Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Tyler of Enfield and Lord O'Shaughnessy

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

[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.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Tyler of Enfield and Lord O'Shaughnessy

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

[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.

Child and Adolescent Mental Health Services

Debate between Baroness Tyler of Enfield and Lord O'Shaughnessy

Wednesday 24th October 2018 Lords Chamber

[Baroness Tyler of Enfield]

To ask Her Majesty’s Government what is their most recent assessment of access to treatment in Children and Adolescent Mental Health Services.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy)]

My Lords, the Government are improving and expanding access to children and young people’s mental health services. Because of the additional £1.4 billion available for these services, we expect that an extra 70,000 children and young people will access NHS specialist mental health services each year by 2021. We are either on track or exceeding waiting time targets for eating disorders and early intervention in psychosis, and the plans published in the Green Paper will further widen access to mental health support.

[Baroness Tyler of Enfield (LD)]

I thank the Minister for his Answer. Last week, Action for Children reported that one in three young people now have mental health issues. It also estimated that only a quarter of those who need help are currently able to access treatment from NHS services; this is quite often because they are not considered “ill enough”. I am particularly concerned by the often non-existent provision of crisis care for young people who are experiencing suicidal thoughts, self-harming, or just desperately needing help, often in the evening or at weekends—certainly outside of nine-to-five office hours. Could the Minister say whether setting up 24/7 crisis care provision for children, young people and their families will be a key priority for the Government in the forthcoming NHS long-term plan?

[Lord O'Shaughnessy]

I certainly think that is an interesting idea which I am very happy to feed into that process. I know the noble Baroness is a great campaigner on this issue, and the numbers of young people who are suffering from mental health problems are, frankly, terrifying. On the point about access, she was right that around one in four children and young people have been able to access these services. Our ambition, which we are on track to meet, is that this should rise to 35%. Clearly, we ought to reach 100%, but that involves recruiting a very large workforce, which we are in the process of doing.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Tyler of Enfield and Lord O'Shaughnessy

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

[Baroness Tyler of Enfield (LD)]

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

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

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

[Lord O'Shaughnessy]

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

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

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

National Health Service: Mental Health Funding

Debate between Baroness Tyler of Enfield and Lord O'Shaughnessy

Wednesday 20th June 2018 Lords Chamber

[Lord O’Shaughnessy]

The noble Baroness makes an excellent point. The emerging science tells us that heading off mental illness in adolescence is critical to ensuring that it does not deepen and become more severe in later life, with great human as well as economic cost. At the moment, the mental health budget for children and young people does not reflect the burden that children and young people have, which is why the Prime Minister announced an extra £1.4 billion for children and young peoples’ services, as well as £300 million on top of that to support the plans set out in the child mental health Green Paper.

[Baroness Tyler of Enfield (LD)]

My Lords, the Minister has already referred to the mental health investment standard, but recent figures issued by the Royal College of Psychiatrists show that 15% of clinical commissioning groups are not following NHS England’s instruction to increase the proportion of their spend on mental health. What practical steps are the Government taking to ensure that all CCGs meet this standard?

[Lord O'Shaughnessy]

The noble Baroness is quite right in her figures: it was 85% compliance in 2017-18—175 of the 207 trusts. It has to be 100%. It will be independently audited and reported against. Indeed, interventions will take place if that does not happen.

Carers: Health and Well-being

Debate between Baroness Tyler of Enfield and Lord O'Shaughnessy

Tuesday 12th June 2018 Lords Chamber

[Lord O’Shaughnessy]

The importance of respite care is agreed by everybody. I point my noble friend to the better care fund, which provides around £130 million a year to support respite care and carers’ breaks, building on the commitment made in the Care Act 2014.

[Baroness Tyler of Enfield (LD)]

My Lords, the action plan contains a number of generalised statements about the need for health and social care professionals to have improved understanding and awareness of the needs of carers. What specific plans do the Government have to ensure that social worker training—both initial training and later professional development—contains practical guidance on how to identify carer fatigue and distress and ensure that carers receive the support to which they are entitled?

[Lord O’Shaughnessy]

The noble Baroness makes a very important point. Indeed, in the carers action plan there is a specific commitment from the department to work with local authorities to improve social work guidance in terms of spotting carers, many of whom are not even aware that they are formally designated as carers, and signposting them to the right support. There will also be an awareness-raising campaign among social workers so that they understand their duties.

Children and Young People: Mental Health

Debate between Baroness Tyler of Enfield and Lord O'Shaughnessy

Wednesday 28th March 2018 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, given that the number of child and adolescent psychiatrists has declined by over 6% since 2013, and the number of mental health nurses by more than that, will the Government agree to consider the recommendation from the Royal College of Psychiatrists to add child and adolescent psychiatrists to the national shortage occupation list?

[Lord O'Shaughnessy]

There has undoubtedly been an impact on mental health nursing. In fact, the widest definition of the mental health and learning disability workforce according to the latest workforce stats is up by around 3,000 full-time equivalent posts. But we agree that more needs to be done. That is why there is an ambition to bring in 4,400 more mental health staff to support children and young people over the next few years. It is also reassuring to know that there are 8,000 mental health nurses in training at the moment.