Carers: Health and Well-being

Lord Mackay of Clashfern Excerpts

Tuesday 12th June 2018 Lords Chamber

[Lord O’Shaughnessy]

I thank the noble Baroness for her question and for her tenacity in pursuing me on this topic. I am glad that we were able to publish the action plan. It is appropriate during Carers Week to pay tribute to the amazing work that carers do. Yesterday, I had the opportunity to meet carers who were struggling, often against their own health needs, to care for those they love.

The action plan that we published is a two-year plan. It has some immediate actions but is not purely short-term and contains some actions for the medium term. I highlight one of those, which is important, particularly given these concerns about carers’ health and well-being: a commitment to creating equality standards for carer-friendly GPs. Carers mentioned to me yesterday how important it is for GPs to validate the fact that they are carers and signpost them in the direction of care. I can confirm that carers and support for carers will have prominence in the Green Paper.

[Lord Mackay of Clashfern (Con)]

My Lords, one of the most exciting experiences I ever had in my life was to go to a children’s hospice providing respite care for the parents of children facing an early death as a result of the onset of permanent illness. What sort of provision do we make for that?

[Lord O’Shaughnessy]

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

Abortion (Disability Equality) Bill [HL]

Lord Mackay of Clashfern Excerpts

Report stage (Hansard): House of Lords
Friday 24th February 2017 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I am, of course, not a doctor, although I have the great honour of being an honorary fellow of the royal college of which the noble Lord, Lord Winston, is such a distinguished member. I well remember the situation which produced the result that the noble Lord has spoken of—that of amendments on abortion being made to our very interesting, important and ground-breaking Bill on IVF and related matters. I was clear, as were the Government, that the approach to the main part of that Bill depended on one’s conscience, so there was a free vote in both Houses of Parliament. There was always the possibility that the result of a vote in this House would be different from one in the House of Commons. That was a very serious thought in relation to a Bill of such ground-breaking importance, and the introduction of amendments on abortion in the Commons rather increased that difficulty.

However, I am glad to say that in the end we got what I think is regarded in the general scientific areas of the world concerned with these matters as a very good Bill. It allowed research which is not allowed in quite a number of other parts of the world. I know that the noble Lord, Lord Alton, has a different view from mine, but that was an important aspect of the Bill which depended very much on people’s consciences.

So far, I have understood this Bill to deal with the principle of equality as defined in our legislation in relation to disability. I understand that the Bill is based on the proposition that abortion would be in breach of the principle of not regarding disability as a ground for discrimination. It is as simple as that. The idea that this amendment would destroy the Bill and bring back back-street abortions and so on strikes me as rather excessive. It is an amendment to the existing Bill; it does not seek to abolish the Abortion Act. It simply suggests—with a good deal of merit, as I think my noble friend Lord Shinkwin has said—that the principle of not discriminating against disability should apply to this provision.

This amendment, produced by the noble Lord, Lord Winston, suggests that something else might be done. It proceeds on the basis that the nature of the condition is such,

“that the fetus will die at, during, or shortly after delivery due to serious fetal anomaly”.

That is not quite the same as what is in the Abortion Act. If that were the formulation of the clause, it might well avoid the idea that this provision of the Abortion Act is a breach of the rule against discrimination on the ground of disability. This is a different point and I can see the force of it as a different matter entirely from the provision in relation to this matter which is currently in the Abortion Act.

[Baroness O'Loan (CB)]

My Lords, I pay tribute to the noble Lord, Lord Shinkwin, for bringing the Bill before your Lordships’ House. It is very important that we come back to what the Bill deals with and possibly leave behind some of what I might regard as the slightly unwarranted assertions that we are in danger of reintroducing back-street abortions wholesale as a consequence of this Bill. What it actually does is give us the opportunity to remove the right to abort after 24 weeks an unborn baby which has a disability unless there is a risk of serious permanent damage to the mother or her life is at risk. I say with the greatest respect that it is, therefore, perhaps a rather more modest proposal than was described by the noble Lords, Lord Winston and Lord Lester.

Amendment 1 deals with the situation in which the foetus will die at or shortly after delivery due to serious foetal abnormality. I absolutely oppose this amendment. The noble Lord, Lord Alton, has very competently articulated some of the problems with the amendment, and I am not going to rehearse all the arguments against it. I will simply tell another little story. I have a friend: her name is Tracy Harkin. Tom and Tracy have a little daughter. When Kathleen Rose was born in November 2006, she had trisomy 13, which is one of the conditions that is generally regarded as what is loosely described as a fatal foetal abnormality. Kathleen Rose is now 10 years old. I want to quote her parents: “She has a beautiful, distinct personality. She is known for her mischievous laughter and her enormous hugs. Last year, she was the angel in the school nativity play, and to all of us, of course, she was the star of the show”.

I have another concern. The amendment in the name of the noble Lord, Lord Winston, would extend the provisions of this Bill to Northern Ireland. As noble Lords will know, Northern Ireland is currently in the midst of a very fraught election campaign. I know that in Northern Ireland the tabling of Amendment 1 and Amendment 8 has caused considerable anger and concern. Both justice and health are devolved to Northern Ireland. Therefore, the law on abortion in Northern Ireland—undoubtedly a sensitive and very controversial topic—should be dealt with only by the people of Northern Ireland through their constitutional processes. And my goodness, the right to do business in Northern Ireland through constitutional process has been very hard won. The Abortion Act does not extend to Northern Ireland. That is a position which, despite consideration, has not changed since 1967. It is therefore entirely inappropriate for this House to be considering introducing a change to an Act that does not apply in Northern Ireland and making that change apply in Northern Ireland.

As noble Lords may be aware, only last February, the Northern Ireland Assembly considered the question of whether abortion should be legal in Northern Ireland on the grounds of what is described as “fatal foetal abnormality”—a term which even the noble Lord, Lord Winston, explained to us lacks clarity. For a disability to be fatal, when does it have to be fatal—within hours, days, weeks, months or years? What of Kathleen Rose, heading for her 11th birthday? After a lengthy debate, the Assembly decisively rejected this move by 59 votes to 40. Following last May’s election, an MLA brought forward a Private Member’s Bill to allow for abortion on these grounds. The Northern Ireland Assembly had plenty of time to consider this Bill—in the nine months since the last election, the Assembly passed one Bill: the Finance Act. However, the Private Member’s Bill was not dealt with and it fell. The Northern Ireland Assembly is the place where this issue should be developed and debated, as it affects the people of Northern Ireland.

I know that some noble Lords do not accept the law on abortion in Northern Ireland, but when Parliament accepted the principle of devolution, we accepted that devolved parliaments have a right to make decisions about their own law, whether we like them or not. Reversing that principle and bringing the powers back to Westminster would be a major constitutional change, which Parliament would have to consider very seriously in the light of all the implications of such an action. It is fundamentally wrong for this House to seek to make a decision in this area and we should not, therefore, support these amendments.

Equally importantly, the sensitivities which surround this amendment are greatly compounded by the fact that they are proposed within five days of the elections in the Northern Ireland Assembly. Those elections are unlikely to result in a devolved Assembly because the two parties having the greatest number of seats currently have indicated that they will not go into government together unless significant preconditions are met. In those circumstances we are moving rapidly towards direct rule, with all the political sensitivities attaching thereto, including the threat to our fragile peace process. Only yesterday there was an attempt to murder a police officer. A bomb was placed under his car; that bomb exploded and in all probability it would have killed him. These are fragile days in Northern Ireland and noble colleagues who are supportive of this Bill are understandably there today and unable to address your Lordships’ House.

Whatever happens, there will eventually be a devolved Assembly which has a mandate to uphold or change Northern Ireland abortion law, and that is where this debate should take place. I hope, therefore, that other noble Lords will join me in rejecting Amendment 1 because of the effect of it on the Bill of the noble Lord, Lord Shinkwin, and in rejecting Amendment 8 because it is repugnant.

Health Service Medical Supplies (Costs) Bill

Lord Mackay of Clashfern Excerpts

Report stage (Hansard): House of Lords
Tuesday 7th February 2017 Lords Chamber

To conclude, I applaud the intent of the noble Lord in bringing forward the amendment. In their contributions, noble Lords have quite rightly drawn attention to policy objectives that this Government view as a critical priority and on which we are taking action. As I outlined earlier, a number of programmes are underway to influence prescribers and improve the uptake of NICE-approved drugs that are unrelated to pricing, but this amendment would undermine the core purpose of the Bill, which is supported in its main intent on all sides of the House, by undermining the ability of the Government to have effective price control schemes. I would therefore ask the noble Lord to withdraw his amendment.

[Lord Mackay of Clashfern (Con)]

Did I understand my noble friend to say that, once a medicine or treatment has been approved by NICE through its technology appraisal process for clinical and cost effectiveness, it is supposed to be available to patients within three months?

Abortion (Disability Equality) Bill [HL]

Lord Mackay of Clashfern Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 27th January 2017 Lords Chamber

[Baroness Massey of Darwen (Lab)]

My Lords, my amendment is very simple. It simply seeks a review of the impact of the Bill on disabled children and their families and carers, and it seeks to ensure that support services are appropriate. I think it is a very sensible amendment; we should be reviewing what we do and taking great care to ensure that disabled people have the support they need. I thank the noble Lord, Lord Shinkwin, for giving us the opportunity to discuss his Bill. I am aware of the complexities and sometimes the anguish that surrounds prospective parents making a decision about abortion. I am also aware that the noble Lord, Lord Shinkwin, has very sensibly consulted on the Bill. I shall not go into disability rights. I have huge respect for people with disabilities and their families, who often achieve brilliantly. I am very grateful to the noble Lord, Lord Shinkwin, for meeting me this morning to talk about my amendment.

This past week I was at Strasbourg, at the Council of Europe. We discussed new technologies to prevent abnormality in the foetus, often from genetic problems. One of those present supporting further research described the dilemma of parents. He and his wife discovered that she was carrying a child with Down’s syndrome. They decided to allow the pregnancy to continue. My position on abortion is very simple: the final decision is the woman’s choice. I realise that such women now often discuss such a crisis with their partner; sometimes not. That should remain their prerogative. Abortion is not, of course, always linked to disability. The Bill would remove Section 1(1)(d) of the Abortion Act 1967, which allows for an abortion when,

“two registered medical practitioners are of the opinion … that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”.

If the Bill were to become law, parents would no longer have the option to end a pregnancy after 24 weeks when faced with a serious antenatal diagnosis, including in those cases where there is no realistic possibility of a pregnancy resulting in the baby surviving after birth. I think that is a real problem.

The Royal College of Obstetricians and Gynaecologists, a very learned body, has addressed the issue of foetal abnormality. Its report provides information to assist doctors and other health professionals in supporting women and their families when an abnormality is diagnosed. Since the last guidance was issued in 1996 there have, as we all know, been great advances in the detection of congenital abnormalities, resulting in early diagnosis and clearer indications for the offer of termination of pregnancy. The law relating to termination of pregnancy has not changed since 1990, although it has been tested in a number of specific cases. The 1967 Act, as amended, sets out the grounds and time limits for termination of pregnancy for foetal abnormality. Interestingly, there is no legal definition of “substantial risk”, or of “serious handicap”. An assessment of the seriousness of a foetal abnormality is considered on a case-by-case basis, taking into account all available clinical information.

Bodies have discussed this issue of foetal abnormality endlessly and it is now time to review what has been going on in relation to disabled people. Some may say that I am adopting a very clinical position. I am not. As I said earlier, I recognise that decisions on abortion may cause emotional stress, strain and anguish. My ethical stance, as I said, is that it is a woman’s right to choose. Therefore, I cannot accept many of the precepts of the Bill, much as I respect the noble Lord, Lord Shinkwin. My amendment simply seeks rational and objective evidence of the impact on disabled children to allow us to discuss such impact in a more analytical and considered way. I beg to move.

[Lord Mackay of Clashfern (Con)]

My Lords, the idea of having a review of the effect of legislation strikes me as a very good proposition in general, and in particular in relation to this Bill. Obviously, as the noble Baroness has explained, the precise consequences of the Bill, which I congratulate my noble friend on bringing forward, are not very easy to see, because there are overlapping provisions in the Abortion Act which might deal with some aspects at least of the particular circumstances that the noble Baroness referred to. In my judgment, this is a useful amendment and a similar principle might well apply in other legislation as well.

[Lord Alton of Liverpool (CB)]

My Lords, I agree with the noble and learned Lord and welcome the amendment from the noble Baroness. It strikes me that in this 50th anniversary year of the original legislation, which has led to some 8 million abortions, it would be a good thing if something like the amendment moved by the noble Baroness were attached to the original legislation. There is no sunset clause in it and it has never been reviewed, which I find staggering considering that 50 years have passed.

The amendment that the noble Baroness referred to, which was passed in 1990, extended the provisions of the 1967 legislation to enable the abortion of a baby with a disability, right up to and even during birth. As I pointed out at Second Reading in support of the Bill introduced by the noble Lord, Lord Shinkwin, this has led in some cases to abortion on grounds such as cleft palate, club foot and harelip. Indeed, 90% of all babies with Down’s syndrome, which the noble Baroness referred to, are now routinely aborted in this country. This is pretty close to eugenics and we need to consider much more deeply the issues that relate to the legislation governing the amendment that has been moved.

I sometimes think that instead of the tramlines on which we often find ourselves, with deeply held views—I respect the position that the noble Baroness takes; it is different from my own but I respect it—we need to go far more deeply into these questions. I am grateful, therefore, to the noble Lord, Lord Shinkwin, for giving us the opportunity to have this debate in your Lordships’ House.

NHS: Junior Doctors’ Pay

Lord Mackay of Clashfern Excerpts

Wednesday 27th January 2016 Lords Chamber

[Lord Prior of Brampton]

I agree. I do not think that this dispute is fundamentally about pay; it is much more profound than that. It is about a feeling among many junior doctors, which is shared by many senior doctors as well, that they are not properly valued and fully appreciated. That is the underlying cause of the problems we are facing.

[Lord Mackay of Clashfern (Con)]

Can my noble friend say what the Secretary of State, his Ministers and the senior members of the department are doing to promote the morale of junior doctors in the light of what he has just said? There must be a very important job to be done in that connection.

[Lord Prior of Brampton]

My Lords, yes; the Secretary of State takes this matter incredibly seriously, and as part of the contract that is under negotiation with the BMA at the moment we are looking very much at the number of hours that junior doctors have to work. Many have worked for too many hours in the past and we want to put a cap on the number of hours they will work in future.

Access to Palliative Care Bill [HL]

Lord Mackay of Clashfern Excerpts

Friday 23rd October 2015 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, in this country we have a very high level of skill in palliative care as a specialty in medicine, which I think is unique in the world. However, as the noble Baroness, Lady Finlay, said in opening this debate, the question is how to get that care to the people who need it, because they are spread across the country. The noble Baroness, whom I congratulate on bringing the Bill forward, knows much more than I do about the practical steps that are required to bring that about. The Bill gives a good level of practical scope to achieving what we want to achieve: that patients everywhere, as they approach the certainty of death, will have proper palliative care. Of course, sometimes one of the difficulties is knowing how long care may have to last. As we know from other studies, it is quite difficult to predict when death will happen, unless you bring it about artificially in some way. Therefore, sometimes the strains of palliative care have to go on for much longer than might have been anticipated at the beginning.

It would be completely wrong to leave out of this account the terrific work of the hospices. I remember going to a hospice in Edinburgh and meeting a lady who said to me, “If you have to die, this is the best place to do it”. My noble friend Lord Howard of Lympne is president of the national hospice body and I am sure that he will have more to say on this than I. It is also important to notice the need for palliative care, not only for cancer patients, where there is a degree of concentration on that, but also for people with heart disease and other illnesses which require specialist treatment.

I am particularly concerned with the area of giving palliative care to people in their own home in remoter areas far from centres, which is extremely important. Hospices have developed a way of dealing with these points in their own areas; the help of the Macmillan nurses in particular in that connection is very important. However, we know that it is difficult enough to get GPs in these areas, never mind elaborate palliative care. On the other hand, the palliative care may be done by instruction and principle, and the nurses are certainly vitally important in that.

One of the problems that exists in the general area of palliative care, particularly as between hospitals and your own home or a hospice, is the social care and funding of the service of health as distinct from the mode of funding social care. The problem of elderly people receiving palliative care in hospital who could have it equally and more comfortably at home has to do to some extent with that divergence of funding. It is a difficult issue, which I hope in due course may be addressed. It is disappointing to see people kept in a hospital bed at considerable expense when they want to be at home and—with the arrangements that can be made there—are fit to go home, simply because a care plan or whatever else you like to call the arrangements has not been made. They can therefore remain in the hospital for an unnecessarily long time.

The practical steps that are indicated in the Bill by the noble Baroness, Lady Finlay, are extremely valuable and important, and must go some way to achieving the aim which her Bill sets out to achieve. I congratulate her very warmly on that.

Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015

Lord Mackay of Clashfern Excerpts

Tuesday 24th February 2015 Lords Chamber

[Baroness Scotland of Asthal]

The real issue is whether we are going to abrogate our own responsibility. Is this something which we should ask an outside agency to do? Should we make a decision where we cannot come to a fully informed and articulated decision ourselves? If we are left in the position of saying, “I am not entirely sure about the research or the sagacity of the legal principles being advanced that enable me to pass this”, surely we should wait until that is clarified. If the House believes that it wishes to abrogate that responsibility because the nature of the issues we are dealing with are such that we feel comfortable about doing that, then of course that is always a matter for us. But I simply argue that what is being asked for is what I hope to be a relatively short period for these matters to be fully considered and fully put to rest.

I am very conscious of time but there are a number of arguments that we could put forward on the law, which would help to further exemplify that this matter is not easy. It is complex. The reason I emphasise that the law officers are disagreeing is the following. All law officers are in the same position. We are not here to tell people what they want to hear; we are here to tell them what they need to know. That should be valued by the House and I am sure that the House would want to be confident that doing this, which everyone hopes would be a good thing, should be lawfully done, too.

[Lord Mackay of Clashfern (Con)]

My Lords, one of the bases of my noble friend Lord Deben’s amendment to the Motion is this question of whether these regulations are lawful. I have studied quite carefully the opinion of the noble Lord, Lord Brennan, with a junior. I have seen other opinion as well but I am thinking now only of my own analysis of what the noble Lord and his junior said.

The first point is: is this lawful under the domestic law of the United Kingdom? My answer is that it is clearly lawful because, in 2008, this Parliament passed an amendment for the purpose of allowing such regulations to be made. That is as clear as it can be, and you do not need to be a lawyer to think that it is possibly quite a good point. The result of the opinion that the noble Lord, Lord Brennan, has given on this point is that that amendment would be held to be pointless. The courts are not very keen on reaching a conclusion that a deliberate action of Parliament is without point, so I feel very strongly that these regulations in draft are lawful, within the domestic law of the United Kingdom.

Now we come on to the complexities of the European law. Like the noble and learned Baroness, I have had some experience, now long past, of appearing before the Court of Justice in Luxembourg. Masters of complexity are very difficult to find at a greater level than it has. The essential point about this, however, is very clear. If the noble Lord, Lord Brennan, is right, it is not a question of these regulations being wrong; it is that the whole procedure that they are aiming to do is unlawful according to European law. That is fundamental. I do not believe that it is correct, because I do not think that the European Union has a treaty basis if we are dealing with medical procedures in the member states. The regulations that are referred to in great detail—huge definitions and all the rest of it—are intended to deal with the furtherance of the common market. Therefore, if you get a tablet in Germany that is supposed to be suitable for you, then it would be equally suitable in this country—

[Baroness Scotland of Asthal]

Can I just help the noble and learned Lord by saying that the thing that concerns me is Article 6.3 of the treaty and the way in which the charter has been incorporated to consolidate all the other European laws that were there before the making of the charter? It was the charter itself, and the way in which it has changed things, which makes the difference. I am not focusing primarily on the issues that have been referred to by my noble friend Lord Brennan in his opinion. I am really looking at those issues that arise as a result of the charter. I do not believe that their proper interpretation has been dealt with. I know that the House will not like me very much if I go through the whole charter, but I am very happy to share the issues which really concern me with the noble Earl, Lord Howe.

[Lord Mackay of Clashfern]

So far as I have understood the European treaties, they do not confer an authority as yet to interfere in the medical procedures within the member states. That is basic, and means that they cannot interfere or render unlawful a medical procedure such as the one proposed in these regulations. I could go into the detail of it—I am sure that would not be very acceptable—but I have two principal reasons for thinking that that is right. The first is that no challenge, so far as I know, has been offered by the European Commission to the provisions in the 2008 Act—which of course would be the right place to challenge this, if it were unlawful. This provision was definitely intended to make these regulations possible. The second reason that I advance is that in the opinion of the noble Lord, Lord Brennan, a reference is cited to a treaty dealing with these matters which is outside the European Union. It has a number of members of the European Union as signatories, but it has not been signed by the United Kingdom, nor ratified of course by the United Kingdom, so it is not part of our law. That is the kind of law that deals with embryology in a way that might have been difficult for us if it had been part of the European Union.

These are simple reasons why I think this situation is reasonably clear. Of course, I accept that the law officers have taken a different view. We have not had a chance of discussing it in detail with them. The other point I have to make is that no amount of discussion in a Joint Committee can settle this matter. The only place it can be settled is in a court of law, either the domestic courts of the United Kingdom or, if necessary, the Court of Justice of the European Union in Luxembourg. In a sense, if that is a real point, the sooner the regulations are passed the better so that they can be tested.

So far as the point made by the right reverend Prelate is concerned, I understood that the research that the HFEA was asking for has been done and is in the process of publication. It just does not happen to have completed publication. As he was speaking I was reminded that when I had the responsibility of taking the 1990 Act—the original Act in this area—through this House, the then Bishop of London took quite a prominent part in the discussions. His watchword was caution—and he thought that that amount of caution had been built into the procedure by having the HFEA examine individual cases and be in charge of the licensing.

--- Later in debate ---

[Baroness Scotland of Asthal]

My Lords, before the noble Earl starts his speech, may I apologise to the House? The noble Lord, Lord Alton, has clarified the fact that it was the Lord Chancellor and the current Attorney-General who voted against this measure in the House of Commons. I was told that two Law Officers had voted against, and I assumed that the two Law Officers must have been the right honourable Dominic Grieve and the current Attorney-General. It was not: it was the Lord Chancellor and the current Attorney-General. I should apologise for that; it was a misunderstanding of the information that I was given.

[Lord Mackay of Clashfern]

It would be right to say that the Lord Chancellor is not a Law Officer of the Crown.

[Baroness Scotland of Asthal]

My Lords, that is why, having been told that it was the two Law Officers, I came to the conclusion that the Lord Chancellor was not among them.

Adult Social Care Contracts

Lord Mackay of Clashfern Excerpts

Wednesday 11th February 2015 Lords Chamber

[Earl Howe]

My Lords, the principle that the noble Baroness articulates is, I am sure, applicable in some areas. I hope that she will be reassured to know that the department has developed statutory guidance for the Care Act to support local authorities, including commissioning. The guidance to the Act directs local authorities to ensure that all packages of care and support that are arranged are good quality and do not undermine people’s well-being. Furthermore, the department will, with partners, be developing a set of commissioning standards which will help local authorities to improve their commissioning practices.

[Lord Mackay of Clashfern (Con)]

My Lords, can the noble Earl tell us whether the Care Act effectively prevents the practice to which the noble Lord, Lord Campbell-Savours, referred?

Medical Innovation Bill [HL]

Lord Mackay of Clashfern Excerpts

Friday 24th October 2014 Lords Chamber

[Baroness O’Neill of Bengarve (CB)]

My Lords, I am sorry to say that I am another non-medic. Indeed, I am a philosopher by trade and training but I would like to make three points. First, I was puzzled at Second Reading and again this morning by a certain divergence of vision among those of our medical colleagues with surgical experience and those who are not surgeons. It seems that, on the whole, those with surgical experience are quite happy with current legislation. They feel that they must innovate and that the non-standard anatomy, which I have learnt that we all enjoy, means that they cannot go in there with a rule book and just stick to it. I have not heard quite the same uniformity from our clinical colleagues who are non-surgeons. I hope that we could be a bit clearer about whether surgical procedures should be in here at all.

Secondly, the question of unintended consequences has already been raised by the noble Lord, Lord Giddens, and others. Some quite process-heavy amendments have been proposed which deserve rather more picking apart than they have already received. We do not wish to put in so much process that we successfully stifle the very innovation that it is the purpose of the Bill to achieve. I hope that we can come back to those amendments.

Finally, and with trepidation as I am standing right behind the noble Lord, Lord Pannick I say that, there is a bit of a difference between reasonableness and proportionality. They tend to come as twins. I am entirely in favour of reasonableness but proportionality suggests that you have at the back of your mind enough data to say what is proportionate and what is not. I fear that introducing requirements for proportionality may actually wreck the possibility of innovation in areas where part of the objective is to obtain the data, because they are not yet there. I would have thought that from a patient’s point of view it is reasonable to go for a treatment for which there are not yet complete data, and therefore no judgment of proportionality can be made, but which nevertheless is reasonable because the other options are dire.

[Lord Mackay of Clashfern (Con)]

My Lords, I had not intended to take much part this morning but, my name having been mentioned, I am stimulated to respond. The Bill is about innovation. Therefore, if a doctor is attacked for some failure in respect of innovation, the ordinary rules of defence that are presently available do not seem appropriate. Our colleagues who are excellent innovators have managed to avoid the necessity for litigation as a result of their innovations. However, if by any chance any of them were challenged, how would they go about their defence?

I make this basic point in answer to my colleague the noble Lord, Lord Pannick. He quoted what I said at Second Reading. It will not surprise your Lordships if I happen to hold still to what I said then. The point is that when there is an innovation, there is not much material on which to judge whether it is reasonable or proportionate. If there were in the existing practice, it would not be an innovation. The problem is therefore that the ordinary formulations of reasonable and proportionate with which lawyers are very familiar—I am enough of a lawyer to be familiar with them—are not really appropriate. I believe that the test which my noble friend Lord Saatchi’s Bill originally had, and which is preserved among all the innovations that have taken place since, is in Clause 1(4)(a):

“Nothing in this section … permits a doctor to administer treatment for the purposes of research or for any purpose other than the best interests of the patient”.

That is a simple test which the doctor must face at the time of innovation and, so far as I am concerned, elaboration with the familiar legal phrases that are very dear to lawyers is a mistake. I therefore adhere to what I said at Second Reading.

I should perhaps say that I am not entirely without experience in this area for when I was in practice in Scotland, which is now a long time ago, I did quite a lot of work in the Medical and Dental Defence Union of Scotland area. My very first appearance as a counsel in this House was in respect of a doctor’s negligence. My experience was over quite a long period; it may not have been very good but it was certainly extensive. I very much support the Bill and hope that we need not get around to voting on it today. There is plenty of scope for discussion about these matters and a good deal of substance in many of the amendments. We should discuss them further and, if necessary, have votes on Report.

[Baroness Wheeler (Lab)]

My Lords, on behalf of these Benches I welcome the commencement of the Committee stage of the Bill. At Second Reading we underlined the necessity for close scrutiny by this House, and we are pleased that the opportunity has been presented to us. In that debate there was both strong support for and strong reservations about the Bill, with many questions and issues to be addressed. We have moved on since then, but despite acknowledged progress made on safeguards for staff and patients contained in the amendments from the noble Lord, Lord Saatchi, there remain crucial reservations and concerns from key parts of the medical profession and from patients’ organisations, as we continue to discuss today.

We commend the work that the noble Lord has undertaken on the Bill, and feel that the changes on patient and staff safety signify improvements to it. It is reassuring that his proposed amendments have the backing of Sir Bruce Keogh, the NHS medical director, and the Government, and that the common-law Bolam test would remain unaffected by the Bill. The noble Lord, Lord Saatchi, knows that there is strong support for the principles and the intent of what he is trying to achieve. Labour has always strongly supported efforts to put innovation at the heart of the NHS and to bring innovative treatments to patients faster.

After Second Reading, the Minister for Health, Dr Daniel Poulter, responding to a Parliamentary Question in the Commons from Labour on the progress of the Bill, acknowledged the Government’s support for the principles of the Bill but emphasised that the amendments were necessary,

“to ensure it does not: put patients at risk; deter good and responsible innovation; place an undue bureaucratic burden on the National Health Service; or expose doctors to a risk of additional liabilities”.

These four key tests are what we should keep firmly in focus today, and I hope that the noble Lord, Lord Saatchi, and the Minister will address whether they consider that the tests have been met in the revised Bill in their responses to the issues that have been raised today.

I will limit myself to speaking on just some amendments in this group. Like other noble Lords, I look forward to hearing from the noble Lord, Lord Saatchi, and the Minister on the key issues raised by the many experts in this field who have spoken today. On patient safety, as I have stressed, we welcome the efforts made by the noble Lord, Lord Saatchi, in his amendments to address widespread concerns that the overall Bill would encourage reckless rather than responsible innovation and put patients at risk. We support the new emphasis on reasonable and responsible innovation contained in amendments in the next group, as well as the reference in Amendment 10 in this group from the noble Lord, Lord Pannick, and my noble friends Lord Turnberg and Lord Winston, to the doctor needing to act in a manner that is both reasonable and proportionate. The new provisions in Amendments 8 and 9 are important because we recognise that they are designed to provide that a doctor’s departure from the existing range of accepted medical treatment for a condition is not negligent where the decision to depart is taken responsibly.

We also welcome the deletion of the references in the previous Bill to the doctor’s responsible officer and appropriately qualified colleagues in respect of the staff to be consulted about the proposed treatment. These caused much confusion among both supporters and people with concerns about the Bill, and the new reference in Amendment 16 to the need to obtain the views of one or more appropriately qualified doctors in relation to the proposed treatment is clearer—although it is a critical area that will also need to be developed under guidelines, codes and/or regulations. It needs to be clear who is an appropriate qualified doctor. The new definition of a doctor being,

“appropriately qualified if he or she has appropriate expertise and experience in dealing with patients with the condition in question”,

is also an improvement to the Bill, although the question of the independence of the doctor whose opinion is being sought is a critical one.

My noble friend Lord Turnberg addressed this earlier with much force under Amendment 7. Key stakeholders have stressed that requiring the doctor to have regard to the opinions of other professionals responsible for patients’ care, together with the requirement for written consent to be sought from at least one other doctor who is independent of the responsible doctor, would be a welcome step in providing more clarity to the process.

There is an extremely worrying potential for conflict of interest here—for example, in the supporting doctor’s involvement in the development of the drug or treatment in question—and clear guidelines and rules of engagement will be essential. Sir Robert Francis QC points to the problem that arises from the choice of the appropriate qualified doctor to consult resting entirely with the doctor wanting to offer a new treatment. He or she is free to choose someone in his own partnership or laboratory, or someone with a commercial interest in promoting or selling the treatment. It is less than clear who is the final judge of whether the individual is appropriately qualified. There is also concern among a number of stakeholder groups that pharmaceutical companies could put undue pressure on doctors to try out potentially dangerous treatments, and this concern will also need to be addressed.

Concerns remain that the involvement and consent of patients to untested innovative treatments are not more explicitly in the Bill. Amendment 14 from the noble Baroness, Lady Masham, addresses this issue by specifying the need to obtain informed consent in light of the aims, processes and risks. I look forward to hearing further from the noble Lord, Lord Saatchi, on how he considers the Bill can address this, as this point has been raised by a number of noble Lords in the debate.

--- Later in debate ---

[Lord Pannick]

My Lords, I added my name to Amendment 6 because I agree with the noble Lord, Lord Winston, that it would improve the Bill to provide a definition of the core concept of innovation. As the object of the Bill is to provide greater clarity for medical practitioners, it is surely perverse not to include any definition of that core concept in the Bill. No doubt Amendment 6 needs improvement, perhaps for the reasons given by my noble friend Lord Kakkar, but I could not be persuaded that it is beyond the very considerable skills of the draftsman of the Bill, Daniel Greenberg, to provide a definition of innovation.

[Lord Mackay of Clashfern]

My Lords, the word “innovation” is a straightforward word in the English language. I am not sure that clarity is necessarily brought by multiplying it by how many in this amendment. Apart from anything else, one of the possibilities of innovation is for a doctor to say, “The standard treatment for this is a particular course of operation and chemotherapy. My belief is that that would not ultimately save you; it would subject you to a lot of pain and suffering and so on. The best thing, as far as I am concerned, is that you should not have any further treatment”. I am not sure whether that comes under the definition in Amendment 6, but if we want simplicity, we should go for perfectly clear English words. “Innovation” is one of them.

Care Bill [HL]

Lord Mackay of Clashfern Excerpts

Wednesday 7th May 2014 Lords Chamber

[Baroness Barker (LD)]

My Lords, if it helps the Minister as he waits for some assistance in his response, I speak as one who has taken part in many of the discussions over the years. The Minister was right to acknowledge the work of a large number of people. One person who should be added to his list is the noble Baroness, Lady Greengross, who has worked tirelessly on this matter for some time. It is a measure of how long this debate has been running that when we first began to discuss it in this House, there were no direct payments for social care to anybody. Therefore, the matter did not arise. It is therefore extremely helpful that the Joint Committee on Human Rights has posed the question that it has. When we started, the scope to argue over what was a private arrangement and what was a public function was considerably less than it is now. Now, someone who has been assessed as needing and being entitled to social care may make an arrangement with a family member using a direct payment, but the question of whether it is a public function that is being discharged is still the one that goes to the heart of whether the Human Rights Act applies. It is extremely helpful that the Joint Committee has raised that question. Having got this far to overcome what has long been acknowledged as a tremendously unfair anomaly—whereby one older person in a residential home has rights and the person in the next room does not, simply because of who arranged, rather than funded, their care—let us get it right, at last.

[Lord Mackay of Clashfern (Con)]

My Lords, as I took part in the debate in this House that secured the original amendment to the Bill, I should very much like to associate myself with the remarks of thanks to my noble friend Lord Howe and to Norman Lamb and others in the other place. I think the root of this difficulty was the decision of this House from which Lord Bingham dissented. That was an indication that the decision might require revision in due course.

[Lord Rix (CB)]

My Lords, on behalf of learning disabled people and other vulnerable people I should like to thank the Government for making this amendment, which certainly ensures that their care will be greatly attended to in the future.

--- Later in debate ---

[Lord Mackay of Clashfern]

I support the view that we ought not to have too many impediments to effective action. When this matter was first raised in this House, when the Bill was being considered, the amendment dealing with a special administrator came in very late and there was a certain degree of feeling that it should have been dismissed. But I am glad to say that the House decided to continue with it, and of course the matter has been carefully and fully considered in the other place.

The procedure for special administration may be needed quite urgently in some places in the not-too-distant future. I hope not, but there is a risk of that. Therefore, it is extremely important that we have an acceptable, effective service and provision in position to deal with the special administrator and his powers as soon as possible. I thank my noble friend and his colleagues for advancing to this extent.

[Earl Howe]

My Lords, this has been an extremely helpful debate. I first pick up a point emphasised by the noble Baroness, Lady Murphy. Trust special administration is indeed a last resort, which was why I took care to spell out the other steps that we might expect to have taken place before administration is even considered. But the previous Government realised, rightly, that we have to have a mechanism in statute designed to deal with long-standing and apparently intractable situations in provider trusts—and not just to have a mechanism of that sort, but one that provides a reasonably swift resolution to the problem of significant failure.

The previous Government provided for a defined statutory timetable for the TSA process and they were absolutely right to do that. Indeed, as the noble Baroness, Lady Finlay, generously acknowledged, her own amendment, had it been accepted, would allow other affected commissioners to consult the public further about the administrator’s final recommendations. Consultation would be through the usual NHS process, taking about 12 weeks. It would fall completely outside the timetable of the trust special administrator and the net effect of such a change would be to reverse the effect of Clause 118. The administration regime would not be creating a complete and timely solution to the problem. It would render the strict legal timetable for the regime ineffective and delay what would be an uncertain resolution very significantly. I hope that noble Lords will not wish to follow that part of the noble Baroness’s amendment. I was glad to hear her say that she would not be moving it.

The noble Baroness asked me whether the committee to be chaired by Paul Burstow on the guidance will continue. Yes, it will. The Government’s commitment in relation to a committee chaired by my honourable friend to review the guidance still stands. The guidance is still important for setting out in detail how the statute should operate. The Government believe that there is significant value in advice from the committee about the guidance. She was right to say that that process should give the public and patients confidence that this is not a set of guidelines dreamt up by Ministers and civil servants on their own.

The amendment of the noble Lord, Lord Hunt of Kings Heath, suggests that the guidance should be laid before Parliament. I need hardly say that that idea falls considerably outside what is usual practice. It is not usual practice to lay statutory guidance before Parliament in the way that the amendment envisages. However, in recognition of the keen interest of parliamentarians in both Houses, we invited my honourable friend Mr Burstow MP to chair a committee of MPs and Peers to consider the guidance. I hope that that mechanism will be sufficient for the kind of buy-in from patients and the public that I have referred to, and will command confidence.

The noble Lords, Lord Turnbull and Lord Hunt of Kings Heath, referred to the situation where commissioners or providers declined to accept the administrator’s recommendation. The noble Lord, Lord Hunt of Kings Heath, asked whether a clinical commissioning group has a veto. Each commissioner of services provided by the trust under administration and affected trusts has to give agreement for the draft and final TSA reports to go forward, but NHS England has a role—which is already in statute—in deciding whether to agree the TSA reports if not all the CCGs agree. I believe that that is right. We cannot expect or oblige every CCG to agree to the TSA proposals in every single case. There has to be a way of resolving any lack of unanimity and this is the mechanism that we believe is right.