Mental Health Units (Use of Force) Bill

Lord Harris of Haringey Excerpts

2nd reading (Hansard): House of Lords
Friday 7th September 2018 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, I am grateful to my noble friend Lady Massey for bringing this Bill forward in your Lordships’ House. I am also grateful to my honourable friend Steve Reed for the work he did in bringing the Bill through the House of Commons following the death of Seni Lewis at Bethlem Royal Hospital in 2010. We should pay tribute to the persistence of the family of Seni Lewis in wanting to see positive change as a result of their truly traumatic experience. I talked to Steve Reed about what he wanted to achieve when he was at first successful in the ballot for Private Members’ Bills in the House of Commons and I am very pleased that we have reached this stage today.

This Bill is extremely important and valuable in its own right, but I am afraid that I do not want to talk about what is in the Bill itself, but about what is not in the Bill. I should also make it clear that I have no intention of moving amendments in Committee, because every effort should be made to get this Bill intact on to the statute book. I will raise in this speech issues that were raised in Committee in the House of Commons—along with a lot of other stuff, as it happens. I aim to get greater clarity from the Government and get the Minister to reflect on these points and take them back to his department.

I bring to this Bill my experience for a number of years as chair of the Independent Advisory Panel on Deaths in Custody. My panel was responsible for looking at deaths in the custody of the state and what more should be done to protect the lives of those to whom the state holds specific obligations in terms of Article 2 of the European Convention on Human Rights. Our remit covered deaths in prison and in police custody as well as the deaths of those detained under the Mental Health Act. If you die in prison, your death is automatically investigated by the Prisons and Probation Ombudsman, and the report of that ombudsman subsequently informs the inquest. If you die in police custody, the death is automatically referred to what is now the Independent Office for Police Conduct, formerly the IPCC, and again the report produced informs the inquest.

I am not pretending that either of those two processes—for prisons or for police custody—is in any way perfect. I certainly have many criticisms of them, and will continue to do so. But those are not a matter for today. The important issue of those processes is that they happened automatically and were both palpably independent of the institutions concerned. What is more, they were thorough enough to ensure that the coroners’ court had drawn to its attention the key issues of substance.

Another point is relevant to the Minister and the Department of Health and Social Care. Those two specialist bodies developed a level of expertise and experience through looking at those types of death that meant that not only could they be more effective in terms of their investigation, because they had seen similar things before and the investigators had worked on similar issues, but the Prisons and Probation Ombudsman or the IPCC could report thematic findings that could helpfully influence the practice across the police or prison services. Because of that expertise and the fact that they were looking repeatedly at similar types of incident, they could come back to the institutions as a whole or the relevant government departments and say, “This is a common theme. These are issues that need to be addressed across the system”. That is what is missing from the arrangements that we have at present, and even the arrangements that will exist after the passage of this Bill.

Like many noble Lords, I have received briefing from the charity Inquest, which I have known for many years and worked with in my work on the independent advisory panel. It has extensive casework involving families affected by deaths in state custody. Inquest believes that the current system of investigations following non-natural deaths in mental health settings is simply not sufficient. A system of truly independent, pre-inquest investigations, equivalent to others in detention settings, with a mechanism for national oversight and learning, is absolutely necessary to reduce the number of deaths and serious incidents such as those involving the use of force. But they will also illuminate other categories of death as well. Frankly, it is iniquitous that institutions that are responsible for the treatment and care of mental health patients should not be subject to the same scrutiny as other institutions of detention such as the police, prison and immigration detention. This risks leaving ongoing injustices for bereaved families.

I am sure that we will hear from the Minister about level 3 investigations as part of the 2015 serious incident framework. They are a step forward compared with what there was before, which I can—no doubt totally unfairly—characterise by saying that you would ask the guy sitting next to you in the office to investigate the failings of the service for which you were responsible. That was deemed a sufficient inquiry. Yes, there is an arrangement under the serious incident framework. It is the only mechanism for independent investigation and scrutiny prior to the coroner’s inquest. But the issues with the mechanism is that level 3 investigations are used inconsistently and rarely take place. Perhaps the Minister can do something about that. In many cases, given the seriousness of the death, you would have expected an independent investigation to take place within the framework, but there has been a failure to do so. This Bill looks specifically at restraint. I would have thought that any death involving restraint must automatically be one where serious questions are raised around wider issues of practice and should be subject to a full and proper level 3-type enhanced investigation.

While the serious incident framework may provide for an independent team to conduct an investigation, the commissioning and management of the independent process is not institutionally or practically independent as it continues to sit within the NHS management structures. There is also no oversight outside of the NHS on whether investigations should take place and no oversight or external assessment of the quality of those investigations. Moreover, the investigations that do take place under the serious incident framework are of varying quality. They are often deficient in terms of their scope, timeliness, quality, independence and family involvement. There are also concerns about the lack of publication of investigation reports and the methods of identifying learning beyond that of the individual trust or provider. That is a key point because we want to make sure that if there is relevant learning, it will almost certainly apply not just to the individual institution, but much more broadly than that. The internal nature of the investigations means that there is no visibility or oversight around the implementation of the recommendations or identification of common themes and issues which may be of relevance nationally.

I have heard it argued that such an investigation is not necessary because that is the job of the coroner’s court, but my experience of looking at coroners’ investigations is that they are always enhanced and facilitated by the receipt of an independent report setting out the key issues. That provides a scope for the coroner’s inquiry and investigations. This is something that has to be revisited in those terms. I would ask the Minister to take this aspect away and look at it again, although not in the context of this Bill. Is the Minister confident that he is really fulfilling his personal Article 2 obligations in the absence of a more robust and independent system? Can he say, hand on heart, that he believes that the systems which are currently in place will identify wider lessons and enable them to be disseminated throughout the mental health sector?

My second and final concern, for those who feel that I am going on for too long, is about the funding of the legal costs of inquests for the families of those who die in mental hospitals. One of my most vivid memories from the listening days that Inquest organised for my panel was an account of a family whose family member had died in a mental hospital. I do not know how many noble Lords have been to a coroner’s court, but they are often held in bleak environments without even the grandeur of a court setting. For a bereaved family, for whom the whole process is very emotional, the atmosphere is both bewildering and demoralising. This family found themselves having to share the rather small waiting area with not only those whom they felt might have been responsible for their loved one’s death but the large teams of lawyers, funded at public expense, representing each and every one of those people. The family described to me how they walked down the corridor, trying to get to this small waiting room first to get a seat, and heard the trundling of the lawyers with their wheelie suitcases full of papers coming down the corridor behind them. They had to walk faster and faster to make sure that they got three seats in the room. That is a graphic image and a reminder of how isolated the families concerned will feel.

The purpose of an inquest is to find out what happened and determine the cause of death, yet every person involved will be legally represented at our—the public’s—expense to put the position of the client’s actions in the best possible light. Only the family of the person who lost their life in such circumstances will not automatically be represented publicly. I have no problem with people engaged in the issue being funded and supported, but it is grotesquely inequitable and unfair that the family—unless they have substantial means—are not similarly represented to ensure that the coroner is able to pursue all the issues that need exploring. No doubt the Minister will have been briefed that families can obtain legal aid. In practice, this is unlikely and difficult. The income rules are onerous and the pot is already small.

At present, the legal costs of the trust, the commissioner, if it is a relevant party, the nurses, the doctors and the police—if they are involved—and so on are all covered by the public purse; all except the group of individuals who care the most about knowing what happened to their loved one. What is to stop the Minister saying today that in the interests of fairness, of justice and of making sure that lessons applicable elsewhere can be identified, he will instruct the trust responsible for the individual who has died to meet the legal representation costs of the bereaved family? In practice, this will only be a small proportion of the legal costs associated with the death. If he feels that this is too difficult and too onerous a burden on the trust concerned, perhaps those costs should be borne by his department or NHS England, which would incentivise both organisations to ensure that such deaths are minimised in future. I look forward to the Minister’s reply but in the meantime, I look forward to this valuable Bill passing through your Lordships’ House without amendment.

NHS: Deficit

Lord Harris of Haringey Excerpts

Wednesday 22nd November 2017 Lords Chamber

Asked by

[Lord Harris of Haringey]

To ask Her Majesty’s Government, in the light of the quarterly performance report published by NHS Improvement on 16 November, what is their current projection for the aggregate deficit of NHS provider organisations at the end of this financial year.

[The Parliamentary Under-Secretary of State, Department of Health (Lord O’Shaughnessy) (Con)]

Prior to today’s Budget settlement, recent figures from the NHS suggested that trusts will end the year with a combined deficit of £600 million. The vast majority of trusts are on plan to balance their budgets or better, and for those trusts in financial special measures, significant support is available to return them to good financial health.

[Lord Harris of Haringey (Lab)]

My Lords, I am grateful to the Minister for that Answer. He glided over the fact that the level of deficit in trusts seems to be rising rather more rapidly than the Government can cope with. Two weeks ago, the Nuffield Trust, the Health Foundation and the King’s Fund produced a joint report that said that the levels of funding then planned for the NHS were,

“far below what is needed to maintain standards of care”.

They said that £25 billion would be needed by the end of the Parliament and £4 billion was needed urgently next year. The Government have given £1.6 billion in today’s Budget for next year. This is at a time of rising numbers of mixed-sex wards, and of trusts delaying payments to small business suppliers and having to take out bank loans to pay their staff. Is this a case of the Government not caring about the NHS and wanting to see it wither on the vine?

[Lord O’Shaughnessy]

That is a completely unfair accusation and unjustified, both by the funding settlement that the NHS had and by the improved settlement today. First, deficits have been falling year on year for the past couple of years in terms of both outturn and forecast, and that is before today’s announcement on additional funding. The Chancellor today announced over £2.5 billion-worth of extra revenue funding over the next two years. That means that the actual value of the spending review settlement will end up being £11.5 billion compared with £8 billion, so I reject the idea that this Government are not funding the NHS properly.

Healthwatch England

Lord Harris of Haringey Excerpts

Tuesday 26th April 2016 Lords Chamber

Asked by

[Lord Harris of Haringey]

To ask Her Majesty’s Government why, when advertising the post of Chair of Healthwatch England, the Department of Health stipulated that the successful candidate would require private sector experience, and why the governance arrangements for Healthwatch England have been changed so that its Chief Executive is subordinate to the Chief Executive of the Care Quality Commission.

[The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con)]

My Lords, the chair appointment was open to applicants from all backgrounds. Public appointments benefit from a diverse mix of skills, experience and backgrounds. In some cases, private sector experience may be sought to bring a different perspective that adds real value to the work of the board or committee. The Healthwatch England CEO has always been a CQC employee and this will not change. They will also continue to be responsible for delivering the committee’s priorities.

[Lord Harris of Haringey (Lab)]

My Lords, I am grateful to the Minister for his Answer. However, it is a fact that when the post of the chair of Healthwatch England was advertised, it specifically—I think in the first line, virtually—said that the Government were particularly seeking somebody with private sector experience. Why was that given preference over and above somebody with, perhaps, a background in consumer representation? The CQC chief executive had a direct line of accountability to the Secretary of State. That has now changed. Perhaps the noble Lord can tell us why he thinks his right honourable friend the Secretary of State for Health has acquired a reputation for not wanting to hear contrary views about the state of the health service.

Psychiatric Units: Child and Adolescent Patients

Lord Harris of Haringey Excerpts

Wednesday 13th April 2016 Lords Chamber

Asked by

[Lord Harris of Haringey]

To ask Her Majesty’s Government what assessment they have made of the number of deaths amongst child and adolescent patients in psychiatric units, in the light of the investigation conducted by the charity Inquest.

[The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con)]

My Lords, every death of a young person in in-patient psychiatric settings is a tragedy. It is essential that each case is fully investigated and lessons learned. Four children have died in in-patient child and adolescent mental health services since NHS England came into existence in 2013. The Minister of State for Care Services plans to meet Inquest to consider what more can be done.

[Lord Harris of Haringey (Lab)]

My Lords, I am grateful to the noble Lord for that response. It is obviously at odds with the comments made by his honourable friend the Minister of State, who told “Panorama” that the department simply did not know how many young people had died in psychiatric care. Does the noble Lord accept that he and his ministerial colleagues have a duty of care under Article 2 of the European Convention on Human Rights towards those in their care in psychiatric units? If so, as he said he was in favour of the principle of all those deaths being adequately investigated, will he ensure that in future there is a requirement on psychiatric units to report on premature deaths of all patients and that they are independently investigated by a body separate from the psychiatric unit concerned? He and I have discussed that in the past in his previous incarnation as chair of the Care Quality Commission.

[Lord Prior of Brampton]

My honourable friend Alistair Burt, the Minister for Care Services, and I accept that the lack of clear knowledge on how many deaths there have been in psychiatric care settings is not satisfactory or acceptable. I think the difference from the figure of nine in the “Panorama” programme is partly because the figure of four is from 2013 whereas the figure of nine probably goes back to 2010. Nevertheless, it is essential that we clear that up and get those facts straight. Alistair Burt has agreed to meet Inquest to do so.

As far as investigating these awful tragedies when they happen and learning from them, where someone is detained under the Mental Health Act and a suicide happens there is a requirement to inform the CQC, as the noble Lord will know. For example, where a child is not detained under the Mental Health Act, there is no such requirement. We are looking at this very thoroughly and when my honourable friend in the other place has completed his work I will write to the noble Lord with our findings.

Allied Health Professionals: Training

Lord Harris of Haringey Excerpts

Monday 8th February 2016 Lords Chamber

[Lord Prior of Brampton]

My Lords, I entirely agree with the noble Lord that the role of speech and language therapies, particularly in treating people with stroke and other serious conditions, is absolutely vital. Perhaps I may correct a previous answer that I gave to the noble Baroness, Lady Walmsley. Therapeutic radiographers have gone down slightly but diagnostic radiographers will go up slightly.

[Lord Harris of Haringey (Lab)]

My Lords, the Minister told us that the increase is among paramedics, which presumably balances the cuts in other areas. Is this the Government’s strategy for sorting out the problems in the ambulance service, which around the country is failing to meet emergency targets? Do the Government hope that by training some more paramedics, they will somehow solve the problem and money will magically become available for the ambulance service to function?

[Lord Prior of Brampton]

My Lords, having more paramedics is part of the solution, but the major part of the solution is to treat more people outside A&E departments, so that people do not require ambulances to take them into A&E departments but are treated at home.

Southern Health NHS Foundation Trust

Lord Harris of Haringey Excerpts

Thursday 10th December 2015 Lords Chamber

[Lord Prior of Brampton]

My Lords, I do not think anyone was told that no one was to blame as a result of the investigation into Mid Staffs. There were failures at all levels within the NHS with the regulation, the professions and the management of that particular trust. I believe that transparency is the right way to deal with the systemic problems that we have in many of our hospitals.

[Lord Harris of Haringey (Lab)]

My Lords, if you are to achieve transparency, is it not the case that, first of all, as the noble Baroness, Lady Walmsley, has suggested, there should be an independent element in deciding whether a particular death is going to be investigated at all, and, secondly, there must be some independence in the nature of that investigation? Too often those investigations are too close to the establishments concerned. Does there not also need to be some oversight of those independent investigations so that general conclusions of a systemic failure can be picked up, acted upon and brought to his attention as a Minister?

[Lord Prior of Brampton]

My right honourable friend the Secretary of State for Health is committed to having a blame-free, independent investigation service looking at incidents of this magnitude in the NHS. That is why, on the recommendation of the PASC, he set up the investigations branch which will be up and running in March.

Police: Ambulance Support

Lord Harris of Haringey Excerpts

Thursday 16th July 2015 Lords Chamber

Asked by

[Lord Harris of Haringey]

To ask Her Majesty’s Government what assessment they have made of police forces supporting ambulance services by taking patients to accident and emergency departments.

[Lord Harris of Haringey (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and draw attention to my interests in the register.

[The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con)]

The public deserve the right service from the right organisation at the right time. Only ambulances should be used to transport patients to A&E as only ambulances are clinically equipped and staffed to do so. Incidents where the police transport patients to hospital are very rare and the emergency services continue to work together to reduce them further.

[Lord Harris of Haringey]

I am grateful to the Minister for that Answer; however, I think he is incorrect in saying that it is a very rare occurrence. Freedom of information requests have shown that the number of cases of people being taken to hospital to accident and emergency departments runs in the thousands in recent times. He is also aware, because he sent the figures to me, that, for example, in London the ambulance service has failed to meet its emergency target in terms of time in every single London borough in each of the last three months. What exactly do the Government think they are doing about making sure that there is adequate coverage for the emergency services? Is the intention that, despite all the Minister’s fine words about the importance of ambulances, the reality is that the police will have to act as paramedics?

[Lord Prior of Brampton]

I do not think that the noble Lord is right. The actual number of times that police transport patients to A&E is less than 0.1% of all such conveyances. I agree that there are some particular problems in London. There is a shortage of paramedics and they have an active recruitment plan to correct that. There have also been management problems in the London Ambulance Service and its performance, to which the noble Lord correctly draws attention, has not been good enough. There is now a new chief executive of the London Ambulance Service, who is fully aware of the issues. She has recently published the report about the levels of bullying in the London Ambulance Service, which are very distressing. The fact that that has been published and that she has acknowledged it give me hope for the future.

NHS: Whistleblowing

Lord Harris of Haringey Excerpts

Tuesday 30th June 2015 Lords Chamber

[Lord Prior of Brampton]

The noble Baroness has probably read The “Snowy White Peaks” of the NHS, which sets out very clearly for all to see the really shocking lack of representation of people from BME backgrounds at senior levels of the NHS. This is an absolute priority. NHS England has appointed Yvonne Coghill to look at all the racial inequality issues, and she and NHS England have my full support in their endeavours.

[Lord Harris of Haringey (Lab)]

My Lords, I declare an interest as having two family members who work in the NHS. Further to the answer that he has given, will the Minister reflect on the fact that many trusts have contracts in which staff are warned that if they bring the trust into disrepute, they are likely to face disciplinary action? This has a stifling effect on whistleblowing and people raising issues of legitimate public concern with the media. Will he comment on that practice and what is going to be done about it?

[Lord Prior of Brampton]

In Robert Francis’s report, Freedom to Speak Up, he specifically mentions—I think it is in principle 13, from recollection—that there should be no such clauses in NHS contracts unless it can be demonstrated that there is indeed a true public interest. In any severance package in which there is a gagging clause of any kind, CQC is entitled to inspect those agreements during its inspections.

NHS: Financial Tariff for 2015-16

Lord Harris of Haringey Excerpts

Wednesday 4th February 2015 Lords Chamber

[Earl Howe]

My Lords, no, Choose and Book will not be affected, although NHS England has plans to update it to make it a much richer and more informative system.

[Lord Harris of Haringey (Lab)]

My Lords, given the appalling performance of ambulance services—certainly in London, and, I suspect, in the rest of the country—what steps are the Government taking to ensure that the tariff means that people will receive the emergency call-outs that they would expect on the basis of the funding that should be being made available?

[Earl Howe]

This is part and parcel of the discussions going on at the moment. There is a balance of interests here—above all, the interests of NHS patients, but within the system, the interests of those who hold the budget and the interests of those who provide the service. The risks relate, on the one hand, to affordability, and, on the other hand, to financial and service stability, and the need not to sacrifice quality in the process.

NHS: Health and Social Care Act 2012 Reforms

Lord Harris of Haringey Excerpts

Wednesday 22nd October 2014 Lords Chamber

[Earl Howe]

I agree with my noble friend that the integration of health and social care services has a major part to play in making the system more efficient across the piece and more effective for the patient. That is why we are introducing the better care fund, which, at a local level, will channel at least £3.8 billion into pooled budgets to deliver that integration.

[Lord Harris of Haringey (Lab)]

My Lords, if the system is quite as wonderful as the noble Earl suggests, will he explain why so many people are waiting so much longer in accident and emergency departments and why so many young doctors completing their GP training decide to leave the country and practise overseas rather than participate in the grotesque mess that this Government have produced?

[Earl Howe]

I take issue with the phrase “grotesque mess”. If the noble Lord cares to look at the figures, he will see that waiting times are low and stable, MRSA and C. diff infections are at record lows, mixed-sex wards are down by 98% and the number of people waiting a long time for treatment is massively reduced. Yes, we know that many A&E departments are under pressure but many are coping. The work that we are doing, including channelling more money into the system for this winter, should, we hope, relieve the worst of the problems.