Mental Capacity (Amendment) Bill [HL]

Lord Touhig Excerpts

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

The noble Lord, Lord Hunt, is very polite about care home managers. I am quite happy to be less polite. Of course there are some good, even excellent, ones. However, the notion that the majority who flit through the system on short-term contracts and training—many of whom come from outside the European Union—can, in half a day, master the Mental Capacity Act, be trained through this process to make a proper assessment and identify people within the meaning of the Act is completely ludicrous. It will not be possible. The costs of that sort of training programme and of rejigging the sort of people who are being appointed to roles to take account of this is quite outwith the scope that the Bill is likely to achieve. It is worth thinking long and hard about both the conflicts of interest and who is being appointed to make these extraordinarily difficult decisions. I support the noble Lord, Lord Hunt. I doubt whether we should stop the debate at this point but we will return to this important issue in other amendments.

[Lord Touhig (Lab)]

My Lords, I thank the Minister and his team for their engagement with Members across the House, which has been very helpful. I strongly support the attempt, on the initiative of my noble friend Lord Hunt, to have this clause stand part debate.

In the past day or so, I have spent some time looking at advertisements for care home staff and managers. They vary greatly; there is no standard at all. One advert for the role of a care home manager said, “You will assume all aspects of responsibility for your care home and have exceptional man management skills”. A minimum of two years’ experience of managing a care home, with no other qualifications, was the only candidate requirement. Another advert said that there was an opportunity for someone seeking to develop their career who must have a solid residential care background on applying. It said that applicants should have a full working knowledge of CQC requirements, possess leadership and organisational skills, and be either qualified in or working towards an NVQ level 5 in social care management, a QCF 5 or equivalent. It took more of an interest in qualifications and was a bit hit-and-miss on whether the person should be fully trained. It said that candidates should have three years’ experience of social care and it would be preferable if they had some previous management experience.

A third advert offered an exciting opportunity for a care home manager with a view to becoming a registered manager if the applicant was not one already. The skills and qualifications needed were an NVQ level 5 in leadership and management, or to be working towards that. Again, that does not mean being qualified with all the necessary education and training. A fourth advertisement sought candidates with proven home management experience, strong marketing, commercial and business acumen and a clear and thorough knowledge of CQC standards. Your Lordships should note that possessing knowledge of CQC standards came third after marketing, commercial and business acumen.

My point is that this demonstrates that there is no agreed national standard for care home manager training. With this Bill, we are proposing to give them a huge new responsibility that will affect the quality of life of many vulnerable people in our society. This really needs to be revisited. We are taking a big risk with people who have no one else to defend them if we do not start defending them here.

[Baroness Finlay of Llandaff]

My Lords, to intervene fairly briefly, it is important that we remember that the current DoLS system has effectively fallen over. We have 108,000 people currently waiting to be assessed, so we have to do something. We cannot leave it running so there is an urgency to come up with some way forward. I remind the Committee that, whenever somebody is in a place of care such as a care home, the deprivation of liberty safeguards application—form 1—is a request for standard authorisation and has to be completed and sent in. That form asks about the purpose of the standard authorisation, and for a relevant care plan to be attached. It also asks why less restrictive options are not possible, and other things. So a degree of assessment is already going on at the care home and these forms are sent in. They are then sent to somebody to authorise them.

I worry that, in some of the briefings that we have had, it looks as though the care home manager will be able to authorise in totality, whereas, as I understand it—the Minister may correct me if I have this wrong—the care home manager will still be required to have the responsible body authorise. That responsible body will be able to look—and one would want them to look—at objections that may come forward from somebody. It is to be hoped they will go and visit if they feel there is a discrepancy between the care plan submitted and the original care and support plan that came from the local authority, which may have been involved in the pre-placement assessment that went on.

The idea behind these new approvals is that there is portability: the person may reside in one place, then be moved to hospital, go to outpatients, spend time in hospital and then come back to the care home. Within that portability, however, there is a requirement to review, if the circumstances change. We will come later to amendments that look at discrepancy between the care plan and the care and support plan as submitted. In other words, these are things that should trigger red flags in the mind of the authorising body, rather than the authorising body just being a rubber-stamping exercise, which is, I think, a misunderstanding that there may have been. If it is a rubber-stamping exercise, there are all kinds of dangers in that. Somehow, we have to filter out those people who really need an in-depth assessment and review from those people where the current processes are just burdensome, time-consuming and not contributing to improving their care. That filtering is really difficult. I offer that in the debate at this stage because it is worth looking at these forms, which I hope will be improved because there is not that much room to write on them.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I would like to follow that up. Clearly, the Government accepted in principle that these provisions should extend to 16 and 17 year-olds but then entered the caveat that,

“changes will need to carefully consider wider rights”,

as the noble Baroness has said. The Government said then that they would consider these matters carefully before bringing forward legislation. The question I would like to ask is: how far has that work got, and is there a prospect of seeing legislation in the reasonable future in relation to it, or is this our opportunity? Other opportunities may not come for some time to come. I realise Ministers are reluctant to commit themselves to particular legislation, but it would be helpful to the House if the Minister could at least give some indication of the work that is now being undertaken and when it is likely to come to fruition.

[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.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, my Amendments 27 and 28 follow the same lines of argument that we have heard from the noble Baronesses but relate to paragraph 16, “Determination that arrangements are necessary and proportionate”, on page 12 of the Bill.

I know the Minister will refer us back to Section 4 of the Mental Capacity Act, which is very comprehensive in defining what “best interests” are. Clearly, the intention is that, because it is stated there as a principle at the front of the Act, that permeates through all of the issues that we will be discussing in this amendment Bill. There is always an issue when you have an amendment Bill. It is not incorporated in the principal Act and is quite difficult to follow. It will be difficult to follow for the practitioners who are going to have to operate the new provisions. This must relate, too, to the code of practice. We seek certain reassurances that it will be made clear to the people at the front line who are going to operate it that the best interests provisions in this amendment Bill will apply equally.

What is confusing is the wording “necessary and proportionate”. In a sense, the Government are saying there is a qualification—that things have to be necessary and proportionate. I wonder whether that is helpful. It is confusing that we have a qualification of necessary and proportionate, but in the principal Act it is “best interests”. Clearly, these are probing amendments, seeking to tease this issue out, but I wonder whether the Government could give further consideration to how we can ensure that everyone involved is very clear that the best interests apply.

[Lord Touhig]

My Lords, at Second Reading I expressed the hope that the Government were in listening mood. They certainly needed to be. To be fair, the Minister and his team are to be congratulated on the level of engagement that they have been willing to participate in to help us perhaps make a better Bill at the end of the day. But—there is always a but—the Bill might have had a smoother passage if the Government had published an equality impact assessment. They are yet to do so; perhaps the Minister can tell us why. Many concerns have been expressed in debate on other amendments, which might have been assuaged—and we might have made more progress—had such an assessment been available to us.

Mental Capacity (Amendment) Bill [HL]

Lord Touhig Excerpts

2nd reading (Hansard): House of Lords
Monday 16th July 2018 Lords Chamber

[Lord Touhig (Lab)]

My Lords, a recent report by the Joint Committee on Human Rights called for a statutory definition of what constitutes a deprivation of liberty. The Bill does not offer such a definition. If it did, we would have clarity for families and front-line professionals; without it, there is a risk. We are reminded in an excellent paper from the Library that the Law Commission, which reviewed the existing legislation, concluded that the deprivation of liberty safeguards failed to offer sufficient protection of the rights of those deprived of liberty. Indeed, all too often, according to the report, it had been “theoretical and illusory”.

The Bill widens the number of living arrangements that are covered by the current deprivation of liberty safeguards system to include any setting. For it to apply, an individual must be aged 18 or over, lack capacity to consent to the living arrangement and be of unsound mind. To be authorised by a council or hospital, the living arrangement must be “necessary and proportionate”. There are also proposals for consultation on the living arrangements and for a “pre-authorisation review”. Assessments under the proposals will be carried out by councils or hospitals unless the individual lives in a care home, in which case it would be carried out by the care home manager. The last criterion would include autistic people who live in residential care. In a response to the Law Commission, the National Autistic Society, of which I am a vice-president, welcomed the attempts to create a simplified administrative regime that could tackle the significant delays in the current system.

However, many concerns remain. In its current form, the Bill does not adequately secure the rights of autistic people. Under the current deprivation of liberty safeguards system, a deprivation of liberty needs to be in an individual’s best interests for it to be authorised. The Bill moves away from best interests. Why does it do that? Instead, to be authorised, a living arrangement must be “necessary and proportionate”. The new criteria risk losing sight of what is best for the individual and what the individual wants. Let us be wary of enacting legislation that pays scant regard to the individual, in particular an individual who, in the context of the Bill, is perhaps the most vulnerable in society.

There is a duty to consult on care arrangements. The Bill says that the purpose of this consultation is to ascertain the individual’s wishes. However, the list at paragraph 17(2) of Schedule 1 omits the individual altogether. Although an autistic person might lack capacity to decide about living arrangements, their preferences or wishes should be an important factor in any decision about their lives. I am not sure what a decision-maker is expected to do with the results of this consultation. It is not made clear whether this is part of a determination that an arrangement is “necessary and proportionate”. This needs to be clarified. I hope that it will be.

The National Autistic Society echoes concerns expressed by Mencap that this removes the rights of deputies or lasting powers of attorney to refuse the authorisation of a deprivation of liberty. Overall, the lack of inclusion of best interests, the lack of interest in trying to ascertain what the individual wants and the removal of the rights of deputies or lasting powers of attorney is most definitely a backward step in putting the individual at the centre of any decision-making process. The Bill surely should enshrine individuals’ best interests, as did the Law Commission’s proposals. The role of these interests within a determination about a deprivation of liberty must be clarified and I hope that it will be.

A pre-authorisation review is required in the Bill to agree to a deprivation of liberty. It says that this should be carried out by someone who is not involved in day-to-day care of the individual. However, the wording causes me concern. As drafted, it is not strong enough to secure independence. It will be carried out by an independent approved mental capacity professional only if it is reasonable to believe that the individual does not want to live in that arrangement. It is unclear how the reasonableness of this will be determined. The wording is too weak to secure the rights of autistic people who might lack capacity. Even more astounding, there is no duty whatever for the person carrying out a review to have met the individual whose case this person is reviewing. This simply cannot be right. The Bill must require independent reviews by an approved mental capacity professional in all circumstances.

If an individual resides in a care home the Bill’s requirements to carry out an assessment and consultation fall to the care home manager. While this would relieve some of the administrative burden on councils and hospitals, the National Autistic Society is concerned, and rightly so. First, the administrative burden will simply shift to care home managers, who are already stretched and may not have received the training needed to carry out these tasks. Secondly, the process in the Bill does not adequately safeguard against these assessments being, in effect, rubber-stamped by councils and hospitals, particularly while the duties around pre-authorisation reviews are so weak. This could lead to a conflict of interest, whereby care home managers are de facto authorisers of deprivations of liberty. The Government should consult more widely on this. Surely we need much more consultation.

The Bill requires that an authorisation can last up to 12 months. At the end of this period, it can be renewed for another 12 months or less. However, subsequent renewals may last for up to three years. Under the Care Act 2014, reviews of care and support plans should take place annually. Any deprivation of liberty should be considered within these reviews. It would be far more appropriate to allow for ongoing renewals of up to one year, to align more closely with care and support planning. I hope the Bill might be amended so that we can provide for 12-monthly reviews.

All individuals and their appropriate person should be able to access support from an independent mental capacity adviser with the right skills to challenge unnecessary deprivation of liberty. This is currently not in the Bill. Rights to independent mental capacity advisers should be extended to cover all individuals.

There is much to be concerned about in this Bill. I really hope the Government are in listening mode. They certainly need to be.

Carers: Health and Well-being

Lord Touhig Excerpts

Tuesday 12th June 2018 Lords Chamber

[Lord O’Shaughnessy]

The noble Baroness is quite right; it is hard to imagine what the burden must be on those young carers who are looking after parents and siblings. Young carers are explicitly mentioned in the action plan; again, I point to two commitments in that. First, there is a young carers identification project, which is working with Carers UK to make sure that we can find young carers. Secondly, the DfE has committed in its children in need review to make sure that young carers are getting the educational support they need in school and out of school to make sure that their educational outcomes do not suffer.

[Lord Touhig (Lab)]

My Lords, almost 50,000 babies, children and young people need palliative care, yet children’s hospices receive less statutory funding than adult hospices, and the lack of collaboration between support services is a major challenge. Carers and those they care for would benefit if we had a children’s palliative care strategy that was family-centred and had a holistic focus on health, education and social care. Does the Minister agree with that?

[Lord O’Shaughnessy]

Children’s hospices do an extraordinary job. They get less statutory funding as a percentage of their total; there are good reasons for that, both historically and to do with the type of care they provide. The Government are providing £11 million of support in 2018-19 through the children’s hospices grant to support them, in addition to funding from local clinical commissioning groups. But I will take his proposal for a palliative care strategy back to my right honourable friend the Minister for Care. I know that she is very interested in this issue.

Health Inequality: Autism and Learning Disabilities

Lord Touhig Excerpts

Thursday 10th May 2018 Grand Committee

Asked by

[Lord Touhig]

To ask Her Majesty’s Government what steps they are taking to eradicate health inequalities for autistic people and people with learning disabilities.

[Lord Touhig (Lab)]

My Lords, more than 10 years ago, Mencap launched a report entitled Death by Indifference. It was part of a campaign made necessary by the ongoing poor treatment of people with learning difficulties in the health service. The report highlighted the serious consequences of poor healthcare through the tragic stories of six people: Emma, Mark, Martin, Ted, Tom and Warren. Mencap wanted the world to know that their deaths were senseless and could have been avoided.

Just last week, the Learning Disabilities Mortality Review Programme report, commissioned by NHS England, was published. It again highlighted the deeply concerning figures on the life expectancy of people with learning disabilities. It showed that women with a learning disability are dying 29 years before women in the general population, and for men it is 23 years. This is truly shocking and demands urgent action. This and previous research have shown that people with a learning disability are four times more likely to die from causes that were amenable to good-quality healthcare.

A YouGov survey of 500 healthcare professionals last year, commissioned by Mencap, found that almost a quarter had never attended any training specifically on learning disability, that two-thirds wanted more learning disability training, and that more than half thought that more on-the-job learning disability training would enable them to provide better support to people with learning disabilities. Almost two-thirds said a lack of practical resources for themselves and their colleagues might also be contributing to the problem. Most concerning was that more than a quarter thought that negative attitudes towards people with a learning disability might be a contributing factor in avoidable deaths.

On that point of negative attitudes towards people with disabilities, I highlight the case of Ann Grant. She says:

“I have been to hospital lots of times and had good and bad experiences … I had a good experience of going to hospital when having an operation on my knee. The learning disability nurse helped by giving me some easy-to-read information about what would happen. The doctor explained things in a way I could understand and the nurses looked after me. This was a good experience because all the staff communicated well and took the time to help me. But in 2016, I had to go to accident and emergency, and the receptionist did not understand my needs. I kept having to repeat myself which made me feel very anxious. I asked if I could go and wait in a quiet space but there wasn’t anywhere to go. They told me to wait outside if I wanted to have space. The doctors were not very good and gave me information which was different to what the nurses had told me. They changed my medication and did not clearly explain what I needed to do. It was very difficult to understand the words they used, especially the jargon. If they would just take some time to explain things better, I would know what to do”.


That is not an untypical case. Mencap recently launched the Treat me well campaign, which makes six suggestions. I have given the Minister a copy and I hope he will give the Government’s view when he responds.

I move on to the issue of eradicating health inequalities for people with autism. Autism, as we know, is not a mental health condition. It is perfectly possible to have autism and good mental health but more than 70% of autistic children develop mental health problems at some point in their lives. Problems such as anxiety and depression can be key drivers of the stark health inequality that autistic people face.

In its report, Personal Tragedies, Public Crisis, the autism charity, Autistica, highlights research from Sweden that suggests that suicide is a leading cause of premature mortality in autistic people in that country. It calls for action in the UK. These findings deserve close attention to ensure that autistic people are not subject to unacceptable health inequality.

In 2016, NHS England published The Five Year Forward View for Mental Health, which outlines how it plans to improve mental health services in England. It includes a number of proposals for new care pathways to help people access the right support. Importantly, it proposes a care pathway for autism. Work on designing the pathway is due to start in 2018, but we do not yet have any details of what it will include.

The National Autistic Society, of which I and the noble Baroness, Lady Browning, are vice-presidents, believes that the care pathway must cover the age range of children, young people and adults on the autism spectrum. It should include timely access to autism diagnosis and autism training for all mental health staff, and make reasonable adjustments to mental health treatments. It should also identify what works and share best practice. It needs to account for the fact that mental health needs may present differently in autistic people. It should be developed in partnership and co-operation with autistic people, their families and organisations that support people with autism. Can the Minister confirm that the autism care pathway will be developed? Will it cover the age ranges that I have mentioned? Will it cover diagnosis, access to tailored mental health support and autism training—three key points?

More needs to be done to improve GP recording of autism. The National Autistic Society has called on the Government and NHS England to improve the recording of autism in GP records, which was also reflected in the Government’s Think Autism adult strategy. This will have two key benefits. GPs will be better able to make reasonable adjustments for autistic people and be better equipped to support their autistic patients. Secondly, anonymised data from GP records will give a picture of the health—including mental health—needs of autistic people. This will be crucial in addressing health inequalities and help to make sure that the right support is put in place at the right time. Similar initiatives have been used to support people with a learning disability, asthma and diabetes.

NICE has recommended that this be put in place by creating an indicator in the Quality and Outcomes Framework. I hope the Government and NHS England will accept this. The Minister may have something to say about this when he responds.

I have one final point. I am not alone in encountering countless stories of problems getting a diagnosis for anyone with autism. People wait years for a diagnosis. It is a disgrace. Putting a stop to such delays should be a major priority of all of us in Parliament and government: 61% of people who responded to a National Autistic Society survey said that they felt relieved to get a diagnosis and 58% said that it led to them getting new or more support. That is important. It adds to the quality of their life. Will the Minister include autism diagnosis waiting times in the CCG improvement and assurance framework? It would be a very good step forward.

Our fellow citizens living with autism and learning disabilities face challenges to their lives that most of us in this Room never encounter, but they are truly amazing people. All they ask is to be treated as equals and to be given the same chances and opportunities that you and I take for granted and a chance of a full and happy life. Surely they deserve the care of a first-class NHS service. That is not too much to ask, is it?

Children and Young People: Mental Health Services

Lord Touhig Excerpts

Thursday 8th March 2018 Lords Chamber

[Lord O'Shaughnessy]

I thank my noble friend for that. I think it is a fair challenge. I hope he will be reassured that of the 21,000 more mental health professionals we intend to recruit, 1,700 are therapists—including psychotherapists, educational therapists and others.

[Lord Touhig (Lab)]

My Lords, 17 % of children excluded from school in England have learning difficulties. Will the review the Government are talking about take account of that and see whether we should be doing more, because it could well be a cause of children’s mental ill health?

[Lord O'Shaughnessy]

These are interconnected but separate issues. Anyone can suffer from mental health problems, including a high propensity of children with learning difficulties. A separate line of work led solely by the DfE is providing specific educational support for children with learning difficulties. The point of having specialist staff in all primary and secondary schools is to spot any child, whatever their vulnerability, and signpost them to services.

Francis Report: Update and Response

Lord Touhig Excerpts

Wednesday 11th February 2015 Lords Chamber

[Earl Howe]

I apologise to the noble Baroness. It is very important that that does not happen. This was very much a matter that Sir Robert had in his sights when preparing the report. We have a certain amount of protection for whistleblowers at the moment—the noble Lord, Lord Hunt, referred to this—and the current Government have augmented that protection, not least through the way in which we have improved the NHS constitution. But Sir Robert is clear that we need to go further and, in particular, to ensure that those whistleblowers who find their position untenable in an organisation and are obliged to leave are not thereby blacklisted by the NHS merely for having spoken up. We think that the measures Sir Robert has proposed will achieve this but, more importantly, they will ensure that there is a better form of conflict resolution, able to nip concerns in the bud at an early stage and at a local level.

[Lord Touhig (Lab)]

My Lords, I had the privilege of introducing the first whistleblower protection legislation when I served in the other place. I regret that it was not successful because the then Conservative Government opposed it. Richard Shepherd, a Conservative Member of Parliament whom I consider a good friend, was much more successful in 1998 when he introduced the Public Interest Disclosure Act, together with the support of the Labour Government. Sir Robert refers to that Act a number of times in his report. On page 9, he says:

“For a number of reasons this legislation is limited in its effectiveness … The legislation does nothing to remove the confusion that exists around the term ‘whistleblowing’ … The legislation is also limited in its applicability”.

He also refers on page 78 to suggestions that PIDA should be strengthened. I agree with him; the Act needs to be reviewed and amended. Will the Government agree to do this, because that would certainly overcome many of the problems that this report has highlighted?

[Earl Howe]

My Lords, it may be that Sir Robert’s recommendations lead to legislative proposals. At the moment, we have no view on that. We want to consult broadly to seek people’s views, not least from all parties in Parliament. If I understand Sir Robert correctly, he was keen to achieve answers to these questions that do not involve legislative change and can be achieved easily, without too much bureaucracy. However, we would certainly wish to leave the door open if legislation is needed. In fact, there is one particular measure that we will endeavour to put through in the current Parliament, as long as we have cross-party support for it.

Autism

Lord Touhig Excerpts

Wednesday 4th February 2015 Lords Chamber

[Earl Howe]

My Lords, the answer to my noble friend’s question lies in more professionals being trained in autism and services supporting rather better the needs of children and adults with autism, and a lot of work is going on on those fronts. We are also asking local authorities to focus, in particular, on their own performance and to report back on the progress they are making on autism diagnosis, and indeed on other issues in Public Health England’s national autism self-assessment exercise. That process will draw out the shortcomings that exist in certain parts of the country.

[Lord Touhig (Lab)]

My Lords, there is evidence that some 25,000 children in England with autism have not been thoroughly diagnosed. The National Autistic Society, of which I am a vice-president, found in a survey that 34% of autistic people had to wait more than three years for a diagnosis. What are the Government doing to speed up this diagnosis and to ensure that it takes place within three months of a referral, which is the NICE recommendation?

[Earl Howe]

My Lords, part of this depends on the system working in a joined-up way between the National Health Service, local authorities and all the services upon which they depend. A great deal more training is going on, as I have mentioned. In December the Department of Health, the Association of Directors of Adult Social Services and Public Health England issued a new national autism self-assessment exercise, as I have mentioned. Much can be achieved, as we are impressing on local authorities, through low-level preventive support, and there are duties around prevention in the Care Act that local authorities now have in this area.

Meals on Wheels

Lord Touhig Excerpts

Monday 19th January 2015 Lords Chamber

Asked by

[Lord Touhig]

To ask Her Majesty’s Government what estimate they have made of the number of elderly people who have received meals on wheels in the past year.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, the Health & Social Care Information Centre does not collect comprehensive data on numbers receiving meals; it only collects a subset of this group: those receiving meals as part of a formal package of care. I understand from the information centre that in 2013-14, 31,950 people received meals from councils with adult social services responsibilities as part of a formal care package. Some 29,605 were older people aged 65 or over.

[Lord Touhig (Lab)]

My Lords, 220,000 fewer elderly people received meals on wheels last year than in 2010, when this Government came into office. Why?

[Earl Howe]

My Lords, as I have indicated, there are a variety of reasons for this. The data collected by the information centre include only people who receive meals in their homes as part of a council-arranged formal package. They do not include informal arrangements such as the provision of meals at day centres or via daycare, or indeed those who pay the council for their meals, as many do.

--- Later in debate ---

[Earl Howe]

My Lords, local authorities’ funding through central revenue support has indeed reduced, but spending on adult social care has been relatively protected compared with nearly all other local authority services. In cash terms, councils have reported only a small reduction in money spent on adult social care since 2010, despite the tough public funding climate. It is up to the party opposite to explain where the money would come from—if it will increase local authority spending—given that the shadow Chancellor has ruled out increasing local government spending if Labour is elected at the general election.

[Lord Touhig]

Perhaps I may help the Minister. Could it be due to the fact that the average cost of a single meal has gone up 22% since this Government have been in office? How do the Government justify that?

[Earl Howe]

My Lords, local councils do not have to charge for meals; they may provide them free of charge or at subsidised rates if they want to. If they charge, they must—as is the case for any non-residential social care service—follow the statutory guidance. That guidance ensures that, where they do charge, the charge is consistent and fair.

Children and Families Bill

Lord Touhig Excerpts

Wednesday 20th November 2013 Grand Committee

Moved by

[Lord Touhig]

266AAA: Clause 89, page 66, line 38, at end insert—
“( ) Where, during an employee’s shared parental leave, it is not reasonably practicable by reason of redundancy for the employer to continue to employ him or her under an existing contract of employment, the employee is entitled to be offered a suitable alternative vacancy that arises during the shared parental leave period.
( ) The shared parental leave period means the period from the date of notification of intention to take shared parental leave, ending at 52 weeks from the birth of the employee’s baby.
( ) Where there is a suitable alternative vacancy with the employer or his successor or an associated employer, it must be offered before the end of the existing contract of employment and takes effect immediately on the ending of the previous contract.
( ) The new contract of employment must be both suitable work for the employee and appropriate for him or her to do in the circumstances and its provisions as to the capacity and place in which he or she is to be employed, and as to the other terms and conditions of employment are not substantially less favourable than if he or she had continued to be employed under the previous contract.”

[Lord Touhig (Lab)]

My Lords, the purpose of my Amendment 266AAA is to replicate vital existing protections afforded to women on maternity leave within the new system of shared parental leave. It provides protection to parents for the entire period during which they are entitled to take shared parental leave, rather than simply the period when they are actually away on leave. The amendment replicates the approach taken by Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999. This states that in the case of a redundancy, women on maternity leave must be offered any appropriate alternative vacancy. Such protections have been crucial in giving women the confidence to take the statutory maternity leave to which they are entitled, thus overcoming the fear that in so doing they may be adversely affecting their job or career prospects.

It is important that the new system of shared parental leave allows parents to feel a similar level of confidence when taking leave. The intention of the new system is that parents can take leave in short, discontinuous blocks. Consequently, for this to happen, protection must not be limited to those periods when a parent is actually on leave, as this would discourage parents from using the new system of shared parental leave in the way in which the Government hope and intend that it should operate.

The importance of designing appropriate protections for parents taking leave under the new system has already been acknowledged by Ministers in the other place. This amendment not only creates the necessary protections to ensure that parents have the confidence to use the new system of shared leave as intended but creates a system of protections that is easy for both employee and employer to understand. The clarity and scope of the protection offered by this amendment will give parents the confidence they need to fully utilise this new scheme of shared parental leave. I beg to move.

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[Viscount Younger of Leckie]

My Lords, I am glad that these amendments give us the opportunity to debate the detail of how shared parental leave will work in practice for families. Shared parental leave will offer families new choice and flexibility about how they manage their childcare arrangements in the first months of a child’s life. It is true that this opportunity will be used by parents only if they feel confident that they will continue to be treated fairly in the workplace when they return.

Current maternity and additional paternity leave provisions provide protections to parents against dismissal; additional support when parents are absent from the workplace during a redundancy process; and the right to return to work into the same job, or in certain cases if that is not reasonably practicable, a similar job that is suitable for them and of equal standing. These protections are important to parents and will directly influence the decisions they make in whether to take maternity or paternity leave. Mothers on maternity leave and fathers taking additional paternity leave currently have protection from detriment while taking leave. Parents taking leave also have the right to be offered a suitable alternative vacancy in a redundancy situation, where there is one available. This alternative must be suitable and appropriate for the individual.

The Government recognise that it is important to provide employees with protection from discrimination and detriment when they are absent from the workplace for parental reasons. I am grateful to the noble Lord, Lord Stevenson, for raising this. I believe that we think alike on this important issue. Furthermore the Government believe that pregnancy discrimination and discrimination against parents taking leave to care for their children is unacceptable in any form. This is why the Government have recently announced new research into the attitudes of employers on pregnancy and maternity leave as well as the prevalence and causes of pregnancy discrimination in the workplace. This research will be jointly funded by the Commission for Equalities and Human Rights, the Government Equalities Office and my department, the Department for Business, Innovation and Skills.

I would like to reassure the Committee that the Government intend to make regulations to provide appropriate protections for employees in the case of shared parental leave. The Government recognise that it is important to provide protections for parents who are absent from the workplace on parental leave and are currently considering the most appropriate way to protect parents taking shared parental leave from being disadvantaged in a redundancy situation. The Government intend to publish draft regulations in the coming months on all key elements of the shared parental leave policy. This will include the details of the protections while on shared parental leave. The Government’s approach will recognise the difficulties that parents may face when taking shared parental leave. Any protections will be proportionate to support parents in an effective way, enabling them to take leave with confidence that they will not be disadvantaged. This will be balanced with the needs of employers to be able to manage their employees effectively.

I turn now to the right to return to the same job. Mothers returning from a period of ordinary maternity leave have the right to return to the same job. This protection is also applied to fathers taking additional paternity leave. Where mothers return to work after a period of additional maternity leave they have the right to return to the same job, or where this is not reasonably practicable, the right to return to a similar job which is suitable and appropriate, the point that the noble Lord, Lord Touhig, made earlier. The Government consulted on how to apply these important protections to parents taking shared parental leave in an appropriate manner. Shared parental leave will create different challenges for employers. An employee will be able to take short, discontinuous absences from the workplace under shared parental leave and this means that employers will have more opportunity to engage an employee in any reorganisation at work while they are in the office.

The Government are currently carefully considering the responses to the consultation on the administration of shared parental leave. This includes how to apply the right to return to the same job to parents taking shared parental leave. I am grateful to the noble Lords, Lord Stevenson and Lord Touhig, for bringing this important matter to the attention of the Committee, but I hope they are reassured that the Government intend to provide protections for parents taking shared parental leave, and the commitment that the details of this will be set out in regulations in the coming months. In the mean time, I ask the noble Lord, Lord Touhig, to withdraw his amendment.

[Lord Touhig]

My Lords, in what seems an age ago now, I was once the Labour Party parliamentary candidate in Richmond upon Thames and I was invited to address a conference of Labour women. I saw the hackles go up when I said that, as a country, we were wasting a fortune educating women because when they complete their education we put every barrier in their way to stop them getting a job and having a family which, as a man, I take for granted. We still have a long way to go to make sure there is fairness and equality for women in the workplace. I am encouraged by what the Minister says about how we might see the hopes of the amendments tabled by myself and my noble friend Lord Stevenson realised in regulations. All I can say to him when he draws up his regulations is to think of the Welsh “chwarae teg”—fair play. That is all we are asking for. I beg to withdraw the amendment.

Amendment 266AAA withdrawn.

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Moved by

[Lord Touhig]

266D: Clause 90, page 68, line 24, at end insert—
“(za) in subsection (2) at the end there is inserted “for each child born as a result of the pregnancy in addition to the entitlement to allow the Secretary of State to regulate for additional maternity leave under section 73;”

[Lord Touhig]

My Lords, Amendments 266D and 266E deal with multiple births. Amendment 266D seeks to allow additional leave and Amendment 266E seeks to allow additional maternity pay, both in proportion to the number of births.

I believe that these amendments are necessary due to the intense additional pressures that parents of multiple births face over those of single births. As a grandfather of twins, I can certainly testify to the truth of that. Currently both groups receive the same entitlements to pay and leave. Maternal stays during birth admissions are 60% to 70% longer for multiple births than single births. Even prior to birth, expectant mothers of multiple births are six times more likely to be admitted into hospital and more than twice as likely to be admitted into intensive care as expectant mothers of single babies.

In addition, twins are 10 times more likely to be admitted to neonatal special care units; 44% of twins and 91% of triplets are born prematurely and spend time in neonatal care. On average, parents of multiple births spend a larger proportion of their maternity and paternity leave in neonatal units, and both mothers and children are more likely to face serious health complications. All this reduces the amount of time that parents have to bond with their children and settle into parental life. They have less time to do what parents of single children have to do, even though they have more children to do it with. It is an alarming fact that 20% of mothers of multiple births suffer from postnatal depression, double the proportion of mothers of single children.

Parents of multiple births do not merely face additional emotional and health issues but financial ones. They are far more likely to experience economic hardship in the first 18 months of their children’s lives than parents of a single child. A report published this year by the Twins and Multiple Births Association, titled Multiple Births Parents’ Experience of Maternity and Paternity Leave, revealed that 61% of respondents did not have enough maternity and paternity pay to cover the cost of their leave. In order to get by, 32% stated that they put money on their credit card and they could not pay it off in full at the end of the month. More than half the respondents built up debt and a quarter built up debt of more than £2,000.

It is abundantly clear that parents of multiple births face very real additional challenges compared to their peers. Nevertheless, the current system treats both groups in the same manner. These amendments seek to introduce an element of responsiveness within the system to the very real difficulties faced by those who experience multiple births, in order to create a modern system of maternity leave.

I hope that the Minister will also consider taking prematurity into account in maternity leave legislation. It could be achieved by simply using “babies expected” rather than their actual due date when calculating maternity leave. I hope he will respond to that. I beg to move.

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[Lord Touhig]

My Lords, we have had a series of very good debates this afternoon with a listening Minister, although I fear that he has stopped listening in this debate. I am encouraged by some of the things he has said but it is pretty clear that the Government will make no movement whatever on my two amendments. We may need to return to this issue on Report but, for the time being, I beg leave to withdraw the amendment.

Amendment 266D withdrawn.

Care Bill [HL]

Lord Touhig Excerpts

Monday 29th July 2013 Lords Chamber

[Lord Low of Dalston]

My Lords, I shall speak more briefly, your Lordships will be pleased to learn, than I have in any of the debates we have held so far in Committee. I wish to speak to Amendment 105R. This is a probing amendment designed to seek clarification as to the meaning of Clause 72. The clause gives local authorities power to delegate some of their functions to other care providers. This raises the question of whether care provided under such delegated authority should be regarded as arranged by a public authority and therefore subject to the Human Rights Act. Clause 72(6) states that:

“Anything done or omitted to be done by a person authorised under this section … is to be treated … as done or omitted … by … the local authority.”.

This means that the local authority remains bound notwithstanding any delegation of its functions. But the Joint Committee on the draft Care and Support Bill recommended that the clause should be amended to state that the person with delegated authority is also subject to the same legal obligations as the local authority itself. It is argued that this should include obligations under the Equality Act 2010, the Human Rights Act 1998 and the Freedom of Information Act 2000. However, subsection (7)(a) puts the whole matter in doubt by providing that this does not apply,

“for the purposes of the terms of any contract between the authorised person and the local authority which relate to the function”.

The amendment seeks clarification as to what this means and an assurance that not only local authorities but also those who provide care under these arrangements will be treated as public authorities for the purposes of the Human Rights Act and other legislation.

[Lord Touhig]

My Lords, I shall speak to Amendment 105Q in my name and in the name of someone I am proud to call a noble friend, the noble Baroness, Lady Browning, who spoke to this amendment so well and eloquently. As law makers, we can be proud of the Autism Act 2009. It was a significant piece of legislation and it is well embedded. I look forward to the review of the autism strategy that the Government are now undertaking. This amendment will ensure that the duties set out in the statutory guidance continue to apply to local authorities and NHS bodies to ensure the ongoing implementation of the Act. There is much wisdom and common sense in this and I hope that the Government will support it.

[Lord Patel of Bradford]

My Lords, I shall speak to my amendments 105AA and 105CA, which affect subsections (6) and (7) of Clause 69. Amendment 105AA ensures that people in prison and those residing in approved premises have the same equivalence of care when it comes to safeguarding inquiries by local authorities under Clause 69(6). Amendment 105CA requires a senior member of the Prison Service to be a member of the safeguarding adults board in the area.

We just have to look at the figures in terms of the vulnerability of people in prison: prison suicide rates are 14 times greater than in the general population; over a third of offenders have self-harmed; many have a huge number of delusional disorders and personality disorders and a great many have drug and alcohol problems. This is all compounded by prisoners struggling to get access to services for a range of reasons, and they are impeded by waiting times and transfers within the prison system. Prisoners with complex needs may have too many different agencies to work with when they are released. Prisoners with such problems are particularly vulnerable, and the characteristics I have outlined are the norm rather than the exception. Providing appropriate care and support can have a significant impact on reoffending and greatly enhance people’s ability to rebuild their lives on release.

However, a huge lack of clarity around the provision of adult social care for prisoners has led to care needs not being addressed or identified, and this in turn has increased the risk of reoffending upon release. I welcome the clarity provided by the Government through this Bill, which places the responsibility for the adult social care of prisoners on the local authority where the prison is located. Clause 69 outlines the responsibilities of local authorities towards people in prison with care and support needs and ensures that they are able to access care and support on a similar basis to those in the community. The Bill confirms local authorities’ responsibilities towards this group by applying core duties to assess and meet needs on the same basis as for other groups.

However, I am concerned that, having made such a significant and welcome commitment to the social care of prisoners, people in prison and people residing in approved premises, which means people living in the community, they are not to receive the same equivalence of care when it comes to safeguarding inquiries by local authorities under Clause 69(6). I am pleased that government Amendment 105A allows safeguarding adults boards to provide advice and assistance to protect all adults in its area, including those in prison and residing in approved premises. This is a significant and positive step forward in helping to protect vulnerable individuals wherever they might be, and aids the support staff who work with them.

However, denying prisoners and people residing in approved premises the benefit of “enquiry by local authority” when safeguarding concerns are raised surely places an already vulnerable group of individuals at even greater risk. The offer of advice or assistance is no substitute for statutory inquiry when safeguarding concerns are raised. “Enquiry by local authority” not only protects the individual, it also helps to shine a light on some of the most hidden corners in our society. It is another tool to help ensure that our prisons are safe both for vulnerable prisoners and for the staff who work with them. An inquiry by the local authority does not duplicate the excellent work undertaken by Her Majesty’s Inspectorate of Prisons or by the prison itself. It complements and enhances them and, most importantly, it could help to save lives. While the Minister’s amendment is helpful, I feel that it does not go far enough. I would be grateful if she could give us a clear reason why such changes have not been included.

I am also pleased that the Minister has moved forward in enabling governors or prison officers to be members of safeguarding adults boards. I would say that they should be told to be on a board because we know how busy prison officers and staff are. If it happens on a voluntary basis, unfortunately we will get regular lack of attendance; people will not turn up to the meetings. It is important that we get some joint working between prisons and local authorities. Prison staff can learn from safeguarding boards, as they have done in Surrey, which is a fantastic example of prisons working with local authorities. Prison staff benefit from the expertise of social services and local authority safeguarding teams.