Healthcare (International Arrangements) Bill

Baroness Thornton Excerpts

2nd reading (Hansard): House of Lords
Tuesday 5th February 2019 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I welcome the Minister to the House and congratulate her on an excellent maiden speech. It combined the essential description of the Bill before the House with revealing the formidable talent and understanding that she will bring to her new life. I do not recommend that she leave herself so short of time to be in her place, and I apologise to the House—I was just at the door and only just made it into my seat. It is not my normal practice.

The debate has reflected the importance, if not the size, of the Bill, as was remarked on by my noble friends Lord Foulkes and Lord Morgan. It would seem that the Bill is regarded, as the Minister in the Commons said in the helpful briefing we had, as the most straightforward and simple piece of healthcare Brexit legislation. By now, I gulp at what the rest of the legislation will look like if that is the case. Although it has only six clauses, it has potentially profound effects and implications. Our job is to test those and make amendments accordingly if necessary. We must not allow the shortness of time—entirely, I must say, of the Government’s own making—to deter us from our job, particularly as concerns the powers that the Government intend to take in the Bill. Of course, the Government always have the option to extend Article 50 if they find themselves in a pickle and not ready on Brexit day.

As most noble Lords have said, and of course we agree, it is blindingly obvious that the Bill is essential. As I said in my speech in the debate on the European Union Committee report on reciprocal healthcare on 3 July—a debate led by the noble Lord, Lord Patel—healthcare for people working, living and travelling across Europe and those coming to the UK is clearly an urgent matter to be resolved. Here we are, within weeks of leaving the European Union, whether by accident or by deal, and this issue is still not yet resolved. Worse, as the BMA states in its briefing note:

“Brexit could lead to obvious and significant changes in these existing reciprocal healthcare arrangements. The BMA has repeatedly warned that a ‘no deal’ Brexit could lead to reciprocal healthcare arrangements for UK citizens and residents within the EU, and EU citizens and residents within the UK, ending. This would lead to significant disruption to those individuals’ healthcare arrangements, an increase in insurance costs, and uncertainty regarding access to healthcare abroad”.


This affects millions of people. The contribution of the noble Lord, Lord Bethell, was interesting, because it recognised that 27 million people is a large part of our population. I cannot imagine many other things where half the population have signed up to something.

Many of our fellow citizens in Spain are watching the progress of the Bill with some anxiety. The Government have said that they want both UK and EU citizens to be able to continue to use the EHIC scheme after Brexit, but that this would need to be agreed as a part of any deal on our future relationship. The future relationship will be negotiated in the transition period—which of course, as we know, is not the same as the withdrawal agreement as we know it. However, in the absence of an agreement on future relations, the right to reciprocal healthcare enjoyed by our 27 million UK citizens through the EHIC will cease after Brexit. When at our very helpful briefing I asked the Commons Minister for his advice in those circumstances, he advised us to take out health insurance. That is now on the website. The Association of British Insurers, which gave evidence to the Commons in Committee, said that the estimate of costs varied between 5% and 20% in the increase on travel insurance, but that there is a difference between travel insurance and health- care insurance and there is the matter of pre-existing conditions, which the Financial Conduct Authority has been examining, as the noble Baroness, Lady Barker, pointed out.

I always try to look at practical examples of what might happen under such circumstances. I am thinking about my late mother, living with COPD as she did for the last 10 years of her life, and taking her on holiday to France. This is what happened. Of course, we had the EHIC in place. An agreement with oxygen suppliers in France resulted in a discussion with our oxygen suppliers in the UK and, when we arrived in the place where we were staying in France, there were the oxygen supplies and equipment and a wheelchair if needed—free because of the reciprocal agreement. Perhaps the Minister will write to inform me what I might need to do under the circumstances and what might be the cost to my family today.

I hope that the Minister will have had the chance to read the letter sent to her right honourable friend the Prime Minister last week from the coalition of the British in Europe concerning the potential plight of UK pensioners living in the EU facing no deal. What is her advice to the 190,000 mostly older Brits who face the end of the S1 scheme under which the UK pays for their healthcare, which will come to an end under no deal? That was confirmed by the European Union last week. The announcement on the Government’s website last week is causing panic and alarm among UK citizens who are dependent on the scheme for life-sustaining treatment and medication. That was echoed wonderfully by the noble Baroness, Lady Jolly.

We have a Bill that is small but broad in its intent and goes wider than addressing the issue of reciprocal healthcare in the European Union. Despite the siren calls of the noble Lord, Lord O’Shaughnessy, and the Minister, it seems to open the door to healthcare negotiation across the rest of the world. In other words, it also lays the basis for trade and foreign affairs discussion concerning healthcare. One must ask: which countries do the Government have in mind, and for what purpose and why is the Bill addressing world issues and not limited to the European Union? On these Benches, we are very concerned about the scope and believe that the Bill does not need to address the whole world at this point, when I think we have enough on our plates just sorting out the 27 million EHIC holders in the UK and their interests.

I suspect that either a Minister or one of their very bright civil servants decided that this was an opportunity to start a discussion about healthcare deals in many other countries by making the Bill an international healthcare Bill. Frankly, where I come from, we call that being too smart by half. We on these Benches are not at all sure that this is a good idea. If one thinks of the international aspect of the Bill combined with the regulatory power that it gives the Government, there is justifiable cause for alarm. It is reasonable for us to probe the suspicions raised by the noble Baroness, Lady Brinton, about the USA’s eyes on our National Health Service. To deny that that exists is simply not true: of course it exists. Are we putting a Bill on the statute book which will allow that to happen? That is what we are asking.

The Government will have to go some distance to convince noble Lords that this can be justified and explain to us why we do not have before us a much simpler Bill that is smaller in scope, addresses the very important EU issues post Brexit and gives the Government appropriate powers to deal with them. The Commons Minister said:

“The Bill will support the potential strengthening of existing reciprocal healthcare agreements with countries abroad and around the world, and will potentially add to their number as part of future health and trade policy”.—[Official Report, Commons, Healthcare (International Arrangements) Bill Committee, 29/11/18; col. 24.]


I think he rather gave the game away with that. As noble Lords have said, powers in Bills are for ever, not just for Brexit. That is my interpretation of the guidance used by the legislative Committee. The question of international scope is so important because of the powers conferred on the Secretary of State by the Bill. It is not often that one reads that:

“Clause 2 has a breath-taking scope. Indeed, the scope of the regulations could hardly be wider”,


in a Delegated Powers and Regulatory Reform Committee report. The report goes on to list nine areas in which the Bill confers unlimited powers on the Government. Noble Lords have mentioned some examples, so I will do so too. The fifth point in paragraph 10 states:

“The regulations can delegate functions to anyone anywhere”.


The noble Lord, Lord O’Shaughnessy, can say that the Government’s intentions are fine, but that is not the point. The point concerns the powers given to Ministers and Governments, which we must look at.

Noble Lords more knowledgeable than me have spoken at length about the report. How does the Minister intend to respond to it? When will we see the Government’s response? I hope that it will be before the next stage. So far, the Government have failed to convince the DPRRC, our colleagues in the Commons or my noble friend Lord Morgan and other noble Lords who raised these issues that these powers are necessary. The Minister can anticipate engaging with the House about these regulatory powers; as she will soon learn, this is standard fare to noble Lords and an important aspect of our revising role.

I want to ask the Minister about the interesting challenge created by the regulations subject to the negative procedure. She will be aware that they have a 40-day time limit. When does she intend to put them down? To deal with them before exit day, that suggests 18 February, but I may be wrong. What is her intention for them, because that date will come before we have finished considering the Bill? We need to question the powers in the Bill, but there are other matters to consider. As the noble Lord, Lord Kakkar, and other noble Lords explained, Clause 4 is loosely worded about the necessary use of patient data; I suspect that the House will want to address that. I have been in touch with the NHS National Data Guardian. Has the Minister also sought her guidance on this matter?

There are very serious issues around the arrangements between Northern Ireland and the Republic of Ireland, as mentioned by the noble Baroness, Lady Barker, and other noble Lords. Finally, the issues of cost, review and accountability are missing completely from the Bill as it stands, as mentioned by the noble Earl, Lord Dundee. It is important to reiterate that we on these Benches agree that reciprocal arrangements are vital. They should be straightforward but the Bill’s complexity and scope puts them at risk. The Minister will need to listen carefully to what the House has to say and make good her promises to do so at an early stage.

NHS: Waiting Times

Baroness Thornton Excerpts

Tuesday 18th December 2018 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, the Minister has not answered the Question put by my noble friend, which was about the effect of this on waiting lists. Using the private sector to relieve waiting lists, particularly during the winter crisis, which hospital trusts were told they could do, suggests that the understaffing and underresourcing of the NHS is the problem. Who pays for that private sector use? Is it trusts or NHS England? Is the cost of the use of private hospitals set against the cost of providing enough funding to ensure that hospitals and primary care are fully staffed and resourced?

[Lord O'Shaughnessy]

With respect to the noble Baroness, I think I did answer the noble Lord’s Question because there are two different issues. One is the offering of private healthcare services and the second is the use of private providers to carry out NHS-funded provision—something that has been going on in the NHS for a long time and was accelerated under the last Labour Government. Of course, if private or independent providers are used to reduce waiting lists under the NHS, the NHS pays and the patient does not pay anything.

Blood Safety and Quality (Amendment) (EU Exit) Regulations 2019

Baroness Thornton Excerpts

Wednesday 12th December 2018 Grand Committee

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)]

My Lords, in proposing these regulations, I want to explain that they are made under powers in the European Union (Withdrawal) Act 2018 to make necessary arrangements for the UK Blood Safety and Quality Regulations. This statutory instrument will correct deficiencies in those regulations so that the UK is prepared if we leave the EU without a deal on 29 March 2019.

Current regulations set out the safety and quality requirements that cover all the steps in the blood transfusion process, from donation, collection, testing, processing and storage to distribution. The short shelf life of these products means that an uninterrupted process of donation and processing is needed to ensure that the UK has a safe and continuous supply of blood and blood components. As a responsible Government, we have been preparing for all scenarios, including the unwanted but potential outcome that we leave the EU without a deal in March 2019. This instrument will ensure that the regulatory regime in relation to blood safety and quality continues to function effectively after exit day in that scenario. It is vital to make these legislative changes to provide a functioning statute book that allows for the continued donation and processing of blood and blood components such as plasma and platelets to facilitate a wide range of essential and often life-saving treatments.

In moving these regulations, I want to be clear that they are limited to the necessary technical amendments to ensure that the legislation is operative on EU exit day. No policy changes are made through these regulations and we do not have any intention of making any at this point.

The main changes that the instrument will introduce are as follows. It transfers relevant Commission powers contained in the EU blood directives to the Secretary of State in relation to England and to the devolved Ministers in relation to the devolved areas. In addition, the Secretary of State may, with the consent of the relevant devolved Ministers, make regulations on their behalf. This will enable future updates to the blood safety and quality legislation to respond to emerging threats, changing safety and quality standards and technological advances. It contains modifications to how the annex to the blood directive should be read post Brexit. This is necessary to ensure that the requirements set out in the annex, which are referred to in our domestic legislation, continue to apply and function properly post exit. It also makes minor changes to amend EU-related references or EU obligations that will no longer be appropriate or will be redundant once the UK has left the EU.

Blood is a devolved policy area, so I am pleased to say that we have obtained the devolved legislatures’ consent to the provisions contained in this draft instrument. I beg to move.

[Baroness Thornton (Lab)]

My Lords, I thank the Minister for introducing these regulations. Given the state of the Brexit negotiations, deals and other matters that are going on in Parliament at the moment, it is probably just as well that we have this before us. However, I have to say, as I said to the Minister about the previous instrument we discussed, that it was there in case we crash out of the EU. This is really quite a waste of all our time and Parliament should not have to do this.

The regulations seem to be very straightforward. They will: amend or omit references to EU/EEA member states and third countries; omit provisions relating to EU obligations that will no longer be relevant to the UK; transfer relevant Commission powers under the EU blood directive to the Secretary of State in relation to England and the devolved Ministers in relation to the devolved areas, as detailed in paragraphs 7.12 to 7.15; and, as the noble Lord said, modify how the annex to Commission Directive 2005/62/EC is to be read after exit.

Human Fertilisation and Embryology (Parental Orders) Regulations 2018

Baroness Thornton Excerpts

Wednesday 12th December 2018 Grand Committee

[Viscount Craigavon (CB)]

My Lords, I will say a few words, partly reflecting what the noble Baroness, Lady Barker, said. I spoke on this subject in her debate some time ago.

We should be extremely grateful to the Law Commission for taking on this, in my opinion, very difficult and rather controversial work. Only an organisation like that is going to bring this to some sort of conclusion, but as the noble Baroness, Lady Barker, said, it will take considerable time, and understandably so—we do not want to hurry it. However, one or two problems are going to slip through the net before it reaches its conclusion. The noble Baroness, Lady Barker, mentioned particular problems and some of them might be resolved, as she said, by further orders but some will still be in difficulties because some women simply do not have the time to spare in their reproductive cycles to wait for these problems to be solved.

There is another example, similar to what the noble Lord, Lord Winston, was saying. In rather rare cases of cancer, the treatment disallows women from being able to be genetically connected to the child who is being born. That is another example where we might be in difficulties over the long time period we have. I very much welcome these regulations, and I hope the department will keep an eye on difficult cases that come up. We will be looking after them as well.

[Baroness Thornton (Lab)]

My Lords, on this occasion I thought I would let the experts go first—it is called delegation. Like all other noble Lords, I welcome these regulations. I think it is my first experience of a remedial order. As a bit of an anorak in these matters, with 20 years in your Lordships’ House, it is very exciting when you find yourself with a parliamentary procedure that you have not come across before. It is also interesting that the remedial order has then led to the statutory instrument that flows from it. We have also made all the right authorities happy.

I welcome the fact that the Law Commission is reviewing surrogacy. It is a three-year project, so the noble Baroness, Lady Barker, is right in what she said. In the time that I have been involved in doing health work in your Lordships’ House, every year or so we come back to some or other tweak, which is either down to medical science having advanced or, as my noble friend Lord Winston has said, technology having advanced. When my noble friend was speaking, I was reflecting on the fact that you can use the myheritage.com website to track down your genetic relatives from all over the world. If they are there, they will pop up. I suspect that will happen—not that we can legislate for that—and I suspect that the noble Baroness, Lady Barker, is right when she says that we will probably be back before the Law Commission has finished its work and certainly before the results of its work have been considered by the Government—whichever Government it is by then—brought forward and put into legislation.

Mental Capacity (Amendment) Bill [HL]

Baroness Thornton Excerpts

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

[Baroness Barker (LD)]

My Lords, I too thank the Minister for bringing forward this amendment and for having taken the time and effort to discuss the thinking of the department with many of us. I pay tribute to him and to the noble Baroness, Lady Stedman-Scott. They were rookies—this was their first ever Bill—and they have done a tremendous job, not least because it is a fairly open secret that many of us think this is one of the worst pieces of legislation ever brought before this House. I seriously mean that; we have said it several times. Together, they have enabled all of us in this House to play a very responsible role in turning some very bad legislation into legislation that is still in many regards highly deficient, but not as bad as it was.

As the noble Baroness, Lady Murphy, said, inevitably we failed to see the wood for the trees. We were so busy dealing with big defects in what was presented to us that we did not really get the chance to stand back and look at what would be an efficient overall system. It is for people in the House of Commons to look at what remains to be done to improve the Bill as it comes to them.

Part of it is that we spent so much time looking at the role of care home managers, we did not get around to thinking about how AMCPs, IMCAs and appointed persons could work together more efficiently to ensure that the most vulnerable get the most attention. It is unfortunate that Sir Simon Wessely’s review came to us only last week, with, at its very heart, the important issue of objection, the implications of which we should have been able to discuss in this Bill. I am sure we will need to return to that.

On this amendment, I thank the Minister for widening the triggers to include the involvement of an AMCP. But I want to flag up to those who will look at this in future the change in the role of care home managers and the role they will continue to play in renewing deprivations of liberty for up to three years, which is a big concern.

I also want to return to an issue that has been raised before: why, in this Bill, do we continue to deploy the best interest argument when it comes to ensuring that somebody has an IMCA? Several times we have asked to see the evidence base for creating that hurdle to access an IMCA, and the Government have yet again not given us any. A lot of people, particularly older women with dementia, will not get an IMCA because they will not be deemed to be objecting.

Perhaps the Bill’s biggest deficiency, and one we have not discussed much, is that practically nothing is in regulation; large swathes of it will be left to a code of practice. If one goes back to the Mental Capacity Act, however, one finds regulations that relate primarily to those who will be enacting this legislation. Regulatory conditions are applied to those who can be an AMCP, and to what their training has to be, and to those who can act as an IMCA, and to their ongoing duties to maintain contact when people move and to step in when the appropriate person, for some reason or another, ceases to fulfil the obligations it was initially assumed they would.

I say to those who will look at this in the House of Commons: the Government must be required, apart from anything else, to come forward with a great deal more detail than we have been able to elicit from them. With that, I welcome what is before us today.

[Baroness Thornton (Lab)]

My Lords, I join other noble Lords in welcoming this amendment, which we will of course support. It is a little disappointing that we have not made all the progress that we wished around the AMCP. We are half way there with the pre-assessment regime in this amendment and have a commitment that the other part will be undertaken in the Commons. As the Minister and other noble Lords will be aware, the Bill has to end its passage here anyway, so we will be able to see whether those commitments have been fulfilled to ensure that the safeguards are in place.

As we discussed on Report, and in the helpful meeting with the Bill team, the amendments we were seeking—to ensure that the care home manager is not responsible for decisions about independent consultation —have been responded to. However, I am not sure we are quite there yet.

As the noble Baroness, Lady Watkins, pointed out, a question remains about independent hospitals employing their own AMCPs and whether that is a conflict of interest that needs to be dealt with by the Bill. As other noble Lords have said, we need to ensure that if the person who expresses concern is a member of staff, they will be protected under the whistleblowing regime. I accept that, as the noble Baroness, Lady Finlay, said, that would not necessarily be included in the Bill, but it simply has to be there, otherwise this will not work.

The noble Baroness said that we are going to congratulate each other, but I shall do that next.

--- Later in debate ---

[Baroness Finlay of Llandaff]

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

[Baroness Thornton]

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

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

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

Tobacco Products and Nicotine Inhaling Products (Amendment etc.) (EU Exit) Regulations 2018

Baroness Thornton Excerpts

Tuesday 4th December 2018 Lords Chamber

[Lord Rennard (LD)]

My Lords, there are those—I am certainly not among them—who welcomed the idea of Brexit because they did not like the restrictions on the promotion of tobacco that we agreed across the EU. Contrary to the biased and selfish claims made on behalf of the tobacco industry, these regulations have been successful in reducing significantly the prevalence of tobacco smoking and its related diseases. We should never forget that tobacco products shorten the lives of half the people who smoke.

The tobacco lobbyists will be disappointed with the regulations because they show that they have lost the argument and there is now cross-party consensus on tackling tobacco-related problems. As the Minister said, even if we have the disastrous no-deal Brexit that some of those people want, the regulations will allow for a set of pictures, as currently used in Australia, to continue to appear on cigarette packs in the UK to warn smokers of the terrible damage done to their health by smoking.

As the Minister said, the regulations have the support of the excellent Action on Smoking and Health, of which I am a former director. Of course, they have my support too, but I would like to remind the Minister that the Tobacco and Related Products Regulations 2016 require the Secretary of State to review those regulations and publish a report before 20 May 2021. Some of the important points made by the noble Lord, Lord Hunt of Kings Heath, should be examined when that report is made. Some of us also feel passionately that e-cigarettes can and must be promoted effectively as an alternative to smoking tobacco, but in such a way as not to encourage people who have never smoked tobacco to take up an addiction to nicotine. I would like the Minister to confirm as well as he can that there will be no going back on our successful tobacco regulation policies, which are doing so much to improve the health and life expectancy of so many people. We should do nothing that reverses the excellent progress being made on this issue.

[Baroness Thornton (Lab)]

My Lords, I apologise to the House for being a minute or so late. I am afraid that business moved too quickly and the lift too slowly.

As the Minister said, the current regulations for tobacco and related products are designed to promote and protect the public’s health. Speaking as a veteran of tobacco regulation from the previous Labour Government and the Minister responsible for the point of sale retail advertising regulations that put tobacco products out of sight in our shops and supermarkets, all those actions were rigorously and energetically opposed by the noble Lord’s party and the Minister’s predecessor but one. I welcome the Government having definitely seen the light on this; it is wonderful. I am pleased to learn that the Government’s priority is to maintain the same high standards after the UK leaves the European Union, if that is indeed what happens.

The noble Lord and I are discussing regulations that will be necessary if there is no deal. I suspect they are the first of many. We have a whole load of embryonic and blood things to discuss next week. I wonder whether that is really a productive use of his time or mine.

On what these regulations do, in the event of no deal we will be obliged to introduce legislation to ensure that the policies and systems in place to regulate tobacco products and e-cigarettes will continue to function effectively and maintain continuity with current arrangements. The website and the Explanatory Notes use the words “where possible”, so I suppose my first question to the Minister is to explain the words “where possible” and where the current arrangements might not be possible.

If the UK leaves the European Union in March 2019 with no agreement in place, that will mean, as the noble Lord said, that the tobacco products directive and the tobacco advertising directive will no longer directly apply to the UK—which is ironic, as we were the pioneers in these matters all those years ago. UK domestic law that implements these directives, such as the Tobacco and Related Products Regulations 2016, would remain in force.

My understanding is that these regulations’ purposes are threefold: to introduce a new domestic system to allow producers to notify e-cigarettes in accordance with existing rules; to introduce a new domestic system to allow producers to notify tobacco products in accordance with existing rules; and to introduce new picture warnings for tobacco products, already mentioned by noble Lords, based on the picture library owned by the Australian Government. The noble Lord and I have both learned that the pictures in use at the moment come from a library based in Brussels. We will no longer have access to it.

I thank ASH for its views and vigilance on these important matters, and for its participation in the consultation process. I agree with it that the system set out for notification of e-cigarettes and novel tobacco products in the consultation document is pragmatic and practical, and would minimise the additional work involved in the notification process if there were to be a no-deal Brexit. Products notified to the UK prior to the UK leaving the European Union would not require re-notification and data will be accepted in the same format as currently submitted. Those arrangements seem satisfactory.

For the purpose of providing an alternative to the current picture warnings in the event that the UK leaves the EU with no deal, since we would no longer have access to the rather revolting and graphic pictures in the SI—I have not seen any other legislation with pictures in it, but this instrument has them; I suggest that if noble Lords have not read the statutory instrument they should at least open it and look at the pictures it contains—the Minister has said we will switch to the ones used in Australia, which I gather are even more horrible. However, I remind the Government that, in the longer term, the Tobacco and Related Product Regulations 2016 require the Secretary of State to review the regulations and publish a report before 20 May 2021. This review needs to examine the objectives intended to be achieved by the regulatory provision made by these regulations, and to assess how far they have been met and whether they remain appropriate. That will allow a review of quite a fast-moving area in terms of product development to take place. Does the Minister agree that is the case?

For the purpose of providing an alternative to the current picture warnings in the event that the UK leaves the EU with no deal, switching to the pictures from Australia is a short-term quick fix for this emergency. However, current best practice in Australia and the UK is to rotate, regularly review and update those health warnings. Therefore, it is essential that in the longer term the Government review the warnings—they are currently being evaluated by the Australian Government—and find ways to increase the number to allow for rotation, as is currently the case. When can we expect that review to take place?

I do not need to add to my noble friend Lord Hunt’s remarks about the importance of vaping and its role in reducing smoking. These statutory instruments serve their purpose.

[Lord O’Shaughnessy]

I am grateful to all noble Lords who have spoken on this statutory instrument. It is hard to believe that it has taken us this long to have our first Brexit outing on health issues. It could be the first outing of many and we may not always be in such agreement, but I am happy that we seem to be on this occasion.

On the point made initially by the noble Lord, Lord Hunt, and later reinforced by the noble Lord, Lord Rennard, and the noble Baroness, Lady Thornton, about e-cigarettes, we have been working in a framework decided at a European level and have made the most of it. It inevitably involves some restrictions, whose boundaries we have tried to push in order to have what I think is the most rational and effective approach in Europe. It has worked. As we all know, it has contributed to improved smoking cessation and low use by young people—take-up among young people being one of the fears, which we are unfortunately seeing in the States. Some research is still required to understand better both the behavioural and the health impacts of vaping products, but the Government have no doubt about their central role in dealing with what is still one of the biggest public health issues that we face. I can give an assurance that we keep an open mind about the right way to regulate these products, bearing in mind their almost entirely positive benefits.

It is worth emphasising, as noble Lords have done, that the purpose of the instrument is not to change policy; it is to provide continuity and make sure that there are fixes. However, as the noble Lord, Lord Rennard, and the noble Baroness, Lady Thornton, pointed out, the review of directives that the Secretary of State has a duty to fulfil gives us an opportunity to think about how they are operating in this and other domains. Certainly, we will fulfil that by 2021, but the Secretary of State may decide to do something sooner —of course, that is not something I can commit him to at this point. The policy is working and we want to make the most of it. For example, some of the restrictions on advertising may be stopping realisation of the full benefits of the use of e-cigarettes in smoking cessation; those are the kind of things we would want to think about.

The noble Lord, Lord Rennard, and the noble Baroness, Lady Thornton, talked about the Australian pictures. They are indeed more gruesome—it clearly shows that Australians have a higher threshold for what appals them. We are grateful to the Australian Government for helping us get through the transition by giving us those gruesome photos. It is also worth noting that Australia has a very successful smoking cessation regime—we are not taking these images from just anybody; we are taking them from a country that is doing really well, so there is good reason to think that they will be effective.

The noble Baroness, Lady Thornton, asked about rotation. Clearly, we are going to need to work with the Australian Government as well as design our own pictures. In a no-deal scenario we would need to do that so that we can have rotation and make sure that people do not grow desensitised to these pictures, which is of course one of the problems with them. Of course, in a no-deal scenario we may be able to work with a number of different jurisdictions. It may be possible to assemble a library that goes beyond one or two countries, but that is not something we have a timetable for yet.

In answer to the question from the noble Lord, Lord Rennard, I say again that there is absolutely no going back on the progress we have made on smoking cessation. The Government are a vigorous promoter of tobacco control. We know the health benefits: pretty much the best thing you can do for your health if you smoke is to stop, so I can reassure noble Lords that there is no going back.

On the final question regarding the language—“fixing where possible”—the point is that we are acting under the aegis of the European Union (Withdrawal) Act 2018, which gives us the power to deal with certain things. Let me give an example of what it does not allow us to do, because of the framework of primary legislation. In its 20th report of the 2016-17 Session, the Joint Committee on Statutory Instruments found some defective drafting, but we do not have the power under the withdrawal Act to fix that through this process; we would need some other process. So we have used all the powers we have under the withdrawal Act to make fixes and provide continuity in key areas, but it does not necessarily follow that we have fixed everything through this process; that will have to be done through other processes. That is just the limit of what we can do through primary legislation.

I hope I have been able to answer noble Lords’ questions and provide reassurance about our commitment to smoking cessation and, indeed, about our open-mindedness to future policy changes that may be required for us to go further and take advantage of some of the technologies available to us. On that basis, I beg to move.

Sexual Health Services

Baroness Thornton Excerpts

Thursday 29th November 2018 Lords Chamber

[Lord O’Shaughnessy]

I shall certainly look into that issue. This is the largest trial of its kind in the use of PrEP, and we are determined to ensure that all 13,000 people are recruited to it, and that they are spread across the country. As I said, we have already reached nearly 10,000. I shall do a little more digging on that and write to the noble Lord.

[Baroness Thornton (Lab)]

My Lords, what actions are the Government taking to end HIV-related stigma and discrimination, which unfortunately still exists?

[Lord O’Shaughnessy]

First, we are giving it an extremely high profile. Indeed, Governments have given it a high profile since the noble Lord the Lord Speaker raised the issue in the 1980s. All Governments since have been committed to that and this Government continue to be so. We do that through a mixture of public health campaigns and working with schoolchildren to ensure that there is no stigmatisation or bullying of any groups of young people with HIV.

Health: Cancer

Baroness Thornton Excerpts

Thursday 29th November 2018 Lords Chamber

[Lord O'Shaughnessy]

I am grateful to my noble friend, not just for her recognition of that fact but for her campaigning on this issue. It is a really important step forward. The rollout of HPV vaccinations to boys will make a big difference to cancer rates, as it is doing for girls and women. It is part of a world-class screening programme in this country. A few issues need to be dealt with, and Mike Richards will be looking at those, but we are determined to make sure that our screening programmes get better and better.

[Baroness Thornton (Lab)]

My Lords, the Minister’s statements about the targets for 2028 are not consistent with the terrible and chronic staff shortages that NHS pathology departments are suffering. This will definitely be exacerbated by Brexit. Only three of 100 departments report to the Royal College of Pathologists that they have enough staff. Given that these are vital to the diagnosis and treatment of cancer, what are the Government’s plans to rectify this very serious problem?

[Lord O'Shaughnessy]

I absolutely recognise that it is a problem. As I said, we have increased the numbers of doctors in a range of specialties. Pathology has been a challenge, it must be said. There are two answers: the first is to continue to recruit more people, either domestically or internationally. The second refers to the point that the noble Baroness, Lady Finlay, made: we are determined to utterly transform this service through technology while also delivering better results.

Mental Capacity (Amendment) Bill [HL]

Baroness Thornton Excerpts

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

[Baroness Barker]

My Lords, I think the Minister deserves our congratulations on having met all the conditions that we around the House said we believed were important. I am sure that the Government always intended to have some of these matters as part of the legislation, but making them explicit in the context of the Bill is helpful. Not least, it will be helpful to care home managers themselves, who will welcome the protections from unjust accusations of undue influence in future. On behalf of these Benches—and, I should imagine, others—we welcome that.

[Baroness Thornton (Lab)]

My Lords, I agree with the noble Baroness, Lady Barker, and welcome these amendments. As the Minister said, they are very important and deal with the issues of conflicts of interest and the preauthorisation review. I congratulate the Minister on navigating us to this point, and certainly we will be supporting the amendments.

[Lord O’Shaughnessy]

My Lords, I am grateful to the noble Baronesses for their support. Of course, navigation of any ship requires a good crew, and I feel that we have one. I am very grateful for that support.

--- Later in debate ---

[Baroness Barker]

My Lords, I will speak briefly to Amendment 77 in my name, which was drawn up because of the experience of many relatives. I make particular reference to the case of Stephen Neary, where relatives had to deal with local authorities which were telling them wrongfully what their position was in law. A great deal of responsibility was put on to the relatives to oversee the right interpretation of the law. This amendment seeks to ensure that, where they are acting in the best interests of someone who is cared for, relatives would be able to meet an AMCP and trigger their involvement. In our earlier discussions, there was an underlying sense on the Government Benches that the involvement of professionals can often be an unwelcome intrusion into families. In fact, many of them do not find that at all. Many find that the first occasion when they come into contact with a professional is the point at which all sorts of information and understanding becomes available to them in support of their loved ones.

Although I am not seeking to press this amendment today, I hope that the Minister might think about it and, if he is disposed to do so, make some supportive statements.

[Baroness Thornton]

My Lords, I will speak briefly to Amendment 46, which is in my name and supported by the noble Baroness, Lady Barker. It provides that the care home manager, or any person interested in the cared-for person’s welfare, is responsible for being satisfied that an AMCP should carry out a pre-authorisation review. The Committee has already discussed this and the important safeguards which we will be seeking come under Amendment 76A. Some of the important matters raised by the noble Baronesses, Lady Finlay and Lady Barker, have been addressed by the Minister in the Government’s amendments. I look forward to his reply.

[Lord O'Shaughnessy]

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

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Baroness Thornton]

My Lords, I was pleased to add my name to Amendment 67 in the names of the noble Baronesses, Lady Barker and Lady Jolly, because it would allow the responsible body to specify the set of conditions on the deprivation of liberty to determine that the arrangements are necessary and proportionate and that those conditions are complied with.

Throughout the Bill’s stages, the noble Baronesses, Lady Barker and Lady Finlay, have been consistent on the importance of conditions. Of course, these things make the deprivation of liberty from the patient or cared-for person either tolerable—that is, understandable—or really horrible. I have been very impressed by some of the examples explained by the noble Baroness, Lady Finlay. It is important that these conditions are not only set, but met, monitored and changed when circumstances change. We seek assurance that the legislation, regulations and conditions will make that happen.

[Baroness Tyler of Enfield (LD)]

My Lords, I reinforce what has been said about the importance of conditions and the difference that they can make to both quality of life and the tolerability of the regime to which the looked-after person is subject. I read about how some of the conditions might be things such as helping the looked-after person to sit in the care home’s garden every day or be taken out once a week, as well as how vital these conditions are to ensuring that the decisions taken are the least restrictive. We can all relate to these important things. It is important that there is provision for such conditions to be set out.

--- Later in debate ---

[Baroness Finlay of Llandaff]

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

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

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

“inappropriate and disproportionate use of physical restraint”,

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

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


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

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

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

[Baroness Thornton]

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

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

[Baroness Barker]

My Lords, it has been a concern of all noble Lords who have taken part in discussions on the Bill that a person could be deprived of their liberty without seeing an appropriate professional at any time. We have argued back and forth about the extent to which access to an appropriate professional should be universal, automatic or whatever.

With this amendment, the noble Baroness, Lady Finlay, and those of us who have attached our names to it are trying to ensure that where the people who are most closely associated with a person have a genuine and deep concern—I imagine it would be a shared concern—but not necessarily a formal role, they can alert a professional to come in and make an assessment. We are trying to close a loophole that we think is still there.

If we can do that, we will be well on the way to doing what the Minister has indicated the Government are trying to do: to make the most effective and efficient use of professional resources amid a level of demand which we know cannot currently be met. We have moved some way from what we would ideally like to see and this amendment represents something of a compromise. I hope we can reach agreement on this last part of the link.

--- Later in debate ---

[Baroness Finlay of Llandaff]

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

[Baroness Thornton]

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

[Lord O'Shaughnessy]

It is Amendment 76A.

--- Later in debate ---

Moved by

[Baroness Thornton]

82: Schedule 1, page 13, line 32, at end insert—
“(za) meet with the cared-for person,”

[Baroness Thornton]

My Lords, the next three amendments form a suite and, following our discussions with stakeholders, these are issues that we would like to discuss. The noble Baroness, Lady Barker, and I have shared the tabling of these amendments, which do not directly address the central and overarching question of where so much of the care home manager’s responsibility will lie. In a way, we have addressed that issue and amended the Bill accordingly. The amendments concentrate on strengthening the rights of the cared-for person, which have to be at the heart of any system for giving and reviewing authorisations, by ensuring that their voice is heard within consultations at every stage of the process. Amendment 82, which is in my name and that of the noble Baroness, Lady Barker, would start this process by ensuring that there is a meeting “with the cared-for person”. I beg to move.

[Lord O’Shaughnessy]

Before I address this amendment, I again thank noble Lords for their willingness to talk further on Amendment 76A so that we can reach the right conclusion.

The noble Baroness, Lady Thornton, quite rightly talked about the role of Amendment 82 being to make sure that the cared-for person has rights and that they are at the centre of the authorisation process. Of course, that is absolutely right. The reason why we have not taken the approach that the reviewer should meet all people in the system is because we want to provide a more proportionate system that nevertheless contains significant safeguards so that if there are any concerns about the nature of a review then not only would the reviewer, whether a responsible body or an IMCA, meet the person but there are opportunities for escalation beyond that.

Let me be absolutely clear that in cases where the person objects to the arrangements, the Bill already requires AMCPs to meet the person, where practicable and appropriate, when they complete the preauthorisation review. This amendment would require a face-to-face visit in all preauthorisation reviews, not only those completed by an AMCP, regardless of whether it is appropriate or practicable to do so.

I of course appreciate there will be circumstances where it is right and proper for the person conducting the preauthorisation review to meet the person, even in cases where the review is not completed by an AMCP. That is not precluded by the Bill. Indeed, it would be our expectation in some cases that that would happen. For example, if the person completing the preauthorisation review is concerned that adequate consultation has not taken place or if there is a question over the validity of any of the assessments provided, we think it right and proper for the person conducting the preauthorisation review to meet the cared-for person. Details about that, including scenarios, will be set out in the code of practice.

However, we also want to make sure that the system is proportionate. One of the problems we have at the moment is that it is not proportionate, and that is why we have a backlog. There are straightforward cases. For example, when someone who consented to living in the care home subsequently loses capacity and there is no reason to suspect that they would object to continuing to live in the care home, a meeting with the cared-for person would be very unlikely to change the outcome. In such cases, the person may have already undergone an assessment process and the person will also have access to representation—we are about to come on to IMCAs. Unless there are concerns about the validity of the assessments, it would not normally be necessary or proportionate to meet the person who, after all, had agreed to live in the care home.

A further potential effect of this amendment would be to require the person completing the preauthorisation review to meet the cared-for person, even if the person refuses. This is a topic we have discussed before. We do not think it goes with the ethos of the Mental Capacity Act, particularly in cases where someone has expressed a desire not to do so. It is important to stress that that is not just our conclusion but is also the conclusion of the Law Commission after its work. We believe that a targeted approach will be much more effective in making sure that those safeguards are in place.

While I understand the noble Baroness’s desire for reassurance that the cared-for person will be met, I do not think it would be appropriate in all cases. We have been clear during the passage of the Bill in the amendments that we have laid, and as we will specify in the code of practice, that there will be many circumstances when it is appropriate to do so but equally there will be circumstances when it is not appropriate. Therefore, we do not think it would be right to have a blanket application of this approach of the preauthorisation reviewer meeting the cared-for person. I hope that on that basis the noble Baroness will feel reassured and will withdraw her amendment.

[Lord O’Shaughnessy]

I would be more than happy to do so.

[Baroness Thornton]

I thank the Minister for that clarification. It is a question that we felt was worth asking, and I suspect that when the Bill goes to the Commons people will pursue it. I do not think the argument that the noble Baroness, Lady Barker, put forward, that there are people who do not want this and they should not be forced into it, is really the point; the point was about this not happening because it was obstructed by the people taking care of the person. That is the matter that needs clarification. So, on the basis that that will be clear—

[Lord O’Shaughnessy]

Before the noble Baroness withdraws her amendment, I would like to say that that is an important point. I am not suggesting that there are going to be hundreds of cases where individuals do not want to see someone, but it is clearly a possibility. I think we need a more proportional system in order to deal with the backlog and ensure that people are protected, but it also has to have a set of safeguards, whether that is access to representation, making sure that conflicts of interest do not exist among care home managers and, as we are going to discuss in the coming weeks, under what circumstances an AMCP would automatically be activated, in which case of course the meeting would take place. It is those circumstances that ought to give the reassurance that it is not necessary in all cases, rather than saying that there are hundreds or thousands of these kinds of cases where people are refusing. I think that will be the exception rather than the rule.

[Baroness Thornton]

I thank the Minister for that. I beg leave to withdraw the amendment.

Amendment 82 withdrawn.

--- Later in debate ---

[Baroness Finlay of Llandaff]

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

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

[Baroness Thornton]

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

--- Later in debate ---

Moved by

[Baroness Thornton]

103: Schedule 1, page 16, line 20, after “interest” insert “in the welfare of the cared-for person, or”

[Baroness Thornton]

My Lords, Amendment 103 is in my name and that of the noble Baroness, Lady Barker. It would ensure that the reviewer must carry out a review of authorisations if a reasonable request is made by a person with an interest in the welfare of the cared-for person. This is part of the suite of amendments that stakeholders have put to us about making the cared-for person the heart of the Bill. Care England, along with many others across the sector, wants to be assured that the cared-for person’s voice is heard within the consultations at every stage of the process. This amendment would ease those concerns of the various stakeholders.

Like amendments in previous groups, this amendment would ensure that the cared-for person’s best interests are kept at the forefront of the Bill and not forgotten, and it would play a key role in protecting the cared-for person’s rights. If someone with a cared-for person’s best interests feels that the authorisations are in need of being reviewed and reconsidered, this must happen and therefore would help to protect the cared-for person. I beg to move.

[Lord O'Shaughnessy]

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

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

“person with an interest in the arrangements”,

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

[Lord O'Shaughnessy]

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

[Baroness Thornton]

This is probably one of the occasions when one can say that this really needs to be clarified in the code of practice. I thank the Minister for his reassurances and for getting them on the record. I beg leave to withdraw.

Amendment 103 withdrawn.

--- Later in debate ---

[Baroness Barker]

My Lords, like all other noble Lords, I welcome the Government’s change of heart on this matter and am glad that they have understood the very real concerns about conflict of interest in relation to care home managers. However, I would like to take this opportunity to raise one other potential conflict of interest to which we have not really had time to pay much attention, and that is within the responsible body. The responsible body may well be the local authority which is funding somebody’s care home place. During meetings, stakeholders have been very concerned that the person within the responsible body who makes these decisions should not be within the commissioning part of that body, as there is the potential there for another conflict of interest.

Some further work will have to be done—I suspect either in regulations or in a code of practice—to make sure that we do not enable another conflict of interest to take place which is probably more important than a conflict of interest relating to a care home manager. It is just a case of being sure that all the decisions—although principally these decisions—are taken by a person within the responsible body but not within the financial decision-making parts of it.

[Baroness Thornton]

I have an amendment in this group which covers the same ground that we have been talking about for the last 20 or so minutes. It is probably not essential to pursue this amendment because the government amendments on this matter seem very comprehensive.

[Lord O'Shaughnessy]

I am sorry that I did not mention the noble Baroness’s amendment—there are so many in this group—nevertheless, I am grateful for her acceptance that we have been able to meet the perfectly justified concerns discussed inside and outside the Chamber during the passage of the Bill.

Perhaps I may deal quickly with the point raised by the noble Baroness, Lady Barker, who asked about conflicts of interest within a responsible body. We would certainly expect authorisation and the IMCA appointments to be in a separate part of the commissioning body. Government Amendment 73, which deals with who should not carry out reviews, includes, in paragraph (b),

“a person who has a prescribed connection with a care home”.

The process of commissioning a care home place for somebody should perhaps be a category that we ought to consider under that provision, and I shall need to reflect on that. That might be the right route to follow, as clearly we do not want to move the conflict of interest to a different part of the process. I will look into that and we will consider how to deal with it. I think we now have the statute to enable us to do so. I will come back to noble Lords on that point. I thank them for their contribution to the development of these amendments and their support for them. I beg to move.

--- Later in debate ---

[Baroness Thornton]

My Lords, I feel sorry for the Minister that after so much agreement we are now criticising the Bill. However, the reason we have reached a happier state than the one we started off in in July is due to the work of a great many people, including the Minister and the Bill team.

I have put my name to several amendments in this group—I support my noble friend Lord Hunt and the noble Baroness, Lady Tyler, in what they have said—and I shall speak to Amendments 143A and 147A.

In a way, the amendments are part of what should have happened before the Bill reached us; that is exactly right. It is important to note that a coalition of organisations is concerned about what is and is not in the Bill and how it will be implemented. For the record, we have discussed the Bill with at least 44 organisations in the very short time we have had to consider it. They include Mind, the Alzheimer’s Society, Liberty, Learning Disability England, Disability Rights UK, the Relatives & Residents Association, the Care Provider Alliance, VODG—the voluntary sector’s disability group—and many others. We must pay credit to both them and the noble Lords who have worked so hard on this for the fact that we have come to a point where the Bill has significantly changed and been improved.

Echoing what my noble friend said, the amendments ask that the revised codes of practice for the Mental Capacity Act take account of Schedule 1 to the Bill and, prior to the provisions in the Act coming into force, that the code be revised by statutory instrument using the “made affirmative” procedure. Amendment 143A states:

“Before any provisions of this Act other than those which come into force on its passing come into force … the Secretary of State must publish a report detailing which of the provisions of the Act will be consulted on, by whom and by when … publish his or her consideration of the conclusions of the Independent Review of the Mental Health Act … conduct further consultation with vulnerable people, families, charities, providers … publish an equality impact assessment on the impact of the provisions of this Act”.


I would like the Minister to say that the Government have done the equality impact assessment but I have missed it somehow. However, it seems that the Government are duty-bound to consider the impact on people with protected characteristics under the Equality Act. An equality impact assessment is the established way of the Government showing that they have considered the impact on vulnerable groups. That Act begs that this process should have been gone through in preparation for the Bill. I hope that a full equality impact assessment will be conducted and made available to the Commons when it considers the Bill.

[Lord O’Shaughnessy]

My Lords—

Organ Donation (Deemed Consent) Bill

Baroness Thornton Excerpts

2nd reading (Hansard): House of Lords
Friday 23rd November 2018 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I first congratulate my noble friend Lord Hunt on introducing this Bill and all noble Lords on an excellent debate. As the noble Lord, Lord Carlile, said, this is the place where we have these debates—sometimes they are painful, sometimes they are excellent and sometimes they are very enlightening. I also thank the Library and others who have given us such excellent briefings in preparation for this debate, including the British Heart Foundation, the BMA, Fight for Sight and many others.

I was heartened by many of the contributions we have heard today, including those from the noble Lord, Lord Lansley, the noble Lord, Lord Patel, who mentioned the issue of organ availability among BAME communities, and the noble Baronesses, Lady Chisholm, Lady Sater and Lady Finlay. As my noble friend Lady Crawley said, in a moving speech which I know was in part based on her family’s experience, the blessing of modern science, which allows lives to be saved, is not fully realised because of the lack of organs.

I also congratulate the noble Baroness, Lady Brady, on her contribution—it is a pity that she is not in her place now—and I welcome the speech of the right reverend Prelate the Bishop of Carlisle. I think I understood that the Church of England is now moving, as it ever does, in a slow and considered way, in what I hope is the right direction and ending up in the right place.

I particularly welcome the remarks of my noble friend Lord Elder, and his bearing witness to the successful outcome of organ donation, for which we are all—particularly those of us in the Labour family—very profoundly grateful.

I think the noble Lord, Lord Leigh, came close to suggesting that the Bill gives the state the right to take organs, but I do not believe that is the point of this Bill at all. I think, as many noble Lords have said, that this Bill is part of a process of shifting the debate, the commitment and the resourcing of organ donation as well as the thinking about what it means and how it should go forward. I congratulate the noble Baroness, Lady Randerson, on her pioneering work. Personally, I am very happy to follow Wales in this matter.

Without doubt, across the parties it has been agreed that the current law needs to be changed, and I believe that this Bill is the best first step forward in achieving the change we seek to move towards an opt-out system. With so many people who will benefit, it becomes difficult not to support this Bill and it is an honour to be able to support it. As my honourable friend Jon Ashworth said in the House of Commons, it is Labour policy, and I am very pleased to say that is the case. I congratulate Geoffrey Robinson MP and Dan Jarvis MP on the wonderful speeches they made in the Commons, and the Daily Mirror for its tireless campaign to bring about this change.

Like many noble Lords, I have been an organ donor for as long as I have been a blood donor and could sign the forms. All of my family are donors and we have discussed our wishes in this regard. This legislation will mean less ambiguity at what is probably the most stressful and sensitive time for family members. The idea that adults and children die waiting for an organ that could save their lives is painful and unnecessary. The gift of giving is part of our human condition. Following the death of my father-in-law, Henry Carr, I know that my family felt proud of and comforted by the fact that people benefited—at least two or three lives were transformed through the gift of organ donation.

Given that the Prime Minister and the Government have expressed support for legislation of this nature at various stages, I hope that the Minister can assure your Lordships’ House that the remaining stages of the Bill will take place early in the new year. Doing so will send a strong signal to the outside world and bring hope to many families across our country.