Child and Adolescent Mental Health Services

Lord O'Shaughnessy Excerpts

Wednesday 24th October 2018 Lords Chamber

[Baroness Tyler of Enfield]

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

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

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

[Baroness Tyler of Enfield (LD)]

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

[Lord O'Shaughnessy]

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

[Baroness Watkins of Tavistock (CB)]

My Lords, can the Minister comment on whether there will be significant investment in trying to take psychology graduates into mental health nursing to enhance the number of people entering the profession?

[Lord O’Shaughnessy]

I do not know the specifics on psychology graduates; I will write to the noble Baroness. If the number of nurses in mental health nurse training at the moment comes through into the profession, there will be 8,000 more mental health nurses by 2020. I am sure we will be keen to recruit them from wherever we can.

[Baroness Wheeler (Lab)]

My Lords, on the issue of 24/7 services, CQC evidence suggests that the number of children visiting A&E departments for mental health treatment has more than doubled since 2010. Earlier this year, a CQC review highlighted growing demand as children, young people, their families and carers find that they have to reach crisis point before they can get help. On top of this, the recent FOI response to the BBC’s “Panorama” programme showed that at least 1.5 million under-18s were estimated to be living in areas where there are no 24/7 child mental health services. What steps are the Government taking to join up services across health, education, local councils and the voluntary sector to ensure that these vital crisis and support services are available and funded?

[Lord O’Shaughnessy]

I recognise that there is variability across the country. Indeed, waiting times vary, which is not acceptable. That is why a new four-week waiting time standard is being trialled as part of the Green Paper I mentioned. I should also point out that new, community-based eating disorder clinics are being set up so that people do not have to go to an A&E environment and can access something that is better for them, frankly, both more easily and locally.

[Baroness Fall (Con)]

My Lords, I start by commending the Government for their important work in this area. It remains true that many people who seek help are often either not helped at all or put on a waiting list. Can the Minister outline the exact thresholds that are used when many people who seek referral are turned away? In the interests of transparency, it would be important for us to know what they are.

[Lord O’Shaughnessy]

I thank my noble friend for her question. The definition is a “diagnosable mental health condition”. That is the performance target, or threshold, we work against. At the moment, unfortunately, only around 30% of children and young people with a diagnosable condition access care and treatment but we are clearly trying to increase that figure.

[Baroness Parminter (LD)]

My Lords, have the Government made an assessment of the number of children and young people referred to community eating disorder services? Given that anorexia has the highest mortality rate of any mental health disease, how many of those referrals do not go on to get treatment?

[Lord O’Shaughnessy]

The noble Baroness makes a very important point. There are 70 new or enhanced community eating disorder services. The intention is that they should serve over 3,300 children and young people every year.

[Lord Roberts of Llandudno (LD)]

My Lords, what consideration is being given to refugee children who come with tremendous trauma from the camps in Dunkirk and Calais? Is any consideration given to them and the threat that when they reach the age of 18, their status changes and they can face deportation? Can we not do something to relieve that anxiety?

[Lord O’Shaughnessy]

As I hope the noble Lord will know, refugee children have as much right to access these services as other children. I should also point out that a new mental health assessment trial is being funded by the Department for Education specifically to design mental health assessments for looked-after children of all kinds, including refugee children.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, can the Minister say what work his department is doing with the Department for Education in making consistent the level of pastoral care available in schools, particularly for young people who have experienced mental health problems and may not be in an acute stage but need ongoing monitoring?

[Lord O’Shaughnessy]

I am pleased to tell the noble Baroness that extensive work is being done. It was summed up in the plans outlined in the Green Paper last December and revolves around two things: every school having a designated senior lead for mental health and the recruitment of mental health support teams that will sit in and around schools. It is precisely about joining up education workers and health workers in the community to provide that kind of support.

[Lord Ramsbotham (CB)]

My Lords, too many people in our young offender institutions are suffering from mental health problems. The Minister mentioned the likely increase in the number of nurses, but one of the problems with the young offender institutions is that there is an acute shortage of child and adolescent psychiatrists. Will he please tell the House what the situation is regarding those vital people?

[Lord O'Shaughnessy]

I hope the noble Lord will forgive me if I do not have the specific number on psychiatrists. The plans to extend the mental health workforce as a whole cover all settings, including the recruitment of a further 1,700 children and young people’s therapists. I will find out whether the young offender institutions are included in that and what the figure is for psychiatrists.

Health: Flu Vaccines

Lord O'Shaughnessy Excerpts

Tuesday 23rd October 2018 Lords Chamber

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

My Lords, there is no overall shortage of flu vaccines. The Joint Committee on Vaccination and Immunisation recommended that the newly available adjuvanted trivalent inactivated influenza vaccine, or aTIV, is the most effective vaccine for the over-65s. To enable the vaccine to be available this year, it has been necessary for the manufacturer to stagger deliveries between September and November. Everybody who wants to be vaccinated should be able to do so before December.

[Lord Naseby (Con)]

I thank my noble friend for that Answer, but how is it, given the statement from NHS England that last year was the worst for deaths for seven years at 15,000, that here we are with a new vaccine geared to those most at risk—I happen to be one and I declare an interest—yet I go into my GP, a brilliant practice in Potton, Greensands, and there are no vaccines available and no notice of exactly when those vaccines will come? Can my noble friend tell me and other patients whether those vaccines are actually going to be available in sufficient time for all patients at risk to be vaccinated before 1 December? Unless that is done, they will be useless to us in the older age group.

[Lord O’Shaughnessy]

I take my noble friend’s point very seriously. It is worth stating that the reason for moving to this new vaccine is precisely because it is more effective. Unfortunately, the response rates for the vaccine that was used in the over-65s last year were not as high as hoped. Indeed, there were quite a number of admissions to intensive care units of that age group. That is the reason for moving to the vaccine, but because it is the first year it has been available, it has been necessary, because of global demand, to stagger the delivery, as I said. GPs and pharmacies were informed of this staggering of deliveries at the beginning of the year. I can tell my noble friend that 8.2 million doses have already been ordered for this age group, of which 4.9 million have already been delivered, against around 7.6 million used last year. So there is adequate supply, and it will be delivered to all GPs and pharmacies as necessary to meet the demand by the end of November, so that by the beginning of December anybody who wants that vaccination should be able to access it.

[Lord Clark of Windermere (Lab)]

My Lords, does the Minister appreciate that by delaying the availability of a vaccine for the over-65s, the Department of Health is increasing the risk of that group of people contracting flu? Can he explain to the House why it has taken the decision not to have it available until early December?

[Lord O’Shaughnessy]

I am very happy to tell the House: it was on the advice of the Joint Committee on Vaccination and Immunisation, which is precisely where we get expert advice on how to act. The reason for moving to this new vaccine is the one I set out. The reason that the delivery is staggered, but to be completed by the end of November, is because it is from December into January that we have the peak of influenza in this country. The Deputy Chief Medical Officer said:

“Based on many years of surveillance in the UK it is highly unusual for widespread community flu activity to become significant or substantial before the start of September”.


It is on that clinical advice that this decision has been taken.

[Baroness Jolly (LD)]

My Lords, high-street pharmacies are offering flu jab appointments to the public, as are pharmacies in larger supermarkets. This morning I was able to book several dummy appointments online with several—just for research, noble Lords will understand. It would appear that all of those were successful, so those particular retail pharmacies have no problem providing vaccine for older people. Can the Minister tell the House whether the market for vaccines is an open market, or do GPs and the NHS get preferential treatment? We know that CCGs commission pharmacies for some of the work that they do. Is the flu vaccine included in that CCG commission? Would that tell us what proportion of the population would choose the retail route rather than the GP route?

[Lord O’Shaughnessy]

First, let me just clarify that the quotation from my last answer should have ended,

“before the start of December”.

It would be terribly alarming if it was September: it was December and I am happy to write to noble Lords with those details.

As for how the vaccine is secured, it is done on the open market. GPs and pharmacies buy it directly from the manufacturer, which in this case is Seqirus. As I have said, we have checked with the manufacturer, which has confirmed that there is adequate supply available for this country. Seqirus has, indeed, made extra supply available in response to the demand we have heard discussed today.

[Lord Geddes (Con)]

Could my noble friend advise the House why the flu vaccination parliamentary day on 9 October was cancelled at the last minute?

[Lord O'Shaughnessy]

I do not know and I shall write to my noble friend.

[Baroness Thornton (Lab)]

I think the answer to the noble Lord, Lord Geddes, is actually that they ran out of jabs. I declare an interest as a member of a CCG. It is true that there has been some confusion about when people could get their flu jabs. How will the Minister ensure that a significant number of the most vulnerable people actually get their flu jabs? He said in his first Answer that the take-up was not as good as it should have been last year, so that seems very important. Secondly, how are we to ensure that NHS staff take up the flu jab as they should, too?

[Lord O'Shaughnessy]

First, take-up was actually at its highest level ever last year. The issue was the effectiveness of the vaccine, which is why the committee’s recommendation was to move to this new vaccine. In terms of confusion about who can get the flu jab, it is clear that we have the most comprehensive flu vaccination programme in Europe. Anybody who has gone to a GP’s surgery or pharmacy and has not been able to access it up to now will—or should—have been told when they can come back and when new supplies will be available. As I said, it is about making sure that can happen before the end of November. We had a fantastic take-up among NHS staff this year; the jab is freely available to NHS staff, social care staff and, for the first time this year, hospice staff.

[Lord Patel (CB)]

My Lords, the reason why the vaccine last year was not as effective was that in the majority of older people, the immune response was poor. The enhanced vaccination, although effective for only three strains of viruses—as opposed to four, before it was enhanced—is better to wait for because it will be more effective in older people. It is the older people that the flu kills so because there is a shortage of supply, Scotland took the view that it will be available only to the over-75s. Does the Minister agree that it is worth waiting for?

[Lord O'Shaughnessy]

I thank the noble Lord for that point but it is important to point out that the over-65s will not have long to wait and that anybody who wants to have it will be able to do so by the end of November, in time for the flu season.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Baroness Thornton (Lab)]

I thank the noble Baronesses, Lady Barker and Lady Tyler, for tabling this amendment. I agree with the remarks of the noble Baroness, Lady Barker, about the state of the Bill. I am rather—“disappointed” may not be quite the right word—surprised that the noble Baroness, Lady Murphy, who has brought discipline to the House to focus on good legislation and how it should work, is suggesting that we have to have something, so this is it. I really hope that that is not the case and that this Committee will have revealed to the Minister, and particularly to the Bill team, that many elements in the Bill need clarification, need to be changed and can be improved. That is our job, and the noble Baroness, Lady Barker, is highlighting but one of those elements. In fact, the amendment that I am due to talk about next refers to the difficulties that the Bill has brought and the differences between the Mental Health Act and the Mental Capacity Act.

The last month or so has been very revealing. The Bill was sold to us as something really quite simple that was going to streamline things, get rid of the backlog, save some money and so on, and it really needed only one day in Committee. That is certainly how it was sold to me on these Benches and, I am sure, to other people in the House. In fact, what has happened over the last couple of months is that all the stakeholders and people who are writing to us are saying, “No, this will not do. This Bill does not work. It is dangerous and difficult”. It needs clarification, and these amendments highlight the areas that need it. We are going to move on to other areas that need clarification and which will certainly need amendment. This is an important and legitimate question to ask about the Bill.

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

My Lords, I thank all noble Lords—I keep saying “noble Lords” but it has really been noble Baronesses, so I will switch my language—who have both tabled amendments in this group and spoken to them.

Before I come to the substance of the amendments, I shall say two things. First, I agree with the noble Baroness, Lady Murphy, that there is an urgency. To use the words of the Local Government Association, “the current system is unable to ensure there is adequate protection for human rights”. That is the reality of the situation that we find ourselves in at the moment.

Secondly, views about the perfection or otherwise of the Bill will vary across the House, but I hope that in the two days of Committee prior to this one I was able to demonstrate that the department and Ministers are absolutely committed to improving the Bill in any way that we can during its passage through Parliament, especially in this House where there are so many experts. I really think we have made some progress. I realise that that will not be enough to satisfy everyone and there is clearly much more to come—care home managers are clearly a big area of work that we need to focus on—but we have made some progress. I encourage noble Lords to continue in that mindset because I think we can reach a good outcome that deals with the fact that, as Age UK says, the system leaves,

“many highly vulnerable older people languishing without any legal protection at all”,

something none of us can accept. We stand ready to undertake that work, as noble Lords know, and I know they do so too.

I turn to the amendments in this group. Amendment 55, tabled by the noble Baronesses, Lady Barker and Lady Tyler, outlines the circumstances in which an authorisation ceases to have effect, particularly noting that authorisations should end if they conflict with a valid decision of a court-appointed deputy or a donee of a lasting power of attorney. The amendment also states that an authorisation would not cease to have an effect if a person’s capacity fluctuated, and would create regulation-making powers to define what constitutes fluctuating capacity.

Section 6(6) of the Mental Capacity Act already provides that action cannot be taken that conflicts with a lasting power of attorney or a deputy’s valid decision, and I can confirm that the Bill does not change that. This means that an authorisation can only be given if it is in accordance with a valid decision, so I hope I have provided reassurance on that front.

I can also confirm that if it emerges that an authorisation conflicts with a decision of a donee of a lasting power of attorney or by a court-appointed deputy, a review should be arranged under paragraph 31 of the Schedule. In particular, it will need to be considered if the attorney or deputy has valid and applicable powers to make this decision, and if the deprivation of liberty authorisation continues to be necessary. That means that in the event of such a conflict, the authorisation ceases to have effect. I hope that provides reassurance to the noble Baronesses on that point.

The noble Baroness, Lady Tyler, focused particularly on fluctuating capacity. I agree that an authorisation should not necessarily cease to have effect if a person’s capacity fluctuates and there are short periods of lucidity. That is currently the case under the DoLS system and I can confirm that it will continue under the liberty protections safeguards. However, as the noble Baroness, Lady Finlay, brought to life, it is very difficult to define either “fluctuating” or “short”, particularly in legislation. For that reason, we do not think regulation-making powers are appropriate; we believe this would be better dealt with through a code of practice, which would allow for more detail and more regular updating but would also allow the use of case studies to bring examples to life. We plan to give much more detailed guidance in the new code of practice, and I reassure noble Lords that we will be working with the sector in order to produce it.

Amendments 56 and 58 from the noble Baronesses, Lady Barker and Lady Tyler, relate to the thorny issue of the interaction between mental health and mental capacity legislation. They would mean that an authorisation had effect in relation to arrangements that were not in accordance with mental health requirements. As noble Lords know, mental health requirements are conditions placed on Mental Health Act patients living in the community. Currently, DoLS authorisations no longer have effect if a person is subject to arrangements or conditions under the Mental Health Act and that authorisation would be in conflict. This means that the terms of a DoLS authorisation cannot conflict with those of, for example, Section 17 leave of absences. The Bill has been drafted to reflect the interaction that currently exists between the Mental Health Act and the Mental Capacity Act.

The review of the Mental Health Act has been mentioned in this debate. The review, chaired by Sir Simon Wessely, has been considering, among other things, the interaction between these two pieces of legislation. I know the noble Baroness, Lady Barker, has sincere concerns about the nature of that interaction and about why we are bringing forward this legislation now. My short answer is that urgent reform is needed for the reasons that we have set out, including the quotes that I have given. The contribution from the noble Baroness, Lady Meacher, was helpful, and I have put in my notes that I need to speak to Sir Simon Wessely myself to understand his perspective. However, if I have understood correctly, regardless of the timing of his report, the process of implementing his proposals will take some time to do properly. In our view, it is not right to wait until that has been perfected before we try to deal with many of the issues under consideration in the Bill in the light of the current inefficiencies of the DoLS system. It is for that reason that we want to push ahead. As I have said, I will take it upon myself to speak to Sir Simon Wessely and get a real understanding of his expectations on timing, and to try to understand from his point of view the scale of the interaction between these two pieces of legislation so that we really know what is at stake.

I think the noble Baroness herself said that the amendments are essentially probing. She will know that the effect of them would be that two authorisations could be live at the same time. I am confident that that is not what she is proposing, not least because it would have the perverse effect of requiring people to be in two places at once, so I know she was using this as an opportunity to discuss this question. As I said, it is important that we move ahead for the reasons that we have discussed, notwithstanding that the Government will of course consider incredibly carefully the findings in Sir Simon Wessely’s report and what action is required to implement his recommendations.

On a couple of occasions the noble Baroness, Lady Barker, referred to the consideration of harm to others. I am told that harm to others can be considered under the current DoLS system, so what is proposed is not a change from the current system. However, I will pick that point up with her offline so that we can really get to the bottom of it and ensure complete clarity to a degree that satisfies her. I hope that on that basis, the noble Baroness feels able to withdraw the amendment, and I look forward to discussing more of these issues throughout the evening.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My Lords, I have three amendments in the group designed to remove any ambiguity about authorisations, in that an authorisation would fall if it partly fell—in other words, if the person’s condition had either improved or changed to such an extent that the plan in place was no longer applicable, even in part, that would warrant a complete review. I accept that it would have to be a light-touch revision, because some things might not have changed, but I am not comfortable with simply allowing it to be reviewed and people to say that these parts of the condition no longer apply.

Amendment 58C is to stress the need for evidence to be supplied to support statements. I hope that the Minister will be able to provide me with some assurance. That evidence might come from photographs, video recordings of behaviour or whatever. That may be quite different to the written word. I worry that one person’s observed written word may not adequately portray a picture, particularly where the cared-for person has become withdrawn. Someone might interpret that as their being compliant, when actually they may be deeply unhappy. A broader direct recording of the person could be helpful.

I tabled Amendment 62A because I was concerned that the care home manager might be in the process of arranging for adaptations to be made to meet the cared-for person’s needs in line with that person’s wishes and feelings, and that the Bill’s wording does not provide enough flexibility to consider the arrangements to meet the individual’s needs.

[Lord O'Shaughnessy]

I thank the noble Baronesses for tabling their amendments about renewals. I deal first with Amendment 58A, moved by the noble Baroness, Lady Thornton, which, as she said, would have the effect of meaning that authorisations cannot be renewed for longer than 12 months. As she pointed out, this would go against the Law Commission’s recommendation, which was that there could be circumstances under which renewals took place for up to three years, particularly following an initial review after up to 12 months and if it was unlikely that there would be a change in the person’s condition.

These three-year renewals are in place so that those who are in a stable condition and unlikely to recover are not subjected to annual assessments. The Bill does provide the safeguard—referred to by the noble Baroness—which ensures that an authorisation would need to be reviewed if there is a change. We would also want to make sure that there are appropriate reviews of arrangements when annual reviews under the Care Act take place. It would be up to the responsible body to set review periods. In care home settings, the care home manager must report to the responsible body on any reviews that have been carried out. As the Bill stands, there are significant safeguards to prevent abuse or lack of care of the vulnerable person.

All that being said, I know how strongly noble Lords and stakeholders feel about this issue. The noble Baroness, Lady Thornton, made a valid point about aligning the review process with the terms set out under the Care Act. I would like to give further thought to this, particularly in the context of the discussions which will be taking place about the proper role of the care home manager. There is clear concern about a proper system of oversight and regular review where responsibility has been devolved to the care home manager. If the noble Baroness will allow me, I will follow that up after this debate.

Amendment 58B, tabled by the noble Baroness, Lady Finlay, considers an authorisation ceasing to be renewed if it has lapsed wholly or in part. We will want to give further consideration to that. As discussed earlier in Committee, there are circumstances under which one might be happy for an authorisation to continue after a very minor change. That might be the proper process to align this to, and I want to give further thought to this.

Amendment 58C asks that, when deciding whether to renew authorisations in care home cases, responsible bodies should consider other relevant information, as well as that provided by the care home manager. I can confirm that the Bill does allow responsible bodies to consider information other than that provided by the care home manager. That would, inevitably, be in other formats too. We will set out more detail on that in the code of practice.

Amendment 62A would add the word “arranging” to the scenarios in which the care home manager was required to notify the responsible body that an IMCA should be appointed. The amendment intends to make sure that that happens at the earliest stage, including when the assessments are being arranged. That is what the word “proposing” in the Bill achieves. We are satisfied that the language currently in the Bill means that care home managers would be looking at this issue when they are beginning to propose an authorisation, which is the earliest point at which planning for, arranging or bringing together the assessments would take place. I would be happy to demonstrate what underpins our belief that this is the case. I do understand what the noble Baroness is driving at; it is something which we are trying to achieve.

On that basis, I hope that the noble Baronesses are willing to withdraw or not move their amendments.

[Baroness Thornton]

I thank the Minister for his answer. I am encouraged that we are going to continue the discussion on this issue. Apart from anything else, I will need quite a lot of convincing that the Bill provides the right kind of protections to allow a period of three years, as currently stated.

On the amendments tabled by the noble Baroness, Lady Finlay, I was reminded when reading the letters the Minister has written to noble Lords, and the record of the previous two days in Committee, that we need to clarify the meaning of “care home manager”. Or is it “care manager”, an expression which he has also used? I do not want an answer to that now, but I put it on the table as one issue which we need to clarify in our discussions and in the Bill. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Thornton]

I will add to the questions that have already been asked of the Minister: who is going to pay for this? Training is very expensive and I was waiting for the noble Baroness, Lady Jolly, to ask that question but she did not, so I am asking it. As I recall from the impact assessment, I am not sure that there is a large sum of money in there for the amount of training that might be necessary to ensure that this Bill is properly enacted.

[Lord O'Shaughnessy]

I thank the noble Baroness, Lady Finlay, for tabling these amendments and precipitating this discussion. I will move straight on to the substance of the amendments. Amendment 61 provides that local authorities must make arrangements for a named person to be in charge of training and revalidation of approved mental capacity professionals and that local authorities must make arrangements for contracts with neighbouring local authorities and health bodies as required.

On the issue of approvals and training, the Bill is clear that local authorities must approve individuals to become AMCPs, and regulations under paragraph 33 will make provision around training, qualifications and other eligibility criteria. The question of what kind of training there should be and who pays is something that we discussed at some length on the last Committee day. That was more in relation to care home managers, which was primarily the focus of the questions of the noble Lord, Lord Hunt. The same read-across applies to AMCPs as well. On that occasion, I committed to bringing forward more details of what the training would look like. I also confirmed that, in England, Health Education England and ADASS would be responsible for working with Skills for Care, and Social Work England. Those are the bodies that would be responsible for overseeing and designing the training. The noble Baroness, Lady Jolly, asked about the rights of individuals. Of course, that would be the centrepiece of any training programme to make sure that those rights are properly respected.

On the specific question about local authorities naming an individual, I say that the Bill does not prevent them doing so. It is something that they are able to do and, in our view, it does not need to be set out in primary legislation. There is no such requirement for best-interests assessors or approved mental health professionals, I understand, and that has not caused any difficulties in practice. To that extent, we can mimic the arrangements in place there.

Making arrangements with other local authorities is again not precluded by the Bill. Clearly, that is something that local authorities will want to do, depending on the arrangements they have commissioned in care across different authorities. I can confirm that we will provide guidance on this in the code of practice.

Amendment 61A adds to the criteria that must be met for a person to become an AMCP. They must be,

“a registered professional, with a minimum of three years clinical experience”.

A list sets out whom that could include; that list has been added to by one tonight, which in some senses exemplifies the nature of the problem. I completely agree with the noble Baroness: we need to set out not only the kind of professionals but the kind of qualifications and experience. There has to be a balance and a mix between all of those. That will be set out in regulations. The noble Baroness, Lady Barker, asked about the proper place to set out the rigidity or robustness, and we believe that the appropriate place would be in regulations, which provide a degree of flexibility that would not apply if we enshrined this in primary legislation. That is why we are proposing the approach of defining the groups that should be acting as AMCPs.

[Baroness Barker]

How many cases have been taken to the Court of Appeal on the basis of regulations not being observed, as opposed to something in an Act? I do not expect an answer now, but I would like to know.

[Lord O’Shaughnessy]

I am afraid that I do not know, but I will write to the noble Baroness and circulate the letter to all noble Lords.

To conclude, I hope that I have provided the noble Baroness, Lady Finlay, with the reassurances that she was looking for and that she will be prepared to withdraw her amendment.

--- Later in debate ---

[Baroness Thornton]

My Lords, we on these Benches very much agree with the purport of these amendments, which again bring to light some of the ambiguities in the Bill and some of the rights that are not properly respected by it. Over the next period the Minister will not only need to give us a theoretical answer but have to answer things such as the question about Winterbourne View, and look at the hard examples of real experience which some of us have been receiving in our postbags over the last month. We will need to return to this over the next few weeks, and possibly even at the next stage.

[Lord O'Shaughnessy]

I am grateful to all the noble Baronesses for their amendments and for speaking in the debate on this group. Let me begin with a statement of principle. I accept the challenge from the noble Baroness, Lady Thornton, that we need to move from principles to practicalities, or in our case to the appropriate legislation. There is genuinely no attempt in the Bill to restrict people’s access to independent advocacy. As has been clearly voiced, not only in this Chamber but elsewhere, there is a concern that that will be the effect of what is proposed, and that is something that we need to deal with. But let me say at the beginning that that is not the intention. It must be the case that anybody who needs support to navigate these difficult and complex situations must be able to find the right support for them. I will explain why the Bill is as it is in a moment, but let me at least give that statement of principle at the beginning.

I will deal now with the specific amendments in this group. Amendments 63 and 64 aim to ensure that the Bill is robust on the appointment of the IMCA. I completely agree that it is vital that the care home manager notifies the responsible body that an IMCA should be appointed. That is required by the Bill. However, I know that there is great concern about the impartiality of this person and a requirement for strengthening in this regard. It is also our position that a responsible body will be able to appoint an IMCA if there is a request by, for example, a family member or the person themselves, or if there is a disagreement with the notification given by a care home manager. I am considering how we can make the Bill clearer in that regard. As we home in on the issue of the incentives for the care home manager to follow best practice, as we would want, I am aware that we need to do more work on this to get it right.

[Lord Hunt of Kings Heath]

My Lords, that is a very helpful comment but will the Minister pick up the point that part of the problem is that the care manager is not only the co-ordinator but often the gatekeeper to the protections that noble Lords wish to see included? Take, for instance, the definition of “relevant person”. It seems to me, looking at this afresh, that far too much authority is being given to the care home manager in relation not just to co-ordination but to the protections.

[Lord O'Shaughnessy]

I thank the noble Lord for that intervention. The debate we had last week was very much around the proper role for the care “home” manager—I take on board the rejoinder from the noble Baroness, Lady Thornton, about the specificity of terms. I do not want to rehash that debate, save to say that the care home manager model is the right one going forward, while recognising, as I did last week—here I agree with the noble Lord’s point—that there are a lot of concerns about conflicts of interest, training, the degree of responsibility and other things.

In this case, we are talking about notification of the appointment of an IMCA, where there is real concern that there is an element of marking your own homework. That is not what we are trying to achieve: we are trying to achieve the consideration of deprivation of liberty at the earliest possible point in care planning by somebody who is responsible for organising—although in lots of cases not personally delivering—that care. We are trying to deliver a more proportionate system than the one that we know is currently failing. As I committed to in last week’s Committee debate, I want to get that right. If we cannot get it right, the risk is that we end up replicating the system that we have now, which would be in nobody’s interests. I hope that, by restating that, I have satisfied the noble Lord.

Amendments 68, 71 and 72 relate to the criteria for appointing IMCAs. The Bill currently states that an IMCA should be appointed if a person has capacity to consent to being represented and supported by an IMCA and makes a request to the relevant person, and there is no appropriate person available. It also states that a cared-for person should be supported by an IMCA if the person lacks capacity to consent and being represented by an IMCA is in their best interests and there is no appropriate person in place.

I recognise the concern expressed by the noble Baronesses, Lady Barker and Lady Thornton, about the term “best interests”. Let me state again the intention that, in the vast majority of circumstances, we expect it would be in a cared-for person’s interests to receive representation and support from an IMCA or appropriate person. However, there may be a small number of circumstances where that is not the case. For example, if a person is adamant that they do not want this sort of representation, and has refused advocacy support in the past, it would not be right to impose such an advocate on them. If we remove the best interests consideration, we risk a situation where responsible bodies can override the past and present wishes of the person.

[Baroness Barker]

I thank the Minister for that explanation. Given that the Bill as drafted is essentially a “get out of jail free” card for bad care home owners, the Government must have a really good evidence base to have come forward with a proposal as sweeping as that. I wonder whether the Minister can share with us the evidence that has led to the Government putting this in the Bill. It really should be quite convincing, given that it has got to this stage. It would be helpful if he would let noble Lords see that evidence.

[Lord O'Shaughnessy]

I am happy to discuss the issue with all noble Lords, as I have said in the past. I return to where I started: the intention of this approach is to make sure that independent advocacy is not imposed on someone who genuinely does not want it. It is not to provide a “get out of jail free” card for poor care home managers. If that is a concern, I take it very seriously, but it is not the intention of the Bill. However, if it is the case, something needs to be remedied. Let me assure noble Lords that I will make best efforts to do so as we move forward from Committee.

This has been a very useful discussion. In some sense it has provided a degree of continuity from our discussion last week, while moving on to the issue of advocacy, which we will clearly explore further. I hope that, with the reassurances I have given at this stage, the noble Baroness will feel able to withdraw her amendment.

[Baroness Finlay of Llandaff]

My Lords, this debate has been extremely interesting and, in many ways, gets to the nub of some of our concerns. In looking at the Bill, one thing I have tried to do is to benchmark its procedures to see how they would work. I was involved in prosecuting appalling care in EMI homes. I am trying to see how we could have discovered sooner that there were problems there.

I share the concern about the care home manager having too much power. Having said that, I have found the Minister’s answers today reassuring, as they were on the second day in Committee. I suggest, however, that the number of objectors will be very few, because many of these people have such impaired capacity and are not in a position to object—it may be other people who speak up on their behalf.

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[Lord Touhig (Lab)]

My Lords, these amendments go some way to ensuring that a cared-for person is not left without an independent mental capacity advocate or the support of an appropriate person. Much of the Bill as it stands represents what I think is a real assault on human rights. For heaven’s sake, we should be listening to the contributions of the noble Baronesses, Lady Hollins, Lady Barker and Lady Finlay, and that of my noble friend Lord Hunt. He has shared with me the email from the carers of HL and it is very powerful. My father was a miner and he would have said, “This is the experience from the coalface”. We can take this as an important contribution to understanding the difficulties that families face when they have to deal with the issues we are discussing.

Amendment 66 would give a local authority discretion to appoint an appropriate person or an independent mental capacity advocate without notification from a care home. Mencap and others have argued most powerfully that this amendment would minimise the risk of conflict of interest. That is important, as we have seen in other debates. It would mean that a care home arrangement could be more easily challenged and subject to scrutiny. Is not challenging and scrutinising what we do every day in this House? We challenge and scrutinise legislation brought forward by the Government; that is our role. Why would we deny that opportunity to the vulnerable people we are talking about in this Bill?

As it stands, the process for deciding whether to appoint an appropriate person or advocate requires a series of capacity assessments and best interest decisions made by the responsible body or the care home manager, even though both convention and domestic law have made it clear that there is no place for best interests in Article 5 appeal rights. Unless we effect change, this Bill will pass into law and we will see a cared-for person without the appropriate support of either an independent mental capacity advocate or an appropriate person—and that at a most crucial time in their life. That cannot be right. Amendments 76 and 77 are important if we are to ensure that the appropriate person gets the support they need for the role they have undertaken. We have had several long and important debates during the passage of the Bill. These amendments are reasonable and surely the Government must now start to listen.

[Lord O’Shaughnessy]

I thank all noble Lords who have put their names to these amendments and given us the opportunity to carry on what has been a very good discussion so far about the important role of IMCAs and, indeed, appropriate persons as well. I shall deal first with Amendments 65, 66, 67, 69, 70 and 76 as they relate to the circumstances under which a person can request an IMCA and under which an IMCA can be appointed.

As I said in the previous debate, it is our intention not to have any reduction in advocacy or support as a consequence of the Bill. Indeed, it is our position that a responsible body should be able to appoint an IMCA if there is a request by a cared-for person or family member and either a care home manger has not provided notification or the responsible body disagrees with the notification given. As I also said then, I recognise concerns that the circumstances under which an IMCA can be appointed would be narrowed as a consequence of the Bill, which is not something we want to happen. I do not want to rehearse the entire debate we had last time other than to say that it was a good one. I have assured noble Lords about what I want to take away from that, which is to consider the appropriate way in which we can go forward with the role of the care home manager while making sure that all concerns about restrictions to advocacy and so on are adequately put to bed.

I want to make a point on Amendment 75, which falls into this set of amendments, about why the term “relevant person” is used. I am not quite sure why, specifically; rather, I have an idea, but I do not want to get it wrong. It would be safer for me to write to the noble Baroness, Lady Barker, about why that phrase is used and circulate it to noble Lords. Certainly, this is already a complex piece of legislation with lots of terms and jargon; for goodness’ sake, let us not increase that, if at all possible.

I want to take up the challenge from the noble Baroness, Lady Barker, on rights to information. During the previous debate, I tried to make it clear that we will set out the right to information but rights to information—not rights to request it—have been strengthened by a variety of legislation, some of which has nothing to do with the care of people lacking capacity. I also said last time that we are reviewing the Bill to see if it needs to be revised to achieve the outcome that the noble Baroness wants. I know that she is concerned about this, but work is under way to try to resolve this issue.

Moving on, we have not previously discussed the term “appropriate person”, which relates to Amendments 73, 74, 77 and 80. This is a good opportunity to speak about the important role of the appropriate person in the new model. As noble Lords know, under the DoLS system the relevant person representative—we are getting into difficulties of language—can be a family member, a paid role or even an advocate. That can unnecessarily give rights to two separate advocates. There has been confusion about the purpose of the RPR and how it differs to advocacy. Our intention is that the appropriate person role will be clearer, not least because it is a familiar part of the Care Act, where the appropriate person facilitates the person’s involvement in the care process.

Obviously, that person provides a vital safeguard for the cared-for person. They are appointed to represent and support the cared-for person, ensuring that the person’s rights are protected and that the person is fully involved in decisions. As I said, that is already established under the Care Act for the purposes of caring. The role of appropriate person can be fulfilled by a family member, someone close to the cared-for person, someone with lasting power of attorney or a volunteer. I know from previous discussions how keen noble Lords are to make sure that the voice of the person is central to discussions about their care and the deprivation of their liberty. Clearly, the appropriate person has an essential role here.

The noble Baroness, Lady Hollins, asked specifically about the question of a right to act. It is all very well appointing somebody—they also have to be willing to be appointed—but when appointing an appropriate person or recognising one, the responsible body has to be confident that the appropriate person is prepared to act. Indeed, that is part of their appropriateness. Otherwise, an IMCA should be appointed. That satisfies the noble Baroness’s question at the beginning about an appropriate person being appointed, but not about what happens if they lapse or the process by which they, or their appropriateness, would be reviewed. As it stands, I will need to reflect on that further to explain it to her. The process may well happen through the regular reviews, but I need to take that question away and think about how we provide reassurance that the appropriate person is in a position to act and wants to do so. Clearly, if an appropriate person, not an IMCA, was appointed but not prepared to act, the cared-for person would lapse into a situation where they did not have somebody in their corner, which we are all trying to avoid.

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[Baroness Hollins]

My Lords, these amendments are examples of the long and complicated amendments which I think could end up going wrong, because they are trying to cover quite a lot, which will probably become gold-plated and give rather too much weight to the legal profession. I do not think that what Sir Simon Wessely planned to do is relevant here, because it is not really about mental illness but about dementia. If that is the case, people may not be in a position to change their mind at a later date, so these amendments are very complicated and probably rather unwise.

[Lord O’Shaughnessy]

I am grateful to the noble Baroness, Lady Thornton, for introducing this clause stand part debate. We had a chat earlier, so I shall not formally respond to her but instead deal with the amendments as laid, if that is all right with everybody. Clearly, these are very important issues that need to be dealt with properly.

Amendment 84 would allow individuals to provide advance consent to arrangements enabling care or treatment that would otherwise amount to a deprivation of liberty. As noble Baronesses have commented, the Law Commission recommended that provision should be made in the Bill to allow this. This would mean saying that cared-for people entering certain settings, such as hospitals and end-of-life care, where the arrangements are predictable and time limited, would not be required to undergo additional assessments if they needed to be deprived of their liberty. In the Government’s response to the Law Commission, we agreed that people should have choice and control over future decisions being made on their behalf, but we said that we needed to look at the detail of this specific proposal. I understand that there is enthusiasm among some noble Lords for such a recommendation, particularly, as has been said, as a way of alleviating unnecessary assessments for those in palliative and end-of-life care.

On palliative care, before I get on to more general concerns, I think it is important to note that the Government have issued some guidance about consent in the context of palliative care in the last few weeks of life. I realise that this talks only about one part of the time period that we might be talking about. The guidance says that if an individual has capacity to consent to arrangements for their care at the time of their admission, or at a time before losing capacity, and does consent, this consent would cover the period until their death, hence there is no deprivation of liberty. However, the guidance is also clear that this consent would no longer be valid if significant extra restrictions were put in place, after this point, to which the person had not consented. So there is a situation that pertains to people right at the end of life and provides some opportunity for challenge if restrictions change.

If we extend that time period out, not just to weeks but to months and years, it has been brought to light in this debate that, while there is a desire to make sure that a person’s advance consent is taken seriously and given legal force, concerns have also been raised, not least by the noble Baroness, Lady Finlay, about extending the application in such a way that it could actually deprive people of their protections and human rights. These are clearly concerns that we need to take seriously.

Concerns have also been expressed to the department, in engagement with stakeholders, that the inclusion in statute law of advance consent to being deprived of liberty might imply that there is an expectation that people should have an advance statement of wishes in place, and that people may be pressured into making an advance statement. I take the point made by the noble Baroness, Lady Murphy, that in some ways planning for the future may be a good thing but, equally, we do not want to force people to plan for the future when their desire is not to. We protect the right of people to make bad decisions; that is an important part of a person having a sense of agency and autonomy. Concerns have been expressed that that would be put in danger and people would feel pressured to do something that they might not wish to do.

Clearly, the Law Commission made this recommendation with highly laudable aims. However, we have concerns and are not yet convinced of the merits of the amendment. We have tried to deal with some of the issues around integrating planning through the creation of a system based on the production of a care plan. We have talked about the inclusion of a statement of wishes. I would like to know more about the proposal of the noble Baroness, Lady Barker, about advance statements of wishes. I would like to follow that up and understand it a bit better. The process we are envisaging would allow the inclusion of advance decisions to refuse treatment as part of future care planning. That is not affected by what we are discussing here but that would be allowed. We are not convinced of the merits of the amendment—indeed, we have some concerns about the implications of it—but I would be keen to understand a bit more about previous discussions of this topic and whether there are other ways to provide that sense of agency for the person who will be cared for without producing undue pressure on them or legal force in a way that would go against their interests and, in legal terms, their human rights.

Amendment 85 would create a new civil court remedy against some private care providers, including non-NHS hospitals and private care homes, if they have deprived someone of their liberty unlawfully. Again, this provision was proposed by the Law Commission. However, we do not believe that a new legal remedy is required. There is already an ability to seek damages under the Human Rights Act on the basis of a breach of Article 5 and usually Article 8. This is available in private cases, where a private care provider is depriving a self-funder of their liberty unlawfully. A remedy could be sought against the public authority responsible for the deprivation. Obviously, we need to hold private care providers to the same standards that we hold public care providers to. There are already a number of mechanisms that allow for this, and the law provides for them. There is the criminal offence of false imprisonment, as well as the existing law of false imprisonment for civil claims. So people can already bring legal action against private care providers.

On top of this, the Care Quality Commission in England and the Care Inspectorate Wales would also ensure compliance with the liberty protection safeguards. Clearly, they have a range of enforcement actions available to them that apply to the public and private sector alike. Furthermore, as commissioners, local authorities will—and do—have a role in ensuring that private care providers fulfil their legal duties. The Government believe that sufficient levers are already in place and that the creation of an additional civil route could increase care providers’ insurance costs at a time when, as we all know, we are working hard to make sure that there is funding in the system to provide adequate and good-quality social care to everybody who needs it.

I understand and agree with the desire to hold private providers to the same standards that we hold public providers to, but we believe there are existing remedies within the system and there is no need to require or implement new ones. On that basis, I hope the noble Baroness will not move her amendments.

[Baroness Thornton]

I thank the Minister for that detailed response and the noble Baronesses, Lady Murphy and Lady Barker, for their support. I did not intend to alarm the noble Baroness, Lady Finlay. I thought we might be veering into discussions the House has had on many occasions about advance consent for various things. I do not think we want to go there, but I was beginning to get the feeling of “Doctor knows best” when we were having that discussion.

I am not certain that the care plan works. The Law Commission had very good reasons for putting what are now Amendments 84 and 85 into the draft Bill that it brought forward, which were to do with the fact not that its people are lawyers but that it had consulted very widely with stakeholders and people involved in the care system. These are the conclusions that it came to, so I will read carefully what the Minister has said about this. Maybe we can include these amendments in our discussions and decide whether we need to pursue them further at the next stage of the Bill.

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[Baroness Finlay of Llandaff]

It could have wide-reaching consequences, but a lot of people who have lost capacity and are in a state of high dependency are already in nursing homes, so they are already being cared for in the system and may be subject to deprivation of liberty. Some of them have long-term continuing funding for their care, but they have been there for a long time and the donee, who is managing all their affairs and advocating on their behalf, is very concerned about their welfare in the event of them failing.

[Lord O’Shaughnessy]

I am grateful to the noble Baronesses and the noble Lord, Lord Hunt, for tabling amendments in this group. I am very aware of the complexity of this issue. For a lay person such as me, some of the terminology can be confusing. I will do my level best to be as clear as humanly possible, but if I fail in that endeavour I will write to noble Lords and explain better what I am attempting to explain now.

The effect of Amendment 83, as the noble Baroness, Lady Thornton, said, would be to confirm in law that a donee of a lasting power of attorney or a deputy appointed by the Court of Protection was unable to consent on a person’s behalf to a deprivation of liberty. If they could provide such consent, the person would not be considered to be deprived of their liberty and no safeguards would need to be provided.

The Law Commission report stated that it was already the position in law that a donee or deputy could not consent to a deprivation of liberty. We confirmed in our response to the Law Commission’s report that the Government agreed with its view on the current legal position, and the Bill does not change the current situation. While the Bill creates a duty to consult with any donee of the lasting power of attorney or a deputy, it does not enable a donee or deputy to consent to the deprivation of liberty on behalf of the cared-for person. In other words, under this Bill the cared-for person would still be deprived of their liberty in those circumstances and would still need to be provided with safeguards to satisfy Article 5, which is of course the whole purpose of DoLS and liberty protection safeguards. In that sense the amendment, with which we agree, would serve only to duplicate existing legislation and is not necessary. I hope I have provided an adequate explanation to noble Lords, but obviously I am willing to set out in more detail exactly why we believe the current situation is not changed by the Bill as it stands.

I turn to the amendments in the name of the noble Baroness, Lady Finlay. Amendment 83ZA would require the Office of the Public Guardian to provide documentation, which may be in electronic form, to identify the donor and donee or donees of a lasting power of attorney and to recall the documentation if the donee’s power is revoked. As the noble Baroness pointed out, this is designed to make it easier for attorneys to provide proof of the existence of a registered LPA. It is right that there ought to be a robust system of proving that there is a valid power. My understanding is that the Ministry of Justice and the Office of the Public Guardian are actively considering how to offer a digital means of providing evidence of a valid LPA, and we expect to bring forward proposals in due course. I am happy to pursue that further with colleagues in that department and that office to understand greater details of their plans and to share those with noble Lords if they are forthcoming, which I hope that they will be.

Amendment 87E, in the name of the noble Baroness, Lady Finlay, would allow the donee of a lasting power of attorney to nominate someone to replace them if they were no longer able to fulfil their duties—I think that means if the lasting power of attorney was no longer able to fulfil their duties—while Amendment 87G would allow a replacement attorney to be nominated by the donor at the time of registering the LPA to take over the power if the donor decides to remove the power from the donee.

I do not need to reiterate to noble Lords just how critical it is to get the law and the rules in this area right; as the noble Baroness, Lady Watkins, pointed out, the rules around this would not apply only to this Bill. It is worth pointing out that there is provision in the original Mental Capacity Act to allow a person making a lasting power of attorney to nominate a replacement in the event that their attorney is unable to continue, but I think the point that the noble Baroness, Lady Finlay, was getting at is that there is a slight chicken and egg situation here: at the point where they no longer have capacity but the person whom they have previously appointed is no longer able to fulfil their role or the cared-for person no longer wants them to do so, they cannot go back in a time machine and appoint someone else—in other words, they cannot know what they do not know. I have just made things really clear by getting all Donald Rumsfeld about it all.

Having said all that, I want to consider if there is a way of unlocking that paradox, but clearly the implications of that would go well beyond the remit of what we are discussing here. I do not want to make any promises that it is not in my power to keep. I would appreciate the opportunity to explore this further so that we can consider how to give the donor more opportunities to have a sense of choice and agency as they think ahead to the future. I would have thought that we must be able to provide for that without creating extra complications. I look forward to taking that up with the noble Baroness and other noble Lords who are interested in the topic. On that basis, I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for that detailed answer. As usual, the noble Baroness, Lady Finlay, has raised some interesting challenges. In my family, someone who had enduring power of attorney died at the point they were needed. We were in a ridiculous and complex situation—resolved by good will, but the law did not help us. This is therefore a serious matter.

I understood what the Minister said about the power of attorney, and I will read his response. It sounded to me as though it was probably reasonable, so I beg leave to withdraw the amendment.

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[Baroness Jolly (LD)]

I want to make a couple of points, but I first draw the attention of noble Lords to my interests in the register relating to learning disability. It is interesting how to read this amendment. I looked at it and thought about individuals in domestic settings, and the charity that I chair does just that. We put four or five individuals into a domestic setting. A proportion of them will have a DoLS. If noble Lords go into the house, it looks just like an ordinary home. Each resident pays rent and would consider it very much their home. Carers offer 24-hour support and locks are well and truly in evidence. Over the weekend, I asked our director of operations what proportion of the people we support were subject to DoLS, and she said thousands. It is just the norm.

I understand that the noble Baroness’s intention was to take this into a family setting where there is mum, dad and a child who may well be an adult—certainly, we see parents in their 80s caring for their children with a learning disability who may be in their late 50s or late 60s, and the parents are at their wits’ end. All that fits with this amendment so, whatever its merits, the wording needs to change but it is certainly worth pursuing.

[Lord O'Shaughnessy]

I am grateful to the noble Baronesses for leading this debate. Obviously, the bulk of the debate focused on Amendment 87C, which would exclude people residing in domestic settings, and we have discussed the merits of that approach. The noble Baroness, Lady Meacher, gave a thorough exploration of alternatives to the LPS system in a domestic setting. The noble Baroness, Lady Murphy, gave a passionate defence of the role of families in caring, which was perhaps accentuated by the noble Baroness, Lady Wilkins, talking about the need to avoid overzealous application of any new provision of deprivation of liberty safeguards. My noble friend Lady Barran talked particularly about the group of people who lack a care plan and their interaction with the care system if they go temporarily into a care home. For me, all that brought home that we have further work to do on the appropriate system that applies in a domestic setting, to put it shortly.

It was helpful that the noble Baroness, Lady Barker, told us the story about the vulnerable person. We all agree that something needs to happen in that case to check the actions of the family or help the family to do better. They may just not know what to do or be at their wits’ end—who knows? We can imagine how easy it is to fall into those situations not out of intention but out of pressure and circumstance. That debate highlighted how important it is to get that right. I absolutely want to avoid intrusion where it is not necessary, but equally we need to ensure that those people deprived of their liberty receive the proper protections due to them under Article 5 of the ECHR. This is an issue that clearly needs more work. The amendment was not designed to perfect the solution but rather to start the conversation, and it is absolutely one that we will take through with noble Lords.

I turn briefly to Amendment 83B, moved by the noble Baroness, Lady Thornton, which seeks to introduce a legal presumption that a person should give evidence in all Court of Protection proceedings. Obviously I agree with her about the importance of this issue. She called it a reasonable point and I think it more than reasonable. It is essential that in any court proceedings a person’s rights are protected and that the cared-for person has the opportunity to give evidence to the court in any case concerning the deprivation of liberty. I am happy to be able to confirm that this is already reflected in the Court of Protection rules. The court’s overriding objective under the rules is to deal with cases justly and at proportionate cost. They expressly include ensuring that the person’s interests and position are properly considered and that the parties are on an equal footing. A new set of rules was introduced less than a year ago. They include changes to ensure that a person is able to participate in proceedings. Specifically, rule 1.2 requires the court to consider in every case how best to secure the cared-for person’s participation. It sets out a range of options including the cared-for person addressing the court directly, indirectly or with support from a representative, a litigation friend or an accredited legal representative. I hope that that provides the noble Baroness with the clarification that she was looking for and that she will feel able to withdraw her amendment.

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[Lord Touhig]

My Lords, this group of amendments covers a range of things that need to be done before the commencement of the Act, and steps that should be followed later, as proposed by my Amendment 92. Noble Lords have made powerful arguments in favour of their amendments. In view of the lateness of the hour, I will confine my remarks to Amendment 92, tabled in my name, with the support of the noble Baronesses, Lady Tyler and Lady Jolly.

Amendment 92 would see two independent reports commissioned by the Government to be laid before Parliament within two and four years of the Act becoming law. The reports would provide a valuable update on how implementation was proceeding and would highlight areas for improvement. It has often been said that the Mental Capacity Act is a good piece of legislation that has been poorly implemented. If we want to see this Bill strengthened in all the areas we wish it to be, we will also need to monitor its implementation extremely closely, not least because the legislation affects some of the most vulnerable in our society and concerns their freedoms. Hundreds of thousands of people across England and Wales will be affected.

The amendment is modelled on the independent reviews that have accompanied the introduction of personal independence payments. The proposed report could look at a number of things: first, that decisions on whether someone’s liberty is restricted are truly being made in the best interests of the individual and not in the interests of providers or commissioners; secondly, that training is effective and ongoing and reinforces the rights of the individual; thirdly, that families and carers are involved and consulted as appropriate; and, fourthly, that advocacy is available to all who need it and is delivered effectively and impartially. Some very powerful arguments have been made in this short debate. I hope that the Minister will listen and that the Government will respond positively.

[Lord O'Shaughnessy]

My Lords, I am grateful to all noble Lords who have tabled amendments in this group. We have had a wide-ranging debate on areas where they would like to see various enactments, changes, reports and so on, before commencement and following implementation. I will attempt to deal with them thematically.

Amendment 86 requires that before commencement the Government must publish the code of practice and our response to the Mental Health Act review. Amendments 93 and 94 update Clause 5 to reflect this. I am happy to confirm that the Government will have published both of these before the new system commences.

Amendment 87 requires that the effectiveness of the Act is reviewed and a report laid in Parliament within a year of the Bill coming into force. As the noble Lord, Lord Touhig, just pointed out, Amendment 92 requires the Secretary of State to commission two independent reports on the operation of the new liberty protection safeguards scheme two and four years after the new system comes into force. Again, I am happy to assure noble Lords that the Government routinely conduct post-legislative scrutiny for all new Acts. The relevant guide says that within three to five years of Royal Assent the Government will be required to submit a memorandum to the relevant departmental select committee with a preliminary assessment of how the Act has worked in practice. I am happy to confirm that the Bill will receive such scrutiny and the Health Select Committee will be informed.

Amendment 87A, in the name of the noble Lord, Lord Hunt of Kings Heath, details requirements regarding a number of topics. As he pointed out, a number of these have already been addressed in our debates, including unsound mind, issues around advance consent, the availability of non-means-tested legal aid, and others. We have had a debate on the rules and guidance around IMCAs, which we are clearly going to take forward. He focused on tribunals. The Government are reviewing the courts and tribunals system but that review has not concluded. We are not proposing to change the position on the Court of Protection hearing challenges to liberty protection safeguards in the Bill precisely because there is not yet an opinion or a policy change from the Government with regard to a proposed new system. He also asked about the cost implications, which are outlined in our impact assessment, as he will know.

The noble Lord’s second amendment, Amendment 87B, seeks to make the CQC the regulator for the liberty protection safeguards. The Bill allows for bodies to be prescribed to report and monitor the scheme and it is absolutely our intention that the CQC takes on this role in England. It clearly has an important role in oversight of the new system, although we are concerned that his amendment would introduce additional layers of regulation. It should also be pointed out that the CQC is an England-only organisation; in Wales, the overseeing regulators are expected to be Healthcare Inspectorate Wales and Care Inspectorate Wales, which will both take on this role.

Amendment 87D was tabled by my noble friend Lady Barran and the noble Baroness, Lady Finlay. It would require responsible bodies to consider criteria to be published by the Secretary of State around best interests and the least restrictive option before authorisations are approved under the liberty protection safeguards. These are of course absolutely key principles of the Mental Capacity Act, and responsible bodies will have to consider them as part of any authorisation. As I have set out in previous debates, these factors already form part of the necessary and proportionate assessments, as well as other factors such as considering the wishes and feelings of the person. We will explain in the code how this assessment should be carried out and the factors that assessors should have regard to. I am grateful to my noble friend for some suggestions in that regard and I have just confirmed that the code would be published before commencement of the new scheme.

Amendment 87F, in the name of the noble Baroness, Lady Tyler, would remove the power of the Court of Protection to call for reports from local authorities and NHS bodies in cases relating to a cared-for person under the schedule. We think it is important, as I am sure she does, that the Court of Protection has access to such information but I heard the story that she told about an undue burden. I am certainly happy to commit to her that I will speak to colleagues in the Ministry of Justice to see whether there is any way that this process can be improved without removing the ability of the court to access the information it needs to make proper determinations.

Amendment 92A, in the name of the noble Lord, Lord Hunt, seeks to ensure that the liberty protection safeguards do not apply to any existing or pending DoLS authorisations. I can confirm that existing DoLS authorisations can continue until they are due for renewal or review. Clearly, depending on the final outcome of the Bill, the frequency with which those are renewed or reviewed will mean that there will be a steady stream of DoLS authorisations coming under the liberty protection safeguards in future, for those that are rolled over. Careful work will clearly need to be done with the sector to ensure that a tsunami of new authorisations does not happen but allowing for authorisations to continue under the previous system, until they can reach review or renewal, should go some way toward mitigating that risk.

Finally, Amendment 88, tabled by the noble Baroness, Lady Tyler, states that regulations should be subject to the affirmative parliamentary procedure and a consultation requirement. We have of course asked the Delegated Powers and Regulatory Reform Committee for its opinion on the regulation-making powers within the Bill and it has accepted that the negative procedure provides appropriate parliamentary oversight. As the Committee knows, we go against the DPRRC’s recommendations at our peril.

I apologise for detaining the Committee for six or seven minutes but I wanted to be thorough. I hope that I have been able to give the reassurances that noble Lords were looking for about the safeguards that we will put in place before commencement and the reviews of effectiveness to ensure that the system is working as intended. I hope that noble Lords will feel able to withdraw or not move their amendments.

[Baroness Jolly]

I thank the Minister and others who have spoken on this group. We all want to ensure that the new mental capacity Act—presumably of 2019—works and that the Department of Health and Social Care monitors its implementation. I know that we on these Benches look forward to working with the Minister and others between now and Report to ensure that the Bill is actually fit for purpose. I gently suggest that a longer time gap than is usual between Committee and Report might be needed. I guess that those conversations might need to be held with the usual channels but, in the meantime, I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Touhig]

My Lords, I have spoken several times in Committee about my concern that the Bill as it stands is an assault on human rights. I have also mentioned in past debates that I am proud of the reputation of the all-party British delegation to the Parliamentary Assembly of the Council of Europe, so ably led by Sir Roger Gale, which has a proud record of defending human rights in that body. Article 5 of the ECHR protects our right to liberty and security. It focuses on protecting individuals’ freedom from unreasonable detention as opposed to protecting personal safety. As a result of Article 5, your Lordships and I have a right to personal freedom. That means we must not be imprisoned or detained without good reason. The Bill before us is about the quality of life, and the care and the respect of some of our most vulnerable fellow citizens. This amendment is about giving our fellow citizens, who may not have the capacity to defend themselves in the way that we take for granted, the same rights that we enjoy.

[Lord O’Shaughnessy]

My Lords, this is a good way to finish our Committee proceedings. I thank the noble Baroness, Lady Thornton, and the noble Lord, Lord Touhig, for tabling the amendment, and I thank the noble Baroness, Lady Barker, for speaking to it.

Clearly, not only ought it to be the case that the Bill is compliant with Article 5 of the European Convention on Human Rights, but it is also important to make it clear, as I did at the point of the introduction of the Bill, that its provisions are compatible with Article 5. As noble Lords will know, and as becomes painfully clear when you become a Minister and you see your name on printed Bills giving these kinds of reassurances, that is a process that we need to go through before introducing legislation. Clearly, there are still concerns about whether the Bill can be improved in giving force, as the noble Lord pointed out, to the rights under Article 5. Nevertheless, it is my view that the Bill is compatible with the ECHR.

Furthermore, because of Section 3(1) of the Human Rights Act 1988, primary and subordinate legislation must be read and given effect to in a way that is compatible with convention rights. It is already the case that the Bill must be read and given effect to in a way that is compatible with Article 5. My concern with the approach here is therefore not so much one of repetition but one of partiality because it only talks about Article 5. There is therefore a risk that if we implied that this legislation had only to comply, or had a special duty to comply, with Article 5 of the convention rather than the whole convention, that would not reflect our responsibilities under the Human Rights Act. Indeed, it could downplay critical protections that exist in the ECHR, such as the Article 8 rights to family and private life. So while I understand the motivation behind tabling the amendment and using it as an opportunity to rehearse some of the desire to improve the actions that will safeguard the liberty and security of the person, I do not think it is right to put such a clause in the Bill precisely because the Government have a broad responsibility to ensure not only that the Bill is compliant but that it is read and given effect to in a way that is compatible with all convention rights.

I hope that has provided reassurance to noble Lords that our intention, and indeed our obligation, is to provide not only for those Article 5 rights but for all other rights that apply under the ECHR. I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for that answer, and for his recognition that the reason for tabling the amendment at this point in the Bill was to allow us to say that these were the issues we needed to address, as the noble Baroness, Lady Barker, and my noble friend Lord Touhig outlined. I am pleased that the Minister has acknowledged that. I beg leave to withdraw the amendment.

Children: Gender Dysphoria

Lord O'Shaughnessy Excerpts

Wednesday 17th October 2018 Lords Chamber

[Lord Lucas]

To ask Her Majesty’s Government what is their assessment of whether treatments for gender dysphoria currently offered to children by the National Health Service are evidence-based, and do no long-term harm if the diagnosis turns out to be mistaken.

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

My Lords, clinical practice for those with gender dysphoria is informed by a series of guidelines outlined in both NHS England’s service specification and the clinical commissioning policy on the use of cross-sex hormones: for example, guidelines produced by the Endocrine Society on the use of puberty blockers. Research into the long-term impact of such interventions is in its infancy, with further studies required.

[Lord Lucas (Con)]

My Lords, I am grateful to my noble friend for that reply. However, would he not agree that when clinicians are faced with a choice between whether to leave the child in a state of psychological distress due to gender dysphoria or to set them on a course of treatment which, most of the time, will end in sterilisation, we need to put a lot more effort into and emphasis on research so that we understand this condition better?

--- Later in debate ---

[Lord O'Shaughnessy]

I absolutely agree with my noble friend that more research is required. Clearly, long-term research is also required here to track people throughout their lifetime and to understand the physical and psychological outcomes. The NHS England service was developed on the basis of peer-reviewed research—the best research available. However, it is still in its infancy, and we need more research to make sure that the correct services are being given to children and young people who, in many cases, are in quite significant distress.

[Baroness Barker (LD)]

My Lords, will the Minister confirm that surgery for gender dysphoria is never carried out before the age of 18, and that young people receive hormone treatment only after extensive periods of assessment, not just by psychologists and psychiatrists but also by endocrinologists, all of whom have to work to clinical guidelines?

[Lord O'Shaughnessy]

Yes, I am happy to confirm to the noble Baroness that no surgery should be offered to under-18 year-olds; no cross-sex hormones, which change biological gender, should be available to under-16 year-olds and even the use of hormone blockers is highly unusual for those under the age of 15. That is set out in the guidance and adhered to by the Tavistock and Portman trust, which delivers the service for children.

[Baroness Thornton (Lab)]

My Lords, gender dysphoria is described by the NHS as the discomfort or distress caused by a mismatch between a person’s gender identity and their biological sex assignment at birth. This is not a new condition, but we must be grateful that it is recognised today as a real issue and a real cause of harm to those children and young people affected. I declare an interest as a health commissioner in the area of the Tavistock Institute.

Does the Minister agree that we need not only more research on the medical, psychological and emotional solutions for this cohort of children and young people, but also resources to be made available? The Tavistock, with its excellent work, is currently the only institute in the UK providing this support.

[Lord O'Shaughnessy]

I agree with the noble Baroness that this is a very real condition; it is rare, particularly in children, but nevertheless it is real. Therefore it is appropriate that those who have it should get the right support. As the noble Baroness, Lady Barker, pointed out, that support may be psychological or endocrinological —whatever is required, multidisciplinary teams will provide it. There has been an increase in the number of resources available as well as a cultural change towards greater acceptance. Ultimately, what this comes down to, and what people worry about, is that children are pressured into being one thing or another when they should be allowed to be themselves.

[Baroness Nicholson of Winterbourne (Con)]

The Minister has mentioned the GRA consultation document already, which is on the web. Would he consider reviewing, withdrawing and reissuing that document? I have known a number of people try to fill it in and it is a little difficult; the language is complex, opaque and many of the linguistic terms are not readily used. I am not certain whether the general public, with whom we are consulting, are normally ready to read 100 pages of explanation before finding a small number of questions in the middle. It is a monumentally complicated paper, which has had little academic consultation, and people with less than a higher level of education have told me they simply cannot understand it. Will the Minister consider reviewing that document?

[Lord O'Shaughnessy]

It is important to distinguish the provisions of the Gender Recognition Act from the health services provided for people with gender dysphoria. Nevertheless I take the noble Baroness’s comments on board; I know some concerns over the document have been raised with the Government Equalities Office, which has responsibility for it; the Department of Health does not have direct responsibility.

[Baroness Symons of Vernham Dean (Lab)]

My Lords, this is an issue not only for children in this country but in many countries throughout Europe and, particularly, in the United States. Will the Minister tell us what mechanisms exist for exchanging information between the countries that recognise this problem, which is a genuine problem in many families? What mechanisms are there for exchange of information on how best to deal with it?

[Lord O'Shaughnessy]

The noble Baroness is right that this is an international trend; we see in many countries similar figures for people coming forward, although, frankly, some cultures deal with the issue better than others. I am sure there are international health forums—indeed, I know there are—that deal with trans health issues and I can write to her with specific details

[Baroness Brinton (LD)]

My Lords, following the comments of the noble Baroness, Lady Nicholson, will the Minister take back also the alternative view? This is an extremely complex issue—on the current consultation on gender recognition, the survey is complex, the information provided by the Government is extremely helpful and, as a result, it has informed a lot of people as well as enabling them to answer questions properly.

[Lord O'Shaughnessy]

I am happy to do so.

General Practitioners

Lord O'Shaughnessy Excerpts

Wednesday 17th October 2018 Lords Chamber

[Baroness Kennedy of Cradley]

To ask Her Majesty’s Government what progress they are making in increasing the number of general practitioners in England.

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

My Lords, the Government still intend to increase the number of doctors in general practice by 5,000, but we recognise that this will take longer than hoped. Last year we recruited the highest number of doctors into GP speciality training. There is also a broad offer for GPs to stay in the NHS, including a £10 million retention fund. Furthermore, since 2015, more than 3,000 other clinical staff are working in general practice.

[Baroness Kennedy of Cradley (Lab)]

My Lords, properly resourced, general practice is key to keeping people well and relieving wider pressures on the NHS, yet the Government’s target of 5,000 more GPs by 2020—or whatever date they are now going to set—is in tatters. Workload pressures, oversubscribed patient lists and funding shortfalls are driving down GP numbers. Statistics published this month show that the number of GPs has fallen by 6% since 2015, with the June 2018 figure 1,400 below the target set. Is there a plan to adjust the recruitment target to account for the year-on-year loss? Can the Minister confirm the actual delivery date for the target?

[Lord O'Shaughnessy]

The noble Baroness is correct, unfortunately: she is using accurate figures. We have not achieved the GPs numbers that we wanted but we still intend and need to recruit those other 5,000 GPs. It is worth pointing out that the funding for general practice will have increased by around £2.5 billion over the five years between 2015 and 2020, so I do not accept her point about funding shortfalls. The money is there, but we need to recruit more GPs and keep them in the service.

[Lord Forsyth of Drumlean (Con)]

Is my noble friend aware that one of the reasons that the numbers of GPs are falling is because, when they get to age 55, they find that their pension contributions are taxed at 55% due to the Government’s decision to lower the threshold for their pension funds? They then rejoin the health service as locum doctors, thus costing it more. Is it not time that the Treasury learned the unintended consequences of interfering with pension rules?

--- Later in debate ---

[Lord O'Shaughnessy]

My noble friend will know that pension policy is not one of my areas. There are early retirements from general practice but, as he pointed out, a number of those GPs come back either as locums or as part-time doctors. It is important to entice more of them back. That is why we aim to have 500 people going through our refresher scheme to bring GPs back into the service.

[Baroness Walmsley (LD)]

My Lords, I was rather surprised to learn that the Government were trying to recruit more doctors from Australia, the very country to which a great many of our newly qualified doctors go for better pay and conditions. What are the Government doing to try to recoup the taxpayers’ money spent on their training? It is surprising that they go to developed countries such as Australia, and that we get no benefit from the cost of their training.

[Lord O'Shaughnessy]

Some people will inevitably travel abroad after their training, but the vast majority of doctors who train in this country stay here. We have more GPs than ever in training. That is obviously the way to solve the long-term challenges of having the right workforce. However, the noble Baroness is absolutely right that we need to recruit from abroad in the short-to-medium term. The NHS has a recruitment target of 2,000 doctors via that route.

[Lord Patel (CB)]

My Lords, one of the key recommendations made in the House of Lords report The Long-term Sustainability of the NHS and Adult Social Care related to training of health professionals. It was based on the evidence that we received of the very thing we are discussing today, which is poor recruitment, not only in general practice but in other areas in healthcare. The key recommendation was that NHS England be asked to review and come forward with a paper that will change the way we train health professionals, so that training is more flexible and integrated and encourages people to go into specialties that are currently in shortage. Does the Minister agree?

[Lord O'Shaughnessy]

I agree with that recommendation. It is certainly being considered as part of the long-term plan, for which workforce is clearly critical. That is one reason why it is significant that there are 3,000 more clinical staff in general practice who are not doctors—nurses, pharmacists and others. Clearly the nature of general practice is changing. Doctors do not have to do everything, and other well-qualified professionals can carry out essential roles.

[Baroness Pitkeathley (Lab)]

My Lords, when the Government launched their loneliness strategy last week, we learned that one in five people at GP surgeries is there for reasons caused by loneliness. Can the Minister expand on what is being done to change GPs’ training so that they can deal with such problems, or—following his answer to the previous question— on what other clinicians and associated professionals will be brought into the mix to help solve the loneliness issue?

--- Later in debate ---

[Lord O'Shaughnessy]

The noble Baroness raises what is unfortunately a sad fact. One of the areas I highlight is the increasing use of social prescribing, which uses means such as joining clubs and taking part in activities that often have a social dimension to alleviate the problems associated with loneliness. Our new Secretary of State has made social prescribing a priority, because clearly it enables us to change people’s lives for the better without resorting to appointments and medicines.

[Baroness McIntosh of Pickering (Con)]

My Lords, I declare an interest as an adviser to the board of the Dispensing Doctors’ Association. Will my noble friend address the very real issue of recruiting and retaining GPs in rural areas? I declare an interest in that both my father and brother have been dispensing doctors. It is not just an issue of 55 year-old doctors’ pension contributions; increasingly there is a problem of attracting young doctors in their 30s and 40s and retaining them, because of the poorer pension provisions we have now.

[Lord O'Shaughnessy]

My noble friend makes an important point, and obviously she has first-hand experience of that. I am pleased to tell her that there is a targeted recruitment scheme that offers a £20,000 salary supplement for those who serve in hard-to-reach areas. In 2016, 122 places were offered on that scheme, and that number has now more than doubled in 2018, so we are putting more and more emphasis on that.

Personal Social Care: Funding

Lord O'Shaughnessy Excerpts

Tuesday 16th October 2018 Lords Chamber

[Baroness Wheeler]

To ask Her Majesty’s Government what assessment they have made of the report by Independent Age, A Taxing Question: How to fund free personal social care, published in September.

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

My Lords, the Government welcome and recognise the contribution of Independent Age and other stakeholders to the important debate around social care reform. The Green Paper that is to be published later in the year will set out proposals for a sustainable social care system that strikes a fair balance between what the state and individuals pay. Reforms must be affordable and fair across the generations, including to working-age taxpayers.

[Baroness Wheeler (Lab)]

I thank the Minister for his response. The report sums it up when it says that,

“today … accessing such support has become a game of chance: based on where you live, your social class, and your ability to pay”,

all of which was echoed in last week’s CQC state of care report, which also made it clear that any future extra funding for the NHS will just be wasted and swallowed up treating people in hospital unless there is a similar major cash injection for social care. Will the Minister confirm that all the options set out for future social care funding in the Independent Age report, particularly the strong case made for free personal social care and support for older people, are under active consideration in the social care Green Paper? How are the proposed 10-year NHS plan and the Green Paper joined together to deal with the integration lottery and fragmented care that the CQC’s local systems reviews have highlighted?

[Lord O'Shaughnessy]

I thank the noble Baroness for raising this important issue. She is quite right that extra funding is needed, which is why we have pledged £20 billion extra for the NHS and want to get this long-term funding settlement for social care. There are many proposals in the Independent Age document—nine, I think—and we are looking at a range of different options. As I said, there needs to be a fair balance between those who are working today and those who need care today, an issue that has evaded a number of Governments and which we sincerely hope to solve. On how the two plans will work together, the intention is that the long-term plan and the Green Paper will be published together around the same time and will therefore be complementary in trying to achieve the goal of integrated health and care.

[Baroness Pitkeathley (Lab)]

May I press the Minister further on his Answer to my noble friend about the consideration of free personal care? Those of us who were at the memorial for Lord Sutherland earlier today remember that he chaired a Royal Commission that came up with a proposal for free personal care. Sadly it was not implemented then, nor has it been implemented by any of the endless reports we have had on this issue in the ensuing 20 years. We need to consider free personal care as one of the options. I ask the Minister again: will it be considered?

[Lord O'Shaughnessy]

I shall have to disappoint the noble Baroness: the proposals will be set out in the Green Paper and I will not give a sneak preview today.

[Baroness Jolly (LD)]

My Lords, Scotland has been giving over-65s free personal care for years now and is now running a feasibility study on extending it to under-65s. This is not the action of a Government who are unconvinced of the benefits. Will the Government consider running a trial in a defined English health community—say, the Manchester community or perhaps even Cornwall—to determine whether the benefits can be replicated south of the border; and, if not, why not?

[Lord O'Shaughnessy]

I am not sure that a trial is required; what is needed is a systematic change in the way we do things for everybody. I am interested to hear what the noble Baroness says about the under-65s. One thing I can tell the House is that the Green Paper we will publish this year will deal with adults of not only retirement age but working age. Those were two separate streams that were working in parallel, but they will be contained within the same Green Paper.

[Lord Foulkes of Cumnock (Lab)]

With respect, the Minister has not answered the question he was just asked. Free personal care has been implemented to a large extent in Scotland. How is it possible to do it there but not here?

[Lord O'Shaughnessy]

It is the Scottish Government’s decision to do that. Of course, they receive higher public funding per citizen than we do in England, and we make different decisions, just as we have on higher education funding and so on. As I said to the noble Baroness, the details of the proposal will be set out in the Green Paper during the year, and I am afraid that the noble Lord will have to wait.

[Lord Forsyth of Drumlean (Con)]

Will my noble friend resist the temptation to do what has been done in Scotland, which is to announce free personal care, only for people to find that the resources are not there and the care is not available to them because of rationing? We need a properly funded system which will give everyone the quality of care that they need.

--- Later in debate ---

[Lord O'Shaughnessy]

I completely agree with my noble friend. It is right that we have a sustainable system that delivers what it says it will.

[Baroness Boycott (CB)]

Do the Government have any plans to reintroduce a proper meals-on-wheels service? When I worked for the City of London, it came to light that only five boroughs were left providing a rudimentary service, yet malnutrition and dehydration are among the main reasons why old people go into hospital. So we save 15 quid a day maximum and end up with a £700-a-day bed from which you cannot go home. The simple provision of a meal would be both humane and healthy.

[Lord O'Shaughnessy]

The noble Baroness makes an excellent point. I do not know about the distribution of such services, but she is absolutely right that what everybody wants—the cared-for person and those looking after them—is to stay in their homes and remain independent for as long as possible, which is why so much more care must be delivered in the home. I will write to her on the specifics of meals-on-wheels services.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Lord talked about taking a firm policy decision. I have yet to understand why the Government commissioned the Dilnot commission, accepted the principles of its recommendation, legislated to introduce it but then failed to implement it. Why?

[Lord O'Shaughnessy]

The noble Lord is right: the Dilnot commission proposed risk pooling, which we legislated for, and it was decided that it was not the right time to proceed with those proposals. However, I can tell the noble Lord that Sir Andrew Dilnot continues to be involved in the policy-making process, as does Dame Kate Barker, who chaired another review. We want to ensure that we can draw on their expertise as we put our ideas forward.

[Lord Hamilton of Epsom (Con)]

Will my noble friend correct my noble friend Lord Forsyth: there is no such thing as free social care, it is just a question of who pays for it?

[Lord O'Shaughnessy]

My noble friend is absolutely right, which is why there must be a balance between what is paid by individuals and by the taxpayer through the state.

[Baroness Royall of Blaisdon (Lab)]

My Lords, are my ears deceiving me, or did the Minister talk about a sustainable social care system in England? If so, he ought to talk to some people who are seeking social care at the moment, because they and their families think the current system is not sustainable.

[Lord O’Shaughnessy]

What I said was that we need a sustainable system, and that will be the goal of the Green Paper.

[Lord Hain (Lab)]

My Lords, am I the only Member of your Lordships’ House who is not just frustrated but deeply angry that the Government, with all their warm words, consultations, Green Papers and the rest, will not grasp the nettle and recognise that we have to pay for proper elderly care? That will require taxation and taxpayers’ money to be invested in providing respite and a decent future for people who are living in miserable conditions with families stressed beyond belief. The Government ought to get on with it.

[Lord O’Shaughnessy]

I agree with the noble Lord that we need to get on with it and to decide what is the fair burden of “who pays?”. I remind the noble Lord that for many years he served a Government who had umpteen reviews, Green Papers and royal commissions, and did not act. We are trying to grasp the nettle that his Government avoided.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

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

[Baroness Barker (LD)]

My Lords, I wanted to respond in part to the points made by the noble Baroness, Lady Murphy. The original legislation was brought in on the basis of agreement across all parties in the House; so, too, was the report which reviewed the workings of the Mental Capacity Act. There was a unanimous view that DoLS need to be revised; they are not working.

It is interesting that many of the criticisms that have come to light in recent months have been from people who do not defend the current system but who have grave concerns not just about capacity but about some basic assumptions being made—not just about the role of care managers but about how the arrangements will work in practice. There is a quite legitimate view that the legislation will not solve the problem nor necessarily deal with a backlog; it will just shove it somewhere else. We need to think our way carefully through that because, as I will go on to say in debates on later amendments, there is no doubt that there is a watering down in the legal protections proposed by the Government. The noble Baroness and the noble Lord, Lord Hunt, are therefore right that we should examine in some detail exactly what the Government are proposing, because up until this point it has been quite difficult to understand it.

I thank the Minister for sending his letter of 4 October —he did so in the characteristically open and respectful way in which he treats this House. However, I want to ask a question which is germane to what the noble Baroness, Lady Finlay, is trying to achieve in her amendment. The letter states:

“Care home managers will be responsible for arranging the assessments that are needed for the authorisation. In most cases, they will use assessments that have been completed by a social worker or a medical professional or others as part of the care planning process. This means we will reduce the duplication that exists in the current DoLS system and ensure that people access the safeguards they need”.


Exactly what assessments is the Minister talking about? DoLS assessments are different from assessments under the Care Act. It would be very helpful if he could say that, because it is one of the fundamental assumptions that we are all working to and which may turn out to be incorrect.

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

My Lords, I want first to thank noble Lords for their amendments and for their contributions to the debate. Reflecting on our first day in Committee and on Second Reading, it seems to me that an enormous number of the questions with which we are dealing are about the creation or definition of a new role for the care home manager—a number of the amendments that we will consider today deal specifically with it. I shall deal with those and the many questions that noble Lords have asked.

Given that it has been more than a month since we had the first day in Committee, I would like to reflect on some of the other issues that were discussed on that first day to demonstrate that there has been some progress. I will also explain why, although we are undoubtedly dealing with some difficult and complex issues that we know we have to get right, I am confident that if we work together, we can do that. I am quickly going to pick three issues in respect of which there has been some progress.

The first issue that was raised is extending the scope of the Bill to include 16 and 17 year-olds. I said in Committee that we would look at that and I can tell noble Lords that we will bring forward proposals to include that group in the scheme. I will also reflect on the points made by the noble Lord, Lord Hunt, and the noble Baronesses, Lady Thornton, Lady Finlay and Lady Barker, about the role of the cared-for person being front and centre. In fact, that was the one obligation to consult that was not translated from the Law Commission report into the Bill. Clearly, if we want to get the improvements that we want to see, it is essential that that person’s wishes and feelings about proposed arrangements be at the heart of the model, so we will ensure that the Bill reflects this.

[Baroness Thornton]

I am very pleased to hear what the Minister is saying, but he and the Bill team need to talk to the stakeholders because they do not feel heard. In particular, they do not feel heard on this issue. I am counselling the Minister that it is not good that the stakeholders are coming to all of us and do not feel heard.

[Lord O'Shaughnessy]

I am sorry to hear that that is the perception. I know that the team is engaging with stakeholders and, clearly, we will do better. I take the noble Baroness’s advice very seriously. As I said, we will make sure that the Bill reflects the need to consult the cared-for person. We have also taken on board the comments about the phrase “of sound mind”, which is used in one of the amendments later on. That is one reason why we might want to reconsider it. I know that there is a great concern that the language is inappropriate and that creating a new definition might create a gap, but, having looked at this further, we think we would be able to change this language and carry out various other work to reduce the gap to a minimum. That is something that we intend to bring forward, so I hope that that will be welcomed by many people.

I only give those examples to demonstrate that we are making progress as we go along. Perhaps noble Lords will say that we should have done this beforehand, but we are where we are, and we are trying to fix a creaking system and are using our best endeavours to do that. As the noble Baroness, Lady Finlay, pointed out, the latest data suggests that the situation is getting worse, not better. There were a total of 227,400 DoLS applications received in 2017-18 and 125,000 people in the backlog, 48,000 of whom have been waiting for more than a year already. In 2013-14, when the House found the DoLS system in need of reform, there were just 12,400 applications. We know the reason for that leap, but it suggests that this problem is not sorting itself out and it is urgent that we address it. Clearly, that is what we are all endeavouring to achieve in this process.

It is for that reason that I come to the role of the care home manager. That is obviously a critical role to avoid duplication and to ensure that cases that are relatively straightforward can be dealt with at a level that is close to the person being cared-for can be integrated into care planning without involving referrals upwards-even though there will continue to be reviews by responsible bodies and the opportunity for the AMCP to intervene where there is any cause for concern. To make sure that this is a manageable process, it is integrated into care planning. I still believe that that is the right model. We need to determine how this model can be developed and delivered in a way that overcomes the very many concerns, many of which I have sympathy with, that have been expressed in this debate and will I am sure be expressed this afternoon in other debates. The onus is on the Government to lead that process and put as many of those concerns to bed as possible while, as I have said, protecting the model because it gives us a way out of the duplication and backlog that we have now.

I want to address some specific issues raised in regard to care managers. For example, the noble Lord, Lord Hunt, and others raised the point about care home managers being responsible for arranging assessments but not generally for conducting them. In response to the question from the noble Baroness, Lady Barker, that will be the case for all assessments—DoLS assessments and assessments regarding care planning—and it will include determining whether arrangements are necessary and proportionate. However, although those managers have a responsibility to arrange the assessments, the Bill allows for them to be conducted by others involved in the person’s care, who must have a medical qualification or be suitably trained, as will be explained in the code of practice. So while there is that responsibility to arrange the assessments, those assessments will be carried out by somebody other than the care home manager, except in nursing homes, for example, which might be run by a nurse with a suitable qualification. It would be somebody with the appropriate training to ensure that whatever kind of assessment it is, it can be carried out properly.

I understand that that still leaves a small set of assessments which a care home manager could both arrange and carry out, because they had suitable training. If noble Lords are still concerned about the appropriateness of that kind of activity, I would be absolutely willing to discuss how we can minimise any concerns about conflicts of interest. However, as the noble Baroness, Lady Murphy, pointed out, such conflicts of interest happen all the time and we rely on regulation—

[Baroness Thornton]

The noble Baroness, Lady Murphy, is quite right that people such as her good self have to manage conflicts of interest all the time and they do it superbly, but such a conflict of interest is actually to do with profit and earning money. It is to do with keeping capacity in the care home, which creates a profit for that company. It is quite different from a conflict of interest involving what kind of medicine a doctor might prescribe, for example. It is directly due to the fact that a care home manager’s job is to keep their care home as full as possible, so that it continues to make money. Some of them are in not-for-profits and some are in for-profits, but it is an absolutely different kind of conflict of interest.

[Lord O'Shaughnessy]

As the noble Baroness says, there are conflicts of interest of various kinds; the important point is that there are protections against any conflict of interest. Typically, those will be through the regulatory authorities, whether the professional bodies or the CQC, which of course inspects all care homes and has found that 80% of them provide good or outstanding care. I believe that there are systems within the current regulatory framework that will provide for that oversight and prevent conflicts of interest. There is also the fact that the responsible body will carry out the reviews and that there is an opportunity to refer to an AMCP.

[Baroness Barker]

My Lords, the Minister has made several points, each of which needs to be gone over with great care—but I want to take him back to one of them. In his letter of 4 October, he said that the Bill is explicit that a necessary and proportionate assessment must be completed by someone who is suitably qualified and that case law establishes who is qualified to conduct other assessments. However, that is not actually so. What the Bill says in paragraph 16 of Schedule 1 is:

“The determination required by this paragraph is a determination that the arrangements are necessary and proportionate … The determination must be made by a person who appears—(a) to the care home manager, if the arrangements are care home arrangements, or (b) to the responsible body … to have appropriate experience and knowledge”.


So that wording does not say that it has to be a medically qualified person, and I am not sure whether case law establishes that a capacity assessment must be carried out by a nurse or a social worker. Under the Mental Capacity Act, you get best interest assessors who are not medically qualified; that relates to an amendment tabled by the noble Baroness, Lady Finlay. I suggest to the Minister—and I will suggest this quite a lot—that it should be in regulations rather than in the code that the minimum standards for completing assessments should be made.

On the first day in Committee the Minister said:

"Care home managers are already required to make applications and to consider capacity and restriction. Effectively, the new model recognises what they are doing but also allows for a further escalation”.—[Official Report, 5/8/18; col. 1829.]


At the moment care home managers do not make many of the assessments. They do not do capacity assessments. They do not make decisions about whether somebody is objective. It is not up to them whether an advocate comes in to see somebody. It is taking the truth to its outer limits to liken what happens now to what is intended under LPS.

When the Minister uses the word “escalate”, what is clearly understood not just by noble Lords but by stakeholders is that many of the protections, such as access to an advocate or to an AMCP, have deliberately been weakened in the Bill from what they are under DoLS. So I do think the Minister is somewhat overstating the case. That is what has given rise to many of the fears that have been expressed by a remarkably wide range of stakeholders. I therefore take some issue with what he said.

[Lord O’Shaughnessy]

We believe that case law does establish that suitably qualified people need to be appointed. Clearly that is something we need to continue to discuss to persuade the noble Baroness that that is the case, but that is our understanding. As she pointed out, “suitably qualified” can include medical and other qualifications.

On care home managers’ capacity, they are of course carrying out some assessments. The intention is they will carry out more assessments. I agree with the noble Baroness on that point. The point that the noble Baronesses, Lady Barker and Lady Thornton, raised was about the capability and capacity of this group of people to carry out these roles. On our previous day in Committee I committed to explain how we would ensure that that group of people had the requisite training and skills to carry out these kinds of assessments.

The noble Baroness made a point about weakened access. I want to update the House on our thinking about making sure that the person is consulted. We are trying to create a more proportionate system such that, where all those concerned with the care of a person are content that the arrangements have been properly put in place, it does not need to be escalated and reviewed by an AMCP or similar person. The problem we have at the moment is that the system takes every decision to the highest possible level. This is not about weakening access but about trying to have a proportionate system and also about making sure—we will debate this further tonight—that at every stage there are the right opportunities to seek advocacy support and to refer concerns so that an AMCP or responsible body can intervene and review a case if necessary.

Unless we find a way to deliver a more proportionate system we will simply be re-enacting the system we have now, which is not working. This is why I am so keen to work with noble Lords to make sure that we can determine the proper role and responsibilities of, and checks and balances on, care home managers so that we can get the system right and deliver a reform that saves money, enables more people to have their cases reviewed and enables us to make sure that people are protected, which is what we want to do.

[Lord Hunt of Kings Heath]

The Minister read out a list of safeguards that will still be in place despite the streamlined nature of the Bill. The issue I have with that is that the care home manager seems to act as the gatekeeper to many of them. I hear what he says about a streamlined approach, which I agree with, and I also hear what he says about the people who will do the assessment. But there is still a real issue about why the care home manager, of all people, is the person overseeing this whole process. If the Government are really willing to sit down and talk about how to achieve a streamlined programme but continue with some of the essential safeguards that are in the Bill at the moment, clearly the role of the care home manager has to be looked at seriously.

I am not really hearing from the Government whether they are seriously prepared to debate the fundamental construct that they have come forward with. It seems to me that they dreamed up an answer to the problem but did not consult fully—they had selective consultation where individuals were picked off—and the result is that they do not now have consensus support, and the Bill is in trouble because of that.

[Lord O’Shaughnessy]

I say to the noble Lord, as I have said to all noble Lords from the beginning, that we are determined to reform the system so that it delivers what it ought to for people who are being deprived of their liberty. The Government believe that the care home manager, the person ultimately responsible for the care planning and delivery for individuals under their care, must have a central role in arranging assessments when someone has been deprived of their liberty.

I say to the Committee that, given that so much of the success of the Bill will revolve around our ability to define this role properly and to ensure that there are appropriate checks and balances and appropriate training so that it delivers the capacity and capability that noble Lords have talked about, I want to work with stakeholders and noble Lords to ensure that we can do that. I think that is both possible and desirable, but I also recognise that it is not something we have yet achieved. I hope that as we go through our deliberations today and next week, and as we look forward to Report, that is something that we will be able to deal with so that the consensus that the noble Lord talks about currently being absent is something that we can build. On that basis, I hope the noble Baroness will feel able to withdraw her amendment.

--- Later in debate ---

[Baroness Tyler of Enfield (LD)]

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

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

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

[Lord O'Shaughnessy]

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

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

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

[Baroness Thornton]

I hate to interrupt the Minister, but I think he might be answering the next group of amendments. I am not sure—perhaps he is answering both groups together—but it feels as though he is answering a speech I have not yet made.

[Lord Cashman (Lab)]

My Lords, before the Minister gets to his feet, I want to thank the noble Baroness, Lady Finlay, for that clarification. Precisely those concerns about the role of the care manager and the care home were put to us when we met 30 or so representatives from the different services. They also dealt with the potential conflict of interest. As was said earlier by the noble Baroness, Lady Murphy, there are always conflicts of interest in professional fields. Here, we are dealing with a conflict of interest around someone’s deprivation of their liberty, and we need to get it absolutely right. With that clarification, I say that the amendments make us think again about precisely how we can deal with the backlog and how we can be effective but give the individual the rights and protections they deserve.

Finally, I also thank the Minister for his early intervention and assurances around the inclusion of 16 and 17 year-olds and on the phrase “unsound mind”, which I raised during our first day in Committee. I hope that I have not detained him from his notes.

[Lord O'Shaughnessy]

I am grateful to Members of the Committee for their sympathy and for giving me breathing space. I was flustered by flipping forward and almost missing out this group of amendments.

As the noble Baroness, Lady Finlay, said, the issue of concern is the distinction between the person who is responsible for somebody’s care and the person who manages a care home—they are of course different. What we are trying to get right here—I understand that this is what the amendments are exploring—are the relevant responsibilities of those people, bearing in mind that we want to integrate liberty protection safeguards into the process of care planning.

The noble Baroness, Lady Barker, knows huge amounts about this topic and I very much respect her opinion. She pointed out that DoLS assessments are different from assessments under the Care Act. There are some overlaps. As she will know, there are similar questions or parts in both assessments concerning consent, for example, but she is right that they are different types of assessments. I want to explore whether her or indeed the Committee’s concern is that those assessments should not be carried out by care home managers or whether—a more positive view—they should be carried out by certain types of professional. Those are subtly different points. Perhaps I may give her the opportunity to respond in a moment, as I am really keen to explore this matter.

Clearly, we are trying to make sure that those who have the professional expertise to carry out certain types of assessments do so. Equally, we are trying to make sure that a co-ordinating body has responsibility for ensuring that these assessments are carried out in a proportionate way and are included with care assessments in an overall care plan, with people being answerable to the relevant regulatory bodies. If the noble Baroness would not mind, I would be grateful if she, along with other noble Lords, gave her perspective on that. I want to make sure that we determine the appropriate role of the care home manager.

[Baroness Barker]

I thank the Minister very much for that because it enables me to point out something that I am sure he and all noble Lords know—that, when it comes to deprivation of liberty, the body which is ultimately responsible for that in court is not the care home but the state body, which would be the NHS body or the local authority. The Minister said that responsible bodies currently receive from care homes the referral forms and then do a desk-top assessment of those. Yes, they do that; however, they do it in the knowledge that the person will be seen by a qualified person. The problem with the Bill as it stands is that that is not an automatic assumption that a responsible body can make because of the gatekeeping role of the care home manager.

--- Later in debate ---

What I am trying to say is that those assessments should be made by a professional. I agree with the noble Baroness, Lady Finlay, that care home managers will, by necessity, have only some of the information needed to make it. It is therefore right that there should be greater involvement of someone experienced in care planning. I also want noble Lords to be aware that there will be a group of people for which there may have been no care planning: those who are self-funding. We need to get the right people aligned in the right process at the right time. That is, I think, what a number of noble Lords are trying to probe.

[Lord O'Shaughnessy]

That is helpful, and I am sure the noble Baroness, Lady Finlay, will respond to those comments from her perspective. The noble Baroness goes to the point of the noble Baroness, Lady Tyler, about making sure we get the definition of the role of the care home manager right and the various types of case studies. As the noble Baroness said, there are self-funders, those in local authority-funded homes, those in homes funded by the NHS and so forth. In a sense, that is the point I was trying to make in the first group of amendments as I realise that we have not clarified that to a sufficient degree so as to put people’s minds at ease that what we are proposing is appropriate and deals with people’s concerns or exposes those concerns as being well founded and then enables us to do something about it by the time we come back on Report.

I apologise again for the false start in my response. However, this has been a useful debate and I am keen to hear the reflections of the noble Baroness, Lady Finlay, as, I hope, she withdraws her amendment.

[Baroness Finlay of Llandaff]

I thank the Minister; I am very grateful to him. If I have understood it correctly, the noble Baroness, Lady Barker, supports my Amendment 30A, which requires that a registered professional—who, if they really get it wrong, would lose their registration—who has responsibility for the care plan and appropriate experience and knowledge, should make the determination. In other words, it is not good enough just to be a professional. I go back to the example of people with a head injury, who need a highly specialised assessment and overview so that a lead can be taken on the care planning process.

--- Later in debate ---

[Lord O’Shaughnessy]

My Lords, I thank all noble Lords who have tabled amendments in this group. I am grateful for what has again been a high-quality and well-informed debate.

I want to deal with the main issue raised by the noble Baroness, Lady Jolly, at the beginning of her comments, which is the subject of the amendment in the names of the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton. The amendment would clarify in the Bill that a pre-authorisation review cannot be completed by a care home manager, who would be excluded from such a role. I am happy to assure all noble Lords that the role of care home managers in the new system is to provide the statement to the responsible body and, where necessary, to arrange assessments—as we have discussed. Their role is not to authorise arrangements. It would not be appropriate for care home managers to complete pre-authorisation reviews. I assure the Committee that we will make sure that the Bill reflects this. I hope that is at least one brick in the road towards defining the proper role for care home managers. In these amendments we are discussing the degree of independence and making sure that we minimise conflicts of interest.

A later amendment in the name of the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, specifies that the person who completes a pre-authorisation review should also be qualified as a medical practitioner, nurse, social worker, speech therapist, occupational therapist or other profession as may be specified in regulations. I assure noble Lords that we would expect people from those professions to take on this role. That will be specified in the code of practice.

There is also a specific requirement that the pre-authorisation review be completed by somebody not involved in the day-to-day care of the person or delivering treatment to them. That is another safeguard.

Amendments in the names of the noble Baronesses, Lady Jolly, Lady Thornton, Lady Murphy, Lady Barker and Lady Finlay, would make sure that smaller NHS bodies sought external people to carry out reviews. I understand the motivation behind them, but I am concerned that they would introduce complexity and lead to delays. The issue is resolvable within the system proposed because of the independence and quality of AMCPs, or approved mental capacity professionals—referred to the by noble Baronesses, Lady Murphy and Lady Finlay. They will consider all applications to authorise a deprivation of liberty where it is reasonable to believe that the person objects to proposed arrangements, or in other complex cases. Reflecting on a point made by the noble Baroness, Lady Thornton, we may need to provide more detail and studies of the kind of cases that we are talking about or envisaging, where an AMCP would be involved in the review. I take very seriously the point made by the noble Baroness, Lady Thornton, about the consequence of that, given that the responsible body will have the legal duty to ensure that it is carried out properly. I find that reassuring because it will not be a tick-box exercise: it will need to make sure that the assessments have been carried out properly. That was one of the questions put by the noble Baroness, Lady Meacher, when she asked about the access of the responsible body to such assessments. It will mean that that body will probably err on the side of caution, but it will also mean that we will have a more proportionate system than we do now. That is to be welcomed. Those AMCPs, as has been pointed out, could be salaried professionals within a local authority; they might even be close to commissioners, but their role will be independent, just as best-interests assessors are independent, and they will be responsible to their own professional bodies. That is something in the system on which we can rely.

The noble Baroness, Lady Meacher, and other noble Lords mentioned advocacy, and I know that we will be turning to that later. It is important to state—not only as I did at the beginning of the first group about making sure that the person involved is properly consulted—that they have the right to request a review, that they have access to representation from an independent mental capacity advocate or another appropriate person, and that ultimately those responsible for their welfare and care can challenge the authorisation in the Court of Protection.

I know that there are a couple of outstanding issues. The noble Baroness, Lady Jolly, asked if we could look at fee levels and that is certainly something that I will look at. The noble Baroness, Lady Meacher, asked how IMCAs are paid for. That is currently allowed for in the Mental Capacity Act and that is not changed by this Bill, but I will write to her to clarify that.

I hope that this response—particularly about the role that care home managers will not play in preauthorisation reviews—provides reassurance that we are conscious of the need to provide that independence in the system to reduce, and indeed remove, conflicts of interest and perceptions of conflict of interest wherever possible. As ever, as has been the theme of today, I continue to want to work with all noble Lords to ensure that we determine that the system, which still has great merit, is able to respond both to the needs of the people who are being cared for and to any concerns on behalf of those people from their families and stakeholders that there are conflicts of interest. I believe that the pieces of the puzzle are coming together, but I am conscious that we need to continue working together to complete it. On that basis, I hope the noble Baroness will feel able to withdraw her amendment. I look forward to further discussions on this topic to make sure that we are able to introduce as much independence as possible into the system.

[Baroness Jolly]

I thank the Minister for his remarks. The only point I would like to make at this stage is about the use of the code. The code offers something that might not be permanent, whereas anything that goes into legislation is permanent, so I would just be wary of that. I will study Hansard carefully, but for the moment I beg leave to withdraw the amendment.

Grenfell Tower: Toxins

Lord O'Shaughnessy Excerpts

Monday 15th October 2018 Lords Chamber

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I beg leave to ask a Question of which I have given private notice.

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

My Lords, human biomonitoring—the measurement of chemicals in biological tissue such as blood or saliva—cannot be used to determine whether those who were exposed to contaminants in the incident 16 months ago suffered any damage. That is because results from this type of analysis provide information on total exposure over many years which could be influenced by a multitude of factors not related to a specific period of exposure. In addition, there would not be a baseline—that is, results prior to the fire—against which to compare new results. Consequently, Public Health England does not recommend human biomonitoring in this scenario, although other environmental monitoring continues to take place.

[Lord Kennedy of Southwark]

My Lords, can the noble Lord say whether it is true that Professor Anna Stec, a world-leading expert on toxicology, has privately urged Public Health England and the Department of Health to organise a range of tests to ensure that any potential health risks can be properly assessed and that Public Health England has decided not to do that until receipt of Professor Stec’s report some time next year? Is he also aware of reports of what is being called the “Grenfell cough”, which Professor Stec has said seems to indicate a high level of atmospheric contaminants?

[Lord O'Shaughnessy]

The Government are of course very concerned about all the consequences for mental and physical health that may result from the Grenfell fire. As the noble Lord will know, there has been a huge concerted effort to try to ameliorate those.

The noble Lord asked about environmental monitoring. Since summer 2017, monitoring has been ongoing, with weekly reports published by the London Air Quality Network, which is operated by King’s College London and is, therefore, at arm’s length from government. The reports provide information on the levels of particulates, asbestos and other contaminants in the air. The London Air Quality Network has found no evidence that the levels are above average for London, but monitoring continues. Public Health England is in discussions with the local authority and the local NHS trust to make sure that any signs of public health threats, from whichever area they emerge, are looked into seriously. However, we have not yet had those findings from the professor, and Public Health England is very keen to see that information as soon as possible.

[The Countess of Mar (CB)]

My Lords, the concentration has been on the chemical effects of the tower cladding. Does the Minister appreciate that thousands—and I mean thousands—of chemicals are involved in furniture and furnishings being burned? While the air may be clear, I understand that the soil has been contaminated, and it is not just by inhalation that people can be poisoned but also by skin absorption. Will the Minister please ensure that GPs and others treating people from this area are closely monitored? It is not necessary for them to have blood tests but, if their health deteriorates, as much as possible must be done to help them.

[Lord O'Shaughnessy]

I completely agree with the noble Countess that toxins can be found in different media, soil and air being two of those. That is why Public Health England is keen to see the results from Professor Stec’s work. She has said that it is not yet finished, and we need to see its outcomes. It is one of many pieces of work going on to make sure that, if there are any concerns about the near environment, they are spotted and dealt with before they turn into public health threats.

[Baroness Pinnock (LD)]

Does the Minister agree that it is understandable that residents who were involved in the dreadful Grenfell fire, and the emergency responders, are additionally anxious having read reports in the national papers and other media that carcinogenic toxins have been found by the investigating professor, and that additional anxiety is exactly what they do not need? Does he agree that it is therefore important that the Government, through Public Health England and other institutions, respond in a positive way to their fears? I understand that, at the moment, the Government are expecting people to wait for six or 12 months, but those involved are anxious that carcinogenic toxins resulting from the fire will impinge on their good health.

[Lord O'Shaughnessy]

I completely concur with the noble Baroness on the levels of anxiety. We know that a number of people who are affected, directly and indirectly, are suffering from post-traumatic stress disorder. The north-west London NHS trust, which delivers mental health services, is dealing with thousands of people, not just those who live locally but those who worked on the site of the fire. I agree that there is a need to reassure people, wherever possible, who have been through this difficult and traumatic experience. I encourage the noble Baroness and all noble Lords to look at the environmental monitoring report on the ongoing levels, which is published weekly. It provides a huge amount of detail and is carried out independently. It does not, at this stage show any cause for concern regarding higher-than-average levels of asbestos, of which none has been found, and other toxins. However, that monitoring has to continue, and as soon as any sign is captured and verified as being statistically significant, it needs to be acted on. That is why we are so keen to see the professor’s work.

[Lord Shipley (LD)]

My Lords, the Minister indicated that we should wait for the formal publication of Professor Stec’s report. However, she has briefed officials in a variety of agencies about the dangers that she thinks are apparent. Given that toxins have been found up to a mile away from the Grenfell Tower site, and given that the absorption of toxins through the skin is a serious danger—which it seems is not being checked for—would it not have been wise for NHS England, which must have been aware of this pending report, to have announced last week that, rather than just provide screening for survivors to assess the effects of smoke inhalation, it would assess for skin absorption of toxic material?

[Lord O'Shaughnessy]

It is not about waiting for the report. Public Health England met with Professor Stec in February of this year and asked for specific details of her research. Repeat requests have been made and I am told by Public Health England that it has yet to receive those details. Of course, there is a need to get good information and to make sure it is reliable, so those requests continue. I can reassure the noble Lord that no one is waiting around looking for information and that extensive monitoring is going on. That kind of information is requested because if there are causes for concern—as seems to be the case from the media reports—they can be investigated urgently.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

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

[Baroness Stedman-Scott (Con)]

My Lords, I thank all noble Lords for initiating this discussion about approved mental capacity professionals and providing me with an opportunity, for the first time ever, to respond to amendments to a Bill.

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

Hear, hear.

[Baroness Stedman-Scott]

I thank my noble friend for that intervention. I have been hugely impressed by the commitment on all sides of the House to interrogate this Bill to make sure that it is fit for purpose and does the right job for the people we all seek to serve.

The amendments from the noble Baronesses, Lady Thornton, Lady Jolly and Lady Finlay, would have the effect of requiring that, in each and every case referred to an approved mental capacity professional, the AMCP would have to explicitly consider whether the case should be referred to the Court of Protection. We are clear that if a person wants to challenge their authorisation in the Court of Protection they have the right to do so. However, part of the reason we are creating the approved mental capacity professional role is so that cases where the person is objecting to the proposed arrangements can be considered outside having to go court, which we expect to be in line with the people’s wishes. It is always good to remind ourselves—as has been done many times during today’s business—of what we are trying to achieve and what we are trying to avoid. If we can avoid going to court, as has already been said, but serve people well, then we will have achieved something.

I am conscious that we do not want to create a situation where approved mental capacity professionals defer their responsibility to the Court of Protection and individuals have to undergo court procedures unnecessarily, particularly as we know this can be burdensome for people. In the short debate about this group of amendments, we have all agreed that we should avoid court at all costs, not only fiscally but because of the burden, stress and blockages that it puts into the system. However, I would like to reassure noble Lords that the responsible body has a responsibility to ensure that individuals who want to bring a challenge, in line with their Article 5 rights, have access to the Court of Protection, and the approved mental capacity professional would be important in identifying where this will be the case.

The amendment of the noble Baroness, Lady Barker, would have the effect of requiring the approved mental capacity professional to meet with the cared-for person unless there is agreement with consulted persons that it is not necessary or appropriate to do so. We are clear that our intention is for approved mental capacity professionals to meet with the cared-for persons in almost all cases. Exceptions would be extreme circumstances, such as if the cared-for person is in a coma or clearly expresses a wish that they do not wish to meet with the approved mental capacity professional. I am sure that noble Lords agree that in these exceptional cases it is right that the approved mental capacity professionals do not meet the person.

To reflect this, we have imposed a duty to meet the person where it appears to the approved mental capacity professionals to be appropriate and practical to do so. I understand that the intention of the amendment is to limit the circumstances in which an approved mental capacity professional does not meet with the cared-for person. However, I am conscious that there could be situations—for example, where the AMCP and all consultees bar one agree that it was not necessary or appropriate to meet the person. However, if one consultee did not agree, it would mean that one consultee would effectively have a veto and the AMCP would be required to meet the person. We will ensure that guidance regarding that rare circumstance where it is not practical and appropriate is included in the code of practice.

The amendment of the noble Baronesses, Lady Barker and Lady Hollins, and the noble Lord, Lord Hunt of Kings Heath, requires the person completing the pre-authorisation review, where this is not an approved mental capacity professional, to meet with the cared-for person regardless of whether this is appropriate or practical. We appreciate that there may be circumstances—

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[Baroness Hollins]

My Lords, these amendments in the name of the noble and learned Lord, Lord Mackay, and myself are about mediation, conflict and decision-making. It is a complex area and made more complicated now that the Bill is being extended to 16 and 17 year- olds. Rather than taking time in your Lordships’ House this evening, I believe the noble and learned Lord, Lord Mackay, would prefer to discuss this matter with the Minister and decide whether the Bill is the right place to progress this issue. I am grateful to the Minister for already having agreed to discuss it. I reserve the right to return to this on Report if no progress is made.

[Lord O'Shaughnessy]

We have had a discussion about the issues under consideration here, which are in some ways prompted by the experience of the Gard family and their son Charlie; we are all aware of the tragic circumstances at the end of his life. We agree with the noble Baroness and my noble and learned friend that these are incredibly important issues, and we are grateful to them for tabling the amendment. However, I think this would be best pursued outside of the confines of the Bill. I give her my commitment to do that; I am keen to work with her and with all noble Lords who have a particular interest in this issue, to ensure we come to the right conclusion. On that basis, I am sure she will withdraw the amendment.

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[Baroness Finlay of Llandaff]

It might be of assistance if I intervene here. If the noble Baroness is referring to amendments in the group beginning with Amendment 58A, I understand that if she does not speak to them now, they can be dealt with in the next group.

[Lord O'Shaughnessy]

I am no expert in parliamentary procedure but my understanding is that, as they come after the amendment we are considering now and indeed the one that we would consider next, they can be retabled.

[Baroness Barker]

I am grateful. I will do that.

[Lord O'Shaughnessy]

I am grateful to the noble Baroness, Lady Finlay, for initiating this discussion. Clearly the purpose of her amendments is to make sure that an authorisation cannot be renewed if it wholly or in part ceases to have effect. In some cases, an authorisation will not be renewed if in part it is no longer valid, but there might be other cases where minor changes to the restrictions are needed and that should not prevent an authorisation being renewed. We want to provide further detail in the code of practice and I would appreciate the opportunity to work on that with her.

The noble Baroness has also tabled amendments outlining that authorisation records should detail when arrangements are not authorised or if they are authorised with conditions, and that in care home cases responsible bodies should consider other relevant information, as well as information provided by the care home manager. I can tell her that in some cases if arrangements are not authorised, it might be useful to include them in the authorisation record. However, given the debate that we had on the previous grouping about the general trend towards the inclusion of data or information within records that are then made available to patients, their families and so on, I want to reflect on whether they should always be included and I will come back to that on Report.

The Bill allows the responsible bodies to consider information other than that provided by the care home manager, and further detail on the circumstances and kinds of information will be provided in the code of practice. On that basis, I hope that the noble Baroness is reassured and will feel able to withdraw her amendment.

[Baroness Finlay of Llandaff]

I am most grateful to the Minister for that clarification. I agree that some parts of this would be better in the code of practice than in the Bill, particularly because they might need modification as experience develops. If they are in primary legislation, we are effectively stuck with them for a time, whereas otherwise they can be altered. Therefore, I beg leave to withdraw the amendment.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

Monday 15th October 2018 Lords Chamber

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

Well, I shall see whether I can lift the gloom from the noble Lord. I think that there was a slight mischaracterisation, in that the Government are listening. Indeed, we have responded and made changes. I hope that in responding to these amendments I will be able to show further that we are taking a positive and constructive view on improving the Bill, making sure not that it removes rights but quite the opposite—that it provides access to liberty-protection safeguards for people who do not currently enjoy them.

I begin by thanking the noble Baroness, Lady Barker, for leading the debate and I also thank other noble Lords. I shall go directly to her Amendment 17. Of course she is right, as are other noble Lords, about the arrangements for the cared-for person—person P—being written. I am very happy to confirm to all noble Lords that that is our intention and that we will make sure that the Bill reflects it.

With regard to other amendments, the entire thrust of policy across government, whether in health and care or anything to do with data, is about providing more people with the information that the state holds about them. I can give the absolute commitment to noble Lords that that is what we intend to do in the Bill and in changes that we make to the Bill going forward. It is essential that cared-for persons, their families, appropriate persons, IMCAs and so on are given full information about their authorisation and their relevant rights, including their rights to review and appeal. I can tell noble Lords that that will be set out fully in the code of practice.

On the code of practice—I can see the noble Baroness, Lady Barker, grimace—I will say two things. First, it is a statutory code of practice involving a consultation arrangement and a laying before Parliament—noble Lords know how these things work. The noble Baroness asked about the force of the code of practice and it is true that the Bill says “have regard to”. But case law confirms—I am happy to write to noble Lords with this opinion—that the code of practice must be followed unless there are cogent reasons not to do so. That means that there will be some occasions when the code is not practised, but those not following it will have to justify, potentially in court, why they did so in the interests of a person’s care. So the code of practice is statutory and it has very great force. It is worth pointing that out, not least because on this group and future groups we will be talking about information or an instruction that will be within the code of practice. I will take the opportunity to make that clear at this point.

[Baroness Barker]

I thank the Minister for that. This is a very important part of our discussion. I have two questions which I am absolutely certain he will not be in a position to answer, but I hope that he will write to me. First, how many cases of a failure to follow the code of practice rather than a failure to follow the law have gone to the Court of Protection? Secondly, can the Minister confirm that the original Mental Capacity Act code of practice was never reviewed and that it is not possible to make individual amendments to a code of practice: it has to be changed in its entirety? I shall not put the Minister on the spot now but we need to return to those matters in a further discussion because they are really important.

[Lord O'Shaughnessy]

The noble Baroness is quite right: I do not have the answers to those questions, but they are very good questions and I will make sure that we answer them for noble Lords in a communication following this debate.

On the point about access to information, I think that two other aspects are worth considering. One is that under the general data protection regulation, which came in on 25 May this year, the cared-for person or their family, IMCA or somebody holding a lasting power of attorney—that is, somebody acting on their behalf—will, and indeed does, have access to their authorisation record. I believe, although I will clarify, that that has to be done free of charge. I know that that is certainly the case with medical records and GPs. In terms of access to information, that is an important advance.

Again, I want to get further clarification on exactly what is involved, but the NHS and the LGA have created a programme of local health and care record exemplars. It happens in a few parts of the country and it is about creating a single health and care record that contains all the information about a person’s health and care. Obviously it spans both health and care settings. That will be available not only to inform the care carried out by a clinician or someone in a caring role but information to that person and those with responsibility for them.

That obviously has huge implications for improving joined-up care. It is an important programme by which we set a lot of store. What I will take away from this discussion is the need to ensure that what we are describing here, around access to information by the cared-for person or by those caring for them, ensures that they will have access to the local health and care record, which would contain the kind of information we are talking about. If it does, we have a vehicle; if it does not, we need to think about what the right vehicle is.

The amendments in this group also support the IMCA to help the cared-for person understand their rights under liberty protection safeguards. I can confirm that this will be a key role for the IMCA. It will be defined in their job description and, again, contained in the code of practice.

Once again, we have already made changes, and are committing to changes in the Bill, that will deal with the questions raised about access to information. I absolutely concur with the sentiment behind the questions. There is good reason to believe that expanding programmes and mechanisms in the system will give us the opportunity to do that, and in a much more thorough way than is done now. I want to continue to work with noble Lords to make sure that we get that right as we move towards Report, so that it is properly reflected in the Bill. I hope that, on the basis of my comments and reassurances, the noble Lord, Lord Touhig, will feel a little less despairing and the noble Baroness will be prepared to withdraw her amendment.

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[Lord O'Shaughnessy]

I shall do my best. I thank the noble Baroness, Lady Finlay, for continuing to make sure that we grapple with the most difficult questions, as the noble Baronesses, Lady Murphy, Lady Barker and Lady Thornton, have enjoined us to do. It must be right that we at least give it a go while recognising that this is a challenging topic.

The amendments of the noble Baroness, Lady Finlay, are about restricting liberty protection safeguards to certain circumstances where physical restrictions are imposed, and outline the liberty in which the feelings of the cared-for person should be protected. Her intent was not to provide that definition but to provide a platform for us to have a discussion about the definition. We have been strongly encouraged by the Joint Committee on Human Rights to do so and, as I said in our previous discussion on this topic, we are considering the Joint Committee’s findings very closely.

I sense, and have sensed throughout, that there is a desire among noble Lords to provide such a statutory definition within the Bill. Obviously there are huge benefits of doing so. It would provide clarity; the noble Baroness, Lady Murphy, mentioned avoiding a postcode lottery; and families, professionals and the people themselves would benefit. There are compelling arguments for it. At the same time, we are weighing it against the safeguards that cared-for people need and ensuring that we comply with our obligations under the ECHR.

We obviously have not got there yet—no one is suggesting that we have—but I want to use this spirit of determination and problem solving to see whether we can get to that point—hopefully by Report. It is a topic for a longer discussion, which does not need to be in this Chamber, but we have to recognise that there is not a consensus among stakeholders. That is a challenge. We need to consider whether we can bring the entire disparate community along with us, otherwise we will have a problem and not solve the challenges we are dealing with.

I will commit to all noble Lords to see whether we can get to that point. There is a hierarchy about the ways in which we can achieve it—in the Bill, through regulation or through a statutory code of practice—but at the very least we should make a determined endeavour to do it. So I am happy to give that commitment. As noble Lords would expect, the Government have been working hard on this. We would like to share our thinking with noble Lords and start to build that consensus in the House and beyond to see whether we can get to that point. I hope that will give noble Lords the reassurances they are looking for.

On the substance of the amendment of the noble Baroness, Lady Murphy, that depriving a person of their liberty in emergency and interim cases should benefit the person and that that deprivation, life-saving treatment or doing a vital act cannot be done without depriving a person of their liberty, the Bill already states that steps depriving a person of their liberty must be necessary in order to give life-sustaining treatment, and the Mental Capacity Act requires that such steps must be in a person’s best interests. So that reassurance is there.

[Baroness Murphy]

I believe that it is the amendment of the noble Baroness, Lady Finlay.

[Lord O'Shaughnessy]

I thought Amendment 81 was tabled in the name of the noble Baroness, Lady Murphy. Anyway, it does not matter in whose name it was, those reassurances are in the Bill. If there are any niggling concerns about that we can, of course, make that clear offline. On that basis I hope the noble Baroness will be prepared to withdraw her amendment and begin those discussions in earnest.

[Baroness Finlay of Llandaff]

I thank the Minister for that reply. Fuelled by the optimism of my noble friend Lady Murphy, we are moving forwards, and as the Minister has said, we need to give it a go but we must also take all the stakeholders with us. We will need some careful round-table discussions about this. I take completely the point about medication, and not using that word in the amendments I have drafted is an omission that needs to be corrected.

When I was considering emergencies, I was concerned about situations that are not necessarily life-threatening but still constitute some kind of emergency. They arise quite commonly in social care out in the community and emergency primary care settings. I do not think that they can be ignored when we are looking at a definition. We have to be quite broad, otherwise we might suddenly find that a gap emerges again, which would not be helpful. I look forward to thinking with others and I hope that they are more successful than I have been today. I beg leave to withdraw the amendment.

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[Baroness Thornton]

Yesterday or on Friday—whenever it was—we received a very helpful briefing from the Royal College of Psychiatrists. I found what it had to say on Amendment 22 very useful:

“The Royal College of Psychiatrists believes that only a ‘Registered Medical Practitioner’ should be able to determine whether an individual has a ‘disorder or disability of the mind’ … Currently the authorisation arrangements in Part 2 of the Bill say that a capacity and medical assessment has to be made, but does not say who has to make it. It is likely that the Government is assuming that this would be carried out by a ‘Registered Medical Practitioner’ but it would be helpful to have it on the face of the Bill.


The JCHR report was clear that in order to comply with human rights law, any deprivation of liberty under Article 5(l)(e) requires ‘objective medical evidence of a true mental disorder of a kind or degree warranting compulsory confinement, which persists throughout the period of detention’.


Given this requirement for ‘objective medical evidence’, there needs to be a guarantee in the Bill that only a Registered Medical Practitioner with appropriate training has the power to determine whether someone has an ‘unsound mind’ or ‘mental disorder’”.

[Lord O’Shaughnessy]

I am very grateful to all noble Lords for tabling amendments on this very important topic of making sure that when these decisions are made and the assessments of them carried out that they are done on the best possible evidence. That informs all the amendments in this group.

We have talked already about the role of the care home manager in arranging assessments and providing a statement to the local authority while the assessment is conducted by a suitably qualified professional. Clearly we will explore that further following the debate tonight. It is also clear that in many cases care home managers will be using assessments that have already been conducted, wherever possible, ensuring that we reduce duplication. There is clearly a balance between making sure that we have access to the best possible information and not creating extra burdens on the system to duplicate work where a previous assessment would be useful, up to date and valid.

I will deal with the amendments in turn and try to think about how we can get that balance. Amendment 21 in the names of the noble Baronesses, Lady Barker and Lady Jolly, would remove the ability of care home managers to rely on previous medical and capacity assessments. It would mean that assessments could be relied on only if responsible bodies judged it appropriate. Our belief is that where valid assessments are already in place and have been completed by a suitably qualified professional—such as those completed as part of a care plan—they should be used. We are concerned about the implications of the amendments in this group because of the duplication that could arise, particularly perhaps if there is a difference between assessments and each person who carried out the work is still of the view that their judgment was the correct one. We need to be concerned about that as we are trying to simplify the system.

We also do not believe it would be proportionate to expect care home managers to seek permission from a responsible body on every case where there is a previous or equivalent assessment, especially when it is clear for example that somebody has a lifelong diagnosis such as a learning disability and a previous assessment can be reasonably expected to provide valid and reliable evidence of this.

I understand the intention of the noble Baronesses in wanting to avoid care home managers relying on previous assessments when it is not appropriate to do so, which I think is what has informed these amendments. That is where the responsible body reviewing is incredibly important. Generally speaking it will be a senior social worker who will be able to examine the case and if there is an overreliance on past—particularly quite long-dated—assessments in that statement, it will be a flag for escalation to the AMCP.

I understand why there is concern about giving too much leeway to the care home manager, but I also think the amendment would deliver a disproportionate system. It would not provide the degree of flexibility we want and therefore we intend to outline the appropriate use of previous assessments in the code of practice. I think that that is the appropriate vehicle.

Amendment 22 in the name of the noble Baroness, Lady Tyler, seeks to ensure that medical assessments are completed by a registered medical practitioner. Clearly our intention is that that should be the case, and that the person who conducts the medical assessment must be suitably competent. I use that word rather than “qualified” and we will set out further detail in the code of practice. As was stated by the noble Baroness, Lady Thornton, and others, human rights case law already requires that a deprivation of liberty must be based on objective medical expertise. That can be done on a competence basis rather than on qualifications. Qualifications change whereas competencies, by and large, remain the same. That is why we will focus on a competence-based approach rather than listing professions in a code of practice. A code of practice gives us the ability to exemplify the kind of competencies we mean without being restricted, which would be the case if it were in the Bill, to only certain categories of worker, which might change over time.

Amendment 23 in the names of the noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, creates a duty under liberty protection safeguards to assess whether steps to establish supported decision-making are practical. As I am sure noble Lords know, supported decision-making is already part of the law, and indeed it is the second principle of the Mental Capacity Act. Perhaps one of the reasons that this amendment has come forward is that this is an amendment Bill and therefore there can be a dislocation sometimes between what we are considering and the wider context.

It is already the case that steps should be taken to support people to make their own decisions. We have not brought forward the Law Commission’s recommendation to set up a formal supported decision-making scheme because that legal entitlement already exists. Wherever possible, of course, people should make decisions for themselves and be supported to do so. However, as I say, the second principle of the Mental Capacity Act provides that legal force and in the code of practice we will set out the guidance about how that should work in principle.

The noble Baroness, Lady Thornton, introduced Amendment 24, which describes the process of how someone should be deprived of their liberty. It was helpful for her to refer to the NICE guidance on this. We have already talked tonight about a written record—I think that goes some way—and the basis on which it is shared, which is also important. I will provide more detail on that. The concern about the way that this has been framed is that it is too specific to be in the Bill and the process and the terms may change over time. Although I am sympathetic to the idea that there needs to be clarity about what the appropriate process is, that is best done in the code of practice rather than in the Bill.

The noble Baroness, Lady Finlay, introduced Amendments 24A, 24B and 24C. I need to reflect further on the implication of these amendments because the way she described them was perhaps not how we had previously interpreted them. My only concern is that one of the effects might be that only responsible bodies could decide to rely on previous assessments, because she has taken care home managers out.

Amendment 25 from the noble Baronesses, Lady Barker and Lady Jolly, would require the care home manager or responsible body to have regard to any change in a person’s circumstances when seeking to rely on a previous or equivalent capacity or medical assessment. I agree with the intention of the amendment, which is to ensure that before relying on a previous or equivalent medical or capacity assessment proper consideration is given to whether it is reasonable to rely on it. The Bill allows for this already. Such an assessment can be used only if it appears to be reasonable to rely on it. As we have said, responsible bodies when reviewing such statements are obviously legally liable for making sure that the reasonableness test is carried out. Again, we will provide more detail in the code of practice about where it is reasonable to rely on an assessment.

The noble Baroness talked about the difference between condition and circumstances, or the complementary nature of the two. If circumstances change and this affects a person’s capacity or diagnosis, it would also need to be considered before relying on previous or equivalent assessments. We are reflecting at the moment on whether the Bill as drafted achieves our aim here. So this is a topic for a further conversation to make sure that we can get the appropriate balance in this area without introducing too many additional terms that might in themselves provide greater unclarity—which of course is something we are trying to avoid.

Amendment 30 deals with less restrictive arrangements. This is a principle of the Mental Capacity Act and the Bill makes no change to it. Again, we will provide more detail in the code of practice as to how the new model will work in the wider health and care system, including the Mental Capacity Act and the Care Act.

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[Lord Hunt of Kings Heath]

No, it was not.

[Lord O'Shaughnessy]

In which case I will not go any further.

On that basis, I hope that I have dealt as thoroughly as I can with the substance of all the amendments in the group. Clearly, we want to make sure that the evidence is as good as possible when making these very important and serious decisions. As I said, in this instance the code of practice is a good vehicle for much of this work. On that basis, I hope noble Lords will not press their amendments.

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[Lord O'Shaughnessy]

My Lords, I thank all noble Lords who have laid these amendments and contributed to this debate. The issue of training has obviously had a high profile in our discussions, from Second Reading onwards. I think we are all agreed that we can move to the system we want only if the people involved in delivering it have, in the previous words of the noble Baroness, Lady Thornton, the capacity and capability to do so. Again, I would like to deal with these amendments in groups and with other issues mentioned in the debate as they arise.

Amendments 60, 61 and 61A, tabled by the noble Baronesses, Lady Barker and Lady Finlay, would require local authorities to appoint a named officer responsible for the training, conduct and performance of approved mental capacity professionals and would give the Government regulation-making powers to prescribe the period of time within which an individual must be reapproved to continue to practise as one. The Bill is already clear that local authorities have the responsibility of approving individuals to become approved mental capacity professionals; subsequent regulations will make provision for training and eligibility for approval. Of course, this will build on the existing best interests assessor system that has been referred to, and which I believe is generally held in high regard.

The regulations will allow for a prescribed body to specify their training; in England, this is expected to be undertaken by Social Work England—the noble Baroness, Lady Meacher, raised a question on that. However, the local authority will clearly need to monitor the post-education training, conduct and performance of approved mental capacity professionals in order for such a professional’s approval to be continued. It is correct that we have not set out in the Bill how this should operate. The reason for that is to allow local authorities to decide for themselves how to organise and manage it, assisted, where relevant, by the code of practice.

With regard to the reapproval of AMCPs and in regard to Amendment 62, tabled by the noble Baroness, Lady Barker, we do not think it is necessary for the Government to give themselves this regulatory power to prescribe timeframes. Instead, it can be set out in the code of practice, which again is suitable for something as specific as this.

Many noble Lords, led on their amendments by the noble Baronesses, Lady Hollins and Lady Jolly, highlighted that, as we know, a huge amount of work will be required in the health and social care sector to implement the new system. Amendment 91, tabled by the noble Baroness, Lady Hollins, would require the Government to publish a training strategy. This does not in my view need to be set out in the Bill, but I can give a commitment this evening that a training strategy will be published within six months of the Bill’s passing.

Amendment 90, tabled by the noble Baroness, Lady Jolly, would give the Government regulation-making powers to prescribe the body responsible for training care home staff. Clearly, we will need to have and are committed to providing the necessary training to care home managers for their new role. That will include developing a range of training materials, co-produced of course with the sector, and other support for a range of roles in the workforce. We will be providing our statutory code of practice and other guidance to do that. We are already working with the Association of Directors of Adult Social Services to help shape this work. We are also beginning to explore a comprehensive programme of work on supporting this model by working with Health Education England, Skills for Care, the Social Care Institute for Excellence, the royal colleges and others. It is clearly important that we work with all providers to ensure that we have the right training strategy and deliver it through training providers endorsed by Skills for Care, which is the Health Education England-like body for social care, as noble Lords know.

We of course recognise that there is a cost to the sector. The noble Lord, Lord Hunt, and the noble Baroness, Lady Hollins, asked about the half a day’s training. We clearly recognise that more training than that is required. The noble Baroness, Lady Barker, asked about some of our assumptions on the 10% and I will come to her with more detail on the reasoning for that. In a regulatory impact assessment, it is always the case that you produce a version of what you think might happen. The reality will no doubt be somewhat different, but we recognise that there will be a cost for the sector to prepare to implement this new system, once it comes into being.

We are therefore considering what is called a workforce development model to ensure that that training is of high quality. This would allow us to provide financial help to providers to assist with training and events. The fund is flexible and would enable employers to support their staff, not least in providing backfill for them while they undertake training. It could also be used to pay for an instructor to conduct the training. I know that there is a desire to understand more not just about training but about how we will fund it. I can reassure noble Lords that there will of course be a comprehensive and properly resourced training programme in place.

I do not believe that regulation-making powers or details are required in the Bill, but I also recognise that the proof of the pudding is in the eating. As we have discussed since Second Reading, noble Lords will want to see much more detail about our intentions in this regard. What I can say is that I will do everything I can to facilitate that development, so that there can be the right degree of confidence that the training programme and its funding will be forthcoming to support the implementation of the new system.

Noble Lords raised a few other issues in the discussion. The noble Baroness, Lady Meacher, said that we need greater clarity on the roles of various people. I think we covered that in our earlier discussion of care home managers. The noble Baroness, Lady Hollins, made an excellent point about making sure that training includes the skills to work with working-age adults with learning difficulties. Using those people and their families to co-produce training is also an absolutely excellent idea, which I would like to take up with her.

Perhaps I may deal with two other issues. First, the noble Baroness, Lady Murphy, talked about cultural change. Training can help but of course it does not deliver a cultural change. We have to think carefully as we go forward about the other levers that exist to any Government to provide that cultural change that go beyond the standard ways of doing things. I would be interested in pursuing that discussion with noble Lords outside the Chamber.

Secondly, the noble Lord, Lord Hunt, asked about cost shift. There will clearly be a redistribution of responsibility, but the intention of these changes is that they should deliver a system that not only delivers justice to people who are currently denied it but does so in an affordable way, moving funding away from duplication and complexity towards greater caring. The intention of the Bill is not to rob Peter to pay Paul, as it were, but to ensure that there is a properly resourced and deliverable system and that its different parts are trained and capable and have the capacity to deliver the responsibilities that we are asking them to fulfil.

On that basis, I again thank noble Lords for a very useful discussion. There is clearly more detail that we can and will want to provide as the Bill progresses. I hope that noble Lords will feel content not to press their amendments.