(5 years, 4 months ago)
Lords ChamberMy Lords, I shall speak to Commons Amendment 1C, which was agreed in lieu of Amendment 1B, which I moved in this House before the Recess. I start by thanking the Minister and the Bill team for the discussions it was possible to have in the latter stages of the Bill, which helped get us to a position that we now feel, particularly in relation to the definition, is pragmatic and one that we can live with.
First, I welcome the Government’s decision to drop what has been termed the “exclusionary definition” proposed earlier. It had a whole raft of problems but I have no intention of going into them again now. It is important to acknowledge that the Government took on board the views expressed by Peers and others in the wider sector on that definition. The outcome of those discussions—that there should be no statutory definition in the Bill—is a sensible and pragmatic compromise after a rather long and tortuous journey. Those of us involved in putting forward different definitions had all received legal advice, which said that our definitions were fully compliant with Article 5 and so on. However, we were never going to resolve that; they just came from different lawyers with different opinions. We had to find a way forward and we did. The fact that we will now be using the code of practice to set out—clearly, I hope—where deprivation of liberty is and is not occurring and that it can reflect existing and evolving case law is important.
I took the opportunity to listen to the debate on the Commons amendments in the other place on 2 April and found it very illuminating. I was particularly pleased to hear the Minister for Health and Social Care, Caroline Dinenage, say:
“We will set out the meaning of a deprivation of liberty in a positive”—
I emphasise “positive”—
“framing and in a way that is clearer for people and practitioners”.
That was the very nub of my concerns when I put forward my definition: it was not clear; it was all framed in a negative way; and it was very difficult for the families affected and, indeed, for some practitioners to understand. This is a real step forward.
We are now to have a code of practice and a definition set out there. I was also pleased to hear the Minister say, when asked about the timescale for producing the code of practice, that it,
“is being worked on as we speak … Once we are all content that the code of practice is robust and fully covers everything that we want it to it will then be presented to both Houses of Parliament”.—[Official Report, Commons, 2/4/19; cols. 964-5.]
That is very positive. However, can the Minister update us on the timing for the code of practice? When will this House see the guidance? It is absolutely critical that what it says in the guidance—what we have been talking about—does not mean that we have kicked the can down the road in terms of some of the problems associated with the definition. When I see what is in the code of the practice and the guidance contained in it, my acid test will still be whether it is easy for the lay person—I include myself as a lay person here—to understand, not full of double negatives or pages and pages of rather confusing case studies. I would be grateful if the Minister could update us on the timing of that.
Secondly, I was extremely pleased to hear that the definition will be considered and reviewed regularly—and kept up to date, as I have said, with evolving case law—and that there will be a report of that review laid before Parliament within three years of the measures coming into force. That will be another opportunity for this House to scrutinise how it is working in practice. I am very grateful to the Government for listening to my representations on the need for a review and for a report to come before both Houses.
Could the Minister give some commitment that, when the review is published—and this House has had a commitment to look at that review—the code of practice will be regularly updated? A review is important; our having an opportunity to scrutinise it is important; but most important of all is that the code of practice be regularly updated. I contend that some of the problems this whole Bill is designed to address, such as the backlog of deprivation of liberties cases, were in part caused by the fact that the code of practice was not amended as circumstances changed and as more and more cases such as Cheshire West were brought into the scope of the Bill.
I would very much welcome assurances from the Minister on those two points, and thank her for being as helpful as she has been. I thank colleagues on all Benches, because I feel that we have worked very collegiately and co-operatively. I hope and feel that that has helped improve the Bill.
My Lords, I do not really share the enthusiasm or optimism of the noble Baroness, Lady Tyler, although I often shared her views on what needed to be done at earlier stages. We are all rather tired of this Bill and I see nothing to be gained from hindering its passage, but I cannot let it pass without expressing my profound misgivings. We—the Members of this House—have failed to do what we were supposed to do. Our task was to make the deprivation of liberty safeguards—now the “liberty protection safeguards”—more practical, more focused on those at risk, more cost-effective and safer, and we have allowed the Bill to disintegrate into a sprawling, all-encompassing bit of a nightmare. The procedures may be simpler—we have cut out one layer of bureaucracy—but we have allowed these provisions to be extended even further than Cheshire West, even pursuing people in their own homes in a way which I do not think many families will appreciate.
The one thing everyone, including the JCHR, was hoping we would do was to introduce a realistic definition of a deprivation of liberty. In the end, we in this House just copped out. We could not agree; we got into a mess; the lawyers could not agree either; so we have just said, “No, let us put it all in a code of practice”. As many noble Lords will know, I wrote some of the early codes of practice for the Mental Health Acts, and I know that codes of practice suffer from mission creep—they get more and more stuff in which is quite difficult for people outside in practice who will implement it, and do not get updated very regularly because it is difficult to do so. Indeed, if there is no clause in statute, which most codes are fixed around—and there will not be, of course, as is intended—it will have to be arranged around Article 5. That will leave a situation in which the lawyers will have a field day, and in which we will still be waiting for case law to give us some guidance.
Meanwhile, the numbers are going up. My latest count was 140,000—I think the official number a couple of months ago was 125,000. There will be a lot more soon. About a third—it may be even more than that—will be waiting for over a year, and 75% of them are elderly people with dementia, who will probably die before they get their rights looked at. Will it make any difference to them? Generally, it will not make one whit of difference. If we had done our job properly, the numbers would have gone down, and there is a chance that those at greatest risk—for example, people with severe dementia who are kept in locked units, who never see the light of day, and people with severe disabilities in residential care—would have been seen sooner and would have had their care plans addressed in respect of their freedoms.
Meanwhile, these last three years have seen an industry grow up around the implementation of DoLS. It is now called DoLS by everybody out there—I am not sure that most people know what that means. A costly public service has developed which has a life of its own, and which, as we have seen, takes money directly out of care budgets. When Staffordshire quite sensibly tried to call a halt and said, “Hang on a minute, let’s go for the worst cases: those most at risk, those with the most profound disabilities or where there is a disagreement”, somebody complained, and they were told in no uncertain terms by the Local Government Ombudsman to get on with it and to get back to doing everybody. So the waiting list grew yet again. Of course, many other county councils and metropolitan councils were making similar decisions, but they have all had to go back to compiling the waiting list, which grows and grows.
The other people who will love the Bill are the lawyers. Just imagine how you will be able to debate the nuances of Article 5 meanings when the code of practice fails to live up to expectations.
This Bill should be a lesson to us all. It is legislation which arose from a Supreme Court judgment—an impeccable theoretical case, made without any thought to the practicalities that would affect 2 million people. The Law Commission was as tied up in knots as everyone else and could not see a way through. My goodness, it worked long and hard on it in an admirable way, but it could not get beyond the problems of having to satisfy Cheshire West and the Supreme Court’s judgment. This House’s inability to grasp the Bill will not provide any more than a hit-and-run assessment of one patient’s disabilities and whether they are deprived of their liberty. It will not provide any more care for people, and it will be a bit of a disaster.
I have been as guilty as everyone here because I was not here for Report, when perhaps I should have been here to say this more clearly—I am sure that my colleagues quite often feel cross with me when I am not here, and I apologise for that. However, I am not blaming the Ministers either, who have, unfortunately, changed during the passage of the Bill, which has taken a lot longer than it should have done. They have struggled as best they can with a complex, technical Bill; nor am I blaming the team at the Department of Health, because Sharon Egan and her team have been squashed between the lawyers, the DoLS industry, the obvious need to make things viable and less depleting of care budgets, and the impossibility of satisfying everyone.
The only flexibility left—because we will pass the Bill—is that before the Bill is commenced, the Government should pause and do a few more sums; otherwise, we shall be back here in another three years, looking at how we can make this legislation more viable. Many more millions of hours of care staff time will have been wasted in failing to improve the care of mentally incapacitated people. Their rights need protecting, but this Bill will not do it.
(5 years, 5 months ago)
Lords ChamberThe outcomes will be monitored by NHS England, but also by the CCGs. Of course, they will be taken into account by local authorities as well.
My Lords, given the fragmentation and lack of co-ordination on the ground between local mental health services, what assessment have the Government made of the potential benefits of establishing local offers for mental health, mirroring the approach to local offers for special educational needs introduced by the Children and Families Act, to improve access?
(5 years, 6 months ago)
Lords ChamberLeave out from “House” to end and insert “do disagree with the Commons in their Amendment 1 and do propose Amendment 1B in lieu—
My Lords, I take this opportunity to welcome the Minister to her new role. I am very much looking forward to working with her, and thank her for meeting me yesterday.
I was pleased that the Government listened to the concerns that many of us raised when this Bill was on Report, and that they agreed to introduce a statutory definition in the Bill. They subsequently brought forward a new clause in the other place, introducing what some have termed an exclusionary definition of deprivation of liberty.
I believe that there are serious problems with the government definition. My overriding concern is that as it currently stands, the government amendment defines only when a person is not being deprived of their liberty. A definition based on someone not having their liberty restricted does not, in my view, allow for a clear assessment of whether a cared-for person is currently being deprived of their liberty. The whole of the definition is couched in the negative, and splattered with double negatives, which I consider very difficult to understand.
I also have concerns over Clause 1(4) in the government definition, which I believe is unnecessary. When it is in someone’s best interest to receive emergency or routine medical care, there is already a clear consent procedure—even when that patient lacks capacity. As currently worded, it is discriminatory between physical and mental illnesses. I have taken much advice, and I am grateful to people in the sector—charities, lawyers, human rights groups, academics and others—who have offered invaluable expertise in this very complicated issue. I note that some leading academics have described the Government definition as too complicated, unclear and out of step with Article 5 of the ECHR, and therefore likely to lead to costly litigation. I accept that my last two points run contrary to what the Minister has said, but this demonstrates what a highly complex, contested and difficult-to-interpret area this is. Nothing is that clear-cut.
What is needed is a definition which is simple, easy to understand and provides practitioners, and above all, families and cared-for people, with a clear understanding of where they stand. The purpose of any definition is to provide absolute clarity to practitioners. Perhaps more importantly, it should tell cared-for people and their families when they are deprived of their liberties and thus have certain rights which they can call upon. It is, frankly, of little use if people cannot use it to make such a determination, and my conclusion at the moment is that the definition does not serve that purpose.
We need a definition which, as well as being simple and easy to understand, allows guidance and information to be developed for families and practitioners that will allow them to make a real-world determination of whether the care arrangements they are putting in place when their loved ones lack capacity amount to a deprivation of liberty.
The definition that best captured the recommendations from the Cheshire West case of the noble and learned Baroness, Lady Hale is that the person concerned is under continuous supervision and control and is not free to leave. I believe that the wording in Amendment 1B meets these vital tests. My definition of what constitutes a deprivation on liberty is based on the principles outlined in the noble and learned Baroness’s judgment in the Cheshire West case. I believe that it would allow practitioners and family members to clearly test their individual circumstances against that definition.
This is complex and I think many of us have found it difficult to get our head round it, but it is so important that the definition is compliant with Article 5 of the ECHR. The definition that I have put forward meets that test. It may not be perfect but it provides a basis for moving forwards. I beg to move.
My Lords, I commend the noble Baroness, Lady Tyler, for the amount of work that she has put into her amendment, along with others of us who have worked on it. I do not want to take a lot of time repeating what she has already said in explaining it. However, I would like to pick up on some criticisms made by the Minister and question them.
The Minister spoke critically about the concept of “valid consent” yet, as far as I have understood, consent must always have three pillars to it: the person must have capacity to make that decision; they must have accurate information on which to make a decision; and it must be made voluntarily and free of coercion. With those three pillars in place for all types of consent, I was slightly confused by the Minister’s suggestion that this could somehow apply if people did not have capacity to provide consent. The other area where I was confused when she spoke relates to the Government’s own amendment, where we have a double negative. Amendment 1 says:
“A person is not deprived of liberty in a particular place if … the person is not subject to continuous supervision”.
However, the amendment tabled by the noble Baroness, Lady Tyler, has turned the two negatives into a positive as while a person would be “subject to continuous supervision”, she has added the very important words “and control”.
A lot of people who are supervised one way or another are free to do what they want, but there is a safety barrier around them. They are not being controlled in the way that they behave; it is simply that to protect them from dangers to which they may be subject, there is a degree of supervision. That is called good care of another citizen, and we all do it all the time in relation to each other if we see someone about to get into a situation which is dangerous, whether or not they have mental capacity. The difference in this situation is that if somebody is deprived of their liberty, something is being taken away from them and controlled by another person. The amendment from the noble Baroness, Lady Tyler, has captured that difference between a duty-of-care supervision and that control.
I know that there are difficulties in defining a negligible period of time but I note the concept, in the Government’s own amendment, of whether somebody is free to leave a place permanently. How long would we determine “permanently” to be? Is it days, weeks, months or years when, again, it is a concept but is not defined specifically? With those questions, I am concerned that the Government’s criticism of the noble Baroness’s amendment does not stack up equally with the criticisms that have come from many quarters over the Government’s amendment, which is indeed quite difficult to understand, particularly because of the double negatives in it.
I draw the House’s attention to the fact that, if I am correct, the Law Commission’s original report did not include a recommendation of a definition. Perhaps what we see here is that it is incredibly difficult to come up with a definition that applies across the enormous range of circumstances that people who lack capacity may find themselves in. I am concerned that the Government’s amendment is intended, in the words of the Minister, to be able to respond to evolving case law. I suggest that that is a recognition that there will be legal challenges to the Government’s own definition, just as much as to any other, and I am unsure how that will be avoided by anything in the Bill. I will therefore strongly support the amendment in the name of the noble Baroness, Lady Tyler.
My Lords, I thank all those who have contributed to this debate on the first group of amendments. As your Lordships have so thoughtfully said, we are wrestling with this definition because, as my noble and learned friend Lord McKay put it so eloquently, this is a very challenging task indeed.
In my opening speech, I explained the Government’s amendment and the reasons for our opposition to the amendment of the noble Baroness, Lady Tyler, so I will try to answer a couple of questions that have been raised. The first came from the noble Baroness, Lady Finlay, who asked why the amendment introducing the definition was tabled in the first place, given that it was such a difficult task and the Law Commission did not recommend that definition. There were calls for a definition from the JCHR, noble Lords and many stakeholders. It was an attempt to meet those calls, and we have done our best to collaborate and respond. She also raised the issue of valid consent and the three pillars. All references in the Bill to the deprivation of liberty only apply to people who lack capacity, and the amendment implies that people who lack capacity can give consent. That would not be correct in law but that is the way it could be read, so it needs to be clarified before it could be accepted.
I am very grateful to the noble and learned Lord, Lord Hope, for his comments. In his broad experience, the Government’s definition is in line with the reading of Strasbourg’s decisions so far. As he rightly understands, our intention is to anchor the definition in Article 5 and Cheshire West and to allow for evolving case law so that those who are awaiting decisions do not have to go back to court again and again. The purpose of this definition in the primary legislation is exactly as my noble friend Lord O’Shaughnessy put it: it is for the use of lawyers, whereas we are determined to bring forward robust and clear statutory guidance for stakeholders and those who will be affected by the definitions, so that they can be assured that they understand exactly the effect of this definition. On that basis, I hope that the noble Baroness, Lady Tyler, feels able to withdraw her amendment.
My Lords, I listened very carefully to the arguments put forward on this difficult and complex issue. Of course, I listened particularly carefully to the arguments of the noble and learned Lords, Lord Hope of Craighead and Lord Mackay of Clashfern. I am not a lawyer, as will become abundantly clear. I have looked to put this in a very simple way.
The issue goes back to the point made by my noble friend Lady Jolly. In my strong view, there is a need for plain English in statutes so that the citizens of this country who are subject to them understand what they say. I think it was the noble and learned Lord, Lord Mackay of Clashfern, who said that it is not always apparent to non-lawyers what some of these more complex passages mean. I agree; he is absolutely right. Perhaps it is overly simplistic of me but, frankly, I make no apology for that. It is Parliament’s role to define the legal principles in a Bill as simply as possible and the courts’ role to interpret them. I do not understand from any of the arguments I heard why the definition must be framed in such a convoluted way, in the negative with lots of double negatives. I just do not get it, despite listening carefully to the debate. I continue to believe that my definition meets those tests; it is important that whatever definition is in the Bill does so. I do not think that the Government’s definition does so. I wish to test the opinion of the House.
(5 years, 9 months ago)
Lords ChamberMy 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.
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.
I thank the noble Baronesses for introducing their amendments and giving us the opportunity to discuss this important issue. I will set out why the Government have taken a different approach and attempt to explain it.
It is not that we do not think conditions are important. The use of conditions should be baked into the care plan and the arrangements put forward for authorisation, rather than being added only at the point of authorisation. This is not to say that the conditions—let us call them the elements of the arrangements—pointed out by the noble Baroness, Lady Tyler, and other noble Baronesses are not critical. Obviously, they are critical to making sure that the elements are the least restrictive. This is about when they are put in place in the care planning and authorisation process. I shall explain our approach, which I hope will satisfy noble Lords, but we can see whether further discussions are required.
I will deal with the amendments in order. Amendment 61 states that it should be determined by the responsible body,
“that the arrangements will continue to be necessary and proportionate for the period of time for which the arrangements are sought”.
We absolutely agree that this should form part of our model and I confirm that this will be considered by the responsible body.
Furthermore, under the Bill, the responsible body is required to specify a programme of regular reviews at the point of authorisation. In a sense, it gets to specify at the point of authorisation how frequently reviews should take place, to seek whether changes in arrangements or other changes have taken place. This means that the care home manager—or the responsible body, if it is carrying it out directly—will be continually required to consider whether arrangements are necessary and proportionate. That is baked into the system we are introducing.
Amendment 67 specifies that conditions can be put on authorisations and, of course, conditions exist under the current DoLS system. However, with the backlog, by the time they come into force, it is often too late, because the person has been subject to the arrangements for some time before the conditions can be applied. In developing the liberty protection safeguards system, we have taken a different approach; for that reason, conditions have not been included in the Bill. Again, it is worth pointing out that this is consistent with the approach adopted by the Law Commission, which concluded that conditions, as currently provided for under the DoLS system, were not necessary under its new scheme. The Law Commission’s final report states on page 112 that, instead of DoLS conditions, the scheme,
“focuses on particular arrangements and what will be authorised are very specific arrangements. Further, it is only arrangements which result in the minimum amount of deprivation of liberty possible that will be authorised, otherwise the necessary and proportionate condition will not be met. So the arrangements will need to be described in a way which builds in any conditions”.
In other words, arrangements under the Bill can be detailed in such a way as to have the same effect as conditions. For example, the authorised arrangements could include enabling the person to be taken out on trips with one-to-one support, or their care plan could specify that additional staff should be provided to enable the person to be taken out more frequently.
It is our view that doing this provides greater protections for the person. This approach means that conditions—or, if noble Lords prefer, specific arrangements—are considered as part of care planning, before an authorisation is sought, rather than being bolted on afterwards. Rather than being something that happens after the person is deprived of liberty, they would be an integral part of care planning, with the proposed arrangements submitted to the responsible body for review.
Notwithstanding this approach, I know the noble Baroness, Lady Barker, is keen to have a statement from me about current practice, under which a DoLS lead, or best-interests assessor, can insist that deprivation of liberty is authorised only if stated conditions are made. We are not proposing to change the ability of the responsible body, whether the responsible body itself or an AMCP, to make conditions as part of an authorisation. It will still be possible for that to happen. We are trying to ensure that the decision on appropriate conditions is made earlier in the care-planning process, so that they are incorporated into the arrangements that are then put to the responsible body for review, rather than being added when the review takes place. Failure to comply with these conditions, specifically because they have been within the authorisation, would mean that the authorisation would cease to have effect, and must be reviewed. There we come to the ongoing important role that appropriate persons, IMCAs and others will have, in making sure the person is supported, so that if there are any changes in their condition, or their circumstances, a review is triggered.
I recognise this is a fiendishly complicated thing to describe, and I have probably done a fairly inadequate job of it. However, I strongly believe that, in making this change, we are not trying to remove conditions, but move the concept of applying conditions to earlier in the care-planning process. That is the right thing to do. The responsible body will continue to be able to add subsequent conditions if it feels it is necessary for an authorisation. I genuinely believe that is a better system. Clearly, the proof of the pudding will be in the eating. On how this will happen in practice, there will need to be clear guidance and training to make sure that people are trained to do this, both at the care home, and in other NHS bodies, and to make sure that reviewers are capable of assessing such arrangements and making their own subsequent conditions, if they feel it is necessary. That guidance and training is something we aim to provide, of course.
I hope I have explained why we take the point the noble Baronesses made in tabling these amendments very seriously, and shown that the system allows for it. It puts this consideration earlier in the planning process, we hope with better effect. We have been guided by the Law Commission’s approach in this way. I hope this has been persuasive, but if further discussion and elaboration is needed, I would be more than happy to give it following today’s debate.
My Lords, I shall speak to Amendments 142 and 144. My substantive Amendment 142 requires that the code of practice to the Mental Capacity Act and the government response to the independent review of the Mental Health Act must be laid before Parliament before the provisions of the Bill come into force. I shall focus on the latter, as we have already heard from the noble Lord, Lord Hunt, about the code of practice.
The independent review of the Mental Health Act is due to report its final recommendations on 12 December. I know this because last week I attended a helpful briefing given by Sir Simon Wessely to interested parliamentarians, in which he outlined his broad findings. However, until that review is published, we cannot know how its recommendations will impact precisely on this Bill.
We know that the Mental Capacity Act and the Mental Health Act are the only two pieces of legislation that allow a deprivation of liberty for the purposes of care and treatment and that, as such, there will inevitably be cross-over between the two. I thank the Minister for confirming in Committee that these documents would be produced before the Bill is enacted. However, I am concerned that the Bill could have completed its parliamentary passage by the time the Government respond to the independent review. Therefore this important debate is taking place in a vacuum of information on how people with severe mental illnesses could be affected by the proposed LPS.
Sir Simon Wessely has indicated that his review will not consider the full fusion of the Mental Capacity Act and the Mental Health Act, which some people were advocating a while back, but there are none the less many outstanding questions on the interaction of the Bill with the Mental Health Act and, frankly, until it has reported they are impossible to answer.
Under the Mental Health Act, there is no capacity test and the capacity-based principles of the Mental Capacity Act do not apply to mental health care or treatment provided under the Mental Health Act. People without capacity are nevertheless detained and treated under the Mental Health Act. We know there has been a dramatic rise in recent years in the number of those aged over 65 being treated under the Mental Health Act. Indeed, the Care Quality Commission has highlighted that both the broadening of the definition of deprivation of liberty in the light of the Cheshire West judgment and the associated overburdening of DoLS, which is what we are talking about, are likely to have played a role in this.
As a result, there are still crucial questions about how the independent review of the Mental Health Act will address people who lack capacity and what the implications may be for those who fall under the LPS regime depending on where the dividing line between the two Acts is drawn. It is an incredibly complex picture.
Let me say a couple of words finally to highlight and paint a picture of that complexity. It is not possible for a person to be subject to the LPS when they are already detained under the Mental Health Act, even if they lack capacity. However, it is possible for people who are in hospital to be subject to the LPS if they are not detained. The LPS was not primarily designed for people with severe mental illness whose conditions are likely to fluctuate, improve or be contested more frequently than, for example, dementia. While I have focused on the needs of those with severe mental illness under the LPS, many of the same points apply in the opposite direction.
I could go on but I will not. I hope these illustrations of how the Mental Capacity Act is applied to mental health patients, and the Mental Health Act to people without capacity, in these two overlapping legislative frameworks have shown the necessity for this amendment so that the two can be finally considered together, a point which I and many other noble Lords have raised consistently since Second Reading.
(5 years, 9 months ago)
Lords ChamberMy Lords, I draw the attention of the House to my interests in the register. Concern has been raised repeatedly throughout this Bill, both in this House and outside, that there is no statutory definition of what constitutes a deprivation of liberty. That is what this group is about. My amendment is designed to provide practitioners, families and the cared-for person with an agreed interpretation that is unambiguous as to where deprivation of liberty is enacted and a clear sense of understanding of to whom it should actually apply. Including a definition in the Bill would allow guidance and information to be developed for families and practitioners to allow them to make what I would call a real-world assessment of whether the care arrangements they are putting in place when their loved one lacks capacity amount to a deprivation of liberty. In many cases this will allow them to steer clear of depriving someone of their liberty, quite often unwittingly, because the line would be that much clearer.
I welcome the report on the Bill from the Joint Committee on Human Rights which was published on 26 October. It addresses clearly the need for a definition of the term “deprivation of liberty”, and of course raised other concerns as well. Unless we have a clear definition which is supported by parents, families will be at risk of the courts interpreting their personal situation in different ways. I know from the many briefings and correspondence I have received that this is strongly supported by the sector. Having looked at the report, noble Lords will be aware that the definition I have proposed is derived from the JCHR report. I believe that in fact two definitions are offered in the report and later we will hear from the noble and learned Lord, Lord Woolf, who is proposing the other definition. I am sure that he will put forward good arguments for doing so, given that he was a very distinguished member of the Joint Committee.
I have gone for the definition that I am proposing because I think it is simpler and easier. I think it best captures the recommendations made by the noble and learned Baroness, Lady Hale, in the Cheshire West case. She was clear that a definition was necessary in future primary legislation. As we have noted many times during the passage of this Bill, the test, which was referred to in the Joint Committee’s recommendation, references the case taken by the noble and learned Baroness, Lady Hale, Cheshire West and Chester Council v P in 2014. The key sentence she noted was that the person concerned,
“was under continuous supervision and control and not free to leave”.
Unless we have a statutory definition in the Bill, I strongly suspect that the question of what actually constitutes a deprivation of liberty will continue to have to be determined by reference to Article 5 of the ECHR and indeed will continue to come back to court for further clarification.
I shall say briefly that while it would be possible to include a definition in the code of practice rather than in the Bill itself, I do not think that that will satisfy a court. The best form of protection would come from the inclusion of a definition in the Bill itself. We are looking at this issue again in primary legislation partly because recent court rulings, including the Cheshire West case which I have already referred to, have radically changed who deprivation of liberty applies to and, frankly, have substantially increased the number of people it covers; hence the reasons we are here.
I hope very much that the Minister, who has listened carefully and, if I may say, responded constructively to many of the arguments that have been put forward both in Committee and since, will have something positive to say on this point. I recognise that the definition could do with some more work and I am sure that the Bill team could look at it and come back at Third Reading. However, if there are any fears of unintended consequences, my view is that a well-drafted definition will pose considerably less risk than having no definition at all, which leaves patients and practitioners exposed to different legal interpretations and subsequent consequences.
I conclude by saying that without a definition in the Bill, any future interpretation by the courts could lead to a wide range of outcomes for cared-for people and their families which could undermine the very essence of the new LPS scheme. That is what this Bill is all about. It seeks to provide clarity, but without a definition it simply will not do so. I beg to move.
I am happy to give that commitment, bearing in mind that there is always uncertainty about the timing of Bills’ progress but, in terms of the work we will do to come up with the definition, I am more than happy to do that and to include estimates—I see the Chief Whip coming into the Chamber—of the timing of the further parliamentary stages.
I thank the Minister for his full and helpful reply. This has been a good and important debate to start this afternoon’s debate. I am grateful to the Minister for agreeing to look at this. He has twice confirmed the Government’s position, which is that it is important that the definition is clarified and contained in the statute. That was the purpose of my amendment. He is right to say that this is complex and technical and that we need to get it right. I fully understand that that needs a bit of time. Although at one stage I hoped that this might be able to come back at Third Reading, I fully understand why he said that the Government will lay an amendment in the Commons stages, and I support my noble friend Lady Barker in her request for a letter setting out the timescale of the work and who will be involved. I beg leave to withdraw the amendment.
My Lords, I need to inform the House that, within this group, Amendments 25 and 26 appear to be alternatives. Amendment 26 will be moved only if Amendment 25 is withdrawn or disagreed to.
My Lords, I support this group of amendments. One or two offer a slightly different definition or slightly different words but the key point for me, having moved a similar amendment in Committee, is that we have now removed the phrase “unsound mind” from the Bill. I know this is welcomed here and will be hugely welcomed by many in the sector. It means we will get rid not only of a very old-fashioned and stigmatising term but one on which there were also concerns—as I understood from my conversations with the Royal College of Psychiatrists—that it had no real clinical meaning. The term “mental disorder”—or the few more words added by other amendments—not only brings us in line with the Mental Health Act, which is good, but I am advised that it will also help to provide diagnostic clarity. That has to be a good thing too. I support this group of amendments.
My Lords, I support this group of amendments and I am delighted that the Minister has had his mind changed. Not using this phrase will change how people feel about their relatives who may be suffering from mental disorders. I am also optimistic that, in the longer term, using such modern nomenclature will make mental health professions more attractive to young people.
(5 years, 10 months ago)
Lords ChamberTo ask Her Majesty’s Government what is their most recent assessment of access to treatment in Children and Adolescent Mental Health Services.
My Lords, the Government are improving and expanding access to children and young people’s mental health services. Because of the additional £1.4 billion available for these services, we expect that an extra 70,000 children and young people will access NHS specialist mental health services each year by 2021. We are either on track or exceeding waiting time targets for eating disorders and early intervention in psychosis, and the plans published in the Green Paper will further widen access to mental health support.
I thank the Minister for his Answer. Last week, Action for Children reported that one in three young people now have mental health issues. It also estimated that only a quarter of those who need help are currently able to access treatment from NHS services; this is quite often because they are not considered “ill enough”. I am particularly concerned by the often non-existent provision of crisis care for young people who are experiencing suicidal thoughts, self-harming, or just desperately needing help, often in the evening or at weekends—certainly outside of nine-to-five office hours. Could the Minister say whether setting up 24/7 crisis care provision for children, young people and their families will be a key priority for the Government in the forthcoming NHS long-term plan?
I certainly think that is an interesting idea which I am very happy to feed into that process. I know the noble Baroness is a great campaigner on this issue, and the numbers of young people who are suffering from mental health problems are, frankly, terrifying. On the point about access, she was right that around one in four children and young people have been able to access these services. Our ambition, which we are on track to meet, is that this should rise to 35%. Clearly, we ought to reach 100%, but that involves recruiting a very large workforce, which we are in the process of doing.
(5 years, 10 months ago)
Lords ChamberI must advise the Committee that if this amendment is agreed to, I cannot call Amendment 56 for reasons of pre-emption.
My Lords, I support what my noble friend Lady Barker said about this important set of amendments. Briefly, they look at the interaction between the Mental Capacity Act and the Mental Health Act, which has not been properly thought through at all in how the Bill has been brought forward. The amendments focus in particular on people with fluctuating conditions. We have had a bit of discussion about such people but not nearly enough to understand what the real implications will be for people who may have a severe mental illness that fluctuates. They may have a range of other physical conditions requiring treatment and care. There may be times when they are in a position to give consent to treatment and times when they are not. We really need to think much more about how that is to be dealt with in the new system.
My concern, if I may summarise it, is that this complex interaction between the two Acts will result in a two-tier system, with a considerable imbalance in rights and safeguards between the regimes of the Mental Health Act and the Mental Capacity Act. To pick out one example, I understand that under the Mental Capacity Act everyone is entitled to make a legally binding advance decision to refuse various future medical treatments, but that decision can be overridden under the Mental Health Act in most circumstances. It is complicated. There are people covered by both Acts; it is not a question of having the Mental Health Act and people covered by it over here and having the Mental Capacity Act and people covered by that there.
We really need to think this through and satisfy ourselves that any new system deals with that and, frankly, makes the most of the opportunity to streamline these regimes, in particular to take account of people who are covered by both. I would be particularly pleased if the Minister, in responding, would say something about the needs of people who are severely affected by mental health issues and whose capacity may fluctuate, and about how that has been taken into account in the drafting of the Bill.
My Lords, I feel that I should contribute to this debate although I have no speech prepared because, in the discussion with Sir Simon Wessely that I referred to last week, I challenged him about this issue. I asked what we were doing by debating this Bill before his review came out. He was clear and while I cannot say what he is proposing, maybe I can indicate the sort of areas he is looking at. These may help to illuminate the clear differences in certain ways between the two sets of debates and legislation.
For example, he is looking at the role of the Ministry of Justice in relation to people under restriction orders. There are specific mental illness issues in that area. He is looking at how community treatment orders operate—there might be less use of such orders—and how detentions in hospital for people with psychotic illnesses operate, and so on. Those areas are, in general, probably quite distinctive to the Mental Health Act. The bit where I feel there really is a potential overlap is in the area of mental health tribunals, which I will raise when we come on to deprivation of liberty concerns in the context of specific domestic situations. I will have a proposal to make then. I will not go into it here, as it would not be appropriate.
Sir Simon Wessely’s position is clear: he feels that the Mental Health Act needs reform and I think he will have very interesting proposals to make about that. We also all agree that the DoLS system needs reform and we are discussing how that should be done. What he is doing and what noble Lords are trying to do here are both quite complex sets of reforms. Sir Simon Wessely’s view—I hope that he would agree with me—is that these two sets of reforms need to be in place for quite a period. He talked about a decade, actually. There is also the Northern Ireland situation; there are proposals for some bringing together of these things there. There is of course no Government in Northern Ireland but Sir Simon Wessely wants that Northern Ireland Government to be formed and for them to be the pilot of all this and see how that works over a period of years. We would then come forward with some proposals, as and if appropriate, for bringing these two pieces of legislation together.
I hope that I have represented Sir Simon Wessely properly. It is important for us all to be aware that we do not have the support of the person in charge of the review of the Mental Health Act when we say, “Come on, what are we doing by having this first? Surely it should all be done at once”.
My Lords, I have two amendments in this group and my name is attached to four others. It is a little unfortunate that we are coming to this important group of amendments, which affect the Bill as a whole—there are some very important implementation issues—quite so late in the day when the appetite for debate is understandably somewhat limited.
My Amendment 88 seeks to do two things. It seeks, first, to enhance scrutiny of regulations in Parliament and, secondly, to ensure proper consultation if the Government seek to amend regulations later on down the line. According to the Explanatory Notes, as drafted the regulations are subject to the negative procedure, except where the Secretary of State wishes to change primary legislation, in which case the affirmative procedure applies. My amendment proposes a different approach, whereby the positive procedure applies in both cases. That would mean that, should the Government wish to amend regulations, such a change would automatically trigger scrutiny in both Houses. Why do I think this is important? Fundamentally, depriving someone of their liberty is a very major and fundamental action which warrants strong safeguards and scrutiny. I think it is absolutely vital that we closely monitor the implementation of this legislation and debate any proposed changes that the Government may wish to introduce.
The second part of my amendment—which I think is equally important—means that, before laying a regulation, the Government must consult with stakeholders on its potential impact. Again, given that this legislation concerns extremely vulnerable people, it is absolutely vital that we get it right—that is both primary legislation and the detail of any regulations. One of the threads throughout our debate in Committee, both today and in our two previous sessions, has been that, while the Law Commission consulted widely on its draft Bill, the Government’s Bill, which we are now discussing—and which is very different in a number of important aspects—was introduced with very little consultation with those who work in the sector. It is absolutely vital that we hear from mental health practitioners, legal professionals, charities and those representing vulnerable people.
Amendment 87F is a probing amendment and it is to highlight the current unsatisfactory situation, which I gather is causing real concern to clinicians in relation to when they are obliged to complete court reports requested by the Court of Protection. This issue was drawn to my attention by the Royal College of Psychiatrists and I draw the House’s attention to my interests in the register. Currently, Section 49 of the Mental Capacity Act 2005 authorises courts to,
“require a local authority, or an NHS body”,
to prepare a report on such matters,
“as the court may direct”—
generally, the relevant person’s mental health or mental capacity.
I understand that drafting such a report requires a senior clinician to review previous reports, examine the patient, talk to family members or carers and carry out necessary tests. Notably, it often relates to a patient who has never been under the care of that clinician or even the hospital trust employing them. I have been told that the average time required to complete such a report—although it varies—would be around 10 hours, which does not include the extra time required if the clinician is required to attend court in person to give evidence.
The nub with the concern here, which has been raised by many clinicians, is that an unknown quantity of clinician time is being taken away from front-line patient care. As there is no national data, as I understand, on this, it is unclear how much. Again, as I understand it, CCGs and NHS trusts are not being paid for or equipped for their staff to be required to spend their time in such a way, and the very short timeframe often set by the court can lead to very considerable disruption of clinical priorities and patient appointments being changed at the very last minute.
I emphasise that I have no problems with the Court of Protection needing reports and expert advice—it is just that the system for getting it does not seem right to me, with the NHS being required to provide these reports in such a way. Frankly, there is cost shunting on to the NHS, but it is also having no regard for the impact on wider patient care. The Minister has said that he will be talking to the MoJ about a number of things. It would be very helpful to hear how the MoJ thinks this system could be better managed so it does not have such a deleterious effect on wider patient care. The purpose of this amendment is to get the Minister to explain and outline the Government’s thinking in this area.
Finally, Amendments 86 and 93 require two very crucial documents to be laid before Parliament before the provisions of the Act can come into force: the code of practice and the Government response to the Independent Review of the Mental Health Act. It is really where we started off this evening—certainly where I started off was looking at the interaction of those two pieces of legislation.
The one point I will make is that whatever recommendations the Mental Health Act review ends up making, it is clear that as long as we have separate legislation to govern mental illness and mental capacity, we absolutely must consider the interaction between those two frameworks. In terms of implementation, the early introduction of the Bill prevents the review from making suggestions that touch on the scope of the LPSs we are discussing. Therefore, it is crucial that the Government respond to the review’s recommendations before the LPSs that we are talking about at the moment can come into force.
I am sorry to take noble Lords back a step to Amendment 87D, which is in my name and is really a probing amendment. I thank the noble Baroness, Lady Finlay, for her very warm support—she has unfortunately had to run for a train, but I am grateful to her.
It seemed to me, in thinking about this amendment, that there are a couple of points in the process of authorising liberty protection safeguards where there needs to be real rigour to check that the best interests of the cared-for person lacking capacity are upheld and that the least restrictive option is found in terms of depriving them of their liberty. We spent a lot of valuable time looking at the role of the care home manager in relation to this. The noble Baroness, Lady Hollins, was also alluding in part, in her Amendment 66, to the second actor in this, namely the responsible body. My amendment explores the role of the responsible body.
The first part of the amendment seeks to address the role of the responsible body, which, as I understand it, is effectively a safety net in the process. The aim is to encourage the responsible body to identify cases where it is more likely that those two key considerations have not been upheld. The second part of the amendment sets out a course to follow if that is the case. What I have been trying to imagine is what it is like to be sitting in the responsible body, the local authority or the hospital, with a pile of LPS forms to authorise. How can we keep the person doing that alert and using their discretion appropriately?
In the first part of the amendment, what I am getting at is a way to set clear criteria for the responsible body to follow, such that if the criteria were met it would trigger a review of the applications in more detail. I do not have a definitive list of what those criteria might be but, for example, one might imagine that if the care home in which the cared-for person was going to reside had been rated as inadequate by the CQC, it might be a prompt for a further review, if that care home manager had arranged the assessment.
Other possible criteria might involve what the noble Baroness, Lady Barker, referred to as “unbefriended” people. I am much sure whether this is technically unbefriended, so forgive me, but if someone has no friends or family and a carer has some kind of indirect financial interest in the outcome of the decision, that might be another case of where these criteria might trigger further review. The assumption would be that this amendment would apply whatever the source of funding for the cared-for person. There may be other criteria that would be more helpful, and I am sure that noble Lords who are more experienced in this area than I am will think of what these might be.
In the second part of the amendment, I have simply suggested that, if there is cause to examine an application more closely, it should follow the pathway set out in paragraph 18 of new Schedule AAl. Obviously, if this route is taken, consideration needs to be given to resources, since we do not want to create a conflict of interest for the responsible body—the mirror image of some of the conflicts we have talked about for the care home manager. We certainly want to avoid a situation where there is a financial disincentive to review those cases which genuinely warrant a review.
(5 years, 10 months ago)
Lords ChamberThe 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.
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.
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.
(5 years, 10 months ago)
Lords ChamberMy Lords, again I preface my remarks by saying that these amendments were drafted when the role of the care home manager was less clear than perhaps it is now. Nevertheless, they take us to the important point about determinations on mental capacity and the requirement to make sure that they are evidence based. In the Bill as it stands, a huge amount of discretion is given to care home managers and people involved in care to determine whether someone has capacity. We do not believe that that is right. Determining whether someone has capacity is difficult to do and something for which a great deal of training and experience is required. We keep coming back to what would be acceptable levels of training and qualifications to exercise that determination.
Amendment 21 seeks to provide that there should be an evidence base and that those making the capacity assessment should go through it and be ready to justify their decisions accordingly. I will go back to a point and reiterate it, although it must be rather boring: a DoLS assessment is different from a care assessment, and whoever makes and records such assessments should know that they are challengeable in court, which is a big responsibility.
Amendment 22 again endeavours to make sure that the person carrying out the assessment of capacity should be properly qualified, a point I have made before. I do not think that the Bill as it stands is sufficiently robust about the level of professional training needed and therefore this is a matter to which we should return.
Amendment 25 in a way follows on from our previous discussion. With this Bill we will move into a new position where the assessment of capacity is not as clearly specific to the situation as it is under the Mental Capacity Act. We are also moving towards a position in which assessments can be rolled over for longer periods. I am not saying that that should not happen and I take absolutely the point that a number of the assessments being required under DoLS are unnecessary. When someone has had a diagnosis of dementia, for example, their capacity to make decisions may not fluctuate or change, but we need to be altogether a lot more precise in the terminology being used in the Bill. It is not just a change in someone’s condition but may also be a change in their circumstances which has led to the deprivation of liberty. We are bringing in a new test to show that things are necessary and proportionate. I do not think that it is that clear or that it will clarify the decisions which are going to have to be made. This is an attempt on our part to move away from what we believe to be a position where the subjective judgment of care providers would have been given too much weight in the determination of capacity. The amendments on that issue are probing in nature and I beg to move.
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.
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.
(5 years, 11 months ago)
Lords ChamberMy Lords, I strongly support the Bill and I know that it has strong support from Liberal Democrats generally. I pay tribute to Steve Reed, who introduced the Bill in the other place, and to the noble Baroness, Lady Massey, for the way she introduced it. To clarify, I too will not be bringing forward amendments. I fervently hope that the Bill reaches the statute book as quickly as possible.
The Bill is a major and much-needed step forward in reducing the use of force in mental health units across the country. I am pleased that we have cross-party support on this point. The provisions in the Bill for greater transparency, oversight and accountability will lead to vital improvements in the care and protection of children, young people and adults who are experiencing a mental health crisis, and to ensuring that their rights and protections are made as robust as possible.
When I looked at the evidence for the Bill to say why it is so timely, I looked at the figures about the use of restraint. They have been going up very significantly in recent years, despite statutory guidance saying that restraint should be used only as a last resort.
When I looked at the figures, I was perturbed to see that children and young people under the age of 20 seem to be subject to the use of force four times more than adults in mental health in-patient units—a point made also by the noble Baroness, Lady Massey. I was concerned, too, to read that girls and women are subject on average to double the number of restrictive interventions experienced by boys and men. Clearly, not only will such restraint be frightening and potentially dangerous but it can retraumatise women and children who may have experienced violence and abuse. I will return to that point later.
Above all, I hope that the Bill proves to be a fitting tribute to the life of Seni Lewis, a young man who tragically died following prolonged physical and mechanical restraint by 11 police officers called to assist healthcare staff back in 2010. Sadly, nothing can bring Seni back, but I hope that the passing of this Bill brings some meaning to those tragic events.
I was struck when reading about that dreadful incident to learn that Seni had been admitted as a voluntary patient, but, following his family’s departure and his becoming increasingly frightened and disoriented, the police were called by hospital staff but his family were not contacted. That is very concerning. Seven years later, an inquest jury unanimously concluded that multiple failures in care had led staff to call the police and that the restraint used by officers was excessive, unreasonable, disproportionate and therefore contributed to Seni’s death.
An issue that I want to highlight today, and which the Bill goes a long way to address, is patient awareness and involvement and the involvement of families. In reality, most patients and their families do not understand their rights in relation to the use of force or even what type of restraint may be used. In some settings, it is clear that force is routinely used without adequate involvement of the patient or their representative in decision-making. Advocates are not routinely involved in post-incident reviews. I hope that the Bill, through Clause 4 and, even more so, in guidance, will be able to rectify that.
Noble Lords have already referred to the inadequate training that currently takes place, with an emphasis on painful techniques rather than de-escalating a situation. Much can be done to improve training and to move away from using combative and uncompassionate approaches towards a much greater focus on de-escalation.
I look back at what the Care Quality Commission said about training in 2017:
“Wards where the level of physical restraint was low had staff trained in the specialised skills required to anticipate and de-escalate behaviours or situations that might lead to aggression or self-harm”.
Those are important points.
There are a number of other points that I want us to probe as the Bill goes through. As I said, we might be able to cover them in the guidance. The noble Lord, Lord Adebowale, has mentioned a number of them, so I do not want to repeat what he said. Ensuring that each mental health unit policy includes a commitment to reducing the use of force needs to be spelled out. Ensuring that a post-incident review occurs to establish the patient’s perspective following the use of force is incredibly important and has not happened nearly enough up to now. Ensuring that patients’ legal rights to advocacy are communicated to them and their families is also important. I also think that, in order to ensure accountability and transparency, parliamentary oversight is really important. We have a critical role if progress is to be made towards reducing the use of force through the annual statement. It is there in the Bill, but there is an issue about timing. It is really important that the annual statement that, as I understand it, the Secretary of State will be obliged to make will be so timed to include the annual statistics produced by, I think, NHS Digital, so that we can carry out good and proper scrutiny. I think that that is extremely important.
I shall finish by saying a few things about the situation for children, young people and women in particular. I have already made some reference to this. When I was looking at the statistics about the scale, the frequency and the impact, I was really alarmed. Frankly, I was very alarmed when I read that, back in 2016, more than one in six in-patient CAMHS providers did not know how often patients were being restrained and how this compared to benchmarks from previous years. If we do not even know that, that is really worrying. I was really concerned to see that children and young people seem to be subject to the use of force four times more than adults over 20. That seemed really alarming to me. Often, these incidents of restraint—I think this relates to adult patients—happen in the first week of admission, a long time before things have settled down.
In terms of gender, I have already mentioned my real concern over the figures for girls and women, who experience, on average, double the number of restrictive interventions. Again, I was frankly surprised to read that; I do not know why, but I was. I want to understand more about why that happens and what we need to do about it, because it seems to me that that is not a situation we should allow. I then looked at the impact of this and realised that it is happening in secure settings—non-mental health settings—in secure children’s homes, secure training centres and young offender institutions. So there is a lot for this Bill to address.
I looked back at what Ofsted had to say on the matter back in 2012. Ofsted made it clear then that restraint should usually be used as a last resort, never as a punishment; that staff should always be trying to calm things down, to de-escalate; that it should not be used by staff just to keep good order and control. Extremely importantly—this is the point I wish to emphasise—restraint should never be used on very young children, children who had only just come in to care, disabled children, children with mental health issues and children who have been sexually abused. That is one of the reasons why this report is so very important and why I feel so strongly about it. That was 2012. In 2016 and 2017, the Children’s Commissioner’s findings from her visits to medium, secure and forensic in-patient settings for children and young people were indicating high levels of restraint and seclusion in units with a learning disability specialism. She found:
“There is no evidence base for the effectiveness of prone restraint in reducing the frequency or intensity of behaviours that challenge. It is a hugely traumatic and damaging experience for children and their families”.
I hope that someone can give me reassurance on my final point, which has been raised by people who are working very hard to ensure that we get the Bill right. I hope that the Minister can give me explicit clarification and reassurance that the Bill applies to children—that it applies to all ages. If so, that is fine, we can all be reassured, but there seems to be an element of doubt and, for the reasons I have set out, I think it is terribly important that we know that children and young people are covered by the Bill.