Health: Contraceptive Services

Lord O'Shaughnessy Excerpts

Thursday 11th October 2018 Lords Chamber

[Baroness Thornton]

To ask Her Majesty’s Government what action they intend to take to protect women’s sexual and reproductive health services following the findings of the Advisory Group on Contraception, published in September, that nearly 50 per cent of local authorities have reduced the level of contraceptive services delivered since 2015.

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

My Lords, the Government have mandated local authorities in England to commission comprehensive open-access sexual health services, including the provision of free contraception. Contraception is also widely available free of charge through general practice. Working with Public Health England we are considering ways to promote increased access to the full range of contraception.

[Baroness Thornton (Lab)]

I thank the Minister for his Answer, but it is not good enough to place the responsibility on local councils when there has been a £600 million cut by Public Health England overall over the past few years. Local authority budgets for sexual health services have been reduced by £30 million in the past two years. This is a false economy. Every pound spent on contraception saves £9 in averted costs as well as huge personal and family costs. We are seeing some of the consequences already. According to the Terrence Higgins Trust there has been a 20% increase in the diagnosis of syphilis and gonorrhoea. When will the Government replace the lost funding now that we have learned that austerity is over and make sexual health services a public health priority again?

[Lord O’Shaughnessy]

I concur with the noble Baroness about the importance and benefits of contraception. It is a success of sexual health services that the use of long-acting reversible contraceptives has risen over the past 10 years. She is right that there have been pressures on public health budgets which have affected services, but it is important to note that many outcomes are improving. The annual number of sexually transmitted infections is stable, and the number of teenage pregnancies is down. In fact, it has fallen by 45% since 2010 to its lowest recorded level. I take her point about the importance of these services and that they are under pressure; nevertheless, they are performing admirably.

[Lord Rooker (Lab)]

Given that half our pregnancies are unplanned, and that the department’s policy in respect of limiting neural tube defects is to tell women of child-bearing age to take folic acid supplements, what is the Government’s response to the research published two days ago that shows, once again, a reduction in the use of folic supplements by young women of child-bearing age?

--- Later in debate ---

[Lord O’Shaughnessy]

I know the noble Lord is very active on this particular issue. We respect the evidence and are considering what to do about it at the moment.

[Lord Patel (CB)]

My Lords, in response to a request for information, nearly 42% of local authorities reported that they had reduced sexual and reproductive health services because of budget cuts. All the directors of public health in local authorities report that services related to contraception have been reduced because of cuts to the public health budget. There has been a rise in the number of abortions for women around the age of 30 and above and a decrease in the uptake of long-acting reversible contraceptives among women over the age of 30. All this points to the cause being the reduction in the public health budget for local authorities. Evidence-based policy would suggest that that needs to stop or be reversed. I am sure that the Minister will say that he will fix it.

[Lord O’Shaughnessy]

I thank the noble Lord for his question and reiterate the point I made; of course public health budgets have been under pressure and we know why that is. Nevertheless, there are some positive outcomes in the changing of services, such as services moving online, as they have done in London with good effect. It is also worth saying that, in the same survey that the noble Lord referred to, more than 50% of local authorities had either kept the same levels of service or increased them. That is also worth focusing on. Nevertheless, I recognise that there are pressures and that there are behaviours that we do not want to see, such as increasing abortions among the over-30s. We are making the case, and will be doing so in the spending review, for the benefits of public health spending on issues such as this.

[Baroness Barker (LD)]

My Lords, the provision of access to contraception is a part of the GP contract, but there is a growing number of GP practices that neither provide the service nor refer their patients elsewhere. What are the Government doing to stop that unacceptable situation for growing numbers of women?

[Lord O’Shaughnessy]

The noble Baroness is quite right that there is an obligation in the GP contract. We are in the process of renegotiating the contract for the next financial year, and I shall certainly take that issue back and feed it in to the team that is carrying out the negotiation.

[Lord Watts (Lab)]

My Lords, now that austerity is over, when will local government budgets be restored so that local authorities can address issues such as the one we are hearing about today?

[Lord O’Shaughnessy]

Local authority budgets will of course be a matter for the spending review that will take place at some point during the next year.

[Lord Cashman (Lab)]

My Lords, I have raised this with the Minister on previous occasions as patron of the Terrence Higgins Trust. I share the concerns of my noble friend Lady Thornton that the vulnerable groups who need access to sexual health services are at the moment being denied that very access. Does he agree that a lack of access for these vulnerable groups will impact negatively on the health of the nation?

[Lord O’Shaughnessy]

I agree that there can be a negative impact. Indeed, one of the things that Public Health England has done recently is publish a consensus statement about sexual and reproductive health policy and actions, and it is updating its action plan. Nevertheless, it is important to point out that there were more attendances in clinics in 2017 than in 2013, which shows that it is possible to get appointments to be seen.

[Baroness Corston (Lab)]

My Lords, in how many areas are sexual health clinics now staffed by nurses rather than doctors because it saves money? I know of two. If he does not know the answer, will he write to me and put a copy of his answer in the Library?

[Lord O’Shaughnessy]

I am afraid that I do not have those figures with me, so I will certainly write to the noble Baroness and place a copy in the Library.

NHS: Dangerous Waste and Body Parts Disposal

Lord O'Shaughnessy Excerpts

Wednesday 10th October 2018 Lords Chamber

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

My Lords, with the permission of the House I will repeat a response to an Urgent Question on clinical waste, made yesterday by my honourable friend the Minister of State for Health. The Statement is as follows:

“I would like to update the House on clinical waste disposal. As I set out in the WMS this morning, the Environment Agency notified central government on 31 July of an issue concerning clinical waste disposal. The primary concern was that too much waste was being held in a number of waste storage and treatment sites by a contractor, Healthcare Environment Services, HES. This included waste collected from hospitals and other public services. While this waste was stored securely, it was not being disposed of within the correct regulatory timescales.

The Department of Health and Social Care, the NHS, Defra, the Environment Agency and the Cabinet Office have worked together to resolve these issues. Our priority throughout has been to ensure that proper measures were put in place to enable trusts to continue operating as normal. A major part of these contingency plans concerned contractual discussions with HES and other providers, which were commercially sensitive.

Following the Environment Agency’s issuing of a partial suspension to HES’s Normanton site, NHS Improvement wrote to HES to raise its concerns. NHSI gave HES an opportunity to set out how it was complying with its legal and contractual obligations; HES failed to provide that assurance. As a result, 15 NHS trusts served contract termination notices on Sunday 7 October. In preparation for this step, we negotiated a new contract with Mitie. As contracts with HES were terminated over the weekend, Mitie stepped in, and from Monday morning provided continuing waste collection and incineration across all these organisations. The Environment Agency is continuing its enforcement action against HES. This includes ensuring that excess waste is cleared from non-compliant sites. The Government are working with the Environment Agency and the NHS to ensure that lessons are learned, and we are reviewing how contracts will be awarded in future.

I have updated the House on this situation today, as new contracts have been signed following the conclusion of this commercially sensitive process. Throughout, our priority has been to ensure that measures are put in place so that the NHS can continue operating as normal. No gap in service provision has been reported, and we are working to ensure that this remains the case”.

[Baroness Thornton (Lab)]

I thank the Minister for that Answer, but at the heart of this rather horrible matter is the issue of contracting out our important NHS services, and a lack of accountability. Does the Minister agree that contracting out and subcontracting any NHS function does not absolve the commissioner of responsibility and the need to monitor and seek assurance that the contract is being delivered according to the contract, which presumably in this case involved proper and legal disposal. So where was the monitoring and the assurance to the commissioner that allowed that to happen? It seems to have failed comprehensively. Does that not suggest that this service, which is so crucial, should be delivered in-house? What we see here is a massive market failure, and indeed a massive regulatory failure.

Secondly, my right honourable friend Yvette Cooper asked in the Commons whether the Minister accepted that,

“it is a basic principle that, when dealing with any kind of public health or environmental health risk or incident, proper, full, factual information is provided to the public and the community”,—[Official Report, Commons, 9/10/18; col. 37.]

and at the earliest opportunity to Parliament. You do not hide behind a contractual negotiation, so will the Minister tell me where the line lies between the need to inform Parliament of a public health incident and the need to protect commercial confidentiality?

[Lord O'Shaughnessy]

I can say to the noble Baroness that the NHS contracts out very large numbers of services of all kinds, and indeed has contracted out this kind of service for around 30 years. What we have here is not a market failure but a company that has broken the law, and which is therefore being pursued by the regulatory system that we have in place. That is about making sure that the Environment Agency, in this case—because it is about environmental health—is monitoring, issuing notices and raising issues as they come up, which is precisely what it has done here. But I agree with the noble Baroness that certainly there are lessons to be learned about monitoring, and we are absolutely looking at that as a consequence of this incident.

However, it is very important to state two points. No risk to public health has been established, because of the secure circumstances under which the waste—albeit way too much of it—was being kept, and there was no interruption to the provision of services, so there was no risk to patients or to hospital operations. On providing information at the earliest opportunity, we have done exactly that. As I said, no public health risk has been established, and we came to Parliament on the first day it came back, once the termination notice had been in place with a part suspension.

[Baroness Jolly (LD)]

My Lords, it is clear that this situation has gone on for some considerable time unnoticed, and it also appears that the incinerator network is not able to cope with the volume of waste generated. Will the Minister confirm that the incinerators are single use? When was the contract with HES last reviewed, and how frequent were inspections of sites? What is the timetable for being able to resume a sustainable service across all of England, and might this include new incinerators?

--- Later in debate ---

[Lord O'Shaughnessy]

The noble Baroness makes an important point about incinerator capacity; indeed, that was given as a reason by the company. However, we do not feel that that is a true reflection of incinerator capacity. There are 24 incinerators in the country and 30,000 tonnes of spare capacity which could be used, and we are talking about 900 tonnes of excess stockpiling that HES had taken care of—so we simply do not accept that there was not enough capacity. What there was not was a willingness on the part of HES to pay for that capacity, which is why we are in this situation.

On the frequency of inspections, the Environment Agency has issued a series of notices, and that has escalated over the summer to the situation that we are in now. That is the proper regulatory response. I reiterate the point that there is no established threat to public health or continuity of service, which hopefully answers her last question. From an NHS point of view, neither clinicians nor patients will have noticed any impact on the level of care as a consequence of what I absolutely agree with her is completely unacceptable behaviour by this company.

[Baroness McIntosh of Pickering (Con)]

The Minister mentioned 30,000 tonnes of spare incinerator capacity. Is that for general waste or exclusively for medical waste? Will the Minister encourage the Department for Environment, Food and Rural Affairs to engage with the public on the importance of incineration as a means of disposing effectively of both household and medical waste? We are currently exporting a massive amount of household waste from the city of York and north Yorkshire to Holland, where it is put back in the community as energy from waste. I would like to see more of that occur in this country.

[Lord O'Shaughnessy]

I thank my noble friend for her question. I will certainly take up the issue of waste disposal in general with my colleagues in Defra who, as she knows, are responsible for it. On the specific question of incineration capacity, Defra calculated that in 2017 there was a total of more than 30,000 tonnes of spare capacity for clinical and hazardous waste incineration. That was across a year, but we know that the NHS has identified more than 2,000 tonnes of incineration capacity this month. So the capacity is there; the point is that it should be used to get rid of the stockpile. As I said, the contracts are now in place to ensure a continued flow of service to NHS trusts.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I do not understand the timescales in this. According to the Statement, the Environment Agency notified the Government on 31 July. Why did it take until October for NHS Improvement to write to the company expressing its concerns? As for reporting to Parliament, we met for two weeks in September. Why did Ministers not come to the House during that period? The Minister seems to be saying that commercial secrecy trumps public accountability.

[Lord O'Shaughnessy]

I am absolutely not saying that. To go through the timescale, the noble Lord is quite right that 31 July was the escalation from the Environment Agency to Defra, which then contacted the Department of Health and Social Care. Ministers were informed on 8 August, by which point a huge amount of effort had gone in not only to analyse the problem but to put in place contingency plans. A final enforcement notice for the Normanton site was issued by the Environment Agency with a need to comply by 25 September, which fell after the two-week Sitting that we had in September. In the meantime, plans were put in place—the Secretary of State chaired a cross-government meeting—and on 3 October the partial suspension was put in place. That is what triggered the termination of contracts by NHS trusts and their replacement by a new contract with Mitie.

[Lord Christopher (Lab)]

My Lords, I find this an extraordinary situation. Is there nothing in this contract—or, indeed, any government contract, through whatever agency—to impose an obligation on the contractor to advise whoever he should advise that he is not able to complete the work he is contracted to do?

[Lord O'Shaughnessy]

The noble Lord is quite right. There are, of course, contractual obligations; the point is that those obligations have not been fulfilled. That is one reason why the Environment Agency is now pursuing a criminal investigation against the firm.

[Baroness Tonge (Non-Afl)]

Will the Minister give us some information? Much clinical waste is highly infectious and therefore very dangerous; it needs to be incinerated very quickly. Will he tell us exactly how it is stored and where it is stored, and will he assure us that there is absolutely no danger of very infectious agents escaping into the surroundings?

[Lord O'Shaughnessy]

The noble Baroness is quite right to highlight this issue. As I said when repeating the Statement, the items that we are talking about are stored securely and I am assured that there is no risk to public health from the stockpiling. Clearly there is a requirement to dispose of them; this is a contractual obligation of the company, which it has not fulfilled. That is why we have entered into this situation.

[Lord Harris of Haringey (Lab)]

My Lords, what lessons has the Department of Health learned from this incident?

[Lord O'Shaughnessy]

That is an incredibly fair question; I think that the point about monitoring has been raised. We need better visibility of the performance of contractors to fulfil their contractual obligations.

NHS: Staffing

Lord O'Shaughnessy Excerpts

Wednesday 10th October 2018 Lords Chamber

[Lord Clark of Windermere]

To ask Her Majesty’s Government what plans they have to ensure that the National Health Service has sufficient staff following Brexit.

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

My Lords, my department is working with Health Education England, NHS England, the royal colleges and others to make sure that the NHS is able to recruit and retain the staff it needs. Furthermore, we are working with NHS and social care employers to make sure that the 167,000 EU nationals working in health and care can access the EU settlement scheme, which will safeguard their rights to live and work in the United Kingdom.

[Lord Clark of Windermere (Lab)]

My Lords, I thank the Minister for his Answer. Earlier this year he pleased the House by announcing that NHS staff who had worked in the NHS for more than five years would be allowed to remain in Britain under the settled case arrangements. Can he advise the House whether, following the Prime Minister’s statement on immigration at the Tory party conference, that remains the case?

[Lord O'Shaughnessy]

Yes, it is absolutely the case that anybody from the EU who is living and working in this country, not just in NHS and social care, before exit day—or December 2020, the end of the withdrawal period—will be able to apply for settled status. Indeed, if they have not lived here for five years, they will be able to apply for what is called pre-settlement status and then apply after five years.

[Lord Hylton (CB)]

Do the Government have evidence of a rapid turnover of psychiatrists on mental health wards? Are many posts held now by locums and is this affecting the continuity of treatment of patients and the review of their cases? How can the situation be improved?

[Lord O'Shaughnessy]

I hope the noble Lord will forgive me: I do not know the specific details about psychiatrists. I know that we need to recruit more doctors, which is why there has been an increase in the number of medical training places. There are in fact around 12,000 more doctors in the NHS today than in 2010. We do have a challenge in mental health, which is to recruit not just doctors but nurses and other assistants to make sure that we can deal with the mental health cases that are sadly not being dealt with in a timely manner at the moment.

[Baroness Jolly (LD)]

My Lords, staffing shortages predate Brexit and are across all disciplines and professions. Will the Government consider looking north of the border for a solution to nursing shortages? Scotland has decided to increase the student bursary for nurses, whereas English nurses in training now get no bursary at all. Might an investment in England help attract people to the career of nursing, rather than sending the message to student nurses that they are not valued as much as those in Scotland?

[Lord O'Shaughnessy]

It is absolutely not the case that they are not valued as much as in Scotland. This country has completely different higher education funding arrangements from those in Scotland. We are taking multiple routes to increase the number of nursing staff in the NHS, including increased funding for clinical places, the nursing apprenticeship route, more retention and bringing nurses back into the profession. We are determined to increase nursing numbers.

[Lord Forsyth of Drumlean (Con)]

My Lords, has my noble friend had the opportunity to read the Economic Affairs Committee report, Treating Students Fairly, which shows that by 2050 the write-off on student loans will be £1.2 trillion? Given that most student nurses are not paid sufficiently to be able to repay most of that money, why not write off the loans for graduate nurses at an early stage in their careers and show a commitment to the health service—and actually save the taxpayer a lot of money 30 years from now?

[Lord O'Shaughnessy]

I am aware of my noble friend’s long-standing interest in this area. It is an issue on which we disagree. I happen to think that the changes to the funding of higher education introduced by a Labour Government and continued by the coalition Government provide a fair distribution of benefit and cost to both the taxpayer and those who benefit from higher education.

[Baroness Thornton (Lab)]

The Minister has reassured the House on several occasions that the NHS will survive Brexit and the staffing will not be affected. However, when the Home Office announced plans in June this year to temporarily exclude doctors and nurses from the annual tier 2 visa gap, it meant that 1,500 applications were turned down. That does not seem to be sending the right message to those doctors and nurses from the European Union who are already here. We know that the BMA found that 77% of EEA doctors stated they would consider leaving the United Kingdom if the Brexit agreement did not suit their purposes—and that is actually about making them feel welcome here.

[Lord O'Shaughnessy]

I completely agree with the noble Baroness that we want to make them feel welcome. I use this opportunity to state again how much those staff are valued and how much we want them to stay here. What we are doing about it practically is making sure that we communicate with employers and provide the EU settlement scheme—indeed, health and social care workers will take part in the pilot, which will happen later this year. We are sending that message and providing that reassurance. I understand that there is anxiety out there, which is why we want to reassure people, but I am reassured by the fact that there are more people from the EU working in the NHS and CCGs today than there were two years ago.

[Baroness Watkins of Tavistock (CB)]

My Lords, can the Minister comment on whether he will consider abolishing the health immigration surcharge, which non-EU nurses must pay to access NHS care? It is stopping people coming to work here.

[Lord O'Shaughnessy]

The immigration surcharge, which applies to all people coming to work here from outside the EU, is about making sure that there is a fair contribution to the running costs of the NHS. That is a reasonable thing to do—it is what the public would expect us to do—but it is important to ensure that it is done in a fair and reasonable way, which represents the average costs incurred by people coming from outside the EU.

[Baroness Corston (Lab)]

My Lords, the Minister said in response to one of my colleagues on these Benches that there were 12,000 more doctors now in the National Health Service. Can he tell us how many of them work part time?

[Lord O'Shaughnessy]

I gave the wrong number: there are actually 14,000 more doctors. I am sure that the noble Baroness would welcome that. I do not have the figures on part-time working but we know, for example, that in general practice there is increasing interest in part-time work. That of course means we need to recruit even more people, which is why it is encouraging that this year there are more GPs in training than ever before.

In Vitro Fertilisation: 40th Anniversary

Lord O'Shaughnessy Excerpts

Thursday 13th September 2018 Lords Chamber

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

My Lords, I join other noble Lords in congratulating the noble Baroness, Lady Deech, on securing this important debate. I join my Front-Bench colleagues in commending the quality of it; we are incredibly lucky both in this House and in this country to have such experts who are able to give such informed opinions on these topics. It seems to me entirely right that we should have the opportunity to acknowledge the ground-breaking work of Sir Robert Edwards, Dr Patrick Steptoe and, as the noble Baroness, Lady Barker, reminded us, Jean Purdy—who, it must be said, Bob Edwards always credited as the third IVF pioneer. It is right to acknowledge the development of the technique which has of course brought about the birth of around 8 million babies worldwide who would not have otherwise been born, as well as the signal role that the UK played as a world leader in providing not just the scientific technology but the right regulatory framework.

The noble Baroness, Lady Jolly, reminded us quite rightly that, even though IVF is so commonplace now, it is easy to forget the opposition that Edwards, Steptoe and Purdy faced when they were first doing their work. It is a credit to their determination and compassion that they were not deterred. It is true to say that they have transformed our understanding of human reproduction and what that means for how to have a family for ever. In doing so, they have brought happiness to millions—those who would not have been born and who are, presumably, happy to have been born, and their parents.

The noble Baronesses, Lady Barker and Lady Boycott, talked about the benefits for women of being able to make a choice about conception. I am grateful to the noble Baroness, Lady Boycott, for also talking about men and fathers. When my wife and I tried to start a family and were finding it difficult, it was something that we began to contemplate. We did not have to go down that route but at least we knew that it was there if it had been needed.

As the noble Baroness, Lady Barker, reminded us, it all started with the birthday girl, Louise Brown, born in Oldham in 1978. In a sense, it brought something that was out of science fiction into reality. A baby, conceived in a laboratory—in a test tube, to use the phrase—was then placed in the womb, leading to the birth of a healthy child. It had been unimaginable just a few years before. Not only did it open up the possibility of those kinds of births, but it also raised all the difficult questions with which we have been grappling since, to make sure that such a powerful scientific tool should not be open to misuse. That is why the Government of the day established the Committee of Inquiry into Human Fertilisation and Embryology—to make recommendations on the policies and safeguards that could be put in place to ensure that treatment services were provided in a safe and ethical manner and, as we have been reminded, to guide research using embryos. I shall return to this.

As has been discussed, the recommendations of the 1984 report formed the basis of the Human Fertilisation and Embryology Act 1990, the first legislation of its type in the world. I pay tribute to my noble and learned friend Lord Mackay of Clashfern, as other noble Lords have done, for the role he played in developing this excellent piece of legislation. I also pay tribute to the roles played by the Lord Speaker and by my noble friend Lady Bottomley. They remind us, as does the noble and right reverend Lord, Lord Harries, that it was a highly complex argument. It was happily debated in this House in the best of spirits and with the best of intentions. Difficult, challenging and, indeed, theological reasons were given for some of the policy decisions that ended up forming the 1990 Act. It is right that we recognise the role played by noble Lords and, of course, the work of Lady Warnock and the members of her committee. It is a testament to their sound judgment that so many of the principles they established still hold good. I also join the noble Baroness, Lady Thornton, in paying tribute to the HFEA for the rigour and leadership it has shown over the years and to acknowledge the leadership of the noble Baroness, Lady Deech, as well as the role of the noble and right reverend Lord, Lord Harries, in that institution.

Fertility treatment and IVF go to the heart of the deep desire—and, in some cases, psychological need—of people to have children of their own. As has been highlighted by noble Lords in this debate, we are faced today with questions different from those encountered by Edwards, Steptoe and Purdy, or even by the Warnock committee. I turn to these now.

The noble Baronesses, Lady Deech and Lady Thornton, talked about the 10-year statutory storage limit for non-medical egg freezing and their belief that it should be increased. They will be aware of the recent publication by the HFEA about egg freezing. It is important that we bring the latest available information to the public attention, so that we can have a better-informed debate as we go forward. The report suggests that women should be cautious in approaching egg freezing and keep in mind that current evidence shows that, overall, there is only a one in five chance of getting pregnant using frozen eggs. It is not an effective insurance policy for future family building, although sometimes it is absolutely necessary in order to build a family.

The noble Baronesses, Lady Deech and Lady Thornton, want to see that extension. I understand the reasons for it. There are exemptions for those who have lost their ability to be fertile for medical reasons. The question is whether and how there should be an extension to the 10-year limit for social use. My colleague the Minister for Mental Health and Inequalities has written to the noble Baroness, Lady Deech, in some detail as to why it would take primary legislation to make a change in the law. This is not least because, at the point at which they were passed, Parliament did not expect the regulations to be used to extend storage for social reasons. This is not a judgment on the benefits, merits or otherwise of the argument, but it is important to reflect that any extension to time limits for egg storage would be a significant social policy change, with far-reaching impacts on decisions that women make in starting families. It would require a broader public debate before any change could be contemplated. In some ways, this has been accelerated and amplified by our discussions today.

Several noble Lords mentioned the current postcode lottery in the provision of NHS-funded IVF treatment services, and I will deal with that head-on. We have been clear with CCGs that they need to take account of the NICE fertility guideline and to implement its recommendations in full, and I want to be clear that it is completely unacceptable where CCGs have stopped commissioning IVF altogether. My honourable friend the Minister for Mental Health and Inequalities will meet the HFEA and NHS England shortly to discuss how best to promote this guideline to NHS commissioners and support better-informed commissioning of fertility services, in particular to eradicate the non-provision of services such as these. I reassure the noble Baroness, Lady Jolly, that consultations are required by CCGs before any reduction of services such as this significant one.

Allied to this issue is one raised by the noble Baronesses, Lady Deech and Lady Thornton, about private treatment costs. It is quite right that the HFEA does not regulate cost, and IVF is indeed expensive. However, it is clear in the HFEA’s code of practice that before treatment, storage or both are offered, the clinic gives the patient a personalised and costed treatment plan detailing the main evidence of the proposed treatment, the cost of that treatment and any possible changes to the plan, together with those costs. In that way they have the opportunity to understand at the outset the costs that they are likely to incur and—to address a point mentioned by the noble Baroness, Lady Deech—that they have accurate information about the effectiveness of any treatments, particularly add-ons, that they are offered.

The noble Baronesses, Lady Barker and Lady Boycott, raised the important issue of surrogacy, and the impact on its availability by the 1990 Act; the noble Baroness, Lady Barker, reminded us of the particular impact it has had on single parents. I am pleased to say that we have been making progress in this area, and I am grateful to them for recognising that. A revised remedial order enabling a sole applicant to apply for a parental order was laid in Parliament before the Summer Recess. It addressed potential inequalities that were identified by the Joint Committee on Human Rights, which reviewed an earlier draft of the order, as the noble Baroness, Lady Barker, pointed out. The revised order also ensures that a single applicant who is biologically related to the child will always be able to apply for a parental order regardless of their own relationship status.

The Government are preparing the regulations needed to ensure that the changes made by the remedial order can work effectively. We hope to lay the regulations this autumn to enable debates in both Houses this year, and our aim is to ensure that new laws are in place by the end of 2018. Furthermore, we look forward to the results of the Law Commission’s review of the law surrounding surrogacy in general, and are working with all partners and stakeholders to improve the ability of people to pursue this route to parenthood if it is necessary and desired. However, in doing so it is necessary to recognise and address head-on some of the fraught ethical issues that we need to negotiate in doing so, as the noble Baroness, Lady Boycott, pointed out.

Many noble Lords brought the issue of research to our attention. It is right that the 1990 Act, which we are discussing, also covers embryo research. It is also right that we have fantastic new research opportunities offered by gene editing. Reference has been made to CRISPR/Cas9 and other gene-editing possibilities, which give us the opportunity to prevent serious inheritable diseases. What then does that mean at this stage for the 14-day rule on the use of embryos?

I am sure that noble Lords will be aware that the HFEA licensed the Francis Crick Institute to use this technique of gene editing in a research project in 2016. Therefore in that sense, although the 14-day limit is very much intact, the progress in research on gene editing of embryos below that time limit has started. We have also looked at the Nuffield Council on Bioethics report, which was referenced by the noble Earl, Lord Selborne, and other noble Lords, and we are giving these important issues careful consideration as we decide how to move ahead. There is great potential in these techniques, but these are early days, and the limits of the regulatory framework have not yet been reached. For that reason, there are no current plans to review the 14-day limit for embryo research. Indeed, I think I am right in saying that the noble Baroness, Lady Deech, did not herself feel there was support for such a change at this stage. I reference the important point made by the noble and right reverend Lord, Lord Harries, and the noble Earl, Lord Selborne: if we move ahead in considering these issues, we need both a broad and deep conversation about the right way forward.

Progress has been made on the issue of mitochondrial donation, as many noble Lords have pointed out. Parliament gave clear support for the introduction of regulations for mitochondrial donation to prevent the inheritability of serious mitochondrial disease. The HFEA is currently assessing these cases on a case-by-case basis, giving careful consideration as it does so. We believe this is the right way forward and it perhaps sets the template for how we ought to move ahead in future.

In the 40 years since Louise Brown’s birth, much has changed. Our knowledge of this unique area of science and medicine has developed and the success rates of IVF have improved. In that time it has become possible, as the noble and right reverend Lord, Lord Harries, said, to use the IVF technique to prevent children from being born with serious and sometimes life-ending medical conditions and to prevent the transmission of serious mitochondrial disorders from mother to child. It will be fascinating to see where the use of IVF goes in the next 40 years.

I think we all agree that the UK can take pride in the achievements of Edwards, Steptoe, Purdy and all those who have worked in both clinical and research settings. We continue to be world leaders in the field of assisted reproduction and embryology and owe huge credit to the staff of so many clinics, who have enhanced the lives of so many families. We can take equal pride in the fact that this country has enabled such ground-breaking techniques to be used in clinical practice, within a regulatory framework, administered by the internationally respected HFEA, to ensure safe, effective and ethical treatment for patients. This framework has been a blueprint for the world and will continue to be so. This House has an invaluable role to play in challenging and providing leadership and ideas for how we ought to move ahead.

--- Later in debate ---

[Baroness Deech]

I am very glad to hear that intervention from the noble Baroness. I have often thought about Mrs Brown and it is very sobering to realise how many other people contributed to the eventual success.

I look forward to this House debating changes to surrogacy reform, which I hope will come soon. I hope also that we will debate genome editing and how to regulate it in the future with the expertise that we have.

There is just one issue that I remain unhappy with. I think that there must be a missing letter. The noble Lord, Lord O’Shaughnessy, referred to a letter to me from, I think, Maria Miller. I wrote to the noble Lord in mid-July but I have no recollection at all of receiving a response.

[Lord O'Shaughnessy]

I am sorry to interrupt the noble Baroness. It was from my colleague Jackie Doyle-Price, the Minister. If it has not arrived, I absolutely apologise, and I will make sure that it gets to the noble Baroness as soon as humanly possible.

[Baroness Deech]

I contacted the noble Lord this morning to say that I had not received a response. I can see that something went wrong somewhere and I do not quite know what the response will say. I listened to the noble Lord but I think that relying on medical exemptions to the 10-year limit is insufficient. Many—indeed, an increasing number—of the women who want egg freezing do so not for medical reasons but for pressing social reasons, with which we should have sympathy.

Regardless of the science, there is no reason why, if you can keep your eggs for 10 years, you should not be able to keep them for 20 if that is suitable—and it can be achieved simply by a change in regulation. The pressures on women with the biological clock ticking and the cost of freezing are such that it is a pity to say to them, “Don’t wait for Mr Right. Time is ticking. Mr Average will have to do, or Mr He-Will-Do will have to do”. As has been said, it would not involve many women—but the fact that there are not many is no excuse for not changing the law. So I hope that the letter, which I have not yet seen, is sympathetic. I will continue to raise in this Chamber the issue of egg freezing until we get a change, because it means a great deal to many women and it will have a profound psychological effect on the way they lead their lives.

I conclude by thanking all noble Lords who have participated in this very meaningful anniversary debate, and I am even more grateful to those who have played such an important part in achieving this great British success over the last 40 years.

Mental Health Units (Use of Force) Bill

Lord O'Shaughnessy Excerpts

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

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

My Lords, I shall begin by thanking three sets of people for getting us this far. The first is the noble Baroness, Lady Massey, whom I thank for introducing this Bill and for the opportunity to respond and contribute to the Second Reading. The second is Steve Reed, the MP for Croydon North, who, as all noble Lords have said, has done much of the work to get the Bill to where it is today. We know how difficult the journey of a Private Member’s Bill is, but that it has got this far in this good shape and has this broad support shows not just how important this issue is, but what a fantastic job he has done. I congratulate him. The third set of people are the parents and family of Olaseni Lewis. They have been through a heartbreaking experience, but they have nevertheless fought and campaigned tirelessly for justice for their son. I join other Members of the House in expressing my admiration for them, their resolve and the work they have done to ensure that other families do not to suffer in the way they and their son sadly had to.

This is an emotive subject. It touches the lives of people when they are at their most vulnerable, but at the same time we need to be conscious of the fact that patients must have trust in all NHS services in whatever setting. In that context, the topic of restrictive interventions is always difficult. They are never without risk. Going through an intervention and, I believe, delivering one can be a frightening and traumatic experience for patients and staff at a time when those patients are unwell. The Government are clear that restrictive interventions should only be used as a last resort when all attempts to de-escalate a situation have been employed.

Noble Lords are aware that in April 2014 the Government launched the positive and safe programme, which aimed to reduce the use of these kinds of restrictive interventions in the health and social care sector. That included the non-statutory guidance, Positive and Proactive Care: Reducing the Need for Restrictive Interventions. It was intended to inform the Care Quality Commission’s programme of monitoring and inspections.

What has been identified not just in this debate but during the passage of the Bill in the other place and by my honourable friend the Minister is that the existing guidance is not having the impact the Government expected and that much more needs to be done. For that reason as well as others, the Government are in full support of this Bill.

The noble Baroness, Lady Massey, was right in saying that this Bill is a good example of cross-party collaboration. A number of changes have been incorporated since it was first introduced to respond to multiple concerns, many of which have been raised this afternoon and by other parliamentarians, campaigners and staff. I pay tribute to all those who have contributed to the improvement of the legislation in the other place.

I shall deal quickly with some of the amendments that were made in the other place because they demonstrate how the Bill has been improved and that it is in a good place now. First, we have included “isolation” and “segregation” in the key definitions of use of force to address stakeholder concerns that these commonly used techniques would not be recorded and reported on nationally if they were not included in the Bill. We clarified the role of the responsible person in Clause 2 so that a board-level or equivalent person has responsibility for reducing restrictive interventions.

We have added to Clause 3 so that the policy on the use of force must set out what steps will be taken to reduce the use of force in the mental health unit, something that has been mentioned many times today. We strengthened Clause 4 in relation to sharing information with the patient about their rights, so that the responsible person has to take whatever steps are reasonably practicable to ensure not only that a patient is aware of the information about their rights but that they understand it. Critically, on the point that was raised by the noble Baroness, Lady Tyler, it will ensure that every patient and their family members or carers understand what the patient’s rights are in relation to the use of force while they are in a mental health unit, a really important improvement.

In Clause 5 we have expanded the topics that must be covered in training courses to recognise the impact that trauma may have on a patient’s physical and mental health and, as the noble Baroness, Lady Thornton, said, what is known as trauma-informed care. I will return to the issue of training but I will say at this point that we have also now included a requirement for staff to receive refresher training as appropriate, so it is not just one-off training.

We have expanded the list of information that must be recorded in Clause 6 to include a description of how force was used and the outcome of that use of force to increase transparency and accountability, while also amending the time for which records must be kept so that it is proportionate and in line with data protection law.

In Clause 7 we have ensured that the responsibility for publishing annual statistics sits with the Secretary of State in order to enable NHS Digital to collect national data and produce and publish those statistics. Following this debate today, in response to the question from the noble Baroness, Lady Tyler, I will clarify the timing of the publication of the statistics so that it can be done in a way that shines the greatest light on that information. I shall write to her and all noble Lords with more details on that.

In Clause 8 we have further committed to an annual review of published reports by coroners under paragraph 7 of Schedule 5 to the Coroners and Justice Act 2009—more commonly known as regulation 28 reports—relating to the death of a patient as a result of the use of force, and any other findings made during that year. This will enable lessons to be learned across the system. This was one of the points made by the noble Lord, Lord Harris, and again, I will respond to that in a bit more detail in a moment.

Clause 9 is the result of much discussion about investigations, to ensure that mental health units have regard to any guidance relating to investigating deaths or serious injuries that is published by a range of organisations including the CQC, NHS Improvement and NHS England, as has been referenced. This puts the NHS Serious Incident Framework on a legal footing and gives strength to the requirement to carry out an independent investigation into an unexpected death, including the death of a patient following the use of force.

Finally on the improvements made in the other place, the clause on police body cameras was amended to ensure that the use of body-worn video is proportionate, legitimate, necessary and in line with the College of Policing guidance on its use. It was also amended to clarify that failure to bring or use body-worn video when attending an incident in a mental health unit is not in itself a criminal offence.

I thank noble Lords for indulging me in mentioning those points. I wanted to demonstrate the improvements that have been made in response to stakeholders from the charitable and voluntary sector. By virtue of those improvements, we can be confident that the Bill is in very good shape and, in response to the question from the noble Baroness, Lady Thornton, has the best possible chance of delivering the outcomes we want. We want to ensure that the Bill goes through in its current shape but, like my colleague Jackie Doyle-Price, I will be more than happy to meet any noble Lords who want further reassurance on any of the questions they have asked, although I shall try to deal with some of them as well as I can now.

I turn to some of the specific points and questions raised by the noble Baroness, Lady Massey, and other noble Lords. First, on the timing of the statutory guidance, calls to see drafts of it and the timetable for its publication, Jackie Doyle-Price in the other place accepted the need to move quickly and said that publication within 12 months of the Bill being passed would be appropriate in the context. I believe that this is reasonable, given the complexity of the guidance that we will need to consider. On the critical question of how it will be drawn up, we plan to establish and consult with an expert reference group, including experts in the field of restrictive interventions and people with lived experience, as well as carrying out a public consultation on the guidance before it is published. I reassure noble Lords that we will work closely with key stakeholders to take account of their contributions, and the discussions on the Bill in both Houses, in developing the guidance. I hope all noble Lords who have taken part in this debate will have the opportunity to contribute to the development of that guidance.

The issue of diversity and the disproportionate use of force for black and minority-ethnic groups was raised by the noble Lord, Lord Adebowale. Annual figures from the mental health services dataset showed that in 2017 the number of people subject to restrictive interventions was 9,771. Collectively, these people experienced more than 71,000 incidents of restrictive interventions. They also showed that they were disproportionately affecting patients from the BAME community, as well as women and children, as was mentioned by the noble Baronesses, Lady Thornton and Lady Tyler. This is clearly unacceptable, but we do not yet have a consistent and rich enough dataset to understand exactly where the problems in the disproportionate use of force take place, when they take place, in what settings, and so on. It is precisely for that reason that we want that rich dataset to inform practice and action, and to respond accordingly. I should be pleased to follow up our debate today with noble Lords, once data is available, to think about what action could be taken to address the discrepancies in performance.

The noble Baronesses, Lady Tyler and Lady Massey, asked about children. I can confirm that the Bill applies to all patients in a mental health unit, including children, for the purposes of treatment for a mental disorder. The children and young people who are being looked after in those mental health units are, of course, among the most vulnerable patients, and I absolutely acknowledge that staff will require a different skill set when looking after them. I will come to the issue of staff training in a moment, but Clause 5 sets out the requirements for staff training, including involving patients in their care, and this will be a different conversation for children and young people than for an adult. I reassure noble Lords that the statutory guidance that we produce will have specific examples and principles of good practice for how to carry out those conversations with young people and children, as well as with adults.

I should like to address some questions raised about the use of force. Although it has not been raised in this debate, it was asked in the other place whether the words “threat to use force” and “coercion” should be included. The reason for resisting that is that we believe that they can be useful terms when used properly as part of de-escalation techniques. As the noble Baroness, Lady Tyler, pointed out, those techniques are incredibly important in reducing the use of force wherever possible.

Nevertheless, we need to ensure that there is proper oversight to ensure that threats are not used improperly. That is part of the policy that we will expect the responsible persons to put in place to ensure proper responsibility, and proper accountability within the organisation for the reduction of the use of force and not merely substituting for it by other means.

Of course, as noble Lords have pointed out, staff must be properly trained. On those occasions where restrictive interventions are needed, we must feel confident that mental health unit staff have the techniques at their hands to use properly. In response to the question asked by the noble Baroness, Lady Massey, and other noble Lords, I say that Clause 5 sets out as a minimum the list of training topics which must be covered. The list in the Bill is not exhaustive, but covers the essential topic areas key to ensuring that, where necessary, force is used in a safe way using the least restrictive force. I mentioned that that will include ensuring that staff receive refresher training at regular intervals to ensure that they are up-to-date with the latest techniques and new approaches.

While we are on the topic of force, I shall address the question asked by the noble Baroness, Lady Thornton, about the use of the term “negligible”. As I have said, Clause 6 imposes a duty to keep a record of any use of force on the patient by staff who work in that unit. It sets out what information should be recorded and how long those records should be kept.

The clause also states that the duty to record does not apply to the use of negligible use of force. This is because, in consultation with our health partners, it was felt that staff should not be burdened with the need to record lower-level therapeutic activities, such as the use of a lap belt when moving someone in a wheelchair, or guiding someone by the arm down a corridor or through a doorway. These are activities that happen many times every day and, if we did not have this exception, staff would have to record such events as a use of force. This would significantly increase the time spent recording which would take staff away from caring for patients.

[Baroness Thornton]

Maybe that is the wrong word, then. Maybe the Bill should say “therapeutic” or something which does not allow a loophole which says: “Oh well, that slap was only negligible”. That might be the wrong word to use.

[Lord O'Shaughnessy]

The noble Baroness makes a good point, which is relevant to the point made by the Delegated Powers and Regulatory Reform Committee when it reported on the Bill, which I will use this opportunity to address. This was about our proposal that definitions should be within statutory guidance. This determines the appropriate mechanism for making the definition, to ensure that the kind of problems pointed out by the noble Baroness do not arise. The committee noted that the guidance under Clause 6(3) will determine whether a use of force is negligible, and thus affect the legal obligations of responsible persons in mental health units. The committee’s view is that this should be set out in regulations, in order to provide an appropriate level of parliamentary scrutiny. I have replied to the committee on this issue this morning and will share my letter with noble Lords.

We considered whether the meaning of a “negligible” use of force could be set out in regulations or, indeed, on the face of the Bill. However, the range of techniques that may be used for physical interventions alone is many and varied, from the most serious, such as prone restraint, to something as simple as guiding a patient by the elbow down a corridor or through a doorway. Furthermore, what is negligible will generally be a matter of degree rather than kind. It was concluded that the meaning would be more effectively illustrated through example case studies in guidance, which would also allow for more rapid revision to take account of changes in practice. The decision to require “negligible” to be determined in accordance with the guidance was taken to ensure consistency of approach to recording uses of force across the sector. Because the information recorded under Clause 6 will be used for the preparation of national statistics about the use of force under Clause 7, if responsible persons are taking a different approach to recording information—a current problem—that will affect the interpretation and value of the statistics.

The Government accept the committee’s concerns about the sensitive nature of the subject. This is why the Bill imposes constraints on the issue of guidance, one of which is to require the Secretary of State to consult any person he or she considers appropriate. In practice, that will mean consulting experts in the field of restrictive interventions and those with lived experience whom the Government consider appropriate for this type of guidance. It is not usually the case that we go against the advice of the committee, but in this instance we felt that the nuance required around the definitions of “negligible”, combined with the strength of force that is needed to provide consistency for statistics, meant that this particular definition within a form of statutory guidance was the appropriate way forward. I hope that noble Lords will accept that; if further discussion is warranted, I would be happy to follow it up.

My final point is on the issue of deaths of patients, which was at the heart of the questions asked by the noble Lord, Lord Harris. There was a lot of debate on Clause 9 in the other place and the clause was revised in Committee, but concerns remained about the timeliness, quality and independence of the investigations that would be made whenever a patient dies following the use of force. As Clause 9 is drafted, if a patient dies or suffers a serious injury in a mental health unit, the responsible person must have regard to any guidance relating to the investigation of deaths or serious injuries published by a list of organisations which are responsible for regulating and monitoring the NHS, such as the CQC. As I said, this means that the NHS serious incident framework is put on a statutory footing. The noble Lord, Lord Harris, gave some examples of how this would work in practice and talked about level 3 investigations. However, prior to that there is a legal duty, under the Mental Health Act, to report the death of a patient to the CQC. After that, an independent investigation should always be considered following the death of a patient in those circumstances.

As the noble Lord pointed out, level 3 investigations under the framework are those that will probably be most suited to these kinds of incidents, where the integrity of an internal investigation is likely to be challenged or where it will be difficult for an organisation to conduct such an investigation internally in an objective manner. I want to be clear that no one involved in the investigation process should be involved in the direct care of the patients affected, nor should they work directly with those involved in the delivery of that care. Following such an investigation, there would of course be an inquest, including a legal duty to report the death to the coroner, who has a duty to investigate violent or unexpected deaths. I hope that gives the noble Lord some reassurance about the objectivity and independence of the investigatory framework that would follow such a death. I am more than happy to discuss that further with him, and to make sure that the point he made is properly reflected: that there is an opportunity not just to investigate individual deaths but to look for thematic issues at a higher level—of the kind that he outlined and indeed used to be responsible for carrying out and which the IPCC used to carry out—which may be suitable for the new health services investigation board that we are introducing. That is something that I would like to discuss further with him.

The noble Lord also briefly asked about support for families. Legal aid is, I believe, the most appropriate way for that support to be offered. The Ministry of Justice has considered this in response to the Dame Elish Angiolini report and will also consider deaths in these settings on the same basis as deaths in prisons and police custody. Again, I hope that provides some reassurance, but if he wants to discuss that further I would be more than pleased to.

I hope that I have addressed all issues and questions raised in the debate today. I just finish by saying how important the Government consider this legislation to be and how much we support the noble Baroness in bringing it forward. Noble Lords have indicated that they do not intend to amend the Bill, and of course we are all conscious of time, but I am more than happy to speak to any noble Lords about remaining questions to make sure that we can put their minds at ease, provide the necessary reassurance and move ahead as quickly as possible.

NHS: Healthcare Data

Lord O'Shaughnessy Excerpts

Thursday 6th September 2018 Lords Chamber

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

My Lords, I congratulate the noble Lord, Lord Freyberg, on calling this debate and on his passionate interest in the topic, which he often shares with me by email and through other routes. His excellent speech was, indeed, a tour d’horizon, as the noble Baroness, Lady Walmsley, said. I am also grateful to him for sharing the moving story of his sister—the unavailability of data obviously contributed to her untimely death. Her case gets to the heart of what can sometimes be a rather technical topic. At the end of the day, we are trying to make sure that people are able to live longer and happier lives. The noble Lord’s sharing of that story really brought that point to life.

I also warmly congratulate my noble friend Lord Bethell on his outstanding maiden speech. He brought to life the anxieties that people feel about big data—the saliency of this topic is clearly rising with Facebook, Cambridge Analytica and so on—while discussing the extraordinary benefits. I have no doubt that he will be a huge asset to this House. He is someone I have known and worked with over the years. We may be getting a bit longer in the tooth now, but at one point we were thrusting, reforming young Conservatives. We are, in this House, young Conservatives again. I am sure he will bring exactly the same energy that he has always brought to reforming issues.

I thank noble Lords for a superb, high-quality debate. It has also been an extremely fertile ground for new ideas, some of which we are happily moving ahead on, and others of which I will, as ever, reflect on. All noble Lords agree that the NHS is already a world-class and comprehensive healthcare system. We also agree that it provides a unique opportunity, because of the circumstances of its founding, to bring together an unrivalled longitudinal dataset on the health and care of over 60 million people alive today. As the noble Lord, Lord Freyberg, and my noble friend Lady Neville-Rolfe reminded us, the use of that data over time, going back not just decades but centuries, has led to countless innovations and saved millions—possibly billions—of lives worldwide. As the noble Lord, Lord Scriven, and my noble friend Lady Rock pointed out, the potential gains from this dataset with the technologies at hand are enormous: improving standards; making the health system fairer, safer and more effective; and improving research so that patients benefit more quickly from medical breakthroughs.

The noble Lord, Lord Hunt, was right in saying that first and foremost it is about the transformation of direct care. The primary uses of data must come first and secondary uses second. Patient outcomes are the most important goal. It is also the case, as the noble Lord, Lord Kakkar, pointed out so wisely, that without technology we cannot achieve the goal of personalised medicine. Personalised medicine is essential, because we now understand so much about disease that no disease presents itself in one person in the same way that it presents itself in another. We cannot achieve that goal without technology and the use of data. As the right reverend Prelate, the Bishop of Southwark, and my noble friend Lady Redfern pointed out, it is also critical in overcoming some of the inequities and discrepancies in health outcomes that clearly exist in all disease areas today.

Noble Lords have raised many examples of the benefits of data sharing. My noble friend Viscount Bridgeman explained the benefits that derive from GP databases in England. The noble Baroness, Lady Walmsley, pointed out the role of performance data in winning the argument for transforming stroke care and rationalising services—not always a popular thing to do. The noble Lord, Lord Stone, gave the example of how healthtalk.org—I think that is the right name—is empowering self-care in improving outcomes. He also brought to life an international dimension: sharing data not just in one country, but across the world. That is really important for rare diseases. Our health charities have a very important role in this field, as he exemplified.

My noble friend Lord Suri talked very wisely about the local and regional dimension. Greater Manchester, which is often the leader in these things, has made tremendous use of joined-up healthcare records. Data has been used to build a picture of how patients with stroke are diagnosed and treated, for example. This has improved services for patients, including by supporting paramedics with diagnosis—which is not always there, as this debate has highlighted—through the development of an app to assist clinical assessment. That has led to a reduction of deaths from inter-cerebral haemorrhage by one-third in the 30 days following diagnosis. Think of the benefits to health and wealth that would accrue if we were able to roll out these innovations UK-wide and worldwide.

Yesterday, at NHS Expo I met several innovators, including those who are providing real-time data on the availability of and waiting times for urgent and emergency care centres in Kent, with the goal to go nationwide. Others were rating and promoting the best health apps, so that people can take more control over their care. These are just a few examples of what is possible.

We can all be zealous about the benefits of sharing data but, as noble Lords have pointed out, we have to be aware of the anxieties and concerns that people have, not least because of the recent history in this area, when we have tried to make progress. My noble friend Lord Suri pointed out that we stand at a golden age. I think he is right, but we will only realise that golden age and its benefits, which were brought to life by the noble Lords, Lord Macpherson and Lord St John, and my noble friend Lady Neville-Rolfe—with the challenges we face, we cannot have the luxury of doing without these benefits—if we appreciate people’s concerns about how data is used, whom it is shared with and whether it is safely, properly and legally used. People want to understand and have a say in how their data is collected and used. They want to see the benefits being realised for patients and for the health system more widely. I will return to this topic.

KPMG published a report yesterday showing that the NHS is the most trusted institution in the country with whom citizens are prepared to share personal data. That is a very precious thing which we must not put at risk. If we do, we will not be able to realise the kinds of benefits that we have been discussing. The first step is to keep data safe, as my noble friend Lord Suri pointed out. Since May 2017, when the WannaCry attack happened, we have invested more than £60 million in cyber resilience for local health trusts. We are planning to invest a further £150 million over the next two years to improve our ability nationally and locally to prevent, detect and respond to cyber incidents. Of course, we can never say never about these attacks, and they are becoming more frequent and more severe, but we are aware of the importance of putting in that resilience.

We have also introduced a national data opt-out which gives patients a choice about how their confidential patient information is used beyond their direct care. I take the point made by the noble Lord, Lord Hunt, about how challenging it is to exercise the opt-out for children. We are in the process of addressing that at the moment. The opt-out is in beta form before going live in October. I am pleased to tell noble Lords that, as well as NHS Digital, Public Health England is upholding the national data opt-out and we will be rolling it out to all NHS organisations over the next two years.

The noble Lords, Lord Scriven and Lord Hunt, and the noble Baroness, Lady Walmsley, talked about the importance of this issue and of engaging with the public and stakeholders. I want to use this opportunity to highlight and commend the work of the Wellcome Institute’s Understanding Patient Data initiative. It has produced remarkable resources and we have been working closely with it. It is helping us to win the argument with people that they ought to share their data because of the benefits that will accrue to themselves and to those whom they love. However, we can never think we have won the argument. It always needs to be made and we always need to provide that reassurance.

We are taking other actions. My noble friend Lady Neville-Rolfe mentioned the National Data Guardian, which we are putting on a statutory footing. We have implemented new data standards that she recommended. We have been explicit about not selling information, or access to information, on patients to marketing or insurance companies. That is a big concern. I can tell the noble Lord, Lord Scriven, that we have taken some important steps on governance, such as introducing Caldicott guardians—named after the first National Data Guardian—into the information governance framework, and trust board responsibility for the safe use of data.

Once we have addressed the safety issue, we will then need to start bringing together the available data. As noble Lords have explained during the debate, so much health and care data is still fragmented, often stored and transmitted in paper form and not easily shared. The horrifying consequences of this, such as key information falling through the gaps, have, unfortunately, been brought to life in the cases of the loved ones of the noble Baroness, Lady Thornton, and the noble Lord, Lord Freyberg. As my noble friend Lady Redfern pointed out, medication error is a consequence too. The noble Lord, Lord Kakkar, talked about a clean and curated dataset being useful not just in its own right but because of the value it would generate. He is absolutely right on that topic.

We are making progress through the global digital exemplar programme, for which my right honourable friend the Secretary of State announced today £200 million. The noble Lord, Lord Macpherson, will know that it is very unusual to announce new money outside spending reviews, although the Government have announced £22 billion over the next five years. However, this is a rollout of a £4 billion investment, which no doubt he was involved in agreeing at the last spending review. Let me reiterate that that is a £4 billion investment in technology in the NHS.

We are also looking at joining up data across different areas and settings. This has been highlighted by many noble Lords. We have launched the local health and care record exemplars, which is about creating common standards of interoperability so that data can be shared, not just through health but, critically—a point made by my noble friend Lady Redfern—across social care and local authorities as well. Therefore, wherever you turn up in the health system, your record will be at hand. As of now, through the NHS app, you can find your summary healthcare record in digital form. However, the exemplar programme is about your entire care record, which is critical for the reasons that we have discussed. The goal, in time, is that everybody—not just healthcare and care professionals but individuals themselves—will have near real-time access to the information that they need, wherever it was captured, to help them make the best clinical decisions.

As well as digitising the information that we have, we also need to make sure that new forms of information are added to those data records. Here, I would like to highlight the potential of genomic medicine and genomic data. Our work in this area is a shining example of partnership between the public sector, the life sciences industry and the research community, working together to benefit NHS patients. Through the 100,000 Genomes Project and the new genomic medicine service, which launches in October, we will sequence genomes for patients with rare diseases and cancers so that they can receive more personalised treatments and benefit from improved outcomes and reduced adverse drug reactions.

Several noble Lords, including the noble Lord, Lord Scriven, the noble Baroness, Lady Walmsley, and others, said that we need to make sure that we can harness data generated by patients through wearables and information about other aspects of their lives that may have a health impact, such as housing, as my noble friend Lady Neville-Rolfe pointed out. As the noble Lords, Lord Scriven and Lord St John, pointed out, that takes us to a very interesting, fundamental question about who owns the data. In my view, it is about co-ownership and having a joint record, which everybody contributes to but which is jointly owned. That reflects the collective nature of the National Health Service. However, the noble Lords are absolutely right that we have to settle that fundamental question.

We will clean up the data and then start adding more data to it. Then, we need to add the analytical capacity that will unlock its potential. This is where we get into the realm of artificial intelligence. AI can transform prevention and improve diagnosis and the treatment of disease. As the noble Lord, Lord St John, pointed out, it can improve cost-effectiveness. Its impact will be profound, as my noble friend Lady Rock said. As we have heard, it is already transforming diagnostic imaging, and, through investment made in our life sciences industrial strategy, we are investing in a network of digital pathology, imaging and AI centres of excellence across the United Kingdom. However, as my noble friend Lord Suri and the noble Lord, Lord Macpherson, pointed out, it is true that we lag behind other industries. We need to go faster. We are now coming to the thorny issue at the heart of this: we need to make sure that the benefits of applying AI to NHS data are fairly distributed.

It was a pleasure yesterday to be able to announce our initial code of conduct for data-driven technology, which sets out the principles of how these kinds of partnerships should work. They describe our expectations on data governance and commercial agreements, about which I will say more in a minute, and provide a basis to deepen the trust between patients, clinicians, researchers and innovators. Our goal is to create a safe and trusted environment in which to encourage innovation.

I would like to highlight quickly two things that will be critical to delivering that. First, digital innovation hubs will provide a safe, secure, legal opportunity for innovators from the public sector, academia and the private sector to access patient data to test algorithms and new products for research purposes in a way that delivers the very highest standards of probity. Secondly, as the noble Lord, Lord Kakkar, pointed out, we need to talk about having the right regulation. I have asked the NHRA, which is an outstanding regulator, to look at how we can provide a framework to encourage the regulation of digital health technology from the point of view of safety and efficacy, as we do not yet have that.

On the topic of commerciality, we know that data in the NHS is a crucial national asset with huge value. Making it available for research will incentivise the life sciences sector to locate in the UK, which is something that we all want. The noble Baroness, Lady Thornton, was unwarrantedly pessimistic about the potential of these public/private partnerships. They have existed for decades between the pharmaceutical sector and the NHS, which has offered data through clinical trials and other means. This, of course, is about taking it up another level. We need to make sure that these partnerships develop, but that they do so in a right and proper way and that the NHS gets a fair deal.

[Baroness Thornton]

I absolutely accept what the noble Lord is saying, but the record so far of the NHS’s business acumen has not been great.

[Lord O'Shaughnessy]

That is a point to which I will return. I recognise absolutely the concern voiced in this Chamber and in debates elsewhere about making sure that the NHS gets a fair deal.

We have heard from the noble Lords, Lord Mitchell and Lord Freyberg, about Sensyne Health. One of our own number, the noble Lord, Lord Drayson, founded this company, which has taken an interesting attitude while working with lots of university hospitals and trusts. It has both shared equity in the company with those trusts and given them royalties for algorithms built on the data that it holds. For me, this is a step change in how we conceive of data as being not just a service rendered but a form of capital invested. As we work to create more guidelines on the right kind of commercial strategy—and I reassure noble Lords that we will work on that over the autumn—these must recognise that people view data more like a form of capital, and therefore the commercial arrangements need to reflect that. Having said that, we also need to provide a degree of flexibility. The noble Lord, Lord Macpherson, explained the difficulty sometimes not just in valuing this data—we are engaging in that Treasury exercise—but in making sure that the right arrangements occur between the public sector, the private sector and academia.

If I may, I want to take issue with something that the noble Lord, Lord Mitchell, said about the difference between “maximised” and “fairly”. We are slightly dancing on the head of a pin here, and I will explain why. Of course we want to maximise the benefits to the NHS, both directly through value sharing and, down the line, in the development of new technologies and treatments. Equally, as is the case with oil, if you ask for too high a price, people will not buy it and there is nothing to share. Therefore, when I talk about fair distribution, it is about making sure that we maximise the benefits and that the role of the NHS’s contribution in the creation of maximal benefits for health and wealth is recognised fairly.

I am interested in the noble Lord’s idea of a sovereign health fund. He and I have discussed that previously and I want to consider it more. However, it is a fair criticism that we need to improve the commercial acumen in the sector. Some ideas have been mentioned, including the creation of a technology transfer office or similar for the NHS, and we are certainly considering that.

I want to very quickly touch on the issue of skills, which was raised by the noble Lord, Lord Kakkar. We have asked Dr Eric Topol to lead a review on changes in technology and new developments to make sure that we have the right skills in the NHS. He will publish his final report by the end of the year, and that will feed into the long-term funding plan that we are developing.

We know that the NHS has a huge asset in its hands. People have bequeathed a precious gift to it and we have to get the maximum benefit from it. At the same time, we need to bring people’s trust and provide reassurance at all times. As the noble Lord, Lord Hunt, said, it is a fine balance—a line that we need to tread. The Government are very conscious of that. Things are moving quickly; we need to move quickly as well. That is why this debate has been extremely useful both in raising the salience and highlighting some of the issues but also, as I said, in providing a ground for new ideas.

Many noble Lords asked whether we will have a strategy. They will know, have seen and it has been mentioned that we have a new Secretary of State. He is not just a technophile but I believe was actually a coder at some point in his life. I reassure noble Lords that not just embedding technology but realising the potential for value and making sure it is maximised and fairly distributed will form a core part of the long-term plan we are developing. I look forward enormously to working with all noble Lords in this House who have contributed to this debate and elsewhere to make sure that we are able to achieve that goal.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Baroness Barker (LD)]

My Lords, I apologise for being slightly late. I was taken by surprise at the swiftness with which we concluded our previous business.

I thank the noble Baroness, Lady Finlay of Llandaff, for many of the points that she made in her speech. It took a lot of work to get the concept of an advance statement on wishes into this legislation, and I, like her, regret that it has not been more widely adopted or accepted, particularly by the medical profession. She will know that when the Select Committee reviewed the legislation, one of the biggest disappointments was the extent to which the Mental Capacity Act had not been understood by the medical profession. She will perhaps remember that when representatives of different parts of the medical profession come to talk to us, they began by saying that in an A&E department it is extremely difficult to work out somebody’s advance decision. We knew that when we passed the initial legislation, but that legislation was not meant solely to take its lead from that; it was meant to apply to a whole range of matters just within medicine. It is a shame that the medical profession still relies on a very conservative interpretation of the existing legislation and takes a read-out from emergency situations when it really should not, as there is plenty of time to discuss with the person what is happening and to understand their previously stated wishes and feelings.

I am glad that the noble Baroness has raised this issue. She is right that at the heart of the Bill is a fundamental change from the Mental Capacity Act. There will no longer be a whole series of decision-specific assessments of people who lack capacity, and that is not something that I object to. Over the last few years while this legislation has been in place, we have quite often found people being subjected to unnecessary assessments. It is quite clear that when somebody has a medical assessment for advanced dementia, say, they will not have the capacity to make the same decision, even though they go to live in a different place. I accept that it is possible to make a decision of a lack of capacity and to carry that forward throughout a person’s care. What I am not clear about, though—given that people will be subject to fewer assessments, and therefore be less likely to have changes in their conditions brought to light—is the extent to which that will interplay with somebody’s statement of advance wishes. I would rather like it if the Minister, in his response, could talk about how that will work.

I agree with the noble Baroness, Lady Finlay. The safeguards on liberty and safeguarding have been thoroughly confused by many people. That is fundamental. Whether we turn this around from safeguards against deprivation of liberty or safeguarding the liberty of somebody, I do not think that anything I have seen in the Bill has yet addressed that fundamental misunderstanding. In fact, in some cases, it probably compounds it. I want to put that on record as we discuss the many issues the noble Baroness, Lady Finlay, has introduced so well.

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

My Lords, I thank the noble Baroness, Lady Finlay, for her amendment and the noble Baronesses, Lady Thornton and Lady Murphy, for their amendments. I am delighted that the noble Baronesses were able to make it on time so that we could start on our deliberations of what are clearly very important issues.

The purpose of these amendments is to clarify that a liberty protection safeguard authorisation cannot override a valid decision to refuse care or treatment by the donee of lasting power of attorney or a court-appointed deputy or contained in a valid advance decision to refuse treatment. The comment that the noble Baroness, Lady Finlay, made at the start of the debate, about conflict and avoiding conflict by recognising valid decisions where they have been made, was very important. I hope that all noble Lords know that the intention of the Bill is to enhance the role and agency of those deprived of their liberty and those with an interest in the care and welfare of that cared-for person. That is why this debate on the first grouping of amendments is so important.

This debate gives me the opportunity to clarify and confirm that the Bill does not allow a decision to be made that conflicts with that made by a donee of a lasting power of attorney or a court-approved deputy’s valid, best interests decision. I am glad of the opportunity to do that. Section 6(6) of the Mental Capacity Act already provides for this, and the Bill does not change that. Therefore, an authorisation under the liberty protection safeguards could only be given if it was in accordance with a valid decision—namely, one that is authorised in the lasting power of attorney—by the attorney or deputy.

The Bill also does not change the current position regarding advance decisions to refuse treatment, and those will remain an important part of care planning. I absolutely recognise the important role that the noble Baroness, Lady Barker, and others in this House played in introducing that. I assure all noble Lords that there is neither the intention nor action in the Bill to water down the power and validity of those in any way. If a person has made a valid advance decision to refuse medical treatment, that treatment cannot be given and it would not therefore be possible to deprive someone of liberty in order to provide it. We intend to give further explanation of the legal position in the code of practice. I hope that that answers some of the key issues raised by the noble Baronesses, Lady Finlay, Lady Thornton and Lady Murphy, in their comments.

Those comments were echoed by my noble friend Lady Browning, and she is quite right to discuss the importance of support for those with communication difficulties so that they are able to enunciate the kinds of decisions and indications of future treatment that would adhere to their own wishes. We will return to this issue later in Committee, particularly when we get on to the issue of IMCAs—the advocates—but she is right to reiterate the point made in the proposed amendments that those acting on behalf of the cared-for person, whether they are the family, have an interest in care or have been formally appointed to do so, are, in the end, responsible for taking those decisions on behalf of that person, and their decisions should be respected, as the noble Lord, Lord Cashman, pointed out.

The fundamental question that underpins these amendments is: why is the Bill not explicit on these issues when, as the noble Baroness, Lady Thornton, pointed out, the Law Commission’s Bill is? Because there is no change in the current position, there is therefore no reason to outline what is already the case. Nothing is changed about what is already in the Act by what is being proposed through this Bill. Therefore, there is no need to reiterate what is already the case and will not be changed. I hope through the course of this debate that we have aired this issue. It is one that the Government agree with and, in the way that the Bill is structured, I can confirm to the Committee that there is no change in the status quo about the validity of those decisions.

With those reassurances, I hope that the noble Baroness is prepared to withdraw her amendment. I recognise that there is great concern, not least among many of the campaign groups, service providers, commissioners and others who are implementing these rules and laws every day, and they need to know that there is consistency. As we move between now and Report, I am more than happy to meet with noble Lords and others to discuss these issues and make sure that we can give every reassurance so that they can be sure that the law as it stands today has not changed and will not change as a consequence of this Bill.

--- Later in debate ---

[Baroness Thornton]

I am grateful to my noble friend for tabling this clause stand part. It was necessary for a number of reasons. I am also grateful for the contributions that have been made because they bear out the reason why it was important to put down this debate. The first reason has been alluded to by many noble Lords and is the very unsatisfactory scheduling of the Bill. It means that noble Lords and stakeholders have not had sufficient time to consider the Bill and all its amendments for today. The vast majority were put down last week, and the Marshalled List became available yesterday. It was difficult for anybody to see whether the tabled amendments probed the Bill sufficiently and made all the improvements that noble Lords deemed worthy of consideration.

There is a lesson here about scheduling: if you have the Second Reading immediately before a recess, a sufficient number of sitting days must be given to allow noble Lords to table amendments and have the necessary discussions with stakeholders and each other. Getting almost 100 amendments tabled from a standing start when the House rose is pretty good going, and I congratulate noble Lords across the House for that. Some of us were emailing each other and the Public Bill Office from the poolside or the middle of fields during the Recess. However, people are playing catch-up, which does not bode well for a thorough-going scrutiny.

I congratulate the Bill team for managing to talk to noble Lords during the Recess, but in some ways they must have had an unsatisfactory time as well because we did not have the full list of amendments until Friday evening. As many noble Lords have said—it is clear from my mailbox too—in the last two or three days stakeholders are also playing catch-up and are expressing great concern about some aspects of the Bill. In a way, the frustration that that has raised is why my noble friend has tabled his amendment to oppose the clause stand part. That allows us not only to mention things that are not covered in amendments but to raise these points.

From my point of view, and from these Benches, depending on what the Minister says in his reply, we might need to raise issues of scheduling and time to consider some of the serious implications of the Bill, and possibly table amendments at the next stage that address some of the concerns raised in this debate—particularly the issue of care home managers. Notwithstanding the issues raised by the noble Baroness, Lady Finlay—she may well be right about people understanding the processes in the Bill—that does not alter the fact that we do not know who will authorise or whether it will work.

This links to my second point, which is about consultation. I would like to know where the care home manager’s role in this came from. It happened between the Law Commission draft Bill and this Bill. Suddenly, the care home manager is it, and I think that that might probably have been a surprise for some people—certainly for the noble Baroness, who did not hold back in her views about care home managers. On the consultation issue, it is clear from the Law Commission report that it did extensive consultation, leading to the creation of its draft Bill. There were something like 83 nationwide events and 583 written responses from interested persons and organisations. Some of those events were very significant indeed, with many stakeholders. Where did the issue of the role of care home managers come from? I should like the Minister to share that with us, as he must be aware of the level of disquiet about the expectations and the responsibilities that would have to be assumed by care home managers for the assessment required to authorise the deprivation of a person’s liberty when the person lives in their care home.

I also want to know the view of the CQC on this proposal. What is the view of the care providers, the ADASS and the LGA? They are all key stakeholders in that decision. I should be grateful to have the Minister’s take on the view of those important organisations on this proposal. I could not find the issue among the material circulated by the Minister or, indeed, in the letter he sent, which I found useful and informative.

My noble friend has done the House a favour in raising these issues and allowing a large number of questions to be asked at this stage, which might inform the next day’s discussion in Committee, the next stage of the Bill and perhaps also the discussions that we will need to have in the coming weeks.

[Lord O'Shaughnessy]

I start by agreeing with the noble Lord, Lord Hunt of Kings Heath, that of course extensive scrutiny is deserved for legislation of this kind, which we have achieved both at Second Reading and, for those who could not be there, in the second Second Reading debate that we have just had. That scrutiny is obviously reflected in the 100 or so amendments that have been tabled. It is worth using this opportunity, as the noble Baroness, Lady Finlay, did to some extent, to remind ourselves why we are here pursuing this legislation.

The noble Baroness, Lady Barker, asked why now? Well, in 2014, the House identified that the DoLS system was not fit for purpose and the Government tasked the Law Commission with completing its report into DoLS. It recommended that the current system needed to be replaced as a matter of pressing urgency. I will come on to the point about the discrepancies between the two approaches but, nevertheless, that was its view. The Government stated that we would do this as soon as parliamentary time allowed—part of the issue around scheduling is indeed “when parliamentary time allows”. It is important to use opportunities when they arise to do important things, even if it means that people have to work during the summer or holidays. I realise that that is not always ideal, but the scheduling, for example, of Committee over a long period—and we will then need to think about Report—should give lots more time for these kinds of discussion. I reassure noble Lords that we want to have and are open to those discussions.

The model that we have created is based on that developed by the Law Commission and, like the Law Commission, we want to increase the protection of some of the most vulnerable people in society, to protect their rights, not just in theory but in practice, and to improve access to justice. I confirm to noble Lords that we have worked and continue to work with a range of stakeholders to build on the Law Commission’s model and to produce a streamlined system. “Streamlined” is an important way of describing this, because the noble Baronesses, Lady Jolly, Lady Barker and Lady Murphy, talked about cost-cutting. This is in fact about creating a system that has the effect that we want with the budget that it is given; that is the point. As we know from the backlog, lots of people are being denied access to justice because of a system that is disproportionate in its application. That is what we are trying to solve, so that those cases that really do deserve the highest level of scrutiny are able to receive it. That really is at the heart of what we are trying to do. I emphasise that Nicholas Paines, the Law Commissioner who led this review, said that this Bill,

“will go a long way towards addressing the flaws of the current system and better protect the most vulnerable in our society”.

I would not claim at this point in the proceedings that it is perfect. I am sure that we can improve it, but it is important that we are doing it, that we are doing it now and that it has support from the Law Commission itself.

More recently, the Independent Review of the Mental Health Act: Interim Report, which was referenced by the noble Baroness, Lady Barker, and led by Simon Wessely, stressed the need for an,

“appropriate calibration between resources spent on delivery of care and those spent on safeguards surrounding the delivery of that care”.

That is what we are trying to achieve through this process. I reassure the noble Baroness, Lady Tyler, who was quite right to talk about the interaction and interface between the two Acts and how they operate that, while we are taking this opportunity to act now while we can, if there are future recommendations that mean there have to be further changes, we would be open to those. This will not be the last opportunity to make sure that the interface between the two Acts, once the reviews have been completed, could be amended, if that is what is necessary. It is important that we have acted now and that those 108,000 people currently in the backlog will have swifter access to justice—that is the main argument. That is my Second Reading speech summarised and repeated.

From what the noble Lord, Lord Hunt, has said, I do not think that he wants to remove this clause, not least because it would remove the new system while not stopping the repeal of the current system, and nobody wants that. At the heart of what the noble Lord spoke about is this focus on care homes, which I think is worth dwelling on. The system has been carefully designed to ensure that there is independence and proper accountability. Care homes will not authorise any applications. That will fall to a wholly independent responsible body—the local authority.

--- Later in debate ---

[Baroness Thornton]

I understood that the Minister said “escalate”, which means that something changes. Perhaps when he is answering the question of the noble Baroness, Lady Barker, he could also explain the word “escalate”.

The Government may need to think about carrying out some form of assessment of the appropriateness and suitability of care home managers to undertake this task. If that has not been done, perhaps it needs to be done in the next month or so.

[Lord O'Shaughnessy]

In answer to the noble Baroness’s question, the point that I was making is not that the role of the care home manager will not change but that they are not being asked to do something of which they have absolutely no experience or responsibility for at the moment. As the noble Baroness, Lady Finlay, pointed out, care home managers are already required to make applications and to consider capacity and restrictions, so they already have a role. The distinction is that, as the Bill sets out, the assessments can be made within the care home itself—of course, not by a person with direct responsibility for care. That is one of the issues, of avoiding conflict of interest. In all cases, those will be authorised by the local authority. If there is any reason, through that authorisation, for concern—for example, of conflicting views between the person cared for and their family—then the AMCP, the mental capacity professional, will have the opportunity to decide on the right course of action. That is what I meant by escalate—not that there is a choice of whether to escalate authorisation to the responsible body, as that will happen in all cases, but that there is a further opportunity for consideration by an AMCP if there is any sense of this happening. We will explore in more detail in future groups whether there is a reason for further investigation, including, of course, speaking to the cared-for person, their family and others.

[Lord Hunt of Kings Heath]

With regard to what is going to be a desktop exercise, the question then arises as to how the local authority will know that there are concerns. On conflicts of interest, it seems that the job of the care home manager is to make sure that their home is filled. There is a fundamentally wrong issue here. The initial assessment will be done by someone with a financial interest in its outcome. It is wrong.

[Lord O'Shaughnessy]

Perhaps I may say that to some extent we are getting ahead of ourselves, because we will explore these issues in further amendments. There is clearly already a system in place, which will continue and will be enhanced, to make sure—whether it is through family members and others with an interest, or, as we have discussed before, through those with a lasting power of attorney—that those who have an advocate working for them are able to register their concerns, objections or whatever it is through the process. So it is not simply the case that the care home manager would be able to wrap up the entire discussion and not let any other point of view be heard—quite the opposite. And, as I said, we will discuss that in further detail.

On training issues, addressing the second point talked about by the noble Baroness, Lady Thornton, she is quite right. That is precisely why I said that it is important for us, the Government, to explain, on the basis of consultation with the sector, what will be required to make sure that those who will have these extra responsibilities will be able to exercise them properly. We will discuss that outside this Chamber. I know that noble Lords want to make sure that, where there is a proposed change, even if they still require some reassurance about the benefits of such a change, it will be implemented properly. Clearly, that has big implications for training, capacity and so on. So we will take that away and make sure that we are able to provide more detail on it.

Clause 1 agreed.

--- Later in debate ---

[Lord Touhig]

My Lords, the Law Commission supports this and I certainly support the amendment as tabled by my noble friend Lady Thornton. Including 16 and 17 year-olds would offer some legal protection for organisations such as the National Autistic Society, of which I am a vice-president. We do a huge amount of work with young adults and strongly believe that this is important for them—for their work and for their future. This was raised during Second Reading by a number of people—I was one of those who raised the matter. The Minister indicated that he would look at it and, indeed, in a letter from him on 24 July, he said:

“During my speech I indicated that I would like to reflect on the matter of how the model could fit with 16 and 17 year old young people”.


Perhaps, when he gets up, he will have some good news for us.

[Lord O'Shaughnessy]

I would like to thank the noble Baronesses, Lady Thornton and Lady Murphy, for tabling these amendments, which seek to apply the liberty protection safeguards to 16 and 17 year-olds in the same way that they apply to adults. Noble Lords have been absolutely right to point out, as they did at Second Reading, that in the Government’s response to the Law Commission report, we accepted in principle that 16 and 17 year-olds would be included in the new liberty protection safeguard system. I know that noble Lords are motivated not just get to get this right in general but also, as the noble Baroness, Lady Thornton, said, in relation to specific cases that are known to them, sometimes very close to home. I understand and sympathise absolutely with the desire to do that.

The noble Lord, Lord Touhig, is also right to say that it is something I said I would consider and would seek to bring further news. We are still considering this very actively. What is clear even from this brief debate is that, as the noble Baroness, Lady Tyler, pointed out, there are some critical interactions that we need to get right with other bits of the system. These include the role of parents, how the safeguards would apply to looked-after children, and interaction with processes such as the education, health and care planning processes for those with special needs and disabilities. As the noble Baronesses, Lady Murphy and Lady Thornton, reminded us, we need also to be mindful of the current court case.

At this stage, I repeat and underline our commitment to make progress and to offer the best possible protection for this group of vulnerable young people. Proper scrutiny and detailed thought is required, and that thought is ongoing. I recognise the arguments for including this group. Like all noble Lords, I want to make sure we get this right and get the interactions right, so that they do not end up being fixed subsequently by the courts, as the noble Lord, Lord Hunt, pointed out in a different context.

Our intention is to use the time between now and Report to continue having those discussions, both with noble Lords and with stakeholders throughout the sector, to make sure we can get this right. On that basis, having given the commitment that we will work hard to do what we can between now and Report to get the right outcome, I hope the noble Baroness will be prepared to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for that. What can I say but, “Thank you, and let us hope so”?

--- Later in debate ---

[Baroness Thornton]

These Benches support the amendment. As the noble Baroness, Lady Tyler, and others have said, the reference to unsoundness of mind is offensive to those with learning disabilities, dementia and brain injuries and their families. The noble Baroness, Lady Barker, has just demolished all the legal arguments for including the phrase in the Bill, and indeed a lot of organisations, including the Royal College of Psychiatrists, say that it out of place in today’s society. The GMC argues that it is not clear what added protection or benefit is achieved by using the term. VoiceAbility says that “unsound mind” is not used in modern psychiatry and that it could lead to debate in disputes. Therefore, I hope that the Minister will be as agreeable about this amendment as he was about the last one.

[Lord O'Shaughnessy]

I do hate to disappoint. I thank the noble Baronesses for introducing this point. We discussed it at Second Reading and I have huge sympathy with the concerns about this kind of language. Frankly, it is not the kind of language that we use. As the noble Baroness, Lady Murphy, pointed out, she has not diagnosed anyone as being of unsound mind for decades. It is a throwback and we are in the process of destigmatising mental health issues, as the noble Lord, Lord Cashman, pointed out. That is an endeavour that we are engaged in earnestly together. However, it is important to distinguish between the operational language used in care and the language used in the courts, and I want to discuss that.

This is not just about semantics; it is about terms that have established legal precedent and a jurisprudence based on their interpretation. It is worth discussing the consequences of deviating from a term that is in current use because of its role and the fact that the phrase is used in the European Convention on Human Rights. As the noble Baroness, Lady Tyler, pointed out, the term has not changed since the 1950s and the creation of the ECHR, and it has subsequently been used by the Strasbourg court. There is a risk, and it is worth recognising, even if it is one that noble Lords might be prepared to contemplate. The risk is that a different expression such as the one proposed by the noble Baroness, Lady Tyler—it is a perfectly reasonable starter for 10, as I think she called it—could create a gap for some people who need access to liberty protection safeguards but do not meet the criteria of having a disorder or disability of mind, although they would have met the criteria of unsound mind.

It is important to note that the Law Commission used this language. We have been accused of deviating from the Law Commission Bill but it used this language and we have copied it to ensure that the liberty protection safeguards are compliant with the ECHR and that there is no gap with people not being covered. This could include people with learning disabilities, brain disorders or disorders of consciousness. In essence, the problem here is not this Bill. In a way, the Bill has a problem because of the language that has not been changed since its creation in the ECHR.

Therefore, although I agree with the sentiment behind the amendment, new terminology would risk creating a gap for people between the ECHR and this proposed law, and we are all concerned to avoid such gaps. Any gap would require people to have recourse, instead, to the Court of Protection. Therefore, it is not the case that people would have no recourse; they would have recourse to the Court of Protection, but we know that the people being cared for and their families and carers can find that an intimidating and difficult process.

It is also important to note that the Court of Appeal has indicated that some people with certain forms of learning disability might not be considered mentally disordered under the definition put forward by the noble Baroness but would still be considered of unsound mind for the purposes of the convention. That is another reason why there is a risk of a gap. For example, there is a particular risk that some individuals with brain injuries, or certain disorders of consciousness, might fall within the gap.

At Second Reading I did say, earnestly, absolutely and honestly, that I wanted to take this away and consider it, because of the frankly unsatisfactory nature of the term when it comes to modern practice. We have also listened to the contributions of a range of stakeholders—a number of people are of course very interested in this, and not just in this House—and to the contributions of the Joint Committee on Human Rights to see whether it is possible to use better language. I know this is not something the House will welcome, but I have concluded that, although the term is regrettable, there is a risk in using alternative language of creating a gap. Between those who would be captured under the definition suggested by the noble Baroness, Lady Tyler—or, indeed, potentially any other definition—and those currently captured under the terminology “of unsound mind”—

--- Later in debate ---

[Lord O’Shaughnessy]

I am glad that we have had a subsequent opportunity to discuss this. I would like once again to restate that I personally, and government Ministers, officials and others, do not find this comfortable language. I know that the noble Baroness, Lady Watkins, did not mean it this way, but this is absolutely not a case of trying to take us back to the 1950s. In proceeding with this legislation, we have to make sure that people who currently get protection do not lose it. I know that we all agree that we do not want that to happen. If you like, that is the goal; the law is the means, if I may say so to the noble and learned Lord, Lord Woolf. The key is making sure that we have the terminology that will reflect that we do not want people falling through the gap. It is perfectly reasonable to ask, “What is the nature of this gap?”

The Court of Appeal in G v E said that a gap would arise. Our understanding and advice from lawyers is that current case law indicates that there might be individuals—I do not have specific details of the kind of conditions from which those people might be suffering. It is worth pointing out that the Court of Protection also uses the term “unsound mind” at the moment. It is a term that is clearly operable in a legal context but which has become inoperable in a medical context. That is the challenge we face and which we have explored in this discussion and at Second Reading.

We have given this very careful consideration. We need to be incredibly conscious of not creating that gap. However, I also understand that noble Lords would like to see more evidence of two things. First, there is the reality of the gap: who, what kinds of people and what situations? That is a perfectly reasonable thing to ask. Secondly, has there been further exploration of alternatives to what we all agree is an outmoded and regrettable phrase? I am absolutely prepared to commit to do that between now and Report, because I share noble Lords’ intentions that we should make sure both that we move with the times and that we do not remove protections from people currently entitled to them, or who would have been entitled to them, in the future. On that basis, I hope the noble Baroness might be prepared to move on from her starter for 10 and withdraw the amendment.

[Lord Woolf]

In the list of people whose help the Minister is going to seek, may I suggest that parliamentary counsel be invited to consider whether it is possible, through the use of language in the Bill, to ensure that there is no gap?

--- Later in debate ---

[Lord Woolf]

Perhaps I may respond by giving one lawyer’s view on the matter referred to by the noble Baroness, Lady Thornton. I should put on the record that I am a member of the Joint Committee on Human Rights and therefore was a party to the report, and of course I support it.

When the opportunity arises to deal with a situation where it is clear that a decision of the Supreme Court has had consequences which may never have been anticipated, it would sometimes be helpful if the judges had the opportunity to look at the matter again. If the sort of steps so ably advocated by the noble Baroness, Lady Murphy, were taken, I would suggest that serious consideration should be given to them as they could have a beneficial effect from the pragmatic point of view as well as on the point of principle.

I am sorry, but I ought to have added that I have a relative who could be affected by this legislation, and I declare that.

[Lord O’Shaughnessy]

I am grateful to all noble Lords who have spoken to their amendments, which have produced this discussion on the application of the liberty protection safeguards. Indeed, the noble Baroness, Lady Murphy, said that this goes to the heart of why we are here in the first place. I know that she has long-standing concerns about the DoLS system both in its application and the scenarios where it may or may not be appropriate, to whom it should best be applied and so on. I know that that is what has motivated her attempt in this amendment. She and others, including the noble Baroness, Lady Thornton, have said that this is the start of a process.

The first amendment in the name of the noble Baroness addresses the circumstances in which the authorisations could be given in a care home or supported accommodation environment, and people deprived of their liberty as interpreted in the Cheshire West case. As the noble and learned Lord, Lord Woolf, pointed out as a member of the committee, the Joint Committee on Human Rights has recommended introducing a statutory definition of the deprivation of liberty in its report The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards. I can tell him and all noble Lords that we are considering its findings closely. Many noble Lords have expressed a desire, whether in the form set out in the amendments in this group or otherwise, to explore the possibility of including a statutory definition in the Bill. Following this discussion, that is something I should like to consider further. It is worth stating, however, that there are risks in doing so because it means that to change a definition requires primary legislation. Noble Lords are much more knowledgeable about and aware of those risks than I am, but nevertheless it is something that warrants further consideration.

I am also sympathetic to the sentiment expressed by the noble Baroness, Lady Murphy, about the state involving itself unnecessarily in family and private life while also being mindful of making sure, as we all are, that individuals are not denied the safeguards they need and that we are complying with our obligations under Article 5 of the ECHR. The effect of her amendment would be to limit the circumstances in which arrangements giving rise to deprivation of liberty in a care home or in supported accommodation can be authorised under the liberty protection safeguards, but of course that would mean that such arrangements would still have to be authorised by the Court of Protection. We have already discussed how that can be burdensome and expensive for families. It is for that reason that domestic arrangements were included in the deprivation of liberty safeguards. Given that, while in general I would like to have a further discussion around definitions, there is a problem with the definition that the noble Baroness has provided because of its application in that case.

[Baroness Murphy]

Perhaps I may just say that the amendment is my first stab at the issue with no help in creating it or any legal consultation. My next will be a lot better.

[Lord O’Shaughnessy]

I am sure it will be and I look forward to seeing it.

As she pointed out, the noble Baroness has a second amendment which makes the point that the steps taken to deprive a person of liberty, life-sustaining treatment or a vital act should be of benefit to that person, and of course we all agree with that. But as the noble Baroness, Lady Finlay, pointed out, before any authorisation is made or arrangements take effect, a decision will first need to be taken that the care or treatment is in the person’s best interests in accordance with Section 4 of the Mental Capacity Act 2005. It is important to note that this amending Bill does not change it, so that will continue to be true if the Bill before us in this House is taken forward as it stands. The legislation is already clear that if actions are taken to deprive someone of their liberty in these situations, it must be to the benefit of the cared-for person. That was at the heart of the amendment spoken to by the noble Baronesses, Lady Jolly and Lady Thornton, so I want to take this opportunity to say that that provision continues to exist because the best interests test foreruns the subsequent necessary and proportionate test, which we will explore in a subsequent group.

On the point made by the noble Baroness, Lady Finlay, about limiting the time for the duration of authorisation of the steps necessary for life-sustaining treatment or vital acts, the intention, as she will know better than me, is to move consideration of the deprivation of liberty to earlier in the planning stage. Nevertheless, there will be cases where it needs to be applied in an emergency situation. I do not need to bring that to light because other noble Lords have done so. Her amendment, which I think is probing, would require authorisations to be renewed every seven days. She will know that there are limited periods at the moment, but unfortunately they are not always adhered to. If we are honest, they can become a target rather than a limit, and I think that is what is happening. We need to make sure that we have a system which gives providers greater clarity but does so in a way that is more sophisticated than could be achieved in legislation. I therefore agree with her that the code of practice is the right vehicle for that because it will be able to outline the different circumstances and scenarios and thus give a much richer picture of the kind of situations and principles that ought to be considered.

This has been a very useful debate and, as I have said, I should like to take some time between now and Report to consider the opinion expressed by noble Lords and in the report of the Joint Committee about the benefits of a statutory definition. Having started that discussion, which is obviously the phrase of the evening, I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Murphy]

My Lords, I am grateful to the Minister for his positive response to the ideas if not to the amendments themselves. We will return to this at the Report stage, as he has said, and I hope that we may have forthcoming from those associated with the Joint Committee on Human Rights some support at that point for the further debates in this area. With that, I beg leave to withdraw the amendment.

--- Later in debate ---

In summary, the amendments ensure that the wishes and feelings of the person concerned, if ascertained, must be reflected in any decision about their care. If any one of us or anyone in our families were in such a situation, would we not want that for ourselves and them?

[Lord O’Shaughnessy]

I am very grateful to all noble Lords who have contributed to the debate for their desire to be brief, which I know was shared by others who have not been part of the discussions on the Bill, but it is also important to be comprehensive in discussing these issues because, as pointed out by the noble Lord, Lord Touhig, the best interests of the people being cared for is what this is all about.

I know that this is an issue for noble Lords; it was raised at Second Reading and has been raised again in this debate. It is important to state that best interests decision-making for care and treatment remains fundamental to the Mental Capacity Act. In a way, it is the founding stone around which the rest is built. The liberty protection safeguards sit under the aegis of the Act. The Bill does not change that. One request made by noble Lords at Second Reading was for us to publish the Act as amended by the Bill. We have done that; I understand that it is in the Library. I can make sure that a digital copy is circulated, and I will make sure that it is sent to all concerned. Clearly, understanding the flow of how it is read in not just legislation but the code of practice is critical. I want to make that clear and I understand that important desire.

Under the current system, there are two different best interests tests: one exists under Section 4 of the Mental Capacity Act—the decision, usually made by a clinician, to provide care or treatment—and a second, separate, additional one falls within the tests required for the DoLS system. The Law Commission recommended that the DoLS tests be replaced with a necessary and proportionate test. In that sense, we are following where it led. Prior to a liberty protection safeguards authorisation being considered, the decision will need to be taken, normally by a clinician, that the care or treatment enabled by the arrangements is in the person’s best interests. As I said, that will apply under Section 4. Subsequently, it must be demonstrated that the arrangements to enable that care and treatment are necessary and proportionate. Of course, that is the single test applied by the liberty protection safeguards; it is a secondary test following a consideration of best interests.

The current requirement that the deprivation of liberty must be necessary, proportionate and in the person’s best interests is instead replaced by a single, primary best interests test in an attempt to avoid confusion and conflict—the word used by the noble Baroness, Lady Finlay, at the beginning of the debate—between two determinations. The focus of the second-stage test on what is necessary and proportionate is an attempt to remove this confusion. It is not an attempt to downgrade in any way the primary and prior importance of a person’s best interests being taken into consideration.

As well as giving that assurance, I want to pick up on the point made by the noble Baroness, Lady Finlay, that avoiding risk to the cared-for person will form part of the necessary and proportionate test. There is already a principle in the Mental Capacity Act to use less intrusive arrangements, which will continue to remain, unamended, an important principle in the new model. As was brought to light by the noble Baroness, Lady Finlay, and other noble Lords, the application of “necessary and proportionate” requires a degree of granularity that makes it difficult to overdetermine in legislation, and that is the reason why the code of practice is so important. That is why it will contain a range of scenarios, principles, circumstances and so on of what the application of a necessary and proportionate test should look like.

I hope that I have been able to assure noble Lords, whose considerations I take very seriously, that best interests are foremost in our minds and will remain so in the legislation, unamended by the changes brought in by the Bill. Clearly, I want to make sure that this sentiment and its legal power are understood by all concerned, particularly if there is concern in the wider sector. As I said, I do not believe that a second test is necessary; as said by the Law Commission, it could be counterproductive. It is important that we make sure of a clear understanding of the primacy of the best interests test. I would like to explore that with noble Lords to make sure that it is properly understood by all; we can do that between now and Report. On that basis, I hope that the noble Baroness will be prepared to withdraw her amendment.

[Baroness Barker]

I thank the Minister for his helpful response. As we begin to get to the heart of the debate, he will understand that he and the Bill team can perhaps see the Bill as a whole, but the rest of us are struggling to do so. Therefore, we have to test individual elements of it, perhaps to a greater degree than he may think is warranted. None the less, it was helpful of him to put those statements on record. With that, I beg leave to withdraw the amendment.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, this group of amendments tests the proportionate nature of the decisions being taken. Amendment 29 would put the views of the cared-for person at the centre of the assessment and ensure that adequate weight was given to their wishes and feelings. I have not been able to find in the Bill where that is expressed, and that is shocking and surprising. We have to see a clear statutory duty to consult the cared-for person, and the scope of that consultation must include their past wishes, feelings, values and beliefs. I invite the Minister to tell me whether he believes that the Bill as it stands achieves that, because I cannot see that it does. If this amendment is not agreed to, the Minister and the Bill team must think about how they can best make sure that the Bill reflects the need for consultation with the cared-for person.

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

I thank noble Lords for tabling their amendments and for contributing to a debate that has continued the discussion that we had before dinner. It again gets to the heart of why we are here, which is to make sure that when people need to be deprived of their liberty, it is in their best interests to do so and that the restrictions are proportionate and necessary and so on.

I agree with the spirit of the amendments. It is important that we intend to, and do, safeguard the well-being, wishes and feelings of the cared-for person. Dealing with the first set of amendments, I take this opportunity to reassure noble Lords that the changes being sought are already required by law in several ways.

First, the European Court of Human Rights has made it clear that a decision on whether arrangements are necessary and proportionate must include consideration of the cared-for person’s wishes and feelings about the arrangements. It should also be noted that, as the noble Lord, Lord Hunt, pointed out, wishes and feelings are already a part of the first-stage best interests decision-making under Section 4 of the Mental Capacity Act and I can confirm, as I have done already, that the Bill does not change this. Furthermore, wishes and feelings will also be considered as part of the “necessary and proportionate” test, and the code of practice will provide further detail about how that will work in practice.

Going even further, as has been referenced by several noble Lords, we have created in this Bill a specific requirement to ascertain a person’s wishes and feelings in relation to the proposed arrangements through the duty to consult with anyone with an interest in the cared-for person’s welfare—first and foremost the person themselves, as well as their family, carers, friends, advocates, interlocutors or anybody with a substantive interest in their care. I believe that there is substantial legal protection, force and direction to make sure that the person’s wishes and feelings are considered first and foremost in any of these kinds of arrangements. As this debate has demonstrated, there are clearly lingering concerns that that is not the case, because of the existing framework, notwithstanding the enhancements through the duty to consult that we are introducing. However, I am eager to make sure that it is well understood, and to work with noble Lords so we can make clear that those responsibilities already exist, both in statute and—

[Lord Hunt of Kings Heath]

I understand the Minister’s argument, were it not for the fact that the amendment, in paragraph 17(2)(a) to (d), just copies what is already in the best interests clause. I would argue that, if we are going to copy four of those, why do we not copy the issue about the cared-for person being listened to? The Minister is arguing different points from amendment to amendment on this.

[Lord O'Shaughnessy]

We try to be consistent, but it is not always possible. The noble Lord makes a good point; it is something that I would like to explore further.

Turning to the matter of considering less intrusive arrangements, again this is incredibly important. Case law establishes that the test of whether the arrangements are necessary and proportionate must also include consideration of whether less intrusive arrangements are available and have been fully explored. As we discussed in the last debate, it is already a principle under the Mental Capacity Act. The code of practice will provide further detail about how that will work in practice.

This has been a useful debate, continuing, in some ways, the previous debate on best interests. As we have all agreed, it is important that the person’s wishes and feelings are at the centre of arrangements being proposed. That is certainly our intention through the liberty protection safeguards scheme that we seek to introduce. I want to continue working with noble Lords over the coming weeks to make sure that there is clarity that that is the case. I hope that on that basis, the noble Baroness will be prepared to withdraw her amendment.

--- Later in debate ---

[Lord O'Shaughnessy]

I take the points that the noble Baroness is making. Obviously we will discuss this further. But it is important to reflect on the new duty to consult. It is not a duty to consult everybody but the person, so it is not fair to say that there has not been an earnest attempt in the Bill to make sure that the person is fully consulted in the necessary and proportionate test, even if the noble Baroness does not like the precise way that that has been done. It is important to set that out.

[Baroness Thornton]

It is a spectacular omission not to mention the very person whose liberty is being restricted. I ask the Minister and the Bill team to remind themselves of Articles 5 and 8 of the UNCRPD, which mandate such consultations.

--- Later in debate ---

[Lord Touhig (Lab)]

My Lords, I am very pleased to follow the noble Baroness. I think she made her maiden speech at Second Reading; it was an important contribution. She has sat through this debate and made a few important points. We certainly welcome her and look forward to further remarks from her as we proceed with our considerations.

I support the amendment in the name of the noble Baroness, Lady Hollins, addressing as it does concerns expressed by me and other noble Lords at Second Reading. The Bill provides a different route of authorisation for a deprivation of liberty when a cared-for person lives in a care home. In this circumstance, it places a new duty on care home managers to carry out the assessments and consultation prior to authorisation. I echo the noble Baroness’s concerns that this creates a conflict of interest. We have already considered some of these aspects earlier but none of us needs make any apology for coming back to it because it is so very important. Care home managers will have an important insight into an individual’s needs and they should be included as a source of information, but a responsibility to carry out the assessment requires more than simply providing information. It is a different skill set from their expertise as a provider.

Furthermore, care home managers are not independent and although they are not responsible for granting the overall authorisation, the contents of those assessments will be key to local authorities’ overall determination. This is particularly important where there are concerns about weaknesses in the pre-authorisation review outlined in Clause 18. That clause does not, as drafted, secure the independence of the person carrying out the review. It does not ensure that a rigorous review is carried out. As it stands, it risks the pre-authorisation review. The overwhelming majority of care home managers would undertake their duties honestly and assiduously.

However, we have to face facts. This Bill, as drafted, leaves the door open for a dishonest assessment, and we have to speak plainly about it. That should concern this Committee as we are debating the system of legally depriving some of the most vulnerable people of our society of their liberty—nothing can be important than that. Furthermore, it is unclear what assessment the Government have made of the burden this would place on the care home managers. This will account for more of their time, which is scarce in any event. It will also add new complexities to their role; perhaps the Minister might want to further tell us how the Government envisage a proper training programme and what resources will go alongside it to allow them to perform these new duties.

The concerns I have outlined are widely held. They have been expressed not just by me but also by a number of charities. It should be noted that the amendment before us has the support of the National Autistic Society, of which I am a vice-president, Age UK, the Alzheimer’s Society, the British Institute of Human Rights, Liberty, Mind, Rethink Mental Illness, the Royal Mencap Society, Sense, and VoiceAbility —we could go on. They have also been expressed by the Law Society. Those concerns are also held by professionals.

A survey carried out on the Government’s proposals by Community Care and Edge Training & Consultancy asked professionals whether they agree with the proposals that care home managers would carry out assessments. An overwhelming majority—86%—disagreed. My goodness, we could have those votes in some elections. It is certainly a very powerful message. That question also provoked the highest number of written comments and these are relevant to our debate. One said: “This is the most obvious concern with the new proposals: there is a direct conflict of interest with the provider”. Another said: “Where is the independent viewpoint?” A third said: “This process will be a waste of time at all levels if the initial process is not completed thoroughly”.

It is right that we subject this aspect of the Bill to thorough scrutiny. It was not part of the draft Bill produced by the Law Commission and therefore has not been spoken about and debated at length, as have other aspects. It has gathered significant criticism too, and we should be prepared to listen to that criticism. Therefore, the noble Baroness’s amendment strikes a very sensible balance. It ensures the independence of the assessment process, it alleviates some concerns about the independence of the pre-authorisation review, and it also secures the important role of care professionals in providing vital insight into the individual’s needs. I echo the noble Baroness’s requests for the Minister to give us his views on the conflict of interest that arises from this clause, and whether we may instead consider ensuring that any assessment is carried out by someone independent of the care home. This is a very important matter which we will be coming back to a lot, I am sure.

[Lord O'Shaughnessy]

My Lords, I am grateful to the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt, for tabling these amendments and to all noble Lords who have given us the opportunity to explore what is obviously emerging as a critical part of the proposals in the Bill. As noble Lords have said, the amendments would remove the inclusion of care home arrangements from the Bill—that is, the duty of care home managers to arrange the various assessments—and instead substitute a duty on the responsible body to carry out those assessments while involving the care home manager in such cases.

In 2014, this House found that the DoLS process was bureaucratic and overly complex and that is what we are trying to address. We are trying to create a streamlined system that does not—the noble Lord, Lord Touhig, is right to warn that it should not—open the door to dishonest assessment, but rather make sure that everybody gets an appropriate assessment of whether their deprivation of liberty safeguards is in their interests, necessary, proportionate and so on. That is what we are seeking to do. I want to spend a bit of time going into this issue because I think there is a misunderstanding about what is proposed by the Bill.

Under the arrangements in the Bill, in care home cases, the care home manager would be responsible for arranging the assessments for the responsible body—not necessarily carrying out, but arranging; I will come to who carries them out in a moment. This would ensure that existing assessments and assessors who know the person best can be used where appropriate. Noble Lords have asked who will be carrying out these assessments. I will explain that in a moment.

--- Later in debate ---

[Baroness Hollins]

I asked about the difference between care homes and supported living and just that conflict.

[Lord O’Shaughnessy]

I will briefly come to that. In supported living arrangements, the local authority, the CCG or the local health board would arrange the assessments. It would automatically be that body, as opposed to the supported living provider. I hope that will provide the reassurance the noble Baroness is looking for. It would be the commissioning body in that case.

[Baroness Hollins]

It may be that a lot of the thinking has been done around elderly people and people with dementia as opposed to people with learning disabilities. In the learning disability world, there has been such encouragement towards supported living that they are often within the same organisation, even within the same setting. It seems very strange that you would have a manager who ends up being responsible for a care home, where they have the responsibility, and for supported living, where somebody else has the responsibility.

[Lord O’Shaughnessy]

I am grateful to the noble Baroness for clarifying that. I will seek to understand the implications of the Bill for those cases, and I will make sure that I write to her and all noble Lords with an explanation of what is envisaged.

[Baroness Finlay of Llandaff]

I hope the Minister will forgive me because we are now on an incredibly important part of the Bill. If we can get together and work through it, I wonder whether we need to look at a way that a specific person from the local authority—I gather that it happens in some parts of England and Wales but not everywhere—has a link to different care settings and gets to know them well. We are talking about the people we know about, but the people who are most vulnerable are those we do not know about, who have not been notified into the system. If that person knows a place and the quality of the care there, they may be inclined to have a lighter touch there than on places where there has perhaps been a turnover of staff, a change of management, and so on. They may feel that they want to do some face-to-face assessments to verify the quality of the care being provided—not in the CQC role, but in terms of the care delivered to the person who has impaired capacity.

I put that out there now because I am sure that this debate is being watched and monitored. It might be interesting to see whether we get any feedback on some of the points we have raised during the debate, because so many people have expressed concern and want to know what we are saying.

[Lord O’Shaughnessy]

I shall give just a brief response to that. It is a good idea. The Government think that the proposals for care homes, how they will carry out commission-needs assessments and the process for reviewing and authorising where necessary are a critical part of creating a more proportionate system that does what it says it will do, rather than the current system, which says it will do a whole bunch of things and then does not actually do them. That is where we want to get to.

I am being robust, as it were, in defence of the model. I want to explain—I think noble Lords are enthusiastic about this—how this will work in practice with the kinds of people who are most likely to be in the most difficult situations, so there is a clear understanding of the safeguards that exist to prevent conflicts of interest, provide independent oversight, make sure there is advocacy to support, and so on. It is clearly the case that there is not yet that understanding, and we need it to proceed.

[Baroness Barker]

I thank the Minister for his explanation, which has been very helpful. Over the next few weeks, while he is seeking to give further clarification, I wonder whether it would be possible to explain this. One of the Government’s arguments is that the consideration of deprivation or the safeguarding of liberty should come much earlier in the care planning process. Most care is commissioned, most of it by local authorities. Can the Minister explain—perhaps not now at this late hour—how the commissioning of services will change to reflect the new system?

[Lord O’Shaughnessy]

There is a useful flowchart that exemplifies it and brings it to life. I will make sure that it is shared. I agree that we need to find ways of bringing it to life, and that is something we can do outside this Chamber.

[Baroness Hollins]

My Lords, I am most grateful to the Minister for his reassurance that the care home manager’s responsibility is only to arrange the assessments. The Mental Capacity Act is so important that we have to be sure that we do not make it worse. It is a good Act, and the main problem identified in the Post-legislative Scrutiny Committee was that it was not well understood. It is emerging that the stakeholders are not understanding what is intended. We should be trying to make it easier to understand and operate, not more complicated.

The noble Lord spoke of trying to legislate for a streamlined process. I am rather worried about legislating for some of these matters, and I am beginning to think that some aspects need to be in regulations rather than in the Bill, just to make things as simple as possible, but also amendable without having to come back to primary legislation. I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Touhig]

This is a very small but very important amendment. Having spent 27 years in newspapers and publishing, I constantly came across issues and stories where people were having all sorts of difficulties, public services failed and systems failed because of lack of information. Certainly from my time as a councillor, as an MP and as a Minister, I passionately believe that we must be open and transparent and must share information. That is key to this part of the Bill, and we certainly strongly support the points made by the noble Baroness.

I do not intend to detain the House more than that, other than to say that the noble Baroness, Lady Finlay, may not be aware that, when I was a Wales Office Minister and she was a new Member of this House, she terrified my officials. They would come in and say, “Minister, it’s that Baroness Finlay again; she wants information on so and so”. She is pursuing her quest for information even today, which I think is very important and valuable. We strongly support her efforts in this area.

[Lord O'Shaughnessy]

I am grateful to the noble Baroness for tabling this amendment and to the noble Lord, Lord Touhig, for endorsing it. I will not detain the House other than to say that, clearly, the intention to make sure that there is not a discrepancy and, where there is, that there is a flag, is one that we share. We need to be alert to any issues of concern that would warrant further investigation, or indeed referral to an AMCP.

This is something that I think best sits within the code of practice, and I can confirm and commit that instructions along these lines will form part of the code of practice, as well as many other examples of where an authorising body should be seeing signs of concern. I am grateful for the opportunity to confirm that, and I hope that reassures everyone.

[Baroness Finlay of Llandaff]

I am grateful to the Minister and to the noble Lord, Lord Touhig, for his remarks in support—including his humorous ones. On the basis of that, I beg leave to withdraw the amendment.

Brexit: Food Standards Regulations

Lord O'Shaughnessy Excerpts

Tuesday 4th September 2018 Lords Chamber

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

My Lords, before leaving the European Union the Government will, under the European Union (Withdrawal) Act 2018, bring before Parliament regulations that will make technical amendments to EU-derived and retained food safety and standards law to ensure that the regime operates effectively after Brexit. In making any such amendments, the Government will ensure that the UK’s food standards and safety regime maintains the same high standards of protection.

[Lord Bassam of Brighton (Lab)]

My Lords, I ought to be reassured by the Minister’s reply but I am not. In light of his refusal to rule out suspending the UK’s food standards regulations if there is no deal, is this measure being considered seriously? Will the Government publish an impact analysis of such a measure and further commit to working with organisations such as the Chartered Institute of Environmental Health to ensure that all necessary food safety steps are taken before proceeding? Finally, do the Government plan to issue a ministerial direction to the Food Standards Agency regarding its statutory duty to put consumers first in relation to safe food?

[Lord O'Shaughnessy]

I can tell the noble Lord that we will be maintaining the same standards of safety and protection. We will be seeking not just continuity but equivalence. We may want to go further in other areas. Of course, this will be for discussion with the House. The ongoing role of the Food Standards Agency will be as it is now, to make sure that public health and consumers’ interests continue in relation to food. There is no need to issue a ministerial direction or anything else to ensure this because it is its legally given role and one it will continue to fulfil.

[Lord Deben (Con)]

Is the Department for International Trade aware of these facts? It appears to be thinking of agreements—were we to leave the European Community—in which we would have to accept the much lower food standards of countries like the United States.

[Lord O'Shaughnessy]

There are no suggestions that there should be lower food standards. Obviously, after we leave the European Union, the Food Standards Agency will carry out any risk assessments. There are no proposals to change these rules; we will continue with them. Of course, there would be a proper scientific and evidence-based assessment if there were such suggestions.

[Lord Rooker (Lab)]

Will the Minister give an assurance that, after we leave, Ministers will play no role in food safety risk assessment? Will a mechanism be found to transfer what takes place in the European field to some independent body, maybe with the Chinese walls of the existing Food Standards Agency? It should not go back to Ministers because they are there to promote the food industry—a role that is in conflict with securing safety for consumers.

--- Later in debate ---

[Lord O'Shaughnessy]

The noble Lord raises an important point. This is a good opportunity to clarify what we are proposing. At the moment risk assessment takes place through the European Food Standards Agency. Risk management decisions are made by the Commission and the Council. Following Brexit, we would look to replicate that split with risk assessment taking place in the independent agency and risk management decisions being made by Ministers.

[Baroness Bakewell of Hardington Mandeville (LD)]

I am grateful for the Minister’s response. Given that food related ill health is a major source of premature death in the UK and that the FSA was set up specifically to prevent harm occurring from safety weaknesses in food preparation, what specific measures have the Government put in place to ensure that the FSA can cope in keeping the population safe if no deal is the only deal?

[Lord O'Shaughnessy]

I should like to clarify that, in the case of food safety, Ministers in the Department of Health would make risk management decisions on the basis of a risk assessment. This is one way in which any concerns about conflict of interest would be overcome. Clearly, we will be making technical changes to the role of the FSA to make sure that the regime is operable following our exit from the European Union. These will reaffirm the FSA’s independence and its role in providing that consumer protection.

[The Countess of Mar (CB)]

Will the noble Lord assure the House that there will be sufficient funding for the Food Standards Agency and for local authority environmental health officers—who act as its agents—to check that the law is being observed and, where it is not, to enforce it?

[Lord O'Shaughnessy]

I can tell the noble Baroness that we will do everything necessary to make sure we maintain the same high standards of protection that we have now.

[Baroness Jones of Whitchurch (Lab)]

My Lords, if there is a no-deal outcome, the UK will no longer have access to EU safety assessment data for food products on which we currently rely. Given that 10,000 containers of food come from the EU daily, are the Government intending to inspect each of them at the ports or are they going to let them through with minimal checks, in which case, surely we are risking a public health scandal as a result?

[Lord O'Shaughnessy]

We hope for and expect to have arrangements meaning that we can continue to access systems such as the Rapid Alert System for food and feed. This is one of the ways we gain such information. Sharing such information in the trade of food is obviously mutually beneficial. We are, of course, planning for non-participation. This means looking for other kinds of agreements with both EU and international bodies to make sure that food alerts can be shared and that we can provide that level of safety.

[Baroness McIntosh of Pickering (Con)]

My Lords, the noble Lord said that regulations will be required. It will be of interest to the House to know what the timetable for those regulations will be.

[Lord O'Shaughnessy]

My understanding is that they will be laid, subject to clearance, before the end of the year.

[Baroness Ludford (LD)]

My Lords, the Government are refusing to agree with Brussels on maintenance of the system of geographical indications which protects the name and quality of local and regional products. Are the Government throwing Cornish pasties and West Country cheddar to the wolves in proposing to accept fake American versions of these products?

[Lord O'Shaughnessy]

I do not know whether wolves like cheddar, but that is more a question for my colleagues in Defra which I would not seek to answer. What I can say is that we want to provide protection for everything that the UK produces that is internationally recognised and special.

Obesity

Lord O'Shaughnessy Excerpts

Wednesday 18th July 2018 Lords Chamber

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

My Lords, first, I congratulate my noble friend Lord McColl on calling this debate and showing his usual enthusiasm and tenacity in doing so. I have a feeling that, given his injunction to us is to eat less, the timing of this debate, which means speaking between 6.49 pm and 8.02 pm, is perfect as we have all missed dinner. I also congratulate the noble Baroness, Lady Boycott, on a very passionate and persuasive speech; she will obviously bring many strengths to this House. I note that in 1984 she wrote a book called The Fastest Diet. I think she might have been one of the first people to promote the idea of fasting. I skipped breakfast this morning in her honour as I am on currently going through the fad of the 16:8 diet. I do not know whether it is helping; I generally just feel a bit tired, but that could be something else.

This is a topic we talk about a lot, but I think we are making progress and getting good ideas from it. I think we are making progress in government policy, too, and I will talk more about that. We know the level of the problem: a quarter of children aged five are overweight or obese, rising to a third by the age of 11, and six out of ten adults are overweight or obese. I am, however, mindful of my noble friend Lord Balfe’s point about accuracy. Strictly speaking, of the adults who are overweight or obese, a quarter are obese so most are overweight, and there are question marks about that. Nevertheless, that is a lot of people—a significant part of the population.

As many noble Lords pointed out, including my noble friend Lady Neville-Rolfe, there is not only a poverty dimension but an age dimension, so there are all sorts of social justice issues at work here. There are also huge economic costs: £6 billion a year to the NHS and about £27 billion to the economy at large, as the noble Baroness, Lady Massey, pointed out, endorsed by my noble friend Lady Neville-Rolfe. There are health costs linked to cancer, cardiovascular disease and diabetes—I thought the Vietnam example was terrifying. Though, as my noble friend Lady Jenkin pointed out, there is cause for hope about type 2 diabetes being a reversible condition, and I will return to that. There are other costs, too, including worklessness, oral health and the emotional and mental health costs, as the noble Baroness, Lady Walmsley, and my noble friend Lord Kirkham pointed out. I think it constitutes a crisis, and as the noble Baroness, Lady Walmsley, pointed out, it should be thought of as a disease, if not an epidemic, because it appears to be catching. It appears that if your peers are overweight, you are more likely to be overweight—that is a catching thing. Whether it is a meme rather than a disease, it is something that can be spread.

As has been said today, it is not simply as easy as saying you should eat less and exercise more, especially in what my noble friend Lady Jenkin evocatively called an obesogenic environment. It is a phrase I had not heard before, but I thought it was very evocative. Ultimately, we need to help people build up good habits of personal responsibility.

Lots of noble Lords talked about the role of schools, and I will return to that, but it is notable that Ofsted has said today that we cannot lump all this on to schools and every part of society needs to take responsibility. I could not agree more. As the noble Baroness, Lady Massey, pointed out, families and parents need to be equipped to give good advice and good parenting. As the noble Baroness, Lady Grey-Thompson, and my noble friend Lady Neville-Rolfe pointed out, corporates need to play a role in this, as of course do the Government. We all agree with that. We need to be guided by evidence and research, although, as my noble friend Lord Blencathra pointed out, sometimes the evidence and research, and all the advice that is based on it, can change.

We are trying to do something about that. We have made a significant investment in a policy research unit to help make sure there is more consistent advice. I think there is generally a better understanding of the causes of obesity now.

My noble friend Lord McColl talked about the fat versus sugar debate. That still rages on and views still differ. Noble Lords also talked about calories versus exercise or inputs versus outputs, as I always think about it. The noble Lord, Lord McColl was firmly on one side of that debate, with the noble Lord, Lord Addington, firmly on the other, and other noble Lords, such as my noble friends Lord Blencathra, Lady Neville-Rolfe and Lord Kirkham and the noble Baroness, Lady Grey-Thompson, somewhere in between. I think of it in physics terms, as the law of conservation of energy: what comes in either goes out or stays. It is simply the case that in an isolated system, energy is conserved.

We need to look at this holistically, and that is what the Government have been trying to do. Noble Lords will know about what we call chapter one of the obesity strategy. The centrepiece of that is the sugar levy, which my noble friend Lord Balfe called a popular tax. There you go—they do exist. That has had a really big impact for everybody, children and adults, with 45 million kilograms of sugar being taken out of circulation as a consequence. As well as this, there have been big investments in school sports, breakfast clubs and food tech being in the national curriculum, which the noble Baroness, Lady Grey-Thompson, and my noble friend Lady Neville-Rolfe asked about.

We also know that chapter 1 did not have the full effect that we wanted, especially on reformulation, which is the point that my noble friend Lord Blencathra was making about the kinds of food everybody eats, not just one category or the other. This is what led to chapter 2, announced on 25 June. I was glad to see noble Lords welcoming that. There were really big moves forward, including a watershed for advertising unhealthy food, which the noble Baronesses, Lady Massey and Lady Walmsley, asked about. Also, there was a ban on price promotions of high-salt and high-sugar foods—trying to take the fun out of processed food, as the noble Baroness, Lady Boycott, said, which is a really good way to think about it. We ended the sale of energy drinks to children, which was one of the things that really worries me. If you look at the impact on school life, teachers will tell you that is a really big problem. It includes consistent calorie labelling outside the home, although, as my noble friend Lord Blencathra pointed out, it might not always help to know how many calories are in that Starbucks chocolate muffin. But it does help to provide a nudge. We are also introducing stronger government standards for food and catering services, something raised by my noble friend Lady Neville-Rolfe. And, of course, there is the Daily Mile, which has proved very popular—so popular that I wonder whether we, as an institution, should do it before Prayers. We might be able to show genuine leadership on that.

The point that the noble Lord, Lord Addington, and the noble Baroness, Lady Grey-Thompson, made is critical. I hope that noble Lords will see in chapter 2 that this is a cross-government effort. These are not just health things but encompass different departments, although I appreciate that we can always do more.

The noble Lord, Lord Brooke, asked about the consultations; I do not have a date by which they will be instigated, but they will be launched by the end of 2018. I absolutely salute the work he is doing to try to drive that campaign with national broadcasters, and I have brought that to the attention of my colleagues in the department.

The noble Baroness, Lady Walmsley, asked about prevention. It is interesting that our new Secretary of State has an interest in that whole agenda, and I think we will see more of that from him. Given the department he has run, he also understands the media and how you influence people’s behaviour when you do not have lots of money to spend—which the DCMS rarely has. We therefore also now have quite an interesting ally in the new Secretary of State.

We are trying to do other things. The noble Baroness, Lady Grey-Thompson, knows better than all of us in this Chamber about the importance of exercise. She has done it—she is a Paralympic champion herself. We are encouraging walking to school—there is a good joint project with Living Streets—more money is going into the Bikeability scheme, and there is the Sport England strategy and the CMO’s daily physical activity deadline. A lot is going on, but I agree that perhaps there is a need to wrap all this together, not just to talk about the food and health bits of it.

My noble friends Lord McColl, Lord Blencathra and Lord Kirkham emphasised different eating habits. There is a successful public health campaign called Change4Life, which has some quantifiable impacts on the way people eat food—the quantity as well as the quality—and there is more emphasis on preparing food from scratch rather than eating processed food. I encourage noble Lords to look at that, because it has been quite effective, and it uses public campaigns as well as other ways of promoting good eating habits.

My noble friend Lady Jenkin talked about the potential of fasting. The ancients understood this but we now have an evidence base, as she described, which means that we should probably put more emphasis on fasting as a technique, not just for losing weight but for better health as a whole. The department as a whole will need to take that forward.

On tackling other causes of obesity, my noble friend Lord McColl talked about stress and abuse, which was an incisive point. That goes hand in hand with what the noble Baroness, Lady Massey, said about building self-esteem, which in a way sometimes corrects the consequences of stress and abuse. She will know very well that some important steps forward have been taken in schools in this country to try to increase well-being and build character—I tried to do that in the schools I set up—which will have benefits for both mental and physical health.

Finally, on a few other issues which noble Lords raised, my noble friend Lord Balfe and the noble Lord, Lord Brooke, asked about weighing people. There is an issue about weighing teenagers forcibly, but clearly we need ways to sample age cohorts. I will investigate that further and see exactly how we do it. My noble friend Lady Neville-Rolfe talked about sleep, which we have touched on before. I am increasingly of the view that there may be a need for some government work on promoting good sleep—not that I am the Public Health Minister.

The noble Baronesses, Lady Walmsley and Lady Massey, asked about breast-feeding. We are absolutely promoting it and we recognise the advice of the Scientific Advisory Committee on Nutrition. It is also a part of the maternal health strategy. The noble Baroness, Lady Walmsley, mentioned bariatric surgery. There are NICE guidelines for that, so if people meet certain criteria it should be available to them.

Once again, we have had an interesting and wide-ranging debate, although obviously there are some areas of disagreement among us. I will end on the point the noble Baroness, Lady Thornton, made. I will certainly speak to the Secretary of State about it, and I think he is open-minded on this. You can look at the attitude he has taken to the role of social media, for example, which goes beyond what most pro-business Governments would be prepared to do. I think he will be sympathetic to this. In the end, this is about helping people to develop a healthy relationship with food. It brings to mind a book I read a few years ago, which is not about food at all, called The Case for Working with Your Hands, by Matthew Crawford. He talked about the alienation that comes from working in an office environment, such as in bureaucracies, because you are unable to feel what you have produced—you cannot touch it. He ends up, having done a philosophy degree, becoming a motorcycle mechanic—so it is a bit like Zen and the Art of Motorcycle Maintenance. It is about something physical. There is something about growing food or foraging for it—it is about going out to experience it, and knowing what it feels like. If we want to develop those good habits and a sense of personal responsibility, we have to get people involved—children, but adults as well—in the experience of growing food. That is not easy to do in cities, but we could discover that and do more of it.

Finally, these debates are incredibly helpful, because this is an iterative process. We have had chapter 1 and chapter 2, and I dearly hope that we will have chapter 3. I am sure that many of the ideas that noble Lords have suggested tonight will feature in it. Long may it continue, and I look forward to the next debate on obesity, which I am sure will take place before long. Once again I thank my noble friend Lord McColl for instigating this debate, and I congratulate the noble Baroness, Lady Boycott, on a superb speech.