explore a time-limited incentive scheme to offer additional financial support to GP trainees committed to working for three years in areas where it is hard to recruit GPs.

Carers Strategy

Debate between Baroness Jolly and Baroness Barker

Thursday 3rd July 2014 Lords Chamber

[Baroness Jolly]

The noble Baroness is right; the report is overdue for publication. I pressed my officials before coming here about when it is likely to be reported and the answer was, “Very, very soon”.

[Baroness Barker (LD)]

My Lords, can the Minister say what assistance is being given to local authorities to fulfil their duty under the Care Act to provide assessment and independent financial advice to carers?

[Baroness Jolly]

Yes. That issue came up throughout the passage of the Care Bill. There was a lot of anxiety on behalf of local authorities. The impact assessment has committed extra money for carers’ rights and an additional £69.4 million for 2015-16 through the Better Care Fund, rising to £192.6 million by 2020.

Care Bill [HL]

Debate between Baroness Jolly and Baroness Barker

Wednesday 3rd July 2013 Lords Chamber

[Baroness Barker]

My Lords, I shall speak to Amendments 78A and 78B, which stand in my name and that of the noble Lord, Lord Hunt of Kings Heath. These and other amendments which will crop up throughout our discussions have been inspired by the Christian Science movement. I wish to say that I am not a Christian Scientist, but Christian Scientists hold to some very firm beliefs which are of great importance to them. Part of their belief system is that they do not wish to receive medical treatment in circumstances where other people would make a different decision. Therefore, in health Bills such as this, where we are setting out the principles that underlie what we define to be good care, it is not uncommon for me and the noble Lord, Lord Hunt, to put on record again that there is a spiritual dimension to health and well-being and that the way in which that spiritual belief is manifested can be different for minority groups.

One great strength of the Bill is that it takes a principled approach to what we define as well-being rather than attempting to define well-being in a descriptive sense. One reason why I think that that is increasingly important is that we have an increasingly diverse population. Therefore, the meaning of well-being for individuals is becoming distinct and diverse throughout society. The amendments place a duty on local authorities and relevant health bodies to respect the increasing diversity of our population.

There are two other reasons why I am very pleased to support the amendments. Like everyone else in the House, I am greatly in favour of the integration of health and social care. I see the undoubted benefits of that, but as someone who has worked in the field of social care, as opposed to health, all my life, I still carry with me the fear of the medicalisation of disability or of old age. When push comes to shove, when budgets are tight, some of the certainties which surround physical health, in particular, can overtake social goods which are less easy to define. Therefore, it is important that we ensure that we do not allow that to happen. One way to prevent that is by taking the approach of the amendments.

The final reason why I raise the amendments now is that I think that setting that out as they do right at the top of the Bill is a strong reminder to everyone who will refer to the Bill in years to come that the autonomy of individuals is an important part of health and well-being. You cannot have good health and be a fully functioning member of society if you do not have that autonomy, an autonomy which means that, in some cases, you have the right to make decisions which other people would regard to be unwise. It is a point of principle, but one which I think has a great deal of practical application not just for those who are receiving care but for those who are in charge of making decisions about it.

[Baroness Jolly]

My Lords, I am very sorry that the noble Lord, Lord Warner, is not in his seat. He tabled Amendment 79 to express the strength of feeling of Members of this House who were sitting on the scrutiny committee about the Secretary of State’s the duty to have regard to well-being. Were there room for more than four names to the amendment, there would have been more Members of your Lordships’ House on that list.

To put this in context—and the noble Lord, Lord Hunt, has taken us through quite a lot of this—this Bill was widely consulted. It was probably the coalition’s most widely consulted Bill; somebody might be able to tell me to the contrary. At each stage, people welcomed the well-being principle. Perhaps I may remind the House that in the majority report on the Bill, one of the recommendations was that the Secretary of State should have due regard. When the final Bill was produced, many in the sector approached me, and I suspect many others, to express their disappointment that that was not included in it. When the Secretary of State came to give evidence with the Minister for Care and Support, the right honourable Norman Lamb, he was very positive about it. According to the transcript of the session, Norman Lamb said:

“We absolutely want the wellbeing principle to apply comprehensively”.

The well-being principle is around the change of culture and it puts the person at the centre. It is absolutely critical that that happens, and next week we will debate the whole business of assessment and how we are undertaking it. However, unless the Secretary of State has to have regard to the same principle as local authorities, there is an opportunity for future Secretaries of State when making regulation to disregard well-being and just make regulation in the old way. One thing that sets this Bill aside from many others is that it is written in plain English and throughout its intention is pretty clear.

I ask the Minister if he is able to offer any assurance to the House, to the sector and to those for whom the Bill is written—the service users and the carers—that the Government will think again about the decision not to include in the Bill a duty on the Secretary of State to take well-being into consideration.