Covid-19

Debate between Baroness Thornton and Baroness Tyler of Enfield

Monday 15th November 2021 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I thank the Minister for actually reading the Statement today and for updating the House on the latest JCVI recommendations. I have to question the last statement that the Minister made. When you have nearly 40,000 infections, as we have today, I wonder if we are one step ahead of the infection or not.

We still see people who are keen to come forward to receive their booster dose but who are still experiencing difficulties in getting it. Does the Minister have an age breakdown by region? I repeat a question that I asked last week. What are the Government doing to fix the ongoing problems with the stalling of the vaccination programme? It is obviously exactly right to accept the JCVI recommendations about extending the programme, but my questions are about how effective we are being in delivering that. Not only is there some confusion about the booster vaccinations, we have also seen some stalling in giving the second dose. There are areas of the country where the second dose vaccine rates are as low as 52%—which is what they are in Westminster.

While we welcome the JCVI decisions to extend Covid booster vaccinations to those aged between 40 and 49, and second doses to 16 and 17 year-olds, there is still a large challenge. As I say, infection rates remain high. Today’s figures show 39,705 cases. Can the Minister give the demography of those being hospitalised and whether this is changing? Can he inform the House, either tonight or by letter, the demography of patients admitted to hospital with Covid—their age, vaccination status and the gravity of their illness? Do we yet know the incidence of genome sequences of the new cases and what has been learned about this?

The Government’s commitment was for all children to be offered a jab by half-term, yet only a third of children have been vaccinated. That means we are quite a long way behind. When does the Minister believe we might catch up? When will all the children who should be vaccinated at least have had their first jab, if not their second?

Last week, the Secretary of State said that he could not rule out the policy of over-65s being banned from all public places if they have not had their third jab, as they have been in France. He said, “We’re not looking at it yet but I can’t rule it out.” Can the Minister confirm whether the Government are considering locking down pensioners who cannot show proof of a booster on an iPhone?

The Minister would expect me to raise the issue of the terrible pressure on our NHS. Today we heard from ambulance chiefs about 160,000 patients coming to harm every year because ambulances are backed up outside hospitals. Thousands of patients will suffer terrible harm. All 10 ambulance trusts are on high alert. We know that NHS staff are stretched and tired, and that there are not enough of them. We know that one in five beds is occupied by an older person who should be discharged and who needs care, but because of the crisis in social care, both domiciliary and in care homes, there is nowhere for many of them to go and no one to look after them.

I am sure the Minister will tell the House about the extra expenditure and the tax rise, but the truth is that the Secretary of State failed to secure a new funding settlement for long-term recruitment and training in the Budget, so how will we recruit the extra staff the NHS needs? The noble Lord’s boss failed to secure the investment needed to fix social care in the Budget. Public health failed to get serious attention in the Budget. We are at the beginning of the winter period and it looks bleak, so what is the plan to get the NHS through this winter without compromising patient care?

I have another few matters to raise. Why does the NHS app still not recognise booster jabs? Apparently, the Prime Minister said at a press conference earlier that this would happen, but he did not say when. Does the Minister have any further information about that?

Indeed, on border controls, Ministers insist that vaccinations are the UK’s main line of defence, but the Conservative Party chair, Oliver Dowden, said this morning that the situation was being kept under review, with alarm over a spike in cases on the continent. As we have seen, Austria has imposed a draconian new lockdown on unvaccinated people after a dramatic increase in infections, and Germany, France and Italy are seeing a significant uptick in outbreaks. Do the Government have a contingency plan for travel restrictions given the fears of a rising fourth wave in Europe?

Finally, and shockingly, we learned today that Covid rates in Parliament were four times the London average in October. Does the Minister believe that this relates to the time when many Conservative Members, particularly in the Commons, were shunning wearing masks and presumably allowing their staff to do the same? I understand that a team from his own department turned up at a Standing Committee without masks a few weeks ago and had to be supplied with them by the clerk of that committee. This smacks of arrogant leadership, led by the Prime Minister last week on his hospital visit. Unfortunately, it is not only unattractive arrogance but dangerous, because it will cost lives.

[Baroness Tyler of Enfield (LD)]

My Lords, I thank the Minister for repeating the Statement. At this afternoon’s No. 10 press conference, Professor Chris Whitty made it very clear that doctors and scientists are increasingly concerned about the average of 37,500 cases over the last week and the high number of Covid cases in hospitals. Professor Whitty said that it would be a tough winter and added that, in addition to the nearly 9,000 Covid patients in hospital, all other areas of the NHS are under growing and intense pressure. He recommended that, in addition to getting their vaccinations, everyone should use face masks and ventilation to help reduce the number of cases.

This morning, Oliver Dowden, who was just referred to, said “It is in our hands” whether further restrictions in plan B are put in place this winter, but clearly the Government’s current communications on just encouraging using face masks and ventilation indoors and on transport are simply not cutting through. It certainly was not on my Tube journey in today, where distressingly few people were wearing a mask. Even if the Government do not want to implement the whole of their plan B, why will they not at least mandate face masks and improving ventilation on public transport and indoors when so many people across the spectrum are crying out for this to happen?

Leaving it to individual choice and personal responsibility is far too weak and inconsistent a message. It is crystal clear that the Prime Minister does not want to implement plan B, but is the reality not that he is far more likely to have to do so—or, indeed, move straight to plan C, a total lockdown—if mask-wearing is not made mandatory immediately? Does the Minister agree with me, and the point just made by the noble Baroness, Lady Thornton, that all parliamentarians and most particularly Ministers have a duty to set a clear example of mask wearing inside and on public transport?

Professor Whitty highlighted the stark figure that 98% of pregnant women admitted to hospital had not been vaccinated, and that same ratio applied to those in intensive care. What specific steps are the Government and the NHS taking to talk directly to pregnant women to encourage them to have their vaccinations?

It was worrying this afternoon when the Prime Minister said that he “hoped” that booster and third jabs could be logged on the online system “soon”. We have been asking questions about this system for weeks now. Can the Minister look into Pinnacle, one of the systems that logs people’s Covid status, to find out why practitioners are not yet able to record a third jab for the clinically extremely vulnerable, as well as a separate listing for booster jabs for everyone else over 40? As the Prime Minister said this afternoon, evidence of booster jabs will be required for travel this Christmas, but because third vaccinations and booster doses are still not appearing separately on the NHS Covid app, there is a great deal of anxiety and frustration among people who will need not only to have had the jabs but to be able to provide the evidence. Can the Minister say—I underline the point made by the noble Baroness, Lady Thornton—when all third doses and boosters will be on the online system?

Finally, although I welcome the announcement that it is safe for 16 and 17 year-olds to receive a second dose, can the Minister explain where 16 and 17 year-olds will be able to get that second dose? Too often, young people wishing to have their initial jab were put off because they had to travel to a centre some way away, often by bus, train or car, often involving parents providing the transport. Will the Minister undertake to look into ensuring that there are centres in town centres and other easily accessible places so that young people can more easily access their second dose?

Mental Health Act Reform

Debate between Baroness Thornton and Baroness Tyler of Enfield

Monday 18th January 2021 Lords Chamber

[Baroness Thornton (Lab) [V]]

My Lords, the whole House will welcome this White Paper. The overhaul of the Mental Health Act has been long awaited. It is also to be welcomed that the Government have accepted the majority of the recommendations from Sir Simon Wessely’s independent review of the Mental Health Act. As Sir Simon Wessely’s report highlighted, there is a great need for patients to be heard, for their choices to be respected and for them to be supported to get better in the least restrictive way.

Although legislative changes are important, the best way to prevent people being detained under the Mental Health Act is to prevent them reaching a crisis point in the first place. This means bringing reality to equality for mental health, bringing in investment and training, and introducing a culture change in the NHS.

My first question is whether the investment detailed in the long-term plan will be sufficient to achieve that. Many of the organisations which have championed mental health doubt that it will. Surely we will require greater investment to implement the proposals of the White Paper.

The Government accept almost all the review’s recommendations on advocacy and tribunals, including the funding that will be required to implement them. These are key reforms affecting people’s liberty and will play an important part in making other improvements to people’s rights effective. Can the Minister assure us that planned reforms will be fully funded?

The independent review was published over two years ago. Since then, the murder of George Floyd and the growth of the Black Lives Matter movement have brought the impact of structural racism into greater focus. Among the five broad ethnic groups, the known rate of detention for the black or black British group—321.7 detentions per 100,000 of the population—was over four times that of the white group, which was 73.4 per 100,000. Men and women from African-Caribbean communities in the UK have higher rates of post-traumatic stress disorder and suicide risk and are more likely to be diagnosed as schizophrenic. Does the White Paper go far enough in tackling the racial disparities within our use of the Mental Health Act? It is very much to be welcomed that the Secretary of State has announced the new patient and carer race equality framework, which was recommended by Sir Simon Wessely. Can the Minister tell us the timetable?

On health inequalities in general, children from the poorest 20% of households are four times as likely to have serious mental health difficulties by the age of 11 as those from the wealthiest 20%. Half of LGBT people—52%—have experienced depression in the last year. One in eight LGBT people aged between 18 and 24 say that they have attempted to take their own life in the last year. Almost half of trans people have thought of taking their own life in the last year, and 31% per cent of LGB people who are not trans say the same. People living in the most deprived areas are more likely to be referred to an IAPT service by their GP but are substantially less likely to receive a complete course of treatment or make a successful recovery. Long-term funding decisions will be needed in the next spending review. What will they look like? Will the Government make a long-term commitment to invest when this is required?

I am sure we all welcome the aim to improve how people with learning difficulties and autism are treated under the Act. Will there be limitations to the scope for detention where their needs are due to learning disabilities or autism alone? Do the Government accept all the review’s recommendations on advocacy and tribunals, including the funding that will be required to implement them? These are key reforms affecting people’s liberty and will play an important part in making other improvements come about.

The emergency legislation of the Coronavirus Act 2020 represented a concerning reduction in patient rights and safeguards. While we understood the reasons for their initial introduction, I am sure that everyone is glad that they were never enacted and pleased that they have now been dropped. However, Covid-19 will prove a defining moment for the way in which we discuss and protect our mental health. A rising tide of people who have not previously experienced mental health problems now find themselves in that position. For a lot of people, the pandemic has seen a shift from merely “struggling” to becoming clinically unwell. Funding and reform will be needed more than ever.

Finally, can the Minister tell us when the legislative programme will commence? Is there to be a joint pre-legislative scrutiny committee? I believe the Minister’s right honourable friend the Secretary of State suggested that that might be the case. That would be very welcome and I hope that it will start very soon indeed. When, finally, will we see the draft Bill?

[Baroness Tyler of Enfield (LD) [V]]

My Lords, there is much to be welcomed in this White Paper, for which we have waited so long. I am pleased to see patient voices being put front and centre of plans and proposals to address the current shocking disparities in the rates of detention of people from black and minority-ethnic backgrounds. However, the issues that were highlighted in the Wessely review two years ago have continued to scar the lives of too many people during the extremely long gestation period of this White Paper.

The original legislation is 40 years old now and out of date. It is shocking, frankly, that it has taken us so long to amend archaic processes, such as an individual’s father automatically being their advocate in a mental health crisis, whatever the nature of the relationship or preference of the individual patient.

I understand the importance of getting the details right. However, I was concerned by the lack of urgency shown by the Secretary of State when responding to questions from MPs on the Statement last week. Why do we have to wait another year before the legislation can even begin? Can the Minister give us a concrete timeframe for the further consultation? What is the timetable for taking forward the non-legislative reforms in the Wessely review, not least to achieve wholesale cultural change in mental health services?

I am similarly very concerned about workforce issues facing this sector. Many of the workforce aims laid out in the NHS Long Term Plan are not on track to be met, with 12% vacancy levels in many mental health services. Between 2016 and 2019, demand for services increased by over 20%—and that takes no account of the exponential growth in mental health problems during the pandemic. Recent forecasts suggest, for example, that only 71 additional consultant psychiatrists will be added to the NHS workforce by 2023-24, against a requirement of more than 1,000 to deliver the long-term plan. What measures are the Government taking to address the additional workforce requirements of reforming the Mental Health Act?

We then come to the issue of funding. The short-term injection of £500 million is, of course, welcome, but it is sustainable and long-term investment in services—covering the full spectrum from preventive to crisis care—that we so badly need. We need a comprehensive plan for funding all existing and new mental health services, rather than one-off injections of short-term funding. Above all, this means investment in community services. In a survey of Royal College of Psychiatrists members, insufficient access to community health services was cited as the greatest cause of increases in formal admissions. The best way to prevent people being detained under the Mental Health Act is to prevent them reaching crisis point in the first place.

Like the noble Baroness, Lady Thornton, I am deeply worried about the impact of the pandemic on the nation’s mental health. In October last year, the Centre for Mental Health estimated approximately 10 million extra people with mental health needs due to the pandemic—a staggering figure. While it is understandable that we have been focusing on the physical threat of the pandemic and protecting our acute services, when will the Government come forward with proposals to address what some are now calling a mental health emergency?

It is an unpalatable fact that black people are currently 10 times more likely to be placed on a community treatment order. In these situations, patient voices become even more important, ensuring that culturally appropriate services can be provided. The patient and carer race equality framework is a good start; I look forward to hearing more on this issue. I note that cultural advocates are currently being recruited, but can the Minister confirm how many patient and carer advocates will be involved in both the advancing mental health equalities task force and the patient and carer race equality framework steering group? Also, why are the Government not proposing to legislate for a CTO to have a maximum duration of two years or to allow tribunals to change the conditions imposed on an individual by the order, as recommended by the Wessely review?

I end by returning to the issue of prevention. The courses of action covered by this legislation represent the worst-case scenarios for individuals experiencing severe mental health problems. We have so much evidence telling us that investments in preventive measures are highly cost-effective interventions and avoid the trauma of crisis scenarios for patients. While we debate this White Paper, it is vital that we do not lose sight of the bigger picture.

NHS Long-term Plan

Debate between Baroness Thornton and Baroness Tyler of Enfield

Monday 7th January 2019 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I join the Minister in wishing the noble Lord, Lord O’Shaughnessy, well in his new position. I suspect this probably does not mean that he will be any less active on these issues.

I thank the noble Baroness for repeating the Statement. It would be churlish not to welcome additional funding for the NHS, but to suggest in some way, as the third sentence of the Statement does, that the noble Baroness’s party and Government were responsible for the establishment of the NHS is breathtakingly cheeky, to put it mildly. That is particularly so given that her party proceeded to oppose and vote against the establishment of the NHS by the post-war Labour Government.

What must we welcome in today’s Statement? We can welcome the use of genomics in developing care pathways and the commitment to early cancer diagnosis—after all, that was one of Labour’s policies in the most recent general election and in the ones before it. We should of course welcome the commitment to new CT and MRI scanners—again, a Labour policy. We welcome the greater focus on child and maternal health, including an expansion of perinatal mental health services—we welcome it because it has been our policy for some time. We welcome the rollout of alcohol teams in hospitals because, again, we have been urging the Government to do that for some time.

More generally, it is a shame that the noble Baroness started her Statement in the manner of making claims which are not borne out by actions. In many ways this symbolises the disingenuousness which lies at the heart of the Statement. The Government’s words about their conduct and behaviour towards the health and social care services in the UK are one thing, but their actions simply do not match their words.

There is much that one can agree with in the 123-page document launched today, especially given the involvement of doctors in creating it. However, many of the ideas, such as “prevention is better than cure”, seem to have come as a great revelation to our relatively new Secretary of State, if his recent performance in the media is anything to go by. That has, however, been the thinking on these Benches and across your Lordships’ House in many debates over many years, as it has been for decades in all the think tanks and health charities and, indeed, among almost everyone involved in the NHS.

Here is the rub, however—and let us look at prevention. How can prevention happen when, according to the Health Foundation, public health budgets have suffered a real-term funding reduction of £700 million to £1 billion in the past few years? Some 85% of councils plan to reduce their public health budgets in the next year, totalling almost £100 million of cuts. Smoking cessation, obesity and sexual health programmes—to name but three that the Minister mentioned—will all be cut, with a profound effect on a range of long-term illnesses and expensive conditions to the NHS. Will the Minister give a commitment today, as part of the long-term plan, to reverse these totally counterproductive public health cuts?

The long-term plan cannot be delivered if there are not the staff to deliver it, as was mentioned. The plan waxes lyrical about its intentions, but again the rub is in the action. Why is there a delay in setting out its ambitions for the NHS workforce today, when there are over 100,000 vacancies across the NHS, including 40,000 for nurses and 9,000 for doctors? According to recent estimates, by 2030 there will be 250,000 vacancies across the NHS. Experts and doctors’ leaders have warned that the Prime Minister’s vision, and that of Simon Stevens, risks being undermined and reduced to a set of “groundless aspirations” due to the NHS’s deepening staffing crisis, continued cuts to public health and limits to what the extra investment will achieve. Why does the long-term plan fail to address this mounting workforce crisis?

Turning to the suggestion of legislation, as a veteran of the Health and Social Care Act 2012, I read that the Government seek to:

“Remove the counterproductive effect that general competition rules and powers can have on the integration of NHS care”.


I have a mixture of reactions to that. We welcome the recognition that the Health and Social Care Act 2012 created a wasteful, fragmented mess, hindering the delivery of quality healthcare, but I cannot resist saying that that is what we predicted during the passage of the Bill. After billions of pounds wasted and the creation of a huge bureaucracy, are the Government now preparing to consign the whole of the Andrew Lansley Act to the dustbin of history? Will the Minister indicate when we will see draft legislation and the timetable for its consideration?

On social care and integration, if the care of the elderly, people with chronic conditions and co-morbidities and the disabled continues to be cut through successive local government settlements where billions of pounds have been lost, the aspirations on integration and joined-up services will be lost. The Government have set their face against tackling the social care elephant in the room and this plan, again, fails to address it. Where is the social care Green Paper? How can there be any empowerment if we do not have the staff or the expertise to deal with this?

What about the gaping holes in today’s announcement? We have waiting lists of 4.3 million with 540,000 waiting beyond 18 weeks for treatment. We have A&Es in crisis, trolley waits of over 600,000 and 2.5 million people waiting beyond four hours. Why is there no credible road map in this to restore the statutory standards of care that patients are entitled to, as outlined in the NHS constitution? Is that not a damning indictment of nearly nine years of desperate underfunding, cuts and failure to recruit the staff we need in the NHS? Will the Minister confirm that, once inflation is taken into account, the pay rise is factored in and the standard NHS working assumptions on activity are applied, there is actually a shortfall of £1 billion in the NHS England revenue budget for this coming financial year?

Briefly on Brexit, during the referendum campaign Vote Leave said that the money saved would bring £350 million a week to the NHS. When the Prime Minister announced the £20 billion extra in the summer, she said that it would partly be paid for by a Brexit dividend. Others have dismissed that suggestion. The Treasury has said that a combination of economic growth and perhaps even tax rises may be needed. Will the Minister comment on that and confirm which of those is correct and what will happen?

There are many welcome ambitions in this paper, but the reality is still that there is no plan to recruit the health staff we need, no plan for social care, no plan to restore waiting time standards, and no plan to reverse public health cuts. I am not convinced that the NHS is any safer in the Government’s hands now than it was before this Statement. We will certainly be monitoring this very carefully indeed.

[Baroness Tyler of Enfield (LD)]

My Lords, I associate these Benches with the very warm wishes sent in the direction of the noble Lord, Lord O’Shaughnessy, in his future endeavours.

We welcome the publication of the long-term plan today. It is a very important document. It will take time to absorb all its contents and we on these Benches would welcome an opportunity to debate it in more detail. Yes, there is a lot to welcome in the plan, particularly the focus on prevention. We welcome the focus on children and young people’s services and particularly the inclusion of issues relating to people with learning disabilities. But there are many concerns about how this plan will be put into effect. The workforce plan will have to work a lot better than any of the existing workforce plans, particularly if we are to be successful in retaining existing NHS staff as well as recruiting new staff and getting NHS staff to return, feeling that it is possible to work in more flexible ways. It will require a much more creative staff plan than we have at the moment.

Of course it is good news that we will focus on prevention rather than cure, but will the Minister clarify the precise funding mechanisms that would allow that to happen, particularly the role of NHS England, Public Health England, and local authorities in this new world? Will she also confirm the role that pharmacies will play in the public health agenda and the funding mechanism for that? Also, when will the Green Paper on social care be published? It is critical to the agenda that is being set out. I particularly welcome the £2.3 billion set aside for mental health services as part of the long-term plan. What is vital now is that everyone in the NHS, local authorities, schools and employers work together to deliver these plans and ensure that that money gets to the front line. Will that money be ring-fenced?

I take a particular interest in children and young people’s mental health. We are told, and it is welcome, that there will be a new emphasis on crisis care and a new single point of access or crisis hotline delivered through NHS 111 and with that, we are told, all children and young people experiencing mental health crises will be able to access age-appropriate crisis care 24 hours a day, seven days a week. That is to be welcomed. But will the Minister say whether that new crisis care service, which I wholeheartedly support, will be part of or separate from the adult 24/7 community-based mental health crisis response service, which is also contained in the plan? Will it also include 24/7 availability of CAMHS assessment in all A&E departments in hospitals up and down the country?

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Thornton and Baroness Tyler of Enfield

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

[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.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Thornton and Baroness Tyler of Enfield

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

[Baroness Thornton]

The noble Baroness, Lady Finlay, has done the Committee a great favour. The previous group of amendments was about whether care managers should do this at all. This group is about how they do it, which is a fair question to ask. I have three points to make, and they run like a stream through the Bill. The first is, if care managers have powers and responsibility, how will that work? Will they be qualified and, if so, how? As my noble friend Lord Hunt stated on the first day of Committee, many care homes do not even have registered managers. They are very small and are not capable of doing this. Secondly, who decides and who pays? I appreciate that the amendments in the name of the noble Baroness, Lady Finlay, are exploring how care home managers would manage, but some amendments in this group actually water down even further the rights and responsibilities relating to deprivation of liberty.

[Baroness Tyler of Enfield (LD)]

I have a fair degree of sympathy with the sentiment behind this group of amendments. It is right that the Committee looks at what an appropriate role for the care manager might be. We have not got it right yet and it is clear from the debate so far, and the representations received from the sector and from people who deal with this day to day, that there must continue to be some sort of more independent element in the assessment. It cannot simply all come down to the care manager. However, I equally have some sympathy with the idea which was partly behind the Bill. We need better integration between care planning and the difficult decisions that have to be made about deprivation of liberty.

That is why we must explore further what an appropriate role might be. I am not quite sure what it is. Is it simply making referrals or some sort of co-ordination? I share the concerns of other noble Lords about dilution of safeguards, conflicts of interests and all that, but equally we must make sure that the care manager has an appropriate role and is not left out of the picture. We are talking about a very important sentiment.

I welcome what the Minister said in response to the previous group of amendments about the position he has now come to on including 16 and 17 year-olds and putting the cared-for person at centre stage to ensure that they are part of the consultation. I particularly welcome what he had to say about changing the language of unsound mind.

[Lord O'Shaughnessy]

I thank noble Lords for a concise but incisive debate on this group of amendments. As the noble Baroness, Lady Thornton, said, this is really about the role of those organising assessments for the deprivation of liberty and about who is responsible for pre-authorisation reviews. As has been mentioned by the noble Lords who tabled them, many of these amendments specify that pre-authorisation reviews must be completed by someone who is not employed by an organisation involved in the day-to-day care of the cared-for person or in providing any treatment to that person.

Paragraphs 12 and 13 of the schedule outline that, in all cases, arrangements must be authorised by the responsible body, which is either a local authority, hospital manager, CCG or local health board. It is our intention that only the responsible body, or an individual working on their behalf, will conduct the pre-authorisation review. Currently, senior social workers will often review DoLS applications when they are received. Similarly, we expect that, under the liberty protection safeguards, those for care home cases will be completed by a senior social worker. There are circumstances in which the responsible body is also the organisation that delivers the day-to-day care of treatment—and that is one of the concerns raised about conflicts of interest. This will usually be the case when NHS organisations are the responsible body, but it will also be the case for authorisations in local authority-run care homes.

Unfortunately—although I understand the motivation behind them—the amendments tabled by the noble Baronesses, Lady Jolly, Lady Thornton, Lady Murphy, Lady Barker and Lady Finlay, would make it harder to satisfy the pre-authorisation review requirement where the responsible body also delivers the day-to-day care and treatment; this would be especially so for smaller NHS bodies such as some trusts and CCGs. It would mean such bodies having to hire people from outside organisations specifically for the role, which could introduce complexity and lead to delays.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Thornton and Baroness Tyler of Enfield

Monday 15th October 2018 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, I rise to lend my support to Amendment 21 tabled in the name of my noble friend Lady Barker and to speak to Amendment 22, which is tabled in my name. Amendment 22 is essentially about who should be able to determine whether an individual is, as it currently states in the Bill, “of unsound mind”. That is the terminology being used, but I would prefer to see terms like a “disorder” or a “disability” of the mind. That is one of the three key authorisation conditions. Perhaps I may say again how very pleased I am that the Minister has indicated his willingness to look at some new language so that we do not use the term “unsound mind”, which in my view is stigmatising and has no place in today’s society.

I return to Amendment 22. Currently, the authorisation arrangements in this part of the Bill state that a medical assessment has to be made but do not state who has to make it. It is likely that most people would assume—indeed, it may well be that the Government are assuming it and no doubt the Minister can reassure us on the point in his response—that a medical assessment needs to be carried out by a registered medical practitioner. However, it would be helpful and reassuring to have that made clear in the Bill. The report published earlier this year by the Joint Committee on Human Rights is clear that, in order to comply with human rights law, any deprivation of liberty under Article 5 requires,

“objective medical evidence of a true mental disorder of a kind or degree warranting compulsory confinement, which persists throughout the period of detention”.

Given the requirement for “objective medical evidence”, my contention is that there needs to be a guarantee in the Bill that only a registered medical practitioner with appropriate training has the power to determine whether someone has an unsound mind or mental disorder, depending on which language is going to be used.

[Baroness Thornton]

My Lords, I will speak to two amendments in my name in this group, although I may also come back on what has been said.

Amendment 23 concerns supported decision-making and is based on Clause 12 of the Law Commission’s draft Bill. The amendment would require a clear determination,

“made on an assessment that steps to establish supported decision making are not practicable”.

It states:

“Steps to establish supported decision making are practical if, in relation to decisions about their personal welfare or property and affairs (or both), a cared-for person— … is aged 16 or over, and … has capacity to appoint a person to assist them in making those decisions”.


Amendment 24 concerns the restriction of defence and is based on Clause 9 of the Law Commission’s draft Bill. It states:

“The assessment must include … a description of the steps which have been taken to establish whether the cared-for person lacks capacity”.


NICE recently released guidelines on what it thinks the Bill should say regarding supporting a cared-for person:

“Support people to communicate so that they can take part in decision-making. Use strategies to support the person's understanding and ability to express themselves in accordance with paragraphs 3.10 and 3.11 of the Mental Capacity Act”.


NICE also recommended:

“Practitioners should make a written record of the decision-making process, which is proportionate to the decision being made. Share the record with the person and, with their consent, other appropriate people. Include: … what the person is being asked to decide; … how the person wishes to be supported to make the decision … steps taken to help the person make the decision … other people involved in supporting the decision … information given to the person … whether on the balance of probabilities a person lacks capacity to make a decision … key considerations for the person in making the decision … the person’s expressed preference and the decision reached … needs identified as a result of the decision … any further actions arising from the decision … any actions not applied and the reasons why not”.


These basic and important matters were included in the Law Commission’s draft Bill but not adequately included in this Bill. I am pleased to be part of this group and able to raise these issues. I will let my noble friend Lord Hunt talk about Amendment 50ZA.