Covid-19: Vulnerable Populations

Baroness Tyler of Enfield Excerpts

Tuesday 12th May 2020 Lords Chamber

[Lord Bethell]

I share the noble Baroness’s celebration of Florence Nightingale Day, which is an important day for the nursing profession and for all of us. We have made huge progress on testing in care homes in the last three weeks. The new portal was made live on Monday and care homes are now massively supported by satellite care home facilities manned by the Army. I am not sure about the 6 June date of which she speaks, but I reassure the House that care home testing is the number one priority of our testing facilities and is benefiting from the large increase in capacity.

[Baroness Tyler of Enfield (LD)]

My Lords, over the course of this crisis we have seen substance misuse and mental health services adapt their provision to better support homeless people facing multiple problems. Could the Minister say what the Government, in particular the new homelessness task force, will do to ensure that these flexibilities remain in place?

[Lord Bethell]

The noble Baroness is right to raise concern for the homeless—surely one of the groups suffering the most in the current epidemic. We are putting in place facilities for testing, housing and mental health support for the homeless. We envisage that these will continue for the length of the epidemic.

Covid-19: Social Care Services

Baroness Tyler of Enfield Excerpts

Thursday 23rd April 2020 Lords Chamber

[Baroness Tyler of Enfield (LD)]

I thank the noble Baroness, Lady Wheeler, for securing this important debate. As the terrible and ever-rising death toll in care homes has so visibly shown, the social care sector, so long underfunded and neglected by politicians and policymakers, finds itself at the front line of this cruel pandemic. The severity of the challenge faced in care homes and other community settings is impossible to overstate. In short, care homes providing personal and close contact care need urgent access to reliable and ongoing supplies of protective equipment to protect residents and staff, rapid and accessible testing, and far greater support, with funding and equipment on an equal footing with the NHS.

If this pandemic has proved one thing, it is that health and social care are inextricably linked and cannot be treated differently. The National Care Forum has called on the Government to form a ring of steel around care homes, but what is it like at the moment? I have spent the past couple of days talking to various social care leaders running front-line social care services. It has been a humbling experience to hear what is going on.

Their stark messages include: how the rhetoric from government is hard to hear when the reality is so different; the confusing, contradictory and constantly changing nature of guidance issued by government and other bodies; the daily struggle to secure protective equipment, with government supplies sometimes being diverted to NHS facilities and homes having to source their own supplies at extortionate prices; staff shortages running at 25% alongside existing high vacancy levels that require the hiring of agency staff, which raises the risk of transmission; a serious shortage of nurses in homes and great difficulty recruiting, as nurses are deployed into the acute sector; testing arrangements which show little understanding of how the sector works, with care workers who have no car being asked to drive to centres many miles away, at times that do not fit with their shift patterns; patients being sent from hospitals into care homes without testing; much-needed financial resources from government not reaching the front line; GPs no longer coming into care homes to verify deaths, leaving such tasks to some of the lowest-paid staff; and care workers left feeling insecure and anxious when left in charge of clinical details.

Based on these conversations, I ask the Minister: why are care homes having to pay VAT on protective equipment when the NHS does not, and what urgent steps will the Government take to put them on an equal footing? What measures are they taking to ensure that some registered nurses in the newly returning workforce are deployed to care homes, which desperately need them? When will the newly established volunteer scheme be used to help care homes? Finally, when will the Government’s visa exemptions for NHS nurses be extended to those working in the social care sector?

When this terrible tragedy subsides, a long-overdue and fundamental reform of social care must be a top priority. A national health and social care system means just that: a fully integrated service, properly funded and run on an equal basis so that we are no longer, as one social care professional put it to me, simply an afterthought at the back of the queue.

Queen’s Speech

Baroness Tyler of Enfield Excerpts

Tuesday 22nd October 2019 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, I start by remarking on what very strange times we live in and the frankly rather surreal context to the debate. I was particularly struck yesterday by the remark of my noble friend Lord Beith, who I am delighted is in his place next to me, who called this the “fantasy gracious Speech”—and that was before the vote to reject the timetable for the withdrawal agreement Bill and the Prime Minister’s recent announcement that it will now be “paused”.

With that preamble aside, I will start with one aspect of the gracious Speech that I welcome: the commitment to reform the Mental Health Act to,

“improve respect for, and care of, those receiving treatment”.

That is based on the independent review of the Mental Health Act, chaired by Sir Simon Wessely, which reported in December 2018 with 154 recommendations aimed at improving and updating the Mental Health Act 1983. That is critical, given the growing number of detentions, of which we know that there was a 40% increase over a 10-year period, and grave concerns about the disproportionate numbers of people from black and minority ethnic communities being detained.

Unless my hearing failed me, at the start of the debate I was pleased to hear the Minister confirm that it is the Government’s intention to publish the White Paper outlining their response to the independent review by the end of the year. I welcome that, but is the Minister able to say anything more about the timetable for bringing forward a new mental health Bill and whether the Government will be able to accept the Wessely review’s recommendations in their entirety? We should not lose sight of the fact that the best way to reduce the need to detain patients under the Act is to prevent their health deteriorating and reaching a mental health crisis in the first place. That is best done through expanding and improving mental health services.

So it is to be hoped that delivering the improvements contained in the NHS long-term plan will bring real benefits to people with mental illness. However, as we have heard before this afternoon, these all rest on having enough staff with the right skills to deliver care to patients—so could the Minister also say when the Government will publish their legislative proposals to implement the long-term plan? While I welcome plans for a new piece of mental health legislation, as I have said, it is also important that the forthcoming White Paper considers the non-legislative steps needed to improve patient care.

The noble Lord, Lord Ribeiro, made the really important point that the review of the Mental Health Act found that mental health facilities where patients are admitted are often some of the most out of date. Indeed, they were described as the “worst estate” in the NHS, at times with more in common with prisons than hospitals. Badly designed, dilapidated buildings and poor facilities contribute to a sense of containment and make it difficult for patients to effectively engage in therapeutic activities. This capital investment to improve the in-patient physical environment, which was recommended by the review and supported by the long-term plan, is critical, so could the Minister set out what action is being taken to fund these infrastructure improvements?

Ensuring that patients are not detained any more than is absolutely necessary—something I am sure we would all agree with—requires expanding mental health services and having the medical workforce to deliver and sustain the commitments in the long-term plan. That will require the Government both to sort out the short-term recruitment and retention crisis in the mental health workforce and to prepare for the longer term by doubling the number of medical school places by 2029, as was discussed in Questions yesterday.

One group who would benefit from proposals for greater integration of mental and physical healthcare are those who have mental illness and alcohol and substance abuse issues. They are often seen by various services but do not get the holistic care that they need. I think that we all know that patients being seen for mental health conditions often do not get the physical healthcare they need and vice versa, with those with physical health conditions often having their mental health needs ignored. I was therefore interested in the proposals put forward by NHS England and NHS Improvement for an NHS integrated care Bill to assist the delivery of the NHS long-term plan and allow services to work together more easily. Can the Minister say what is happening in this area?

A common misunderstanding is that the Mental Health Act applies only to adults rather than to young people, but we should note that, in total, almost 3,500 children and young people were admitted to inpatient mental health hospitals in 2017-18, with more than 1,000 formally detained under the Mental Health Act and more than two-thirds of those children aged 16 and 17. Therefore, as the review makes clear, detention should only ever be a last resort. Consequently, it is vital that reforms to the Mental Health Act are accompanied by greater investment in early intervention for children and young people, so that more young people receive support in their communities before they reach crisis point. Again, I would be grateful for anything that the Minister might be able to say, either now or later, about the specific steps being taken by the Government to make early support a real priority.

Mental Health of Children and Young Adults

Baroness Tyler of Enfield Excerpts

Thursday 16th May 2019 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, I add my congratulations to the noble Baroness, Lady Royall, on securing this vital debate during Mental Health Awareness Week. I refer to my interests in the register.

It has been a powerful debate, which has confirmed in my mind that the worsening state of children and young people’s mental health is becoming one of the major social policy challenges facing our country. We are becoming familiar now with the statistic that one in eight five to 19 year-olds has a diagnosed mental health disorder. To try to make that a bit more real, that is roughly three children in every classroom.

Looking ahead, the Royal College of Paediatrics and Child Health’s report entitled Child Health in England in 2030 found that reported mental health problems in England are set to increase by 63% over the next decade—a huge increase. Already, the number of girls under 18 being treated in hospital after self-harming has nearly doubled compared with 20 years ago, and the number of referrals by schools seeking mental health treatment for pupils has shot up by over one-third in the last three years, with over 50% of these coming from primary schools. That is a really worrying trend.

We have already heard about the long-term plan for NHS England, which builds on the Five Year Forward View for Mental Health. It makes some very welcome commitments for further investment in children and young people’s mental health services. I particularly pick out the new waiting time standards, investment in eating disorder services and the expansion of crisis services to a 24/7 service. It is welcome that funding for children and young people’s mental health services will grow faster than both overall NHS funding and total mental health spending.

Then, of course, as others have said, we have the Green Paper’s proposals. Those proposals to bring schools and NHS services closer together and to act earlier to identify children who need effective help to prevent them falling into a crisis are of course welcome. The proposed new mental health support teams have the potential to make a real difference, but as my noble friend Lord Storey said, they really need to be rolled out a lot faster. Of course I understand why they cannot be created overnight, and I welcome the fact that training for the first cohort of these new teams started recently, at I think seven universities, but based on the Government’s own estimates, on current plans some children who are eight now may not receive any additional support before they leave school at 18—a full decade after the new teams have been launched.

To summarise, much is promised or in the pipeline, but what is the reality on the ground? Quite simply, too often children and young people’s needs are going unmet. Currently, less than one in three children with a diagnosable mental health condition is getting access to NHS treatment and care, which I am sure we all agree is a scandalous state of affairs. The Care Quality Commission’s review of access to children’s mental health services last year found a “complex and fragmented” system at local level with multiple providers and minimal co-ordination of service delivery, while high demand and limited resources meant that far too often the referral threshold to CAMHS, as we have heard, was far too high in many places. At the tail end of last year, we had reports from the NAO and the Public Accounts Committee that absolutely echoed these findings.

Further evidence, if we need any more, comes from Healthwatch. I am grateful to it for sending its recently summarised findings of 152 local Healthwatch organisations in each local authority around the country. In short it found, first, that children experience long waits to see a specialist and often complain about poor communications from services. Secondly, access to assessment services is challenging, the referral process is complicated, and often young people did not feel that they were listened to. Thirdly, a lack of timely and appropriate information for young people and parents was a problem. Indeed, young people often said that they felt patronised by the tone of materials produced for them and that they would like to discuss mental health more in schools, which I will return to in a minute. Fourthly, the transition from children’s to adult services is confusing and challenging. As we heard, we have too many young people falling through the gap. Fifthly, there is a real lack of integration between learning disability and mental health services, leading to services being not at all tailored to specific needs.

This is a very familiar and depressing catalogue of problems, so what do we do about it? I will suggest a short-term solution before coming to longer-term solutions. To help overcome the fragmentation that I have been talking about, the Royal College of Paediatrics and Child Health recommends piloting and evaluating a “local offer” for mental health, mirroring the existing local offer for special educational needs introduced by the Children and Families Act. This is something I strongly support. A local offer for mental health would provide comprehensive information about the available services in a local area and how to access them, but it would also very importantly identify shared responsibilities across authorities for ensuring that children and young people are supported as close as possible to their home.

This “local offer” approach has much to commend it. It would help to co-ordinate local services and make gaps in provision more visible, therefore encouraging local providers to work together to fill those gaps. I raised this with the Minister at Oral Questions on 25 March, and she kindly said that she would consider the suggestion and get back to me. Could I ask her if she is yet in a position to respond on this important point? I would very much like to know her thinking in this area.

I turn now to longer-term solutions. Workforce is the biggest issue that the system faces. It has been said many times in many quarters that it is the overriding barrier to improving access to children’s mental health services. I know that NHS leaders face the daunting challenge of delivering the changes set out in the NHS Long Term Plan, alongside a workforce that is under huge strain and struggling to cope with widespread staff shortages. Figures from Health Education England in 2018 showed that a very worrying 60% of training places for child and adolescent psychiatry were unfilled. Frankly, Health Education England has limited data to develop its workforce plan. New data very recently released by NHS Digital shows there has been an almost 4% fall in the number of CAMHS psychiatrists between 2012 and 2019, despite the number of doctors for all other medical specialties during that period having risen by about 15%.

I have been trying to understand these workforce challenges. They are quite complicated. I spent a bit of time poring over Stepping Forward to 2021, produced by Health Education England, and I commend it for it. Quite frankly, I find it quite confusing and complex. It is the workforce plan to support delivering the five-year forward view. Roughly, it talks about the need for about 20,000 additional workers in psychiatry, nursing and psychology to support the plans at the time. Now we have the expanded plans in the long-term plan. Others have mentioned that we are waiting for the workforce strategy that the noble Baroness, Lady Harding, is working on, which I am looking forward to. I very much appreciated the chance to meet with her last week. That was very helpful indeed. I have also talked recently to various mental health trusts that I have been fortunate enough to visit. I know how concerned they are about the need to expand the workforce and to retain staff at the same time.

I return briefly to schools, which have such a pivotal role to play. These points were raised very powerfully by the noble Lords, Lord Bradley and Lord Layard. We know that what gets measured gets done. That is why Peers on these Benches have called for Ofsted to include an assessment of the effectiveness of schools in supporting children and young people’s mental health and well-being. Ofsted released its new inspection framework earlier this week, with new guidelines about how schools should be assessed. On the plus side, the framework has a greater emphasis on personal development and the quality of education, including confidence and resilience building. I was pleased to see more references to mental health throughout the inspection, but frankly I am disappointed that the reforms have not gone far enough. Under the new framework, schools and colleges will not receive any recognition for developing a whole-school approach, having positive responses for identifying mental health problems and ensuring that young people get support when problems first become involved. This is a missed opportunity to turn school inspections into a mechanism that would inspire real change for children and young people’s mental health and psychological well-being. I would welcome the Minister’s thoughts on this. I see that my time is up.

NHS Funding: Mental Health Services

Baroness Tyler of Enfield Excerpts

Wednesday 1st May 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

The noble Earl is absolutely right that it is essential not only that we recruit new psychiatrists and mental health specialists to support the ambitions of the long-term plan—we have set out an ambitious plan to do so, intending to recruit 8,000 new specialists—but that we retain those within the system, who are doing an outstanding job in difficult circumstances. NHS Improvement is working with mental health trusts across the country to give them the tools that they need to do so, and I am encouraged by the progress that they have made so far.

[Baroness Tyler of Enfield (LD)]

My Lords, to help ensure that the money allocated for mental health services is indeed spent on improved mental health care and not diverted to other areas of NHS activity, will the Minister say what plans the Government have to introduce a strengthened mental health investment standard for children alongside the existing mental health standard, which focuses primarily on adults, and with meaningful sanctions imposed on CCGs that fail to meet the standard without a valid reason?

[Baroness Blackwood of North Oxford]

As usual, the noble Baroness’s expertise shines through in her question. She is right that we must ensure that the money allocated to children and young people’s mental health gets to exactly where it is intended. The dashboard is extremely valuable in tracking through the effectiveness of the funding priorities in this manner. We will be holding to account CCGs and mental health trusts in ensuring that the money allocated to trusts is spent on exactly what it is intended to be spent on.

Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 24th April 2019 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My 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.

[Baroness Murphy (CB)]

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.

Child and Adolescent Mental Health Services

Baroness Tyler of Enfield Excerpts

Monday 25th March 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

The 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.

[Baroness Tyler of Enfield (LD)]

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?

Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts

Tuesday 26th February 2019 Lords Chamber

Moved by

[Baroness Tyler of Enfield]

Leave out from “House” to end and insert “do disagree with the Commons in their Amendment 1 and do propose Amendment 1B in lieu—

1B: Before Clause 1, insert the following new Clause—“Meaning of deprivation of liberty
(1) After section 4 of the Mental Capacity Act 2005 insert—
“4ZA Meaning of deprivation of liberty
(1) A person is deprived of liberty if the circumstances described in subsection (2) apply to them.
(2) A person is deprived of liberty if they—
(a) are subject to confinement in a particular place for more than a negligible period of time; and
(b) have not given valid consent to their confinement; and
(c) the arrangements are due to an action of a person or body responsible to the state.
(3) For the purpose of subsection (2)(a), a person is subject to confinement where they—
(a) are prevented from removing themselves permanently from the place in which they are required to reside, in order to live where and with whom they choose; and
(b) are subject to continuous supervision and control.”
(2) In section 64(5) of that Act (interpretation) for the words from “same” to the end substitute “meaning given by section 4ZA.””

[Baroness Tyler of Enfield (LD)]

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.

[Baroness Finlay of Llandaff (CB)]

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.

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[Baroness Blackwood of North Oxford]

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.

[Baroness Tyler of Enfield]

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.

Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts

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.

[Lord O’Shaughnessy]

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.

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[Baroness Tyler of Enfield]

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.

Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts

Report: 1st sitting: House of Lords
Wednesday 21st November 2018 Lords Chamber

Moved by

[Baroness Tyler of Enfield]

2: Schedule 1, page 5, line 33, at end insert—
“(1A) For the purpose of paragraph 2(1)(b), arrangements which give rise to the deprivation of the cared-for person’s liberty are those in which—(a) the cared-for person is subject to confinement in a particular place for a not negligible period of time; and(b) the cared-for person has not given valid consent to their confinement.(1B) For the purpose of paragraph 2(1A)(a), a cared-for person is subject to confinement where—(a) the cared-for person is prevented from removing himself or herself permanently in order to live where and with whom he or she chooses; and(b) the dominant reason for the deprivation of liberty is the continuous supervision and control of the cared-for person, and not treatment for their underlying condition.”

[Baroness Tyler of Enfield (LD)]

My 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.

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[Lord O’Shaughnessy]

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.

[Baroness Tyler of Enfield]

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.

Amendment 2 withdrawn.

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[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

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.

[Baroness Tyler of Enfield]

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.

[Baroness Watkins of Tavistock (CB)]

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.