Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020

Baroness Tyler of Enfield Excerpts

Monday 15th June 2020 Lords Chamber

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

My Lords, I have no issue with the minor lifting of restrictions contained in these regulations—apart from the bizarre timing of this debate—other than to say how odd it was to prioritise being able to visit an estate agent over being able to visit family members from whom we have been separated for months.

I will focus primarily on how as a country we move out of lockdown in a way that feels fair and does not discriminate. It has been more apparent in recent weeks that we were too slow to move into lockdown and that those lost weeks in March cost precious lives. The Government have also been far too slow in getting testing, tracing and isolating up and running, as well as in providing PPE and other crucial support for care homes.

I have been particularly concerned about the impact of lockdown on the well-being of those living by themselves, for whom lockdown has been especially tough. For some living alone, there has been a limited easing of restrictions in recent weeks; they can now form a social bubble with another household. These are clearly steps in the right direction, but I am concerned about the mental health impact of long periods of isolation on both the over-70s and those of any age living alone.

Back in April, the Mental Health Foundation voiced concerns over the long-term impact of the pandemic on mental health after a quarter of adults surveyed admitted to experiencing loneliness during lockdown. Perhaps surprisingly, the most affected group was found to be young people aged 18 to 24, 44% of whom admitted to experiencing loneliness. Research has shown that loneliness has the same impact on mortality as smoking 15 cigarettes a day, making it more dangerous than obesity. More recent research from Age UK has shown that over two-fifths of people aged 70 and over say that their mental health has been affected, with those locked down alone having a particularly anxious time.

Many people over 70 who are still fit and active, contributing to the economy and society and with no underlying health conditions, are increasingly finding these blanket policies ageist and discriminatory. A growing number of over-70s are also annoyed at the implication that all their age group are equally vulnerable and have called on the Government to take a more nuanced approach. Indeed, some are starting to say that the proposed cure of a lengthy extended lockdown for older people is as bad as or worse than the disease itself.

To finish on care homes, which are never far from my mind, at the end of May social care leaders began calling on Ministers to prioritise unlocking care homes amid growing concerns that mental health problems were contributing to the deaths of residents, a call echoed by the Relatives & Residents Association. The executive director of the National Care Forum said:

“We need to put the same energy and imagination into opening up care homes as we’re putting into opening up the great British pub.”


I for one agree.

National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) Regulations 2020

Baroness Tyler of Enfield Excerpts

Monday 8th June 2020 Lords Chamber

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

My Lords, I too support the long-overdue pay increase for nurses working in the social care sector. I also strongly support the regret Motion tabled by the noble Lord, Lord Hunt, who is right to draw attention to the financial instability of this deeply fragmented sector.

There are approximately 15,000 care homes in the UK, with more than 400,000 beds, run by approximately 8,000 providers. Some are very small; others provide a large network of homes. It is a mixed economy: 84% of homes are owned by the private sector, including some that are owned by private equity firms, both British and offshore; 13% are owned by not-for-profit organisations; and 3% are owned by local authorities. Funding comes from a mix of private funders, local authorities and the NHS. Despite this funding mix, care homes have been hit by a decade of cuts in social care funding. An FT investigation last summer revealed:

“Britain’s four largest privately owned care home operators have racked up debts of £40,000 a bed, meaning their annual interest charges alone absorb eight weeks of average fees paid by local authorities on behalf of residents.”


Many have argued that this debt-laden model is completely inappropriate for social care, as is one that involves paying large dividends to investors.

Many homes are already running close to bankruptcy and have expressed grave concerns about the spiralling costs of PPE and extra agency staff, as well as lost income from empty beds. It has been estimated that when bed occupancy rates slip below 87%—as many have now—operating surpluses are such that many smaller care homes quickly become unviable, particularly those with greater reliance on state-funded residents.

This virus has brutally exposed systemic weaknesses in our social care sector. The latest official figures show more than 12,000 Covid-related deaths of care home residents in England and Wales, but it has been estimated that the true figure, calculated by looking at excess deaths of care home residents in the period, could be double that. According to a recent poll, one-third of people say that they are less likely to seek residential social care for their relatives or as a future option for themselves. This brings into very sharp relief the respective responsibilities of central and local government if care home owners go under financially or simply decide to shut up shop and hand back the keys. Simply put, who is the provider of last resort?

Tellingly, that poll also revealed that the vast majority of respondents want care workers to be paid above the minimum wage. If this pandemic has revealed one thing, it is that we can no longer kick the can down the road but must take advantage of the growing public and political consensus that social care should be free at the point of need, funded largely out of taxation. There are, of course, a number of ways of doing this: general taxation, hypothecated tax, or some form of social insurance. This needs to be at the nub of both the political debate and a grown-up national conversation.

Covid-19: Obese and Overweight People

Baroness Tyler of Enfield Excerpts

Thursday 4th June 2020 Lords Chamber

[Lord Bethell]

The noble Baroness is entirely right that chapter 2 outlines an extremely thoughtful roadmap for how to address this issue. It is currently being reconsidered. I cannot make the guarantees she asked for from the Dispatch Box, but I can assure her that we are working hard to see how we can use the example of Covid to make progress on this important agenda.

[Baroness Tyler of Enfield (LD)]

My Lords, given the Prime Minister’s welcome recent statement that a more interventionist stance is needed to tackle obesity, is the Minister aware of a recent poll by the Obesity Health Alliance showing that 72% of those surveyed supported restrictions on shops promoting unhealthy foods in prominent areas, including checkout areas, and 63% wanted the sugar tax on soft drinks extended to other sugary foods? What plans do the Government have to introduce these measures, working collaboratively with supermarkets and other food retailers?

[Lord Bethell]

The noble Baroness is entirely right to suggest that Covid might be the infection point—the intervention necessary to wake up the nation to the dangers of obesity. We are keen to use that moment to make progress on this important issue.

Mental Health Services

Baroness Tyler of Enfield Excerpts

Tuesday 19th May 2020 Lords Chamber

Asked by

[Baroness Tyler of Enfield]

To ask Her Majesty’s Government what steps they are taking (1) to protect, and (2) to support, mental health services (a) during, and (b) after, the COVID-19 pandemic.

The Question was considered in a Virtual Proceeding via video call.

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

My Lords, the NHS has issued guidance to services to support them in managing demand and capacity across in-patient and community mental health services. Services have remained open for business as usual as a result. We remain committed to the additional investment in mental health services set out in the NHS long-term plan. We have provided an additional £5 million to mental health charities to support their work during the pandemic.

[Baroness Tyler of Enfield (LD)]

My Lords, the Royal College of Psychiatrists warned last week that the nation faces a mental illness “tsunami”. Those on the front lines of our health and social care services have gone above and beyond to tackle this dreadful virus, but now may themselves face significant mental health problems. Thousands have lost colleagues, endured serious illness or experienced major trauma. Will the Government commit to investing in a world-class mental health response to Covid-19, including by setting up specialist support services for those on the front line of our NHS and care services, mirroring the services available to our armed services personnel?

[Lord Bethell]

I join the noble Baroness in paying tribute to those working in mental health in the NHS. They have kept services running in extremely difficult circumstances and their impact has been extremely powerful. Although we are aware of the deep threat of a mental health tsunami, as was warned, the evidence to date is that these people have done an amazing job of addressing the concerns of those who are suffering under coronavirus and the lockdown.

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.