Mental Health Bill [HL]

Debate between Baroness Merron and Earl Howe

Committee stage
Monday 24th February 2025 Lords Chamber

[Earl Howe (Con)]

My Lords, I will keep this brief since I can do no more than back the noble Baroness, Lady Tyler, in every word that she has said in support of these two amendments. We are dealing here with a Henry VIII clause that is surely far too permissive given the great sensitivity of the Bill’s entire subject matter and, as the noble Baroness said so well, its momentous significance for the health and well-being of very vulnerable people.

The absolute minimum that Parliament can expect is that Parliament be consulted in the exercise of these powers. The affirmative procedure is therefore entirely appropriate for any statutory instruments made under this clause and I hope the Minister will not disagree with what is proposed.

[Baroness Merron (Lab)]

My Lords, I thank the noble Lord, Lord Scriven, for tabling Amendments 160C and 160D, which were introduced by the noble Baroness, Lady Tyler, and spoken to by the noble Earl, Lord Howe.

The proposal in the amendment, as was referred to, was a recommendation in the report from the Delegated Powers and Regulatory Reform Committee. I hope that your Lordships’ Committee will welcome that we are actively considering this proposal and will publish our response to the committee’s recommendation ahead of Report.

Mental Health Bill [HL]

Debate between Baroness Merron and Earl Howe

Committee stage
Monday 24th February 2025 Lords Chamber

[Earl Howe (Con)]

My Lords, I am right behind the noble Lord, Lord Scriven, and the noble Baroness, Lady Tyler, in their Amendment 130. We know, and I believe that by and large we accept, that the Bill is not intended by the Government to hold out the prospect of instantaneous changes to the delivery of mental health care. It offers a series of measures that, over a period of years, should make a material difference to the well-being of a wide range of mentally ill people who require treatment, whether in a secure mental health setting or in the community.

The Minister has spoken of the need to view these measures in the broader context of the NHS 10-year plan and, certainly from the Government’s point of view, that is a perfectly reasonable position to take. However, if that is the Government’s policy, it begs a whole mass of questions around implementation and funding. For example, what do the Government see as the immediate high-priority measures that they wish to introduce? Which measures do they propose to defer, and for how long? What are the costs associated with these changes, both to the NHS and, as the noble Baroness, Lady Tyler, pointed out, to the justice system and local government? Bearing in mind Treasury constraints, when realistically do they believe a clear timeline for change will emerge? We have the impact assessment, but how far can we rely on that?

If those questions for the time being have to remain hanging in the air, as I suspect they will, I share the view of the noble Baroness, Lady Tyler, that Parliament, in the not-too-distant future, needs to be given an account of what the longer-term future looks like in a way that reflects not only the Government’s current thinking but, as time goes on, how their thinking evolves, as it surely will. There is therefore a strong case for a report to Parliament sometime in the next few months and on an annual basis thereafter, making clear both the timeline of ambition and the timeline of what in reality is being delivered.

I am conscious that we all need to keep our remarks succinct and to the point, so I will comment only briefly on the other amendments in this group. I am afraid I cannot support Amendment 153 in the name of the noble Baroness, Lady Bennett. I have always believed that what matters most in healthcare is not whether a service is delivered by a public or a private organisation but rather the quality of care to patients and whether good outcomes are achieved at acceptable cost.

Finally, my noble friend Lord Kamall has added his name to Amendments 163 and 164. These amendments stand absolutely four-square with the theme of Amendment 130, and on my noble friend’s behalf I express my warm support for them. The noble Lord, Lord Stevens, has said it all.

Just as we accept that we will not get any instant changes arising from the Bill, by a corresponding token, the Government cannot take that as a free pass from Parliament to defer implementing its provisions sine die. We cannot have a situation in which, prior to implementing the provisions, the principle of parity of esteem is quietly put to one side. I hope the Minister will have reassuring words to say on those very important points of principle.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I am most grateful to noble Lords for their contributions to this first debate today, and I start by saying how glad I am—I am sure other noble Lords will say this too—to see the noble Baroness, Lady Hollins, in her rightful place. I certainly heard her support for the amendments that we are discussing.

Before I turn to the amendments, it may be helpful to your Lordships’ Committee if I briefly set out some of the high-level plans for implementation of these reforms. I am grateful for the understanding—the noble Earl, Lord Howe, made this point—that time is required. I also understand the emphasis that noble Lords are putting on pace and, of course, we try to match those two things together, but I know we are all agreed on the need to get the Bill in the right place and the Act delivering.

The first priority after Royal Assent will be to draft and consult on the code of practice, and we will be engaging with people with lived experience and their families and carers, staff and professional groups, commissioners, providers and others to do this. The code will be laid before Parliament before final publication, and I am committed to working with noble Lords to ensure that we get this crucial piece of work absolutely right. We expect that this process will take at least a year.

Alongside the code, we will be developing secondary legislation, which will also be laid before Parliament, with more detail on areas such as statutory care and treatment plans. We will then need time to train the existing workforce on the new Act, the regulations and the code. This will likely be in 2026 and 2027, and we intend to commence the first major phase of reforms in 2027.

Of course, some reforms are going to take longer, as noble Lords will appreciate. The noble Baroness, Lady Neuberger, tempted me to go even further than five years, and I thank her for the temptation, but I know I will not be able to please her on this occasion. Of course, it takes time to train new second opinion appointed doctors, judges and approved clinicians, so, as set out in the impact assessment, we believe it will take 10 years to fully implement the reforms, but I emphasise that these timelines are indicative, and we will iterate these plans as we get more certainty on future funding and the wider workforce plans. Of course, I fully appreciate the importance of parliamentary scrutiny and accountability of this work, which is crucial, and I am committed to updating the House throughout the implementation period.

Turning to the amendments, I will start with Amendment 130 in the name of the noble Lord, Lord Scriven, kindly introduced by the noble Baroness, Lady Tyler. I say in response that any implementation plan, as proposed in the amendment, which would be published four months after Royal Assent, would be very unlikely to contain any more detail than is already in the impact assessment. It is important to prioritise drafting the new code and the secondary regulations after Royal Assent. I also confirm to your Lordships’ Committee that we will commission an independent evaluation of the reforms, alongside existing monitoring and reporting by the CQC.

As I have said, I fully expect to update the House during the planning and delivery of the reforms. However, a requirement in primary legislation to publish annually, and within four months of Royal Assent, would be premature.

Amendment 153, tabled by the noble Baroness, Lady Bennett, would prohibit for-profit companies from delivering provisions of the Act. I listened closely to the concerns raised by the noble Baroness, but I do not share the view that a ban on for-profit providers is the right approach, for the reasons that were set out by the noble Earl, Lord Howe, and the noble Baroness, Lady Fox. Our focus should indeed be on ensuring that we have high-quality and good value-for-money services. However, I assure the noble Baroness, Lady Bennett, that we are already investing in a significant quality transformation programme and piloting new models of care to ensure that care is focused on the individual, with maximum therapeutic benefit. That is where our priority lies and for that reason we are resisting this amendment.

Turning to Amendment 163, I am grateful to the noble Lords, Lord Stevens and Lord Kamall, and the noble Baronesses, Lady Tyler and Lady Neuberger, for bringing this issue before the Committee. As I said in my opening remarks, I too want to see the benefits of these reforms coming into play quickly and effectively. We intend to commence the reforms in phases, because some can be implemented more quickly than others, which need more time. This is not just about money but about building system and workforce capacity. For example, the impact assessment estimates that we need over 400 additional second opinion appointed doctors and over 300 additional approved clinicians. Many of these will be consultant psychiatrists, who would already need to have commenced training prior to the legislation for us to fully implement the Bill within five years, as required by this amendment. Rather than having a fixed deadline, as is proposed, we intend to monitor the impact of investment and test readiness to commence new powers on an ongoing basis, commencing each phase when we are confident that it is safe and effective to do so.

Finally, I turn to Amendment 164, tabled by the noble Lord, Lord Stevens, and supported by the noble Lord, Lord Kamall, and the noble Baronesses, Lady Tyler of Enfield and Lady Neuberger. I associate myself with the comments about the commitment to treating physical and mental health equally, in line with this Government’s manifesto commitments. The mental health investment standard requires ICB spending on mental health to grow at least in line with overall recurrent funding allocations. Based on total planned spend for 2024-25, we expect all ICBs to meet the standard in this financial year.

There are already mechanisms to ensure that spending on mental health is prioritised. I refer noble Lords to Section 12F of the NHS Act 2006, which requires the Secretary of State for Health and Social Care to lay before Parliament an annual document setting out whether they expect NHS England and ICB spending on mental health to increase in the next year. The Secretary of State will publish this statement before the end of this financial year.

As several noble Lords said, funding for mental health spend goes beyond the scope of the Mental Health Act, which aims to improve the care and treatment of individuals who have a mental illness and need to be detained in hospital or subject to restrictions in the community. Therefore, I respectfully suggest that the Act is not the appropriate mechanism for holding the Government to account on mental health spend. I ask the noble Baroness to withdraw the amendment.

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[Baroness Merron (Lab)]

I understand that point, and the noble Baroness makes it very well. I simply refer her to the points that I made about needing to look at evidence, the outcomes and the value of those reviews, and whether that is the right approach for everyone. I take on board her point, but my comments probably tell the Committee that we feel that there is more work to be done in this area.

[Earl Howe (Con)]

My Lords, once again, I express my appreciation to all noble Lords who have contributed to this debate. I highlight in particular the speech of the noble Baroness, Lady Hollins, which I found extremely powerful and persuasive, as did other noble Lords.

It strikes me that this is an especially appropriate grouping of amendments. The overuse of restraint in mental health settings and the use of completely untherapeutic long-term segregation are equally pressing and emotive concerns.

The noble Baroness, Lady Barker, pulled me up slightly on the issue of protection for those undergoing gender reassignment. The concern that I had in drafting the amendment was to cover protected characteristics across the piece, but she has drawn my attention to a lacuna, and I am very grateful.

I was somewhat disappointed with the Minister’s reply on the issue of restraint applied to mental health patients, which, as the noble Baroness, Lady Barker, pointed out, is an issue affecting adult patients as well as children. The amendment was drafted with precisely that in mind. The point that I sought to make was that, despite the statute law to which the Minister referred, the incidence of restraint on children in particular has rocketed, which raises questions about clinical practice, staffing and training around the code of practice. To my mind, it was a pity that the Minister had little to say about those possible areas for practical follow-up.

I shall read again what the Minister said about my amendment between now and Report. For now, I beg leave to withdraw the amendment.

Mental Health Treatment: Waiting Times

Debate between Baroness Merron and Earl Howe

Monday 3rd February 2025 Lords Chamber

[Baroness Merron (Lab)]

The noble Lord makes a very important point. This is one of the many areas where long waiting lists and delays in people receiving the necessary service are creating additional pressures on the individual, communities and the NHS. We are doing work in a number of areas, such as ensuring that NHS 111 can provide for those in crisis, or those concerned about a family member or loved one, so they can speak to a trained mental health professional. We are constantly looking at and providing new ways for people to get more instant access.

[Earl Howe (Con)]

My Lords, do the Government see a role for employers in promoting the mental health of their respective workforces?

[Baroness Merron (Lab)]

I certainly do, and with the NHS being such a large employer, that is one of the areas that we will be attending to. The long-term workforce plan will provide its report around the summer of this year and there will be much detail on how the workforce will be but also on the ways that we can improve its health and retention as well as recruitment.

Mental Health Bill [HL]

Debate between Baroness Merron and Earl Howe

Committee stage
Monday 27th January 2025 Lords Chamber

[Earl Howe (Con)]

My Lords, I believe we would all accept—and, personally, I am in no doubt—that my noble friend Lady Browning possesses a breadth and depth of experience in matters relating to autism and learning disability. By that, I mean that she has not just a familiarity with the day-to-day challenges of life for individuals with one or more of these conditions but a knowledge of the practical frustrations and hurdles that often have to be overcome if the best interests of such individuals are to be properly defended.

It is amply clear from what my noble friend has said that, if this amendment were inserted into the Bill, it would have the potential to make a material and beneficial difference to the process of discharging certain patients from a secure mental health unit in particular types of situations. As my noble friend said, and as we all know, there have been many instances where autistic patients have been detained inappropriately and for long periods under the Mental Health Act and where families have struggled to secure their relatives’ release.

I cannot see a logical reason why a mental health tribunal should not be placed on an equal legal footing with the Court of Protection in this very limited respect. I hope the Minister will agree.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I am most grateful to the noble Baroness, Lady Browning, for tabling Amendment 128 and for her contribution, along with that of the noble Earl, Lord Howe.

On the proposals in Amendment 128, I can tell your Lordships that, under the current tribunal procedure rules, the tribunal can direct responsible authorities, which could be a local authority or an NHS body, to provide evidence. The practice directions that apply in mental health cases place a requirement on the responsible authority to provide reports and records relating to the patient’s detention treatment and any after-care plans. The tribunal can use these reports to decide whether the detention criteria are being met. Therefore, it appears that the tribunal has extensive powers to require responsible authorities to provide the information to support its decision on whether to discharge a patient. I hope that the noble Baroness will be satisfied with this response and will withdraw her amendment.

Mental Health Bill [HL]

Debate between Baroness Merron and Earl Howe

Committee stage
Monday 27th January 2025 Lords Chamber

[Earl Howe (Con)]

My Lords, in this group of amendments my noble friend Lady Berridge has raised an armada of issues which I think it is clear to all of us cannot be ducked. These issues, as she said, were examined at length both during the independent review and by the Joint Committee, but it has to be said that in both instances it proved too much of a challenge to identify a satisfactory resolution to them. For that reason, as we observed in our debate on the previous group, the weight of these matters now rests on the shoulders of this Committee and of the Government.

In summary, we need arrangements that are robust enough to ensure that a nominated person’s appointment can be effectively challenged, and that, in certain circumstances, where necessary, the exercise of their powers can be legally contested and blocked. Without those measures, we shall leave an unacceptable lacuna in the law and, more pertinently, run a high risk of exposing children to personal danger.

My noble friend is to be thanked for assisting this Committee’s deliberations with the clear way in which she has set out the challenge, and I hope and trust that the Minister will wish to grip the challenge with her usual vigour.

[Baroness Merron (Lab)]

My Lords, like the noble Earl, Lord Howe, I am most grateful to the noble Baroness, Lady Berridge, for introducing an appropriately wide range of scenarios, questions and testing. That is important for the Committee but also for our ongoing work. As the noble Baroness, Lady Tyler, said, to describe this area as complex is to use too small a word, and I think we are all wrestling with that to get it in the right place. I know that noble Lords are aware that the work is ongoing, and I thank them for their engagement and interest in this issue. As I said previously, I very much understand the need for a robust process to keep children and young people safe and ensure that only appropriate individuals can take on the role of nominated person, while giving children and young people that right to choose.

I will respond collectively to the amendments put forward in this group. As I set out earlier, we agree that in the vast majority of cases there is an expectation that a parent or whoever has parental responsibility would take on this role, and that would include consideration of special guardians and child arrangement orders. We also agree that, where parental responsibility has been removed due to care proceedings, in the vast majority of cases it is unlikely to be appropriate for such a person to take up this role. My reference to this being a complicated area—

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[Baroness Merron (Lab)]

I would be very glad to share the date if I could put a date on it. It will be after Royal Assent, and I will keep noble Lords updated.

[Earl Howe (Con)]

My Lords, I very much appreciate the support from around the Committee for my Amendment 115. I support all the other amendments in this group, each of which is designed to bolster the rigour and thoroughness of the advance choice document process.

It is good to hear from the Minister that the code of practice will include guidance on how information on ACDs will be made known to relevant would-be patients. I shall need to reflect on this, but I confess I retain a worry in this area. The CQC in its annual report of 2020-21 on monitoring the Mental Health Act reported that many patients do not have their rights explained to them during their treatment. This is despite the existing requirement in the Mental Health Act code of practice for hospital managers to provide information both orally and in writing. Clearly, if someone without an existing ACD is admitted to a mental health unit for treatment, it will be too late for them to execute a valid ACD during that episode of care. The time to be informed that an ACD could be an appropriate thing for them to draw up is once they are discharged, to cater for possible future contingencies.

I suggest that the CQCs finding is still relevant, its point being that the NHS is not all that good at providing information to patients in a timely or appropriate way. Therefore, I think that creating a duty to do so would add value—perhaps not in the precise terms I have used in the amendment, but in similar language. That could, incidentally, be achieved quite easily if mental health patients were automatically invited to complete a debriefing report following discharge from hospital in the way that I suggested in an earlier amendment.

The prize, let us remember, could be significant. I refer noble Lords back to remarks by the noble Baroness, Lady Murphy, in an earlier debate, where she indicated that independent advocates have been proved as central to the success of advance choice documents—a facilitator, in other words. She referred to a study in North Carolina that showed that providing a facilitator in the form of an independent advocate increased the number of people making a psychiatric advance directive from 3% to 60%. That is a very powerful set of figures.

I hope the Minister will be open to further discussion on this and the other amendments in the group between now and Report. Meanwhile, I beg leave to withdraw my Amendment 115.

Mental Health Bill [HL]

Debate between Baroness Merron and Earl Howe

Committee stage
Wednesday 22nd January 2025 Lords Chamber

[Baroness Merron (Lab)]

I would be very pleased to look into it further, but, as I have described, this is a rolling programme. I emphasise that the CQC has that duty both to monitor but also to make the relevant bodies subject to sanctions if needed—in other words, more immediately. So I am concerned that through this amendment we could be creating a structure which is actually less flexible and responsive than the one we have now.

Amendment 148, tabled by the noble Lord, Lord Crisp, and the noble Baroness, Lady Hollins, would impose on integrated care boards—ICBs—a legally binding duty to provide local, in-person, specialist withdrawal treatments for patients on psychiatric medication prescribed during the course of their treatment by services under the Mental Health Act. In addition, there would be a duty on each ICB to send to the Secretary of State an annual report on the availability, uptake and outcomes of this support. Under this amendment, the Secretary of State would be obliged to lay these reports before Parliament. ICBs would also be subject to a requirement to provide a 24-hour helpline and online platform to support patients to receive withdrawal treatment.

Let me say at the outset that I recognise the difficulties that withdrawal can pose. I recall that the noble Lord, Lord Crisp, spoke on this very point in the Chamber last month and was also good enough to speak directly to me. It is, I agree, an issue that will not go away and, per the noble Lord’s request, I would be happy to arrange a meeting. I feel there is a whole area here to which we today, considering amendments, cannot do justice, so I would be pleased to do that. To the noble Lord, Lord Mawson, who has tabled Written Questions, I say that I look forward to answering them, and I hope that he will look forward to reading my Answers.

Where relevant, we would expect the patient’s statutory care and treatment plan to include a tapering plan and put in place whatever additional support is needed to enable a patient’s recovery and effective discharge. On the requirement to provide support in the community and report on availability, this is the responsibility of local health commissioners. In 2023, NHSE published a framework for ICBs and primary care boards on how to optimise personalised care for patients prescribed medicines associated with dependence or withdrawal symptoms. With regard to the requirement in the amendment for a 24-hour helpline, this would not seem proportionate, given the relatively low numbers of people who might need this service, who should already have a support plan in place, including access to relevant local support services.

Finally, Amendment 154, tabled by the noble Baroness, Lady Bennett, would allow the Secretary of State to make regulations giving people detained in hospital and those subject to community treatment or guardianship orders the ability to have certain care and treatment matters considered by a mental health tribunal.

This is a very complex area, as I am sure the noble Baroness is aware. The amendment seems to draw on the recommendation made by the independent review to give patients a new right of appeal to a single judge of the mental health tribunal regarding compulsory treatment. I recall that the previous Government publicly consulted on this new right, and the majority of respondents raised major concerns in this regard. The consultation was followed by further long and careful consideration with stakeholders, which led the then Government to the conclusion that this safeguard is just not viable. A solution could not be found that provided an efficient and effective route of appeal for patients while avoiding the risks of the tribunal intervening in clinical decision-making, alongside significant resource burdens. Many of these concerns were reflected in the report of the pre-legislative scrutiny committee, which also acknowledged the complexity of the issue.

We believe that the other provisions in the Bill will better achieve the same objectives of providing patient choice and autonomy, so while we do not support introducing a new role for the tribunal, I assure your Lordships that the emphasis on therapeutic benefit within the detention criteria will mean that whether care and treatment are proving effective will play a role in the tribunal’s consideration of whether or not detention should continue to be upheld. With these explanations, I hope that the noble Earl feels able to withdraw his amendment.

[Earl Howe (Con)]

My Lords, I am very grateful to all noble Lords who have contributed to this debate in such compelling ways, and I think we can see that when it comes to the experiences of children and young people in mental health units, we are dealing with a story that is a lot more substantial than mere anecdote. From briefing I have received, I am afraid I have been left in no doubt that the therapeutic environment in a number of mental health hospitals around the country—not all, of course—is, to put it mildly, a lot less than optimal.

Clearly, it is unacceptable for any patient, of whatever age, to be detained compulsorily without being offered treatment. It is unacceptable that drugs or restraint should be used as punishments. Challenging behaviour can be difficult to deal with, but staff should be trained to deal with it in a way that demonstrates that they understand the root causes of the behaviour. Those causes can be extremely complex.

To pick up another strand of the debate, I am in no doubt that medication has a place in mental health therapy. It can often be the treatment of choice. It is one tool in the toolbox. However, I very much agree with what the noble Lord, Lord Crisp, and the noble Baroness, Lady Tyler, had to say about social prescribing. It can not only be clinically effective but save costs if it is delivered, for example, by local charities that work in the fields of music, drama or art. Incidentally, it can help budding musicians, actors and artists in their downtime to train as music, art or drama therapists, which is an added bonus.

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[Earl Howe (Con)]

There are two answers to that. First, it is generally unthinkable for a Government to lay regulations without first having consulted the relevant parties. Secondly, if we are honest, putting something on the face of a Bill is not the whole story; there would need to be proper clinical guidance published alongside that for practical purposes for hospitals and elsewhere.

[Baroness Merron (Lab)]

My Lords, I thank all noble Lords for examining the important issues that have been raised in this group of amendments.

Amendment 55, in the name of the noble Baroness, Lady Tyler, supported by the noble Lord, Lord Scriven, seeks to change the Mental Capacity Act to allow young people aged 16 or 17 the ability to make a binding advance decision to refuse medical treatment for mental disorder. I shall set out some concerns about the amendment that may be helpful.

First, the amendment would mean that a young person who is not detained under the Mental Health Act could refuse a mental health treatment, even if it was life-sustaining. While the Mental Health Act and the Bill currently provide safeguards that enable a person’s advance decision to be overruled, detention under the Act may not always be appropriate. For example, if a 16 year-old is left very unwell following an attempted suicide, then currently they may be given treatment on the basis of what is in their best interests, under the Mental Capacity Act, if they lack capacity to consent at the time. However, under the amendment, if the 16 year-old had made an advance decision to refuse treatment necessary for their recovery or to sustain their life, then they might need to be detained under the Mental Health Act simply so that their advance decision could be overruled. This is important in terms of timely access to treatment and to avoid loss of life, of course.

Mental Health Bill [HL]

Debate between Baroness Merron and Earl Howe

Committee stage
Monday 20th January 2025 Lords Chamber

[Earl Howe (Con)]

My Lords, I shall be very brief, because other noble Lords have already eloquently articulated the arguments that are almost self-evident about the importance of services for people with autism or a learning disability and, in particular, the importance of training all staff who may find themselves working in those fields. I agree very much with the remarks of my noble friend Lady Browning and the noble Lord, Lord Scriven, and I was particularly interested in the research mentioned by the noble Baroness, Lady Bennett of Manor Castle, which brings us into a whole new dimension, I think, in this debate.

The need to train all healthcare staff, no matter what role they perform or which part of the health service they serve in, should surely be taken as read. This should be training both in the initial identification of those with autism or a learning disability and in the skills needed to handle such individuals with the necessary sensitivity and insight. I was interested in what the noble Baroness, Lady Barker, had to say about that. The behaviour of a person who is on the autistic spectrum can be baffling to anyone who has had no experience of it, and because of that it can be open to misinterpretation. A situation of that kind carries dangers, which is why it is so necessary for healthcare staff to know how to react in a way that will make the situation better and not worse.

This is not the first time that we have debated this important topic. I believe we may be told by the Minister that mandatory training in these areas is already provided for in Section 20 of the Health and Social Care Act 2008. The provision reads:

“Regulations under this section must require service providers to ensure that each person working for the purpose of the regulated activities carried on by them receives training on learning disability and autism which is appropriate to the person’s role”.


That broad provision was inserted into the 2008 Act thanks to an amendment which your Lordships approved three years ago, during our debates on the Health and Care Act 2022.

So, a provision on training is already enshrined in law; the problem is that we have no way of knowing the extent to which it is being implemented in practice. Hence, Amendment 145 would require the Secretary of State to publish a review on mandatory training for all persons who treat patients with learning disabilities and autism under the 1983 Act and consult as necessary to determine the extent to which health service staff are actually in receipt of such training. I see this amendment as perhaps a logical partner to Amendment 152 in the name of the noble Baroness, Lady Bennett, and indeed, in his absence, to the amendment of the noble Lord, Lord Adebowale.

While the vast majority of people who provide care to people with learning disabilities and autism do so with compassion and professionalism, we have seen a number of failings in care for people with those conditions. At the same time, detention will continue to be necessary in some cases where a patient with autism or a learning disability is suffering from a separate mental health condition. In all those cases, regardless of the context in which a person presents, we need to have confidence that the people providing care have the training they need to deliver that care sensitively, and above all, capably. I would venture to say that the people who need to have most confidence in the system apart from the person receiving the care are the parents or nearest relatives of that person. Hence, I believe we need more transparency on how well the system is working than we have currently.

Incidentally, one of the things that could come out of a review of training is an opportunity to look at the current processes for whistleblowing. An important aspect of improving standards of care is to have a system of accountability that includes listening to everyone in the sector, from the most senior staff to the most junior. No one should be afraid to speak up when they see something going on that does not look right, and I should be very grateful to hear what the Minister has to say on this whole theme and on the other important issues that noble Lords have raised.

[Baroness Merron (Lab)]

My Lords, I express my gratitude to noble Lords, not just for their amendments but for the way in which this debate has been conducted. I appreciate much of what lies behind the contributions and amendments today.

I first turn to Amendment 33, tabled by the noble Lord, Lord Scriven, and supported by the noble Baroness, Lady Hollins, and also Amendment 150 in the name of the noble Lord, Lord Adebowale. All of these were spoken to throughout this group, including by the noble Baronesses, Lady Tyler and Lady Murphy. I noticed that Amendment 150 was particularly referred to by the noble Lord, Lord Patel, and the noble Earl, Lord Howe.

On the matter of data collection, I absolutely share my noble friend Lord Beamish’s view on its importance, the need for the visibility of data and the need to find out what is behind detention. However, I can give the reassurance that the data and statistics that were referred to are being collected and published. They will continue to be monitored and published monthly in the assuring transformation statistics for learning disability and autistic people, and I hope that will be helpful to my noble friend.

The amendments I am referring to, which the noble Lord, Lord Scriven, introduced, require the Secretary of State to publish plans within a specified timeframe, outlining the Government’s plan to allocate sufficient resources for the commissioning of services for the detention and treatment of autistic people and people with a learning disability, as well as costed plans which show how integrated care boards and local authorities will ensure provision of adequate community services for these groups.

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[Earl Howe (Con)]

My Lords, there is little for me to do following the persuasive speech of my noble friend Lady May, other than to say how much I support her in putting forward her amendments. I hope that the Minister will approach the proposals my noble friend has made in a receptive and constructive way.

I was struck by the case put forward by my noble friend Lady Buscombe about how technology could assist in the handling of mental health incidents. I hope equally that the Minister will wish to follow up on my noble friend’s suggestions.

The question of whether police officers, and only police officers, should exercise the powers under the Act to remove a person suffering from a mental health crisis to a place of safety is one that, as my noble friend Lady May said, has been simmering in the Home Office and the Department of Health and Social Care for a decade or more. Extending those powers to suitably trained healthcare professionals would be a change that I suggest goes with the grain of this Bill as regards the emphasis that it places on looking after mental health patients in the best possible way. That is not a criticism of the police in any sense. The police do a magnificent job in tackling anything that they are called upon to do, but, as we have heard, the police themselves say that the vast majority of instances in which they are called upon to deal with a mental health incident do not require a policing response.

The issue of risk is important to consider. Statistically, as my noble friend said, most mental health incidents present no risk whatever to the police attending. Admittedly, it is not always possible to tell in advance how risky a particular encounter is likely to be, but I agree with my noble friend that, provided that a paramedic is suitably trained and equipped, they will have the necessary skill set to deal with any risk to their own safety, bearing in mind that if a police presence turns out to be necessary, they can always call for one.

I very much hope that, between now and Report, the Minister will agree to meet my noble friend, if that is what she wishes, to map out a way forward that will lead to a broadening of the Sections 135 and 136 powers.

[Baroness Merron (Lab)]

My Lords, this has been an interesting debate, with much agreement across the Committee. I noted the support from both the other Front Benches, from the noble Earl, Lord Howe, and the noble Baroness, Lady Tyler, for much of what has been said.

Let me first discuss Amendments 37B, 38C, 42C, 42F and 128B in the name of the noble Baroness, Lady May, along with Amendment 158 in the name of my noble friend Lord Davies of Brixton. I am most grateful to the noble Baroness and my noble friend for bringing this issue before the Committee today. Amendments 37B, 38C, 42C and 42F would add a new category of authorised persons and would provide that police constables and such authorised persons may detain a person under Sections 2, 3 and 5 of the Act.

I share the recognition from the noble Baroness, Lady Barker, of the noble Baroness, Lady May, who I commend for her work to pave the way and dramatically reduce the use of police cells as a place of safety for those who are experiencing a mental health crisis. I listened carefully to the noble Baroness’s words of advice to all government Ministers; all I can say is that I cannot think how much better we could be advised than by a former Home Secretary and Prime Minister.

I thank the noble Baroness, Lady Watkins, for what I might call her notes of caution in respect of extending provisions, and the noble Lord, Lord Meston, for sharing his first-hand experience to add to the debate today.

We understand the broad intention of these amendments and of Amendment 128B, also in the noble Baroness’s name, to reduce police involvement in mental health cases for all the reasons that were said, including the extra distress that an officer may—inadvertently, of course—bring to a very delicate crisis situation.

The noble Baroness, Lady May, asked how the Bill will ensure that pressure is not placed unduly on police resource. I understand that that is very much a driving consideration, so let me say a few things on that matter. We recognise the pressure on the police, who are responding to a very large volume of mental health-related incidents, although—this is not to dismiss the point—detentions under Section 136 have decreased this year by 10%, and we are removing police cells as a place of safety to reduce some of this burden. We recognise, in particular, that police time in health settings should be reduced. I give an assurance that we have committed to look at this issue and to update the code of practice to clarify the handover process between police and health, including in A&E, which the noble Baroness, Lady Tyler, spoke about. We recognise the confusion around the application of the legal framework that can tie up police time when it would be lawful for them to leave a patient with health staff.

Health and Care Bill

Debate between Baroness Merron and Earl Howe

Lords Hansard _ Part 1 & Report stage
Wednesday 16th March 2022 Lords Chamber

[Baroness Merron (Lab)]

My Lords, I have listened very closely to the many passionate, informed and often personal contributions from noble Lords this evening. This debate has inevitably been about not only parliamentary process and legislative approach but consideration of assisted dying. I thank the noble Lord, Lord Forsyth, for opening the debate on Amendment 170, which proposes, as your Lordships’ House is more than aware, a new clause to bring forward a draft Bill on what the noble Baroness, Lady Campbell of Surbiton, described as a complex and difficult issue.

However, for me, the challenge of this debate is encapsulated in the contributions in the middle of it. The first, from the noble Baroness, Lady Davidson, was that not allowing time for discussion is not a neutral act. This was followed swiftly by my noble friend Lord Hunt taking a different tack, saying that allowing for this amendment is also not a neutral act, and it is that which your Lordships’ House has wrestled with this evening.

It is indeed a matter of profound moral, personal and legislative importance that we find ourselves dealing with in Amendment 170. The noble Lord, Lord Forsyth, will be seeking a Division and these Benches will approach this on free votes. It is a shame that this is not the case on the Government Benches. Your Lordships’ House heard from the noble Lord, Lord Baker, about the importance of principle, whereby matters such as this should be subject to nothing other than a free vote. I certainly share that view. I know that noble Lords will exercise their vote this evening with the greatest of care.

[Earl Howe (Con)]

My Lords, I must tell my noble friend Lord Forsyth that I am not with him on this amendment and nor are the Government. That has nothing to do with the issue of assisted dying, about which we each have our own views, but is about the proper process for bringing forward legislation and the roles and responsibilities of government on the one hand and parliamentarians on the other.

Governments are elected. The electorate then expect the Government to bring forward their programme of legislation, which Parliament then decides on. If alongside that process there is an issue that the Government do not choose to legislate on, but which happens to be close to the heart of an individual parliamentarian, that parliamentarian has the privilege of being able to bring forward a Private Member’s Bill for Parliament to consider. In each of those two legislative processes the roles, rights, responsibilities and privileges of the Government and of individual parliamentarians are separate. It is no more appropriate for a Government to force an MP or Peer to bring forward a particular Private Member’s Bill than it is for an MP or a Peer to force a Government to bring forward a government Bill. That includes a draft Bill. As my noble and learned friend Lord Mackay of Clashfern observed in Committee, draft Bills are brought forward by Governments only when there is an intention to legislate.

The Government have no intention of legislating on assisted dying; it is not part of our programme, nor was it part of our election manifesto. Equally, it is no part of our agenda to prevent an MP or a Peer bringing forward a Private Member’s Bill on assisted dying. The noble Baroness, Lady Meacher, has done just that because it is something that she feels strongly about. It is for her to persuade Parliament and the Government that her Bill is a good thing.

That is the proper process, and surely that is how it has to be. If it ever became possible for an MP or Peer to use a government Bill as a vehicle for obliging the Government to publish a completely separate Bill, even one on a subject which was in tune with the Government’s thinking, the due process of legislating would thereby be subverted. I ask noble Lords opposite how they would react if under a Labour Administration, an MP or Peer proposed to use a health Bill as a vehicle to oblige the Government to publish draft legislation, the purpose of which was to place all NHS hospitals into private ownership—or one might find an MP trying to use a criminal justice Bill as a vehicle to oblige the Government to publish legislation to bring back capital punishment.

My noble friend might say, “Well, in that circumstance, it would be for Parliament to decide whether or not to accept such an amendment”—but that is not the point. The point is that if one House of Parliament were to approve such an amendment and the other House were to follow suit, Parliament would thereby usurp the role of the democratically elected Government. The noble Lord, Lord Howarth of Newport, and my noble friend Lord Cormack were 100% right: it is for the Government to say what their legislative programme should be, not Parliament.

As the late Lord Simon of Glaisdale might once have said, this amendment is constitutionally offensive and it should be rejected on those grounds.

Health and Care Bill

Debate between Baroness Merron and Earl Howe

Lords Hansard - Part 2 & Report stage
Wednesday 16th March 2022 Lords Chamber

[Baroness Merron (Lab)]

My Lords, this eminently sensible amendment sets out various considerations aimed at ensuring that there can be effective mediation when there is a dispute over children’s palliative care. There has been considerable discussion to bring this amendment to its current iteration and I pay tribute to the noble Baroness, Lady Finlay, for her efforts around this, having already secured a meaningful amendment to ensure that ICBs must commission the palliative care services they consider appropriate.

Your Lordships’ House is aware that this amendment and debate come out of the heartbreaking situation of Charlie Gard and multiple other cases like his. I therefore know that this issue has to be handled and considered incredibly delicately, taking into account the best interests of the patient receiving care above all others.

Balancing the views of clinicians and parents is intrinsically and incredibly difficult, and particularly challenging to codify in legislation. This amendment is a rational measure to move towards achieving a better balance and keeping matters out of the court, as the noble Baroness, Lady Finlay, referred to in her opening. We certainly support its intent and I therefore hope that the Minister’s response gives it due justice.

[Earl Howe (Con)]

My Lords, I first thank the noble Baroness, Lady Finlay, for having brought forward this important issue for debate and for introducing it in her characteristically informed and professional way. I assure her that I understand the issues she has highlighted and why she has done so. There is no doubt in my mind that the kinds of case that she has cited are extremely distressing and stressful for all involved, and can, on occasions, be contentious.

The Government agree that mediation is often a good route to take when there is such contention. Parents and clinicians should have access to high-quality, independent mediation schemes where they wish to do so. There are many mediation schemes available and we are very supportive of them.

The NHS already ensures access to mediation in many cases, and we strongly encourage it to continue doing so. But, at the same time, we need to ensure that those schemes are effective in the different contexts in which they are needed. Currently, organisations have the flexibility to offer mediation services earlier in a dispute or to prevent such disputes arising. They have the flexibility to tailor services specifically to the unique circumstances in which they are needed.

I hope the noble Baroness would agree that each case is unique. It is essential that everyone is able to have their voice heard, that there is a good understanding of different perspectives and that there is appropriate involvement of parents in decisions about the care and treatment of their child. Naturally, in that process, differences of opinion can and do arise.

The key to progress in this area is something deeply nuanced—human relationships. That is why I believe that, rather than legislation, our efforts are better directed at working together to develop systemwide solutions about how disagreements can be avoided or recognised early and, most importantly, sensitively managed. We need to ensure that in these difficult situations NHS trusts and staff are well equipped, well prepared and well supported to make that sure parents’ feelings and concerns are fully considered and supported, and that the relationship remains positive and constructive. We know that there are already examples of best practice and guidance but we need to do more.

To improve the outcomes of these difficult cases, we need to look at the whole process. We need to look at how best practice can be shared across the system to ensure that parents’ voices are heard throughout the process, not just in mediation, and how we can prevent disputes arising in the first place. In the rare cases when a dispute does arise, we need to focus on the quality of mediation schemes and not just prescribe that mediation is offered by default.

To look at how best we can embed best practice, training and advice on shared decision-making and dispute resolution across the system, the Minister for Patient Safety and Primary Care has agreed to chair a round-table event facilitated by the Nuffield Council on Bioethics. This will build on the work already being done by bringing together key stakeholders to agree actions that support the creation of healthcare environments that foster good, collaborative relationships between parents and healthcare staff. I have also offered to meet Connie Yates and Chris Gard to hear their experiences and discuss how we can support better collaborative relationships between parents and healthcare staff. I hope this demonstrates that the Government understand the importance of this issue and that we are committed to addressing it.

It is the Government’s view—I say this with some regret—that putting this amendment or another in the Bill will not help improve the outcomes of the very difficult, rare situations in which an unresolvable dispute arises. This is because efforts need to be focused on a holistic approach to dispute resolution to improve the process as a whole. Merely allowing for mediation to be available at the end of a dispute will not do this; either party could refuse it and allowing mediation will not, we think, drive the careful, sympathetic and considered work with parents and carers that this topic so urgently demands.

I recognise that these are difficult matters, but I think progress will best be made through practical, down-to-earth work across the system and by bringing in a wide range of perspectives. This is what I am now offering and I therefore hope that, in reflecting on that offer, the noble Baroness, Lady Finlay, will feel able to withdraw this amendment.

Health and Care Bill

Debate between Baroness Merron and Earl Howe

Lords Hansard - Part 2 & Report stage
Monday 7th March 2022 Lords Chamber

[Baroness Merron (Lab)]

I thank the noble Baroness, Lady McIntosh, for moving this amendment. I feel that we have discussed these issues at considerable length at previous stages of the Bill, so I do not wish to go over old ground, other than to say that the Royal Society for Public Health, the British Dental Association, the Chief Medical Officer and many others are very much in favour of greater fluoridisation because, on balance, there is strong scientific evidence that it is an effective public health intervention. In other words, it is the single most effective way to reduce oral health inequalities and tooth decay rates, especially among children, and it is, as your Lordships’ House knows, recommended by the World Health Organization. On all these positive points, I am very much inclined to agree, and do not feel that the amendment before your Lordships’ House would be helpful to support that intervention.

[Earl Howe (Con)]

My Lords, I thank my noble friend Lady McIntosh for her clear introduction to Amendment 156. The first thing for me to underline is the point she made: the water fluoridation provisions in the Bill will simply transfer the power to initiate fluoridation schemes from local authorities to the Secretary of State. The Bill does not compel the expansion of fluoridation. Any future proposals to establish new schemes would be subject to funding being secured and public consultation, and I will come on to both those things in a second.

The noble Baronesses, Lady Finlay and Lady Merron, are quite right that the evidence is strong that water fluoridation reduces the incidence of tooth decay for both adults and children, but nobody is complacent about public health. We will continue to be under a legal duty to monitor the health effects of water fluoridation on populations with schemes and to report no less than every four years. Monitoring the evidence is a continuous process and involves colleagues from multiple disciplines, including toxicology.

The law here is explicit. Water companies are required to comply with legislation to protect employees, consumers and the environment from harms. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and other legislation set out the thresholds and criteria for which an environmental impact assessment is already required in relation to developments. The installation of water fluoridation plants in some areas may fall within scope. Furthermore, the Environment Act 2021 will, when brought into force, place a duty on Ministers of the Crown to have due regard to the policy statement on environmental principles in our policy-making; hence new and revised policies will need to take into account their impact on the environment. I would like again to reassure your Lordships that the evidence is kept under review.

My noble friend referred to the case of McColl v Strathclyde, in which I think she said she was involved. Perhaps I could just state for the record that the plaintiff’s arguments in that case about the safety and effectiveness of fluoridation were all explicitly rejected by Lord Jauncey, who found that there was no convincing scientific evidence supporting that position. Since that ruling by Lord Jauncey, 38 years ago, it remains the case that there is no convincing scientific evidence of water fluoridation being harmful to health. Indeed, were we not to have any fluoridation, there would still be areas of the country where fluoride is naturally present in drinking water at a similar level to that achieved by a fluoridation scheme.

Health and Care Bill

Debate between Baroness Merron and Earl Howe

Lords Hansard - Part 1 & Report stage
Monday 7th March 2022 Lords Chamber

[Baroness Merron (Lab)]

My Lords, I am grateful to the noble and learned Lord, Lord Etherton, for so forensically and carefully introducing this group of amendments. The debate on the subject today, as on previous occasions, has been both rich and constructive. I hope it will lead to improving this clause; as we have heard, there are multiple issues in respect of its drafting. The main issue and debate today focused on coroners having access to protected information which has been shared in confidence under safe space conditions. Therefore, I will make my brief remarks in respect of Amendment 124, tabled in the name of my noble friend Lord Hunt and supported by the noble Baroness, Lady Walmsley, and the noble Lord, Lord Patel. We are all pleased to see the noble Lord, Lord Patel, back in his place.

It cannot be right, on the one hand, for someone to be compelled to give information and to do so on the understanding that they act within a safe space and would be committing an offence if they did not give information, yet, on the other hand, to enable that very information to be made publicly available. It is not the purpose or duty of HSSIB to act as a branch of the coroner. The coroner has multiple other avenues of access to information and powers of investigation. It does not need the access to this protected material simply because of the convenience of the existence of HSSIB. Therefore, I hope the Minister will understand this point and take it on board. If not, and if noble Lords are so minded to test the opinion of your Lordships’ House, these Benches will support the relevant amendment.

[Earl Howe (Con)]

My Lords, every day, the vast majority of NHS patients receive safe, effective and world-class care. Sometimes, though—and very sadly—errors occur which lead to harm. This is what the HSSIB will help us to address. The HSSIB will be an independent arms-length patient safety investigation body, with a statutory safe space and powers to discharge its investigative functions effectively across the NHS and the independent sector. This body will be one of the first of its kind in the world. Its independence will give the public full confidence that it will arrive at impartial conclusions and recommendations. The aim will be to drive improvements by learning and not blaming.

The provisions in the Bill were developed after considerable thought and scrutiny. We have had extensive stakeholder engagement, including an expert advisory group. The clauses, broadly in their current form, were scrutinised by a specific Joint Committee comprising Members of both the House of Commons and the House of Lords in December 2018. We accepted many of the Joint Committee’s recommendations—for example, to include independently funded healthcare within scope and to exclude local maternity investigations. The HSSIB had widespread support across both this House—when it was introduced in a previous Session and again during earlier debates—and the other place. I know that many noble Lords here today, having heard some of them, are enthusiastic about the prospect of a fully independent investigation body. I very firmly believe that we need to continue with the same enthusiasm and see this new body through to fruition. We should not delay this important work by rejecting this part of the Bill.

I honestly think that removing Part 4 would be a backward step. It would be greeted with dismay by those patient safety campaigners who have argued so eloquently for the creation of this body. The current investigation branch does not have the necessary independence or the range of powers to truly drive change as a world-class investigation body. This is what we are trying to address by creating a new body with all the tools it needs to thrive. By the way, those noble Lords who think that removing Part 4 and keeping things as they are will prevent access to information by coroners are wrong: coroners currently have such access, but without our proposed restrictions. Key to the HSSIB’s function is the creation of a statutory safe space, whereby non-compliance with those safe space protections can result in criminal sanctions.

I turn to the issue of access to safe space, which I recognise has caused concerns. We firmly believe that the only way to bring about a cultural shift in the NHS, so that people feel confident to share information and concerns are addressed promptly, is that there be a robust safe space. The current investigation branch does not have a statutory safe space. The Bill would create one, with tight restrictions. There are very limited circumstances when protected material can be disclosed—for example, if the HSSIB discovered information which demonstrated there was a serious and continuing risk to the safety of a patient or to the public—but this disclosure would occur only to the extent necessary to address those risks.

I know that direct access to protected material for senior coroners, as raised in Amendments 124 and 125, is an area of concern, but coroners have a unique role. A coroner’s investigation is an independent judicial process that aims to provide bereaved families with the truth regarding the death of their loved one—who has died, where, when and how—and enable society to learn from any mistakes that may have caused or contributed to a death. When a death occurs, and when that death requires coronial investigation for the sake of families and of the public, that work should not be hampered. It is an important principle that we should trust our judiciary. I am confident that coroners will take seriously their responsibilities to safeguard any safe space material that they may see. They are used to doing this; they already routinely handle sensitive, confidential material.

It is most unlikely that senior coroners will need to access safe space information on a frequent basis. Of the 57 national investigations conducted by the current investigation branch, 10 were investigated by the local coroner. However, only one gave rise to a request from a coroner for material held by the current investigation branch. Having said that, even though we expect requests for protected material will be rare, the principle of coroners having access when they need it is an important one.

Health and Care Bill

Debate between Baroness Merron and Earl Howe

Lords Hansard - Part 2 & Report stage
Thursday 3rd March 2022 Lords Chamber

[Baroness Merron (Lab)]

My Lords, it is impossible to turn away from the connection between procurement of products and services and the message and support that such procurement may give to those who seek to exploit, oppress, damage and murder.

I thank the noble Lord, Lord Alton, for introducing this amendment, in the name of the noble Lord, Lord Blencathra, who we wish well. Genocide and the abuse of human rights do not respect the imposed boundaries of government departments, and that is why it is appropriate that these amendments, which have extensive support both inside and outside your Lordships’ House, have been tabled today. Amendment 108 has cross-party support and if the will of the House is tested, we on these Benches will support it.

The NHS is the biggest single procurer of medical products in the world. It has a huge amount of leverage to be a force for good or otherwise when it comes to ethical procurement. It can starve abusive regions of resources. It can also remove a veneer of acceptability from those regions.

If we are serious about being global Britain and a force for good in the world, we need to act as such. It is surely wrong that, for example, we are using bandages which have been produced by forced labour. We must hold the Government to their commitment to provide guidance and support to UK government bodies to use public procurement rules to exclude suppliers where there is sufficient evidence of human rights violations in any of their supply chains. As expressed by my noble friend Lady Kennedy, this is about giving the Minister the opportunity to act. It is about focusing minds. I hope that the amendment will find favour with the noble Earl.

In Committee, my noble friend Lord Collins spoke of the need not to be tied down by a very strict legal definition of genocide. He also emphasised that we must focus on broader human rights issues. As the noble Lord, Lord Alton, said, we need to take a comprehensive, joined-up approach. Amendment 108 gives us this opportunity.

I thank my noble friend Lord Hunt for continuing to press home the need for action, as outlined in Amendments 162 and 173. We heard explicitly and movingly about the realities of how this affects people’s bodies, alive and dead, and the distaste and abuse related to it. It is surely right that UK citizens are safeguarded against complicity in forced organ harvesting as the result of genocide. Countries such as Spain, Italy, Belgium, Norway and Israel, among several others, have already taken action to prevent organ tourism in respect of China. We have the opportunity to do so today.

I hope that the noble Earl will feel able to accept these amendments. I am grateful to the noble Lord and his officials for the opportunity to discuss these matters. I hope only that your Lordships’ House can assist in improving this aspect of the Bill by taking action, as we should, about genocide and the abuse of human rights.

[Earl Howe (Con)]

My Lords, the amendments in this group bring us to three discrete topics which are nevertheless linked by a common thread—that of human rights. Because they engage us in issues of great sensitivity, I begin by saying something that may sound unusual. There is probably no one in this Chamber who is not instinctively drawn towards these amendments. All three are honourably motivated. In pointing out any shortcomings, I would not want noble Lords to think that the Government did not understand or sympathise with why they have been tabled.

I will start with the issue of organ tourism. Like the noble Lord, Lord Hunt, I find it abhorrent that individuals exist who are in the business—often the lucrative business—of sourcing human organs from provenances that are both illegal and supremely unethical. They then entice desperate and seriously ill people to go to a foreign country to have such organs transplanted within them. This idea is unconscionable. As far as we can, we should have no truck with it. The Human Tissue Act already prohibits the giving of

“a reward for the supply of, or for an offer to supply any controlled material”

in any circumstance where a substantial part of the illicit transaction takes place in England, Wales or Northern Ireland.

The Modern Slavery Act makes it an offence to arrange or facilitate another person’s travel, including travel outside the UK, for the purposes of their exploitation, which includes the supply of organs for reward in any part of the world. The law as it stands addresses a substantial element of potential criminality. How widespread is this criminality? What do we know about the scale of organ tourism as it relates to UK residents? I have obtained some figures from the department. In 2019-20, the last reporting year before international travel was curtailed by the pandemic, a total of 4,820 organ transplants took place in this country. At the same time, NHS Blood and Transplant data shows that only seven UK residents received a transplant abroad, many if not all legitimately, and had follow-up treatment in the UK.

Therefore I am thankful to say that the scale of the problem of illicit organ tourism, as it relates to UK residents, is small. If the noble Lord, Lord Hunt, were to say to me that one such case is one too many, I would agree, but the House should not support this amendment, because it is not right to support an amendment that could cause vulnerable transplant patients who receive a legitimate transplant overseas to face imprisonment because they may not have the right documentation. That is what the amendment could lead to. Checking such documentation and creating individually identifiable records for every UK patient who has received a transplant overseas would put healthcare professionals in an invidious and inappropriate position by blurring the line between medic and criminal investigator.

More to the point, it could also prevent those who legitimately receive an organ transplant abroad—particularly those from minority-ethnic backgrounds—from seeking follow-up treatment, for fear of being treated as a criminal suspect. Following that thought through, I say that the effect that this amendment could have in exacerbating health inequalities is likely to be far greater than its effect in deterring transplant tourism, especially, as I have emphasised, because there are already legal provisions in place covering most cases of organ tourism.

I listened with care to the noble Baroness, Lady Finlay, particularly regarding her examples of the exhibition that she went to. I join her in being somewhat incredulous that there could be consent to some of the exhibits that she witnessed. However, where consent has been obtained, it must be unequivocal. As I emphasised, the law as it stands now prohibits the exhibition of bodies or body parts where express consent cannot be fully demonstrated. I undertake to speak to the Human Tissue Authority, to see that, should there be another exhibition of this kind proposed, there is full transparency in the form of labels under each exhibit making clear how consent was obtained and what it consisted of.

Targeting those who receive an organ, rather than the traffickers and their customers who initiate or negotiate the arrangements, risks imprisoning vulnerable patients who may have been misled as to the provenance of their organ. That would be disproportionate. The Government’s view remains that the best approach is to continue targeting traffickers and their customers, while doing all that we can to help UK residents who are in need of an organ by focusing our efforts on improving the rates and outcomes of legitimate donations.

Health and Care Bill

Debate between Baroness Merron and Earl Howe

Lords Hansard - Part 2 & Report stage
Tuesday 1st March 2022 Lords Chamber

[Baroness Merron (Lab)]

My Lords, from these Benches I am very glad to continue our support for palliative care being part of a comprehensive health service—literally from the cradle to the grave—no matter who you are, your age or where you live. I join other noble Lords in paying tribute and giving appreciation to the noble Baroness, Lady Finlay, for her assistance and professionalism over many years. I hope that the real tribute to the efforts of the noble Baroness will be in the delivery of real change to the quality of people’s lives—and their deaths. I add my appreciation to all the charities and hospices that have also been a force for good in seeking this change.

I welcome the government amendment in this area and, in so doing, I simply say to the Minister that I hope the Government have heard the number of questions asked today. Clearly, there is concern about the words “appropriate” and “reasonable”, and I will add a few questions to those already put to explore that further. I am sure the Minister understands that noble Lords are simply trying to ensure that what is intended will actually be delivered.

Can the Minister confirm how the Government’s expectations will be conveyed to ICBs, and how they will understand what is expected of them in terms of the nature of palliative care services that they would be required to commission? It would also be helpful if he could commit to providing a definition of “specialist palliative care” services, referring to the amendment tabled by the noble Baroness, Lady Finlay, so that we can see a consistent standard in provision of services across the country. My final question is: can the Minister confirm that it is the Government’s intention to communicate to all ICBs that they should fulfil the true requirements of this amendment, and can he tell your Lordships’ House how this will be monitored?

The right reverend Prelate the Bishop of London and other noble Lords have made it clear that we would like the matter settled by the amendment, but it is not entirely. I hope that the Government will not lose the opportunity to really make the transformation so that we can all expect, and have, a good death, as we would want to have a good life.

[Earl Howe (Con)]

My Lords, I am very grateful to all noble Lords who have spoken in this important short debate, but, in particular, I express my thanks to the noble Baroness, Lady Finlay, for the illumination that she shed on the reality of well-functioning palliative care services from her personal perspective.

Without repeating what I said earlier, the Government recognise and understand the strength of feeling on the issue of variation among access to palliative care services. I understand the line of questioning posed by a number of noble Lords on the strength of the imperative implicit in the government amendment. The noble Baronesses, Lady Brinton, Lady Meacher and Lady Walmsley, and the noble Lord, Lord Hunt, all had questions on that theme.

The first thing for me to say is that I agree with the noble Baroness, Lady Finlay: this is a game-changing amendment because it would specifically require—that is the word—integrated care boards to commission such services or facilities for palliative care, including specialist palliative care, as they consider appropriate for meeting the reasonable requirements of the people for whom they have responsibility.

Questions have been asked about the word “appropriate”. I do not think any other word could be fitted into this context; you have to talk about what is appropriate when the extent of need and the requirements of the local population inevitably vary according to the locality. It is for the board to judge what is appropriate to meet that need in the local area and what is appropriate to the nature of the palliative care provision that may exist in an area: for example, whether it is a hospital, a hospice, social care hospices or hospices at home—all the panoply of palliative care provision that noble Lords will be familiar with. My noble and learned friend Lord Mackay of Clashfern made a very helpful intervention on that issue, for which I thank him.

We therefore expect palliative care to be commissioned by every ICB. It will be for them to allocate resources to meet the needs of their population that they identify but, on funding more broadly, the House will know that there is a multifaceted funding pattern in the palliative care field. Palliative and end-of-life care services are delivered by services and staff across the NHS, social care, the voluntary and community sector and independent hospices.

We recognise the vital role that hospices and other voluntary organisations play in the delivery and funding of palliative and end-of-life care and continue to engage proactively with our stakeholders on an ongoing basis to understand the issues they face. Those are not bald words; as part of the NHS Covid response, over £400 million has been made available to hospices since the start of the pandemic to secure and increase additional NHS capacity and enable hospital discharge.

The noble Baroness, Lady Brinton, asked me about statutory guidance. A range of guidance is already available to commissioners about the provision of palliative and end-of-life care, including detailed, evidence-based guidance from the National Institute for Health and Care Excellence. We will continue to keep the guidance under review. NHS England and NHS Improvement have also made funding available to seven palliative and end-of-life care strategic clinical networks, which will support commissioners in the delivery of outstanding clinical care, with sustainability of commissioning as a guiding principle.

The noble Lord, Lord Howarth, and my noble friend Lady Fraser touched on transparency and reporting. I point to our later amendments requiring ICBs to set out how they intend to commission services and report on that in their annual reports. That will of course include palliative care. I can also give an assurance that we are not only looking at the guidance currently but will continue to keep the range of guidance available to commissioners under review.

In answer to the noble Baroness, Lady Merron, on the Government’s expectations in this area, I can say only that our expectations as of now are set out in this amendment and in the guidance we will issue, and the assurance that we will engage with in our dealings with NHS England.

I hope I have been able to reassure the House that the Government are absolutely committed to ensuring that people receive high-quality palliative care if and when they need it. I invite the House to support Amendment 16.

Health and Care Bill

Debate between Baroness Merron and Earl Howe

Committee stage
Friday 4th February 2022 Lords Chamber

[Baroness Merron (Lab)]

My Lords, it is a pleasure to follow the noble and right reverend Lord, who reminds us of our obligations to assist with alcohol-related ill health. I thank the noble Baroness, Lady Finlay, and the noble Lord, Lord Shipley, for putting these amendments before your Lordships’ House today. The first is a probing amendment about the need to report on the consultation on alcohol labelling. It is absolutely right to raise this: consumers have a right to know what is in their drinks, to make informed choices about what and how much they drink. Currently there are no legal requirements for alcohol products to include health warnings, drinking guidelines, calorie information or even ingredients. Research by the Alcohol Health Alliance found that over 70% of products did not include the low-risk drinking guidelines, and only 7% displayed full nutritional information including calories. I certainly add my voice to welcoming the forthcoming consultation on alcohol calorie labelling. When can we expect to see this, and what is the reason for the amount of time that it has taken to bring it forward?

Amendment 296 requires the Secretary of State to make a five-yearly statement on the cost efficacy of alcohol services. As we know, rigorous impact evaluation is absolutely key to good policy-making and improving the lives of those who use alcohol services. At present, the Government cannot say that they are meeting their responsibility to tackle alcohol harm with the requisite financial commitment and in the right places. Perhaps the Minister will tell your Lordships’ House what evaluation measures are already in place.

Of course, the background to all this is that, since 2012, there have been real-terms funding cuts to alcohol services of over £100 million. Pre pandemic, only one in five dependent drinkers was believed to be in treatment, leaving a shocking four out of five without help. The pandemic has only worsened the situation. I hope that the Minister will agree that there is a need to do better to ensure that we know how policies and services help or hinder the treatment of problem drinking, in order that efforts and resources can be targeted to where they work best.

[Earl Howe (Con)]

My Lords, I pay tribute to the noble Baroness, Lady Finlay, for her work as chair of the Commission on Alcohol Harm. I thank her for this opportunity to set out the current state of play on the Government’s alcohol policy. I am the first to acknowledge the seriousness of the harms caused by the consumption of alcohol, which she pointed out.

Effective alcohol labelling is an important part of the Government’s overall work on reducing alcohol harm. I am pleased to tell the noble Baroness that the legal powers available to the Government are already sufficient to enable us to consult and report on alcohol labelling. The kind of power proposed in her probing amendment is highly prescriptive, and, from a purely practical point of view, would not allow for sufficient flexibility in the consultation process, which could make the process less effective.

As she knows, as part of the Government’s Tackling Obesity strategy, published in July 2020, the Government committed to consult on whether mandatory calorie labelling should be introduced on all pre-packed alcohol as well as alcoholic drinks sold in the out-of-home sector. I repeat that commitment today, and, as part of our public consultation, we will also seek views on whether provision of the UK Chief Medical Officers’ Low Risk Drinking Guidelines, which includes a warning on drinking during pregnancy, should be mandatory or continue on a voluntary basis. The noble Baroness, Lady Merron, asked when we might expect that consultation to be forthcoming. I am afraid I can say no more than “in due course” at this stage, which I realise is not wholly enlightening, but it is as far as I can go at the moment.

Turning to Amendment 296, which proposes additional reporting and government statements, we do not think a new reporting requirement is necessary. The Office for Health Improvement and Disparities already publishes annual data on estimated numbers of alcohol-dependent adults within local authorities in England. Health commissioners can use this data to estimate local need and appropriately plan their alcohol treatment services. Outcomes for local authority-funded alcohol treatment services are already published at local and national level via the national drug treatment monitoring system. The Office for Health Improvement and Disparities also provides a number of data tools to enable local areas to compare their performance against other areas and nationally, including the public health outcomes framework, local alcohol profiles for England and the spend and outcomes tool.

On funding, local authorities are currently required to report on their spend on alcohol services annually to the Department for Levelling Up, Housing and Communities. Through the “why invest?” online guidance, the Office for Health Improvement and Disparities already produces data and information on the return on investment for alcohol and drug treatment. The guidance includes cost savings data on treatment interventions in primary and secondary care and on specialist and young people’s treatment services. There is a strong programme under way to address alcohol-related health harms and their impact on life chances, and to reduce the associated inequalities which the noble Baroness emphasised, including an ambitious programme to establish specialist alcohol care teams in hospitals and to support children of alcohol-dependent parents.

Throughout the Covid-19 outbreak, drug and alcohol treatment providers continued to support and treat people misusing drugs and alcohol. OHID supports local authorities in this work by providing advice, guidance and data. OHID is developing comprehensive UK guidelines for the clinical management of harmful drinking and alcohol dependence. These aim to develop a clear consensus on good practice and to improve the quality of service provision. The work is expected to be completed later this year.

Finally, we are currently developing a new commissioning standard for drug and alcohol treatment which aims to increase the transparency and accountability of local authorities on how funding is spent. It will include requirements to commission services—

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[Baroness Merron (Lab)]

My Lords, this has been an interesting debate, and we have heard various views. I thank my noble friend Lord Faulkner for leading on this group of amendments, and I thank noble Lords for putting forward their amendments and views so that we can explore how we respond to the challenge of smoking.

My first point leads on very neatly from the comments of the noble Lord, Lord Crisp. Smoking remains the leading preventable cause of premature death. As the noble Lord observed, it is a matter where we should consider the scale of the effect and the fact that this is about addiction. It is not about free choice but is something that we must assist people to overcome. While rates are indeed at record low levels, there are still more than 6 million smokers in England, and the need to reduce this number is particularly important now, as smokers are more at risk of serious illness from Covid.

The economic and health benefits of a smoke-free 2030 would be felt most keenly among the most disadvantaged. However, as we heard from the noble Lord, Lord Young, at current rates we will miss this target by seven years on average, and by at least double that amount for the poorest groups in our society. So it is vital that we motivate more smokers to quit while reducing the number of children and young people who start to smoke.

Within this group of amendments, noble Lords have suggested a broad raft of anti-smoking measures, including information inserts and warnings printed on rolling papers, a consultation on raising the age of sale to 21 and a “polluter pays” approach which argues that tobacco companies should pay for smoker treatment programmes. All these measures can be underpinned by broad cross-party support and public support. Certainly, the All-Party Group on Smoking and Health is very supportive of this group of amendments.

The pandemic has posed new challenges to us, and there is a new group of people who started smoking but who otherwise would not have done so. We have been promised a new tobacco control plan, and I hope that the Minister tells your Lordships’ House when we can expect it. The labelling and information interventions contained within this group of amendments have a strong evidence base from other countries, as well as from research in the UK. I hope that the Minister will be amenable to them.

Picking up on a few of the points raised within this group, it is very shocking to note that more than 200,000 11 to 17 year-olds who have never smoked previously have tried vaping this year. It is a very strange situation that e-cigarettes and similar products can be given free to somebody under 18 but they cannot be sold to them. We do not want to see a situation where young people are brought to smoking by smoking substitutes.

In reference to the amendment that proposes a United States-style “polluter pays” model to fund all these interventions, including the restoration of lost smoking-cessation services, the noble Lord, Lord Young, described practical ways in which this could come about. Certainly, the Minister in the other place did not close the door to this idea in Committee. I hope that we will hear from the Minister some agreement towards this.

Amendment 270 promotes a consultation on raising the age of sale, because we know that the older a person gets, the less likely they are to start smoking. If this is to happen, it requires proper consultation with relevant stakeholders, not least young people themselves, including those who are underage. It must be rigorous in checking what will work. Attitudes to the incidence of smoking have changed over the years, but the direction now is firmly one way, and that is to prevent ill health and premature death. This group of amendments contains proposals to keep us moving in this direction, to assist those who smoke and to prevent those who seek to smoke, particularly those at the younger end of the scale. I hope that this group of amendments will find favour with the Minister.

[Earl Howe (Con)]

My Lords, I am grateful to the noble Lord, Lord Faulkner, and other noble Lords for bringing this discussion on tobacco control before the Committee today. In responding to these amendments, I begin by emphasising the Government’s commitment to the smoke-free agenda. Over the past two decades, successive Governments have successfully introduced a strong range of public health interventions and regulatory reforms to help smokers quit and protect future generations from using tobacco. Our reforms have included raising the age of sale of tobacco from 16 to 18, the introduction of a tobacco display ban, standardised packaging for tobacco products and a ban on smoking in cars with children.

The Government are committed to making this country smoke free by 2030, and we will outline our plans in a new tobacco control plan to be published later this year. As part of our Smokefree 2030 programme of work, I am pleased to announce that we have launched an independent review into smoking. The review, led by Javed Khan OBE, will make a set of focused policy and regulatory recommendations to government on the most impactful interventions to reduce the uptake of smoking and support people to stop smoking for good. I am sure he will consider many of the policies raised by noble Lords in today’s debate as part of his review, which is expected to report in late April.

The action I consider vital for the Government is to conduct research and build a robust evidence base before bringing any additional measures forward, such as those outlined in Amendment 276, which would impose a duty on the Secretary of State to make regulations requiring tobacco manufacturers to print health warnings on individual cigarettes and rolling papers. This evidence-base principle also applies before raising a proposal, even through a consultation such as that outlined in the requirement in Amendment 270 to consult on raising the age of sale.

Several amendments that have been put forward by noble Lords are not required, because relevant legislation is already in place. For example, legislation is already in place that prohibits the sale of tobacco and e-cigarettes to under-18s, including proxy sales, as outlined in Amendment 271, and provision to enable this to be extended to all nicotine products. While we support proposals further to protect young people from these products, we do not have the evidence base at present to suggest that free distribution is a widespread problem. We challenged the industry on this, and it claimed that it is targeting only smokers who are over 18 when it gives free samples. Whatever one may say about that, there would undoubtedly be reputational damage to businesses if they did give out samples to minors. I am sure that evidence in this area will be gratefully received by the department.

When looking at further regulation of e-cigarettes, we need to assess which policies provide us with the best opportunities to reach our bold Smokefree 2030 ambition. Once we have fully considered the evidence, the most ambitious policies will be included in a new tobacco control plan. I do not in the least intend to sound complacent, but it is worth noting that in 2018 regular use of e-cigarettes among 11 to 15 year-olds remained very low, at 2%.

The noble Baroness, Lady Finlay, referred to nicotine pouches. There are existing powers in the Children and Families Act 2014 which allow us to extend the age-of-sale restrictions to include any nicotine products, such as nicotine pouches, so the proposed new clause is not strictly needed in relation to sales.

We recognise the need to address disparities in smoking across the country and we are committed to helping people quit smoking and to levelling up outcomes, as referenced in the recent levelling-up White Paper. There is already a lot of good work going on within both the NHS and local authorities in this area, but it is a theme that we will be developing in our tobacco control plan.