Mesothelioma: Research Funding

Baroness Wheeler Excerpts

Thursday 16th January 2014 Grand Committee

[Baroness Wheeler (Lab)]

My Lords, I also commend the noble Lord, Lord Alton, for securing this debate and for ensuring that we keep the focus on the Government’s pledge on a package of measures to stimulate and build high-quality research into mesothelioma. There is optimism that progress is slowly being made but we are a long way from getting the secure and guaranteed funding on the scale we all want to see and which we recognise is vitally needed to offer hope to mesothelioma sufferers and to find a cure.

Noble Lords, and supporters of the Bill across all parties in the other place during last week’s Third Reading, have stressed our moral obligation on this issue in this country and internationally, as my noble friend Lord Giddens has underlined today. I also pay tribute to the vital contribution and role of Paul Goggins. I did not know him personally but certainly was fully aware of his work and reputation in my party, and of the respect in which he was held across Parliament. Now that the Bill has passed, I also pay tribute to the work of the British Lung Foundation and the campaigners, trade unions, MPs and Peers who have been lobbying for many years for justice for victims of this terrible disease. The BLF carer support project, in conjunction with Carers UK, is also developing vital support networks for carers and their families. It deserves special mention and recognition.

The Government have agreed that the scheme regulations will provide for a review of the operation and effectiveness of the scheme in four years’ time, which we welcome. On research funding, we must ensure that considerable progress has been made by then. The noble Lord, Lord Kakkar, again has ably underlined the need for a strategic, defined national initiative on mesothelioma research. I look forward to hearing from the Minister what actions are being taken on this. How will the current initiatives his department and the DWP are rightly pursuing be developed and built into a coherent strategy which will lead to real progress being made?

There is no doubt that the mesothelioma research programmes funded by the BLF itself, as well as jointly with the four insurance companies, and by other charities, have played an important role in kick-starting research and academic interest and laying the foundations for future developments. The meso-bank which is collecting tissue and blood samples from sufferers will provide the opportunity for fundamental and translational research. There are important projects too on palliative care and pain relief. I notice on the BLF website that it has recently awarded a further tranche of grants which will help to improve understanding of how the disease develops and progresses, and how our genes contribute to the disease.

We strongly supported the amendment in the name of the noble Lord, Lord Alton, for the 1% levy on the insurance companies, which would have provided secured and guaranteed research funding, and could have led to major advances and breakthroughs. It was sad to see this amendment again defeated in the Commons last week. As our shadow Minister, Kate Green, said, the levy,

“is very modest in the context of the overall scheme … a very modest sum for a multibillion pound insurance industry to afford, but a sum that could make an exponential difference to the scale of research that is possible into the disease”.—[Official Report, Commons, 7/1/14; col. 201.]

As we have heard, the DWP Minister of State, Mike Penning, cited the quality of research issue—on which there are clearly differing views among medical and research experts—but also rejected the amendment on the basis that it would “break the deal” with the insurance industry on the whole compensation scheme. It will be interesting to get further insight from the Minister today on why the insurance industry saw this issue in this way. I, too, look forward to the update on the ABI discussions that was promised by the Minister.

We know that the terrible reach of mesothelioma extends across all occupations and is not just an industrial disease. Indeed, it is anticipated that in the coming years more people will be diagnosed from all occupational backgrounds who have come into contact with asbestos or who contracted it via secondary exposure, such as wives who washed their partners’ overalls.

I was particularly concerned to learn of the huge problem of asbestos in schools, to which the noble Lord, Lord Wigley, referred. The risk or impact is not just on teachers but on children and ancillary and office workers. More than 70% of schools still contain significant amounts of asbestos. I am sure the Minister will agree that this frightening situation underlines the importance of making real and substantial progress on mesothelioma research, not just into treatment and cure but also into how the workplace can be protected.

Like other noble Lords, I look forward to hearing from the Minister what progress is being made on the joint DWP and Department of Health initiatives, and on the Government’s plans and timescales for developing the full-scale strategy for mesothelioma research that is so desperately needed.

NHS: Essential Services

Baroness Wheeler Excerpts

Tuesday 14th January 2014 Lords Chamber

Asked by

[Baroness Wheeler]

To ask Her Majesty’s Government, in the light of the Dr Foster Hospital Guide 2013, how NHS England is monitoring access to essential services and how it intends to address variations in access to and provision of services at clinical commissioning group level.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, to help reduce variations in access to health services, Professor Sir Bruce Keogh, the medical director of NHS England, is working with the medical royal colleges and others to ensure that the NHS is clear about the evidence base for common types of surgical interventions. For example, it will produce guidance for commissioners to help ensure that consistent eligibility criteria are used to access surgical services and so minimise the scope for variation at a local level.

[Baroness Wheeler (Lab)]

I thank the Minister for his response. Dr Foster’s report shows that the number of knee and hip replacements and cataract removals has fallen to its lowest level in four years, meaning that more than 12 million people now live in areas where the number of these operations has substantially declined. This is despite our elderly population continuing to rise over the same period and these common surgical procedures being vital to ensuring that older people can regain their mobility, keep active and stay living in the community. Does the Minister agree that these are essential treatments? What pressures will be placed on NHS England to ensure that CCGs actually provide them and also that they fulfil their legal obligation to issue guidance to local communities, revealing what their policies are on providing medicines, surgeries and therapeutic interventions?

[Earl Howe]

My Lords, I should first tell the noble Baroness that we cannot reconcile our own figures with those of Dr Foster. We believe that there has in fact been a significant increase in the number of cataract and knee and hip replacement operations since 2009-10 and not a drop. Regardless of that, I suggest to her that the absolute numbers of operations taking place do not tell us anything about possible rationing or the absence of it. That question can be answered only with the benefit of fuller data. The key to consistent access to these treatments is a common understanding among commissioners of the evidence base in each case. That is exactly what Sir Bruce Keogh is working towards and will provide guidance on in due course.

World Innovation Summit for Health

Baroness Wheeler Excerpts

Monday 16th December 2013 Lords Chamber

[Earl Howe]

My Lords, in broad terms, dementia falls outside the scope of mental health but it is, of course, closely allied. Many of the principles that apply to good mental health care apply equally to dementia. We are, again, doing our best, in responding to the Prime Minister’s challenge on dementia, to ensure that those who contract this dreadful condition are looked after with dignity and respect in the appropriate setting.

[Baroness Wheeler (Lab)]

My Lords, the WISH report, to which the Government are signed up, recommends key improvements to community care for mental health by 2020. Yet the recent FoI survey of 51 NHS mental health trusts by BBC News and Community Care magazine shows overall budgets shrinking by over 2%, including those for community mental health support teams, despite referrals to them rising by 13%. How is this consistent with pledging to achieve the WISH goal by 2020? What leadership and direction will the Government give to preventing this very disturbing situation from getting worse?

[Earl Howe]

My Lords, we need to hold the NHS to account by reference to the outcomes that it achieves. I do not belittle the need to spend sufficient sums of money. The National Survey of Investment in Adult Mental Health Services has indicated that reported spend on mental health services has continued to hold reasonably steady over time. I reiterate that mental health and well-being is a priority for the Government, as I hope the noble Baroness knows. We have clear indicators in the NHS outcomes framework, which will ensure that NHS England will need to focus on this area very closely.

NHS: Walk-in Centres

Baroness Wheeler Excerpts

Tuesday 10th December 2013 Lords Chamber

Asked by

[Baroness Wheeler]

To ask Her Majesty’s Government what plans they have in respect of the closures of NHS walk-in centres over the past three years, in the light of the preliminary report made by Monitor.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, since 2007, the local NHS has been responsible for NHS walk-in centres. It is for local commissioners to decide on the availability of these services. It is also for local commissioners to determine how walk-in centres fit into plans locally, rather than being governed by a top-down imposition of services. They make such decisions by involving patients and by using their clinical expertise to determine the pattern of local services and where walk-in centres fit in with this.

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[Baroness Wheeler (Lab)]

I thank the Minister for his response. However, 76 NHS walk-in centres have been closed over the past three years and the Monitor report makes clear that this is often without proper consultation locally on alternative provision, leading to increased pressure on A&E and urgent care services. In Monitor’s survey, one in five patients using the centres said that they would have visited the nearest A&E department had the centre not been there. Monitor also finds in a number of cases that the closure decision has been made by CCGs, with member GP practices themselves having a financial interest in whether or not the service continues. What action will the Government take to ensure that, if future closures of walk-in centres are considered, the public will be properly consulted and patients will have access to an equivalent level of service?

[Earl Howe]

My Lords, when any service change is proposed, we expect that the four tests which the Government laid down early on in their term of office should be followed. One of those is a patient and public consultation or involvement in the decision. Another is clinical buy-in. I can give the noble Baroness the assurance that this is what local area teams of NHS England would expect to see in any proposals involving the closure of a walk-in centre.

NHS: Clinical Commissioning Groups’ Funding of Treatment

Baroness Wheeler Excerpts

Tuesday 12th November 2013 Lords Chamber

Asked by

[Baroness Wheeler]

To ask Her Majesty’s Government how many types of treatment Clinical Commissioning Groups have decided not to offer to patients since April 2013.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, clinical commissioning groups are now responsible for commissioning services and treatments for their local populations, with NHS England providing oversight and support. NHS England has advised that it does not routinely collect data on the number and type of treatments that CCGs have decided not to offer to patients. We have been clear: restricting access to services on the basis of cost alone is wrong and compromises patient care. Commissioning decisions should be made using clinical evidence and best practice guidance.

[Baroness Wheeler (Lab)]

I thank the Minister for his response. Is he not concerned about the recent British Medical Journal survey, which showed that since CCGs took over, one in seven have introduced new treatment restrictions, including treatment for hip and knee replacements, cataracts, and caesarean births for non-medical reasons? What steps are the Government taking to ensure regional and national monitoring and consistency of treatment policies across the NHS? Moreover, the Royal College of Surgeons is concerned that so few CCGs are meeting their legal obligation to publish guidance on how they will provide medicines, surgery and therapeutic interventions. This was meant to provide transparency in rationing decisions. What will the Government do about it?

[Earl Howe]

My Lords, the availability of some healthcare services is determined nationally; for example, under NICE technology recommendations. Some services are commissioned directly by NHS England, but in most cases decision-making on whether to fund a service or treatment is left to the local CCG or local authority. That is to enable CCGs and local authorities to commission services that best fit the needs of their local population. For such decision-making it is very important that the process is rational, transparent and fair. The right contained in the NHS constitution ensures that that happens. If a CCG decides that a treatment will not normally be funded, it needs to be able to consider whether to fund that treatment for an individual patient on an exceptional basis.

Care Bill [HL]

Baroness Wheeler Excerpts

Tuesday 29th October 2013 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I support the noble Lord, Lord Patel, because I agree that this is an extremely worrying issue. Focusing on prisons, there is an increasing number of elderly prisoners, as has been reported, and it is quite clear that the prison medical authorities are not capable of looking after all their needs. For example, people have talked about dementia and other problems of increasing age, and it is of concern that those people are not being properly looked after.

I am also very concerned about the use of the words “probation trusts” because they are about to go. According to the Transforming Rehabilitation agenda, which the Ministry of Justice has released, they are to be replaced by directors of rehabilitation in various parts of the country and/or private companies acting as rehabilitation companies responsible for services. What we do not know from the Ministry of Justice is exactly how many people are to stay with the existing probation service, which has been given a lot of responsibilities that do not include running probation hostels, which is currently a probation responsibility. Nor have I seen any mention of this accommodation in the transforming rehabilitation agenda that has been produced. Therefore, this matter needs following up. Within a year would be a very useful timeframe, because it would allow a follow-up of what is happening in the Ministry of Justice to be conducted.

[Baroness Wheeler (Lab)]

My Lords, from what my noble friend Lord Patel has said, it is clear that the issue of safeguarding inquiries is not at all sorted. He has highlighted a substantial gap in the Bill that could have a very serious impact on some of the most vulnerable people in our communities and prisons. He rightly seeks equivalence of care and protection for adults detained in prison and those residing in approved premises such as bail hostels—care and protection that all other vulnerable adults have when it comes to safeguarding inquiries by local authorities. We take on board his deep concerns about prisons and what appears to be a lack of co-ordinated and clear responsibilities in respect of safeguarding inquiries. I ask the Minister to look further into the matter, as my noble friend suggested.

My noble friend raises some key issues on whose responsibility it is to carry out a safeguarding inquiry for adults living in the community in approved premises. Given all the uncertainty about future service delivery as a result of the Government’s major reorganisation and break-up of the probation service, if that responsibility is currently with the local probation trust, this amendment, which calls on the Secretary of State to report to Parliament within one year of this clause of the Bill coming into force, becomes even more necessary. To require the new community rehabilitation companies or their successor bodies to account for how they have discharged their responsibilities for safeguarding adults residing in approved premises is an acceptable way forward.

I look forward to hearing from the Government about how they intend to deal with the matter in the light of the serious concerns expressed by my noble friend today and in previous discussions on the Bill, and in light of the huge confusion that will result from the proposed changes to the probation service. I very much hope that the Minister will be able to support my noble friend’s endeavours to fill what is potentially a serious gap in the Bill, and to ensure future adequate protection of these vulnerable adults.

[Earl Howe]

My Lords, I will begin by making absolutely clear that we agree that all prisons and approved premises should have arrangements for safeguarding the adults in their care. They should have a comprehensive policy that is understood by all staff and which ensures that vulnerable adults are identified and given appropriate support. I hope that we also agree that we cannot relieve prisons and probation providers of their duty of care by imposing a duty on a local authority to make safeguarding inquiries into suspected abuse or neglect in a prison or approved premises.

We need clear guidance for prisons, probation providers and local authorities to ensure that the procedures within prisons and approved premises are informed by best practice and local expertise. My officials will work with the Ministry of Justice and the National Offender Management Service, together with the Association of Directors of Adult Social Services and other stakeholders, such as the Prison Reform Trust, to develop instructions and guidance for prisons, probation providers and their local authorities. Those instructions and guidance will be in place by the time the Bill is implemented and will give improved clarity about the Prison Service and probation providers’ roles and responsibilities in safeguarding adults in their care, including the need to have a whole-institution approach to safeguarding, and cover their relationship with the local safeguarding adults board.

The Ministry of Justice encourages prison and probation staff to be involved with local safeguarding adults boards. The guidance on how safeguarding should be carried out in conjunction with local authority partners can draw attention to the duty in Clause 6 that local authorities and their partners must co-operate in the exercise of their respective functions relating to adults with needs for care and support. The guidance will be consistent with the broader advice and guidance on safeguarding adults in the community to ensure that good practice on safeguarding policies and inquiries is routinely shared.

In addition, the guidance will set out clearly the need for locally agreed relationships with local safeguarding boards, including clear local protocols around the circumstances for involvement of local SABs. The guidance will also make clear how prison and probation staff can benefit from the expertise of social services and local authority safeguarding teams.

For approved premises, the probation provider has a clear responsibility in relation to safeguarding but there is nothing to prevent it seeking advice from either the safeguarding adults board or the local authority safeguarding team. This already happens in many areas. Since a local authority’s duties in relation to safeguarding would not extend to safeguarding adults who are at risk of abuse or neglect by reason of their detention or their offence, a joint approach would be much more effective where there is a particularly difficult safeguarding challenge in an approved premises.

Her Majesty’s Inspectorates of Prisons and Probation and the Prisons and Probation Ombudsman will take account of the guidance and local agreements and make recommendations for improved practice, if relevant, when inspecting services and investigating complaints within the prison and probation services.

I wish to be clear in answering the noble Lord, Lord Patel of Bradford, who said that the document No Secrets said that local authorities have responsibility for safeguarding in approved premises. Local authorities do not have a statutory duty at the moment. It is the duty to conduct inquiries that will not apply—not that local authorities cannot conduct an inquiry if invited to by the probation trust or provider. Guidance and probation instructions will provide further detail on how local authorities and probation trusts, as they currently are, can work together at a local level. The guidance will go to all probation providers who run approved premises. Probation services will be contracted out in due course, so these will be approved premises provided by the probation service and by voluntary or private providers. The guidance will make it clear that the provider running the accommodation has a duty of care and a safeguarding responsibility.

I hope that, with those assurances and clarifications, the noble Lord will feel able to withdraw his amendment.

Care Bill [HL]

Baroness Wheeler Excerpts

Monday 21st October 2013 Lords Chamber

[Lord Patel]

My Lords, I rise to support the amendment in the name of the noble Lord, Lord Aberdare. He is extremely knowledgeable about issues relating to pancreatic cancer. While the principles of early diagnosis and related outcomes are important for all diseases, this is particularly so for cancers and especially for certain cancers, such as pancreatic cancer. I have spoken before in this House about how two members of my family—my mother and my mother-in-law—both died of pancreatic cancer. Emphasising the need for early diagnosis of any disease is important in the training of doctors and nurses.

[Baroness Wheeler (Lab)]

My Lords, we very much welcome this important group of amendments. If one reads back over the debates on the Bill in Committee, there can be little doubt that the provisions for HEE and LETBs have been considerably strengthened and improved by your Lordships’ detailed scrutiny and deliberations. These amendments consolidate that work.

We have also been encouraged by the progress that HEE has been making under the leadership of Sir Keith Pearson. The website demonstrates this, and the HEE leadership team has been highly visible at conferences and forums, setting out its proposed strategic priorities and consulting on the way forward. In particular, HEE seems to have taken up the key message that, in educating and training staff for NHS and public health, it must have a strategic understanding of the workforce requirements across the boundaries of health and social care and of the need for staff to work in an integrated way. This has been a major concern. I was pleased, for example, to hear the HEE medical director, Wendy Reid, emphasise this at a recent Westminster Health Forum workforce conference that I chaired.

These amendments strengthen the role of LETBs by emphasising that HEE duties under Clause 89 to ensure that quality improvement in education and training, promotion of research—as the Minister has stated—and the NHS Constitution all apply to LETBs. This is an important provision and reflects concerns expressed in Committee that LETBs must pay attention to the maintenance of standards and quality in education and training, as well as ensuring that sufficient numbers of staff are trained locally. This was a point made by my noble friend Lord Turnberg and which the Minister addressed earlier.

Amendments explicitly providing HEE with authority to delegate its functions to its committees, sub-committees, members or other persons are important in allowing HEE the flexibility that it needs to deliver its priorities and functions, and we strongly support them.

On HEE board and LETB representation, we join other noble Lords in expressing our relief at the government amendments, which ensure that people with clinical expertise are appointed to both bodies. This was a serious omission and its inclusion now greatly strengthens the Bill, as does the Government’s commitment that regulations will place a specific requirement on HEE and LETBs to include a nurse and a doctor. It is particularly important, as my noble friend Lord Hunt underlined in Committee, for the people in the driving seat on education and training requirements, standards and future needs at local level to be those who provide the services. HEE and LETBs must understand the pressures that the service is under in relation to staffing and to ensuring that education and training is flexible and responsive to the rapidly changing face and needs of health and social care. The implementation of the Francis recommendations for a lay patient representative on the HEE board and LETBs is also a key change to the Bill, which we strongly welcome and which will only enhance the work and effectiveness of those bodies.

Finally, as supportive of HEE as we are, it is hard to see in HEE work to date a clear strategy for developing the vital cadre of NHS managers that is needed to lead the NHS in the coming months and decades. There was a strong concern about this in Committee and the need for close working with HEE and the NHS Leadership Academy was acknowledged by the Minister. The Joint Committee wanted to see a statutory commitment for HEE to work in partnership with the academy, to ensure that managers in training work alongside their clinical colleagues and to increase the number of managers in the future who have clinical experience. Does the Minister not agree that this needs to be an explicit, upfront priority for HEE, which translates through to the work of LETBs? How will the Government ensure that this vital issue is addressed?

[Earl Howe]

My Lords, I turn first to the amendment in the name of the noble Lord, Lord Aberdare. He has, of course, raised a very important matter. I think that it would be too ambitious for me to offer him complete comfort on this issue at the Dispatch Box, but I hope that I can give him some. It is essential that patients have their conditions diagnosed promptly and effectively. Both Health Education England and the other responsible bodies, such as the professional regulators and royal colleges that are involved in setting the standards and content of education and training, must work together to ensure that the latest best practice is followed to deliver the best possible outcomes for patients. That is fundamental.

Going further, I reassure the noble Lord that in delivering its education and training functions, Health Education England will be very focused on doing so in a manner that supports the efficient delivery of NHS and public health services and the achievement of the best possible outcomes for patients. Health Education England has a clear duty in Clause 89 to exercise its education and training functions with a view to securing continuous improvement in the quality of health services. Those are not idle words; they are significant.

It is also important to remember that the NHS Constitution includes pledges on access to NHS services, including the right to access services within maximum waiting times. The Government are clear that bodies in the new health system must support the NHS constitution, which is why in Clause 89 there is a clear duty for Health Education England to promote the NHS constitution.

Finally, the list in Clause 91 of matters that Health Education England must have regard to includes the Government’s mandate to NHS England. I reassure the noble Lord in that context that the mandate already contains an explicit objective for NHS England to make progress in supporting the earlier diagnosis of illness as part of preventing people from dying prematurely. I acknowledge that this is a very important matter. I hope that for the reasons I have set out the noble Lord will feel somewhat comforted and reassured, at least enough not to press his amendment. I have no doubt that this is a debate that we will continue to have at reasonably regular intervals.

The noble Baroness, Lady Wheeler, asked what role Health Education England will play in developing NHS managers and whether it should be a priority for it. Health Education England is working closely with the Leadership Academy to support the development of the next generation of managers and clinical leaders. The Government included this as an objective in Health Education England’s mandate.

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[Lord Mackay of Clashfern]

I also agree with the view that these are important headings. The precise detail has been mentioned by the noble Lord. Regarding paragraph (c) of Amendment 167, I think that access to the data is quite important although it requires consideration. It is important that the experiment or trial can be repeated. One of the difficulties in the past has sometimes been the announcement of research findings. When those in the same area tried to find out exactly what the findings were based on, there was some difficulty in repeating the experiment and occasionally there was something seriously wrong with the research. Therefore, access to the data certainly has to be kept in view if one is going to have proper transparency. However, I accept that, like paragraph (c) of Amendment 167 and the other paragraphs, it requires an amount of restriction in certain cases.

[Baroness Wheeler]

My Lords, I welcome the Government’s decision in Amendment 167 to support the recommendation of the Joint Committee on promoting transparency in research and ensuring full publication of the results of research consistent with patient confidentiality. It is right that this should be a statutory objective of the Health Research Authority. The arguments in support of this at the Committee stage from noble Lords were very compelling and, since then, have been strongly reinforced by the House of Commons Science and Technology Committee report into clinical trials and, indeed, the strategy and ongoing work undertaken by HRA itself.

In particular, HRA’s September announcement requiring registration of clinical trials in a publicly accessible database as a condition of ethical acceptance—taking up a longstanding recommendation of the Association of Medical Research Charities—recognises the overwhelming support for this agenda. The HRA has much to do in the coming months to develop its guidance into practical measures, but the Bill now gives clear and explicit direction to its work. The HRA has stressed that it expects the vast majority of researchers, sponsors and funders to embrace the plans to realise greater openness, responsible data sharing and publication of all results, and this is very welcome news.

It is so important for patients and the public to have confidence that the research they have been involved in will be used in the best way to improve understanding and health outcomes for the groups involved. Improved transparency is vital if more patients are to be encouraged to become involved in clinical research—one of the key ambitions of AMRC’s excellent vision for research in the NHS. The noble Lord, Lord Willis, referred to reservations. I was going to raise them and I am glad he did. I look forward to the Minister’s response. He may need to write to us in detail about those reservations and his response to that, or there might be a need for some small rewording of the draft provisions before Third Reading.

Finally, we recognise that the HRA is strongly committed to working with other bodies to overcome the barriers to transparency and create a culture of openness. Changing culture is, however, a tough call in the NHS. We also know from the AMRC research survey covering both doctors and nurses that we have a long way to go to get NHS staff to take part in research in the first place, let alone sign up to the transparency agenda. GPs are an important gateway for getting patients involved in research. However, although a majority of GPs surveyed believed it very important for the NHS to support research and treatment for their patients, only 32% of those surveyed felt it was very important for them to be personally involved. Will the Government ensure that HRA and HEE work closely on this very important issue of buy-in to research and transparency by NHS staff? How will they ensure that the CCGs fully engage in this agenda?

Care Bill [HL]

Baroness Wheeler Excerpts

Wednesday 16th October 2013 Lords Chamber

[Baroness Barker (LD)]

My Lords, I wish to indicate my support for the continuance of Section 117, as I have done on many occasions before, not least during the passage of the most recent Mental Health Act—when various people, whom I shall not embarrass now by saying who they were, did indeed stand up to defend some of it—because it works.

When the Law Commission first made this proposal in its report, I had occasion to talk to that body. The noble Lord, Lord Patel, is right; the commission relies very heavily on the Mwanza case, and there is a great deal of dispute about the advisability of doing that. The question that I had when I first met the Law Commission still remains: when everything else in the legislation is geared towards enabling health and social care to work together to enable the transfer of people from acute health settings back into the community, why rip up the one piece of legislation that has been there doing that for 30 years? It is not just that some of us see Section 117 as being important with regard to the individuals whom we might know or come across; rather, we see it as an important means of bringing about the transfer that some of us have long hoped would happen in mental health services whereby, instead of having patients who revolve between acute and the community, we could have proper care planning in which people’s mental health needs were addressed by some of the same people, whichever setting they were in. It is not just about trying to preserve a pot of money; it is about trying to keep open a pathway to good and better practice. That is why the noble Lord, Lord Patel, as he always does in this area, has presented the House with a very persuasive argument. I have not yet fully understood why the department feels the need to make the changes that it is making.

[Baroness Wheeler]

My Lords, we fully support my noble friend in his valiant efforts once again to try to get this important issue on mental health aftercare sorted out. We recognise the Government’s concession in removing “the” from subsection (5)(a), but my noble friend is right that there still remains the very real risk that leaving the rest of the subsection in place could lead to local authorities arguing that,

“a need arising from or related to a mental disorder”,

was the requirement only to provide psychiatric, medical and follow-up services.

The statutory definition of aftercare services in the Bill is confusing because it separates out the needs arising from the person’s mental disorder from the need to reduce the risk of deterioration in the person’s condition and the risk of readmission to hospital. My noble friend’s amendment would instead define aftercare services as those services that reduce the risk of deterioration in the person’s mental condition and the likelihood of the person requiring readmission to hospital.

It is right that the definition of aftercare services focuses on reducing the likelihood of hospital readmission and does not lead to confusion or legal disputes about a local authority’s role in this or what services should be provided under Section 117 of the Mental Health Act. It is also right that aftercare continues to be viewed as a comprehensive range of generic services across healthcare, social care and other services such as suitable accommodation and community support.

Amendment 128A is a compromise offered by my noble friend that I hope the Government will take up because, as he said, he would prefer to delete Clause 5 entirely, so that the current position in relation to Section 117 remains unchanged. Mind, the mental health and disability committee of the Law Society and the Mental Health Lawyers Association all consider that the best way to avoid confusion over the definition of aftercare is to remove Clause 71(5)(a) altogether.

I hope that the Minister will have some good news for my noble friend and for other Lords who, too, are very frustrated that the mental health aftercare issue has not been laid to rest in the way we thought it had under our discussions as far back as on the Health and Social Care Bill.

[Earl Howe]

My Lords, I first would like to echo the comments made by my noble friend Lady Northover during Committee, when she paid tribute to the excellent work of the noble Lord, Lord Patel of Bradford, in the mental health field.

I think we can all agree that setting out a definition of mental health aftercare in legislation is important. A clear legal definition will mean that the scope of aftercare will no longer be entirely open to interpretation by the courts, whose views have varied over time. The question is what that definition should be. As updated by government Amendments 129, 130 and 131, our proposed definition contains a carefully framed duty that reflects the Government's policy on the appropriate scope of the duty to provide free aftercare services for a very small group of patients who have been detained for treatment under certain sections of the Mental Health Act. It has carefully drawn limits because the Government do not consider that it would be appropriate for the Mental Health Act to impose a duty on local authorities to commission services that are based on needs which neither arise from, nor are related to, a mental disorder.

Therefore we believe that the amendment tabled by the noble Lord, Lord Patel of Bradford, goes too far and would create an inequity between this group of people and others with equivalent needs for care and support who are not eligible for free aftercare, either because they have been detained under other provisions of the Act or not detained at all. They will be means tested and will have to meet eligibility criteria for the social care part of their aftercare package, so may not receive any social care from the local authority. In addition, with an ageing population, local authorities will have to be able to differentiate “mental health aftercare” in order to know when the “aftercare” finishes and ongoing support for other reasons begins.

The noble Lord suggested that the case of Mwanza was not a stable basis for primary legislation. He said that it is, after all, only one case. There is a bit of a misunderstanding around this. The Mwanza case merely triggered a debate; the issue is whether the definition is a good idea and, if so, how it can most helpfully be drafted. The Government’s definition of mental health aftercare services builds on the definition recommended by the Law Commission. The Government accepted the recommendation of the Law Commission as a sensible starting point, but we have gone further. We propose a wider definition than that suggested by the Law Commission, including that Section 117 services may relate to as well as just arise from the person’s mental disorder, and that the aftercare should prevent deterioration as well as readmission to hospital.

Because our definition is more precise, I feel that it will be more helpful than the noble Lord’s in ensuring that clinical commissioning groups, local health boards and both English and Welsh local authorities more easily agree on the aftercare services to be provided, so that these services can be put in place promptly.

I reassure the House that the definition we are now considering is the result of extensive consultation. In consequence, we have added a positive objective to prevent deterioration as well as preventing readmission to hospital, and have further changed the clause to remove the definite article when referring to “the mental disorder”, for which the noble Lord made the case in Committee. This is intended to remove any doubt about our intention that the scope of aftercare covers more than just one form of mental disorder, and is not necessarily limited to the specific disorder or disorders for which a person was previously detained under the Act and which gave rise to the right to aftercare.

Care Bill [HL]

Baroness Wheeler Excerpts

Wednesday 16th October 2013 Lords Chamber

[Baroness Wheeler (Lab)]

My Lords, we are very sympathetic to what the noble Baronesses, Lady Barker and Lady Tyler, and my noble friend Lady Bakewell want to achieve through the amendment in promoting the well-being, dignity, rights and welfare of older people. My noble friend Lady Bakewell, in particular, has campaigned long and hard for an older person’s commissioner and, as the Voice of Older People under the Labour Government, speaks first-hand about the job that needs to be done in government to join up policies on health, social care, housing, transport, welfare, work and pensions to address the economic and social challenges presented by an ageing society.

The importance of a cross-government overview and strategy on older people is why Labour has a shadow Cabinet Minister for Care and Older People. Liz Kendall has a vital role in ensuring joined-up policies across the range of services that must be changed and adapted to meet older people’s growing and changing needs. The importance of developing a coherent strategy and vision for our old age was recently underlined by the excellent report of the Select Committee on Public Services and Demographic Change, referred to by the noble Baronesses, Lady Barker and Lady Tyler. The noble Baroness, Lady Barker, is entirely right to say that in Ready for Ageing? the committee described the UK and its society as being “woefully underprepared”. It pointed out that the implications of an ageing society had not been assessed holistically and that it had been left to government departments,

“who have looked, in varying degrees, at the implications for their own policies and costs”.

The committee called on the Government to look at ageing from the point of view of the public and to consider how,

“policies may need to change to equip people better to address longer lives”.

When we consider that important report tomorrow, the role of an older person’s commissioner in helping to face the future and meet the challenges so graphically set out by the committee and today will be a key part of that debate

A considerable amount of work and thought has gone into the drafting of Amendment 139, but the main emphasis seems to be on rights and redress, rather than the all encompassing and unique role envisaged by my noble friend Lady Bakewell in her Second Reading speech and earlier today. That would give the commissioner effective access to planning across different government departments.

We would prefer that broad approach, and, of course, we also need to learn from the experience of the older person’s commissioners in Wales and Northern Ireland. We understand that the advocacy role has worked particularly well in Wales in promoting the rights and interests of older people and challenging discrimination.

Inevitably, costs are an important consideration. The older person’s commissioner’s salary, operational support and accountability costs would be significant. I would be interested to learn from the noble Earl whether the Government have undertaken any costing and impact work on that, as promised to my noble friend when she first raised this issue, as she said, under the Health and Social Care Bill.

[Earl Howe]

My Lords, I am grateful for the opportunity to discuss this extremely well crafted amendment, which proposes the establishment of an older persons’ commissioner. Our ambition is to make this country one of the best places to grow old in and I begin by saying that I have some sympathy with the intention behind the amendment; to ensure that older people receive the high-quality care they need and also to support them to use the complaints system effectively when things go wrong. However, disappointingly for the noble Baronesses, I cannot subscribe to the solution that is proposed in the amendment. The main reason for this is that the provisions contained in the amendment are, by and large, covered by work already being undertaken elsewhere. The interests of service users are already protected through a number of routes.

I begin by citing the role of the CQC. The Care Quality Commission’s role is to ensure providers of regulated activities in England provide people with safe, effective, compassionate and high-quality care. The new chief inspectors for hospitals, adult social care and general practice will champion the views of patients and service users and judge the quality of care. Then, separate from the CQC, the new chief social worker will ensure that social work practice is directly inputting into policy development and we now have Healthwatch, whose function it is to represent service users’ views. If noble Lords look at what we are doing in the Bill, new statutory obligations are being introduced, such as the duties to establish safeguarding adults boards and to undertake safeguarding inquiries and/or reviews. We also have the government amendment to require independent advocacy in certain cases.

Looking beyond the Bill, the vulnerable older people’s plan is working towards having an accountable clinician to ensure proactive care planning for older people and those with the most complex needs. Furthermore, we want older people to have a major voice in issues that affect them. The Minister for Care and Support and the Pensions Minister take part in the UK Advisory Forum on Ageing. This group gives Ministers the opportunity to engage with and hear directly from older people on the key issues affecting them. I suggest that all these steps, taken together, go a considerable way towards addressing the concerns at which the amendment is aimed, but I need to be clear that, to minimise the impact on the public purse, we would not envisage setting up a new public authority alongside those functions.

My noble friend Lady Barker asked why we should not have an older persons’ commissioner since there is a children’s commissioner? If an older persons’ commissioner were established, the supporting structure would potentially be very large and would cost significantly more than the children’s commissioner. This is not only because of the comparatively larger number of older people who receive services compared to children, but also because the amendment confers a wider range of functions on the older persons’ commissioner than the children’s commissioner.

Michelle Mitchell, former director-general of Age UK said last year:

“For us it’s not just about having a commissioner; it’s about ensuring that older people’s issues are central to the mainstream – not only the government agenda, but business and the public sector as a whole”.

I support that view. What matters, surely, is what is actually happening and whether the system is pulling together to make it happen. We want to ensure, quite simply, that issues affecting older people are at the heart of government business. I am happy to explore ways to further enhance the voice of older people, although without creating additional costly bureaucracies. On that basis, I hope that the noble Baronesses will feel somewhat comforted that there is a lot going on to protect the interests of older people and that my noble friend will therefore feel able to withdraw the amendment.

Care Bill [HL]

Baroness Wheeler Excerpts

Monday 14th October 2013 Lords Chamber

[Baroness Wheeler (Lab)]

My Lords, this large group of amendments reflects issues that we covered extensively in Committee. We largely support the amendments as they address the suitability of the extent to which friends and family should be acknowledged in the process of assessment of the needs of adults, carers and young carers for care and support.

The group includes amendments on young carers’ support and assessment needs in relation to the Care Bill and its interface with the Children and Families Bill, about which I spoke last week. I do not intend to go into this issue again, other than to stress our support and relief that young carers are recognised in a joined-up way in both Bills. In particular, we welcome the safeguard in this group of amendments, which ensures that local authorities are able to combine assessments relating to adults being assessed with assessments relating to young carers only with the consent of both. The new provisions also make it explicit that it will be possible to join up care plans with other types of care plan only with the consent of the relevant parties, and we welcome this too.

We were very concerned that as originally drafted, Clause 9, which sets out the assets-based approach to assessment, could have been misinterpreted and used to push greater responsibility for meeting needs from the local authority to carers, family and friends. It blurred the distinction between an assessment being about what the needs are and the ways of meeting them by looking at how needs are met by other ways through the provision of services before any decision about eligibility has been made.

Thankfully, the Government’s amendments addressing this problem are now more in accord with the Law Commission review of adult social care legislation, which made a clear distinction between consideration of care and support needs and how the needs should be met. On specialist assessments, we are pleased to see the amendments upholding the current practice and guidance, which provide for assessments to be undertaken by people with expertise. It is an issue on which the House expressed itself very strongly, especially the need for specialist assessors in the case of people with complex health or mental health needs. The noble Lord, Lord Low, and the noble Baroness, Lady Meacher, have set out these issues again today very clearly, and I look forward to the Minister’s response to their questions on the outstanding issues.

Finally, I support the intention of my noble friend Lord Dubs in Amendment 60 to ensure that the care and support plan provides contingency planning for an emergency, such as the carer suddenly being ill or unable to provide care. The self-directed assessment model does include discussion on contingency and risk but the extent to which clear provision is covered in the care and support plan is patchy. Indeed, it is not always easy to be specific about what would happen because often the reality is that instant emergency cover is hard to organise when relatives live a considerable distance away or the cared-for person is not able to summon up emergency help. My noble friend is right to reinforce the point about the need for emergency contingency planning, especially where people have fluctuating health conditions, such as MS, rheumatoid arthritis and HIV.

In Amendment 61, my noble friend also underlines the importance of including a review date in the plan. It would be very valuable to require social services departments and providers to be clearer about not just the review date for the plan but what the monitoring and review process is and what kind of client feedback or complaints process there would be, as well as client-carer involvement in assessing quality of care and standards of service. I suspect that very few care plans currently measure up to these requirements and I would be grateful if the Minister could tell me what requirements the Government will place on local authorities and commissioners in this respect.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, I very much welcome government Amendment 57. Of course, I have supported the recommendation of the Joint Committee on this matter, and continue to do so. Subsection (a) of Amendment 137 is important as a way forward. However, the difficulties to which the noble Baroness, Lady Finlay, has referred, are quite important in this connection. Many people in terminal situations would find a hospice one of the best places to go if that choice were open to them. Many people, of course, would prefer to die at home in a family situation. The hospices are normally able to engender a family atmosphere around death. People I have spoken to in the hospices have said, “If you have to die, this is the place to do so”; the “if” is not all that important.

There are practical questions to be taken into account, but it would be quite a step forward if the Government were able to come forward at Third Reading with an amendment which allowed some form of indication of the place of care, as the noble Baroness, Lady Finlay, says, or the place where one would wish to terminate one’s life in a way that was registered, so that those responsible would be able to give effect to it, so far as is possible, having regard to the changes that can take place in the last few months, days and hours.

[Baroness Wheeler]

My Lords, we welcome another opportunity to consider the very important issue of how people are cared for at the end of their life. The Joint Committee on the Bill urged progress on this vital matter and strongly endorsed the case for the introduction at the earliest opportunity of free social care for terminally ill people. In this context, the Government’s amendment is very much work in progress as it makes explicit the local authority’s power to treat end-of-life care as urgent, in a similar way to how fast-tracked access to welfare benefits such as the disabled living allowance is expedited and works in practice under other legislation, which the noble Baroness, Lady Finlay referred to. The amendment makes it clear that local authorities have the ability to consider the needs of terminally ill people as urgent and to meet their needs ahead of conducting assessments.

We welcome this provision. Many councils already fast track social care in this way, and I hope that this amendment will give those councils that do not the push and impetus that they need to take up this very self-evident and fundamental requirement. The new clause in the Bill is rightly welcomed by the Sue Ryder Foundation, Help the Hospices and Macmillan Cancer Support. However, as Macmillan also points out, the provision is permissive and does not legally require local authorities to meet a terminally ill person’s need for care and support without a needs or financial assessment.

We recognise that there is still much work to be done on this matter. The Government are currently undertaking a review and refocus of the end-of-life strategy and I read in the press over the summer that it was shortly to be published. It is now six years since the strategy was introduced under Labour so I would be grateful if the Minister could update the House on the timetable for that.

As we recognised during the debate in Committee, the results of the seven adult and one children’s palliative care pilots will be crucial to considering the move towards the provision of free end-of-life care as called for by the Joint Committee and as set out in Amendment 137 in the name of my noble friend Lord Warner, supported by the noble Baroness, Lady Greengross, and the noble Lord, Lord Patel. We need to understand current patterns and resource use across health and social care at the end of life, and to have the vital data—from across care provided by the NHS, social care, and the voluntary and private sectors—from which the costs of an integrated end-of-life care system can be properly assessed. The Minister reassured the House that the pilots are on track, despite the handover of responsibility to NHS England and concerns that the work was falling behind. We certainly hope that this is the case as the pilot findings will be so important to how future services can be shaped and delivered.

We acknowledge and share the Government’s concerns about the issues raised in Amendment 137 that the infrastructure may not be in place to support people’s preferences about where they wish to die; commissioners need to be sure that the right services are in place in the community to support people being looked after in their home. My own party is currently working on this as part of our policy review and whole-person care commission, and I know that my noble friend Lord Warner’s contribution to that work will be much appreciated and valued. Enabling NHS patients to have the right to die in the place they regard as home or their normal residence can be achieved only if end-of-life care is fully integrated across the NHS, local councils and hospices, to foster mechanisms to make it achievable and not simply an aspiration.

Once again, the position of carers of people who are terminally ill, as well as those they are caring for, needs to remain to the fore when we are looking at this matter. In Committee my noble friend Lady Pitkeathley cited the Carers UK survey that showed just how much more support is needed for carers to help them think and plan for the end of life of the person they are caring for—something that we can and should be taking action on now. Many carers just do not know how to plan for the death of a loved one and how to try to look ahead when caring ends—returning to or taking up work, social contact and managing financially.

One of our bereaved carers I spoke to recently through our local Carer Support Elmbridge had had a nightmare experience over funding and not being able to ascertain who was paying for what in the transition from social care to NHS continuing care before her husband died. This included two months’ overpayment by social services, which had to be sorted out after the death, at a time of great anxiety about family finances. To add to this, an ambulance turned up two months after her husband’s death to take him to his routine blood test at the local hospital. Your Lordships can imagine how devastating this experience was for the carer. Sadly, this is not an isolated case, and an integrated end-of-life strategy has to make sure that these things do not happen.

Finally, in Committee I raised the issue of access to palliative care and end-of-life care for BME groups following the recent and alarming findings of the Marie Curie Cancer Care and Public Health England survey and the shockingly low use of these services among black, Asian and ethnic minority groups. The report identified major problems involving lack of knowledge about services, misunderstanding, mistrust and a lack of cultural sensitivity on the part of providers. In his August letter to noble Lords, the Minister referred to the work that NHS England is undertaking on this in conjunction with palliative care pilots. Will the Government be responding specifically to the Public Health England report, or is it part of the strategy review and refocus? Will the Minister set out for the House the Government’s outline timetable for the review and publication consultation, the timing of the publication of the pilot’s results, as requested by my noble friend Lord Warner, and the introduction of the new funding system for palliative care as promised for 2015?

--- Later in debate ---

[Baroness O'Loan (CB)]

My Lords, I support my noble friend’s amendments, particularly because of their implication for human rights. Care and support for many older people and for disabled people underpin and enable the enjoyment of those rights. They make possible a decent life of dignity; they make possible the ability to enjoy family life, for example. Ensuring that people can continue to pursue the life that they have and that they want, with no lessening of support when they move, is crucial. I therefore warmly support my noble friend’s amendment on equivalence of outcomes. When considering the process for people moving from one local authority to another, we must consider particularly the right to freedom of movement for older and disabled people. I believe that my noble friend’s amendment on the process for ensuring no gap in services during a move guarantees such freedom on an equal basis with others.

[Baroness Wheeler (Lab)]

My Lords, these are mostly technical amendments, which we support. We are especially pleased that the concerns and proposed improvements to the portability process put forward by the noble Baroness, Lady Campbell, are addressed in the amendments in this group. We need to do as much as possible to reduce the likelihood of the person not having services on the day of the move to the new authority.

Continuity of care is critical to portability, and the requirement placed on the first authority to keep in touch with the second in the period leading up to the move to ensure that services are in place and ready, and that the person is kept informed and up to date, is very important for a safe and risk-free move. They are also required actively to ensure continuity of care until the new assessment is in place. That is absolutely right, as is the second authority being required to have regard to the outcomes that the person wishes to achieve in the care and support plan that they had before the transfer.

I congratulate the noble Baroness on having finally achieved most of what she set out to in her own Private Member’s Bill. As she said earlier, workable continuity of care is within sight. Her tenacity and determination will mean that many people will now be able to make the move to different parts of the country, to be closer to their families or to care and support that they have not previously been able even to contemplate.

We support the government amendments dealing with cross-border issues with Wales. They follow extensive discussion and agreement with the Welsh Government. The Minister’s detailed correspondence to noble Lords explaining the purpose of the amendments in relation to such key issues as arbitration on cross-border disputes, responsibility for mental health aftercare and sorting out direct payments for this care and residential care to reflect recent change of practice in England was very helpful to the House in getting the full picture of the proposed changes.

In respect of the amendments on ordinary residence, NHS accommodation placements, cross-border hospital stays and the need to ensure that the Care Bill provides for accommodation provided under the Welsh, Scottish and Northern Ireland legislation, the Minister’s note of last week emphasises that all changes have been agreed with each of the devolved Administrations, and obviously that is as it should be. Are the provisions for four-way reciprocity on cross-border placement in England, Wales, Scotland and Northern Ireland now fully in place with these amendments to the Bill, or does more work need to be undertaken as the detail is worked through further?

Specifically on government Amendment 64, I understand that the LGA and ADASS are looking to model the impact of a person’s place of residence on the cost pressures within the social care system. To assist this work, which will be very valuable to the whole House, will the Government now publish the information that they have on the impact of cost pressures on extending the territorial reach of the Bill into Wales?

--- Later in debate ---

I say to the noble Baroness, Lady Meacher, who opposes Amendment 79, that the first time anybody talked to me about elder abuse—I was sitting in a hall with a bunch of colleagues—they impressed on us above all that there is carers’ stress and there is elder abuse, and that they are two completely different things. We are not talking about penalising carers who are stressed; we are talking about taking proper action against people who are perpetrating criminal abuse on vulnerable people. That is a wholly different thing. That is why the noble Baroness, Lady Greengross, is right.

[Baroness Wheeler]

My Lords, in addressing these amendments I once again emphasise that we very much welcome the placing of safeguarding on a statutory footing in the Bill, and the establishing of statutory safeguarding adults boards. This builds on the legislation, regulations and advice on principles and frameworks for safeguarding for both adults and children that we established up to 2009, which are now being taken forward in the Bill.

The noble Baroness, Lady Greengross, and other noble Lords, again made a comprehensive case for granting the power of access by a third party to private premises if they suspect that a vulnerable adult is being abused. The noble Lord, Lord Rix, spoke of “mate” relationships among people with learning difficulties. It was a powerful example of what we need to address.

We know that there is both strong support and strong opposition among local authorities, NHS trusts, the health and social care professions, and patients and user organisations on this sensitive and complex issue. However, we have to remember that the Government's consultation had a relatively low response, particularly in terms of local council and NHS trust participation. On top of that, many of the consultation responses appeared not to have fully understood the limited nature of the change that was being proposed: namely, that the new power would apply only to situations where it is the third party who is denying access, not the individual.

The noble Baroness’s amendment sets out tough limitations and restrictions that would apply to such a power. Local authorities would have to apply to the courts and demonstrate reasonable cause for suspecting that someone was in danger of abuse. The power of access would be to enable the local authority to access the person and speak to them alone to assess the situation. It is clear that it is intended as a last-resort power to address third-party denial of access to a vulnerable adult, for use after all other efforts and mechanisms have failed.

Getting the balance right between proactively intervening in the lives of individuals in this way and limiting the extent to which this interferes with their rights to freedom and family life is the challenge that we face. Certainly there is widespread acceptance that the existing powers to intervene under government legislation are not being fully utilised and are not addressing the issues, and that the training of specialist staff needs urgently to address this. Will the Minister explain to the House how the Government intend to deal with this?

As we said in Committee, on balance we support the case for inclusion in the Bill of the power of access by a social worker or the police where there is a danger of third-party abuse. Our work on safeguarding when we were in government, especially in relation to children, makes us sympathetic to the approach in the amendment of the noble Baroness, Lady Greengross. We recognise that safety should be paramount in this instance. However, we recognise the strong concerns of Mind on this issue, and of the Royal College of General Practitioners, which would prefer to use other powers, such as working with the sector to co-produce best-practice guidelines. Will the Minister explain how the Government propose that denial of access by a third party to a potentially vulnerable adult will be addressed if the issue is not dealt with in the Bill?

I support the intention of Amendment 79A, tabled by the noble Lord, Lord Rix, to include in the Bill a definition of abuse that reflects other types of abuse besides the financial abuse currently included in the Bill. The noble Lord has the very real concern that this would encourage hard-pressed local authorities to narrow their focus to financial abuse alone. The Confidential Inquiry into Premature Deaths of People with Learning Disabilities published its findings in March 2013. It looked at the deaths of 233 adults and 14 children with a learning disability in the south-west and found that 20% of the people concerned had experienced safeguarding concerns. While some of these may have been due to financial abuse, it is more likely that they concerned other forms of abuse: in particular, neglect. The study showed that 37% of deaths would have been potentially avoidable if good-quality healthcare had been provided. Neglect is undoubtedly one of the reasons, and thus the definition in the Bill should be broadened. I ask the Minister to look again at this and come back with a more balanced clause reflecting other types of neglect and abuse. It is important, for example, that hospital safeguarding leads should be clear that the definition is broad, and should take appropriate action.

The noble Lord’s Amendment 81A would also be a welcome alteration to the Bill. It is a small but important matter, because sending SAB annual reports to the Secretary of State will ensure that safeguarding is given the high level of oversight needed, particularly over areas that might be failing.

We also support the amendments to Schedule 2 contained in Amendment 81 from the Government, and Amendments 80 and 82 from the noble Baroness, Lady Greengross. The SABs would benefit from professional social worker representation, as would safeguarding adult review teams from having a qualified social worker supervising the review.

The two final amendments of the noble Baroness, Lady Greengross—Amendments 78 and 79—raise the important issue of establishing a new duty of care on a local authority or its relevant partner to report to the authority if they suspect that there is a failure of care, and to set out the terms of conviction for any person guilty of neglecting or ill treating an adult at risk of abuse. We share some of the concerns of the LGA, for example, on these amendments: namely, that there would need to be clarification of exactly what the care quality, professional practice and safeguarding concerns would be under the new duty, and how the duty would relate to other partners involved in service delivery. We also share concerns that while the criminal conviction provision may present the way forward in cases of neglect, it might unintentionally create a lower order of offence and tariff for older and disabled victims of crime.

Finally, I underline the vital need, when so much care now is contracted out and provided by the independent, private and voluntary sectors, to ensure that safeguarding is built into procurement and contract management in health and social care. Will the Minister tell the House how the Government intend to ensure that this will happen?

[Earl Howe]

My Lords, for the first time the Government will, through this Bill, place adult safeguarding in primary legislation. Local authorities, the NHS and police will have statutory duties to work together to help prevent and respond to abuse and neglect. This sends a clear message that safeguarding is not the sole responsibility of one agency but requires the very best of partnership working and information sharing. Amendment 77, which would introduce a power of access to a person for a confidential interview, runs counter to that message. Having said that, I am well aware of the strength of feeling in relation to this matter, both inside your Lordships’ House and elsewhere. Whether there ought to be a power of access or entry is a sensitive question. That is precisely why the Government launched a three-month consultation in 2012 to gauge the opinions of professionals and the public. The consultation revealed no clear consensus. Of 212 respondents, 50% backed a new power, with 40% opposed. However, among individuals, 77% disapproved. The majority of respondents in favour of a new power of access were health and care professionals, yet it was very noticeable that their responses revealed the painstaking weighing of potential benefits against unforeseen consequences.

The mental health charity Mind said:

“A power of entry risks being seen as a quick solution, in place of greater focus on community engagement, co-operation and a preventative approach that can be truly empowering to the people involved”.

This was a theme found in many responses. I stumble over the consequences of what the noble Baroness seeks to do. Here I respectfully but fundamentally disagree with my noble friend Lady Barker who said that there was no real comparison with the situation in mental health. A power such as this might well ensure access but the central issue will remain—how will the professionals then work with the situation to achieve the best outcomes? Trust will have been compromised and, short of a power of removal, which we certainly would not want to see, the options for action seem pretty limited.

Our consultation revealed no compelling evidence for further legislation. Even those respondents in favour pointed to how rarely a new power might be applied and identified potential unforeseen consequences. Proposed new Subsection 4(c) of the amendment states that an access order should be granted only if doing so,

“will not result in the person being at greater risk of abuse or neglect”.

I have to ask how a court could ever reliably make such a judgment in these circumstances.

The other key point which I would like to believe may sway the House is the following. There exists no legislative vacuum preventing care or other professionals accessing those in urgent need of assistance. Under the Police and Criminal Evidence Act 1984, the police have the power to enter premises if harm has occurred or, indeed, is likely to occur. The Domestic Violence, Crime and Victims Act 2004, the Fraud Act 2006 and, for those lacking capacity to make decisions, the Mental Capacity Act 2005, provide a wealth of powers for use at the front line, and the inherent jurisdiction of the courts to intervene provides a secure safety net. Therefore, it is not the lack of legislation; rather, as safeguarding lead directors at ADASS have put it, it is a question of a “lack of legal literacy” within the social care and other professions. What is needed is greater knowledge of existing legislative options. If they have that, professionals will be fully equipped to support people to be safe. The core role of an adult social worker is to support people. Further legislation for a new power of access risks undermining this approach, sending the message that legal intervention takes primacy over negotiations and consensus. I stress that legal intervention, on those rare occasions when it is needed, is already possible under the law. For those reasons, I cannot accept this amendment.