Mental Health Bill [HL]

Lord Pannick Excerpts

Committee stage
Monday 24th February 2025 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I apologise to the Committee for my not having been able to speak at Second Reading and for seeking to intervene on one amendment only in such an important Bill. That is the amendment from my noble friend Lady Keeley, supported by the noble Baroness, Lady Barker. I declare an interest as a council member of Justice, the NGO that will no doubt have sent briefings to many Members of the Committee on this important amendment.

Amendment 149 is a no-brainer, which warrants support and adoption by the Government and welcome from every political tradition represented in your Lordships’ House. It is no surprise to the Committee, I am sure, that I am a supporter of the Human Rights Act and the way in which it has protected vulnerable people and their families, including in mental health facilities. Those are some of the most potent stories about the Human Rights Act over the last near-quarter of a century.

Contracting out services will always be a matter of high politics in a democracy. It is literally the meat and drink of left-right debate over social and economic management. This was amply demonstrated in contributions on an earlier group by the noble Baronesses, Lady Bennett and Lady Fox, the noble Earl, Lord Howe, and my noble friend the Minister. However, no one in that debate ever advocates for either public or private provision on the basis that vulnerable people should be less well treated or protected.

It is my contention that everyone in the Committee should support Amendment 149, which would ensure Human Rights Act protection for publicly arranged mental health care, whether delivered by a public or private provider. No social democrat or liberal can approve of public authorities being able to contract out of constitutional protection, and no conservative can approve of public authorities being able to avoid responsibility for negligence or harm to individuals and their families, especially where coercive power is involved. Finally, I am sure that all Members of this Committee believe in equality before the law.

This amendment closes not so much a loophole as a glaring omission in legal protection as exposed by the case law and the Joint Committee on Human Rights. I commend it to the Committee.

[Lord Pannick (CB)]

My Lords, I too support the amendment from the noble Baroness, Lady Keeley, and I agree with every word spoken by the noble Baroness, Lady Chakrabarti. I am here today because I have an interest to declare, which is that I acted—unsuccessfully—in the case that caused the problem. In YL v Birmingham City Council, I was the unsuccessful counsel for YL, although I take comfort from the fact that of the five members of the Appellate Committee who sat on that case, the two who dissented were Lord Bingham of Cornhill and the noble and learned Baroness, Lady Hale—a formidable combination indeed. The noble and learned Baroness summed up the point in her dissenting speech in the Appellate Committee. She said that it is a function of a public nature for the purposes of the Human Rights Act when it is performed pursuant to statutory arrangements, when it is performed at public expense, and when it is performed in the public interest. It is as simple as that. I agree with her, I agree with the noble Baroness, Lady Keeley, and I very much hope the Minister will accept this amendment.

[Baroness Barker (LD)]

My Lords, it is usual in your Lordships’ House for the people with their names on the amendment to speak first; noble Lords will understand why I stood back, given the previous two speeches. I understand how the noble Lord, Lord Pannick, felt, having the noble and learned Baroness, Lady Hale, in his corner. I do not want to repeat anything that the noble Baroness, Lady Keeley, has said, because she summed it up extremely well.

We are very lucky; we get to talk to lawyers of calibre and fame. But I want to stand up for the solicitors, lawyers and independent mental health professionals who, day in and day out, go and see the people who are in real distress or are forgotten about, who nobody else is terribly interested in. They make it their business to make sure they are treated like human beings, wherever they are. I simply take the occasion to say this, because right now, we have to take every opportunity we have to defend the Human Rights Act and the application of universal human rights. It is no good having human rights that you pick and choose and apply to the people you like. It is why I picked the noble Earl, Lord Howe, up on his previous amendment.

We are very bad at explaining the importance of the Human Rights Act to people in the community; it is fair game for every newspaper hack or whoever wants to take a go at it, but it is about making sure that vulnerable people are treated as full human beings in our society. Therefore, I hope that even if we have not managed to fashion the exact perfect amendment, the noble Baroness will agree that this deserves to be in the legislation.

Musculoskeletal Health

Lord Pannick Excerpts

Thursday 30th January 2025 Lords Chamber

[Baroness Blackstone (Lab)]

My Lords—

[Lord Pannick (CB)]

My Lords—

[Captain of the King’s Bodyguard of the Yeomen of the Guard and Deputy Chief Whip (Baroness Wheeler) (Lab)]

We will hear from the noble Baroness, Lady Donaghy.

[Baroness Merron (Lab)]

My noble friend raises a number of important points. In reference to the planning guidance, I hope she will understand that at this stage that is leaked information and I am therefore not in a position to comment. The Secretary of State has confirmed that planning guidance will be published in due course. I agree that patients around the country are waiting too long for care and treatment. I draw my noble friend’s attention to the plan for change, which will get the health service back on its feet. Part of the elective recovery plan, published just a few weeks ago, sets out funding to boost DEXA, which is bone density scanning capacity to support improvements in bone health and early diagnosis, including for osteoporosis. That will provide an estimated 29,000 extra scans per year, so I hope my noble friend will take heart from that node of direction.

[Lord Pannick (CB)]

My Lords, I declare a family interest in this condition. Will the Minister recognise that the failure to roll out the much-needed early diagnostic service, which, as the noble Lord, Lord Black, said, was promised during the general election campaign, will inevitably result in greater cost to the NHS in the years to come?

[Baroness Merron (Lab)]

I certainly agree with the noble Lord that without the right services in place at the right time and in the right location, there is additional cost—not just to the NHS but to the economy and to individuals. We have found that musculoskeletal community services have the largest waiting lists in England, and I refer the noble Lord to our forthcoming 10-year plan on the move from hospital to community. That will be a key part of cutting waiting lists, and the measures I have already announced will also assist.

Covid-19

Lord Pannick Excerpts

Monday 15th November 2021 Lords Chamber

[Lord Kamall (Con)]

The noble Baroness raises a very important point and I apologise for not spotting it and answering it earlier. Many noble Lords will be aware of the very sad story of a young lady who died because she felt that the vaccine was not safe; her mother is encouraging other pregnant women to have the vaccine. For that reason, we want clearly to communicate that the vaccine is safe and will not affect fertility, so getting the vaccine is the best way to protect yourself. Pregnant women are more likely to get seriously ill from Covid-19, and we know that vaccines are safe for them and make a huge difference. In fact, no pregnant woman who has had two jabs has needed hospitalisation with Covid-19. We need to make that clearer, and I will take this back to the department and the Government to make sure that we communicate more clearly. We all share the same will to share that message more widely.

[Lord Pannick (CB)]

On the NHS app, it is not simply the inconvenience to those travelling but the waste of time of NHS practitioners who are being asked to provide letters to people who are travelling. It is vital that the Minister uses his best endeavours to make sure this problem is resolved very speedily. My understanding is that those of us who travel with children under the age of 16 who have had one jab have no means through the NHS app of proving that they have had the vaccine. Is that right? If so, can the Minister do something about it?

[Lord Kamall (Con)]

The noble Lord’s first point repeats what other noble Lords have said, but for a good reason. I hope that our mentioning this more than once this evening stresses to the NHS and NHSX that it must be sorted out as soon as possible. As I said, I had hoped to have a date to announce this evening, and I am as frustrated as everyone else. We all want to travel and, importantly, there are countries that require proof of the booster.

In terms of children travelling, a solution has been developed to allow fully vaccinated children aged 12 and over to demonstrate their vaccination status. Up to now, some countries have required no proof from children aged 12 and over, but I am being told that a solution is being developed. I will try to push for that date as well, but I definitely want to get a date for when the booster will appear on the NHS app. All I can do is apologise that we have not done this yet.

Covid-19 Vaccinations

Lord Pannick Excerpts

Monday 8th November 2021 Lords Chamber

[Lord Pannick (CB)]

The Minister mentioned the importance of the booster dose. Can he explain why the valuable NHS app does not prominently display that the individual has received a booster jab, as is the case with the first two doses? The information is hidden away on the app and cannot be downloaded. This is a serious defect because some foreign countries—the Minister mentioned Israel, which is one example—now require proof of a jab in the past six months, given the waning effect of earlier doses. There are many domestic contexts where the ability to prove easily that you have had a booster dose would be valuable.

[Lord Kamall (Con)]

I thank the noble Lord for that question. I have been made aware of this by more than one noble Lord today. I contacted NHSX; it said that it is looking into it and trying to work on a fix as soon as possible. If the noble Lord is aware in a couple of days that that has not been fixed, I hope he will remind me so that I can prompt NHSX.

Covid-19: Vaccinations

Lord Pannick Excerpts

Thursday 17th December 2020 Lords Chamber

[Lord Bethell (Con)]

I am grateful to my noble friend for his championship of this important point. It is not necessarily the role of the department to rule on this matter, but I note that UK Anti-Doping welcomed the World Anti-Doping Agency’s publication of its view on the vaccine. We welcome that moment and I very much hope that it provides the reassurance that athletes are looking for.

[Lord Pannick (CB)]

My Lords, my mother-in-law is 84 years old. That sounds like the beginning of a bad joke but it is not funny because she has serious health concerns and is very high risk. Over the past couple of weeks, my wife has repeatedly telephoned her NHS GP practice in north-west London—I will not name it, although I am happy to tell the Minister which it is. Staff there say that they have no vaccine, no information about when they can expect to receive the vaccine, no guidance from the Department of Health and no protocols. Does this not support the concern expressed by the noble Lord, Lord Harris, that there is a real danger of the Government underperforming yet again in this context?

[Lord Bethell (Con)]

I hear the concerns of both the noble Lord and his mother very clearly but I assure him that, to date, the rollout has very much focused on the 70 hospital hubs where we are getting the protocols and practices about getting this extremely difficult vaccine into people’s arms correct before we roll out distribution to all GP services. It is not at all my expectation that every GP service in the country will have the vaccine, nor that they will necessarily be ready to deliver it this week, but that guidance has been distributed. If the noble Lord would like to send me the details, I will ensure that that GP practice is up to speed on this important matter.

Medical Innovation Bill [HL]

Lord Pannick Excerpts

Friday 23rd January 2015 Lords Chamber

[Lord Kakkar (CB)]

My Lords, I declare my interest as professor of surgery at University College London and as a member of the General Medical Council, although I do not speak for the council in this Chamber.

I thank the noble Lords, Lord Winston and Lord Saatchi, for having tabled this important amendment. It goes to the heart of good medical practice, of course, always to innovate—but always to innovate, first and foremost, with absolute regard to patient safety. The fact that the amendment will now appear in the Bill will provide absolute clarity on what is required to discharge that patient safety responsibility with regard to innovation, as described in the Bill, which is vitally important. I strongly support the amendment. Once again I thank the noble Lord, Lord Winston, for his contributions in the passage of the Bill and, in particular, for tabling this important amendment.

[Lord Pannick (CB)]

My Lords, I, too, welcome the amendment. It will further emphasise that, in order to be lawful, medical innovation must be responsible. The criterion of responsibility has been the essence of the law on this subject since the judgment of Mr Justice McNair in the Bolam case in 1957, when he said that a doctor,

“is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”.

That may provide some reassurance to the noble Baroness, Lady Gardner of Parkes, that the courts will easily understand what is involved in the amendment.

The amendment will reassure many of those concerned about patient safety. The words will further confirm what I understood to be the Minister’s statement in Committee that the Bill is not intended to alter the substance of the Bolam test but to provide a practical means by which innovative doctors can take steps in advance of carrying out the treatment.

Like the noble Lord, Lord Winston, I am less confident than the noble Lord, Lord Saatchi, that this Bill will have much, if any, beneficial effect. I am doubtful that the fear of litigation deters responsible innovation, but I have been reassured by the amendments that the Bill will certainly do no harm. I thank the noble Lord, Lord Saatchi, for the responsible manner in which he has responded to concerns about the Bill by welcoming amendments of this sort. I also thank Mr Daniel Greenberg, a former parliamentary draftsman, now an expert consultant, for the assistance that he has provided to many noble Lords, including myself, on the issues raised.

[Lord Dykes (LD)]

I hope my memory is not at fault when I recall that I have attended all the previous stages of this Bill but deliberately not spoken because I preferred as a lay man to listen to what the medical experts were saying. We have had considerable testimony from them in the previous stages which has helped us make progress. I thank the noble Lord, Lord Saatchi, again. I know it has been done before but it is important to record our thanks for his introduction of this extremely interesting legislation, which will be very useful and important to humanity in the future—although it is difficult at this early stage to tell exactly how it will develop and the noble Lord, Lord Pannick, is right in expressing certain reservations about it.

We all have experience of the sufferings of friends and families in cancer cases and the Bill, not only in a moving way but in a scientifically respectable way, makes progress in widening the ability of medical experts, operating under the strict safeguards that have been agreed in the previous stages, to make sure that people can be helped more than the already marvellous help that doctors give within the existing framework. I am glad to support the amendment.

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[Earl Howe]

I am grateful to the noble and learned Lord. Obviously, I must take account of his expert view, but the fear that I was about to articulate is that if you require a doctor to register the details and results of whatever innovative treatment he or she may have administered on some kind of data-capturing scheme in the way suggested by the noble Lord, Lord Hunt, that would constitute part of the requirement for the doctor to demonstrate that he or she has acted responsibly, and thus not negligently. Therefore, if the amendment were accepted, the result could be that a failure to record would be part of the picture when deciding whether a doctor had acted negligently.

If that point is accepted—I expect the noble Lord, Lord Pannick, to take me to task on it—my submission is that that would be a disproportionate requirement.

[Lord Pannick]

I understand the noble Earl’s concern that if there is an obligation to report the results, that might have an effect on the common law Bolam test, but surely it would not, because of the contents of Clause 2(1), which states:

“Nothing in section 1 … affects any rule of the common law to the effect that a departure from the existing range of accepted medical treatments for a condition is not negligent if supported by a responsible body of medical opinion”.

I therefore understand that under the Bill—the noble Earl can tell me whether I am right or wrong—the doctor has two means of defending himself or herself. One is the Bolam test at common law; the other is to take advantage of the procedures of the Bill. If one of the procedures of the Bill is a duty to report, that does not affect the general Bolam test under Clause 2(1).

[Earl Howe]

My Lords, I take the point made by the noble Lord, Lord Pannick. My point was not that the amendment would alter the effect of Clause 2(1). It would not have an effect on the common law, but it would create a more burdensome test under the Bill. That is troublesome to me, because to do that would in itself impose requirements which go beyond the current Bolam test of negligence. It would mean that the test of clinical negligence was more burdensome under the Bill than under the common law.

Medical Innovation Bill [HL]

Lord Pannick Excerpts

Friday 24th October 2014 Lords Chamber

To what I am sure will be the great relief of noble Lords, I think that I have come to the end of this group of amendments.

[Lord Pannick (CB)]

My Lords, I have tabled a number of amendments in this group and I thank the noble Lord, Lord Saatchi, for his helpful responses to them. The purpose of my amendments is to ensure the protection of vulnerable and often desperate patients and their families. Amendment 10 seeks to introduce a test of reasonableness and proportionality. The noble Lord, Lord Saatchi, said in his comments that reasonableness and proportionality are central to the objectives of the Bill. Perhaps I may explain my concern.

The Bill uses the concept of “responsible” innovation. Clause 1(3), along with Amendment 12 in the name of the noble Lord, Lord Saatchi, which he has rightly described as crucial, would define responsible innovation by reference to process; that is, obtaining and taking account of the views of others, considering the risks and benefits, and securing transparency. My concern is that this is insufficient because it says nothing about the substantive content of the decision of the doctor to innovate. Amendment 10, which has the support of the noble Lords, Lord Winston and Lord Turnberg, would provide that innovation is lawful only if it is “reasonable and proportionate” in a substantive sense. It must be reasonable in the sense that the course of innovative treatment should be based on a reasoned decision, that in the light of some evidence the treatment has some prospect of success, and proportionate in the sense that in the patient’s case and taking into account the existing available treatments, the innovative treatment is not likely to cause pain and suffering that is unjustified by the prospects of success. Plainly, this is going to depend, and will necessarily depend, on the circumstances of the individual case.

At Second Reading, the noble and learned Lord, Lord Mackay of Clashfern, who I am pleased to see is in his place, said at col. 1457 that in the context of innovation, it is very difficult to see how you can assess the “reasonableness” of treatment. With respect, I do not accept that. You assess the reasonableness of an innovative treatment in a substantive sense by asking whether there is some evidence to suggest that the treatment will or may have a positive result. I think that reasonableness and proportionality are as important in the context of terminal illness as they are in any other context. Unreasonable and disproportionate medical treatment can cause pain and suffering and it can of course blight the remaining time that patients have with their families.

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Moved by

[Lord Pannick]

2: Clause 1, page 1, line 2, after “encourage” insert “reasonable and”

[Lord Pannick]

My Lords, Amendment 2 refers again to the concept of “reasonable” innovative treatment. I will be very brief on this. First, I am reassured by the comments just made by the Minister that as a matter of law, “responsible” and “reasonable” in this context have the same meaning. Secondly, I am persuaded by the noble Baroness, Lady O’Neill of Bengarve, that we do not also need a criterion of proportionality in this context.

Thirdly and finally, the noble and learned Lord, Lord Mackay of Clashfern, pointed out that in this context of innovation there is of course by definition a limited amount of information already available. That is why innovation is required. My concern is that to justify the innovative treatment, especially if it causes further pain and suffering, it needs to be based on some evidence or at least on a rational judgment that there are some prospects of success. I should also mention Amendment 4, which would leave out the concept of “reckless” treatment. I note that the noble Lord, Lord Saatchi, has added his name to a similar amendment: Amendment 5. I beg to move.

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[Lord Saatchi]

My Lords, I thank my noble friend the Minister for what he said. I think that there is a consensus on Amendment 5 in my name, that of the noble Lord, Lord Turnberg, and that of the noble Baroness, Lady Finlay, to remove the word “reckless”. I think that we are agreed on that. My noble friend dealt with the point under Amendment 3 from the noble Baroness and the noble Lord. We understand the wish to exclude certain treatments and types of surgery, and perhaps that is something that we can discuss between now and Report.

I share the Minister’s wish to accept Amendment 4 from the noble Lord, Lord Pannick, which removes the reference to deterring quackery from the purpose clause. We are agreed on the view that, if the noble Lord, Lord Pannick, believes that it is important to confine the purpose clause to the positive, we should not insist on the inclusion of both limbs—positive and negative—since as a matter of law the negative flows naturally from the positive in any event. If the noble Lord, Lord Pannick, presses that amendment, I shall support it.

[Lord Pannick]

I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

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Moved by

[Lord Pannick]

4: Clause 1, page 1, line 3, leave out “(and accordingly to deter reckless irresponsible innovation)”

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[Lord Giddens]

My Lords, the noble Lord, Lord Saatchi, knows that I support the thrust of the Bill but there are issues around some of these amendments that the noble Lord might at least listen to.

As I have mentioned previously, one of the core things about this legislation, given its sensitive nature, is that we have to comb through it all the time for possible perverse consequences. At the risk of sounding like sociology 101, unintended consequences are different from perverse consequences. Unintended consequences can be good or bad; perverse consequences undermine good intentions and reach the opposite result of what an individual needs to achieve. For example, strong rent controls were introduced in New York City to help poor people; in fact, they adversely affected them because they could not find places to live. The noble Lord says that the Bill is crystal clear in its intent, but that is not enough because there is a massive difference between intent and consequence. I therefore feel that as a general principle we should comb through the whole Bill to try to spot possible perverse consequences.

On the whole, with the reservations that have been noted, I support Amendment 6 because it might help to block off some of those reservations. We surely must know what innovation actually means in the context of clinical practice. Without such specification, one can see that various perverse consequences could occur. What would happen, for example, if a doctor was accused in court of failing to innovate because he or she did not try some eccentric form of treatment that was available? One could block off that perverse consequence by specifying, in the way that Amendment 6 tries to do, what actually counts as innovation.

I feel strongly that as the Bill proceeds through Parliament we must tighten every loophole that could lead to a situation in which, to some degree, the Bill undermines what it is actually supposed to achieve—helping vulnerable patients in a situation in which they are often desperate by bringing innovations to them that they would not have had available before. However, I fear that some of those things could happen if one was not aware of the minefield of perverse consequences. If we do not examine it all carefully, there could be consequences that, to some degree, undermine the purest of intentions with which the legislation is introduced.

[Lord Pannick]

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

[Lord Mackay of Clashfern]

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

Care Bill [HL]

Lord Pannick Excerpts

Monday 22nd July 2013 Lords Chamber

[Lord Hodgson of Astley Abbotts]

This is my first intervention on this Bill. It is not an area of government policy in which I have historically taken a lot of interest so I am some way outside my comfort zone. However, when I saw that my noble friend Lady Byford had put down two amendments about financial records and appropriate billing, both areas I have taken an interest in, I felt I should support her and put my name to them.

I fear that if I could glance over at the speaking note prepared for the Front Bench on Amendment 92ZFA, I would see the words, “Resist on the grounds that this is unnecessary and the clause already provides for it”. That may be so, but if you read the Explanatory Note to Clause 41 carefully, at paragraph 230, I am not sure that it actually places a duty on the local authority to follow up complaints where they are made by external parties, such as one holding a power of attorney, as my noble friend mentioned in her opening remarks. If would be helpful if my noble friend on the Front Bench could give some reassurance on this point and also for the record confirm, as I am sure must be the case, that people holding powers of attorney are “representatives” as defined in this clause.

The new clause inserted into the Bill by Amendment 92ZFB is a much more significant development. If the Minister’s officials were to call for and examine a range of the invoices sent to individual residents or patients by different companies for the provision of care services, she would see a considerable variation in the quality and, above all, the clarity of how the charges are laid out and calculated. To be fair to the companies, it is not easy to do because it becomes quite complex, quite quickly. For example, local authority rebate periods do not always coincide neatly with the charging periods of the individual care homes. Then there are the charges for extras over and above normal care. In the vast majority of cases these are entirely legitimate but, if you look at the records and the way they are laid out, all too often they are not clearly itemised and often a one-line entry, “Additional Charges” on an invoice received perhaps a month later makes it very hard to verify the accuracy or otherwise of the charge.

We need to keep at the forefront of our mind the fact that these invoices are addressed to elderly people who perhaps are more easily confused or may be browbeaten. In particular, if they have no relatives or representatives to help them, they may be over-ready to accept the invoices at face value and pay them. I particularly support my noble friend’s amendment because it seems to address three important objectives. First, it encourages the emergence of best practice among care homes and the way they lay out their charges. Secondly, it helps individuals and their families understand what is being charged and whether it is accurate. Thirdly, and possibly most cynically, it reduces any temptation to pad invoices with additional items. I do not suppose for a moment that the precise wording of this amendment meets the standards required by parliamentary draftsmen. However, I hope when my noble friend comes to wind up she will consider it an idea worth following up.

[Lord Pannick]

My Lords, I add my support to Amendment 92AA to which the noble Lord, Lord Low of Dalston, spoke so powerfully a few minutes ago. I declare an interest—or, more accurately, a regret—in that I represented YL in the Appellate Committee of your Lordships’ House and failed to persuade a majority of that committee that those who operate care homes under a contract with a local authority are performing a public function for the purposes of the Human Rights Act and therefore are obliged to comply with human rights principles. The complexity of the legal issues was such that the much lamented Lord Bingham of Cornhill and the noble and learned Baroness, Lady Hale of Richmond, both dissented from the views of the three judges in the majority.

As the noble Lord, Lord Low, has mentioned, Section 145 of the Health and Social Care Act 2008 addressed the issue by bringing some care home providers directly within the scope of the Human Rights Act, providing direct legal protection for residents of such homes. However, important gaps in the law remain. Duties under the Human Rights Act are not owed by the person who provides residential care to persons who pay for it themselves—that is, when the local authority is not paying—and the provider of care services, when that provider is not a local authority, has no duties under the Human Rights Act when providing care in a person’s own home.

I share the concerns of the noble Lord, Lord Low, that, in the light of the changes to be introduced by this Bill, it is important that the law should clearly address liability under the Human Rights Act. I agree with the noble Lord, Lord Low, who made a very powerful case, that the vulnerability of the person receiving care, and the risk of abuse, mean that the law should now impose duties on the provider under the Human Rights Act in all these circumstances to encourage the maintenance of high standards and provide a direct remedy for the victim in appropriate cases. It is really no answer for the Government to say, as they have previously indicated, that it is undesirable in principle to specify the scope of the Human Rights Act in relation to public functions. The YL judgment already does that in a deeply unsatisfactory and narrow manner.

I accept, of course, that improved regulation and proper training will play an important part in protecting the interests of those receiving care. However, I ask the Minister to accept that the principles and the remedies under the Human Rights Act will add a significant and necessary further dimension to the obligations of those providing care and to the rights of those receiving it. I hope we will receive a positive response from the Minister this evening to the amendment from the noble Lord, Lord Low, and the noble Baroness, Lady Greengross.

[Lord Warner]

My Lords, I follow the noble Lord, Lord Pannick, with some trepidation but I do so as a member of the Joint Select Committee that recommended a change to the Bill along the lines asked for so eloquently by the noble Lord, Lord Low. I remind the Minister of an individual case which demonstrates the lacunae in the current legislation. It was the case of a lady over 90, who wholly self-funded in a private nursing home. This lady expressed her views—I suspect rather trenchantly—about assisted dying. She did not ask them to do anything about assisted dying but merely offered her views—though probably, as I say, quite trenchantly—but the home owner and members of staff took great exception to those views. She was pretty much immediately given four weeks’ notice to quit. We are talking about an elderly person who was very vulnerable. Her son took counsel’s opinion, which seemed to be remarkably similar to the views expressed by the noble Lord, Lord Pannick. We are faced with a situation where you can fall down on two grounds: on the grounds that you are in a privately provided home, and on the grounds that you are a self-funder. Whatever the arguments, and we have been over this ground several times in this House, the reality is that vague requirements on the CQC to observe the requirements of the Human Rights Act do not safeguard elderly people in the kind of case that I have posited.

We have to look at this again, which is why, when the Joint Committee looked at this issue, we took advice from our adviser, who is legally qualified. If I may remind the noble Lord, the noble and learned Lord, Lord Mackay, was a member of the committee, which went along with that recommendation. The Government have to move away from the rather brushing-off response that they gave to the Joint Committee’s recommendation and think again, particularly in light of the powerful case made by the noble Lord, Lord Low, and strongly supported by the noble Lord, Lord Pannick.

Mental Health (Approval Functions) Bill

Lord Pannick Excerpts

Wednesday 31st October 2012 Lords Chamber

[Lord Pannick]

My Lords, there is undoubtedly a problem which needs to be addressed by emergency and retrospective legislation. I am very grateful to the Minister for explaining the background circumstances. It is very regrettable, indeed astonishing, that this problem has arisen but it has and we need to deal with it.

Your Lordships’ Constitution Committee, of which I am a member, considered the Bill this morning. Your Lordships do not have a formal report from the Constitution Committee because of the urgency but perhaps I may mention two points that we discussed. First, the committee noted with satisfaction that the Explanatory Notes to the Bill address all the issues which the committee advised in its report on fast-track legislation should be addressed by the Government when bringing emergency legislation before the House. We are very grateful for that.

The second point is more substantial. The terms of Clause 1(1) are very broadly defined indeed. They are not confined to the particular mischief which has caused the problem—that is, the actions of strategic health authorities in purporting to delegate the exercise of approval functions to the NHS mental health trusts and the consequent acts of those trusts in granting the approvals. Clause 1(1) is not confined to addressing that mischief which, as I understand it, is the mischief that has prompted this emergency and retrospective legislation. Instead, subsection (1) says that “Any person”—the noble Earl explained that that is deliberately wide and undefined—who has purported to exercise an approval function,

“is to be treated for all purposes as having had the power to do so”.

Clause 1(1) would appear to validate any action in the purported exercise of the approval function, provided it was done before Royal Assent, even though there was a lack of legal power—however that lack of legal power may have been caused and whatever the extent of the legal impediment. Clause 1(1) is not confined to the mischief of the possibly unlawful delegation of powers that causes this legislation to be brought forward.

I appreciate that Clause 1(1) has limits; it is confined to the approval function and it is not prospective, as the Minister emphasised. However, it is very broad in retrospectively validating any lack of powers in the purported performance by anyone of the approval function, whether or not it has anything to do with the delegation function that has been identified in the circumstances. This point was raised in the other place yesterday by Mr Andy Burnham for the Opposition, at col. 205 of Hansard. I have to say that the Minister’s reply was not convincing; he did not address the point. Your Lordships’ Constitution Committee expressed concern at our meeting this morning at the breadth of Clause 11, recognising as we did, I repeat, the need for retrospective emergency legislation in this area.

Why does Clause 1(1) not limit the remedy to the mischief—for example, by including at the end of Clause 1(1) the words “whether or not strategic health authorities had legal power to delegate the exercise of an approval function to an NHS mental health trust”, or something like them? I suggest that such legislation or something like it would implement the object of this emergency legislation but without purporting retrospectively to validate any and all other abuses of the approval function, if any, whatever the consequences may be for people who may have been unlawfully detained for any other reasons relating to the exercise, or the purported exercise, of the approval function.

I respectfully suggest to the Minister and to the House that emergency and retrospective legislation, particularly in a context such as this, concerned as it is with a very vulnerable section of our society, should be carefully drafted and limited in order to confine the remedy to fit the mischief. It would be most regrettable if the emergency legislation, by curing the delegation irregularity, were incidentally—and, I am sure, unintentionally—to prevent legal action by people who may have been unlawfully detained by reason of an unreasonable or improper use of an approval function, which has nothing to do with delegation.

--- Later in debate ---

[Earl Howe]

My Lords, I again express my sincere gratitude to noble Lords who have spoken in this debate for recognising both the seriousness of the issue and the need for rapid action to resolve it. The expertise and wisdom that noble Lords bring to bear on these difficult questions has been extremely valuable. Regardless of the urgency, this is a matter that demands proper scrutiny, and that is exactly what the House is providing today, albeit within abnormal time constraints.

It is also important to record, once again, our appreciation of the invaluable help and advice that we have received from partners such as Mind, Rethink and the Royal College of Psychiatrists. Their primary concern is naturally those whom they represent so ably, but we are genuinely grateful for the mature and calm way that they have responded. We shared the same ultimate objective—to do what is best for the patients affected by a technical error.

I shall now do my best to address the questions put to me. Perhaps I may begin with the questions posed by the noble Lord, Lord Pannick, who relayed the concerns of the Constitution Committee. One of those concerns was why the Bill is drafted as it is, bearing in mind that the source of the mischief was the inappropriate delegation by strategic health authorities, resulting in the technical irregularity to which I have alluded. The answer to that question is that because we do not know the exact administrative arrangements that were in place before 2002 when SHAs came into being, it was impossible to limit in the way that the noble Lord suggested the framing of Clause 1. He suggested an addition at the end of Clause 1(1) specifying whether or not the SHAs had legal power to delegate. I can understand why the noble Lord made that suggestion, but we wanted to make sure that we captured any events of which we are currently unaware that may have occurred prior to 2002, before strategic health authorities were set up.

[Lord Pannick]

My Lords, because we are not going to have a full Committee stage, I hope that the Minister will indulge me in relation to this matter. Is there reason to think that there is any problem whatever other than delegation? I appreciate that it may relate to events prior to 2002, but surely it is only improper or possibly improper delegation of functions that is the mischief here.

[Earl Howe]

The main mischief, I respectfully suggest to the noble Lord, is that the panels which approved the clinicians involved did not, strictly speaking, have the direct power to do that. That is the issue that the Bill tries to capture. The Bill deliberately does not include a comprehensive list of which bodies or persons believed in good faith that they were exercising the approvals function in the past. If we limited the Bill in the way that the noble Lord suggests, we would run the risk of failing to cover some of the approvals given by bodies that we may otherwise have failed to list. I ask the noble Lord to accept that the way in which the Bill is drafted is in the form of a blanket, which gives us certainty that we may not inadvertently have left out any bodies prior to 2002 that may have been guilty of a similar lack of authority.

Health and Social Care Bill

Lord Pannick Excerpts

Tuesday 13th March 2012 Lords Chamber

[Earl Howe]

My noble friend expresses the position exactly. In answer to the noble Lord, Lord Wills, if a court in the future were to arrive at a judgment that all of us here would consider adverse, of course the Government would intervene. However, in our view, it is now highly unwise at this point to try to frame an amendment to put these matters beyond doubt in the way that the noble Baroness seeks to do because any attempt to do so is almost certain to lead to ambiguity and doubt about the applicability of the Act in other areas. That is the point. Of course I can pick holes in the drafting of this amendment, but that is not the central issue. The issue is the wider one to which I alluded earlier.

[Lord Pannick]

Would not any court regard this amendment as specifically designed to deal with the YL problem? It would not regard it as casting doubt on anything else.

[Earl Howe]

No loophole is created by YL. That was closed in Section 145 of the Health and Social Care Act 2008. While I listened with care to the noble Lord, Lord Low, who set out the background to the YL case very ably, I disagreed with him completely. This is not unfinished business from YL. That matter was decisively closed by the previous Government in the 2008 Act.

I move to another point raised by my noble friend Lord Lester. The Government have established an independent commission, due to report at the end of this year, which is looking across the board at how human rights are protected in the UK to see whether things can be done better. The topic of Section 6 of the Human Rights Act featured in various responses to the commission’s consultation last year and has already featured in the commission’s discussions. The Government’s view is that the receipt of the commission’s final report will provide the right moment for us to consider rights protection in the round, including any issues surrounding the scope and operation of Section 6.

I recognise the noble Baroness’s point about the amendment made in 2008 to specify that providers of residential care are bound by the Human Rights Act. However, that does not change my argument. As the noble Lord, Lord Low, reminded us, the 2008 amendment was necessary in order to overturn the contrary court judgment in the case of YL, but the Government at the time deliberately resisted any wider change for the very reason that I am resisting wider change today. I realise that my response is not the one that many noble Lords wish to hear.