Health and Care Bill

Debate between Baroness Tyler of Enfield and Baroness Finlay of Llandaff

Consideration of Commons amendments
Tuesday 5th April 2022 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I rise very briefly to support Amendment D1, tabled by the noble Lord, Lord Blencathra. Last night I was part of a BMA web conference mounted by the Ethics Committee, of which I am an elected member, looking at the powerful evidence coming out of Xinjiang province in China. The concern is that, if we are purchasing products from there, we are complicit in the appalling human rights abuses that we were shown evidence of in this webinar. Therefore, I hope the House will support that amendment.

I return to the very important Amendment B1, tabled by the noble Baroness, Lady Cumberlege. This is not just a static situation. It is worsening. All that we have done is not just more of the same; we are actually sliding downhill rapidly. I want to give a little bit of data to the House to support that statement. There are now 1,565 fewer GPs than in 2015, meaning that there is a shortfall of 2,157 against the target that was set by the Government in their manifesto promise, in terms of where we are tracking to date.

The number of fully qualified GPs by headcount has decreased by over 600, so there are now just 0.45 fully qualified GPs per 1,000 patients in England, down from 0.52 in 2015. This means that each GP is responsible for about 300 more patients than previously. In terms of physiotherapy—I declare an interest as president of the Chartered Society of Physiotherapy—the model shows that 500 new physios are needed each year for multiple years to meet demand. There needs to be a trebling of the 6,000 NHS physio support workers. In nursing, the district nursing numbers have dropped from 7,055 in 2009 to 3,900 in 2021, which is a 45% drop. This is all going in the wrong direction. From the data that I could obtain, it looks as if three-quarters of nursing vacancies are filled by temporary staff.

This amendment, tabled by the noble Baroness, Lady Cumberlege, is crucially important. It would be a dereliction of our duty to ignore supporting that amendment, given all that we know and all the work that has gone on. That is not to be critical of the Minister and his team at all, because I am sure that it is not his personal wish that we do not have this in place—but we certainly do need a completely new approach to workforce planning.

[Baroness Tyler of Enfield (LD)]

My Lords, I wish to lend my support very briefly to Motion B1, moved so very compellingly by the noble Baroness, Lady Cumberlege. I simply wish to pick up and echo the telling point from the noble Baroness, Lady Harding, who I think broadly said that if you carry on doing the same thing, you are going to get the same results.

I have had a look over the last week at what results we are getting. We have had the frankly shocking revelations in the Ockenden review, highlighting the really severe implications for patient safety, particularly for women and babies, when there are just not enough suitably trained staff around to do the vital job that they are there to do. I looked at that review last night and found it truly shocking. In the last 24 hours, we have had a Care Quality Commission report looking at Sheffield Teaching Hospitals. It said that they lacked enough qualified clinical staff to keep women and infants safe from avoidable harm and to provide the right treatment. There is also today’s report—it may have been yesterday’s—from the Health and Social Care Select Committee, highlighting the critical NHS staff shortages affecting cancer services in England, meaning that too many people are missing out on that critical early cancer diagnosis which is so vital to their chances of survival.

I know those are the worst things happening and that there are lots of good things, but those things are not acceptable. Things like that are why public satisfaction in the NHS, as the noble Lord, Lord Stevens, said, is sadly going down. That is a real problem; it is the reason I so strongly support Motion B1 and why there is such strong cross-party support for it in this Chamber.

Health and Care Bill

Debate between Baroness Tyler of Enfield and Baroness Finlay of Llandaff

Lords Hansard - Part 1 & Committee stage
Tuesday 18th January 2022 Lords Chamber

[Baroness Tyler of Enfield (LD)]

I rise to speak to Amendments 51, 98, 141, 151 and 162 in my name and, briefly, the other amendment to which my name is attached. I shall make one opening remark. This group is all about children and young people. I know that all noble Lords feel very strongly about this issue. Children and young people make up 30% of the population but are not mentioned anywhere in the Bill.

Amendment 51 would require integrated care boards to share relevant information and data with key partners in the children’s system and to collect multiagency data from those partners. As the Bill stands, there are a number of crucial areas in which adults are, rightly, set to benefit from improvements to integrated working in ways that children are not. One of the most concerning ways in which it feels to me as though children have been an afterthought in the Bill is in the sharing of data and information.

Barriers to sharing information have been identified over many years as a key barrier to better joint working, commissioning and delivery of services but, due to the invisibility of children in existing data-sharing legislation, the children’s system faces even greater barriers to sharing information than that for adults. However, the measures to improve the sharing of information and data in Part 2 apply only to the adult system. Frankly, I find that inexplicable.

Alongside the noble Lords, Lord Bichard and Lord Hunt, to whom I am very grateful for adding their names to my Amendment 51, I heard numerous accounts of the huge challenges that the NHS and local authorities face in collecting, sharing and interpreting data as part of the recent Public Services Select Committee inquiry into child vulnerability. We heard this time and again. I quote just one sentence from the report:

“poor data-sharing between Government departments and local agencies endangered vulnerable children and their families by undermining safeguarding arrangements and preventing referrals for early help.”

As we heard from the noble Baroness, Lady Masham, following the heartbreaking murders of Arthur Labinjo-Hughes, Star Hobson and other vulnerable children in this country, it is essential that arrangements for data sharing between the health system and local authorities for babies, children and young people are urgently improved. As I have said, Part 2 focuses on data sharing between health and adult social care but does not extend this to the children’s system. It is not just that children are not specifically included in the wording of the Bill; they have been explicitly excluded.

As the noble Baroness, Lady Meacher, said, colleagues in the sector, including the National Children’s Bureau—to which I am very grateful for its help and support on these amendments—have engaged in discussion with officials on this issue. I was pleased to hear that this engagement is going well and is set to continue, but I hope to secure today the Minister’s agreement to look again at this issue, which is in the best interests of vulnerable children in this country.

Amendment 98 would add the discharge of duty as a safeguarding partner to the general duties of ICBs in Clause 20. It would require new regulations that specify how ICBs should perform the statutory child safeguarding duty when it is transferred to them from CCGs, which are obviously abolished as a result of the Bill. Although the statutory guidance Working Together to Safeguard Children already sets out the responsibilities of a safeguarding partner, the recent tragic events that I have just referred to show that a more robust legislative approach is needed to ensure that children are properly protected by a really effective multiagency safeguarding system.

It was heartbreaking, and I know that all noble Lords in the Chamber were shocked when they heard the details of the tragic death of Arthur Labinjo-Hughes, a six year-old boy who suffered prolonged abuse and was murdered by the very people who were supposed to keep him safe. I recently met the NSPCC, which highlighted government data showing 536 incidents involving the death or serious harm of a child due to abuse or neglect in 2020-21.

Sadly, young Arthur’s case is only one of far too many, but health practitioners such as GPs, nurses, midwives and health visitors are in a prime position to recognise and report safeguarding concerns; during medical examinations they might identify signs of physical or sexual abuse. Missed medical appointments can also indicate neglect. As the strategic safeguarding leader, the ICB will be responsible for ensuring that health practitioners are fully supported to work with other agencies on safeguarding and promoting the welfare of children. Alan Wood’s review from 2021, which has been discussed in the Chamber on a number of occasions, makes clear recommendations on strengthening the existing safeguarding arrangements, which came into effect in 2019, including by ensuring effective leadership, data sharing and scrutiny. The Bill offers a golden opportunity to act on these amendments to bolster local health partners’ role as a lead safeguarding partner and to embed effective joint practices that really do keep children safe.

Amendment 141 would require NHS England to assess how well an integrated care board has met the needs of children and young people in its area. In order to make a judgment about this, the amendment would require NHS England to publish an accountability framework for setting out national priorities for children and young people. Among other things, ICBs will have a crucial role in commissioning primary and community healthcare services directly for children and young people. They will play a key role in jointly commissioning services for disabled children and those with special educational needs, and in contributing to education, health and care plans, and they will be crucial in commissioning the joined-up services in the first 1,000 days of life, which the Government, to their credit, are investing in.

However, as we all know, there is unwarranted variation, with the support that children and young people receive in the health service often based on where they live rather than on their level of need. This amendment would create much needed accountability for integrated care boards and provide an overarching framework for children’s health that ICBs can work within, importantly without being prescriptive in any way about how local systems fulfil their duties.

Turning to Amendment 151, Clause 21 requires every integrated care partnership to develop an integrated care strategy. The amendment would require ICPs to consider specifically the needs of babies, children and young people when developing this strategy. I think the Minister knows my concern and that of other noble Lords—the noble Baroness, Lady Meacher, referred to it—that if we do not refer explicitly to children in the Bill, they will not be given priority equal to the adult population’s when it comes to implementation. Sadly, experience shows that when legislation does not explicitly require health systems to consider children, they are often overlooked in subsequent implementation.

Children and young people have distinct development needs. They use a distinct health and care system staffed by a distinct workforce with its own training, and they are covered by distinct legislation. Simply hoping that integrated care systems will take full account of that of their own accord will just not cut it. A more robust legislative approach is needed. Like the noble Baroness, Lady Meacher, I was also pleased to hear that the Minister in the other place recognised the importance of focusing on children and families in the new ICS structures and made a commitment that the Government would develop bespoke guidance for integrated care systems on meeting the needs of babies, children and young people. That is why I support Amendment 177 in the name of the noble Baroness, Lady Meacher, and to which my name is attached, to put this guidance on a statutory footing.

Amendment 162, on Clause 26, would require the Care Quality Commission to work jointly with Ofsted to plan and conduct reviews into the provision of health and children’s social care in integrated care board areas.

Again, I refer back to my experience as a member of the Lords Public Services Select Committee. I can confirm, as the noble Lord, Lord Hunt, will be able to, that the committee investigated the role played by the relevant regulators and inspectorates. Indeed, we took evidence from the senior leaders of the relevant inspectorates and regulators, specifically Ofsted and the CQC. Our conclusion was that, despite the very best intentions, these inspectorates do not work together closely enough or have a truly integrated approach. It is telling that our report revealed that the CQC itself called on the Bill

“to give it the ‘ability to look at [the] care of children across all settings’ as part of its regulation of Integrated Care Systems”.

I believe that the Bill should give the Care Quality Commission and Ofsted powers jointly to hold integrated care systems, service providers and local decision-makers accountable for the long-term outcomes for children’s health, including health inequalities.

I very much support Amendment 177 in the name of the noble Baroness, Lady Meacher. It has been explained and it very much goes with the grain of my other amendments.

I also strongly support Amendment 142 in the name of my noble friend Lady Walmsley, which would provide an opportunity for the Government to ensure that children and young people are prioritised on ICBs while maintaining local flexibility, which is important. An impact assessment would allow for good practice to be shared quickly and for both Houses to exercise effective scrutiny over the implementation of this legislation.

On Amendment 87 in the name of the noble Baroness, Lady Finlay, the idea of the appointment of a strategic clinical lead for children and young people’s health is an excellent proposal, but I will leave the noble Baroness to express that.

In conclusion, the Government have a very important agenda for children. There are a lot of things that they are trying to do. I strongly support most of them but I really feel that we must have an effective legislative framework to allow that agenda to be taken forward successfully.

[Baroness Finlay of Llandaff (CB)]

My Lords, this group of amendments is particularly important because it concerns the next generation, addressing children and young people’s health and social care needs. As has been said, I have tabled Amendment 87. I have also put my name to Amendments 141, 151 and 162, introduced so comprehensively by the noble Baroness, Lady Tyler. I also support the other amendments in this group.

These amendments address how the needs of children and young people aged nought to 25 will be met by the relevant healthcare and social care provision within the area of each integrated care board. A bonus from recognising this in the Bill would be the encompassing of young people with learning difficulties and autism, whom we discussed last week.

I was struck by a figure raised during the debate in the other place. According to Young Minds, 77%—more than three-quarters—of sustainability and transformation partnerships failed to consider children’s needs sufficiently. Only one of the 42 ICSs in existence listed a strategic lead for children and young people. Given the range of agencies and pathways, someone must have responsibility for the integration of services at the local level and for listening to the needs of young people.

More than 12.6 million children aged 18 and under live in England, yet the Bill reads as if it is written by adults for adults. Let us not forget that an estimated 800,000 children in England are child carers and more than 250,000 of them are likely to be providing high levels of care for their relative.

Alarmingly, the UK is fifth from bottom among 27 European countries for infant mortality, and one in six children has a diagnosable mental health condition. The number of children in looked-after care is rising and we have heard terrible stories of children whose lives have been lost through abuse and illness.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Tyler of Enfield and Baroness Finlay of Llandaff

Tuesday 26th February 2019 Lords Chamber

[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.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Tyler of Enfield and Baroness Finlay of Llandaff

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I have listened to the debate and have ended up feeling slightly puzzled. If we are looking at how we improve the quality of life of “P”, what they experience day to day in how they are looked after is what influences that quality of life—in other words, how well the care plan is planned and executed. It cannot be just about the planning phase but about how well it is executed and how that execution of the care plan is monitored, day to day and week by week. In a care home, the person ultimately responsible for care plans has to be the manager because you must have a vertical structure, even though the plans may well be written by staff at a different level. If a person is in supported living, someone will be responsible for overseeing the care and provision in that supported living arrangement by dint of it being supported. Therefore, that must also be planned for and it will not be a care home manager but somebody else overseeing their care.

I can see that there is enormous concern over care homes. We all know that there are some excellent care homes and we have all, sadly, encountered care homes that are not excellent, where one would have concerns about their ability. If we are trying to drive up a person’s experience and quality of life, and make sure that what is done is necessary—because there is no other way of managing them—there need to be restrictions proportionate to the problems that they pose. I add here that we must consult and make every effort to listen to the person. We have that in another set of amendments later.

It may be that our grouping of amendments at this stage is not right because there is so much that interweaves between them. The worry is that if we then say that the people on the ground and the care plan are not the main part of the assessment, we go back to somebody basically helicoptering in, doing an assessment, seeing how they are and going again and leaving approval—that may be for a year—without any pressure to constantly review. Later amendments seek to put pressure on to review whenever the situation changes—to make it a more dynamic situation that really reflects that people deteriorate. Fortunately, some sometimes improve but most of the time you are faced with deterioration.

The other problem is that local authorities are, we know, incredibly short of finance. We know that they already cannot cope with the burden of assessments that they are being asked to carry out. I cannot see how asking them to take back the role and possibly do three assessments rather than six will tackle the problem of the number of people needing to be assessed and thought about being far greater and not matching—I think it never will match—the resources available.

It is easy to say that we need more people to do this but realistically the number of trained and experienced people is just not there. We have to find another way forward. There is a tension because whoever does the assessment may have a conflict of interest, whether about funding the care or receiving the income from the care. Somehow we need a system that improves the quality of life of the person and is subject to scrutiny more often than just on the occasions that the assessment is done initially or when it is reviewed after a fixed time.

I wonder whether a group of us needs to go away, sit down and really try to work this through with worked examples. I should declare that at one of the meetings I had in Wales we used worked examples in different settings. When we started to work through it for supported living arrangements—that was the table I was on—it became easier to see how it could work and how the triggers could work. I am not saying it was a perfect solution. I think the intention of these amendments is superb but I worry that they might not solve the problem.

[Baroness Tyler of Enfield (LD)]

My Lords, I was not going to intervene on this group of amendments but I have listened carefully to all the points that have been put and they have all been absolutely excellent. There is a tension here, as the noble Baroness, Lady Finlay, just said. My main reaction, particularly when I read the letter from ADASS—I shall not read it out again; I have it in front of me—was of real concern. As the noble Lord, Lord Hunt, said, they are not the sort of people who say these things lightly. They do not scaremonger. They do not exaggerate. They make very carefully calculated judgments, as you would expect of people at that level. I read the letter with great concern.

I was equally concerned when I read the briefing, as mentioned earlier, from the Relatives & Residents Association. One phrase really resonated with me, about the association’s great concern that too often we were asking care managers to be judge and jury about decisions in which they were involved. That is how it was expressed. The noble Baroness, Lady Finlay, made some excellent points. We have to find a way through. It would be genuinely helpful if, as in her proposition, there was time to think about those who will be most involved, as they must be, in care planning for these very vulnerable people, and a sufficiently independent element in arrangements so that people feel that care home managers are no longer judge and jury. I do not think we are there yet. I cannot articulate it at the moment but we must work together to secure a slightly different way forward.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Tyler of Enfield and Baroness Finlay of Llandaff

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, to intervene fairly briefly, it is important that we remember that the current DoLS system has effectively fallen over. We have 108,000 people currently waiting to be assessed, so we have to do something. We cannot leave it running so there is an urgency to come up with some way forward. I remind the Committee that, whenever somebody is in a place of care such as a care home, the deprivation of liberty safeguards application—form 1—is a request for standard authorisation and has to be completed and sent in. That form asks about the purpose of the standard authorisation, and for a relevant care plan to be attached. It also asks why less restrictive options are not possible, and other things. So a degree of assessment is already going on at the care home and these forms are sent in. They are then sent to somebody to authorise them.

I worry that, in some of the briefings that we have had, it looks as though the care home manager will be able to authorise in totality, whereas, as I understand it—the Minister may correct me if I have this wrong—the care home manager will still be required to have the responsible body authorise. That responsible body will be able to look—and one would want them to look—at objections that may come forward from somebody. It is to be hoped they will go and visit if they feel there is a discrepancy between the care plan submitted and the original care and support plan that came from the local authority, which may have been involved in the pre-placement assessment that went on.

The idea behind these new approvals is that there is portability: the person may reside in one place, then be moved to hospital, go to outpatients, spend time in hospital and then come back to the care home. Within that portability, however, there is a requirement to review, if the circumstances change. We will come later to amendments that look at discrepancy between the care plan and the care and support plan as submitted. In other words, these are things that should trigger red flags in the mind of the authorising body, rather than the authorising body just being a rubber-stamping exercise, which is, I think, a misunderstanding that there may have been. If it is a rubber-stamping exercise, there are all kinds of dangers in that. Somehow, we have to filter out those people who really need an in-depth assessment and review from those people where the current processes are just burdensome, time-consuming and not contributing to improving their care. That filtering is really difficult. I offer that in the debate at this stage because it is worth looking at these forms, which I hope will be improved because there is not that much room to write on them.

[Baroness Tyler of Enfield (LD)]

My Lords, I make a brief intervention, primarily to underline the importance of two points that the noble Lord, Lord Hunt, made when introducing his amendment. Like my noble friend Lady Jolly, I fear we have no alternative other than to carry on and scrutinise this Bill. The reasons for doing something have just been set out very clearly by the noble Baroness, Lady Finlay, but I retain two really key concerns which I raised at Second Reading.

The first—referred to by the noble Lord, Lord Hunt—is that of timing and understanding the relationship with the review of the Mental Health Act. I understand that it is due in the autumn—I am not quite sure when—together with amendments to the Mental Capacity Act, given that both Acts relate to non-consensual care and treatment. It seems that the overlap between the two systems is one of the reasons why the current system is so complicated, and why so many staff struggle with it. Frankly, it is why I struggle with it so much. There must be real concerns that changes to address problems under one system will have unintended consequences for the other. Clarity is needed from the Government over when patients should be subject to one Act over the other, so that, in the words of Sir Simon Wessely, chair of the Mental Health Act review,

“arguing over the framework does not get in the way of delivering the care that the person needs”.

I could go on at length—I will not, your Lordships will be pleased to hear. I have just one more thought on this. In addition to the need for clarity on when the Mental Capacity Act or the Mental Health Act should be used, it is really important that patients do not find that they are deprived of their liberty by both Acts at the same time. There are examples of this happening, particularly when a patient has both a mental disorder and an unrelated physical disorder.

That is my first point. My second point, which was made very cogently by the noble Lord, Lord Hunt, is about the consultation that is taking place with the sector. Like everyone else, I have received a large number of briefings in the past few days. Frankly, it has been difficult to take them all on board. I have done my best. I was particularly concerned by a survey that was published only a couple of days ago by an organisation called Edge Training. I do not know it personally, I do not know exactly what else it does, but I do know that it was a survey of 900 people and nearly half the respondents were best-interests assessors, with the rest being primarily social workers, health professionals and independent mental capacity advocates. I will not go through what they said, other than to say that there were really very high levels of concern—80% this and 90% that—particularly in relation to the new roles being placed on care home managers, the potential conflicts of interest, plans to charge care home managers with deciding whether it is in a resident’s best interests to have an advocate if they lack capacity to request one, and the lack of a specific requirement to consult the person themselves about a proposed deprivation of their liberty.

My conclusion from all this is that the sort of consultation that should have gone on with the sector for a change such as this, which really has to work—this is not political, it is about something that has to work on the ground and people who do this have to understand it and feel that it does work—cannot have happened to the extent to which I think it should have happened, and that has real importance for the pace at which this can be taken forward and the consultation and implementation timescale.

Health and Social Care Bill

Debate between Baroness Tyler of Enfield and Baroness Finlay of Llandaff

Tuesday 22nd November 2011 Lords Chamber

[Baroness Tyler of Enfield]

My Lords, I will speak to Amendment 135CA in my name. We have already had a very interesting debate about what we mean by integration. Obviously, different people mean different things. The sense in which I will talk about integration is how we can encourage integrated care pathways for people who experience some of the worst inequalities in terms of access to healthcare.

Clause 20 states that the NHS Commissioning Board will encourage integrated working between clinical commissioning groups and local authorities. This is clearly welcome. However, it needs to go further. Those with the worst health outcomes often have the most complex needs and can often benefit most from integrated care. However, as is so often the case, disadvantaged groups can easily be overlooked in the overall system. The fundamental aim here is to ensure that integrated care pathways can be set up that specifically target those with the poorest health.

I will briefly explain why integrated care pathways are important for those with complex needs. A number of patient groups experience health inequalities. We all know about that, and heard about it in our previous debates. In their 2010 report, the Cabinet Office and the Department of Health identified a number of groups of people who have complex needs and as a result carry a disproportionate cost to the NHS. The report states that,

“socially excluded people often make chaotic and disproportionate use of health care services, and experience a range of barriers and issues relating to their access and quality of primary care”.

As we know, these groups include homeless people, people with mental health problems, people with drug and alcohol addictions and others.

I will give a specific example of why this is a very important issue. Homeless people have some of the poorest health outcomes in our communities. I will give noble Lords a couple of facts and figures. Eight in 10 homeless people have one or more physical health need. Seven in 10 have at least one mental health problem. Between 50 and 75 per cent of rough sleepers experience mental health disorders, including anxiety, depression, dementia and psychosis. Research by the Department of Health, again in 2010, estimated that the average age of death of a rough sleeper was between 40 and 44. I find that statistic shocking. Finally, the Department of Health estimated that this had a knock-on cost to the NHS that was four to eight times greater than that of a person in the general population.

As a result of these patients’ complex needs, barriers often exist that prevent them getting the treatment they need. Some services simply exclude them because they are deemed too difficult to deal with—too chaotic or complex. Evidence was found that one in 10 homeless people is refused access at primary care level. Integrated care pathways are crucial to provide personalised and accessible services that treat multiple problems at the same time.

I shall give a very brief example of how this can really make a difference in practice. The average age of homeless people dying while living in a St Mungo’s hostel is just over 40 years. Back in 2009 St Mungo’s began an intermediate care pilot at one of its hostels in south London. It was run by a full-time senior nurse and a health support worker. Together they worked with residents to help improve their health and well-being and particularly to prevent unnecessary admission to hospital. They also arranged appropriate discharge from hospital. As a result of this pilot there has been a marked increase in attendance at HIV services, chest clinics, dental appointments and mental health services. Calls to the London Ambulance Service have gone down by 13 per cent and hospital admissions by 40 per cent, which I think is a very significant figure.

This fits very much with the Government’s approach. Indeed, this amendment builds on the commitment to improve the health of the poorest the fastest, which has been part of these health reforms since the White Paper was published in 2010. It also builds on evidence presented by the NHS Future Forum, which stated:

“We need to move beyond arguing for integration to making it happen whilst also exploring the barriers. We would therefore expect to see the NHS Commissioning Board actively supporting the commissioning of integrated packages of care”.

In their response, the Government agreed that integration of commissioning health and social care should be the ambition for all local areas. The Government have made a number of welcome commitments to strengthen local development of pathways between health and social care providers, and we have heard about some of them this evening. They obviously see an important role for the NHS Commissioning Board working with senates and CCGs in taking this forward. Can the Minister explain how—in achieving better outcomes for those with the poorest health, as is required to reduce health inequalities—the aims of improving integrated working and the health of the poorest the fastest will be achieved in practice?

[Baroness Finlay of Llandaff]

My Lords, I have several amendments in this group. Amendment 203A has been spoken to fully by noble friend Lady Hollins, who has supported other amendments in this group. Amendment 135C would require a biannual report by the board to the Secretary of State on what has been done to promote integration. The other amendments are all designed to promote collaboration, decrease duplication and bring together primary and secondary care and public health and the diagnostic services to have better diagnosis and management of disease.

Integrated working allows patients and their carers to benefit from good primary care provided by GPs and others in the team, to have help and support provided by those working in social care, and to access early referral, appropriate investigation and treatment as required from specialist services. Good integrated care needs to see the patients and their experience in the context of their lives, social support, relationships, cultural experience, gender and a range of other factors. Bringing together an integrated social and clinical approach should include holistic plans for diagnosis, treatment, rehabilitation, support and long-term follow-up.

In their report Teams without Walls, the Royal College of Physicians, the Royal College of General Practitioners and the Royal College of Paediatrics and Child Health highlighted the recommended use of patient pathways as the building blocks for services, with the right balance between prevention, early identification, assessment, intervention and, where necessary, long-term support. They also pointed out that this had implications for commissioners, providers and regulators of services. Multi-professional working with the patient at the centre of everything provides the opportunity for a wide range of professionals, including those outside an organisation, to monitor care delivery and challenge standards. This will help prevent trusts and professionals from becoming insular. Insular practices can result in negative cultures developing and poor standards becoming tolerated.

The clinical commissioning groups have quite a challenge facing them if they are really to commission and develop integrated as opposed to fragmented care. Much has been said on this already, and I will not repeat the points made by previous speakers. However, patient needs will be better met if we move to a tariff structure that better reflects clinical complexity. The Government’s response to the Future Forum report seems to recognise this, but the current tariff structure overcompensates for simpler conditions and consistently under-compensates for more complex and unpredictable areas of care. To encourage integrated working, consideration needs to be given to a system in which payments are received over a longer term and for the achievement of integration and good clinical outcomes. To do that, it will be crucial for Monitor and the Commissioning Board working closely with royal medical colleges and specialist societies to develop a tariff that will provide integrated care.