Tobacco Products and Nicotine Inhaling Products (Amendment etc.) (EU Exit) Regulations 2018
Lord O'Shaughnessy Excerpts(5 years, 8 months ago)
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Lord O'Shaughnessy
That the draft Regulations laid before the House on 1 November be approved.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)
My Lords, in introducing the regulations before the House today, I want to stress how critical they are in maintaining the UK’s commitment to be a world leader in tobacco control as we leave the European Union. The Government strongly believe that tobacco control legislation is crucial for stopping people smoking and reducing the harms associated with smoking. Whatever the outcome of the Brexit negotiations, that belief is unwavering.
As noble Lords know, the Government are focused on the successful passage through Parliament of the deal which has now been reached with the EU. Nevertheless, we continue to plan for all scenarios. The regulations before us have been laid for a no-deal scenario. If the UK reaches a deal with the EU, the department will revoke or amend this instrument to reflect that deal.
This instrument will ensure that the UK domestic legislation that implements the two main pieces of EU tobacco legislation—the tobacco products directive 2014/40/EU and the tobacco advertising directive 2003/33/EC—functions effectively after exit day. The instrument, made under the EU (Withdrawal) Act 2018, makes appropriate amendments and revocations to correct deficiencies in UK legislation and retained EU legislation.
Regardless of one’s views on Brexit, I see no reason why the amendments we are proposing through these regulations should not be supported. The proposed amendments are critical to ensuring that there is minimum disruption to tobacco control in the event that we exit the EU without a deal in March 2019. I would like to draw the attention of noble Lords to three main changes that this instrument would introduce.
First, in the event of a no deal, the UK will need to develop its own domestic notification systems for companies that wish to sell tobacco products and e-cigarettes to the UK market. The notification process is essential for ensuring that companies are complying with legislation on product standards. Both Public Health England and the Medicines and Healthcare products Regulatory Agency have commenced work to ensure that domestic notification systems are in place and functional by exit day.
Secondly, in the event of no deal, the UK will not hold copyright to the EU library of picture warnings for tobacco products. Requiring the industry to continue to use these pictures would breach copyright law. Picture warnings are a key part of tobacco control, and it is therefore extremely important that we continue to require the inclusion of graphic picture warnings on tobacco products. The UK has therefore recently signed an agreement with the Australian Government to obtain picture warnings free of cost, and I want to take this opportunity to express this Government’s gratitude to the Australian Government for their assistance in this matter. I would also note that this approach has received endorsement from Action on Smoking and Health, which has said about our proposals on notification systems and picture warnings that they are, “pragmatic and practical, minimising the amount of additional work involved if there were to be a no deal Brexit. We support the Government proposals for dealing with this short-term issue”.
Thirdly, this instrument proposes a transfer of powers from the Commission to the Secretary of State, permitting the Government to respond to emerging threats, changing safety and quality standards and technological advances.
In introducing this instrument, I must be clear that it will have some impact on the tobacco and e-cigarette industry. The department ran a short technical consultation in October to seek feedback on the practical issues that will affect the industry in a no-deal situation. We received 32 responses. Tobacco control stakeholders showed support for the continued use of picture warnings and amendments to the notification system as an effective way of stopping people smoking and as a means of harm reduction. The tobacco industry did raise concerns about the timing of implementation and cost, primarily in relation to the changes to picture warnings. However, I would stress that we did not receive detailed evidence or a breakdown of costs.
As noble Lords know, we have no control over timing issues—or at least this government department does not—as the implementation timetable is dictated by the timing of EU exit. The Department of Health and Social Care has therefore consulted with external experts, who have confirmed that the change in timescale is likely to be difficult but manageable. To mitigate these issues raised in the consultation by the industry, we intend to publish detailed guidance on picture warnings and the notification process in January 2019.
Before closing, I would also like to stress that the devolved Administrations have provided consent for the elements of this instrument which are considered devolved.
I hope that noble Lords can see that this instrument constitutes a necessary and important measure to ensure that our tobacco control regulations continue to work effectively after exit day in the event of no deal. I must emphasise that, due to the instrument being made under the withdrawal Act, the scope of the amendments in it is limited to achieving this objective. At an appropriate point in the future, the department will review whether the UK’s exit from the EU offers us opportunities to reappraise current regulation to ensure that we continue to protect the nation’s health and so that the UK remains a global leader in smoking cessation and tobacco control for many years to come. I beg to move.
Lord Hunt of Kings Heath (Lab)
My Lords, I am grateful to the noble Lord for this opportunity to discuss e-cigarettes. It is also a great opportunity to press the Minister on the Government’s Brexit situation. I do not think that we have heard him on this matter before. It is interesting to reflect on the confidence set out in the Explanatory Memorandum that,
“as a responsible government, we will continue to proportionately prepare for all scenarios”.
That is just as well because I do not share the Minister’s confidence that the future is at all clear or, indeed, that all scenarios have been planned.
I am sure the regulations are sensible but the Explanatory Memorandum takes us back to our debate when they originally came through your Lordships’ House, during which a number of us expressed concerns that the directive on which they were based takes too draconian a view on e-cigarettes. I happen to think that e-cigarettes are one of the most successful public health measures to help reduce smoking that we have ever seen. It is a great pity that some elements of the public health community that I know well and love have such a downer on e-cigarettes that they have encouraged a disproportionate approach to their regulation. In Grand Committee, the argument was put that e-cigarettes should be regulated in a completely different way from tobacco-based products. I remain convinced of that.
Of course, we must be very careful about the potential impact on young people. I know there are those who think that attractive advertisements and the way e-cigarettes are marketed can sometimes lead young people to take up smoking. The evidence for that is very dubious. We know that e-cigarettes are attractive to people over whose heads most public health campaigns completely fly. Although I fervently hope that we do not exit the EU next March, if we do and if the Government bring forward at some point new regulations on tobacco products in general, I hope they will take note of our debates and look at e-cigarettes in a completely different way.
Baroness Thornton (Lab)
My Lords, I apologise to the House for being a minute or so late. I am afraid that business moved too quickly and the lift too slowly.
As the Minister said, the current regulations for tobacco and related products are designed to promote and protect the public’s health. Speaking as a veteran of tobacco regulation from the previous Labour Government and the Minister responsible for the point of sale retail advertising regulations that put tobacco products out of sight in our shops and supermarkets, all those actions were rigorously and energetically opposed by the noble Lord’s party and the Minister’s predecessor but one. I welcome the Government having definitely seen the light on this; it is wonderful. I am pleased to learn that the Government’s priority is to maintain the same high standards after the UK leaves the European Union, if that is indeed what happens.
The noble Lord and I are discussing regulations that will be necessary if there is no deal. I suspect they are the first of many. We have a whole load of embryonic and blood things to discuss next week. I wonder whether that is really a productive use of his time or mine.
On what these regulations do, in the event of no deal we will be obliged to introduce legislation to ensure that the policies and systems in place to regulate tobacco products and e-cigarettes will continue to function effectively and maintain continuity with current arrangements. The website and the Explanatory Notes use the words “where possible”, so I suppose my first question to the Minister is to explain the words “where possible” and where the current arrangements might not be possible.
If the UK leaves the European Union in March 2019 with no agreement in place, that will mean, as the noble Lord said, that the tobacco products directive and the tobacco advertising directive will no longer directly apply to the UK—which is ironic, as we were the pioneers in these matters all those years ago. UK domestic law that implements these directives, such as the Tobacco and Related Products Regulations 2016, would remain in force.
My understanding is that these regulations’ purposes are threefold: to introduce a new domestic system to allow producers to notify e-cigarettes in accordance with existing rules; to introduce a new domestic system to allow producers to notify tobacco products in accordance with existing rules; and to introduce new picture warnings for tobacco products, already mentioned by noble Lords, based on the picture library owned by the Australian Government. The noble Lord and I have both learned that the pictures in use at the moment come from a library based in Brussels. We will no longer have access to it.
I thank ASH for its views and vigilance on these important matters, and for its participation in the consultation process. I agree with it that the system set out for notification of e-cigarettes and novel tobacco products in the consultation document is pragmatic and practical, and would minimise the additional work involved in the notification process if there were to be a no-deal Brexit. Products notified to the UK prior to the UK leaving the European Union would not require re-notification and data will be accepted in the same format as currently submitted. Those arrangements seem satisfactory.
For the purpose of providing an alternative to the current picture warnings in the event that the UK leaves the EU with no deal, since we would no longer have access to the rather revolting and graphic pictures in the SI—I have not seen any other legislation with pictures in it, but this instrument has them; I suggest that if noble Lords have not read the statutory instrument they should at least open it and look at the pictures it contains—the Minister has said we will switch to the ones used in Australia, which I gather are even more horrible. However, I remind the Government that, in the longer term, the Tobacco and Related Product Regulations 2016 require the Secretary of State to review the regulations and publish a report before 20 May 2021. This review needs to examine the objectives intended to be achieved by the regulatory provision made by these regulations, and to assess how far they have been met and whether they remain appropriate. That will allow a review of quite a fast-moving area in terms of product development to take place. Does the Minister agree that is the case?
For the purpose of providing an alternative to the current picture warnings in the event that the UK leaves the EU with no deal, switching to the pictures from Australia is a short-term quick fix for this emergency. However, current best practice in Australia and the UK is to rotate, regularly review and update those health warnings. Therefore, it is essential that in the longer term the Government review the warnings—they are currently being evaluated by the Australian Government—and find ways to increase the number to allow for rotation, as is currently the case. When can we expect that review to take place?
I do not need to add to my noble friend Lord Hunt’s remarks about the importance of vaping and its role in reducing smoking. These statutory instruments serve their purpose.
Lord O’Shaughnessy
I am grateful to all noble Lords who have spoken on this statutory instrument. It is hard to believe that it has taken us this long to have our first Brexit outing on health issues. It could be the first outing of many and we may not always be in such agreement, but I am happy that we seem to be on this occasion.
On the point made initially by the noble Lord, Lord Hunt, and later reinforced by the noble Lord, Lord Rennard, and the noble Baroness, Lady Thornton, about e-cigarettes, we have been working in a framework decided at a European level and have made the most of it. It inevitably involves some restrictions, whose boundaries we have tried to push in order to have what I think is the most rational and effective approach in Europe. It has worked. As we all know, it has contributed to improved smoking cessation and low use by young people—take-up among young people being one of the fears, which we are unfortunately seeing in the States. Some research is still required to understand better both the behavioural and the health impacts of vaping products, but the Government have no doubt about their central role in dealing with what is still one of the biggest public health issues that we face. I can give an assurance that we keep an open mind about the right way to regulate these products, bearing in mind their almost entirely positive benefits.
It is worth emphasising, as noble Lords have done, that the purpose of the instrument is not to change policy; it is to provide continuity and make sure that there are fixes. However, as the noble Lord, Lord Rennard, and the noble Baroness, Lady Thornton, pointed out, the review of directives that the Secretary of State has a duty to fulfil gives us an opportunity to think about how they are operating in this and other domains. Certainly, we will fulfil that by 2021, but the Secretary of State may decide to do something sooner —of course, that is not something I can commit him to at this point. The policy is working and we want to make the most of it. For example, some of the restrictions on advertising may be stopping realisation of the full benefits of the use of e-cigarettes in smoking cessation; those are the kind of things we would want to think about.
The noble Lord, Lord Rennard, and the noble Baroness, Lady Thornton, talked about the Australian pictures. They are indeed more gruesome—it clearly shows that Australians have a higher threshold for what appals them. We are grateful to the Australian Government for helping us get through the transition by giving us those gruesome photos. It is also worth noting that Australia has a very successful smoking cessation regime—we are not taking these images from just anybody; we are taking them from a country that is doing really well, so there is good reason to think that they will be effective.
The noble Baroness, Lady Thornton, asked about rotation. Clearly, we are going to need to work with the Australian Government as well as design our own pictures. In a no-deal scenario we would need to do that so that we can have rotation and make sure that people do not grow desensitised to these pictures, which is of course one of the problems with them. Of course, in a no-deal scenario we may be able to work with a number of different jurisdictions. It may be possible to assemble a library that goes beyond one or two countries, but that is not something we have a timetable for yet.
In answer to the question from the noble Lord, Lord Rennard, I say again that there is absolutely no going back on the progress we have made on smoking cessation. The Government are a vigorous promoter of tobacco control. We know the health benefits: pretty much the best thing you can do for your health if you smoke is to stop, so I can reassure noble Lords that there is no going back.
On the final question regarding the language—“fixing where possible”—the point is that we are acting under the aegis of the European Union (Withdrawal) Act 2018, which gives us the power to deal with certain things. Let me give an example of what it does not allow us to do, because of the framework of primary legislation. In its 20th report of the 2016-17 Session, the Joint Committee on Statutory Instruments found some defective drafting, but we do not have the power under the withdrawal Act to fix that through this process; we would need some other process. So we have used all the powers we have under the withdrawal Act to make fixes and provide continuity in key areas, but it does not necessarily follow that we have fixed everything through this process; that will have to be done through other processes. That is just the limit of what we can do through primary legislation.
I hope I have been able to answer noble Lords’ questions and provide reassurance about our commitment to smoking cessation and, indeed, about our open-mindedness to future policy changes that may be required for us to go further and take advantage of some of the technologies available to us. On that basis, I beg to move.
Sexual Health Services
Lord O'Shaughnessy Excerpts(5 years, 8 months ago)
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Lord Cashman (Lab)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. I refer your Lordships to my registered interests; in particular, I am patron of the Terrence Higgins Trust.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)
My Lords, local authorities in England commission comprehensive open-access sexual health services based on the needs of their communities. Services have responded to meet increased demand, with attendances at sexual health services increasing by 13% between 2013 and 2017, from 2.9 million to 3.3 million.
Lord Cashman
I thank the Minister for that response. Much has indeed been achieved but there are worrying trends. As we know, sexual health services are funded by local authorities, which have endured reduced funding year on year and, to maintain other essential services, councils have disproportionately cut funding to sexual health services. Clinics have closed, staffing levels have reduced and capacity has reduced further because walk-in sessions have been replaced by appointment-only sessions that cap demand. The overall effect has been to reduce access to screening and treatment, with subsequent increases in sexually transmitted infections and considerable public health impacts, notably infertility, teenage pregnancy and HIV transmission. I therefore ask the Minister, in the context of these worrying developments, how the Government will ensure that councils maintain an adequate level of comprehensive sexual health service provision.
Lord O’Shaughnessy
I am grateful to the noble Lord for raising this important issue. First, it is worth saying that the public health grant to local authorities is ring-fenced, and that is meant to provide for sexual health services among others. He mentions STI rates and says attendances have increased. I know that service configurations are happening and there are changes in different parts of the country. It is important that attendances have increased. I think there is a mixed picture on ST infections; some are increasing but there is good news. The noble Lord mentioned teen pregnancy—not that that is a sexually transmitted disease, of course—the rates of which are down. HIV diagnoses are down and we see a positive picture in the new data today, so there is cause for optimism. As we look to the future in the spending review, we will be making the case for improved services at sexual health clinics through the public health spend.
Lord Patel (CB)
My Lords, what impact will the closure of sexual health services on the one hand and the reduction in the capacity of other services on the other have on the prevention strategy for HIV in particular and the PrEP trial?
Lord O’Shaughnessy
As I have just said to the noble Lord, Lord Cashman, we are seeing a change in services. More services are going online, for example. An e-service for sexual health was launched in January 2018, with 20,000 kits being distributed. So there is a change in the health services being provided. I can tell the noble Lord that there has been no impact on the PrEP trial; indeed, we have already recruited nearly 10,000 of the 13,000 people to that trial, and we are hoping it will be successful.
Lord Black of Brentwood (Con)
My Lords, I declare an interest as a trustee of the Bloomsbury Network. Does my noble friend agree that, with the advent of PrEP and the certain knowledge that people on effective medication cannot pass on HIV, we now have within our grasp the possibility of eliminating new HIV infections, and therefore the burden on sexual health services? Will the Government make a clear commitment to achieving that noble goal of zero new HIV infections by 2030 and ending once and for all this horrible disease?
Lord O’Shaughnessy
My noble friend makes an excellent point: we have cause for optimism not least because of the work that he, the noble Lord, Lord Cashman, and so many others have done. I mentioned the decline in diagnoses year on year. The UK has met the UN’s 90-90-90 ambition in every part of the country, including London. Having done that, which is a huge achievement, of course we should set our sights higher. I should be very happy to discuss with noble Lords exactly what our target should be. Clearly, a zero infection rate must be where we want to get to in the end.
Baroness Barker (LD)
My Lords, given the Minister’s Answer to the noble Lord, Lord Cashman, about the general population, does he agree that the over- representation of people from black and minority ethnic communities, with high incidences of HIV and late diagnosis, is a continuing problem that Public Health England has yet to address?
Lord O’Shaughnessy
I agree with the noble Baroness that that is a continuing problem. Infection with certain diseases is disproportionately distributed. Testing and screening are not taking place uniformly among different groups. Public Health England published an action plan about a year ago on how to improve sexual health services and is trying to address that specific issue.
Baroness McIntosh of Hudnall (Lab)
Following on from the question asked by the noble Baroness, Lady Barker, what is the current assessment of the undiagnosed incidence of HIV? There is usually a quantum that is reckoned to be about where we are with undiagnosed incidence. The Minister says that diagnoses have gone down and that that is a good thing, but it is not necessarily. Can he give us some information on that?
Lord O’Shaughnessy
Of course, I am very happy to. In this case, it is good news that diagnoses are going down because 92% of people with HIV in the UK have been diagnosed. The UN target was 90%, and we have exceeded it. That leaves 8% to reach and, clearly, we want everyone diagnosed and on treatment, with their viral loads suppressed, so that no new infections can take place.
Lord Scriven (LD)
My Lords, the importance of PrEP has been mentioned by noble Lords. The British Association for Sexual Health and HIV has shown in its survey that in the past year, in 25% of local areas there was reduced access to PrEP and in 11% of areas no access at all. What are the Government doing to ensure equity of access to PrEP across the country?
Lord O’Shaughnessy
I shall certainly look into that issue. This is the largest trial of its kind in the use of PrEP, and we are determined to ensure that all 13,000 people are recruited to it, and that they are spread across the country. As I said, we have already reached nearly 10,000. I shall do a little more digging on that and write to the noble Lord.
Baroness Thornton (Lab)
My Lords, what actions are the Government taking to end HIV-related stigma and discrimination, which unfortunately still exists?
Lord O’Shaughnessy
First, we are giving it an extremely high profile. Indeed, Governments have given it a high profile since the noble Lord the Lord Speaker raised the issue in the 1980s. All Governments since have been committed to that and this Government continue to be so. We do that through a mixture of public health campaigns and working with schoolchildren to ensure that there is no stigmatisation or bullying of any groups of young people with HIV.
Baroness McIntosh of Hudnall
My Lords, as there is a moment left, I ask the Minister to return to the question I asked him. Forgive me if I misunderstood his answer, but I do not think he said what the current assessment is of undiagnosed HIV in any of the populations. If he has that information, perhaps he could let me have it in writing.
Lord O’Shaughnessy
I thought I said that 8% are currently undiagnosed across the country. As to how that is split across different socio-demographic groups, I shall have to write to the noble Baroness with more detail.
Health: Cancer
Lord O'Shaughnessy Excerpts(5 years, 8 months ago)
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government what steps they are taking to improve (1) early diagnosis of, and (2) survival rates for, cancer.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)
My Lords, we know that early cancer diagnosis improves survival. Last month, the Prime Minister announced a package of measures to be rolled out nationally with the aim of seeing three-quarters of all cancers detected at an early stage by 2028. Since 2010, cancer survival rates have improved annually and are currently at a record high. Around 7,000 people who are alive today would not have been had mortality rates remained at the 2010 levels.
Lord Hunt of Kings Heath (Lab)
My Lords, the targets set by the Prime Minister and the progress made are obviously welcome, but the Minister will be aware that data from the national cancer registration service has shown that the early diagnosis rate for cancers has been static for the past two years, with 16 CCGs showing a decline in the rate. Patients are reluctant to go their GPs, GPs refer less than in other countries and hospitals are overwhelmed by referrals. How are we going to see a step change in the approach so that our success rates are more closely aligned to those of comparable countries, and does the Minister agree that we need to see the spread of rapid diagnostic centres?
Lord O'Shaughnessy
I do agree with that point, and indeed it was one of the policies announced by the Prime Minister in October. Of course we need to make more progress on early diagnosis. One-year survival rates have improved in the past 10 years but we still lag behind our continental neighbours, as we have done for decades. The noble Lord mentioned GP referrals, which have been in the news this week. The threshold for referrals from GPs to specialist cancer doctors has been reduced in line with the NICE guideline. The consequence has been that in the past seven years, the number of people referred to a specialist cancer doctor has increased by 1 million—that is, an increase of 115%. Therefore, we are seeing more referrals at an early stage. We are seeing many more appointments and of course those will feed through over time into our survival figures.
Baroness Finlay of Llandaff (CB)
My Lords, what is the Government’s estimate of the funding needed for better radiological equipment; to train radiographers to be able to report, given the shortage of radiologists; to develop AI, given that the diagnosis of malignant melanoma using AI has been shown to be as accurate as diagnosis by a dermatologist; and to invest in pathology services? Without quantifying the amount and making sure that NHS England and CCGs sign up to these things, I worry that our diagnostic facilities will never catch up with those of other countries.
Lord O'Shaughnessy
The noble Baroness pinpoints some really important issues that we need to deal with. The good news is that the number of radiographers has increased by 3,500 in the last eight years, but of course we need to do more and the cancer workforce plan includes plans to recruit more specialists. Greater investment in equipment is taking place, the Prime Minister has announced investment in specialist cancer centres, and the first proton beam therapy centres in this country have now opened. Finally, AI has extraordinary benefits. It is now able to diagnose some tumours better than most expert specialists. We have made some commitments in this area through the expansion of digital pathology and radiology, and we will be doing more.
Baroness Jolly (LD)
My Lords, there is a complete postcode lottery for breast cancer care. It starts with appointment delays—first with the GP and then with the consultant— and then very often, as the noble Lord has said, the equipment is old and is very expensive to replace. Are there any grants that NHS England can make available to hospitals to help them purchase this equipment sooner?
Lord O'Shaughnessy
One reason that our cancer survival rates are not where they should be is that there is huge variation. The truth is that in some communities cancers are detected far too late as a matter of course. One way in which we are trying to address this problem is through the cancer strategy, which has provided about £600 million, £200 million of which has been to support cancer alliances in every corner of the country to make sure that we eliminate some of that variation and ensure that there is much more care for anybody suffering from cancer.
Baroness Altmann (Con)
My Lords, does my noble friend agree that the best cancer strategy is prevention? In that regard, I congratulate the Government on their recent decision to extend the HPV vaccination to all young boys as well as girls. I know that my noble friend has had great influence in that area. Does he also agree that this decision has the potential to save thousands of lives that would otherwise be lost to cancer in the future?
Lord O'Shaughnessy
I am grateful to my noble friend, not just for her recognition of that fact but for her campaigning on this issue. It is a really important step forward. The rollout of HPV vaccinations to boys will make a big difference to cancer rates, as it is doing for girls and women. It is part of a world-class screening programme in this country. A few issues need to be dealt with, and Mike Richards will be looking at those, but we are determined to make sure that our screening programmes get better and better.
Baroness Thornton (Lab)
My Lords, the Minister’s statements about the targets for 2028 are not consistent with the terrible and chronic staff shortages that NHS pathology departments are suffering. This will definitely be exacerbated by Brexit. Only three of 100 departments report to the Royal College of Pathologists that they have enough staff. Given that these are vital to the diagnosis and treatment of cancer, what are the Government’s plans to rectify this very serious problem?
Lord O'Shaughnessy
I absolutely recognise that it is a problem. As I said, we have increased the numbers of doctors in a range of specialties. Pathology has been a challenge, it must be said. There are two answers: the first is to continue to recruit more people, either domestically or internationally. The second refers to the point that the noble Baroness, Lady Finlay, made: we are determined to utterly transform this service through technology while also delivering better results.
Lord Aberdare (CB)
My Lords, pancreatic cancer is one of the deadliest cancers. One in four sufferers survives for less than a month after diagnosis, and only 7% survive for five years. What is more, the outcomes have hardly improved in the last 40 years. Will the Minister join me in welcoming the Demand Faster Treatment campaign led by Pancreatic Cancer UK, whose ambition is that by 2024 people with pancreatic cancer will be treated within 20 days of diagnosis? Will he assure the House that the Government will play a leading part in helping to achieve that goal? I declare my interest as an officer of the Pancreatic Cancer All-Party Group.
Lord O'Shaughnessy
The noble Lord is quite right. We have seen incredible improvements in outcomes for some cancers, whereas others, pancreatic cancer among them just, have not seen improved survival rates. We need to do a lot more, and part of that is early diagnosis. I understand that while pancreatic cancer becomes symptomatic in the last six months of a person’s life, it can be in the body for up to 14 years, so making that early diagnosis and using new technology such as liquid biopsies will help us achieve that noble goal.
Mental Capacity (Amendment) Bill [HL]
Lord O'Shaughnessy ExcerptsTuesday 27th November 2018
(5 years, 9 months ago)
Lords ChamberRead Full debate Mental Capacity (Amendment) Act 2019 View all Mental Capacity (Amendment) Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 117-R-II Second marshalled list for Report (PDF) - (23 Nov 2018)
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)
My Lords, I first thank the noble Baroness, Lady Watkins, for introducing this group of amendments, both for her own speech and for representing the noble Baroness, Lady Hollins, as she does. I thank all noble Lords for their contributions. These amendments clearly relate to providing information to the cared-for person, which is a critical issue that we have debated throughout this Bill.
Amendments 49 and 85, tabled by the noble Baroness, Lady Finlay, require that the authorisation record must be provided to the cared-for person, or their representative, their donee of lasting power of attorney, or a court-appointed deputy, and also to the team providing care in the person’s place of residence. Amendment 83, tabled by the noble Baronesses, Lady Barker and Lady Thornton, specifies that the authorisation record must also include details of how the deprivation of liberty, or its effect on the person, will be reduced. I will deal with Amendment 29, the first amendment in this group, shortly.
I introduce these amendments in order to talk about less restrictive care. Less restrictive care is a central aspect of the new liberty protection safeguards, as a result of the necessary and proportionate assessment. This was emphasised by the Law Commission in its final report, which concluded that,
“integral to the question of whether the deprivation of liberty is proportionate (as well as necessary) is consideration of whether there is a less intrusive alternative”.
Less restrictive care is also a vital principle of the Mental Capacity Act—as set out in Section 1(5)—and therefore should be considered at all stages of the process. It is already considered as part of the current DoLS system.
Given the abiding role of “best interests”, as discussed in the last day of Committee, as a principle of the Mental Capacity Act, it does not need to be restated in the Bill. Indeed, our belief is that the liberty protection safeguards scheme will drive less restrictive care, as it will require the responsible body to specify a programme of regular reviews. This review should be triggered if there is a significant change in the cared-for person’s circumstances. Critically, this means that if there are practicable, less restrictive alternatives available, the authorisation will cease to have effect as the arrangements will no longer be necessary and proportionate.
Amendment 86, tabled by the noble Baronesses, Lady Hollins, Lady Thornton, Lady Jolly and Lady Watkins, would require the responsible body to ensure that the cared-for person, appropriate person and IMCA, or independent mental capacity advocate, are given a copy of the care plan as soon as possible and those consulted with should be provided with a copy unless there is good reason not to do so. As has been mentioned, this was discussed at every stage of the Bill, in the Chamber and outside it. I agree that it is vital that relevant people are given full information about the authorisation and the rights of a cared-for person, including rights to review and to challenge authorisation.
The key point, and the reason why we do not support these amendments, is that this is already the case in law, which clearly provides that people must be given appropriate information. This is required by Article 5 of the ECHR, as enacted into UK law by the Human Rights Act. Article 5(2) sets out that everyone deprived of their liberty must be informed promptly and in a language that he or she understands. This should set out the reasons for the deprivation of liberty. Where a person has been informed of the reasons, he or she may apply to a court to challenge the lawfulness of their detention in accordance with Article 5(4). It is plain from the wording of Article 5(2) that the duty on the state is to proactively provide specific information to the individual or their representative. Whether the information provided is sufficient must be assessed depending on circumstances, but, as a minimum, people must be given information in simple, non-technical language that they can understand.
It is also worth noting that the Law Commission’s draft Bill did not explicitly outline what information should be provided. The Government took forward the Law Commission’s approach, as we have been encouraged to throughout by noble Lords, because we are satisfied that Article 5 makes it clear that a person has the right to information. So while I have carefully considered whether the Bill should be amended to explicitly state what information should be provided, I believe that it would be better to set out specific details in the code of practice.
On the specific point from the noble Baroness, Lady Barker, about statutory codes of practice having to sit within a framework of law, the Human Rights Act, which enacts the ECHR into British law, provides the route into law. Therefore, I believe that the code of practice is the appropriate place and has that anchor in statute. Furthermore, it is appropriate to set this out in the code of practice because it will allow us to fully and accurately capture the detail of all the people who should be provided with information, exactly what information should be provided and how, and to be able to amend it without having to amend primary legislation over time.
One of the problems with the original DoLS legislation is that it is overly prescriptive. Indeed, this House found in its post-legislative scrutiny of the Mental Capacity Act that the provisions for DoLS were “overly complex”. These amendments set out, for example, who should be provided with the authorisation records, but they exclude others who might need the care plan, such as members of the care team providing support in the community, not in the person’s place of residence. We believe it is precisely that level of detail that is better set out in the code of practice.
Amendment 29, tabled by the noble Baronesses, Lady Hollins, Lady Thornton, Lady Jolly and Lady Watkins, specifically seeks to address this point. This amendment outlines that a person must be fully informed of their rights and ensure that appropriate persons and IMCAs understand their rights and duties. Further to this, Amendment 88, tabled by the noble Baroness, Lady Barker, would require the cared-for person and their representative to be informed, in addition to any person likely to be carrying out the arrangements, if their authorisation ceases to have effect.
I absolutely agree that it is vital that people are informed of their rights. Let me be clear that this Bill does not take away or amend any rights. Article 5 is already clear that people have a right to information. However, we want to use the code of practice, rather than the Bill, to outline how this applies. As I said, this is so that we can provide a level of detail there that would simply not be appropriate in the Bill. We would also use the code to detail, for example, the role of the IMCA and/or the appropriate person’s role in the provision of information and ensuring that people are supported in understanding their rights.
In closing, I want to address Amendment 87 which supports, as it were, this set of amendments. As the noble Baroness, Lady Finlay, pointed out, Amendment 87 would require an approved mental capacity professional to complete an investigation where the relevant parties disagree over any aspect of an authorisation. If agreement is still not reached, it would require independent mediation. I agree with her that it is vital that the new system of liberty protection safeguards ensures that the voice of the person is heard and that there is an appropriate level of scrutiny in all authorisations. That is why we have been explicit that the person must be consulted with, as we will discuss later, and why, as a result of government amendments brought forward after listening to noble Lords, if there is no appropriate person acting as a representative, there is now in effect a presumption that an IMCA should be appointed. Again we will discuss that later. It is also why we have tabled amendments to remove conflict of interest and to make clear who should and who should not carry out pre-authorisation reviews.
So while the Government recognise the important role that mediation plays within the NHS, we do not believe that it is necessary to make it a compulsory feature of the system. There are fantastic systems of mediation already available, through private, public and charitable sectors; indeed, the noble Baroness gave us an example of a further initiative in this area. It is worth noting, on this point, that the Mental Capacity Act code of practice already provides guidance about mediation. In answer to her specific question, while we do not think it is necessary to have it in the Bill, I can confirm that guidance on the use of mediation will be in the code of practice and we will make sure that that is as up to date as possible and comprehensive in taking account of new schemes.
I will finish by saying that while I applaud and recognise the importance of the right to information, not just for the cared-for person but for everybody representing them, the Government’s view is that this is already adequately accounted for in law, so we do not need to set it out in the Bill. Indeed, it may be counterproductive to do so, by not being able to be comprehensive of every category of person. For that reason, I fear that we are not able to support these amendments.
Baroness Barker
Can the Minister confirm that, if the amendment in the name of the noble Baroness, Lady Watkins, is passed, it does not preclude the Government from setting out anything they like in the code of practice, at considerable length, to explain the detail of what information should be conveyed to whom and how? Does he agree that it might be helpful to have her amendment in the Bill, if only to bridge the rather large chasm between Article 5 rights and the code of practice? Would her amendment not be rather helpful?
Lord O’Shaughnessy
On the noble Baroness’s first point, of course there is nothing to stop us setting out anything in the code of practice. The concern would be whether there would be a clash between what was set out in the Bill and what was set out in the code of practice or in Article 5. That is one of our concerns and it is for that and other reasons that unfortunately we are not able to support that amendment.
Baroness Finlay of Llandaff
Does the noble Lord agree that one of the differences here between Article 5 rights normally and this group of people is that these are people who lack capacity to make their own decision, which is why they are being deprived of their liberty? They are particularly vulnerable and unable to speak up for themselves and depend on others. Therefore, if we have something in the Bill—and it may be that the wording in Amendment 29 is not right—brought back by the Government at Third Reading, we would know that there is an explicit right to information to be given to people when they lack capacity, as well as giving it to people when you have done everything to confirm that they have capacity for it.
Lord O’Shaughnessy
I recognise the point that the noble Baroness is making. As I said, our belief is that the rights that currently exist, and are in no way amended or reduced as a result of the Bill, provide what she is asking for. Unfortunately, I am not able to give a commitment that we will be able to return to this issue at Third Reading.
Baroness Watkins of Tavistock
I thank the Minster for his reply and thank all noble Lords who have spoken in support of this group of amendments. I do not believe that the Minister’s reply gives us sufficient security that if the information is contained only in the associated code patients and their families will be protected in the way that we have outlined. We firmly believe that the issue of information and, in particular, its provision in advance need to be in the Bill. It is therefore important that the House makes a statement to the Government about this issue, so I would like to test the opinion of the House.
Lord O’Shaughnessy
“11A_ The responsible body may authorise arrangements—(a) under paragraph 12, if the conditions in that paragraph are met, or(b) under paragraph 13 if—(i) the arrangements are care home arrangements,(ii) the responsible body decides that authorisation should be determined under that paragraph instead of under paragraph 12, and(iii) the conditions in paragraph 13 are met.”
Lord O’Shaughnessy
Baroness Barker
My Lords, like the noble Baroness, Lady Finlay, I do not intend to pay much attention to many of the amendments in this group because the Government made significant moves last week in relation to the role of the care home manager.
In relation to Amendment 121, I take this opportunity to raise again an issue I mentioned during our deliberations last week. There has been a great deal of talk about the Bill and the code of practice, but there has been very little said about regulations under the Bill. In particular, very little has been said about the functions of IMCAs in representing and supporting people under the schedule which are a bit different from the role of the IMCA in other circumstances under the rest of the Mental Capacity Act. Unlike DoLS, the Bill does not make detailed provisions for this or any regulations.
Can the Minister confirm whether amendments will be forthcoming in this area in relation to the functions of IMCAs? Specifically, will the Government look at amendments in relation to Section 35 of the Mental Capacity Act to place a clear duty on the responsible authority to make arrangements to enable IMCAs to be available and to represent and support cared-for persons under paragraph 36 of Schedule 1 to this Bill and in addition to support the appropriate person to fulfil their functions under paragraph 37? Can the Minister also confirm that the existing regulation power under Section 36 of the Mental Capacity Act will be extended to reflect the IMCAs’ function under the schedule?
A particular concern that has been raised with us by stakeholders is that there is no current reference in paragraph 36 to maintaining contact with the cared-for person and supporting their rights under the schedule. Given that the intention is that under the Bill authorisations will be made for much longer periods than was intended under the original Bill—longer than 12 months—it is rather important that someone who is acting in the role of an IMCA continues to have an ongoing involvement with that person. I understand why on this occasion it may not be entirely appropriate to put that in the Bill, but it is an issue of such significance that it might well come under the aegis of regulations.
Lord O’Shaughnessy
I thank the noble Baronesses for speaking to the amendments in this group. Before I deal with their questions, I say to the House that I take note of the significant margin in the vote on the previous group of amendments. That is something that the Government will reflect on.
I am grateful for the recognition by the noble Baronesses of the progress that we made on the last day of Report in defining the care home manager much better. I am grateful to everyone who has contributed to that process; we have made progress.
I turn to the specific questions posed by the noble Baroness, Lady Finlay. She asked about determining that arrangements are necessary and proportionate and inspecting proposals, conditions and indeed the care plan. The preauthorisation reviewer—as we are about to discuss, we are tightening up who can carry out that role—will thoroughly scrutinise arrangements and need to satisfy themselves that they are necessary and proportionate. It is also worth saying that in making the determination they have the power, if they so wish, to meet the person to determine that, which clearly is important. There is another critical matter, although we will come to this when we talk about conditions so I do not want to pre-empt that discussion too much: in making an authorisation, the responsible body can also then set a timetable of regular reviews to take place so that there is a process of ongoing review to ensure that the “necessary and proportionate assessment” test is always being passed.
We also said—this deals slightly with one of the points that the noble Baroness, Lady Barker, was making—that if the responsible body is not satisfied that the care home manager is capable of fulfilling this function, they can take on the role of organising assessments themselves. That is, to use the phrase that we coined last time, a backstop that provides some reassurance that any variable quality in provision should not affect the process by which assessments are made and organised and the preauthorisation reviews carried out.
It is absolutely the case that responsible bodies will be able to demand to see care plans and care and support plans as part of their deliberations. That is something that they can ask for, and we would expect that they will be provided because the whole point of the process that we are trying to move to is that decisions on and circumstances around deprivations of liberty are actually integrated into care planning and therefore ought not to be divisible in that sense. I hope that that provides reassurance, but if I can provide more by follow-up, I shall be happy to do so.
The noble Baroness, Lady Barker, asked some specific questions, which I shall need to consider, on the regulation-making power. I do not want to get that answer wrong without considering it, but we can meet in the coming days to ensure that she is reassured on that. A group of government amendments about IMCAs that we will discuss later provides greater reassurance on their role, in that, if they are agreed to, there will be a presumption in favour of an IMCA, removing the gatekeeper role that we have discussed. Also, the preauthorisation review will be carried out only by a responsible body, which must apply that presumption of access to an IMCA, so there will be much greater rights to advocacy on an ongoing basis.
The noble Baroness makes an excellent point about maintaining contact. As we move to a system of regular reviews, it is important to make sure that someone is alongside the cared-for person who can flag up any problems—for example, that a less restrictive care option is available, or that there is an objection. As we discussed, passive objections can materialise many weeks or months later. That ongoing role is clearly very important, whether it is for the IMCA or the appropriate person, the family member, or whoever. I give her the commitment that we will determine that in the code of practice.
I hope that I have answered the questions from both noble Baronesses and that on that basis, the noble Baroness will feel comfortable withdrawing her amendment.
Lord O’Shaughnessy
Lord O’Shaughnessy
My Lords, the amendments in this group relate to the vital preauthorisation review process in the liberty protection safeguards system, which we have discussed on many occasions. Our intention, which is now clarified by the amendments, is that every application will undergo a preauthorisation review arranged by the responsible body and conducted by someone who is not involved in the day-to-day care or treatment of the person. That must happen before any authorisation can be given.
As we know, this review is essential, not only because every application will undergo one, but because it provides an early opportunity to address situations where someone may be receiving poor care or care in an inappropriate setting, or who are subject to poor care planning. This preauthorisation review, arranged by the responsible body, provides separation between those who will authorise the arrangements and those who carry them out.
Amendments 34 and 40 clarify that the preauthorisation review must be arranged by the responsible body. This was always the Government’s intention, but we are now being explicit about it. These amendments serve to reinforce the role of the responsible body under the liberty protection safeguards system, ensuring that all proposed arrangements undergo independent scrutiny.
We also expect the individual completing the preauthorisation review to consider issues which should act as red flags, such as if there has been inadequate consultation or a provider is seeking authorisation for particularly restrictive arrangements. This provides further protection for cared-for people in cases where the application falls short or has not been as thorough as it ought to have been. We will also expect the person completing the preauthorisation review to meet the person where necessary.
We are determined to work with the sector and set out the detail of how this is applied in a code of practice. This will set out when we expect preauthorisation reviewers to take further action and ensure that the code is consistently applied by different local authorities—an issue that has been raised before. Building on amendments tabled last week, this significantly strengthens the role of local authority oversight and intervention, and ensures the good quality of the new scheme.
Noble Lords will note that the amendment states the responsible body must “arrange” rather than “conduct” the preauthorisation review. The reason for this is to ensure that the person undertaking the review is not doing so as a representative of the responsible body. They must make their own professional decision. This is particularly important in cases where the responsible body also provides the care: for example, where the NHS is the responsible body.
Baroness Thornton (Lab)
My Lords, I agree with the noble Baroness, Lady Barker, and welcome these amendments. As the Minister said, they are very important and deal with the issues of conflicts of interest and the preauthorisation review. I congratulate the Minister on navigating us to this point, and certainly we will be supporting the amendments.
Lord O’Shaughnessy
My Lords, I am grateful to the noble Baronesses for their support. Of course, navigation of any ship requires a good crew, and I feel that we have one. I am very grateful for that support.
Baroness Thornton
My Lords, I will speak briefly to Amendment 46, which is in my name and supported by the noble Baroness, Lady Barker. It provides that the care home manager, or any person interested in the cared-for person’s welfare, is responsible for being satisfied that an AMCP should carry out a pre-authorisation review. The Committee has already discussed this and the important safeguards which we will be seeking come under Amendment 76A. Some of the important matters raised by the noble Baronesses, Lady Finlay and Lady Barker, have been addressed by the Minister in the Government’s amendments. I look forward to his reply.
Lord O'Shaughnessy
I am grateful to the noble Baronesses for tabling these important amendments. It is critical to get right the role of approved mental capacity professionals and when they should review cases under the liberty protection safeguards system. AMCPs will be a vital part of the system. They will be qualified, knowledgeable and experienced professionals. It is intended that they will act independently, both of the care provider and the responsible body, and that they will make a determination on proposed arrangements after meeting the person and reviewing relevant information.
Amendment 35, tabled by the noble Baroness, Lady Finlay, explicitly prevents the responsible body overriding a determination of the AMCP. The responsible body is responsible for approving the authorisation, but an AMCP is required to complete the pre-authorisation review if it is reasonable to believe that the person objects to the arrangements. The AMCP can also conduct the pre-authorisation review in other cases. Where an AMCP conducts the pre-authorisation review they will determine whether the authorisation conditions are met.
The critical issue here is the consequences of the AMCP determining that the authorisation conditions have not been met. We are absolutely clear that the responsible body should follow the AMCP’s determination, and indeed any responsible body that did not do so would be taking on a significant legal risk. The responsible body might believe that it has a good reason to disagree with the AMCP’s assessment, but in that case the proper course of action would be to discuss this with the AMCP. If the responsible body then tried to override the AMCP’s decision, we would expect the AMCP to raise concerns—first, with the responsible body itself. If the local authority is the responsible body, the concern can be escalated to the Local Government Ombudsman, and if a CCG is the responsible body, it can be escalated to the regional director of commissioning in NHS England. Concerns regarding NHS organisations and independent hospitals can also be raised directly with the CQC in England or Health Inspectorate Wales. Therefore, I hope that noble Lords are reassured that mechanisms are in place to stop any unjustified behaviour on behalf of responsible bodies.
Amendment 77, tabled by the noble Baronesses, Lady Barker, Lady Finlay and Lady Jolly, makes explicit that a pre-authorisation review must also be conducted by an approved mental capacity professional if relatives or those with a genuine relationship to the person object to the arrangements, if there is restriction on contact, if the care home manager or responsible body considers the case to be exceptional, or if the arrangements are for mental disorder or the arrangements include covert medication.
The Government agree that families and carers play an important role in liberty protection safeguards. As the people who know the cared-for person best, they will often know what the person’s wishes and feelings are and whether they do, or would, object to what is being proposed. The Bill already states that a pre-authorisation review must be completed by an AMCP if there is a reasonable belief that a person objects to residing in or receiving care and treatment at a particular place. We are clear that an objection raised by someone with an interest in the cared-for person’s welfare can also give rise to a reasonable belief that the person objects, and this will be confirmed and clarified in the code.
We all agree that deprivation of liberty is a serious matter, especially when accompanied by measures such as high levels of restriction, covert medication and restrictions on contact. Such measures should be put in place only following a best-interests meeting and in some cases will require a court application. This is confirmed in the current MCA code of practice and will continue to be a key aspect of the new code.
I agree that in some circumstances such cases should be considered by an approved mental capacity professional. The Bill expressly allows for a pre-authorisation review to be completed by an AMCP in other cases, as is clear from paragraph 19(1). However, although the Bill is clear about how the lodging of an objection will lead to a review by an AMCP, I have heard clearly from noble Lords and stakeholders that there is a concern about referring appropriate cases to an AMCP. I hope that noble Lords will be glad to hear that I have been persuaded that we need to clarify on the face of the Bill that other cases can be referred to an AMCP.
In the previous day on Report, I stated that we would revisit, in the Commons, the issue of referral to AMCPs, specifically regarding those in independent hospitals. I can now confirm we will be looking at this issue more widely, including the specific concerns raised in the debate and in the amendment, as part of our considerations for government amendments in the other place. I look forward to working with all noble Lords to make sure that we get this right.
I turn briefly to Amendment 46 in the names of the noble Baronesses, Lady Thornton and Lady Barker. The amendment would mean that in care home cases the statement to the responsible body must indicate whether any person interested in the person’s welfare is satisfied that the person does or does not object. I understand that the intention here is to create a mechanism for those with an interest to be able to raise objections. I have already said that the Bill specifies that the statement must reflect any consultation that has been completed with those with an interest in the cared-for person’s welfare, and our later amendments will also make it explicit that that includes the person themselves under the “duty to consult” government amendments. The IMCA and the appropriate person will also have a role in reflecting these concerns.
To conclude this group of amendments, Amendment 104 states that a review is triggered if a person with an interest in the cared-for person’s welfare has raised concerns. As I said, that will be the case. Amendment 109 would change the Bill to reflect the effects of Amendments 34 and 104.
I hope that in answering points raised on these important issues, I have been able to give two kinds of reassurance. The first is that the process of triggering a review will be clearly set out. The Bill as it stands, as well as amendments that we are making, will mean that anybody with an interest in a person’s welfare will be able to trigger a review and that will lead to a consideration by an AMCP. Secondly, in the rare cases where there is a dispute between an AMCP and a responsible body, there will be avenues to escalate such a disagreement to mediation and resolution.
Furthermore, we are determined to get the role of the AMCP right. We think it is necessary to go beyond specifying that those in independent hospitals can see an AMCP and to think of other cases as well, and we are intending to bring forward amendments at the Commons stages of the Bill. I hope that that provides the reassurance that the noble Baronesses are looking for and that the noble Baroness, Lady Finlay, will be prepared to withdraw her amendment.
Baroness Finlay of Llandaff
I think I can speak on behalf of all noble Baronesses who had their names on these amendments. We are most grateful to the Government for listening and find all that the Minister said in his speech in response to this group of amendments reassuring and positive. We look forward to working with the Government as these new criteria evolve. I beg leave to withdraw the amendment.
Lord O'Shaughnessy
Lord O'Shaughnessy
Lord O'Shaughnessy
Lord O'Shaughnessy
My Lords, the amendments in this group provide clarification regarding the form of the statements provided by the care home manager to the responsible body. I thank noble Lords and others outside the House who highlighted some issues that these amendments attempt to address.
Amendments 41 and 96 outline that the statements provided by the care home manager to the responsible body under paragraphs 14 and 28 must be in writing. This issue was rightly raised by the noble Baroness, Lady Barker, and others at Second Reading and in Committee. It has always been the Government’s intention that the statement be a written one, and I gave assurances to noble Lords during Committee that the Bill would be updated to be explicit on this.
Passing these amendments, although they are simple and straightforward, is important, because it will mean that care homes are not able to provide statements over the telephone, as sometimes happens now. This is a valid concern about the future system. The amendments will help to ensure the quality of assessments and pre-authorisation reviews, and that there will always be a written record of the basis for decisions. It is vital that statements be in writing in order for a thorough pre-authorisation review to be completed and for proper evidence of assessments and consultation to be provided.
Under the current DoLS system, care homes are required to complete a “form 1” when making an application. We envisage that under the liberty protection safeguards there will be a similar form, updated and tailored to the new system. I hope this amendment makes it clear to all noble Lords that the Government do not want to see any weakening of safeguards as a result of our reforms.
Amendments 47 and 59 clarify that the necessary and proportionate test is based on an assessment, and that the care home manager’s statement under paragraph 14 must be accompanied by a record of that assessment and a record of the medical and capacity assessments. This was always the Government’s intention. Its omission was a simple drafting error, for which I apologise and which we are now rectifying.
I hope noble Lords will be able to support these minor but vital amendments, which will clarify how the system works in practice. I beg to move.
Lord Touhig (Lab)
My Lords, at Second Reading I said that there was much to be concerned about in this Bill and that I really hoped the Government would be in listening mode. For the most part, the Government have listened and have made improvements, thanks to the willingness of the Minister and Bill team to listen and to the hard work and commitment of noble Lords on all sides of the House, who have pursued improvements with all the energy they could command.
Government Amendments 41 and 96, requiring a care home manager to provide a written statement to the responsible body to authorise and renew arrangements, seem pretty obvious. Most of us would think that it is common sense to provide a statement in writing, but my late mother would often lament that I would find that, in life, sense is not that common. We certainly welcome these amendments.
The same applies to Amendments 47 and 59, which will ensure that the determination that arrangements are necessary and proportionate is to be made in an assessment, and that a record of this assessment must accompany the statement from the care home manager to the responsible body before an order to authorise arrangements is made. This is also most welcome. On this side, we certainly welcome these amendments.
Baroness Barker
My Lords, I also welcome these amendments and want to make a brief observation. Since the summer, like many other noble Lords, I have spent a great deal of time talking to practitioners and stakeholders. If one were to try to thoroughly amend and improve the DoLS and LPS systems, you would start not with the role of the care home manager but with the paperwork and the bureaucracy. Before the code of practice is written, the Government would do well to spend some considerable time talking to local authorities and practitioners about paperwork and communication, because that is perhaps the biggest cause of the backlog of people who have yet to have a proper assessment.
I hope that the Minister will take on board what noble Lords have said on this matter. It is not a commitment to the current way of doing things; rather, although noble Lords are committed to ensuring that people are sufficiently informed, we are not averse to changing and modernising the systems to make them work more efficiently.
Lord O'Shaughnessy
I am grateful to the noble Lord, Lord Touhig, and the noble Baroness, Lady Barker, for their support for these amendments.
I want to reflect on the last point made, which is very important. The reference is to a written statement, which tends to bring to mind a piece of paper, but of course what we are really talking about are digital records. A great deal of thought has to be put into whether a paper system—or digital records—passing back and forth is the best way to go about this, or whether we can make a technological intervention. That is particularly true if we want these authorisations to be much more dynamic, so that their consistency and application can be assessed over time. There might be technological interventions we can make to make that process easier. I take that advice on board. We will absolutely talk to local authorities, cared-for people, their representatives, charities and others in making sure that we do it right. Noble Lords will be aware that the Secretary of State is a true technophile, and I imagine he would relish the opportunity to inject a bit of innovation into this area to make everyone’s life easier. I will take that point forward.
Lord O'Shaughnessy
Lord O'Shaughnessy
Lord O'Shaughnessy
Lord O'Shaughnessy
“(1A) An assessment must be carried out by a person who appears to the relevant person to have appropriate experience and knowledge.(1B) But if the arrangements are care home arrangements and authorisation is being determined under paragraph 13, an assessment may not be carried out by a person who has a prescribed connection with a care home.(1C) Regulations made by the appropriate authority under sub-paragraph (1B)—(a) may make provision about a connection of any kind (financial or otherwise), and(b) may make different provision for assessments under paragraph 15(1)(a) and paragraph 15(1)(b).(1D) The “appropriate authority” means—(a) where the assessment is in relation to an authorisation by an English responsible body, the Secretary of State, and(b) where the assessment is in relation to an authorisation by a Welsh responsible body, the Welsh Ministers.”
Lord O'Shaughnessy
Lord O'Shaughnessy
Baroness Tyler of Enfield (LD)
My Lords, I reinforce what has been said about the importance of conditions and the difference that they can make to both quality of life and the tolerability of the regime to which the looked-after person is subject. I read about how some of the conditions might be things such as helping the looked-after person to sit in the care home’s garden every day or be taken out once a week, as well as how vital these conditions are to ensuring that the decisions taken are the least restrictive. We can all relate to these important things. It is important that there is provision for such conditions to be set out.
Lord O’Shaughnessy
I thank the noble Baronesses for introducing their amendments and giving us the opportunity to discuss this important issue. I will set out why the Government have taken a different approach and attempt to explain it.
It is not that we do not think conditions are important. The use of conditions should be baked into the care plan and the arrangements put forward for authorisation, rather than being added only at the point of authorisation. This is not to say that the conditions—let us call them the elements of the arrangements—pointed out by the noble Baroness, Lady Tyler, and other noble Baronesses are not critical. Obviously, they are critical to making sure that the elements are the least restrictive. This is about when they are put in place in the care planning and authorisation process. I shall explain our approach, which I hope will satisfy noble Lords, but we can see whether further discussions are required.
I will deal with the amendments in order. Amendment 61 states that it should be determined by the responsible body,
“that the arrangements will continue to be necessary and proportionate for the period of time for which the arrangements are sought”.
We absolutely agree that this should form part of our model and I confirm that this will be considered by the responsible body.
Furthermore, under the Bill, the responsible body is required to specify a programme of regular reviews at the point of authorisation. In a sense, it gets to specify at the point of authorisation how frequently reviews should take place, to seek whether changes in arrangements or other changes have taken place. This means that the care home manager—or the responsible body, if it is carrying it out directly—will be continually required to consider whether arrangements are necessary and proportionate. That is baked into the system we are introducing.
Amendment 67 specifies that conditions can be put on authorisations and, of course, conditions exist under the current DoLS system. However, with the backlog, by the time they come into force, it is often too late, because the person has been subject to the arrangements for some time before the conditions can be applied. In developing the liberty protection safeguards system, we have taken a different approach; for that reason, conditions have not been included in the Bill. Again, it is worth pointing out that this is consistent with the approach adopted by the Law Commission, which concluded that conditions, as currently provided for under the DoLS system, were not necessary under its new scheme. The Law Commission’s final report states on page 112 that, instead of DoLS conditions, the scheme,
“focuses on particular arrangements and what will be authorised are very specific arrangements. Further, it is only arrangements which result in the minimum amount of deprivation of liberty possible that will be authorised, otherwise the necessary and proportionate condition will not be met. So the arrangements will need to be described in a way which builds in any conditions”.
In other words, arrangements under the Bill can be detailed in such a way as to have the same effect as conditions. For example, the authorised arrangements could include enabling the person to be taken out on trips with one-to-one support, or their care plan could specify that additional staff should be provided to enable the person to be taken out more frequently.
It is our view that doing this provides greater protections for the person. This approach means that conditions—or, if noble Lords prefer, specific arrangements—are considered as part of care planning, before an authorisation is sought, rather than being bolted on afterwards. Rather than being something that happens after the person is deprived of liberty, they would be an integral part of care planning, with the proposed arrangements submitted to the responsible body for review.
Notwithstanding this approach, I know the noble Baroness, Lady Barker, is keen to have a statement from me about current practice, under which a DoLS lead, or best-interests assessor, can insist that deprivation of liberty is authorised only if stated conditions are made. We are not proposing to change the ability of the responsible body, whether the responsible body itself or an AMCP, to make conditions as part of an authorisation. It will still be possible for that to happen. We are trying to ensure that the decision on appropriate conditions is made earlier in the care-planning process, so that they are incorporated into the arrangements that are then put to the responsible body for review, rather than being added when the review takes place. Failure to comply with these conditions, specifically because they have been within the authorisation, would mean that the authorisation would cease to have effect, and must be reviewed. There we come to the ongoing important role that appropriate persons, IMCAs and others will have, in making sure the person is supported, so that if there are any changes in their condition, or their circumstances, a review is triggered.
I recognise this is a fiendishly complicated thing to describe, and I have probably done a fairly inadequate job of it. However, I strongly believe that, in making this change, we are not trying to remove conditions, but move the concept of applying conditions to earlier in the care-planning process. That is the right thing to do. The responsible body will continue to be able to add subsequent conditions if it feels it is necessary for an authorisation. I genuinely believe that is a better system. Clearly, the proof of the pudding will be in the eating. On how this will happen in practice, there will need to be clear guidance and training to make sure that people are trained to do this, both at the care home, and in other NHS bodies, and to make sure that reviewers are capable of assessing such arrangements and making their own subsequent conditions, if they feel it is necessary. That guidance and training is something we aim to provide, of course.
I hope I have explained why we take the point the noble Baronesses made in tabling these amendments very seriously, and shown that the system allows for it. It puts this consideration earlier in the planning process, we hope with better effect. We have been guided by the Law Commission’s approach in this way. I hope this has been persuasive, but if further discussion and elaboration is needed, I would be more than happy to give it following today’s debate.
Baroness Barker
I thank the Minister very much for his response. We are arguing not about two opposites but about a gap that I am trying to close, the answer to which lies in why conditions happen. They happen not necessarily because of any failure of care planning, which I think the Minister is talking about, or to improve care planning, but because in real life people end up being cared for in a particular place. Things to which they object or limitations in their care become apparent at the point at which someone goes to do the authorisation.
I am all in favour of improving personalised care planning and so on, but the one thing that DoLS and best-interests assessors have been absolutely united in saying is that this makes a practical difference when they go to see people. I am very happy that the Minister said that it would still be the responsibility of a responsible body to make sure that conditions are being met, and that, if they were not or if it became apparent that further conditions needed to be put in place, they would still be able to do so. With that reassurance, I am content that we have probably closed the gap that I was trying to close. On that basis, I am willing not to press the amendments.
Lord O’Shaughnessy
“( ) When making a determination under this paragraph regard must be had (amongst other matters) to the cared-for person’s wishes and feelings in relation to the arrangements.”
Lord O’Shaughnessy
My Lords, before introducing these amendments, I thank the noble Baroness, Lady Barker, for accepting my explanation on the previous group. I am conscious that we need to explain this in more detail, but I am grateful to all noble Lords and to the noble Baroness, Lady Thornton, for not pushing this point. This is something that we can clarify to get to a better system.
The amendments in this group are clearly central to the Bill, because they are all about putting the cared-for person at the centre of the new liberty protection safeguards. Noble Lords have been at pains to highlight a concern that the cared-for person is not listed explicitly as a person to consult. That has clearly always been our intention, but it is nevertheless quite right that that should be explicit in the Bill.
Amendment 71 clarifies that the cared-for person must be consulted as part of the consultation under new paragraph 17. Amendment 63 sets out that the person’s wishes and feelings must be considered as part of the determination that the arrangements are necessary and proportionate. Amendments 110 and 111 update other parts of the Bill to reflect the new explicit consultation requirement and to make some other minor drafting changes.
The consultation required by the Bill is important in establishing the cared-for person’s wishes and feelings, and identifying objections to the arrangements. It is also an important way of involving the person and their families in the process, and making sure that the liberty protection safeguards authorisation is something that happens not just to them, but with them. It has always been our position that the person should be consulted, but it is quite right that we set this out explicitly. Through these amendments we have also been explicit that the person’s wishes and feelings must be considered as part of the necessary and proportionate determination.
Briefly, Amendment 68, tabled by the noble Baronesses, Lady Finlay and Lady Jolly, would also ensure that this point is considered. I hope they will feel that the Government’s amendments have dealt with their issues and that they will feel happy not to press their amendments.
Baroness Finlay of Llandaff
I am looking to the noble Baroness, Lady Jolly, because I am sure she will agree with me. I am grateful and happily give way to the government amendment, which does what we wanted to do. We will not do anything with our amendment. I thank the Minister for his clarifications.
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“(za) the cared-for person,”
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(a) a person who is involved—(i) in the day-to-day care of the cared-for person, or(ii) in providing any treatment to the cared-for person, or(b) a person who has a prescribed connection with a care home.”
Baroness Barker
My Lords, it has been a concern of all noble Lords who have taken part in discussions on the Bill that a person could be deprived of their liberty without seeing an appropriate professional at any time. We have argued back and forth about the extent to which access to an appropriate professional should be universal, automatic or whatever.
With this amendment, the noble Baroness, Lady Finlay, and those of us who have attached our names to it are trying to ensure that where the people who are most closely associated with a person have a genuine and deep concern—I imagine it would be a shared concern—but not necessarily a formal role, they can alert a professional to come in and make an assessment. We are trying to close a loophole that we think is still there.
If we can do that, we will be well on the way to doing what the Minister has indicated the Government are trying to do: to make the most effective and efficient use of professional resources amid a level of demand which we know cannot currently be met. We have moved some way from what we would ideally like to see and this amendment represents something of a compromise. I hope we can reach agreement on this last part of the link.
Lord O'Shaughnessy
I am grateful to the noble Baronesses for tabling these amendments and giving us the opportunity to debate this very important issue. I will come to Amendment 76A last, because clearly that is the one about which there has been the most debate and, in a sense, has the most import. First, I will deal briefly with the other amendments in the group.
Amendment 81 would require the person who conducts the pre-authorisation review to be a,
“registered health or social care professional”,
with appropriate skills, knowledge and experience. I think and hope that we dealt with that adequately on our previous day on Report. Those qualifications will be set out in the code of practice. Indeed, we might want to go more broadly than we have done historically on this.
Amendment 76 would require that where there is a dispute between the responsible body and the professional who completed the pre-authorisation review, it would automatically go up to an AMCP. I agree that in some cases that would be the right and prudent thing to do. In other cases, it may be able to be resolved between the two parties. Again, we dealt with that before and it is something I want to consider in our deliberations about the kinds of cases that an AMCP would look at.
The debate on Amendment 76A has been helpful in bringing out the core concern here: the role of whistleblowers. We have talked about the cared-for person, their family members, the appropriate person, IMCAs and others, but this is about the people who are doing the caring or who are employed by the organisation or organisations that are doing the caring. It is absolutely right—indeed, the Bill requires—that an AMCP must conduct a pre-authorisation review if there is a reasonable belief. Clearly, a note of concern being raised by a staff member would qualify because they would have understanding and knowledge of the care of that person.
Last week we had a Statement on the Gosport inquiry, in which the health system not listening to whistleblowers was critical in these issues not being dealt with for years and people losing their lives as a consequence. As the Government said in response to that, we are working with BEIS—the department with responsibility for such legislation—to see if there is anything we can do to strengthen the rules around whistleblowers. I take very seriously the concerns that have been raised by noble Lords. As I said, with Gosport and indeed many other instances, whether they involve one person or, sadly, dozens of people, this kind of issue crops up again and again. I understand its importance.
The concern I have at this point actually relates to the drafting. Because it would provide an automatic trigger, rather than one that gave some consideration to the seriousness of the case, there is a risk that it could be abused or that frivolous cases could be raised and put to an AMCP when it was not really justified. That is, in a sense, an issue with the drafting
I want to deal with this if we can. My suggestion, if noble Lords are willing, is to meet between now and Third Reading to discuss this topic—as well as any others we want to discuss, of course—to work out the right approach. This would enable us to get to the bottom of it, work out what is right and think about that in the context of other whistleblowing issues, of which we are all aware. It would ensure that if we all agree on the need to legislate, we can agree on what that ought to look like. Again, I emphasise the importance with which I regard this issue. I hope and believe that we can do something in the coming days to deal with it in a way on which we all agree, while having the effect that we want. On that basis, I hope that the noble Baroness is prepared to withdraw her amendment.
Baroness Thornton
May I seek clarification from the Minister? He said that he would come back to Amendment 76A. Is this about Amendment 76 or Amendment 76A?
Baroness Finlay of Llandaff
I am grateful to the noble Baroness, Lady Thornton, for clarifying on the record that we are talking about Amendment 76A. With the caveat that the meeting will include all of us who have been involved in and feel so concerned about this matter, I will withdraw the amendment, knowing that we will bring something back at Third Reading in this House and not leave it to the code of practice or the Commons. I beg leave to withdraw the amendment.
Lord O'Shaughnessy
“( ) Regulations made by the appropriate authority under sub-paragraph (1)(b) may make provision about a connection of any kind (financial or otherwise).( ) The “appropriate authority” means—(a) where the pre-authorisation review is in relation to an authorisation by an English responsible body, the Secretary of State, and(b) where the pre-authorisation review is in relation to an authorisation by a Welsh responsible body, the Welsh Ministers.”
Baroness Thornton
My Lords, the next three amendments form a suite and, following our discussions with stakeholders, these are issues that we would like to discuss. The noble Baroness, Lady Barker, and I have shared the tabling of these amendments, which do not directly address the central and overarching question of where so much of the care home manager’s responsibility will lie. In a way, we have addressed that issue and amended the Bill accordingly. The amendments concentrate on strengthening the rights of the cared-for person, which have to be at the heart of any system for giving and reviewing authorisations, by ensuring that their voice is heard within consultations at every stage of the process. Amendment 82, which is in my name and that of the noble Baroness, Lady Barker, would start this process by ensuring that there is a meeting “with the cared-for person”. I beg to move.
Lord O’Shaughnessy
Before I address this amendment, I again thank noble Lords for their willingness to talk further on Amendment 76A so that we can reach the right conclusion.
The noble Baroness, Lady Thornton, quite rightly talked about the role of Amendment 82 being to make sure that the cared-for person has rights and that they are at the centre of the authorisation process. Of course, that is absolutely right. The reason why we have not taken the approach that the reviewer should meet all people in the system is because we want to provide a more proportionate system that nevertheless contains significant safeguards so that if there are any concerns about the nature of a review then not only would the reviewer, whether a responsible body or an IMCA, meet the person but there are opportunities for escalation beyond that.
Let me be absolutely clear that in cases where the person objects to the arrangements, the Bill already requires AMCPs to meet the person, where practicable and appropriate, when they complete the preauthorisation review. This amendment would require a face-to-face visit in all preauthorisation reviews, not only those completed by an AMCP, regardless of whether it is appropriate or practicable to do so.
I of course appreciate there will be circumstances where it is right and proper for the person conducting the preauthorisation review to meet the person, even in cases where the review is not completed by an AMCP. That is not precluded by the Bill. Indeed, it would be our expectation in some cases that that would happen. For example, if the person completing the preauthorisation review is concerned that adequate consultation has not taken place or if there is a question over the validity of any of the assessments provided, we think it right and proper for the person conducting the preauthorisation review to meet the cared-for person. Details about that, including scenarios, will be set out in the code of practice.
However, we also want to make sure that the system is proportionate. One of the problems we have at the moment is that it is not proportionate, and that is why we have a backlog. There are straightforward cases. For example, when someone who consented to living in the care home subsequently loses capacity and there is no reason to suspect that they would object to continuing to live in the care home, a meeting with the cared-for person would be very unlikely to change the outcome. In such cases, the person may have already undergone an assessment process and the person will also have access to representation—we are about to come on to IMCAs. Unless there are concerns about the validity of the assessments, it would not normally be necessary or proportionate to meet the person who, after all, had agreed to live in the care home.
A further potential effect of this amendment would be to require the person completing the preauthorisation review to meet the cared-for person, even if the person refuses. This is a topic we have discussed before. We do not think it goes with the ethos of the Mental Capacity Act, particularly in cases where someone has expressed a desire not to do so. It is important to stress that that is not just our conclusion but is also the conclusion of the Law Commission after its work. We believe that a targeted approach will be much more effective in making sure that those safeguards are in place.
While I understand the noble Baroness’s desire for reassurance that the cared-for person will be met, I do not think it would be appropriate in all cases. We have been clear during the passage of the Bill in the amendments that we have laid, and as we will specify in the code of practice, that there will be many circumstances when it is appropriate to do so but equally there will be circumstances when it is not appropriate. Therefore, we do not think it would be right to have a blanket application of this approach of the preauthorisation reviewer meeting the cared-for person. I hope that on that basis the noble Baroness will feel reassured and will withdraw her amendment.
Baroness Barker
During our deliberations the Minister has several times talked about people being forced to meet an IMCA or an AMCP when they do not want to. We have asked him to supply evidence of that. He has not yet done so, even though we are at this stage in our deliberations. Clearly this is a matter that may well return at a further stage in the Commons. I ask him again please to write to noble Lords with that evidence.
Baroness Thornton
I thank the Minister for that clarification. It is a question that we felt was worth asking, and I suspect that when the Bill goes to the Commons people will pursue it. I do not think the argument that the noble Baroness, Lady Barker, put forward, that there are people who do not want this and they should not be forced into it, is really the point; the point was about this not happening because it was obstructed by the people taking care of the person. That is the matter that needs clarification. So, on the basis that that will be clear—
Lord O’Shaughnessy
Before the noble Baroness withdraws her amendment, I would like to say that that is an important point. I am not suggesting that there are going to be hundreds of cases where individuals do not want to see someone, but it is clearly a possibility. I think we need a more proportional system in order to deal with the backlog and ensure that people are protected, but it also has to have a set of safeguards, whether that is access to representation, making sure that conflicts of interest do not exist among care home managers and, as we are going to discuss in the coming weeks, under what circumstances an AMCP would automatically be activated, in which case of course the meeting would take place. It is those circumstances that ought to give the reassurance that it is not necessary in all cases, rather than saying that there are hundreds or thousands of these kinds of cases where people are refusing. I think that will be the exception rather than the rule.
Baroness Thornton
I thank the Minister for that. I beg leave to withdraw the amendment.
Lord O'Shaughnessy
I am grateful to the noble Baroness for moving the amendment and the other noble Baronesses who have spoken to it. The example given was very illuminating, and I rather like the idea of that happening automatically if you leave a vacuum cleaner in someone’s room. I might try that with my children and see what happens.
The key point here is that we want the least restrictive arrangements necessary to provide for the person’s ongoing care. That is the animating idea behind the liberty protection safeguards system. We believe that the effect of the amendment is catered for through the “necessary and proportionate” test. Let me explain that. When the Law Commission published its final report on this, it concluded that,
“integral to the question of whether the deprivation of liberty is proportionate (as well as necessary) is consideration of whether there is a less intrusive alternative”.
So consideration of whether an ongoing restriction continues to be necessary and proportionate is already baked in.
As I said, the nature of the authorisations to be given by the responsible body under the new system will instigate a system of regular reviews. To give an example, it might stipulate a review for someone with fluctuating capacity, where there is reason to believe that a review might be required after a period. The system being set up enables regular reviews in a way that provides greater specificity than is the case now.
The noble Baroness, Lady Barker, was concerned that, as the length of an authorisation was extended, although that might be all right for some people, it might not for others. That is a fantastically important point, but in the process of authorisation the responsible body will be able to stipulate more frequent reviews. Our hope would be that that would come from the care home manager or other person organising the arrangements in the process of their care planning, because they will have worked out, by looking after that person, that there is reason for regular review, but it could equally be something that the responsible body attaches as a condition to the arrangements.
The effect is that when less restrictive alternatives are practically available, the authorisation ceases to have effect. It is no longer applicable. As I said, that could be determined by continuous review, regular review or be flagged by anyone—a staff member, a family member or others—with an interest in the cared-for person’s welfare, which would trigger an updated review of the situation to see what less restrictive care was available.
Although I absolutely agree with the intent behind the amendment, the “necessary and proportionate” test is already in the Bill. It provides precisely the effect that the noble Baronesses seek. Indeed, because of the way we are dealing with specific arrangements in the authorisation process, it is something for which the responsible body can stipulate a system of regular reviews. I hope that, on that basis, they will be reassured that we are conscious of the importance of this issue but believe that it is dealt with in the Bill as amended, and that the noble Baroness will feel comfortable withdrawing the amendment.
Baroness Barker
I thank the noble Lord very much for those statements. He will understand that, given the state in which this Bill arrived in your Lordships’ House, there was a great deal of genuine concern among stakeholders that the people making the decisions—largely, care home managers—might not be in a position to know what would be a less restrictive option for somebody: to be either in their own home, or supported in the community. In this Report stage, it has been useful to go back over that ground and to put more clarification around the frequency and timing of reviews. That will be a tremendous test for this new system, given the way in which it has been set up for there to be a period of two-year renewals. Nevertheless, at this stage, I thank the Minister and beg leave to withdraw the amendment.
Lord O’Shaughnessy
“26A_ The responsible body may renew an authorisation—(a) under paragraph 27, if the conditions in that paragraph are met, or(b) under paragraph 28 if—(i) the authorisation relates to care home arrangements,(ii) the responsible body decides that renewal should be determined under that paragraph instead of under paragraph 27, and(iii) the conditions in paragraph 28 are met.”
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Baroness Thornton
My Lords, Amendment 103 is in my name and that of the noble Baroness, Lady Barker. It would ensure that the reviewer must carry out a review of authorisations if a reasonable request is made by a person with an interest in the welfare of the cared-for person. This is part of the suite of amendments that stakeholders have put to us about making the cared-for person the heart of the Bill. Care England, along with many others across the sector, wants to be assured that the cared-for person’s voice is heard within the consultations at every stage of the process. This amendment would ease those concerns of the various stakeholders.
Like amendments in previous groups, this amendment would ensure that the cared-for person’s best interests are kept at the forefront of the Bill and not forgotten, and it would play a key role in protecting the cared-for person’s rights. If someone with a cared-for person’s best interests feels that the authorisations are in need of being reviewed and reconsidered, this must happen and therefore would help to protect the cared-for person. I beg to move.
Lord O'Shaughnessy
I am grateful to the noble Baroness for moving the amendment. Obviously, it is worth having an opportunity to restate that we clearly agree with her that it is necessary that anybody with an interest in a cared-for person’s welfare is able to trigger a reasonable request or, indeed, an objection on their behalf that constitutes a reasonable belief. That is something that we have discussed in terms of people who are supportive, such as family members, appropriate persons, IMCAs, and so on. Clearly, we have agreed to talk further about the role of whistleblowers and staff members.
I can reassure the noble Baroness that what she is asking for is already contained in numerous places in the Bill. The amendment deals specifically with paragraph 31(3)(b) of Schedule AA1. It is implicit in the description,
“person with an interest in the arrangements”,
that that includes people who have an interest in the cared-for person’s welfare. That is the purpose of the Bill. As I have made clear, any objection from someone who has an interest in the person’s welfare constitutes a reasonable belief, as set out elsewhere in the Bill. I am grateful for the opportunity to return to this issue and hope that I have reassured the noble Baroness that this is absolutely included in the definition.
Baroness Finlay of Llandaff
Before the Minister sits down, will he confirm that “interests” does not include the interests of the care home manager, where it may be a cheaper option, and that the interests of the cared-for person are definitely at the centre of the clause as written? I want to be absolutely sure that it cannot be misinterpreted in the future to mean “interests” in a much broader sense than the interests of the cared-for person.
Lord O'Shaughnessy
That is a very valid question. We have tried to deal with the conflict issues in other amendments. It is absolutely not the intention that that ought to be misused for the purpose referred to by the noble Baroness. I will need to get specific clarification about the implications of this, but I can reassure her that that is not the intention of it. If it needs to be clarified in a letter to noble Lords and, subsequently, in a code of practice then that is what we will do.
Baroness Thornton
This is probably one of the occasions when one can say that this really needs to be clarified in the code of practice. I thank the Minister for his reassurances and for getting them on the record. I beg leave to withdraw.
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My Lords, I come to the critically important issue of IMCAs—independent mental capacity advocates. These amendments relate to the appointment of such people. Representation and support, whether from an IMCA or an “appropriate person”, is an important safeguard and is vital to ensuring that a cared-for person’s human rights are protected throughout the process when they are deprived of liberty.
Many people will be best supported by an appropriate person. This will tend to be a family member or someone who is close to the person. They will often know them, and their wishes and feelings, and are in the best position to provide that person with support and representation. They must, of course, be willing to undertake such a role. However, we know that others will not be in this position and will benefit from having an IMCA to provide that support and representation. For those people, it is vital that they can access an IMCA without impediment and these amendments address this
Amendments 112 and 113 remove the requirement for care home managers to notify a responsible body whether or not an IMCA should be appointed. Amendments 116 and 118 mean that appointment of IMCAs in care home cases is not contingent on notification from the care home. In Committee, I committed to review whether the Bill could make clearer that the care home manager should not act as a gatekeeper to an IMCA appointment. I have done this and these amendments achieve that goal. The responsibility for appointing an IMCA will therefore clearly lie with the responsible body and must be considered from the point that the arrangements are proposed. The responsible body can take into account any evidence in deciding whether an IMCA should be appointed, including a request from the person themselves, a family member or other interested person.
Amendments 122 and 124 in effect introduce a presumption that an IMCA should be appointed if there is no appropriate person, with a very limited exception when having an IMCA would not be in the person’s best interests. Noble Lords and others have raised concerns that the Bill as currently drafted introduces a test that could act as a block on IMCA appointment. The Joint Committee on Human Rights also expressed concern about this issue. Our intent is to ensure that people are properly protected, and we see the role of the IMCA and the appropriate person as essential to the integrity of the system in advocating for and supporting cared-for people and their rights.
We have been pleased to listen to stakeholders and to noble Lords and have amended the Bill accordingly to make sure that, when no appropriate person is in place, an IMCA is appointed unless that is not in the person’s best interests. Circumstances where it would not be in a person’s best interests to have an IMCA would be very rare, as we have discussed, but that might be the case if, for example, a person’s past and present wishes and feelings clearly indicated that they did not want one. We will use the code of practice to outline when these very unusual exceptions would apply.
Turning to the other amendments in this group, Amendment 117, tabled by the noble Baronesses, Lady Finlay and Lady Jolly, would have the same effect as government Amendment 116. In the light of that, I hope they will feel that that deals with the issue they were concerned about. All the other amendments in this group update the Bill to reflect our proposed changes to the IMCA role.
I hope that our amendments have addressed the perfectly understandable concerns of noble Lords on this topic. I am very grateful for their input to making sure that we have been able to move forward on this issue. I beg to move.
Baroness Thornton
I have an amendment in this group which covers the same ground that we have been talking about for the last 20 or so minutes. It is probably not essential to pursue this amendment because the government amendments on this matter seem very comprehensive.
Lord O'Shaughnessy
I am sorry that I did not mention the noble Baroness’s amendment—there are so many in this group—nevertheless, I am grateful for her acceptance that we have been able to meet the perfectly justified concerns discussed inside and outside the Chamber during the passage of the Bill.
Perhaps I may deal quickly with the point raised by the noble Baroness, Lady Barker, who asked about conflicts of interest within a responsible body. We would certainly expect authorisation and the IMCA appointments to be in a separate part of the commissioning body. Government Amendment 73, which deals with who should not carry out reviews, includes, in paragraph (b),
“a person who has a prescribed connection with a care home”.
The process of commissioning a care home place for somebody should perhaps be a category that we ought to consider under that provision, and I shall need to reflect on that. That might be the right route to follow, as clearly we do not want to move the conflict of interest to a different part of the process. I will look into that and we will consider how to deal with it. I think we now have the statute to enable us to do so. I will come back to noble Lords on that point. I thank them for their contribution to the development of these amendments and their support for them. I beg to move.
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Baroness Thornton
My Lords, I feel sorry for the Minister that after so much agreement we are now criticising the Bill. However, the reason we have reached a happier state than the one we started off in in July is due to the work of a great many people, including the Minister and the Bill team.
I have put my name to several amendments in this group—I support my noble friend Lord Hunt and the noble Baroness, Lady Tyler, in what they have said—and I shall speak to Amendments 143A and 147A.
In a way, the amendments are part of what should have happened before the Bill reached us; that is exactly right. It is important to note that a coalition of organisations is concerned about what is and is not in the Bill and how it will be implemented. For the record, we have discussed the Bill with at least 44 organisations in the very short time we have had to consider it. They include Mind, the Alzheimer’s Society, Liberty, Learning Disability England, Disability Rights UK, the Relatives & Residents Association, the Care Provider Alliance, VODG—the voluntary sector’s disability group—and many others. We must pay credit to both them and the noble Lords who have worked so hard on this for the fact that we have come to a point where the Bill has significantly changed and been improved.
Echoing what my noble friend said, the amendments ask that the revised codes of practice for the Mental Capacity Act take account of Schedule 1 to the Bill and, prior to the provisions in the Act coming into force, that the code be revised by statutory instrument using the “made affirmative” procedure. Amendment 143A states:
“Before any provisions of this Act other than those which come into force on its passing come into force … the Secretary of State must publish a report detailing which of the provisions of the Act will be consulted on, by whom and by when … publish his or her consideration of the conclusions of the Independent Review of the Mental Health Act … conduct further consultation with vulnerable people, families, charities, providers … publish an equality impact assessment on the impact of the provisions of this Act”.
I would like the Minister to say that the Government have done the equality impact assessment but I have missed it somehow. However, it seems that the Government are duty-bound to consider the impact on people with protected characteristics under the Equality Act. An equality impact assessment is the established way of the Government showing that they have considered the impact on vulnerable groups. That Act begs that this process should have been gone through in preparation for the Bill. I hope that a full equality impact assessment will be conducted and made available to the Commons when it considers the Bill.
Baroness Jolly
My Lords, I had not fallen asleep. We are nearly there. I put my name to Amendments 140 to 147A because they are important, although I suspect that they will not make it into the Bill. It is important to have these discussions at this stage.
In Committee, I tabled amendments on the review of the Mental Health Act and the code of practice. I still support them. The request for an equality impact assessment in Amendment 143A in the name of the noble Baroness, Lady Thornton, is the right thing to do. The amendments ask the questions but the issues are still real and important. The amendments also relate to how a future Bill could be handled. Indeed, it helps us to look back to other Bills; I cite the Care Act, for example, where a Committee of both Houses went through the Bill over a prolonged period to ensure that by the time it hit your Lordships’ House, it was worth reviewing.
The Minister has done a very good job of pulling this all together so far; Third Reading is still to come. I understand full well that he will not put any of these amendments in the Bill, but he should take seriously the concerns that they raise from Members of your Lordships’ House.
Lord O'Shaughnessy
I apologise for pre-empting the noble Baroness. I take the points raised in these amendments seriously, and I will attempt to deal with them as we go through. I applaud noble Lords for the contribution they have made in improving the legislation before us, but of course it is one thing getting the legislation in better order and another thing putting it into practice. I think that is what has inspired the amendments in this group. I will attempt to deal with them as comprehensively as I can and explain why we will not be accepting them in practice—as the noble Baroness, Lady Jolly, pointed out—although we are dealing with them in spirit.
Amendments 140 and 146, tabled by the noble Lord, Lord Hunt and the noble Baroness, Lady Jolly, require the Government to publish a list of every organisation we have consulted with. The noble Lord expressed concern about our response to his FOI request; as I understand it, there were some technical reasons why that did not elicit the information he was after. However, I hope the noble Lord will have seen the letter I sent following Committee, explaining that we have held over 50 engagement events since March 2017. I outlined the broad range of organisations that the Government have engaged with. That letter has been put in the Library and will be published online in due course.
I will not detain noble Lords by going through that list, but of course I am more than happy to circulate it again; indeed, it has obviously developed over time. We have engaged with care providers, a range of third-sector organisations, the royal colleges, stakeholders in local government, the NHS and the social care sector, and, critically, people who themselves have impaired capacity. That builds on three years of engagement conducted by the Law Commission in drawing up its draft Bill.
Nevertheless, I accept there is concern that we have moved too swiftly and that we have not always taken concerns on board. I know we have come in for some criticism for that, but we moved ahead with this Bill because of the urgent need for reform and because the system is not working. While I do not pretend our approach has been perfect, I and the Government feel it has been necessary to move ahead at pace.
The point I want to emphasise is that, in doing so, we have listened and acted. I am grateful to noble Lords for recognising the changes made as a consequence of challenges and ideas from them and other stakeholders. I also applaud the Bill team for responding and providing government amendments. I am pleased we have been able to move on some incredibly important topics, such as “unsound mind”, 16 and 17 year-olds, the point about IMCAs, thinking about when reviews should be considered by AMCPs, and so on.
As I said, in retrospect and as a lesson for the future, things could perhaps have been done differently. However, I believe we are in a much better place than we were at the start of the process as a consequence of our deliberations.
Amendments 141 and 147, also tabled by the noble Lord, Lord Hunt, and the noble Baroness, Lady Jolly, would require us to publish a plan to ensure that all outstanding deprivation of liberty safeguards applications are settled. The noble Lord is right to worry about this issue and give us the cautionary tale of a too-abrupt switch to a new system and the chaos that can ensue.
On commencement of the new system, existing deprivation of liberty safeguards authorisations will continue until they expire, at which point a liberty protection safeguards authorisation will need to be arranged, or the person should be provided with alternative arrangements that do not amount to a deprivation of liberty—we are seeking less restrictive care wherever possible. Given the length of time for which these authorisations exist, that will provide for a degree of staggering of the case load through the implementation of the new scheme.
On the backlog itself, many local authorities are already working to clear this. Some innovative working models have been introduced and I would be happy to write to noble Lords about them. We are working closely with the LGA and ADASS, as well as the Welsh DoLS network, to provide examples of best practice so that we can move through that backlog and into the new system. There will of course be some outstanding cases as we move from one system to another, particularly if an application is made shortly before the date the new system comes in. We will need special arrangements in place for those, but I reassure all noble Lords that we are working closely with all the people and organisations who will be responsible for implementing the new system to ensure a smooth transition.
Baroness Barker
I just want to be clear: am I right that the code of practice would not be amendable when any debate came? Would it come before this House simply for information purposes?
Lord O'Shaughnessy
That would be correct at the point at which it came before the House, but it would be published for consultation before then. There will be an opportunity for everybody—noble Lords, Members of the other place and stakeholders—to consider a draft and to recommend changes. The final product would be laid before Parliament.
We discussed the Mental Health Act review a little bit last week. We await its conclusions. Many of us have had conversations with Sir Simon Wessely about what it is likely to conclude, and about the interaction between the Mental Health Act and the mental capacity Bill when enacted. Since we are expecting its recommendations in the middle of next month—I think the scheduled date is the 12th—we will have an opportunity to consider the review’s recommendations before we move to the new system. Indeed, given that those recommendations will be out at about the time the Bill moves to the Commons, they will clearly be the subject of debate there. The Government will need to respond to those findings as we go through the Commons stages.
Amendments 143A and 147A, tabled by the noble Baroness, Lady Thornton, would require the Government, before the new system could come into force, to conduct public consultation on the Act with vulnerable people and other stakeholders and publish a report on its findings, as well as to publish their response to the Mental Health Act review and an equality impact assessment. I hope that I have dealt with the issue of public consultation, as well as consultation on the code and, equally, on the Mental Health Act review. The noble Baroness is quite right to bring the equality impact assessment to the House’s attention. It was prepared prior to introduction and required amendment following input from the Welsh Government. It will now need to be amended further to reflect the changes made in the Bill. I can commit to publishing the equality impact assessment before the Bill makes it to the Commons so that there will be ample time for consideration before it is debated there.
If the House will allow me, I will finish by thanking all noble Lords for their perseverance and patience during a sometimes difficult and challenging debate. We know that we all want to achieve the same end to our journey; there has been disagreement at times on the right way to get there. I am deeply grateful to all noble Lords for their contributions. The Bill has been immeasurably improved already in its passage through this House. That is a very good thing in itself and will have a very positive impact—notwithstanding the slightly gloomy prospect given by the noble Lord, Lord Hunt—when it goes to the other place and on to implementation.
Once again, I extend my sincere gratitude to all noble Lords. I hope that I provided reassurances on the amendments in this group and that they will feel able not to press their amendments.
Lord Hunt of Kings Heath
My Lords, I am grateful to the Minister. After such an uplifting response from him I do not want to drag us down again into negative thinking as we move on to Third Reading. I will just say that the problem with selective consultation is that it disfranchises some key respondents, and the problems we had over the summer were a consequence of that; it is a lesson to be learned for the future. I am grateful for the information about the work that has been done on the backlog. It will be important that the sector is clear as to which application falls under which part of the law. It is also very good that we will see the draft code in good time. Will the Minister arrange a briefing for noble Lords, rather than just going through a formal process? That would be extremely helpful.
Finally, Sir Simon Wessely’s review is clearly very important. It is obviously important that there be consistency, and the only thing I would say is that there are lessons for all of us for a future Bill in the way this Bill has been dealt with. There is no doubt in my mind that the issues raised by Sir Simon’s review lend themselves to pre-legislative scrutiny. Pre-legislative scrutiny is not fashionable any more, but my experience with the Mental Health (Amendment) Bill 2007 suggests that it doesn’t half pay off in terms of coherent legislation.
With that, I am very grateful to the Minister for his very full response and I beg leave to withdraw the amendment.
Lord O’Shaughnessy
Organ Donation (Deemed Consent) Bill
Lord O'Shaughnessy ExcerptsFriday 23rd November 2018
(5 years, 9 months ago)
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The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)
My Lords, I join the noble Baroness, Lady Thornton, and the noble Lord, Lord Carlile of Berriew, in congratulating noble Lords on a superlative debate on a vital and highly sensitive issue. It is a credit to this House. I thank the noble Lord, Lord Hunt, for bringing the Bill to the House and presenting it in such an authoritative way. I also thank MPs in the other place, Geoffrey Robinson and Dan Jarvis, both for bringing the Bill forward and for their collaborative work with the Government on it. I thank them and everybody else who has worked so hard to get the Bill this far for their ongoing dedication.
As has been remarked, the passing of the Bill would mark a significant step towards transforming and saving the lives of hundreds, if not thousands, of people in the UK waiting for a life-saving transplant. As my noble friend Lord McColl said, what is at stake could hardly be more important. While we have made great strides in recent years, we can and must do better, as we were reminded by the moving story of the noble Lord, Lord Elder.
The Government are committed to the Bill. In October 2017, the Prime Minister committed to changing the current system of consent to shift the balance of presumption in favour of organ and tissue donation in England. Her position gained support from leaders of all parties and Members in both Houses, for which I am truly grateful. As I said, the Government welcome the Bill and support it wholeheartedly as an additional and necessary measure to address the tragic death rates due to the lack of organs and tissues available for donation. As the noble Lord, Lord Oates, reminded us, public support for higher donation rates is already there, as it is among critical organisations in the healthcare family. Our job as legislators is to put in place a system that responds to public demand, but in an ethical, practical and effective way. I think that the Bill succeeds in this regard.
As has been said, the passing of this legislation is neither a silver bullet nor a magic wand, but I believe that it will play a significant role in changing the culture towards organ and tissue donation in England. Like the noble Lord, Lord Hunt, I pay tribute to Max Johnson and the family of Keira Ball. Max, whose plight captured the hearts and minds of the public and whose bravery has been remarked upon, was fortunate enough to receive the gift of life from nine year-old Keira Ball, whose family took the extraordinary and generous decision to transform and save the lives of others by making her organs and tissues available to those in need. We should never forget the importance of such gifts. I want to be absolutely clear that under the new approach set out in the Bill, organ donation will be a most precious and joy-giving gift, to use the phrase of the noble Baroness, Lady Crawley.
NHS Blood and Transplant does tremendous work in recognising the generosity of donor families in various ways, including by awarding them the Order of St John. I reassure all noble Lords that celebrating donation will continue; it is an important aspect of making organ donation part of our culture. Enough gratitude cannot be given to families who, at a time of such grief, take the big-hearted decision to transform or save the lives of others. I assure the right reverend Prelate the Bishop of Carlisle that, as I said, organ donation will always be a gift; that will remain the case. The decision of donation will remain: everyone will continue to be able to opt in or opt out of donation. To save more lives, we will still need more people to take the positive step of registering their decision to donate, so that if they die in circumstances where donation is a possibility, their organs and tissues can be made available to help those so desperately in need and the family can support that positive decision.
I should like to reflect on some important changes made to the Bill in the House of Commons where, as has been remarked, there was broad cross-party support. A set of amendments were made in the other place, including a power to remove novel forms of transplantation, such as faces and limbs, from the scope of the Bill. On this point, I want again to reassure noble Lords that the Bill will not change the list of organs and tissues currently considered standard donation. These are heart, lung, kidney, liver, pancreas, bowel, and tissues such as corneas, skin, bone and tendons. To ensure consistency with Wales and the proposal in Scotland, I confirm that for the rarer, more unusual types of transplants, known as novel transplants, as we will set out in regulations, there will continue to be a requirement for express consent to be given for donation to proceed.
If, following advice from medical experts and NHS Blood and Transplant, there is a need to update the list of novel transplants, we will consult on the relevant regulations, which will be laid under the affirmative procedure so that there will be full parliamentary scrutiny. On the point made by the noble Lord, Lord Hunt, I can go further today and confirm that the Government will lay a Written Ministerial Statement after any changes are passed by Parliament to give absolute clarity on how regulations have been updated and what they mean in practice for deemed consent.
We all know that this change in the law is important, but it is not the whole story. Making sure that the public are aware of the change and of the importance of organ donation is the critical change. The consent system needs to be accompanied by a comprehensive public awareness campaign to give the public time to understand the changes, have a discussion with their family and make an informed decision about whether they wish to donate their organs and tissues. The Government will develop easy-to-understand material, kept up to date with information about the options, what organs and tissues can be donated and other details.
I take seriously the points made by the noble Baroness, Lady Thornton, the noble Lord, Lord Patel, and my noble friend Lord Ribeiro about the importance of this campaign reaching the BAME community. A campaign on that front started in July but clearly, we need to do much more and have much greater opting in and awareness in these communities. We have had some success on this front with blood donation; we need the same kind of success in these communities with organs and tissues.
On the point made by the noble Baroness, Lady Randerson, I can confirm that, following Royal Assent, working with charitable and other groups—and learning very much from the Welsh example—we will launch a 12-month communication campaign to support donation. The new system will go live in 2020, after the initial transitional communication campaign has ended. However, the Secretary of State will continue to uphold his duty to promote organ and tissue donation, as set out in the NHS Act 2006. We know that changing the culture around organ donation requires continuous engagement with the public and is not a one-off exercise. I can reassure the noble Baroness, Lady Deech, that we are committed to follow-up campaigns in the years to come, and the noble Baronesses, Lady Finlay and Lady Randerson, whom I applaud for their extraordinary work in Wales, that we are keen to learn from the Welsh experience what works and what, if anything, we can improve on.
Another issue that noble Lords have raised is the importance of the family. As my honourable friend the Member for Thurrock highlighted several times during the Bill’s passage through another place, one of its important aims is to encourage everyone to think about what they want to do and talk to their friends and family about their wishes, so that they are left in no doubt about what their loved one would have wanted. As the noble Lord, Lord Elder, said, no consequence of the Bill could be more important.
Of course, some find such conversations difficult, but the benefit is that in the sad circumstances when a family is involved in discussions with the specialist nurse following a death, they do so in the knowledge that they are doing what their loved one would have wanted. Registering a decision on the Organ Donor Register is the best starting point for that conversation, and the most effective, as the noble Lord, Lord Oates, reminded us.
When families have not spoken to their loved one about organ donation, they are much more likely to reject donation. Some families come to regret that decision when they realise that they could have helped someone who was still alive. But let me leave you in no doubt that, as now, there will always be a discussion with the family on the best way forward. To reinforce the point made by my noble friend Lady Chisholm and in reply to questions from my noble friend Lord Leigh and the noble Baroness, Lady Deech: no family will be forced to agree with the donation if they are strongly opposed to it. My noble friend Lord Lansley spoke from great experience about the importance of good guidance for staff when implementing this regime. I will turn to how we will deal with that issue shortly.
As has already been mentioned by the noble Lord, Lord Hunt, and my noble friend Lady Brady, I confirm that children under the age of 18 will be exempt from deemed consent. That does not mean that they cannot donate but, as is current practice, children of any age will be able to register if they wish to donate or not donate their organs; the parents of the child will always be asked about the child’s decision to donate.
A third issue raised today, and an extremely significant one, is the importance of working with faith communities. I was pleased to hear the noble Baroness, Lady Deech, recognise that the Government have made concerted attempts to work with faith communities to build safeguards into the new system. We have announced various specific measures in the Government’s response to the consultation. For example, from next month, a new option on the organ donor register will allow those who register to ask that their family, or anyone else they wish, has a personal discussion with nurses and doctors about how donation can go ahead in accordance with their religious and cultural customs.
I can state categorically, to reinforce absolutely the point made by the noble Baroness, Lady Thornton, that the state will not take control of anyone’s body as a consequence of this Bill. We will update the current codes of practice on organ and tissue donation for healthcare professionals; in doing so, we will set out how religious and cultural considerations will form part of the discussions with the family and we will involve the different faiths in its development. NHS Blood and Transplant will supplement this with training for healthcare professionals. That work is progressing well and I reiterate the Government’s commitment to working with all faith groups to make sure it is successful.
I mentioned the importance of a new code of practice to implement the new system that we hope to move to; that will be developed by the regulator, the Human Tissue Authority. The existing codes will be updated to reflect the changes and, for ease, we will pull them together in a single code, on which there will be a 12-week consultation period. The noble Lord, Lord Carlile, pointed out that there will also be important implications for the professional regulators. I am sure that the noble Lord, Lord Hunt, will also want to take that on board in the new role we are all pleased to see him playing.
The issue of the NHS’s capacity was raised by my noble friend Lady Sater and others. The Government recognise that it is absolutely necessary for the NHS to manage the increase in donations and to carry out these life-changing operations. My officials have already started early work on planning with NHS England and NHS Blood and Transplant to make sure that the system is ready for the changes. Following these discussions, NHS England will consider the financial and service commissioning implications, so that we have the capacity and expertise to benefit from increased donations.
I will address a couple of issues raised by my noble friend Lord Leigh and reinforced by the noble Baroness, Lady Deech. They asked about the letter written by my honourable friend Jackie Doyle-Price explaining how the Bill would work. I emphasise that the letter is not a supplement to the legislation; it is an explanation of how the system of deemed consent will work in practice. The points that she set out on this hold absolutely. With their permission I would be delighted to share the letter with all noble Lords who are interested in the debate so that they can see the reassurances that we have provided. I believe it will provide some of the answers to questions raised in the debate.
My noble friend also asked whether the organ donor register should be given explicit legal consent. I do not think that is a necessity as the system has been working successfully for 30 years. The Secretary of State continues to have a duty under the NHS Act 2006 to make arrangements to facilitate tissue and organ donation. We believe the system is there; it is about using it to the maximum of its potential.
Before concluding, I will talk about the most important issue of all in getting this right, and that is staff. Specialist nurses for organ donation are highly trained professionals, usually from an intensive care or emergency medicine nursing background. When nurses join NHS Blood and Transplant, they initially receive extensive training over a six-month period. This covers all aspects of organ donation.
A key focus of the training is to enhance nurses’ skills in supporting acutely bereaved and grieving families, as this is an important, indeed essential, element of their role. When a patient has registered their decision to donate or when a family wishes to donate their loved one’s organs, the specialist nurse will skilfully and sensitively navigate the family through the detailed paperwork and mandatory medical history taking. When the family does not agree with the donor’s decision, the specialist nurse is trained to help the family come to terms with that decision. Experience from Wales tells us that this works and I can reassure noble Lords that we will make sure that there are enough highly trained staff to make the most of the changes resulting from this Bill. Our current estimate is that 27 more nurses would be required but, of course, if that number were to rise, we would make sure that they are fully trained and fully financed for the future.
The Government are confident that this piece of legislation will be pivotal in helping to transform and save hundreds of lives. Deemed consent in Wales is already showing promising results, with many more families now agreeing to organ donation when approached for this important discussion with specialist nurses. For those noble Lords concerned about the evidence base for change, we have seen in Wales, as the noble Baroness, Lady Randerson, pointed out, an increase in the number of deceased donors, from 60 in 2014-15 to 74 in 2017. Indeed, she talked about there being 44 in the first six months of this year. So there is evidence for its effectiveness, and our Chief Scientific Officer states in the impact assessment for the Bill that he can say with “moderate certainty”, that systems of opt-out, when introduced with a range of other support, such as logistical support, public awareness and so on, do increase donation rates.
I just pick up one point made by my noble friend Lord McColl on providing an opt-out in the Welsh system which in theory reduces the pool of potential donors. That means that, beforehand, there could have been donors who were having organs taken from them when they were not happy for that to happen. If anything, the Welsh system has provided greater individual autonomy while also increasing the number of donations. That seems to me to tick both the boxes that we would want for any system. The evidence for that is very powerful and gives us cause for hope and encouragement.
I conclude by reiterating the Government’s support for this Bill, congratulating the noble Lord, Lord Hunt, on bringing it forward and thanking all other noble Lords for their excellent contributions. If any noble Lords have continuing concerns about any part of the Bill, I would be more than happy to meet with them to discuss it. The Government are very keen to make progress with this. There is of course a risk that, as the time towards the end of the session gets short, we will not manage that, which would be highly regrettable.
Gosport Independent Panel
Lord O'Shaughnessy Excerpts(5 years, 9 months ago)
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The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)
My Lords, with permission I will repeat an Oral Statement made by my right honourable friend the Secretary of State for Health and Social Care on the Government’s response to the report of the Gosport independent panel. The Statement is as follows:
“In June this year, the Gosport independent panel published its report into what happened at Gosport War Memorial Hospital between 1987 and 2001. It found that 456 patients died sooner than they would have done after being given powerful opioid painkillers. As many as 200 other people may have had their lives shortened, but this could not be proved because medical records were missing.
The findings in the Gosport report are truly shocking, and we must not forget that every one of those people was a son or daughter, a mother or father, or a sister or brother. I reiterate the profound and unambiguous apology on behalf of the Government and the NHS for the hurt and anguish that the families who lost loved ones have endured. These were not just preventable deaths, but deaths directly caused by the actions of others. It is a deeply troubling account of people dying at the hands of those who were trusted to care. I pay tribute to the courage of the victims’ families and their local MP, the Member for Gosport, and their work for and commitment to the truth. Without their persistence, the catalogue of failures may never have come to light.
Along with the Prime Minister, I have met Bishop James Jones, who chaired the panel. He made it absolutely clear that what happened at Gosport continues to have an impact and places a terrible burden on relatives to this day. The failures were made worse because whistleblowers were not listened to, investigations fell short and lessons failed to be learnt. We must all learn the right lessons from the panel’s report and apply them across the entire system.
As Bishop Jones writes in the report, relatives felt betrayed by those in authority and were made to feel like ‘troublemakers’ for asking legitimate questions. The report says:
‘When relatives complained about the safety of patients … they were consistently let down by those in authority—both individuals and institutions. These included the senior management of the hospital, healthcare organisations, Hampshire Constabulary, local politicians, the coronial system, the Crown Prosecution Service, the General Medical Council and the Nursing and Midwifery Council’.
The panel heard how nurses raised concerns as far back as 1988, but were ignored or sidelined. More than 100 families raised concerns over more than two decades, but were ignored and patronised. Frail, elderly people were seen as problems to be managed, rather than patients to be helped. Perhaps the most harrowing part of the report is that which makes it clear that, if actions had been taken when problems were first raised, hundreds fewer would have died at Gosport. People want to see that justice is done, policies are changed and we learn the right lessons across the NHS. I will take each of those in turn.
First, on justice, between 1998 and 2010, Hampshire Constabulary conducted three separate investigations. None of the investigations led to a prosecution. The panel criticised the police for their failings in the investigations and their failure to get to the truth. Families said that they felt police had not taken their concerns seriously enough or investigated fully. Because of Hampshire police’s failures, a different police force has been brought in. A new external police team is now independently assessing the evidence and will decide whether to launch a full investigation. It must be allowed to complete that process and follow the evidence, so that justice is done. Much has improved in the NHS since the period covered by the panel’s report, but we cannot afford to be complacent. What happened at Gosport is both a warning and a challenge.
I turn to the reforms that have been made and the reforms we plan to make. First, the Care Quality Commission has been established, an independent body that inspects all hospitals, GP surgeries and care homes to detect failings and identify what needs to be improved. Next, we have set up the National Guardian’s Office to ensure staff concerns are heard and addressed. Every NHS trust in England now has someone in place whom whistleblowers can speak to in confidence and without fear of being penalised. We have established NHS Improvement, a separate, dedicated organisation, to respond to failings and put things right, and the Healthcare Safety Investigation Branch now investigates safety breaches and uses them to learn lessons and spread best practice throughout the NHS.
These are the reforms that the Government have already made, but we must go further. Motivated by this report, we will bring forward new legislation that will compel NHS trusts to report annually on how concerns raised by staff have been addressed, and we are working with our colleagues in the Department for Business, Energy and Industrial Strategy to see how we can strengthen protections for NHS whistleblowers, including changing the law and other options.
Next is the question of drug prescription. Central to the deaths at Gosport was the prescribing, dispensing and monitoring of controlled drugs. Since the period covered by the report, there have been significant changes in the way that controlled drugs are used and managed, and syringe drivers are no longer in use in the NHS. However, in the light of the panel’s findings, we are reviewing how we can improve safety. Further, from April next year, medical examiners will be introduced across England to ensure that every death is scrutinised by either a coroner or a medical examiner. Medical examiners are people whom bereaved families can talk to about their concerns to ensure that investigations take place when necessary, to help to detect and deter criminal activity, and to promote good practice. The system will be overseen by a new, independent national medical examiner and training will take place to ensure consistency of approach and a record of scrutiny.
The reforms we have made since Gosport mean that staff can speak up with more confidence and that failings are identified earlier and responded to more quickly. The reforms we are making will mean greater transparency, stricter control of drugs and a full and thorough investigation of every hospital death. Taken together, they mean that warning signs about untypical patterns of death are more likely to be examined at the time, not 25 years later.
However, as well as these policy changes, there is a bigger change, which I turn to now. Just as with the reports into Mid Staffordshire and Morecambe Bay, the Gosport report will echo for years to come and the culture change that these reports call for is as deep-rooted as it is vital. There has been a culture change within the NHS since Gosport, but the culture must change further still. One of the most important things we have learnt from the report is that we must create a culture where complaints are listened to and errors are learned from, and that this is embedded at every level in the NHS. What happened at Gosport was not one individual error; it was a systemic failure to respond appropriately to terrible behaviour. To prevent that happening again, we need to ensure that we respond appropriately to error—openly, honestly, taking concerns and complaints seriously, seeing them as an opportunity to learn and improve, not a need for cover-up and denial. I want to see a culture that starts by listening to patients and their relatives and by empowering staff to speak up. That starts with leaders creating a culture that is focused on learning, not blaming; a culture that is less top-down and hierarchical, with more autonomy for staff, and which is more open to challenge and change. We need to see better leadership at every level to create that culture across the NHS.
Today marks an important moment. Lessons have been learned, will be learned and must be applied. The voices of the vulnerable will be heard. Those with the courage to speak up will be celebrated. Leaders must change the culture to learn from errors, and we must redouble our resolve to create a health service that is a fitting testament to the Gosport patients and their families. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Baroness Jolly (LD)
My Lords, I join the noble Baroness, Lady Wheeler, in thanking the Minister for an update of this situation and I too pay tribute to the relatives and the whistleblowers in this awful scandal. I am sure that many noble Lords will remember how the Shipman scandal absolutely rocked the NHS back in the late 1990s. The learning which came out of that was meant to incorporate right across the NHS robust clinical governance structures. It is really quite ironic that the things which were put in place to deal with the Shipman case seem to have fallen apart completely as regards the particular issue of Gosport.
Whistleblowers need to be confident that there will be no danger of their being bullied. I am sure that other noble Lords will have had NHS employees ask to talk to them about whistleblowing issues. One of the saddest days I can remember was when I was sitting in the Royal Gallery talking to a very senior manager in an NHS trust who was trying to raise his concerns. In the end he resigned because he felt that he had been bullied into doing so. He was going to take his expertise elsewhere. There is learning that should come from that.
I welcome the Freedom to Speak Up initiative and the work from the National Guardian’s Office. What progress has been made in embedding the operation of that scheme? If it is still in train, when might it be embedded? What consideration has been given to a similar scheme for whistleblowers who work in the care sector? This has got the NHS sorted but, at the moment, there is no way that care workers who work in care homes or other care establishments can effectively blow the whistle.
Lord O’Shaughnessy
I am grateful to both noble Baronesses for their comments. I join them in expressing both my sympathy for the families of those affected and my admiration for and gratitude to Bishop Jones and his panel.
The noble Baroness, Lady Wheeler, asked a number of questions to which I will attempt to respond. First, she was right to reiterate the shocking nature of the panel’s findings and the systemic problems that were found. The noble Baroness, Lady Jolly, talked about the Shipman case. Part of the problem here is that, in some senses, people were alert for a Shipman-type event but not for a different type of event; it is almost always the case that when things go wrong, they go wrong in a different way. That is why we need a different approach from simply focusing on the actions of one person.
The noble Baroness, Lady Wheeler, asked about legislation. We are considering whether the right route would be through the draft health service safety investigations Bill, which is coming through Parliament at the moment, or other routes. Her request for regular updates is a good one; by the time we next report on such an update, I will be able to update her on the type of legislation we intend to use. I am grateful to both noble Baronesses for offering to support us through that process.
Clearly, the medical examiners’ policy is critical to making sure that we do not suffer these problems in future or that bad behaviour—you can never rule it out—is spotted and dealt with quickly. They will come in from April 2019. In the policy design, we considered whether they should be sited with local authorities but felt that they would be better sited in trusts, so they will work in trusts, there will be provisions to deal with conflicts of interest in particular, and they will report directly to a national medical examiner. That will be their reporting line, so they will have that professional responsibility.
We will support this scheme with more money—about £30 million. It will start with hospital deaths but will roll out over time to all deaths. Clearly, as was said by the noble Baroness, Lady Wheeler, interaction with the Learning from Deaths programme, which will move from acute mental health and learning disability deaths into a primary care setting, will be critical. We need to bring these programmes together; her point was well made.
We expect that the medical examiners’ system will lead to 140 more coronial inquests each year where there is suspicion of something being not quite right. That reflects both the likelihood of problems existing in the system now and the benefits that we can get from the scheme. I hope that the scheme will get strong support from all sides of the House.
Of course, support for the affected families continues; they are still going through this process and the police assessment and investigation is moving forward. We do not believe that there are further cases on this scale but we need to remain vigilant at all times, precisely as my right honourable friend the Secretary of State said yesterday. We must make sure that we do not just think that we have solved it but keep deepening our attempt to change the culture.
The noble Baroness, Lady Wheeler, asked about medicine prescribing. At this point, the intention is to have an internal review, but we would be happy to receive evidence from all parties—noble Lords, stakeholders and others—to make sure that we can improve prescribing and look for patterns of bad behaviour. E-prescribing has been rolled out across the country, which gives us the ability to investigate unusual prescribing patterns. Improved computing technology can help us to do that as well; we are talking to the MHRA about that because it is concerned with medicine safety.
The noble Baroness, Lady Wheeler, asked about professional regulation reform. The Secretary of State is aware of it. There is a long history of great support in this House for it; I am afraid that I have not got anything particular to say to her about that at this time, other than that we are aware of the support and need for reform in this area.
Finally, the noble Baroness, Lady Jolly, asked about whistleblowers. She is absolutely right that this issue is critical, which is why we are working with the business department. The good news is that speak-up guardians, as they are sometimes known, are now in place in trusts across the country. The bad news is that, despite being banned, gagging clauses are still in operation; again, my right honourable friend said that he is determined to stamp that out. I take the noble Baroness’s point about looking at the care sector; it is a good one. I will make sure that it is considered explicitly in the work that we are doing with the business department.
Once again, I thank both noble Baronesses for their support. I know that we are all determined to make a difference.
Mental Health Budget: Domestic and Sexual Violence
Lord O'Shaughnessy Excerpts(5 years, 9 months ago)
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Baroness Thornton
To ask Her Majesty’s Government how much of the National Health Service mental health budget goes towards intervention to address domestic and sexual violence and abuse.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)
My Lords, it is not possible to provide a precise figure because expenditure is not identified by cause of health condition. Abuse victims accessing services are not identified separately: they receive treatment based on clinical need rather than on the cause of their condition. However, the NHS is expanding psychiatric liaison services in A&E, in which staff are trained to assess the risk to patients of violence. Sexual assault referral centres then provide health support to victims and have £31 million of funding in 2018-19.
Baroness Thornton (Lab)
I thank the Minister for that Answer. Given that the Government have recognised the scale of the mental health challenge, particularly for victims of domestic abuse and sexual violence, and have put some money aside for this area to be spent at local level, how do they plan to ensure that the funding is available and gets to the refuges and organisations on the front line that are desperate to tackle this desperate need?
Lord O’Shaughnessy
I am grateful to the noble Baroness for her recognition of the work that is going on in funding. It is important to point out that NHS England published a sexual assault and abuse strategy this April. That involved funding for sexual assault referral centres and a range of other innovations, including an Identification and Referral to Improve Safety project, which has now been rolled out in 800 GP practices. So work is going on not only to roll out these kinds of services but to make sure that many more victims are coming through to them. I know that the Women’s Mental Health Taskforce is due to report later this month and I will speak to my colleague, Jackie Doyle-Price, who is the lead Minister, to find out if we can give more specificity on how we track the number of users of these kinds of services.
Baroness Hollins (CB)
My Lords, we know that sexual violence in childhood, whether as a victim or secondary victim, correlates closely with mental illness in adulthood. Will the Government make childhood trauma a local commissioning priority and invest in trauma-informed models of care?
Lord O’Shaughnessy
The noble Baroness is right and I can reassure her that some of the additional £100 million of funding that the Government are providing for this issue is going on children who have been victims of abuse. Indeed, the draft domestic abuse Bill that we look to bring forward this Session will propose tougher sentences when a child has been involved in domestic abuse.
Baroness Nicholson of Winterbourne (Con)
My Lords, is it possible for the Department of Health to assist the police in some way? So many victims of sexual violence, several of whom have approached me personally, say that there is quite a long delay between their reporting the violence and the police bringing the perpetrator to court—if the case gets that far. Is there any way to shorten that timescale, without any implication of justice not being allowed or cut too short for the accused? Is there anything that the Department of Health could do to bridge that gap a little? It would be so helpful.
Lord O’Shaughnessy
My noble friend is right: that is a really important part of the approach. It is encouraging that 88% of women would now tell someone about abuse they have suffered and that there has been a 20% increase in domestic abuse convictions since 2010. As we discussed in this House last week, we are seeking through the GP contract negotiations to abolish the fees that some GPs charge for the letters needed for referral to legal aid and other things. That is something we continue to push.
Baroness Jolly (LD)
My Lords, the statistics tell us that for every two women who are affected by domestic violence or abuse, there is one man. Can the noble Lord reassure the House that spending allocations reflect this?
Lord O'Shaughnessy
The noble Baroness is quite right. The strategy, of course, has a focus on women and men. Women are the greater victims of abuse; indeed, the more severe the abuse, the more likely it is that the victim is a woman. However, I can tell her that it is a broad strategy which encompasses both. We still have a problem, in that men are much less likely to come forward if they have been abused than women.
The Lord Bishop of St Albans
My Lords, it is much to be welcomed that the Government are allocating this money. I am also glad that the needs of young people have been highlighted, but the Minister will be aware that statistics show that roughly 340,000 elderly people are suffering abuse in the community each year. If we are not tracking how the money is spent, how can we be sure that the mental health needs of the elderly are being properly addressed at a particularly vulnerable point in their lives?
Lord O'Shaughnessy
The right reverend Prelate makes an excellent point. The intention is that there will be greater reach into care home settings as well as domestic settings, so that people who experience abuse in those settings are able to come forward and we can provide such protections for people in homes.
Mental Capacity (Amendment) Bill [HL]
Lord O'Shaughnessy ExcerptsWednesday 21st November 2018
(5 years, 9 months ago)
Lords ChamberRead Full debate Mental Capacity (Amendment) Act 2019 View all Mental Capacity (Amendment) Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 117-R-I(Rev) Revised marshalled list for Report (PDF) - (20 Nov 2018)
Lord O'Shaughnessy
“Part 8 contains transitory provision.”
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)
My Lords, before I introduce this first group of what I hope are uncontroversial and technical amendments, I want to express my sincere thanks to all noble Lords who have been involved in a good deal of hard work between Committee and today in order to get the Bill into better shape. When we set out on this process at Second Reading, noble Lords had some concerns about the Bill, which crystallised in Committee. I think we have made a good deal of progress since then, which could not have happened without their contribution. I hope we are able to make similar degrees of progress today.
The amendments in this group straightforwardly make technical changes to the Bill. Amendment 1 reflects that transitory, or temporary, provision related to 16 and 17-year olds will be included in a new Part 8 of the schedule. Amendment 10 inserts a definition of “clinical commissioning group”. Amendment 148 removes an unnecessary provision regarding statutory instruments from the Bill. Clause 5(3) reflects that regulations under Clause 5 will be made by statutory instrument. However, Clause 5(7) already provides that regulations under Clause 5 are to be made by statutory instrument, so the words in Clause 5(3) are superfluous. I hope everyone can follow that—I promise it is straightforward and technical. On that basis, I beg to move.
Baroness Thornton
My Lords, I thank the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for bringing forward the amendments. I can see that the Government have a decision to make about which way to go on them.
Listening to the Joint Committee on Human Rights is always a good idea. We discussed a statutory definition during the previous stage of the Bill, when the Minister repeated that he,
“should like to take some time between now and Report to consider the opinion expressed by noble Lords and in the report of the Joint Committee about the benefits of a statutory definition”.—[Official Report, 5/9/18; col. 1849.]
I understand why the noble Baroness, Lady Finlay, is thanking the Minister already but it may be slightly premature. I know what she means, but let us wait until the end of the next day and a half. It is important that the Minister shares with us now where that thinking has led him.
Lord O’Shaughnessy
My Lords, I am more than happy to do so. I express my gratitude to the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, for tabling their amendments and for precipitating this incredibly important debate. As has been set out, Amendment 2, moved by the noble Baroness, Lady Tyler, states that the liberty protection safeguards apply only to,
“arrangements which give rise to the deprivation of the cared-for person’s liberty”,
when,
“the cared-for person is subject to confinement in a particular place for a not negligible period of time … and … the cared-for person has not given valid consent”.
The amendment explains that someone is confined when they are,
“prevented from removing himself or herself permanently … and … the dominant reason for the deprivation of liberty is the continuous supervision and control of the cared-for person, and not treatment for their underlying condition”.
Amendment 4, tabled by the noble and learned Lord, Lord Woolf, also states that a deprivation of liberty for the purposes of liberty protection safeguards is where,
“the cared-for person is subject to confinement in a particular place for a not negligible period of time … and … the cared-for person has not given valid consent to their confinement”.
The amendment goes on to define “valid consent”, stating in particular that valid consent has been given when,
“the cared-for person is capable of expressing their wishes and feelings … has expressed their persistent contentment with their care and treatment arrangements … there is no coercion involved in the implementation of the … arrangements”,
and it is,
“confirmed in writing by two professionals, one of whom must not be involved in the implementation of the cared-for person’s … arrangements”.
The intention behind the amendments is to create a statutory definition of the deprivation of liberty, as has been discussed. I note that the amendments were influenced by the work of the Joint Committee on Human Rights, which I both applaud and welcome. We are aware, and the Law Commission’s consultation confirmed, that there is real confusion on the ground over the application of the so-called acid test and determining whether a person has been deprived of their liberty. In some cases, that has led to blanket referrals and applications for authorisations being made where there may be no deprivation of liberty at all.
As the noble Baroness, Lady Thornton, pointed out, I promised to think about this issue and we have given it a great deal of thought. Like other noble Lords, we have reached the conclusion that deprivation of liberty should be clarified in statute. However, we want to get the definition right and make sure that it is compatible with Article 5 of the ECHR. I agree that the aims of the amendments are laudable. As I said, the Government support providing clarity in the Bill. However, as I am sure all noble Lords appreciate, this is a complex and technical issue, and we have to make sure that any amendment is compliant with Article 5.
The noble Baroness, Lady Thornton, pointed out one particular concern around the use of the term “not negligible … time”. The point I want to make is much more technical, but it serves to introduce how difficult this issue is. I hope noble Lords will bear with me as I explain it; it is incredibly important. We believe that the amendments tabled by the noble Baroness, Lady Tyler, and the noble and learned Lord, Lord Woolf, would not have the intended effect of defining deprivation of liberty, but would instead limit the application of liberty protection safeguards to those who fall within the respective definitions.
Section 64(5) of the Mental Capacity Act defines “deprivation of liberty” as having the same meaning as in Article 5. The definitions in the amendments would not change this. Deprivations of liberty that fall outside those definitions would still be deprivations of liberty under Article 5, and would still need to be authorised in accordance with Article 5. However, because the liberty protection safeguards would not apply, authorisation would instead need to be sought in the Court of Protection, which, as we know, can be a cumbersome and distressing process for persons and their families, and would have significant cost implications for public bodies and the court system
Furthermore, the amendment tabled by the noble and learned Lord, Lord Woolf, although closely resembling the proposal put forward by the JCHR, also seeks to determine what valid consent would mean, and we are worried that that would not work in the way intended, because the definition is very broad. Its consequence could be that a significant number of people currently subject to DoLS authorisation would be caught by the definition and excluded from the liberty protection safeguard system, and tens of thousands of people might need to seek authorisation from the Court of Protection. Again, I do not believe that anyone would want to see that outcome. I notice that the noble and learned Lord is shaking his head, so clearly there is some disagreement on this point. I use it, however, to illustrate that there is a concern that we get this right.
Lord Woolf
I was shaking my head because I do not want to see what the Minister suggested might be a consequence.
Lord O’Shaughnessy
I will come to that. I am using that technical point to illustrate that there are concerns with the amendments as laid. We recognise the importance of this issue and the strength of feeling on it in the House. As I have said, I see merit in the argument for having this defined in statute, and I am sympathetic to that point of view. I can therefore give noble Lords some assurance, and confirm today not only that we are working on this matter, but that we intend to bring forward an amendment in the Commons to give effect to a definition. We want to work with all noble Lords and other stakeholders, and of course the JCHR, to ensure that we can table an effective amendment that achieves our shared aims and gains the level of consensus that we all want to achieve, and that we shall be able to lay it and have it agreed during the Commons stages of the Bill. I hope that in providing that commitment, I have been able to reassure noble Lords of the strength of our intentions. We absolutely want to do this, and we want to get it right. I still think it will take a bit more time, but I know that, working together, we can achieve that.
Baroness Barker (LD)
I thank the Minister very much for his response to the amendments tabled by my noble friend Lady Tyler and the noble and learned Lord, Lord Woolf. I acknowledge that he has listened to the arguments made in this House over the past few weeks. I understand why he cannot make a commitment to come back within the timescale of the Bill in this House. This is an important matter, and many different people have a great deal of expertise, practical knowledge, legal knowledge and so on, to put into the process of coming up with a definition, which will be extremely difficult.
Would the Minister therefore be so good as to write to noble Lords as soon as he can, setting out the timetable of the work the department intends to undertake and the people they intend to involve in discussions, which I hope will include practitioners, stakeholders and academics, medical experts and so on, as well as Members of your Lordships’ House who have reviewed the operation of the current law and found it deficient? Could he do that as soon as possible so that, when we come to consideration of Commons amendments when the Bill comes back to this place, we will be able to give this subject the attention it merits rather than the rather perfunctory consideration that we usually have to give to arguments that come back to us within a very technical parliamentary framework?
Lord O’Shaughnessy
I am happy to give that commitment, bearing in mind that there is always uncertainty about the timing of Bills’ progress but, in terms of the work we will do to come up with the definition, I am more than happy to do that and to include estimates—I see the Chief Whip coming into the Chamber—of the timing of the further parliamentary stages.
Baroness Tyler of Enfield
I thank the Minister for his full and helpful reply. This has been a good and important debate to start this afternoon’s debate. I am grateful to the Minister for agreeing to look at this. He has twice confirmed the Government’s position, which is that it is important that the definition is clarified and contained in the statute. That was the purpose of my amendment. He is right to say that this is complex and technical and that we need to get it right. I fully understand that that needs a bit of time. Although at one stage I hoped that this might be able to come back at Third Reading, I fully understand why he said that the Government will lay an amendment in the Commons stages, and I support my noble friend Lady Barker in her request for a letter setting out the timescale of the work and who will be involved. I beg leave to withdraw the amendment.
Baroness Thornton
My Lords, we on these Benches recognise that the noble Baronesses, Lady Meacher and Lady Murphy, have been persistent in raising these issues throughout the course of the Bill. They are absolutely right that these issues have to be addressed and that they are not covered adequately; the briefings we have had suggest that they are not. The reason that possibly we have not been able to develop enough of a head of steam on this is that we have been focusing on other issues in the Bill, which we will come to. The Minister may not be able to resolve this immediately, but I hope that he will recognise its importance and bring forward a solution.
Lord O'Shaughnessy
I express my gratitude to the noble Baronesses, Lady Meacher and Lady Murphy, for tabling this important amendment. As the noble Baroness, Lady Meacher, pointed out, the effect of the amendment would be to ensure that liberty protection safeguards do not apply to a deprivation of liberty in a domestic setting, and that these should be dealt with under the Care Act. It further states that the schedule does not apply where the dominant reason for the deprivation of liberty of a person is for an underlying condition under the Mental Health Act.
The effect of the amendment as tabled would mean that people deprived of their liberty in domestic settings could not have that authorised through the liberty protection safeguards or the Court of Protection. Instead, their case would fall to be dealt with under the Care Act 2014. I appreciate that the intention is that in most cases deprivation of liberty would be avoided through care planning and safeguarding under the Act. But nevertheless, in some cases there will need to be an authorisation of a deprivation of liberty in domestic settings.
I absolutely sympathise with the noble Baroness’s intention to reduce wherever possible intrusions into family life; as the noble Baroness, Lady Thornton, pointed out, that has perhaps not been given sufficient time during the passage of the Bill so far, although it is nevertheless a significant issue. However, we have a concern with regard to the amendment as laid in that the Care Act does not in itself provide adequate Article 5 safeguards, and to rely on such a process could result in a real risk of incompatibility with convention rights.
Lord O'Shaughnessy
Lord O'Shaughnessy
My Lords, as we move on to this group of amendments, which deals with the extension of liberty protection safeguards to 16 and 17 year-olds, I thank all noble Lords for reminding us from Second Reading onwards of the absence of this provision when compared with the Law Commission’s report. Of course, we had accepted in principle that we wanted to move on this issue, but we needed to resolve some complexities about how it should apply. We have now done so and have brought forward amendments. I am grateful to all noble Lords, stakeholders and others who have contributed to this process.
Let me just outline in more detail what these specific amendments cover. Amendment 5 extends the liberty protection safeguards system to 16 and 17 year-olds.
Amendments 20 and 22 take into account the different legislative arrangements already in place for cared-for people aged 16 to 17. This group of young people are likely to have either an education, health and care plan—an EHCP—in England, or an individual development plan—an IDP—or statement of special educational needs in Wales. Amendment 21 provides that, for those cared for in the community, the same local authority that maintains their plan will act as the responsible body for liberty protection safeguards. If the person has neither of these plans, the responsible body will be the local authority that is providing accommodation for the person, or otherwise named in a care order; in any other cases, it will be the local authority for the area in which the arrangements for that young person are mainly undertaken. This provision aims to provide continuity for the person and to make the process less burdensome for them and their family. The local authority in these cases will know them best and have more knowledge of their circumstances and will therefore be able to make sure that the arrangements are the most appropriate.
Those aged between 18 and 25 and in the scope of LPS may also have an education, health and care plan or an individual development plan. Amendment 19 clarifies the responsible local authority for this group. Amendments 7 and 18 state that the responsible body for those aged 18 to 25 should be the same local authority that maintains the education, health and care plan or individual development plan. This will provide clarity and consistency in their arrangements too.
Amendment 22 has the effect of clarifying who the responsible local authority is if none of the other specific provisions applies for those aged 16 and 17. Those 16 and 17 year-olds who are cared for mainly in hospital settings will have the same responsible body as those who are 18 or over, which is the NHS trust, local health board or CCG.
Amendment 23 defines education, health and care plans and individual development plans.
Amendment 134 makes provision in Wales for the transition to the new system, to support children and young people with special educational needs or additional learning needs. We are continuing to consider, in conjunction with the Welsh Government, whether all the cohorts in Wales are captured under the current amendments. If there is a need to do so, we will come forward with new amendments in the other place in order to capture other cohorts, if they are identified.
Although liberty protection safeguard authorisation records will be stand-alone documents, we have listened to advice from noble Lords and will make it clear in the code of practice that information in the LPS authorisation that is relevant to meeting a young person’s special educational needs or additional learning needs should be included in their EHC plan or IDP—sorry for the acronyms.
Over recent months, we have worked together across government and with stakeholders to develop these amendments so that the new system complements and strengthens existing safeguards for 16 and 17 year-olds who lack capacity and who must be deprived of their liberty for care and treatment purposes. I hope that these government amendments address the concerns raised by noble Lords. I thank them again for raising them and for contributing to the development of these amendments. I beg to move.
Lord O’Shaughnessy
Lord O’Shaughnessy
My Lords, the amendments in this group have been tabled to remove the references to “unsound mind” from the Bill. As was made very clear in discussions at Second Reading, in Committee and outside this House, we all agree that the expression “unsound mind” is outdated and, as the noble Baroness, Lady Murphy, reminded the House, it is not clinically relevant. Noble Lords have made it clear that they want to change this language and that it should not be used in the Bill.
It is worth remembering that “unsound mind” is the language used in Article 5 of the ECHR. It was included in the Law Commission’s draft Bill and we brought it over to our Bill because we were concerned about creating a gap in which some people who were entitled to Article 5 safeguards would not have access to the liberty protection safeguards and would have to have their arrangements authorised in the Court of Protection. The Government took the view that it would be unfair to deny people access to the protections provided by the liberty protection safeguards, particularly as we know court processes can be cumbersome for them and their family. However, noble Lords and the Joint Committee on Human Rights recommended that further thought be given to replacing “unsound mind” with a medically and legally appropriate term and this is what we have done.
The Government have reflected on the debate in this House, particularly the expert legal insight provided by the noble and learned Lord, Lord Woolf—who is not in his place at the moment—whom I thank. Having done this, we are comfortable that we can use alternative language that is unlikely to create a significant gap. If people do fall out of this definition, they will still have recourse to the Court of Protection to authorise deprivations of liberty, although we expect the number of these cases to be very few. To achieve this, Amendment 6 removes the reference to “unsound mind” from the arrangements to which the liberty protection safe- guards apply and replaces it with “mental disorder”. Amendment 12 provides that “mental disorder” has the same meaning as under Section 1(2) of the Mental Health Act which is,
“any disorder or disability of the mind”.
This is also consistent with the approach under the current DoLS system and is therefore well understood by practitioners.
We considered other approaches, such as using the definition of a lack of capacity in Section 2 of the Mental Capacity Act, which refers to an,
“impairment of, or a disturbance in the functioning of, the mind or brain”.
However, we concluded that this definition was too broad for the purposes of Article 5(1)(e), which permits the deprivation of liberty only on the basis of unsound mind. For example, the Section 2 definition could mean that people who are unconscious or have a brain injury, without psychiatric symptoms, might be able to be deprived of their liberty under the liberty protection safeguards scheme.
Amendment 12 removes the definition of “unsound mind” from the Bill. The noble Baronesses, Lady Thornton and Lady Jolly, have tabled Amendments 25 and 50, which instead use the phrase,
“has disorder or disability of the mind”.
These words are also taken from the definition in the Mental Health Act and I believe the amendments are intended to have the same effect as the Government’s. Now that the Government have moved on this, I hope they will feel that to be the case. Finally, Amendments 14, 26, 51, 131, 132 and 133 update other parts of the Bill to reflect the removal of “unsound mind” and the substitution of “mental disorder”.
I end by thanking noble Lords for the robust debate on this issue. I have very much had my mind changed on this and give reassurance that people will not fall through the gap. We have got to a good position, which provides the kind of protection that we want while also getting rid of a phrase with connotations that none of us is happy with. On that basis, I beg to move.
Lord Touhig
My Lords, this group of amendments is most welcome. The term “unsound mind” is offensive in the extreme and historically has been used as a form of abuse to demean the dignity of the person to whom it is applied. These amendments mean that this old-fashioned term will no longer be in the Bill and that a phrase with no clinical meaning is rightly removed. Using the same term as the Mental Health Act, “mental disorder”—this link is explicitly made by the Government in Amendment 12—provides better diagnostic clarity.
Amendments 25 and 50 in the names of my noble friend Baroness Thornton and the noble Baroness, Lady Jolly, change “unsound mind” to,
“any disorder or disability of the mind”.
The Minister responded to those points in his opening speech. This is the language currently used under the DoLS in the Mental Health Act and it is to be welcomed.
Perhaps I may share with the House my personal experiences. My late mother suffered two nervous breakdowns in her life. One occurred before I was born, when she was put into an institution, where I do not think she was well treated. Later, she suffered a further breakdown when I was 16 and I had to take the lead, coping with and co-ordinating help and support for her, my father and our family. The consequences of her breakdown that I witnessed were traumatic not only for my mother, who was a loving, kind and thoughtful individual, but for our family, who witnessed times when she seemed to grow away from us.
My mother made a recovery and we all came through it, thanks to the devotion and understanding of our family doctor, our wider family and friends. However, our family experience has given me an understanding of some of the consequences of mental illness for individuals and their families. Families who experience what mine went through need support and understanding to cope, which is why I welcome the amendments.
I have said that the term “unsound mind” is used to cover many things. It is one that personally I find offensive, and I rejoice that those words are being removed from the Bill.
Lord O’Shaughnessy
I thank all noble Lords for their support for these amendments. I also thank the noble Lord, Lord Touhig, for sharing with us that story. It brings into sharp perspective the consequences of language and culture in the way that people are treated. We are trying to move to a more compassionate and comprehensive system of helping people who reach mental health crises. I appreciate him sharing that story, which was very moving.
Perhaps I may deal quickly with the questions raised by noble Lords. The noble Baroness, Lady Finlay, asked whether long-term brain injuries would be included. The answer is that they would. The reference that I made was to the potential short-term impacts, which we would not necessarily want to capture in this definition. On her question about palliative care, my understanding—I will certainly confirm it, as I have not seen the letter—is that it still applies. I think that is the reassurance she was hoping to get.
In relation to the question raised by the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt, about the assessment of a condition by a doctor, case law requires that such an assessment should be carried out by somebody who has objective medical expertise. In practice, that means a registered physician. Therefore, that reassurance already exists in jurisprudence, but I accept the importance of the point raised—that, perhaps except in an incredibly rare emergency, that kind of diagnosis should always be made by somebody with that level of competence or skill qualification, however you want to define it. I will write to noble Lords explaining the position as it stands in law and why we think that it gives the protection and reassurance they are looking for. We can then perhaps follow that up with a discussion if there are any remaining concerns. I certainly agree that this is an important issue.
I hope that I have dealt with noble Lords’ questions and I thank them again for their support and the challenge that has got us to this point of moving forward.
Lord O'Shaughnessy
Lord O'Shaughnessy
Lord O'Shaughnessy
My Lords, we now come to the largest group of amendments on the issue that has perhaps taken up most of our attention in the progress of the Bill so far, and quite right too.
The government amendments in this group relate to ensuring that care home managers have an appropriate role in the liberty protection safeguards system that we are seeking to implement. You would have to have had ears of cloth not to have heard the concerns raised by noble Lords and stakeholders throughout the passage of the Bill about the proper role of care home managers. I agree that we must be absolutely clear at this stage in legislation about what is the right role for those care home managers. I also agree that there should be no scope for any conflict of interest—not when we are talking about the safety and care of very vulnerable people—and that we should ensure that all assessments are completed by those with the appropriate experience and knowledge. Furthermore, people should always have confidence that they will have access to independent support and representation.
I will shortly address the specific amendments in this group. Before I do so, I would like to draw noble Lords’ attention to other germane government amendments, which we will deal with on the second day of Report but which are important to consider in the round with the amendments in this group. Those include proposals that we have made to ensure that only responsible bodies can arrange the pre-authorisation review and that care home managers will be explicitly excluded from completing the pre-authorisation review. This is important because pre-authorisation should not confirm poor care planning or perpetuate a system where someone is receiving care in an inappropriate setting. The amendments that we have laid and which we will deal with on the second day will counteract any incentive the care home manager might have to ensure that a resident stays in a care home inappropriately. We are also determined to make sure that the care home manager cannot act as a gatekeeper to the IMCA appointment, and we have laid amendments accordingly.
There has been a great deal of discussion about the role of care home managers in authorisation. I have strongly and deeply considered noble Lords’ concerns in the context of what we know works now in the current system. There is a desire to make sure that the liberty protection system that we intend to introduce builds on what works and changes what does not. Under the current DoLS system, care home managers have the role of identifying that someone may lack capacity and need restrictions as part of their care. In practice, they must complete form 1, which brings together all of the current assessments for a person. This is then sent to local authorities, which appoint a best-interest assessor to conduct a further assessment ahead of providing the authorisation. This is an appropriate role for care home managers to undertake, and is the role we are proposing and clarifying through our amendments.
Amendment 30 requires the responsible body to make a decision on whether it is content that it is appropriate for the care home manager to carry out the relevant functions prior to authorisation, including arranging assessments and carrying out consultation. Amendment 90 applies this decision to reviews as well. This is an important change because it provides additional protections in cases where there may be concerns about a particular provider and its capability for conducting its role, and it allows responsibility to take on all the relevant functions in these cases. There may also be cases where there are no concerns about quality of care, but there may, for example, be particularly strong social worker involvement and it may make sense for them to take on those functions.
This power to remove the care home manager from the process can be enacted at any point, and we would expect it to be done at the earliest possible point, particularly if there are concerns. We will use the code of practice to set out the detail so that it is applied consistently by different local authorities, with clear criteria for the responsible body to make a decision on whether to retain responsibility for the relevant functions. In the case of care home residents, this significantly strengthens the role of local authorities in terms of oversight, intervention and supporting the quality of the operation of the scheme. If the responsible body has decided that the care home manager should be responsible for providing the statement and carrying out the other functions, the care home manager will bring together the information, evidence and assessments needed for the responsible body to make a decision on whether to authorise the liberty protection safeguard. In many cases, this will bring together recent valid assessments that can be used for this purpose.
As has been said previously, care needs change over time. We recognise that putting hard and fast rules on the validity and timeliness of assessments would not recognise the reality of what happens. That is why we will set out in the code of practice what we would expect to see in terms of valid and up-to-date assessments. The Bill also enables the responsible body to step in, if they are not confident in the validity of the assessments, by refusing to authorise the arrangements. Let me be clear that all the assessments would involve consultation with the person. In addition, the Bill will require the care home manager, or the responsible body, to complete the consultation with the person and other interested persons.
Some noble Lords have stated their concern that there is a potential conflict of interest if care home managers were to conduct assessments. The Government agree that there is a potential financial conflict if care home managers were to complete assessments for people in their own care homes, particularly when it comes to considering whether there are less restrictive alternatives. Amendment 52 explicitly excludes care home managers or others from undertaking the assessments if they have a specified connection to the care home, in particular if there is a financial connection. This will be set out in regulations. We will use the regulations to ensure, in England, that care home staff are not able to conduct assessments where they have a potential financial conflict of interest and the Welsh Government will have the power to do the same. Doing this in regulations allows us to provide the necessary detail, given the complexity of the care home sector, to ensure that there are no loopholes. For example, we would not want someone who works in another care home run by the same company to conduct the assessments.
Noble Lords have rightly asked questions about who undertakes the assessments and in particular why there were no clear requirements on the expertise of those who undertake capacity and medical assessments. That refers tangentially to the issue raised by the noble Baroness, Lady Hollins, before. Although that is already provided for in binding Article 5 case law, I have been persuaded that more clarity is needed. Amendment 52 clarifies that capacity and medical assessments must be carried out by someone with appropriate experience and knowledge. Capacity assessments should be completed by a registered professional such as a nurse, social worker or occupational therapist, and medical assessments must be completed by a physician. We will set out in the code of practice the experience and knowledge that we would expect to see for those undertaking assessments.
On the point about experience and knowledge, Amendment 53 tabled by the noble Baroness, Lady Finlay, would have the effect of requiring that the person who conducts the assessment has the appropriate skills and knowledge. The noble Baroness is absolutely correct that the person who completes the assessment should have the necessary skills to be able to conduct the assessment. Amendment 52 already provides for that within the description of experience and knowledge and we would expect that to cover the necessary skills. We will define that in the code of practice so that it explicitly describes the skills, using the term “skills” and describing the kinds of skills that ought to be required of the person carrying out assessments.
There are also some minor amendments that clarify definitions of care home manager and responsible bodies. Amendment 8 updates the definition of care home manager. Amendment 9 corrects the definition of care home manager in Wales. Amendments 11, 15 and 24 set out a definition of English and Welsh responsible bodies. Amendment 17 removes the definition of local health board as it is now superfluous.
I hope that noble Lords have had a reasonable chance to examine all the government amendments in this group. They have been carefully crafted to reflect to the best possible extent all the concerns set out by noble Lords at Second Reading and in Committee to remove any concerns about conflict of interest and make sure that care home managers are not, to coin a phrase, marking their own homework. They have an important role in organising assessments, but it is effectively an administrative function with proper oversight, and assessments will be carried out by those with the proper qualifications, expertise, skill and knowledge. I beg to move.
Baroness Finlay of Llandaff
My Lords, there is a tone of disappointment because I welcome all the government amendments, but the role of my amendment to government Amendment 52 was twofold. First, I am disappointed that speech and language therapists were not in that list read out by the Minister, because we had a debate about the importance of communication skills. When communication is impaired, particularly with disorders that affect any part of the speech or throat cycle, it is very difficult to assess someone’s capacity.
I included skills because I worry that experience and knowledge are sometimes just not enough. If the Government insist on “skills” going into the code of practice, I hope that the Minister will be able to confirm that the skills will be assessed and reviewed at appraisal, and that they demonstrate an understanding of the impact of fear—being frightened—on the way the person behaves.
The assessors must have a high level of communication skills and awareness of all the different ways that communication can be enhanced. I hope that they would also have an awareness of the impact of different types of medication on someone’s capacity, because sometimes changing the medication can really improve a person’s ability to make a decision for themselves.
Amendment 53 links to Amendment 74, which is in my name and will come up later. I am concerned that, without strong reassurance, some of these issues could slip by and we could inadvertently end up having superficial assessments of some people and not the thorough and in-depth ones they deserve. The whole principle of the Mental Capacity Act is to empower people to make their own decisions, and we are talking about trying to have the least restrictive option so that we can enhance a person’s liberty as much as possible. If that assessment is not meticulous with the appropriate skills, the wrong judgments could end up being made.
Baroness Thornton
My Lords, I am grateful to the Government for tabling this suite of amendments which, as they say, change the position of care home managers from the original proposal to give them a significant role in applying the liberty protection safeguards—the scheme that is to replace DoLS in care homes. As the Minister said in his comprehensive introduction of this large group, they are a combination of technical amendments and others which are very important indeed. The amendments headed by government Amendment 30 are particularly relevant because they give the responsible body the ability to decide in certain circumstances to take over the authorisation functions in care homes in certain settings. The Government have said that they will set out the details in the code of practice. I shall return to the issue of the regulations and the code of practice in a moment.
Government Amendments 52 and 66 are equally important because they deal with conflicts of interest. The Government have said that the regulations will set out in detail the prescribed functions. I just want to ask a technical question. We do not quite understand why Amendment 78 has been severed from Amendment 73, which it seems to sit with; they are kind of twins and need to be taken together. I realise that we will be dealing with Amendment 73 next week, but they are very important amendments which give regulation-making powers, allowing the appropriate authority to make provisions about what constitutes a connection with a care home. They are also about conflicts of interest.
Amendment 90, as the noble Lord has said, gives the responsible body the ability to decide on the renewal of authorisation functions in care home settings. Listening carefully to what the Minister said when he introduced these amendments, one of the issues they raise is what goes in regulations and what goes in the code of practice. This has been a theme that we have discussed all the way through. It seems to me very important—and I seek reassurance from the Minister on this—that what goes in regulations is matters relating to powers and protection of the individual, and what goes in the code of practice is how those are carried out. Both are very important documents and it is important to address this, so that the right things go in regulations and the issue is comprehensively covered.
It is clear from the debates we have had throughout consideration of the Bill that we welcome the change of heart on policy. Some clarification and explanation will still be required as we move forward, but this suite of amendments does address the important issue of conflicts of interest in the powers of the care home manager and puts the interests of the cared-for person at the heart of the Bill, as they should be. It was clear from the beginning that this issue is of huge concern to all stakeholders on the Labour Benches, as well as across the House. That is why we submitted the suite of amendments early after Committee—strong amendments which addressed and fundamentally changed the role of the care home manager.
Noble Lords will see that the next group of amendments in the list are mine and are supported by the noble Baronesses, Lady Jolly and Lady Watkins. I thank them most sincerely for their support very early in this process. We went through the Bill and removed reference to, or significantly changed the role of, the care home manager. This group starts with Amendment 13, which I would like to assure the Minister, as I did the Bill team, I will not be moving today. These amendments were designed to specify the responsibilities of what we called the “nominated body”—in other words, a qualified body nominated by the responsible body in relation to the authorisation of care home arrangements. That suite of amendments makes it clear that the care home manager’s role is to co-ordinate the required information, determinations and assessment, rather than to carry them out. I am very glad that the Minister used almost exactly those words. What we call the nominated body will be designated by the responsible body. All the subsequent amendments in this group take powers away from the care home manager and replace them.
I was in the Minister’s place many years ago. Seeing these amendments coming down the track with support from across the House—and, indeed, the amendments tabled by the noble Baroness, Lady Finlay, which were sometimes even more radical in their intent—the Minister, the Bill team and his advisers were very wise to take a second look when one considers that all the stakeholders took the same view, without exception, I think. I agree with the noble Baroness, Lady Barker, in that I regret that we met such obduracies, which is what they felt like from our point of view, from the Government in the early stages of the Bill about the role of the care home manager. That meant that we did not spend enough time on other issues that we should have addressed. We did not spend enough time on CCGs, the NHS and the place of local councils in delivering the new arrangements, as my noble friend Lord Hunt mentioned. We did not spend enough time examining the funding and resourcing of the new arrangements. The Minister got off quite lightly on those issues; I am sure that my honourable friends in the Commons will make up for where we lack in this area.
The test of the amendments is whether they fulfil the aims of the suite of amendments we tabled all those weeks ago. We are applying that test today. Can the Minister confirm that the government amendments would give the responsible local authorities the option of giving these roles to the care home manager or taking the responsibilities on themselves and, most importantly, that the care home manager will no longer be responsible for notifying the responsible body whether an IMCA should be appointed in any case? In Amendment 78, it seems that care home managers would not be able to commission anyone with a prescribed connection to the care home. That is to be welcomed.
As far as we are concerned, these amendments are lacking on the issue of—is it the AMPS?
Baroness Thornton
Thank you. I always get those initials wrong. We will discuss that issue tomorrow. As far as we are concerned, the amendments go a long way to meeting the issues that we have raised throughout the previous stages of the Bill. I am grateful for that and I offer them our support.
Lord O’Shaughnessy
I am grateful for noble Lords’ support for this group of amendments. I might say that I recognise a juggernaut when I see one coming, but this was about not just the force or number of the amendments—or, indeed, the length of them—but the force of the argument. During this process, we have established the critical point that the care home manager has an important role in the new system, because we want to provide a more proportionate and flexible system, but equally that cannot put them in a position where they have too much power. That would compromise the rights of the people being cared for, who are obviously very vulnerable. The amendments in the names of the noble Baronesses, Lady Finlay and Lady Thornton, gave us some idea of where noble Lords were headed and gave us some sense of shape and direction about where we ought to go to. We have made great progress, and I thank noble Lords for not just their input but their patience throughout this process. It has been trying and challenging for all of us at times, but we have made some great changes that will put the system on a much better footing.
I want to deal with the specific issues raised by various noble Lords. The noble Baroness, Lady Finlay, asked about speech and language therapists. In describing the amendments, I talked about professions “such as” those; she is right that I did not name them specifically. We need to consider which professions are included; clearly, we will want to consult relevant groups and noble Lords on that. Of course, we will make sure during that process that such professionals have the knowledge, skills and expertise that the noble Baroness is looking for. On skills, I recognise that she is disappointed; I hate to disappoint her. I think that this is an issue of semantics. Offline, I can provide assurance on what she is looking for, which is not a superficial case of whether these professionals have a certain degree or are a member of a certain professional body so that boxes can be ticked and we can go ahead. That should be avoided because it will not serve us very well.
The noble Lord, Lord Hunt, asked about the role of local authorities. In the amendments, we have made it clear that the local authority has a prior role in making a judgment about the providers in its area. That was not clear in the Bill before—the noble Baroness, Lady Thornton, asked about that role as well—and it is an incredibly important judgment, because local authorities will need to be in a position to look across their provider network and see who they are clear and confident will be able to make such decisions and who will not. To take up the point made by the noble Lord, Lord Touhig, that will be set out in the code of practice. I will come to his point about stakeholders later. The most important thing is that this is a prior power, to be exercised by the responsible body.
Lord O'Shaughnessy
“( ) in relation to Wales, the person who manages the care home service, within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2), at the care home, by virtue of regulations made under section 28 of that Act;”
Lord O'Shaughnessy
Lord O’Shaughnessy
My Lords, I first thank the noble Baronesses for tabling their amendments and giving us the opportunity to debate, as the noble Baroness, Lady Barker, pointed out, an incredibly important issue. We have heard examples of individuals and institutions where there have been tragic cases of people deprived of their liberty in independent hospitals, and these amendments have given us the opportunity to think about the best way forward to make sure there is proper oversight and authorisation in such cases.
Amendment 16, tabled by the noble Baronesses, Lady Barker, Lady Finlay and Lady Meacher, makes the designated NHS trust the responsible body in independent hospital cases. The amendment tabled by the noble Baroness, Lady Thornton, would make the CCG or local health board the responsible body where a person is accommodated in an independent hospital for the assessment of mental disorder.
As the noble Baroness, Lady Barker, and other noble Baronesses pointed out, stakeholders have raised this issue on many occasions. They have raised concerns about the level of scrutiny in these independent hospital cases. The Bill, as it stands, provides that in most cases the managers of independent hospitals are responsible bodies, meaning that they authorise arrangements carried out mainly in hospitals. The amendments seek to address this by changing the responsible body, and I have great sympathy with their intention.
We know that those in independent hospitals often have particularly complex needs, especially those being assessed or treated for mental disorders. The noble Baroness, Lady Thornton, said we need a solution, but I think there is a different solution, which could improve—if I dare say so—on the amendments tabled by the noble Baronesses. Rather than changing the responsible bodies, it would be even better if we required an AMCP to complete the pre-authorisation review in such cases. We know that the AMCP is a registered professional, accountable to their professional body, and that they would meet the individual, and any other interested parties, in person. The Government believe that independent hospitals would benefit from AMCP involvement, and therefore our intention is to bring forward an amendment, or amendments, as required, in the Commons to deal with this issue and make sure that there is such a role for the AMCP in all deprivation of liberty cases.
Baroness Thornton
If I might set this in the vernacular, one of the reasons that we have been so concerned about the conflicts of interest and powers for the care home manager is that we wonder how anyone can be sprung, as it were, from the situation in which they find themselves. How would an AMCP do that? How could they be liberated from the situation they are in if the deprivation of liberty power remains with the chief executive or manager of the private hospital?
Lord O’Shaughnessy
The reason is that although the deprivation of liberty would take place in that institution, every single case would be examined by an AMCP. The pre-authorisation review and scrutiny would be carried out by the AMCP. They would have the ability to examine the case, to speak to the person and all other relevant interested persons, and to challenge, if necessary, the circumstances of the deprivation of liberty or the care that had been put in place.
To take the hierarchy of decision-making in a care home, for example, the arrangements are made by, but not carried out by, the care home manager. They are referred to the responsible body for preauthorisation review, and if there are concerns of a problem at the level of the responsible body—an objection on behalf of the person or on behalf of somebody who cares for or is connected to them—it would go immediately to the AMCP. In a sense, this vaults the decision-making process beyond the responsible body and, as the noble Baroness, Lady Finlay, pointed out, there are particular issues over which body ought to take responsibility and go straight to, effectively, the last port of call before the Court of Protection. It provides that degree of oversight and challenge in these cases.
Baroness Meacher
A concern is that a lot of these people lose touch with their communities and families—they are often a long way from them. Is the assumption here that if somebody objects, then the AMCP would get involved, but that otherwise the hospital management might remain responsible?
Lord O’Shaughnessy
That is a perfectly reasonable question, but the AMCP would absolutely look at every case. There would not need to be an objection raised. I was just explaining the hierarchy for non-independent hospital cases. It would be, in a sense, going to the second-highest port of call for scrutiny that we are considering in other cases to highlight the seriousness of it. There would not be that gatekeeper point which the noble Baroness is worried about.
Baroness Finlay of Llandaff
How would we be clear that we knew about all the people who had a deprivation of liberty, if we are depending on that independent hospital to notify and call in an AMCP? That AMCP may be one with whom they end up having an uncomfortably close or cosy relationship. How could there be a degree of independence, when the person signing it off as the responsible body would still be the one with a vested interest in keeping their beds full and their income going, which was the very thing that concerned us about the care home? Is the Minister prepared to meet us and discuss this outside? I understand the intention to have everyone assessed by an AMCP, but I am worried that if we leave it to go to the Commons, some of the concerns that have been raised here may not get carried over.
Lord O’Shaughnessy
Absolutely—I would be more than happy to do so. I have tried to demonstrate our intention to deal with the issue, but we remain open-minded about the best way to do it. We have concerns with the amendments as laid—we were trying, if anything, to turbo-boost the approach. I recognise that the noble Baroness is concerned about an overfamiliarity between individuals, which she is trying to make sure that we avoid. There may be other concerns with the model that we are considering. I am more than happy to take that offline, and that would be a very fruitful discussion.
Baroness Barker
I am grateful to the Minister for his response, which I will need to think about long and hard. One thing that noble Lords will have to take into consideration is whether an AMCP would have the power to refer a case to the Court of Protection if they felt it necessary. That would be a big factor. I listened very carefully to the Minister, who used the term “hospital manager”. He will know that it has a particular meaning in the Mental Health Act. I have no crystal ball, and neither do other noble Lords, but were the role of the hospital manager in the Mental Health Act to be something on which the forthcoming review sought to make a decision, then would this not be another case for our looking in detail at the synchronisation between this legislation and the Mental Health Act? I welcome the Minister’s response. There is a bit more work to do, and considerable constructive welcome for continued work. With that assurance, I beg leave to withdraw.
Lord O'Shaughnessy
Lord O'Shaughnessy
Baroness Thornton
I put my name to this amendment, and we on these Benches very much support the intention behind the amendments in this group.
I bow to the fact that the noble Baroness, Lady Barker, has lived and worked with this for a very long time indeed, has reviewed the Mental Capacity Act and was very influential in the way it was formed. There has been a lot of discussion with stakeholders about this group of amendments and how we can best express “necessary and proportionate” in a way that will strengthen the Bill and prevent harm to the cared-for person. These amendments do that, providing clarity. Again, as I mentioned in the previous debates, because this is to do with protection and powers, it has to be in the Bill and not the code of practice. I hope that the Minister will agree to the amendments, because it is probably the best way forward, and that he will end this discussion in harmony and agreement.
Lord O'Shaughnessy
As the noble Baroness knows, I am all for harmony and agreement.
I thank the noble Baronesses for laying these amendments, and I accept the point made by the noble Baroness, Lady Barker, about her gracious acceptance of the role of the best-interests test. I recognise that she has some serious concerns about this legislation, which I take seriously. I have been determined to work closely with her, and I am grateful for her reciprocation in that process as we have moved ahead.
These amendments seek to specify that the necessary and proportionate assessment must be undertaken by reference to whether an authorisation is needed explicitly to prevent harm to the person. We know that an assessment of whether the arrangements are necessary and proportionate is key to ensuring that liberty protection safeguards will afford people their protections and human rights, and is a requirement of the European Convention on Human Rights. There are many factors which would need to be considered in the necessary and proportionate assessment, including the wishes and feelings of the person, whether any less restrictive measures can be put in place and the risk of harm. That is the issue that is the subject of these amendments.
Importantly, these amendments raise the issue of considering risk of harm to the cared-for person during the assessment by including that expressly and explicitly in the Bill. However, my concern is that that may be at the cost of other factors that ought to be properly considered during the assessment process. If these amendments are passed, one of the factors which may not be properly considered in the assessment process is the risk of harm to others, which the Law Commission said should be explicitly considered within a necessary and proportionate assessment, as well as risk to self. There are cases currently under the DoLS system where the risk of harm to others is an important factor in the justification for deprivation of liberty, such as a person with Lewy body dementia who may need restrictions in order to prevent harm to people in the community.
Furthermore, ensuring that no harm could come to a person is in some cases intertwined with ensuring that no harm comes to others. For example, there could be a retaliatory attack as a result of harm caused by a person to someone else. These amendments would mean that by focusing solely on harm to self in the Bill, it could be more difficult for assessors to make those balanced decisions. I therefore have some concerns about the amendments tabled by noble Baroness, as they could perpetuate the current confusion surrounding cases that involve some degree of harm to others. They could also lead to an increased use of the Mental Health Act, since the liberty protection safeguards might be interpreted as being ruled out in all harm-to-others cases. We would not want to see the Act used in this way.
Therefore, in the spirit of consensus and moving forward, I have carefully considered whether the Bill should be amended—or whether the Government could support such amendments—to explicitly set out inclusion of the risk of harm to the person. I am afraid I am going to disappoint noble Lords by saying that it would be better set out in the code of practice. I emphasise that we have considered the issue in detail, and we believe that the code of practice has sufficient force. On that basis—although I know that she will not do so—I encourage the noble Baroness to withdraw her amendment.
Baroness Barker
I thank the Minister for his reply. The problem that I have is that it leaves the guidelines for decisions to deprive people of their liberty because of harm to others in a code of practice, not the legislation. I do not believe that that is the right place in which to make that law. I absolutely accept that it is sometimes necessary to make a decision about a deprivation of liberty, and that part of that decision-making might be about the risk the person poses to others. However, that should not be determined in legislation fashioned on a set of principles and practices that are about harm to self, which is what the Mental Capacity Act is all about. A substantial judgment that will impact on people’s lives is buried away in a place where it is very unlikely ever to rise sufficiently up the scale of legal concerns or ever to be tested in court. That is my problem; that is what I think is wrong. It is therefore important that we in this House make a statement now to the Government about the importance of this issue, so I would like to test the opinion of the House.
Breast Scans
Lord O'Shaughnessy Excerpts(5 years, 9 months ago)
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Baroness Massey of Darwen (Lab)
I beg leave to ask the Question in my name on the Order Paper. In doing so, I declare an interest as the vice-chair of the All-Party Group on Breast Cancer.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)
My Lords, the use of cushions in mammography has not been formally evaluated. Therefore, information on centres that might offer them is not collated, although we know that some hospitals use cushions non-routinely after surgery or radiography. Use of cushions had been trialled but was discontinued because of interference with the reading of the mammogram. However, I have asked the advisory committee on breast cancer screening to advise on this issue.
Baroness Massey of Darwen
I thank the Minister for that concerned reply. Many women suffer intense pain during mammograms and are therefore put off returning for examination. The use of breast pads is not conclusive, but they do not seem to interfere much with the results of the mammogram. We also do not track how women react to mammograms. We do not hear the voices of women to say how they feel. Therefore, they do not inform good practice. Could the Minister say whether these issues will be addressed during any investigation or advice that he may be seeking?
Lord O'Shaughnessy
I am grateful to the noble Baroness for the Question and the spur to ask the advisory committee to look at this issue. She is quite right about the experience. It can be painful. As she pointed out, it is the experience of pain that puts some women off taking up their appointments. Around half a million each year do not take up the appointments they are invited to. That is obviously a problem if we want a comprehensive screening programme. I will make sure that the advisory committee not just considers the evidence for use of them, but looks at how we can get qualitative evidence from women to inform their use across the country.
Baroness Walmsley (LD)
My Lords, can the Minister encourage the NHS to do some proper research with the women who do not turn up for a mammogram when invited to do so and bear in mind that there is more than one reason why? In my case it is the very sharp edge of the plate that sticks under your armpit. It is really extremely painful. Will he agree that such discomfort should not discourage women from attending mammograms, which are so very important for saving thousands of lives, including my own?
Lord O'Shaughnessy
Absolutely. I completely agree with the noble Baroness. Indeed, breast cancer screening saves 1,300 women’s lives every year. It is an essential part of our health system. On why women do not turn up, Professor Sir Mike Richards is reviewing all the cancer screening programmes at the moment. I will specifically put that question to him to ask him to investigate it.
Baroness Redfern (Con)
My Lords, we are told that pain or fear of pain is one of the main reasons why women decline screening. I ask the Minister: what initiatives have been investing to address the decline in breast screening uptake and to help ensure equality of access to screening?
Lord O'Shaughnessy
In addition to investigating some of the reasons through the review, a primary way in which we are encouraging women to take part in screening is through public health advertising and marketing campaigns. They have been demonstrated to have an impact. Public Health England had such a campaign on breast cancer screening this year; there will be a further campaign on cervical screening next year.
Baroness Golding (Lab)
My Lords, given that the quality of an image is dependent on the closest possible contact with the screen, and as the only radiographer in this House, can I ask the Minister how this can be achieved if we start to put cushions under people to make just a few minutes’ examination more comfortable?
Lord O'Shaughnessy
The noble Baroness is of course right. It is precisely because of interference with the image that the trial was discontinued and the evidence not collated. Such cushions are used for women across the country who are particularly sensitive or after surgery, but I have asked the committee to consider whether there are ways in which they can be used more systematically to relieve discomfort without interfering with the crucial image that needs to be captured.
Baroness Finlay of Llandaff (CB)
My Lords, will the Minister undertake to ask Sir Mike Richards to look at the need for large paddles for ladies who have large breasts and who may currently need to have two separate images taken on the same side, with the two images then put together, which does not always give a good picture? Not all breast screening services can supply larger paddles to have larger films.
Lord O'Shaughnessy
I am more than happy to do so. If the review is not the correct forum for consideration of such an issue, I will refer it to the advisory committee instead.
Baroness McIntosh of Pickering (Con)
My Lords, does my noble friend agree that, with mammography and all other forms of screening, the quality and availability of radiographers are important? Will he report to the House on the current status of radiographers in the country?
Lord O'Shaughnessy
I am happy to tell my noble friend that we are in the process of recruiting many more radiographers for the NHS, with a plan to recruit nearly 1,900 by 2021.
Baroness Bakewell (Lab)
My Lords, it is important that women have scans throughout their lives. They receive a reminder to go for a scan, but those reminders stop at the age of 70. The incidence of breast cancer continues after 70. Will the Minister reinstate reminders for people over that age?
Lord O'Shaughnessy
A trial is going on the moment, the AgeX trial, which is looking at the clinical effectiveness of breast cancer screening for women aged 71 to 73. However, that is a randomised control trial, so not all women are being invited.
Baroness Billingham (Lab)
What steps are the Government taking to make everybody aware of the availability of breast cushions? I suspect that a lot of people do not even know of their existence, so it is time that we knew.
Baroness Thornton (Lab)
I have a suspicion that were this a procedure which men had regularly to go through on a sensitive part of their body there might have been some urgency and investment to mitigate the discomfort. I welcome the assurance given by the Minister about the research that will be undertaken, but will he assure us also that resources will be made available if that research shows that such cushions or other mitigating equipment are needed to ensure that all women who need mammograms can get them?
Lord O'Shaughnessy
There is absolutely no doubt that women are much braver and have a much higher pain threshold than men. I suspect that it is not so much about the availability of the devices, because I am sure that almost every hospital has them, as about how they should be deployed in such a way as not to interfere with the screening. That is what I will be asking for advice on.
Mental Capacity (Amendment) Bill [HL]
Lord O'Shaughnessy Excerpts(5 years, 9 months ago)
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Lord O’Shaughnessy
That the amendments for the Report stage be marshalled and considered in the following order:
Clause 1, Schedule 1, Clauses 2 to 4, Schedule 2, Clause 5, Title.