Oral Answers to Questions
Baroness Keeley Excerpts(6 years ago)
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The Minister for Health (Stephen Hammond)
My right hon. Friend is right to welcome the announcement for Scarborough Hospital, and I understand that the full business case for the redevelopment of Whitby Hospital is going through the Hambleton, Richmondshire and Whitby governing body for approval on 24 January. I am assured that the clinical commissioning group remains supportive of the redevelopment of Whitby Hospital and, if it is helpful, I would obviously be delighted to meet him after 24 January.
Barbara Keeley (Worsley and Eccles South) (Lab)
This Government’s cuts to council budgets have meant that 100,000 fewer people received publicly funded social care over the past three years, and 90 people a day died while waiting for social care last year. What does the Secretary of State think it says to their families that the social care Green Paper and the meaningful funding settlement have been delayed again?
The Minister for Care (Caroline Dinenage)
The hon. Lady knows that we have given councils access to nearly £10 billion over a three-year period to address this very issue, but she is right to highlight the issues at the heart of social care. We will be publishing the Green Paper very shortly.
Mental Capacity (Amendment) Bill [ Lords ] (Second sitting)
Baroness Keeley Excerpts(6 years ago)
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The Minister for Care (Caroline Dinenage)
It is a great pleasure to respond on the amendment, after our short break, in this delightfully warm and cosy room. I will start by addressing some of the issues raised by hon. Members.
The Opposition spokeswoman, the hon. Member for Worsley and Eccles South, spoke powerfully about concerns to do with independent hospitals and, more particularly, about the case of Bethany. We are absolutely clear that it is completely unacceptable to be subject to prolonged seclusion in the way that the hon. Lady mentioned. We have commissioned an independent review under the NHS serious incident review framework. That does not necessarily have to do with the Bill, but I felt it important to set that out for clarity. In addition, the Secretary of State commissioned a section 48 Care Quality Commission review of restrictive practices, including seclusion and long-term segregation, to understand the extent to which these things happen. NHS England is working very urgently to support Bethany into a community placement. Her father and Mencap have issued a pre-action protocol to challenge the current arrangements.
More broadly, with regard to the Transforming Care agenda, detentions of people with learning disabilities and/or autism in mental health hospitals are completely inappropriate and must end. We will achieve a 35% reduction in that at the earliest opportunity.
Barbara Keeley (Worsley and Eccles South) (Lab)
Can the Minister say why the NHS long-term plan appears to go backwards on that? It is going from 25 people with a learning disability or autism in an in-patient unit per million adults to 30. That does not sound like progress; that sounds like removing a priority.
Caroline Dinenage
I understand why the hon. Lady says that, but looking at it in context, we committed to reducing the numbers by between 35% and 50% by the spring. There is no dilution of that commitment, but we have recognised that ensuring that community alternatives are robust is absolutely fundamental, because as she is well aware, we have seen people taken out of hospital settings and put into the community, but ending up back in hospital because community facilities were not sufficiently robust. That is why, as part of the NHS long-term plan, both autism and learning disability are highlighted as one of the four clinical priorities.
The plan commits to building in full the right support, to continuing that support, and to reducing in-patient numbers by 50% no later than 2023-24. The key is an enduring commitment—not knee-jerk reactions to an awful circumstance such as that mentioned by the hon. Lady—to address the issue for vulnerable people in the long-term. We are clear that in assessment and treatment units, the sorts of restraints we are talking about should be very much a last resort. We are committed to supporting those with learning disabilities and autism to live well in the community, and to putting an end to inappropriate detentions.
The amendment seeks to make clinical commissioning groups in England and local health boards in Wales the responsible bodies for arrangements in cases where they commission the care of people accommodated in independent hospitals. I am sure the whole Committee agrees—I know the hon. Lady does—that it is vital to provide protection to vulnerable people in independent hospitals. We have all seen how the misuse of authority in such settings can lead to the kind of tragic and unacceptable consequences that she highlighted.
The Bill demonstrates the Government’s commitment to ensuring that vulnerable people receive protection. The Government have further strengthened those protections with amendment 9, which requires an approved mental capacity professional to conduct the pre-authorisation review if the cared-for person receives care or treatment mainly in an independent hospital. By requiring authorisations in independent hospitals to be considered by an AMCP, regardless of whether there is any objection, we add a further level of security. The AMCP will meet with the person concerned, complete a consultation and review assessments to decide whether the authorisation conditions are met.
I further reassure Members that the AMCP will act independently of the responsible body. I know that the hon. Lady has concerns about that. The AMCP will be approved by a local authority, act as an independent decision maker and be accountable to their professional body. Those acting as AMCPs will be experienced professionals who have successfully completed approved post-qualification specialist training, which will require them to demonstrate the capability to ensure and promote the person’s best interests and protect their rights.
Barbara Keeley
The point I was making very strongly, and which I ask the Minister to consider again, is that it is easy to see a situation in which the relationship between an independent hospital and a preferred list of AMCPs could get very cosy, with the AMCPs working only in those hospitals and the work starting to become a large part of their livelihoods. The Minister cannot reassure me that that would not happen. The responsible body is entirely responsible for the whole process of selecting the AMCP and making the arrangements, and it can just plump for the same people time and again, and develop a cosy relationship. That is a real fear.
Caroline Dinenage
The hon. Lady has legitimate concerns. Making the responsible body the independent hospital was a recommendation in the Law Commission report. Amendment 19 changes the responsible body in cases where a CCG or a local health board is responsible for commissioning the care of people for the assessment or treatment of a mental disorder.
Caroline Dinenage
The hon. Gentleman makes a good point; we have to look at that interaction. The AMCP will be a professional social worker, will be accountable to a professional body, and will have the high level of skills and training to enable them to carry out their job with great professional integrity. However, the reasonable concerns that have been raised by hon. Members need to be taken into consideration, and I find the suggestion that they make in this amendment very interesting; I have a good deal of sympathy for it, and am certainly willing to reflect further on the amendment. The problem is that its exact wording does not work. We need to ensure that any changes work for the whole system. We also know that there are examples of NHS England commissioning the care from an independent hospital; it is not just CCGs. With that in mind, I commit to considering this amendment further. I hope that answer enables hon. Members to withdraw it.
Barbara Keeley
Our concern is that the Bill enshrines a fundamental conflict of interest by allowing independent hospitals to be the responsible body for deprivation of liberty in their own hospitals. That is what is wrong: they have that power in their own hospitals. They are not independent of the people who are in those hospitals, and the important thing is that, as I have described, these are organisations with a vested interest in putting people in their hospitals. There was not much debate about this issue in the House of Lords, because the Lords concentrated on the role of care home managers, but the point was made that the vested interests of independent hospitals are different from those of NHS hospitals.
NHS hospitals are not perfect. We have had awful issues in them; Connor Sparrowhawk’s death happened in an NHS hospital, as did other deaths. As the Minister will know, when somebody is admitted to an NHS hospital, the pressure on the system is to get them discharged. That is not the case here. The Minister knows from the case of Bethany, which I cited, and from other cases that the vested interest of independent hospitals is to keep people there. Maybe we should be looking at fee levels separately, because that is part of that vested interest, but there is a vested interest, and I would not be content to allow the situation that this Bill permits. Independent hospitals have a very substantial vested interest; the Minister heard the figures that I gave. Those are serious amounts of money, and a serious waste—it is not even a good use of money in the NHS.
Independent hospitals often receive hundreds of millions of pounds in public funding every year. They are not all bad, I am sure, but programmes such as the BBC’s “File on 4” and journalists such as Ian Birrell have repeatedly revealed cases in which they are bad and things are going wrong, the most recent being the Priory group and the death of young Amy. That hospital was making £720 million out of the NHS every year. These hospitals receive public funding, and they are not up to the job that they are doing. I ask the Minister for Care to accept that these independent hospitals are, in too many cases—we do not know what proportion—deeply flawed. The company I just mentioned had been criticised by the coroner 20 times since 2012—Southern Health had a lot to answer for—so we are not talking about one or two deaths.
As I mentioned, 40 people died in assessment and treatment units between 2015 and 2018. There are numerous cases involving the bodies that the Bill designates as responsible for organising this whole process, and that is what is wrong. The Government amendment, which will involve AMCPs in these cases, is not sufficient. It is clear to me that the power of deprivation of liberty should never lie in the hands of the organisations I have talked about, which are making such profits and have such vested interests.
The Minister is clear that she wants to address the appalling abuse that is sometimes meted out in independent hospitals, and I believe she is sincere about that. However, without this amendment, there is a danger that the Bill will enable more of that type of case, because it is clear to all parties that more cases will be dealt with under this new process than under the Mental Health Act 1983—and the Act has more safeguards.
In my view, the wrong signal is being sent at this time of heightened concerns about these hospitals. If the Minister is concerned about this issue, she should be prepared to accept the amendment. We will press it to a Division; it is important that we do so. If there is anything we can do to improve the amendment before Report, we will do it, but we are going to press it to a vote today.
Question put, That the amendment be made.
Caroline Dinenage
I beg to move amendment 3, in schedule 1, page 8, line 19, leave out from “mainly” to “that” in line 21 and insert
“through—
(i) the provision of NHS continuing healthcare under arrangements made by a clinical commissioning group, or
(ii) in Wales, the provision of an equivalent to NHS continuing healthcare under arrangements made by a Local Health Board,”.
“NHS continuing healthcare” is defined, for England, by paragraph 8 of new Schedule AA1. This amendment provides that in the case of arrangements carried out through the equivalent of NHS continuing healthcare, in Wales, the responsible body is the Local Heath Board making the arrangements.
This is just a technical amendment that will help to ensure that the new liberty protection safeguard system, which I am sure we all agree is a really important part of this process, works well in Wales. There is no statutory definition of “NHS continuing healthcare” that applies to Wales. The amendment clarifies that, while in England the CCG will be the responsible body when care arrangements are mainly done through continuing healthcare, in Wales, local health boards will act as responsible bodies, if the arrangements are mainly carried out through the provision of an equivalent to NHS continuing healthcare, as defined in English legislation.
In the new system, the responsible body will have the important role of arranging pre-authorisation review, in which a person independent of delivering the day-to-day care or treatment will review the arrangements before authorising them. This is a vital safeguard in a system that will ensure that arrangements receive proper scrutiny.
I put on the record my thanks to colleagues in the Welsh Government who have worked with us to ensure that the drafting of this amendment will allow the system to work in Wales as the Law Commission recommended and as the Government intend. I ask the Committee to support the amendment.
Barbara Keeley
We welcome this amendment, which gives clarity on arrangements in Wales, so that there is uniformity with England through the equivalent to continuing healthcare arrangements.
Amendment 3 agreed to.
Steve McCabe
I beg to move amendment 47, in schedule 1, page 11, line 17, at end insert—
“(d) the arrangements are in the cared for person’s best interest,
(e) less restrictive options have been considered,
(f) appropriate weight has been given to the cared for person’s feelings and wishes as best as these can be determined.”
This amendment is designed to pursue the issue of a person being deprived of their liberty as a last resort and only if it is in their best interest and a reasonable effort made to determine their wishes and feelings.
In suggesting these additions to the clause, I will return to the matters I raised this morning, because it seems to me that it is crucial that we in this Committee are as confident as any Committee ever can be that the arrangements will prove to be for the benefit of and in the best interests of the vulnerable person, and not for the convenience of the agency or the authorising body. It seems to me that, as the pressures grow on various professionals, the temptation is to interpret legislation for the convenience of the agency, as opposed to the interests of the individual. Consequently, it would be helpful and send an absolutely clear signal about the Government’s intentions if the Minister were to include in the clause a statement that the authorisation must be in the person’s best interests. That would make it crystal clear that there could not be any room for doubt or any other agenda or issue to intrude.
I recognise that paragraph 12(c) of new schedule AA1 to the Mental Capacity Act 2005 says that the arrangements must be “proportionate”, and I guess that the Minister will tell me that my fears will, therefore, not be realised, but I was thinking about that during the break and wondered whether “proportionate” could be interpreted as “suitable” rather than “necessarily in the best interests of the person”. It is quite possible in a hospital or a local authority setting to make proportionate arrangements that are suitable.
I am sure every member of the Committee deals with housing cases in local authorities every day of the week, where the local authority says that it has been proportionate in its decision about allocating a property, particularly given the constraints on the properties it has. It will certainly be a proportionate decision, but whether it is necessarily in the best interests of the person is open to debate. I simply say to the Minister that I am not wholly convinced that the two terms are exactly the same. Likewise, I do not know that, in a situation where “proportionate” meant “suitable”, it would necessarily indicate that all other less restrictive options have been properly considered, examined and then excluded. I am thinking of an elderly person who suffers a degree of confusion, or a brain-injury victim. If there is a lack of home care or day care in the area in which they reside, there may be a temptation to go for another option regarded as proportionate based on those considerations, rather than on what is in the best interests of the person, and to rule out more coercive options.
In such a situation, it might be perfectly possible for that elderly person or brain-injury victim to be properly and well cared for with the support of a dear relative, if that relative had access to realistic respite care to give them a break from time to time, and if the cared-for person had their care supported by reasonable access to home care and day care services. If that were the case, it would be wrong to restrict that person’s liberty not because less restrictive options had been considered and ruled out, but because the available care options in the area were inadequate and nothing had been done to try to address that.
That would be a classic example of a decision being made to suit the immediate economic interests of the agency or the environment in which the person happened to reside. It would not be about what was wholly in the best interests of that person. It would certainly not be because appropriate consideration had been given to less restrictive options. It would be proportionate, because in that situation “proportionate” was interpreted to mean “convenient” or “suitable”, rather than anything else. That is why I raise this matter.
Barbara Keeley
I thank my hon. Friend for introducing his amendment. Through the progress of the Bill, we are discussing the circumstances where it is appropriate to deprive someone of their liberty. That should never be done lightly. Nobody should be deprived of their liberty unless it is in their best interests. That point is really worth making and it should go without saying, but the Bill does not give an assurance that this will always be the case.
I acknowledge that other areas of the Mental Capacity Act 2005 discuss this interest, but it is such a vital point that it bears being made again. We cannot leave practitioners in any doubt that best interest must be foremost in their mind when they are making decisions. Best interest, of course, should not be entirely decided by practitioners. Even where people lack capacity, we must do everything we can to take their wishes into account. Again, I hope this is an obvious point, but it is not in the Bill.
Part of the difficulty of having such a short Bill is that many words should be included to make the concept clear and they are not there. I am sure the Government do not wish to see people deprived of their liberty when it is not in their best interest. I am absolutely sure about that. I look forward to hearing from the Minister how the Government will ensure that that is the case.
The amendment also makes clear that deprivation of liberty should be allowed only if there are no less restrictive alternatives—that is a key point. Nobody should be deprived of their liberty because it is easier, cheaper or requires less paperwork, or, indeed, because it is more expensive and makes a profit for firms. If there is a way to keep somebody safe that does not deprive them of their liberty, we should always seek to pursue that.
I have touched on the fact that thousands of people with autism and learning difficulties are currently held in assessment and treatment units. A number of people in mental health hospitals, independent hospitals and others are being held under the Mental Capacity Act. I gave the numbers of applications that are made under the deprivation of liberty safeguards earlier. We know that they are kept in isolation and denied freedom. I have no doubt that in some cases they were exhibiting challenging behaviour, and that became the path of least resistance. That is why it is very dangerous. If the amendment were accepted, hospitals and care homes would have to consider whether there were less restrictive ways to keep someone safe. Those other less restrictive ways may not be the easiest to organise, but that is not a good reason to deprive somebody of their liberty.
As the Minister knows, these topics were all raised in the House of Lords. She may say that everything will be laid out in the code of practice, but we do not have that in front of us and, as I made clear earlier, it will not carry the same weight as statute. The Bill is relatively short and it can bear additions; indeed, it is so brief that it needs them. Putting these provisions in the Bill would make intentions clear to practitioners. The deprivation of liberty should be a last resort and, of course, should never happen if it runs against a person’s best interest. The intention of the amendment by my hon. Friend the Member for Birmingham, Selly Oak is noble and I hope the Government will take it on board.
Caroline Dinenage
I thank the hon. Member for Birmingham, Selly Oak for highlighting the issue, about which I always listen to what he has to say. Of course, he is quite brilliant in his own special way, and he has taken a lot of time to engage with me and to do his homework on the subject, which is close to his heart. I am grateful for that.
I share the hon. Gentleman’s sentiment. As the hon. Member for Worsley and Eccles South said, we are talking about depriving somebody of their liberty, which is our most fundamental human right, so we cannot do it quickly, based on cost, or based on the current system, which Simon Wessely described as a “perfunctory and box-ticking” exercise. It has to be done with people’s best interests, and their wishes and feelings, at heart. Excellent care and the interests of the cared-for person have to be at the heart of everything we do.
In responding to the points the hon. Gentleman made in moving the amendment, it is worth reminding hon. Members that the Bill will not replace the current Mental Capacity Act 2005, but amend it. Best interest decision making remains fundamental to the existing Act, within which the liberty protection safeguards will sit. Before a liberty protection safeguards authorisation is considered, it will need to be decided that the arrangements are in a person’s best interests. That is included in section 4 of the 2005 Act. It must then be demonstrated that arrangements to enable that care and treatment are necessary and proportionate.
I understand the hon. Gentleman’s concern about the words “necessary” and “proportionate”, but the word “proportionate” was chosen because it has a specific meaning in human rights case law. It means that assessors must consider less restrictive options, and cannot base their decisions purely on cost or any other box-ticking exercise. The word “necessary” is used in conjunction with the word “proportionate” in the Bill, which means that the arrangements must benefit the person.
That part of the liberty protection safeguards takes place at the second stage test. I agree with hon. Members that it is fundamental for people deciding whether to authorise a deprivation of liberty to consider whether less restrictive options are available. A necessary and proportionate assessment would also include the consideration of less restrictive practices. Considering less restrictive alternatives is already an important aspect of the wider 2005 Act. In fact, the fifth principle of that Act specifies that decision makers have to have regard to less restrictive options. Nothing in the Bill changes that. Indeed, we will ensure that that is a core part of the consideration of what is necessary and proportionate.
On the matter of wishes and feelings, which the hon. Gentleman talked about so powerfully, it should be noted that they are already part of the first stage of best-interest decision-making under section 4 of the 2005 Act. I can confirm that the Bill does not change that. Wishes and feelings will form a key element of the necessary and proportionate test. During the Bill’s passage in the other place, we tabled an amendment that makes it explicit that regard must be given to a person’s wishes and feelings in relation to arrangements. We tabled a second amendment that explicitly requires the cared-for person to be consulted under the consultation duty. Those amendments were made purely because we agree that the person’s wishes and feelings should be at the heart of the liberty protection safeguards process.
I hope that that provides some clarification and reassurance for the hon. Gentleman. I am certainly not in the business of keeping the Bill as small and tight as possible just for the sake of it; if there are amendments that I feel will materially add to the Bill, I am more than happy to take them on. In this case, I hope that the hon. Gentleman will withdraw the amendment.
Caroline Dinenage
I beg to move amendment 4, in schedule 1, page 11, line 19, leave out from beginning to end of line 7 on page 12 and insert—
“13 (1) As soon as practicable after authorising arrangements, the responsible body must ensure that a copy of the authorisation record is given to—
(a) the cared-for person,
(b) any independent mental capacity advocate appointed under paragraph 39 to represent and support the cared-for person,
(c) any person within paragraph 39(5) in respect of the cared-for person (the “appropriate person”), and
(d) any independent mental capacity advocate appointed under paragraph 40 to support the appropriate person.
(2) As soon as practicable after authorising arrangements, the responsible body must take such steps as are practicable to ensure that the cared-for person and any other person listed in sub-paragraph (1) understands—
(a) the effect of the authorisation,
(b) the right to make an application to the court to exercise its jurisdiction under section 21ZA,
(c) the programme of regular reviews specified by the responsible body in accordance with paragraph 35(2),
(d) the right to request a review under paragraph 35(3)(b),
(e) the circumstances in which a referral will be made to an Approved Mental Capacity Professional under paragraph 35(4),
(f) the circumstances in which an independent mental capacity advocate should be appointed under paragraph 39, and
(g) the effect of there being an appropriate person in relation to the cared-for person.”
This amendment substitutes a new paragraph 13 of the new Schedule AA1 to require that, as soon as practicable after arrangements are authorised, the responsible body must provide to the cared-for person and any other person listed in paragraph 13(1) a copy of the authorisation record and take steps to ensure that those people understand the matters described in paragraph 13(2).
This amendment relates to the responsible body’s duty to provide information to the person receiving protections, an appropriate person, or an independent mental capacity advocate. When depriving someone of their liberty, it is crucial that they are provided with all the information necessary for them to exercise their rights. Arrangements under liberty protection safeguards will not simply be something that is done to a person, but a process they are part of—I hope that I have already explained that quite plainly in answers to previous amendments.
The duty to provide information derives from article 5 of the European convention on human rights, which is brought into effect in UK legislation through the Human Rights Act 1998. The Law Commission did not outline this duty in its draft Bill. However, views expressed in the other place have made it clear that this Bill should reflect the right to information explicitly on its face. This amendment has therefore been tabled to provide clarity on exactly what is required.
The amendment requires the responsible body to provide a copy of the authorisation record to the person under protection, as well as any appropriate person or independent mental capacity advocate, or IMCA, as soon as practicable after the authorisation is granted. It also specifies that the responsible body must, as soon as practicable after authorisation, ensure among other matters that the person understands the effect of the authorisation and their right to challenge it in a Court of Protection.
The amendment replaces the amendment inserted in the other place on this matter, which was unfortunately not workable within the existing Mental Capacity Act. The Lords amendment set out a range of information that should be shared with the person, but it did not provide clarity on where this information should be shared, which could lead to practical difficulties for practitioners and create exactly the sort of legal loopholes we are trying to avoid.
The Government amendment clarifies exactly what information needs to be provided and to whom, as well as specifying a clear point at which information should be shared. It will impose a legal duty on responsible bodies, so it must be clear where these duties arise. Information can, of course, be shared prior to this point, and in most cases we would expect and encourage this. We will set out more details of this in the code of practice and hopefully make that as explicit as possible.
The amendment is explicit about the point at which the information about the authorisation must be shared, and I hope the Committee will support it.
Barbara Keeley
Opposition Members cannot support Government amendment 4. The evidence provided to this Committee by Lucy Series suggests:
“Article 5(2) ECHR requires information to be provided to the person—or others capable of representing them—about the legal and factual basis for the deprivation of liberty and rights of appeal, in a language that they understand, so that they can exercise rights of appeal.
Both the DoLS and the MHA”—
the Mental Health Act—
“set out in statute who is responsible for providing this information to the person and any others representing or supporting them. It places explicit duties on the detaining authorities to take all practicable steps to help them to understand it. Surprisingly, this Bill did not contain rights to information when first read in the House of Lords; section 13 on ‘rights to information’ was inserted into the Bill after…a vote in the Lords.”
The Government’s new amendment would restore the fundamental imbalance in proposals that were removed by the House of Lords in the current paragraph 13 in regards to rights of information. Paragraph 13 established that the individual would receive information about their rights in a meaningful way in advance of the authorisation. That was a critical addition. Being giving information before authorisation of a deprivation of liberty is a fundamental human right.
Where a person would not be able to understand the information, it must be given to others capable of representing their interests. That is also a crucial condition, for several reasons, which were explained in the debate in the House of Lords. First, receiving information is critical because, in many cases, having information given to cared-for people and their families at the outset can clear up misunderstandings that can unsettle the cared-for person. Most people will not know what the liberty protection safeguards are, let alone have a good understanding of how they work. Knowing what the liberty protection safeguards are, the reasons for a cared-for person’s detention, and what recourse they have to change the situation in which they find themselves are critical parts of the entitlement to appeal. Knowing that the cared-for person can review this decision reduces anxiety, even if they do not wish to exercise that right of challenge at that point.
Steve McCabe
I assume that the Minister has given quite a bit of thought to this matter already. Does my hon. Friend think that this is one area where it would be extremely helpful for the Committee to be able at least to see what is in the draft code of practice covering this area before the end of our proceedings? If the Minister and her officials have been giving quite a lot of attention to this, there may be some reassurance in the draft code of practice. If there is not—if it is yet to be drafted—it would be close to a dereliction of duty for us to say that that is acceptable on such a crucial point, namely that the person does not even get the opportunity to raise issues about what is being done to them until after it has been done.
Barbara Keeley
I very much agree with my hon. Friend. I understand the Minister’s difficulty with the code of practice. She has told us that it would have to be laid before both Houses, but the difficulty here is that the Government are trying to remove from the Bill provisions that strengthen safeguards, and are thus making those safeguards weaker. As I said earlier, I do not understand why this is happening at all; I do not understand why we would be expected to accept it or to think it was a good idea.
A code follows what is in statute, and sets it out in lay terms and at length, but it would not exist if the obligation in law was not clearly set out. I do not want the Minister to change obligations for information, yet that is what she appears to be doing. I want to make it clear that, for Labour Members, the right to information before authorisation must be on the face of the Bill. It cannot be something added to the code of practice—even if we could see it now, and the trouble is we cannot—because it would not be a right.
There is existing case law about the Mental Capacity Act code of practice. In 2018, in the case of NHS trust v. Y, the Supreme Court said:
“Whatever the weight given to the Code by section 42 of the MCA 2005, it does not create an obligation as a matter of law to apply to court in every case.”
I think that says it all, really.
Paragraph 13 is the right approach in the case of this Bill. Furthermore, a number of Labour amendments, including amendments 17, 40 and 41, which we will come to later, would strengthen the duty on the responsible body to promote appeals.
Alex Cunningham
Again, it is a pleasure to serve under your chairmanship, Mr Austin. This Government amendment—this move to remove paragraph 13 from the Bill—leaves me and others seeking much more information on what exactly is intended. I did not really hear from the Minister what I needed to know. It was a very short introduction to the debate, given the fact that this was long debated in the other place. The Lords brought forward the amendment to the Bill, which is now part of the Bill, with good cause. I am concerned that it has been dismissed quite quickly.
My hon. Friend the Member for Birmingham, Selly Oak talked about the code of practice. It is critical that we have the reassurance that if we are going to have to depend on the code of practice, we know what it will say. Therefore, I ask the Minister whether she will, rather than just depending on dumping this stuff into a code of practice, make a commitment today to come back during our conversations over the next few days or on Report and spell out specifically how we can be assured that the items and protections in the Lords amendment, which is now part of the Bill, will be covered? How will she guarantee that what the Lords achieved with that amendment will be fulfilled on Report?
Caroline Dinenage
I completely agree that information sharing is vital in the system, and that it should be done at the earliest possible point. Liberty protection safeguards are not something that should simply happen to an individual, but something they need to be involved in from the outset. The Bill specifies that information must be shared after an authorisation is granted, purely because that is a legally cogent point. It includes having a watertight trigger point for information sharing from a legal perspective, but it does not prevent information from being provided beforehand.
Unlike the amendment tabled in the other place to existing paragraph 13, this amendment provides a clear trigger point to specify when information about the authorisation must be provided. We are clear that that point is absolutely the latest point at which information should be shared. In the vast majority of circumstances, that should be done much earlier, or at the very beginning of the process. The amendment does not prevent that from happening. The code of practice will provide detail regarding when it is appropriate to do that, and I have already made a commitment to the Committee to set out what will appear in the code of practice—
Barbara Keeley
The Minister cites legal points, but I read out earlier that article 5 of the European convention on human rights requires that a person be given information about the legal and factual basis for their deprivation of liberty so that they can exercise their right of appeal. Telling them after the authorisation process does not meet that requirement. I cited a case in which only on understanding their right to appeal was the person able to exercise that right, which brought about a less restrictive care situation. Apart from mentioning the code of practice again, the Minister has not explained why the focus has shifted from before an authorisation to afterwards. That cannot be right.
Caroline Dinenage
I hope that what I will say gives the hon. Lady more clarity. Amendment 4 follows the current approach in the deprivation of liberty safeguards system—the DoLS system—which requires information to be provided as soon as practicable after authorisation is granted. We agree that from a legal perspective, that is a clear point at which we will always be able to carry out that duty. Amendment 4 removes the requirement to provide information about the process, which was in existing paragraph 13. This is a matter of drafting, but the paragraph did not list the significant parts of the process about which a person must be informed.
The Bill ensures that the person has the right to representation and support from either an advocate or an AMCP. If there is no appropriate person and the person does not have capacity, there is an effective presumption that an independent mental capacity advocate—an IMCA—will be appointed. Responsible bodies will ensure that the person has representation and support. The Government amendment includes steps to ensure that the cared-for person and the IMCA understand the authorisation and the right both to review and to access court.
Caroline Dinenage
We will do that during Committee. The hon. Member for Stockton North spoke about the involvement of expertise, particularly in assessing those with speech and language difficulties. That is something that I am really interested in. It was also raised on Second Reading by the hon. Member for Swansea West (Geraint Davies), whom I met yesterday to discuss the matter. I am aware that sometimes a speech and language difficulty can be misinterpreted as somebody lacking mental capacity.
Speech and language therapists already play an important role. We are putting an individual’s voice at the heart of the process, meaning that speech and language therapists will play an even greater role. We agree that their skills are essential and that all relevant health care professionals will recognise the role of speech and language professionals. That will be part of the training for this new role.
Barbara Keeley
There will be confusion about this, because the Minister is going back over what she has already said. Can she explain to me and my hon. Friends why the Government amendment would remove the following important steps:
“Prior to the authorisation process, the cared-for person must be fully informed of their rights…The responsible body must take such steps as are practicable to ensure that the cared-for person and any appropriate person…representing and supporting them understand the possible outcome of the assessments, the reasons why the cared-for person may be deprived of their liberty and their rights—”?
I do not understand why the Minister thinks it is a good idea to table an amendment that starts:
“As soon as practicable after authorising arrangements, the responsible body must ensure that a copy of the authorisation record is given”.
We will lose the vital early stage of explaining to the person or their advocate what is going to happen, and explaining the person’s rights. Existing paragraph 13 has widespread support. I have explained to the Minister that I think the Government have done badly in talking to stakeholders. To remove a provision that has widespread support—I have quoted some of the organisations that support it—is really rather shocking. For the Government to remove the requirement to provide explanations and fully inform a cared-for person of their rights seems to me to be a contravention of human rights and a serious matter. The Minister has not explained why the Government are doing this.
Caroline Dinenage
Let me explain why in two short sentences. In delivering a better and more effective system, we must ensure it is legally cogent. That includes having a watertight trigger point for information sharing.
Caroline Dinenage
I am very happy to discuss the matter further with hon. Members, but the issue is that there is not a watertight trigger point. When we say that information must be delivered at the earliest opportunity, it is very difficult to codify and define that in law.
Caroline Dinenage
I am happy to commit to going away and looking at the matter again. I understand that it worries hon. Members; if I am honest, it worries me, too. As I understand it, the reason is that the starting point is different, depending on the individual circumstances.
That is the problem we have had with the current Bill, from beginning to end. We are looking to create a Bill that satisfies the needs of somebody like my elderly uncle who was living with dementia, as well as the needs of a 16 or 17-year-old who was born with a learning disability. We want the same Bill to cover the needs of a 30-year-old who has been involved in a road traffic accident and has an acquired brain injury.
It is very difficult to ensure that we cover the legal bases and offer the protection needed by every one of those individuals, with their own personal support requirements. That is why we have to pay close attention to what is legally cogent, and why it is important to ensure that the Bill contains a watertight trigger point.
Barbara Keeley
I read out the evidence given by Lucy Series to this Committee. I am not a lawyer. We are talking about legal cogency, and I think that that is a difficulty, but the European convention on human rights requires information to be provided to the person or the people representing them about the legal and factual basis for the deprivation of liberty and about their rights of appeal in a language that they understand so that they can exercise rights of appeal. Where is that in Government amendment 4? It does not appear to me to be anywhere. The amendment starts with “after authorising arrangements”. The Minister talks about cogent points, but she has not given me any cogent information about why she is shifting the point at which people are entitled to information to after the authorising of arrangements. That is not right. I have read out the evidence and advice given to the Committee by a very qualified lawyer, which is that the European convention on human rights insists that the information has to be given at the start, not halfway through the process.
Caroline Dinenage
I will say in response only that amendment 4 follows the approach taken in the current DoLS system.
Question put, That the amendment be made.
Barbara Keeley
I beg to move amendment 20, in schedule 1, page 12, line 12, leave out paragraph 14(b).
This amendment makes provision for the responsible body to take on all functions relating to authorisation of deprivation of liberty in cases relating to care homes.
The Chair
With this it will be convenient to discuss the following:
Amendment 21, in schedule 1, page 12, line 41, leave out paragraph 16 and 17.
This amendment is consequential on Amendment 20.
Amendment 22, in schedule 1, page 14, line 27, leave out from “means” to end of subparagraph (8)(b) and insert “the responsible body”.
This amendment is consequential on Amendment 20.
Amendment 23, in schedule 1, page 14, line 41, leave out sub-paragraphs (3)(a) and (3)(b) and insert “to the responsible body”.
This amendment is consequential on Amendment 20.
Amendment 24, in schedule 1, page 15, line 14, leave out from “out” to end of sub-paragraph (1)(b) and insert “by the responsible body”.
This amendment is consequential on Amendment 20.
Amendment 25, in schedule 1, page 15, line 39, leave out “or 16(d)”.
This amendment is consequential on Amendment 20.
Amendment 26, in schedule 1, page 17, line 14, leave out “or 17(2)(b)(iii)”.
This amendment is consequential on Amendment 20.
Amendment 27, in schedule 1, page 18, line 31, leave out paragraph 30(b).
This amendment makes provision for the responsible body to take on all functions relating to renewal of deprivation of liberty in cases relating to care homes.
Amendment 28, in schedule 1, page 19, line 5, leave out paragraphs 32 and 33.
This amendment is consequential on Amendment 27.
Amendment 29, in schedule 1, page 19, line 36, leave out from “body” to end of sub-paragraph (1).
This amendment is consequential on Amendment 27.
Barbara Keeley
The purpose of this group of amendments is to remove the remaining conflict of interest in respect of care home managers. When this Bill was first presented to the House of Lords—many people will have read all the Hansard reports from that House—there were enormous concerns about the role of care home managers, because they would be judge and jury for deprivation of liberty applications within their own care homes. For organisations with a clear financial interest in keeping their residents in care homes, that represented a very clear conflict of interest, so I am grateful to Members of the House of Lords for their strident opposition—there is no other way of describing it—to such a system and I am glad that the Bill is improved somewhat. No longer will the care home manager automatically be the responsible body in all cases relating to their care home. No longer will they automatically be the person responsible for renewing authorisations in their own care home. No longer will it be the care home manager who decides whether a cared-for person should get an advocate. It is worth saying that those are welcome developments.
However, that does not mean that there is no longer a conflict of interest in the Bill. It will have been noticed that I referred to the fact that care home managers no longer “automatically” have certain powers. That does not mean that they never have them. The Bill now creates a system whereby local authorities can choose whether to trust care home managers to carry out their own authorisation process. Many things in relation to care involve a postcode lottery. This risks further entrenching the postcode lottery that we can already see in our social care system. Some local authorities will conscientiously retain this role themselves. We heard this morning about some good local authorities, which handled the DoLS process well: my local authority, Stockton local authority and others. However, that will not always be the case, because some authorities are struggling so much with resources.
Other local authorities, because they do not have the staff and resources or because they simply do not want to take on the work, will delegate the whole process to care home managers. They could do that, because there is no guidance in the Bill about when it is appropriate to give care home managers that responsibility. Our amendment proposes a clear answer to that question: it is never appropriate. On a matter as important as somebody’s liberty, it cannot be right that decisions are taken by the manager of an organisation that has a financial stake in the granting of the authorisation.
Barbara Keeley
I agree with my hon. Friend, who makes a good point.
In essence, the case outlines the situation that the Government propose in the Bill. The care home provided reassurances to the local authority that the situation was appropriate and necessary, which lengthened the time that the young man spent in that inappropriate setting. The local authority accepted those reassurances, including when the case was reviewed. The end result was that somebody—this young man—was held inappropriately for two years.
To protect against that, we want all cases to be initially authorised by an independent body, which would organise the assessments and consultations itself. Because it would do that, the care home would not be able to provide initial assurances that may turn out to be incorrect. That would provide another layer of protection against people being wrongly deprived of their liberty.
We have been told that paragraph 20(1)(a) of schedule 1, which would allow care home managers to carry out the consultation with the cared-for person and others, is of concern. I have heard of cases where care homes decide to cut off contact between a cared-for person and their family, often on highly dubious grounds. As the hon. Member for Halesowen and Rowley Regis said this morning, in some cases that may be because the family are not helping the situation. However, in other cases—I am afraid to say that this applies to most of the examples that I have encountered—it is purely because the family object to something that is being done.
Fear of something like that happening can make it hard for someone to stand up to the people providing the care, whether they are the cared-for person or somebody close to them. The risk of having contact cut off, or the risk of reprisals when there is nobody there to object, can make people compliant even when they do not want to be.
I ask hon. Members to picture this situation: neither the cared-for person nor their family are confident enough to stand up to the care provider and object to the support that is being developed, and then that very same care provider asks them if they have any objection to a deprivation of liberty being granted. How many cases can Members imagine in which nobody says anything, not because they do not want to but because they are scared of the consequences?
One such case would be too many, but I suspect that there will be many more. I will raise two cases now in which such a situation could have been an issue. In one case, a resident—Mr A—had removed his hearing aid and his daughter had had to shout to make herself understood. She was then accused of bullying him and of other misdemeanours, and she was banned from the care home. She had been a regular visitor and had helped with many personal caring tasks. She was subsequently informed that the matter had been referred to safeguarding and that a DoLS referral had been made. The investigation made it clear that the restrictions had been imposed because she had asked a number of questions about the deterioration in the home’s standards of care, which the care home manager was finding difficult to answer.
In another case a daughter, Ms B, was concerned about her father, Mr B. Against all attempts to prevent it from happening, Mr B had been placed in a care home. Ms B felt that that was against both his wishes and his best interests, which is the important point that was just made. However, both the care home manager and her stepmother were content with the placement. Mr B’s behaviour quickly became increasingly aggressive and he made repeated attempts to leave the home, including by climbing out of a window. His daughter’s visits were then blamed for his behaviour. As a result, the care home manager prevented him from meeting friends outside the home and Ms B was asked not to visit the home.
In both those cases, relatives with a valid interest in a cared-for person’s welfare were restricted—on spurious grounds—from having contact with them. In both cases, the main “fault” of the relative was to express concerns about the care that was being delivered. If expressing negative views about a person’s care can get a relative banned from seeing them, of course people will be reticent about making their feelings known when they are consulted by the care home manager.
Mr Dhesi
My hon. Friend is making a very powerful point. Hopefully the Minister will acknowledge that if family members are excluded from the care process, alarm bells should ring throughout the entire process, because so often for vulnerable individuals their family members are the only people who visit them. That is why we need to ensure that family members have a connection with them in the future.
Barbara Keeley
By moving this responsibility in the Bill to local authorities, which currently have this responsibility, we can ensure that people are more confident about expressing their feelings. The consultation process should act as a crucial safeguard to prevent people from being deprived of their liberty against their wishes. Without our amendments, I am afraid that all too often the Bill will not achieve its purpose.
I turn now to the burden of work that the Bill will place on care home managers, because that is an important aspect. I hope that I have made it clear that I do not think that it can ever be appropriate for a care home manager to have a role in this process, but more than that there is no evidence that care home managers want this role or could carry it out. There is currently a vacancy rate of 11% for registered care home managers—11% of care homes do not even have a manager. That is higher than for any other role in the care sector. Care home managers are overworked in many cases, having to manage care homes that are operating on increasingly narrow margins. They are not experts in mental capacity nor trained to carry out assessments. In short, the role that they may be given is not one that they are prepared for or want.
Given that they are overstretched, we can expect them to make mistakes on occasion—that is understandable. When people are placed in high-pressure environments and expected to do more than they reasonably can or want to do, something has to give. We should not be in a situation where that something is the proper process for the authorisation of the deprivation of somebody’s liberty. It would not be acceptable if the result of the Government’s underfunding of social care was that people had their liberty taken away based on a tick-box exercise by a care home manager who lacks the time and skills to do any more.
I understand that the Government estimate that it will cost just £20 to train a care home manager to carry out this role. I think it was said at a recent meeting of the all-party parliamentary group on social work that it takes years to train a social worker to get to the point of carrying out assessments. Twenty pounds represents perhaps half a day of training. The idea that after a few hours a care home manager will be able to go out and manage liberty protection safeguards is not plausible. These complex issues should be carried out by people who have experience and expertise.
As we heard earlier, local authorities already have teams dedicated to deprivation of liberty safeguards, so it seems a wasted opportunity not to use that resource. Ultimately, it would not even save money.
Steve McCabe
As I listen to my hon. Friend, I wonder if people are a little confused between process and practice and, as a consequence, are doing a disservice to the local authority or whoever the appropriate responsible body is and to the care home manager. Surely, it is the job of a good care home manager to provide and oversee the care and to give regular reports and information that explain how the cared-for person is responding to the care regime that they are receiving—what seems to help them and what may hinder them. That is extremely useful, because the alternative to that is that the person is being warehoused and there is no way of knowing what happens over a period of time. The process is to assimilate that information and think about it in the context of what is in the person’s best interests and where we should go next. By suggesting that the same person should do the same thing—and it is just the same thing—have we not ended up doing a disservice to both groups of people?
Barbara Keeley
I think my hon. Friend is right; that is the case. Ultimately, the point is that it would not even save money. Despite what the Government’s out-of-date impact assessment may say, care home managers will not be able to carry out this role for free. Time spent carrying out these authorisations is time spent not doing other work. Care home managers are not currently sitting around doing nothing all day, so there will be cost implications. When care homes are struggling to remain solvent anyway, these small differences cannot simply be absorbed.
The Bill comes at a time when social care is under enormous pressure. Years of underfunding mean that care homes are hard pressed to keep their heads above water. The brutal reality is that without more funding for local authorities, they will not be able to increase what they are paying to care homes, and that means that some care homes will have to carry out these assessment without any extra resourcing. That will mean that less time is spent delivering hands-on care and more time is spent dealing with this process. This is where the proposed reforms to the Bill would have a real implication for the delivery of social care as a whole. We need to see reform across the board if this is not to become another cost that we expect care homes to bear, pushing more of them into dire financial straits.
It would not be the first time the Government have done that. When they brought in the living wage, they made no effort to support local authorities so that they could pay providers more. When the Government updated their guidance on sleep-in pay, they made no guarantees to providers that they would support them to pay off their liabilities. The care sector cannot afford to continue to pay for Government decisions without being appropriately supported to do so.
Alex Cunningham
My hon. Friend talks about shifting the cost around. I know that we will get to it later in the Bill, but there is the issue of charges being made to the person living in a care home or elsewhere. They could end up shouldering this burden, rather than anybody else—it should be the state.
Barbara Keeley
I cannot see anything other than that self-funders would end up paying it. Self-funders might not just end up paying it for themselves; they might be paying it for everybody else who is in the care home, which is actually what they do—there is a certain transfer.
I want to make myself perfectly clear. Care home managers should not be involved in the authorisation of deprivations of liberty or the consultations around that. It is unlikely that they would able to do it and, as far as I can ascertain, they do not want to do it. Given that, the best route is surely to move responsibility back to local authorities, which have considerable expertise in this area.
We also propose to remove care home managers from the process of renewing an authorisation through amendments 27 to 29. If anything, that is more critical. At authorisation stage there are some safeguards in place, but to renew an authorisation, all that a care home manager would have to do is carry out a consultation and then certify that they feel the authorisation conditions continue to be met.
I have covered our concerns about the consultation process, so will not go over them again. I cannot see how it can be appropriate, however, for an authorisation to be renewed without anyone outside the care home being involved. The Bill proposes that renewals could last for three years—longer than the initial authorisation—and we have our separate concerns about that. At the renewal stage, however, there is no independent review. There is no medical assessment by a person not connected to the care home. There is no independent consideration of whether the arrangements are suitable.
I understand the Government’s argument, which was made in the House of Lords, that they do not want the renewal process to be stressful for the cared-for person where there is little prospect of anything changing, but that is not an excuse to remove vital safeguards. The most vital of those is that the decision is made by somebody with no vested interest in maintaining the arrangements. Only by doing that can we begin to make sure that the streamlined renewal process does not result in people being wrongfully deprived of their liberty.
Before I make my concluding comments on these amendments, I want to give Members another example of how things can go wrong in care homes. I recently heard from someone who was admitted to a care home after a spell in hospital. She was admitted to hospital after knocking herself out in a fall in her garden and being rescued by ambulance. A social worker had arranged her admission to the care home, which the person thought would be for a few weeks.
The care home was privately run and was
“full of elderly men and women from varied backgrounds. There were writers and businessmen and women, carpenters and vicars but they were all suffering from various degrees of dementia. I met only one resident who wanted to be there and she had been there for about 15 years and had chosen to go there after her husband had died. Most of the people there were women. Most of them were put there by their children and their houses had been sold to pay for their care or, if not, their children or their local council paid the enormous bills.
The home was a miserable place, the food was worse than school dinners and there were no events or outings organised at all. Each day had a routine of getting up, breakfast, sitting in chairs silently looking at the ceiling or knitting scarves, toilets, lunch, sitting, early tea and all in bed by 9 pm. There was no stimulation or crafts to do.”
The woman soon realised that it was difficult for her to get out, because she was given IQ tests and declared to have Korsakoff syndrome. This can happen, I understand, after a head injury. She said:
“The home wasn’t interested in the residents’ wellbeing or recovery. It suited them to have sedated residents sitting doing nothing all day. Their interest was making money. They owned a number of homes in the area. The guests were allowed visitors in the afternoon, but many didn’t have visits at all. I continued to spend all of my days by myself, but read and researched lots of things, and insisted every day that I wanted to see someone about being released. I was told that they could release me if someone came to pick me up and took responsibility for me in their home.”
She started to do exercises designed to improve memory and got in touch with the local council. Someone from social services visited and arranged for a specialist doctor to conduct an IQ test, on which she got very high results. The social worker wrote to the home and to her, and used the deprivation of liberty regulations to secure her release.
The woman left this miserable care home some six months after being admitted there to live in a new house, which she had bought. She contacted me because she was grateful for the safeguards that enabled her to leave that place, which she saw as
“merely a depository for elderly unwanted family members.”
She told me that
“these commercial business homes are terrible institutions created to make money.”
We are asking that people like this person, if they are going to be deprived of their liberty, always have their rights guaranteed by an independent public body, rather than the organisation responsible for providing their care.
What is contained within the Bill is not a solution to a problem. There is near unanimity among stakeholders that it would be better if this role were never carried out by a care home manager. Our amendments would mean that care home managers are not given another task that they have neither the time nor skills to carry out. They would ensure that cared-for people and their families feel confident in speaking out when they disagree with the arrangements. They would ensure that people authorising deprivation of liberty are the people best qualified to do so: the well-trained professionals currently employed by local authorities for this very purpose.
More importantly, our amendments would remove one of the conflicts of interest that the Bill seems to seek to enshrine. They would ensure that nobody is deprived of their liberty in a care home on the say-so of the manager of that same care home, which is making profit from that deprivation of liberty. This is a matter of principle. Private companies should not be given responsibility for denying people their basic rights. It is right and proper that this responsibility should always lie with a public authority that is subject to democratic control. Amendments 20 to 29 achieve that and I hope that the Government will accept them.
Alex Norris (Nottingham North) (Lab/Co-op)
Thank you, Chair: I know you have put in a double shift as Chair today. I think that might help us get to the root of why this room is so warm. We are trying to echo the micro-climate in Dudley, which I believe is quite tropical at this time of year. It is a pleasure to follow my hon. Friend the Member for Worsley and Eccles South.
This set of amendments follows on from amendment 19. When we were discussing amendment 19, the Minister said that she would take under active consideration the issue around independent hospitals; I am very glad about that. I hope that perhaps she will take these amendments in the same spirit, as they extend the same principle.
At the beginning, prompted by my hon. Friend the Member for Birmingham, Selly Oak, the Minister said she felt that independent hospitals would be a particular focus, because the revelations that we have seen on television showed that there is risk there. I suspect that the same risks are built into the care home sector, too, because the preconditions are similar—for example, a financial vested interest, a lack of outside scrutiny and an unhealthy power balance between those who run such schemes and those who are resident there.
The vast majority of the time, the leadership in such facilities is excellent and is geared towards supporting the individual. However, where that is not the case, those preconditions build up that risk. As I say, what we have talked about in relation to independent hospitals also applies here. We need to address a fundamental question. We have said that we believe that the DoLS system does not work, that the backlog is not tolerable, and that we ought to move to more effective arrangements. That view is very broadly shared, but I do not think that anyone would wish, in reaching a system that is more sustainable for the public purse and better for the individual, to downgrade the assessors from qualified social workers with specific qualifications in the area to others—in this case, care home managers. That is not a good way of saving money or getting things done more quickly, and the best way to make that clear is by finishing the process that began in the Lords, as my hon. Friend the Member for Worsley and Eccles South noted, and completely removing the relevant references from the Bill.
There are a couple of reasons why that is necessary. First, finances in care homes are marginal. We might sometimes blanch at the cost, but we know that they can go to the wall quite quickly. As a result, there are subconscious commercial pressures that could colour a judgment, shifting it away from the best interests of the individual and towards the best interests of the care home in general. That, of course, is not what we seek to do.
It cuts both ways. We have spoken about independent hospitals having a perverse incentive either to hold on to an individual when it is not appropriate or to provide a much more comprehensive service than is necessary, but it can cut the other way, too. I am not aware of the picture across the country, but in Nottingham the most complex care packages in a residential setting are hotly sought after and we do not have a mass market for them; the market for more general needs care in my city is quite mature and sustainable, but that is not the case for higher-end care. A different perverse incentive could therefore arise for a care home if there are individuals for whom starting the assessment process or conducting periodic reviews is more trouble than it is worth. Whatever path we take in the rest of the Bill, the issue will continue to be tested in case law, and I do not know of many care homes that would gladly take on the responsibility of being on the other side of it.
As well as perverse incentives either to keep people or to ensure that they do not stay, there is a second point, as my hon. Friend the Member for Worsley and Eccles South said: are care homes really the right responsible body? I did not know—I am disappointed that I missed it in my research—about the £20 training for care home managers in a really important subject. Of course that is not sufficient; I cannot imagine that it could cover anything beyond filling out a form in a legally compliant way. It instantly pushes us towards a tick-box approach, which nobody wants—an approach that is about clearing the necessary barriers to legal compliance, rather than working around the individual’s needs and being person-centred.
As my hon. Friend said, there is a double risk. Some local authorities will identify the risk straightaway; others will not. Those that are feeling particularly hard-pressed will say, “It is our legal responsibility to ensure that somebody does this, but it does not have to be us.” With public sector cuts as they are, there is a series of perverse cost incentives throughout the health and social care system that result in individuals being pushed from one organisation to another; this will be one such incentive. Other local authorities—we have heard some good examples—will say, “Hang on a minute: this is far too important for that,” but portfolio holders and directors of adult social services are under incredible pressure.
Barbara Keeley
I have picked up that it was generally thought that Ministers, and possibly the Bill team, have a rather honeyed view of the relationship between local authorities and care home managers, and of how much care home managers get involved in care planning. She has just illustrated that point.
These are the points that the Minister seems to be ignoring and needs to answer. First, 11% of care homes have no manager; there is an 11% vacancy rate. Secondly, one in 20 care homes requires improvement or is inadequate. She has talked about care home managers being involved in care planning, but that does not happen in the 11% of care homes where there is nobody there to do it, or in inadequate homes. In the care home that collapsed recently in Tameside, the staff effectively took over almost everything. There are many care homes—thousands, according to my hon. Friend the Member for Stockton North—possibly dealing with 70,000 people, that are not in an acceptable situation. There appears to be no recognition in the Bill, or in anything around it, that that is the case with our care sector.
Caroline Dinenage
I understand the hon. Lady’s concerns, but she is not 100% correct. Where there are concerns about the care home, it is possible for the local authority, which would normally be the responsible body, to carry out these functions. Care home managers should be able to arrange assessments and identify and provide valid assessments previously completed by the responsible body. Let me say why. This goes to the crux of why care homes and the system face this overwhelming bureaucracy today.
Let us take a straightforward case, such as that of my uncle, whom I spoke about earlier. He was in a care home—he is sadly no longer with us—and he was very happy. We were very happy with him being there. There was a clear medical assessment of his condition and his state on the care home’s books. Why couldn’t the care home manager gather that? If there was no care home manager, or if the local authority—the responsible body—had any concerns about that person, their role, or their ability to fulfil that function, they could do it themselves, as they currently do.
Caroline Dinenage
I am more than happy to do that, and I will deal with that shortly. The amendments would remove the role from the care home manager entirely, and would separate the liberty protection safeguards from the wider care planning that is already being done. It risks recreating the existing failing system, in which DoLS are too often considered a separate, overly bureaucratic, one-size-fits-all, box-ticking exercise.
We have to be careful. The hon. Member for Worsley and Eccles South rightly spoke about not castigating local authorities. She also mentioned that we must not demonise care providers. I agree. Of our care providers up and down the country, 83% are rated good or outstanding. They provide an incredible level of professional integrity and care, as well as daily vocational commitment, sometimes in difficult circumstances.
Barbara Keeley
I want to pick up what the Minister for Care says about DoLS being a box-ticking process. I have given at least two examples of people being freed from a totally inappropriate care setting because of a well-run DoLS process. The DoLS process runs well in my local authority, in Stockton and in other large authorities. Let us not denigrate that. With regard to care homes, 83% are better than satisfactory, but 17% are not, and 11% have vacancies. Unless we are talking about a figure in the high 90s, we cannot have confidence. We have properly trained DoLS assessors. She is calling that a box-ticking exercise, and says that half a day’s training for a care home manager—when almost one in five of them are not doing an adequate job—is somehow going to be better. It is not. It will be disastrous in some cases.
Caroline Dinenage
I would just say to the hon. Lady that I am quoting Sir Simon Wessely. In his view, this is too often a bureaucratic tick-box exercise and does not put the individual, their wishes, feelings and best interests at the heart of what we are all trying to achieve. I would also reinforce what I said to her before: the responsible body can decide to carry out these functions where there are concerns about the quality of the care provider. That might be because there are inexperienced staff at the helm, or no care home manager, or even particularly strong social worker involvement. When it is appropriate, the responsible body can carry out the functions. The Bill already makes provision for the involvement of social workers and allows for that where appropriate. We also need to ensure that self-funders, who have had very little involvement from a responsible body, receive protections. Removing all forms of role for care home managers could easily risk such people falling through the cracks.
The hon. Member for Worsley and Eccles South raised a couple of issues that I want to address. We absolutely agree that families should be able to object, and the Bill is very clear that those with an interest in the welfare of cared-for persons can flag objections on the person’s behalf. An AMCP can review the case. That can be done directly with the responsible body, bypassing a care home, which solves the problem where people have the experience that the hon. Lady spoke of, where they do not have a good relationship with the care home. If they do not have confidence or are worried about raising concerns, the AMCP can be triggered.
The Bill already makes provision for the involvement of social workers. It already allows that, where appropriate, the responsible body can take on the functions from the care home if there are any concerns. My biggest concern is, in a nutshell, that these amendments, if passed, would risk fundamentally weakening the protections available to people. On that basis, I ask hon. Members to think seriously about the amendments, which are effectively recreating a system that we have all recognised is not fit for purpose, and I ask the hon. Member for Worsley and Eccles South to withdraw her amendment.
Barbara Keeley
We have had a very useful debate. It has been really helpful to hear the useful contributions from my hon. Friends, although I have to say it is very quiet on the Minister’s side. It is a pity that we are not hearing more from that side, as I am sure there are people here with useful experience as constituency MPs.
Although progress was made on this issue in the House of Lords, there is still potential for a conflict of interest to arise in relation to the role of care home managers. I do not resile from what I said: the provisions in the Bill risk further entrenching a postcode lottery in our social care services. We already have a postcode lottery and it could be much worse.
We believe that this is a serious situation, where local authorities diligently retain some of their role, while others are delegated to care home managers. On the point that the Minister covered at the end of her speech, it is particularly unacceptable for care homes to retain a role in carrying out the consultation. I gave case study examples where cared-for people and their families become wary of expressing objections to the people delivering care for fear of reprisals. It is true that in care homes, with GPs and in NHS hospitals people do not always say what they feel about the treatment they receive because they are so worried about reprisals, and that is very much the case with ongoing care situations. I gave several examples where family members were stopped from seeing a cared-for person after objections were raised. We have to take that seriously.
As we heard, as well as it being inappropriate that care home managers retain a role in carrying out the consultation, it is not clear to me at all from meeting organisations such as Care England, the network representing care home managers, that they want or are willing to take on the role. As we mentioned, they are currently under significant strain. That is a real factor. Having an 11% vacancy rate for registered care home managers is another real factor. Adding another role to them, without proper resourcing, will inevitably lead to services suffering.
In our discussions on the Bill, we need to have a proper debate about resources, because there was no time to discuss it in the Lords. There has been no real discussion on it yet, and it is absolutely crucial. There is a cost, as I covered in my speech, and we cannot just shunt the role on to care home managers who do not even want it.
Some care home providers are concerned that local authorities will delegate the role without providing training or additional resources to care home managers. I talked about the backlog of pay claims for sleep-in rates, which is a problem. Care England and the care home networks feel very strongly that a shunting-across is going on that will lead to financial difficulties for them. It will lead to care homes either leaving the market or no longer taking on clients who require deprivation of liberty authorisations. As I outlined, those could be cases of people involving dementia or brain injury. They will not take those cases if they think there is going to be a lot of admin linked to the processes.
Mental Capacity (Amendment) Bill [Lords]
Baroness Keeley ExcerptsTuesday 18th December 2018
(6 years, 1 month ago)
Commons ChamberRead Full debate Mental Capacity (Amendment) Act 2019 View all Mental Capacity (Amendment) Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 147(a) Amendment for Third Reading (PDF) - (5 Dec 2018)
Barbara Keeley (Worsley and Eccles South) (Lab)
I beg to move an amendment, to leave out from “That” to the end of the Question and add:
“this House declines to give a Second Reading to the Mental Capacity (Amendment) Bill, notwithstanding the need for reform to the current system of mental capacity assessments and while acknowledging the improvements made to the Bill by the House of Lords, because the Bill underwent no pre-legislative scrutiny, it does not put the interests of the cared-for person at the heart of the Bill, it enshrines a conflict of interest in relation to independent providers of health and care services, it fails to provide measures to reduce the substantial backlog of Deprivation of Liberty Safeguards Assessments and it fails to recognise explicitly the interface with the Mental Health Act when determining which legislation should be used to authorise care or treatment arrangements.”
The issue before the House today is one of fundamental importance to us all: the individual liberty of vulnerable people. Today, we are being asked under which conditions it is right to deprive vulnerable people of that liberty when they need care and treatment and cannot give their consent, and what protections should be in place when their liberty is taken away.
The proposals in the Bill to replace deprivation of liberty safeguards have the scope to affect the rights of a large portion of the 2 million people in the UK thought to lack capacity to make their own decisions. Among them are people with dementia, learning disabilities, autism and brain injuries. Whether to deprive some of the most vulnerable people in this country of their liberty should be an issue that we treat with the utmost respect, thought and care. However, I am afraid the Government’s approach to this immensely important issue has shown few of those qualities.
The reform of the Mental Capacity Act 2005 requires methodical planning, but the truth is that the Bill has been rushed through without proper scrutiny, despite the best efforts of many people who are concerned about its contents and have been working to change it for the better. The fact that the Bill has less than two hours for Second Reading and was brought forward with just two sitting days’ notice speaks volumes of the speed that the Government are adopting in respect of the Bill, and will raise further concerns among those who care about these matters.
The process of reforming the 2005 Act began when the Law Commission produced a draft framework for new liberty protection safeguards to replace the existing deprivation of liberty safeguards. That came after two years of painstaking work and wide consultation ended last year. The Government accepted the commission’s proposals at the time they were produced, but the Bill that was introduced to the House of Lords has diverged substantially from the original recommendations— an issue on which the Secretary of State answered a question earlier. At the outset of the process, the draft Bill published by the Government was subject to no prelegislative scrutiny whatsoever, meaning that important stakeholders were not consulted about its contents.
During the Bill’s passage through the House of Lords, my colleagues and I heard many concerns about it from interested stakeholders, from charities representing people with dementia, learning disabilities and autistic people through to directors of adult social services, organisations representing social workers, and social work professionals involved with the current system. They have been unanimous in their agreement that the Bill is deeply flawed, that there has not been adequate time for consultation, and that the proposals in the Bill could cause more problems than they solve.
The Secretary of State quoted a smattering of organisations; let me read him this list: the Relatives & Residents Association, Mencap, the National Autistic Society, Mind, Rethink, the Alzheimer’s Society, VoiceAbility, Disability Rights UK, POhWER, the British Institute of Human Rights, Sense, Liberty, Learning Disability England and Inclusion London have all called for the Bill to be paused so that further consultation can take place. But as we can see today, that call has not been heeded.
Mr Dhesi
Does my hon. Friend agree that, given that Sir Simon Wessely’s review has only just been published, the Government should consider pausing the Bill to look into the interplay between it and the recommendations on the Mental Health Act? Otherwise, we risk creating legislation that fits together very poorly.
Barbara Keeley
Absolutely, we do, and that is a real concern. The Opposition’s concern is that we do not want to end up with a flawed piece of legislation replacing another flawed piece of legislation, and then to have to change it again.
It is worth noting that until yesterday the Government had not even published an equality impact assessment, more than five months after the draft Bill was first presented. Before that, the Government’s only published impact assessment was concerned solely with the cost savings that the new system would bring. That initial impact assessment is now woefully out of date, given the number of amendments made to the Bill in the House of Lords—I understand that more than 300 amendment were tabled. I pay tribute to the work of many peers in the House of Lords, including my colleagues on the Labour Front Bench, who worked to try to improve the Bill, despite the hurdles placed in front of them by the Government. Nevertheless, fundamental problems with the Bill remain that simply cannot be rectified by amendments.
We cannot support the Bill in its current form because, quite simply, it proposes to replace one deeply flawed system with another. I will come onto the flaws in the Bill in due course, but, first, I wish to address the need for substantial reform of the Mental Capacity Act, which we accept. We recognise that the deprivation of liberty safeguards system is deeply complex and bureaucratic, as the Law Commission identified in its report last year. Concerns about the deprivation of liberty safeguards predated even the Law Commission’s report, and we know that a House of Lords Committee declared the DoLS not fit for purpose in 2014.
The scope of DoLS is too narrow, applying only in care homes and hospitals. Authorisations outside care homes and hospitals have to be done through the Court of Protection, which is costly and cumbersome. It is clear, as we have already heard in this debate, that the explosion in the number of DoLS applications after the Cheshire West judgment left the system struggling to cope. The latest figures, as the Secretary of State has said, show a backlog of 125,000 applications. That, of course, leaves the person subject to the application potentially unlawfully deprived of their liberty. If the Government want to resolve that backlog, as they profess to, then the way to do it is to provide local authorities with the resources they need to process all the applications they receive. The Government should not be trying to hide their failure to fund local government behind a streamlined process that does not protect vulnerable people.
Although the deprivation of liberty safeguards need reform, and I agree that they do, the Bill deals with none of the challenges that have been outlined and creates some new problems that cannot be solved simply with further amendments. I am afraid we feel that the Government cannot be relied on to make the necessary changes during the remaining legislative stages given the resistance that they showed to making important changes in the House of Lords. On the contrary, the transformative spirit of the Law Commission’s draft Bill has been squashed, and the measures that would place the best interests of the cared-for person at the heart of the new system have been reduced.
The Government should have enacted the Law Commission’s proposals in full through the 15-clause Bill that was drafted, but instead we have this five-clause Bill. Why did they not simply bring forward the Law Commission’s proposals? The inescapable conclusion that we have come to from reading the Bill is that the Government are more interested in cost saving than in the best interests of cared-for people. This is a crucial point, because there can be disastrous consequences when the best interests of cared-for people are not taken into consideration.
Maria Caulfield (Lewes) (Con)
I say this in a spirit of co-operation on such an important issue. The Labour party amendment is to decline to give the Bill a Second Reading. Instead of trying to change the Bill and bring in some of the Law Commission’s recommendations, why, with nearly 200,000 people waiting to have a DoLS assessment, have the Opposition proposed an amendment to reject the Bill out of hand?
Barbara Keeley
That is a question that the hon. Lady needs to put to her own party. What has happened up to this point is that the Government have been asked repeatedly to pause, to carry out more consultation, and to consider redrafting the Bill. There is a list of 40 organisations that have asked for a pause and a redrafting of the Bill. This is a familiar situation from health and social care legislation—it has happened before in this House. The Government could have considered a pause, and the Minister for Care, the hon. Member for Gosport (Caroline Dinenage), knows that I have discussed that with her. The whole question really falls back on the Government.
Diana Johnson (Kingston upon Hull North) (Lab)
My hon. Friend refers to what happened in 2012 with the Health and Social Care Bill. We had to have a pause halfway through its parliamentary stages because it had not been thought through properly. I worry that we might end up having the same thing happen again if the Government do not take heed of what the shadow Minister is so clearly setting out.
Barbara Keeley
I thank my hon. Friend for saying that, and it is the case.
Let me give an example. Just last week, the BBC’s “Victoria Derbyshire” programme exposed the horrific case of Rachel Johnston, a woman with learning disabilities who died after having an operation to remove all of her teeth. Rachel had a long-standing and extensive dental problem, but, clearly, could not consent to the dental work. Rather than doing the surgery in several treatments, the dentist opted to remove all her teeth in one operation, using the Mental Capacity Act to authorise the use of a general anaesthetic because he deemed it to be in her best interest. After being discharged, Rachel bled profusely from her gums, developed breathing difficulties and later died. How on earth can that treatment have been in her best interest? That case shows a need for greater safeguards, not fewer safeguards. We should not allow medical professionals to make decisions without considering the best interests or wishes of people who lack the capacity to consent to treatment.
I recognise that, as the Secretary of State mentioned, the Government conceded in the House of Lords that the cared-for person must be consulted, but there are still worrying aspects of the Bill that undermine that principle. We should ensure that individuals have access to an independent advocate. That is a vital safeguard that allows people to challenge authorisations, and it should be the default. The manner in which the independent mental capacity advocates can and should be appointed remains ill-defined and even contradictory.
The Minister in the House of Lords, Lord O’Shaughnessy, seems to have dismissed concerns raised about the application of a best interest test before the appointment of an advocate. The role of an advocate is essential to allowing individuals to access appeals and review their rights. Access to support from advocates should not depend on best interest tests, and the provisions in the Bill are far weaker than those proposed by the Law Commission. Yet despite that being pointed out in the debate in the House of Lords, the Minister there seemed unwilling to listen to advice, merely saying that it would work “in practice”. That is simply not good enough. These factors amount to a severe undermining of the concept of the individual’s best interests, which should be at the heart of the Bill but is sorely lacking.
I will now address the backlog of deprivation of liberty safeguard applications, because at the outset the Government presented the Bill as a cost-effective way of reducing it. On Second Reading in the House of Lords, the Minister claimed that the Bill would relieve
“local authorities of the…legal liability burden of more than £408 million by removing the backlog of…applications.”—[Official Report, House of Lords, 16 July 2018; Vol. 792, c. 1060.]
But he made no mention of how that would happen. Our conclusion is that by attempting to place the onus for assessments on care home managers, the Bill would remove the responsibility from cash-strapped local authorities.
The Government initially tried to pass responsibility for assessments on to care home managers, and that was clearly intended as a cost-cutting measure. That was amended in the House of Lords, but care home managers will still decide whether an assessment needs to take place and will also identify whether the person being cared for objects to a liberty protection safeguard for their own care and treatment. The British Association of Social Workers has said that this presents a potential conflict of interest for care homes, as they need to maintain occupancy and may not readily identify an objection by the cared-for person.
The BASW has a further concern about the grounds on which the responsible body would decide whether it or the care home manager would make the necessary arrangements for an LPS authorisation. There is a significant risk of a two-tier system, whereby local authorities under financial or waiting list pressures would default to care home managers completing the new duties, and other local authorities under less strain would do the assessments themselves. I think we have enough of a postcode lottery in care without adding to it through the Bill.
Care England, which represents the network of care providers, says:
“There is a lack of clarity about the role of the Care Home Manager...the separation of roles between care homes and community care provision seems designed to increase rather than reduce confusion and complexity.”
Indeed, the body is so concerned by this Bill that is has also said:
“This ill-considered Bill risks storing up a range of problems of a kind that we do not want and should be slowed or returned for redrafting.”
There remains a further dangerous conflict of interest at the heart of the Bill because of the role that independent hospitals are given in the assessment process. Despite debate in the House of Lords regarding the role of independent hospitals, under the Bill they would still be allowed to appoint their own approved mental capacity professionals. That would allow independent hospitals the responsibility to authorise deprivation of liberty for people in that same hospital for the assessment and treatment of mental disorders. That is plainly wrong.
Barbara Keeley
The Minister says no, but Lord O’Shaughnessy in the House of Lords would not consider amendments tabled by two parties to deal with that issue. It is plainly wrong and represents a very clear conflict of interest.
Moreover, the Bill currently allows for the deprivation of someone’s liberty to be authorised for up to three years without review after two initial periods of 12 months, as the Secretary of State said earlier. It cannot be right to have that period of three years without renewal. The Bill is reducing the protections afforded by the current DoLS system, which operates a maximum period of 12 months before renewal.
Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)
The hon. Lady is outlining, with some good reason, the fact that there may be fewer safeguards and fewer opportunities for people to review or appeal under this Bill than when someone is sectioned under the Mental Health Act. She has a point about the need to look into that point, and to look more broadly at how this Bill sits alongside the Mental Health Act, given Simon Wessely’s review. Does she agree that a pause would be helpful to consider the interface of those pieces of legislation?
Barbara Keeley
Very much so. I will come on to that shortly, but I will not leave the point about independent hospitals, because it is important.
We know only too well from media reports, and the Secretary of State does too, of the torrid situation in independent hospitals that detain people with autism and learning disabilities under the Mental Health Act, and the measures in this Bill could have disastrous and far-reaching consequences. I have raised at the Dispatch Box on several occasions the appalling treatment of people with autism and learning disabilities in assessment and treatment units. I have described the situation as amounting to a national scandal, and I believe that it is still so. As many as 20% of people in these units have been there for more than 10 years. The average stay is five and a half years. The average cost of a placement in an assessment and treatment unit for people with a learning disability is £3,500 a week, but the costs can be as high as £13,000 a week or more.
As the journalist Ian Birrell has exposed in The Mail on Sunday, private sector companies are making enormous profits from admitting people to those units and keeping them there for long periods. Two giant US healthcare companies, a global private equity group, a Guernsey-based hedge fund, two British firms and a major charity are among the beneficiaries of what campaigners have seen as patients being seen as cash cows to be milked by a flawed system at the expense of taxpayers. According to a written answer I obtained from the Department of Health and Social Care, in the past year alone the NHS has paid out over £100 million to private companies for these placements. Shamefully, the Government cannot reveal how much they have spent since they came to power, because they claim that they did not record the expenditure before 2017. It cannot be right that the Bill potentially gives private companies the power to lock up vulnerable people for years at a time to feed a lucrative and expanding private health sector.
I would like to draw attention to one more issue that the Bill does not address—we have already discussed it—and that cannot be papered over by amendments. The Government commissioned Professor Sir Simon Wessely to lead a review of the Mental Health Act, which is of course long overdue for reform. However, as the hon. Member for Central Suffolk and North Ipswich (Dr Poulter) said, there is clearly a complex interface between the Mental Capacity Act and the Mental Health Act. Professor Sir Simon Wessely has made the point that there is now a worrying trend of people, particularly with dementia, being detained under the Mental Health Act when their deprivation of liberty should be dealt with under the Mental Capacity Act. His review recommended imposing a new line of objection to determine who should be treated under which legislation, but, as the hon. Gentleman said, there has been no engagement with these recommendations, which were finalised as this Bill was going through the House of Lords.
In our view, the Government must commit to a review of the interface between the two Acts, with full consultation, which has, to date, been sorely lacking. It is one thing to say that Sir Simon had a conversation with the Secretary of State about this, but that is not full consultation. The consultation must look at both hospital and community settings and provide clear and accessible rights of appeal.
Matt Hancock
Of course the interface between the Mental Capacity Act and the Mental Health Act will be considered, but Sir Simon himself favours bringing forth the Mental Capacity Act renewal now and then dealing with the Mental Health Act later. As with all of the hon. Lady’s other considerations, that has been taken into account, and this is the best way forward.
Barbara Keeley
Well, clearly we do not agree.
The reform of the Mental Capacity Act began as an attempt in good faith to reform a flawed piece of legislation that fails to protect the human rights of some of the most vulnerable people in this country, but it now threatens to infringe those rights further through this Bill. We simply cannot afford to rush an issue of this magnitude where individual liberties and human rights are at stake. Indeed, the Minister in the House of Lords himself admitted:
“We cannot introduce another Bill or piece of legislation that just creates a problem three years down the line.”—[Official Report, House of Lords, 16 July 2018; Vol. 792, c. 1110.]
But that is exactly what this Government are trying to do today. We will fail some of the most vulnerable people in society if we allow the creation of flawed legislation that needs to be replaced in just a few years. We must get this right. That is why the Government must pause the Bill, and why I urge hon. Members to vote for our reasoned amendment and ensure that Ministers get the message loud and clear.
Several hon. Members rose—
Norman Lamb (North Norfolk) (LD)
I want to start by reinforcing the point that the Bill deals with an issue of profound importance: the deprivation of a citizen’s liberty and the circumstances in which that can be done. That is why it is so vital that the measures are properly and closely examined and scrutinised. This is particularly important when dealing with people who potentially cannot object to the deprivation of their liberty. There is a real need for robust safeguards to be in place to ensure the least restrictive care possible in all cases and to restrict liberty only if that is genuinely in the best interests of that individual.
The system that the Bill seeks to reform is clearly not fit for purpose. The Joint Committee on Human Rights reached that clear conclusion. After the Cheshire West ruling, which actually happened during the period when I was a Minister, we have seen the development of a massive backlog, in particular because of the broadening of the definition of what constitutes the deprivation of liberty. It is therefore imperative that we sort that out. If we think about it, here and now we are routinely flouting people’s human rights. All those people on the backlog waiting list are being deprived of their liberty without proper authorisation. That is intolerable and it is why I resist the idea that we should just stop this process and leave in place the current wholly imperfect system.
When we think about reform, it is vital that we replace a flawed bureaucratic system with an effective robust system with proper safeguards, not another flawed system. It is very important to recognise what turned up in the House of Lords. My colleague Baroness Barker commented:
“This is one of the worst pieces of legislation ever brought before this House.”—[Official Report, House of Lords, 11 December 2018; Vol. 794, c. 1247.]
That was the view of many peers when the Bill first appeared in the House. I pay tribute to peers on all sides. I know my Liberal Democrat team did an incredible amount of work, but they worked with Labour colleagues and, I should say, the Minister Lord O'Shaughnessy. He collaborated with peers on all sides to improve the proposed legislation.
Barbara Keeley
The comment from Baroness Barker, who did some great work in the House of Lords, was made on Third Reading; she still described it then as one of the “worst pieces of legislation” that they had seen in the House of Lords.
Oral Answers to Questions
Baroness Keeley Excerpts(6 years, 2 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Matt Hancock
The NHS and the National Institute for Health and Care Excellence have written to Vertex, the company involved. I am determined to see progress. We have made the largest ever proposal to Vertex, at half a billion pounds. It needs to engage with this very generous offer, which will mean that everyone wins, most of all those suffering from this awful condition. The ball is in Vertex’s court.
Barbara Keeley (Worsley and Eccles South) (Lab)
The learning disabilities mortality review—the LeDeR—investigated 1,000 early deaths of people with learning disabilities in hospital settings, but today major concerns have been raised by the parents of Oliver McGowan about the way in which some deaths have been investigated. The Secretary of State knows that 40 autistic people and people with learning disabilities died in assessment and treatment units, and he has called for a year-long review of the use of seclusion in ATUs. But that is not urgent action. Will he commit to stopping the use of ATUs immediately and to looking urgently at how early deaths are being investigated, particularly that of Oliver McGowan?
The Minister for Care (Caroline Dinenage)
I have met Oliver McGowan’s mum, Paula, on a number of occasions, so I am more than aware of this case. I have spoken to her about the deeply distressing report she has had on Oliver’s death. The NHS is looking into this case and will continue to work with Bristol University to further develop and improve guidance and local review teams.
Assessment and Treatment Units: Vulnerable People
Baroness Keeley Excerpts(6 years, 2 months ago)
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Urgent Questions are proposed each morning by backbench MPs, and up to two may be selected each day by the Speaker. Chosen Urgent Questions are announced 30 minutes before Parliament sits each day.
Each Urgent Question requires a Government Minister to give a response on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Barbara Keeley (Worsley and Eccles South) (Lab)
(Urgent Question): To ask the Secretary of State for Health and Social Care to make a statement on the long-term seclusion and deaths of autistic people and people with learning disabilities in assessment and treatment units.
The Minister for Care (Caroline Dinenage)
I want to address the care that the NHS and social care system gives to some of the most vulnerable in our society. The millions of people who work in the NHS and social care do so every day with compassion and commitment to care for us all, but sometimes the system gets in the way, and when we see that, it is our task and our duty to change it. That is the case with the care given to people with some of the most significant and complex needs, such as those with learning disabilities and autism who are in-patients in assessment and treatment units and other mental health in-patient settings across the country. The care received by some of the people with the most significant needs quite simply is unacceptable.
With respect to in-patient care in assessment and treatment units and other in-patient settings, I absolutely share Members’ concerns about reported deaths, and I want to restate my Department’s commitment to reducing the number of preventable deaths among people with a learning disability. NHS England is ensuring that relevant investigatory processes have been followed in respect of each and every one of the cases it has responsibility for, and it is seeking assurance from all relevant clinical commissioning groups that they too have ensured appropriate investigation. As it stands, there is no indication that any of the deaths were untoward or that due process was not followed in every single case, but we are double-checking each and every one.
The hon. Member for Worsley and Eccles South (Barbara Keeley) mentioned seclusion. Like everyone in the House, I have been incredibly moved by reports of the care for Bethany and by the dignity of her dad, Jeremy, who has described the daily battle he has fought to get her the best possible care. It is completely unacceptable for seclusion to be used in this way. Restrictive practices must only ever be used as a last resort, and we must strive to totally eliminate them. With that in mind, the Secretary of State has instituted a serious incident review in Bethany’s case, and we will act to ensure that she gets the best possible care for her.
However, this is not just about individual cases; it is about the system. Three years ago, the Government committed to reducing the number of people with learning disabilities or autism detained in mental health hospitals by at least a third. The latest information we have shows that the number is down by around 20%, but that is not nearly enough. Today, 2,315 people with a learning disability and/or autism in England are held in mental health hospitals. I want to see that number drastically reduced, and in the first instance I want us to meet the target of reduction by a third. I want to see everyone who can be cared for with their family living as normal a life as possible.
The Secretary of State has instituted a wide-ranging review into the inappropriate use of prolonged seclusion and long-term segregation as restrictive practices. He has asked the Care Quality Commission to initiate that review immediately, and it will be undertaken in two stages. Furthermore, he has asked the NHS to address this issue in the long-term plan that it is writing for the future of the NHS, and I know that NHS leadership shares our passion to get this right. We will also address the role of local authorities in the social care Green Paper, and both of those will be published before Christmas.
Mr Speaker
Order. I remind the House that this question must finish no later than 1.45 pm, and if people have not got in by then, I am afraid that it is too bad.
Barbara Keeley
I want to put on record my disappointment that the Secretary of State tried to shoehorn an issue of this severity into an NHS policy announcement yesterday, and my thanks to you, Mr Speaker, for allowing this urgent question.
The treatment of people with autism and learning disabilities in assessment and treatment units is nothing short of a national scandal. Six years ago, these units were described by the then chief executive of NHS England and the chief executive of the Care Quality Commission as a model of care that has
“no place in the 21st century”.
Seven years after the Winterbourne View scandal, the Government have not rid the country of these units or substantially cut their use. Indeed, as the Minister said, there are still 2,315 people in assessment and treatment units, including 230 children, and the number of under-18s has been increasing.
A Sky News investigation last week revealed that, since 2015, at least 40 people with a learning disability or autism have died while in assessment and treatment units, and nine of those who died were aged 35 or under. Some of the country’s most vulnerable people are being exposed to physical abuse in institutions that the chief inspector of mental health services described as being
“in danger of developing the same characteristics that Winterbourne View did.”
Can the Minister tell us why the NHS is still sanctioning the use of settings that expose thousands of vulnerable people to abuse, at a cost of half a billion pounds, despite the Government pledging to close them?
The transforming care programme has manifestly failed. What are the Government going to do to ensure funding is available for cash-strapped local councils to pay for community placements with care support for autistic people and people with a learning disability? The Times has revealed that the private companies running these units are making millions of pounds out of detaining vulnerable people in unsafe facilities, in one case funnelling £25 million into a secret bank account in Belize. Can the Minister tell us what the Government are doing to immediately stop private companies that have a vested interest in keeping people with learning disabilities in these Bedlam-like conditions from doing that?
On Saturday, as the Minister has outlined, the Secretary of State ordered the Care Quality Commission to undertake a thematic review of assessment and treatment units, and he has ordered a serious incident review in the case of one young autistic woman, Bethany. Reviews are not urgent action, there are very many Bethanys trapped in seclusion, and 40 people have died in these units. Will the Minister tell us the timetable for the completion and publication of the CQC review and what urgent action can be taken to free all the young people and adults trapped in these appalling conditions?
Caroline Dinenage
Hon. Members will be very aware of and concerned about the report published this week by University College London. As the hon. Lady said, the report, which was commissioned by the NHS, draws attention to how people with learning disabilities die on average 15 to 20 years sooner than the general population, often for reasons that are not an inevitable consequence of any underlying medical condition. I was reassured that this report shows that programmes and opportunities that Government are putting in place to improve outcomes for people with learning disabilities and autism are addressing some of the concerns. However, I share very strongly her views and the views of this report that there is still much further to go and that now is the time to take action.
As hon. Members will know, the LeDeR report—the learning disabilities mortality review—is looking into the deaths of all people with a learning disability. It published its second annual report in May and in their response in September the Government accepted all the recommendations and included detailed actions for implementing them. NHS England has also committed that the long-term plan for the NHS will include learning disability and autism as one of the four clinical priorities. The long-term plan will also set out the future of the transforming care programme, which the hon. Lady raised.
Government policy on restrictive practices, including seclusion, is to reduce their use. Where such interventions have to be used, they must be a last resort and the intervention should always be represented as the least restrictive option to meet immediate needs. Incidents of restrictive intervention are recorded in the mental health services dataset and this data is published. The Mental Health Act code of practice highlights the particularly adverse impact of seclusion on children and young people. It advises careful assessment and periodic reviews.
I want to turn to the Care Quality Commission review into the inappropriate use of prolonged seclusion and long-term segregation. The first stage of the review will focus on settings that relate most closely to Bethany’s circumstances, focusing on people of all ages receiving care on NHS and independent sector wards for people with learning disabilities and/or autism and on child and adolescent mental health wards. That will start immediately and this stage will report in May next year. It is very important that service users, their families and people with lived experience are able to contribute to that. The second stage will report in the winter and will examine other settings in which segregation and prolonged seclusion are used. That stage will include NHS and independent sector mental health rehabilitation wards and low secure mental health wards for people of all ages, as well as residential care homes designated for the care of people with learning difficulties and/or autism. As I have said, individuals who have been subject to segregation and/or long-term seclusion and their families and carers will be invited to provide evidence, including through interviews. The Care Quality Commission will make recommendations at the end of both stages, which will seek to eliminate system-wide inappropriate use of prolonged seclusion and long-term segregation, and ensure that vulnerable adults and children supported by health and social care are accorded the best possible care.
I should point out that not all the numbers that the hon. Lady spoke about are in separately identified assessment and treatment units. The data reports there being 2,315 in-patients with a learning disability and/or autism in mental health in-patient settings as of September, but some 360 of them were in in-patient settings described as for people with acute learning disabilities
It is important that commissioners should be able to access very high-quality, value-for-money care in their local area, whichever organisation provides it. We recognise the concern that people have expressed about what happens in the transforming care process, but I see it very much as a process and not as an event that will continue. The NHS has transferred more than £50 million to ensure that the right care is put in place in respect of community support, so that people are better cared for when they are out in the community.
Points of Order
Baroness Keeley Excerpts(6 years, 2 months ago)
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Barbara Keeley (Worsley and Eccles South) (Lab)
On a point of order, Madam Deputy Speaker. The treatment of autistic people and people with learning disabilities in assessment and treatment units is nothing short of a national scandal. Seven years after the Winterbourne View scandal, the Government still have not got rid of these units or substantially cut their use. Now we get, with no notice, the whole issue rolled into another oral statement on public health. The shameful treatment of 2,300 people in Bedlam-like conditions is too important to be dealt with in this way. Can you advise on how to get the Secretary of State for Health and Social Care to take this issue more seriously in the way that he communicates to the House?
The Secretary of State for Health and Social Care (Matt Hancock)
Further to that point of order, Madam Deputy Speaker. I have come to the House at the first available opportunity to explain very clearly, and with some force, I hope, how strongly I feel about people with learning difficulties and autism being held in seclusion units. It is unacceptable morally and unacceptable medically. It has to stop, and it is going to stop.
Barbara Keeley
Further to that point of order, Madam Deputy Speaker. What I was complaining about was that this was done with no notice—no notice to the shadow Secretary of State, no notice to me or the team, and no notice to Members of this House who were not here to ask questions. We should have had notice that this important issue was being dealt with.
Madam Deputy Speaker (Dame Rosie Winterton)
I thank the hon. Lady and the Secretary of State for their points of order. Obviously, the Secretary of State will have heard the point that the hon. Lady has made. I am sure that she will wish to pursue this further. The Secretary of State and the Leader of the House are here on the Treasury Bench, so I am sure that if there is further information forthcoming, that will be the way to proceed.
Oral Answers to Questions
Baroness Keeley Excerpts(6 years, 3 months ago)
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Matt Hancock
Of course winter always challenges the NHS, and this year will be no different. We have put in extra funding, including more capital funding, to ensure that we get the best possible flow through A&E and to ensure there is further funding for social care so that people who do not need to be in hospital can leave hospital.
Barbara Keeley (Worsley and Eccles South) (Lab)
Last week, The Times reported that a young autistic woman with severe learning disabilities and an IQ of 52 was sexually exploited for months after her care provider had a court accept a plan for her to have sexual relations with men at her home. It is unacceptable that the agency charged with the care of this young woman decided that unsupervised contact with men for sex was in her best interest, yet the Government would give all such care providers a role in assessing the mental capacity of the people for whom they care. Will the Secretary of State urgently investigate this case? Given that the case illustrates the conflict of interest that arises from involving care providers in mental capacity assessments, will he pause the Mental Capacity (Amendment) Bill to allow time to make it fit for purpose?
The Minister for Care (Caroline Dinenage)
The hon. Lady is absolutely right to raise this incredibly concerning case. Unfortunately, because the case is ongoing and due to be heard before the High Court very shortly, we are unable to discuss the specifics of the case, but we are incredibly concerned by what it suggests. We have made it clear in statutory guidance to support the implementation of the Care Act 2014 that we expect local authorities to ensure that the services they commission are safe, effective and high quality. Once this case has gone through the High Court, we will look to take further action.
Autism and Learning Disability Training: Healthcare Professionals
Baroness Keeley Excerpts(6 years, 3 months ago)
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Barbara Keeley (Worsley and Eccles South) (Lab)
I am pleased to speak with you in the Chair, Mr Austin, which I think is a first for you and me. I pay tribute to Dame Cheryl—who was in the Chair until a few moments ago—for her work in this House on autism. I thank the Petitions Committee for bringing forward this debate. It is sometimes important that the Petitions Committee does not wait for 100,000 signatures, but is prepared to move earlier on an important topic. I particularly thank my hon. Friend the Member for Cambridge (Daniel Zeichner) for his excellent speech.
I know people were anxious about this debate, because it coincides with the statement from the Prime Minister on the October EU summit, but we have heard from a number of hon. Members. There were interventions from my hon. Friends the Members for West Ham (Lyn Brown), Hartlepool (Mike Hill), Bristol East (Kerry McCarthy) and Bristol North West (Darren Jones), and the hon. Member for Central Ayrshire (Dr Whitford). We heard speeches from the hon. Members for Kingswood (Chris Skidmore), Dudley South (Mike Wood) and Bath (Wera Hobhouse), and my hon. Friend the Member for Sheffield, Hallam (Jared O'Mara), who spoke very movingly. We also heard from my hon. Friend the Member for Hampstead and Kilburn (Tulip Siddiq) and the Scottish National party spokesperson, the hon. Member for Livingston (Hannah Bardell). There were concerns about the clash in timing, which was really unfortunate.
Like everyone else who has spoken, I congratulate Oliver’s parents, particularly his mother, Paula McGowan, on their persistence in ensuring that Oliver’s case was brought to our attention through the e-petition, which now has 51,351 signatures, according to the latest figure I have seen. She has raised the vital issue of how we treat people with autism and learning disabilities in our health and care services.
The e-petition, which calls for the introduction of mandatory training on autism and learning disability for healthcare professionals, states:
“One in four healthcare professionals has never had training on learning disability or autism. This is unacceptable. Two thirds want more training, and one in three think a lack of Government leadership is contributing to the problem of avoidable deaths. The Government must ensure all healthcare professionals get mandatory training to address the huge health inequalities facing people with autism and a learning disability.”
The Government response says:
“Everyone has the right to high quality, safe health care so it is crucial that all health workers are given the skills and education to confidently deliver care that meets the needs of all their patients. This is a priority for the Government.”
If this is a priority, let us end this debate by discussing the action that we need to see.
Some 10 years ago, Mencap published the campaign report “Death by indifference” in response to the ongoing poor treatment and care in the NHS of people with a learning disability, and their premature and avoidable deaths. One of the main contentions in that report is that diagnostic overshadowing is a key barrier to people with a learning disability getting equal treatment. Diagnostic overshadowing is when doctors make dangerously faulty assumptions about people with a learning disability, revealing an overall lack of training, skills and under- standing. They may wrongly believe that a presenting problem is a feature of someone’s learning disability and that not much can be done about it, which can often lead to the wrong diagnosis of a medical condition that needs treatment. That report came out 10 years ago.
In its report, the former Disability Rights Commission called for “improved staff training” explicitly to reduce the risk of diagnostic overshadowing and unequal treatment.“Death by indifference” led in 2008 to the report “Healthcare for all”, an inquiry into healthcare for people with learning disabilities. Its first recommendation was that:
“Those with responsibility for the provision and regulation of undergraduate and postgraduate clinical training, must ensure that curricula include mandatory training in learning disabilities. It should be competence-based and involve people with learning disabilities and their carers in providing training.”
That was 10 years ago, but Oliver’s case underlines the degree to which people with learning disabilities and autism still do not get the healthcare treatment that they should expect from any civilised, compassionate society.
On a slightly different note—it is all of a piece—last week, I raised in the House the case of Bethany, a young autistic woman who is being held in seclusion in a private hospital, in a locked, cell-like room and fed through a hatch. We have heard too frequently in recent months of more cases showing the mistreatment, neglect and abuse of people with learning disabilities and autism.
Oliver’s tragic case typifies cases in which people with learning disabilities have died avoidably in healthcare settings. He was a young man with a full life expectancy, who had overcome so many challenges to excel as a footballer and an athlete. He inspired and enriched everyone he met, but he was let down repeatedly, because clinicians simply did not understand the nature of his autism.
Oliver’s death was the result of a catalogue of failures and communications that were not adapted to his needs. Repeated warnings that Oliver was not to be given antipsychotic medication were ignored with fatal consequences. The parallels between Oliver’s case and those reported 10 years ago in “Death by indifference” show just how little progress has been made in giving clinicians the right training about people with learning disabilities and autism. As my hon. Friend the Member for Cambridge mentioned, Public Health England’s 2016 survey found that only 17% of localities reported having an autism training plan across all health and care staff, while 10% reported having no plan in place.
Oliver’s case was included in the learning disabilities mortality review, which revealed scandalous health inequalities between those with autism and learning disabilities, and those without those conditions. Want of better clinical training causes those scandalous health inequalities. Men and women with autism, a learning disability or both simply should not die 20 or 30 years before those without either condition. That report was published on the morning of the local election results, when attention was inevitably directed elsewhere, which looked like an attempt to bury the findings, causing even more distress to the families of those who had died avoidably. In the words of Dr Sara Ryan, the mother of Connor Sparrowhawk, who tragically lost his life as a result of the negligence of Southern Health, the NHS trust charged with caring for him, it made it seem that the lives of their relatives “simply don’t count.”
As with earlier reports, the cases reported in the learning disabilities mortality review reinforce just how much more Government, and our health and care system, need to do to give people with autism and learning disabilities the good quality healthcare and social care that they ought to expect as a right, and to which they are entitled in law. The lack of training given to clinicians played a pivotal role in Oliver’s death and the deaths of many other people whose cases were included in that review.
As we have been reminded, almost one quarter of clinicians surveyed subsequently by Mencap revealed that they had never attended any training specifically on learning disability. More than half of clinicians would have welcomed more on-the-job training to enable them to provide better support. We have an NHS workforce that would welcome the training and a Government response that says that giving the skills and education to healthcare staff is a priority, so we now need to inject some urgency into moving forward.
Oliver’s case, the case of Connor Sparrowhawk and the cases of 1,200 people with learning disabilities who die an early death each year make that an urgent task. We need swift action, not further consultations. We need a culture change. Doctors are the decision makers and they must own the development of the training in autism and learning disability.
I hope the Minister will reflect on the debate and treat the introduction of mandatory training as an urgent priority. Can she tell us the Government’s timetable for implementing mandatory training following the close of the current consultation? What progress is being made against the recommendations of the learning disability mortality review, particularly the introduction of a named healthcare co-ordinator and the plans to help providers to make reasonable adjustments?
In the last 10 years, we have had reports, inquiries and reviews on the serious matters we have discussed in the debate. Now is the time for action to develop the training that clinicians and other staff working in health and care need. Now is the time for clinicians to own the culture change that would bring about what we all want to see—the Oliver McGowan mandatory training.
The Minister for Care (Caroline Dinenage)
It is a pleasure to serve under your chairmanship, Mr Austin, and that of your predecessor, Dame Cheryl, who has done more to further the cause of people with autism than any other Member of Parliament. I put on record my thanks to all hon. Members who have taken part in the debate. There have been some impressive and high-quality contributions. In particular, I thank the hon. Member for Cambridge (Daniel Zeichner) for bringing the case before us and the Petitions Committee for permitting the case to be brought. I also thank the hon. Member for Sheffield, Hallam (Jared O'Mara) for his testimony, although he is no longer here. I am sure we all agree that it was incredibly powerful, extremely important and exceptionally brave.
It is hard to hear the story of Oliver McGowan, which inspired the debate and the petition that triggered it. I am the mum of a teenage boy a bit younger than Oliver, so I find it heartbreaking to even think about what Paula and her family have been through. I have been in this role for nine months, and one of the great honours of the job is being able to speak to some incredible, awe-inspiring people, but surely the most amazing of them are the mothers who have turned the unthinkable heartbreak and anger at the loss of a child into a crusade for change.
Dr Sara Ryan, who has already been mentioned, whose son Connor Sparrowhawk drowned in a bath while under the care of Southern Health, is the most remarkable campaigner for the way that we support adults and children with learning disabilities. Another example is the incredible Paula McGowan, Oliver’s mum, who I met last month. To say that I feel humbled by her story is a massive understatement. The way that she has been fuelled by the unspeakable tragedy of Oliver’s death to fight, to battle and to campaign to ensure that other children and parents do not have the same experience is incredibly brave and courageous. She is nothing short of an inspiration, and she inspires me to strive to tackle the inequalities that people with autism and with learning disabilities face and to do my best to prevent further avoidable tragic loss of life.
The health inequalities between people with learning disabilities and autism and the general population are well understood—virtually every hon. Member present has mentioned them. In recent years, there have been ongoing efforts to address them, but the shameful case of Winterbourne View Hospital is an example of how things have not worked.
It is a sad fact that it takes an avoidable tragedy to spur the action that we want. Since then, significant programmes of activity have been devoted to tackling the inequality that has blighted the experiences of people with learning disabilities in society—inequality is not confined to health and social care. That activity is not only about reducing the number of deaths that may have been preventable, but about improving people’s genuine experiences of care, reducing the use of restrictive interventions, increasing health and wellbeing, and ensuring that people are not hospitalised when they can be better supported in the community.
The existence of the learning disability mortality review programme—LeDeR—testifies to our commitment to reduce the number of preventable deaths among people with a learning disability. LeDeR is focused on learning disability, but has important lessons that relate to the care of autistic people. The programme, led by the Norah Fry centre at the University of Bristol, was introduced to ensure that local evidence-based action is taken to improve support for people with a learning disability. The result is that commissioners are focusing their attention on their local mortality rates and the reasons for them, and are highlighting the further national action that is needed. We must learn from those deaths quickly and translate that learning into effective remedial action that prevents any repetition.
In May, the University of Bristol published the second annual LeDeR report, which showed that 13 deaths had involved circumstances where an individual’s health had been adversely affected by entirely avoidable external factors. The report also found that, based on the examples that were reviewed, the median age of death is 23 years younger than the general population for men and 29 years younger for women. It makes for shocking and chilling reading. LeDeR is ongoing, so many reviews are still to come. Since then, there has been significant action to increase the number of reviews undertaken, including NHS England investing an additional £1.4 million in support of them. Hon. Members from across the House will feel, as I do, that the report is a stark message that we need to do much more to ensure that people with a learning disability receive the best quality care.
In the Government’s response to the LeDeR report, which we published on 12 September, we set out a clear action plan to make progress against each of its national recommendations. The key theme is that of facilitating better care for people with a learning disability by sharing information on their needs and by making reasonable adjustments to improve access and the responsiveness of services to meet those needs. It highlighted some actions that I am glad to say were already well under way, as well as many new actions.
Barbara Keeley
The Minister has used the word “action”. If we had been able to discuss the Government’s response to the LeDeR report, which came out the day before the conference recess, I would have said to her that there is very little action in it. The whole point of the cross-party feeling of the debate is that we want action. There are an awful lot of consultations in the response but, as I highlighted in my speech, we have had 10 years of reviews, starting with the report that came out 10 years ago. The Minister used the word “action”—can we not just get on with some?
Caroline Dinenage
We have accepted every single recommendation in the LeDeR report, and the only reason we are consulting on the recommendations about training is that we have to do that to introduce legislation and change the regulations. We need to do that properly and ensure that we take on board the experiences of people from a wide range of backgrounds so that it actually works. Training is already in the guidelines for healthcare professionals, but the hon. Lady and many other hon. Members have said that it is simply not happening. This is not about action for the sake of it or to say that we have ticked a box to make it happen, but about meaningful action that will save lives. That is why I want to get it right. I am not going to hang around; it will be done to a timescale, which I will explain more about in a moment.
An example of action is that NHS England is working with NHS Digital to add a reasonable adjustment flag to digital care records to indicate the potential adjustments that people with a learning disability may require. The flag will be available to all organisations that provide care. It will support improved communication between patients, their carers and clinicians and lead to more personalised, safer patient care and better outcomes. That capability is being developed for piloting in the NHS summary care records application this summer. We are also exploring with NHS England and NHS Digital the potential for a comparable autism flag.
We have also commissioned Oxford Brookes University to look into best practice in co-ordinating the support for people with a learning disability and a long-term condition. Hon. Members have raised the difficulties that autistic people and people with learning difficulties experience in communicating their needs to health professionals, and also highlighted the importance of hospital passports in overcoming these difficulties and ensuring that their hospital stays are safer and more comfortable. However, I know that Oliver had such a passport and it was not read, so that needs to be taken into consideration as well.
As part of our governance arrangements for the autism strategy, we have set up a task and finish group on health, care and wellbeing, which is looking at barriers to care. We will ask it to consider how we can best disseminate tools such as the hospital passport, to ensure that patients receive effective, personalised care.
Of the new actions, the one that most concerns us today is the commitment to consult on mandatory training. I believe that the steps we are taking will address the shameful inequalities that people with learning disabilities continue to experience. Everybody has the right to receive effective, compassionate and dignified care, and having a learning disability or autism should not be a bar to that.
I am absolutely committed to ensuring that all staff have the skills that they need, whether for learning disability or autism, to deliver excellent and compassionate care. We are already taking forward actions in this area, which I will set out before moving on to discuss mandatory training.
We have supported the development of the learning disability core skills education and training framework, which sets out three tiers of knowledge and skills in relation to learning disability. We are also working towards the development of an autism core skills and competency framework for health and care staff, and for staff in organisations with public-facing responsibilities.
In addition to the existing criteria for professional regulation and registration, there are also existing health and social care regulations that are designed to ensure staff have had appropriate training. However, it is clear from the tragic deaths of Oliver and the many, many like him that that is not enough; we need to go further. One of the recommendations in the LeDeR report echoes the petition in saying that there should be mandatory learning disability training for all health and care staff.
We welcome that recommendation and we have made a commitment to consult formally on it, and we will conclude the consultation by the end of March. I can also confirm that we will include autism within this consultation. My aim is not to mess around with this work, as I have already articulated; the Government’s plans will be published by the summer and regulations could be introduced by the end of 2019. A formal consultation is essential if we are going to change regulations, which is one of the routes by which we can ensure that training is absolutely mandatory.
I appreciate that several hon. Members have asked me specific questions about all sorts of logistical issues, what the content of the training should be and how it might be different for different staff groups. Of course those are all the sorts of issues that we will consult on. We need to canvass the widest possible range of opinions and we clearly are not in a position now to guess the outcome of the consultation. If it was up to me, I would want to embed this training in initial training through all the professional bodies, royal colleges and training providers, having it at all levels of health and social care, so that anybody who has any role in a health and care setting would be mandated to receive some level of this training, obviously with different levels of training for people who work in reception and for those who are medical staff.
One of the key elements of the recommendations in the LeDeR report is that people with learning disabilities should be involved in the training. We will work with people with learning disabilities and autism, and with the groups that represent them, such as Mencap, in shaping the consultation and identifying the key questions that we have to ask. I am absolutely thrilled to say that Paula McGowan has agreed to help us with this.
The petition also refers to mandatory autism training. Of course, LeDeR looks at the deaths of people with learning disability rather than autism, but when it comes to inequalities and the patient experience there are clear parallels between the experiences of both groups and in the sort of reasonable adjustments that might be made to support both groups. It would be a missed opportunity if we did not consider in our consultation the training requirements of staff to better support autistic people as well those with learning disabilities.
Our response to LeDeR and the implementation of Building the Right Support are part of wider efforts to tackle inequality for those with learning disabilities and autism. I will briefly highlight three of these efforts in particular that have great potential. First, there is quality checkers. NHS England is developing toolkits for GP services and mental health in-patient services. These will support people with a learning disability to act as quality checkers, to examine services from their perspective and to have a dialogue with providers and commissioners on what needs to improve.
Secondly, and so importantly, there is stopping the over-medication of people with a learning disability, autism, or both, which is known as STOMP. This national programme brings together multiple organisations in the health and care field, with a common purpose to stop the over-medication with psychotropic medicines of people with a learning disability, autism or both.
Finally, commissioning guidance on autism services, and an accompanying best practice toolkit for local health and care commissioners, are due to be developed shortly and are expected to be available by next spring.
As we develop the consultation on mandatory training, it is particularly helpful to hear these issues and concerns, which hon. Members and their constituents want to see being addressed. We will reflect on, and listen to, those issues and concerns in our consultation. The consultation document will be issued in the new year, giving us sufficient time to conclude the formal consultation period by the end of March, and of course I am extremely happy to discuss with any hon. Member, or any lord in the other place, any particular issue that they would like to see reflected and indeed tackled by the consultation at any time, either before or during the consultation.
Barbara Keeley
I asked the Minister earlier whether she could give an outline of the timetable after the consultation. When does she believe that we will see regulations to make this training mandatory?
Caroline Dinenage
I believe I have already answered that question. I said that I would like the Government plans to be published by the summer and the regulations to be amended by the end of the year.
Caroline Dinenage
I am afraid that I am not the scheduler, but that would be my aspiration as the Minister. Obviously, I do not have the timing for the Government, the Chambers and what have you, but that is definitely my aspiration.
It is absolutely vital that we do everything in our power to get this matter right. We owe it to Oliver and to the many, many young people with autism or learning disabilities whose lives have been tragically shortened. We owe it to Paula and Tom, and to the many parents and family members who have suffered unimaginable grief. We owe it to ourselves—a country should be judged on how it cares for its most vulnerable and on this, we must not be found wanting.
Social Care Funding
Baroness Keeley Excerpts(6 years, 3 months ago)
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Barbara Keeley (Worsley and Eccles South) (Lab)
I beg to move,
That this House notes that eight years of Government cuts to council budges have resulted in a social care funding crisis; further notes that 1.4 million older people have unmet social care needs; notes that Government grant funding for local services is set to be cut by a further £1.3 billion in 2019-20, further exacerbating the crisis; recognises with concern the increasing funding gap for social care; further recognises that proposals from the Government to invest £240 million will not close that gap; and calls on the Government to close the funding gap for social care this year and for the rest of the Parliament.
In October 2016, the Prime Minister told this House that her Government would provide a long-term sustainable system for social care that gives people reassurance. Then the Conservative manifesto said:
“Where others have failed to lead, we will act.”
But the Government have failed utterly to act and people in need of care have paid the price of that inaction. It is approaching a year since the Government promised they would deliver a Green Paper, yet it is still nowhere to be seen months after the planned publication date originally scheduled for summer. Since then, we have seen a further £1 billion cut from social care because of the cuts the Government have made to the budgets of the councils that deliver it, with disastrous consequences for the social care system.
The Prime Minister has not heeded her own warnings about failing to act. During last year’s election campaign, she said that
“the social care system will collapse unless we do something about it. We could try and pretend the problem isn’t there and hope it will go away, but it won’t. It will grow each year.”
That is exactly what has happened. The problem has not gone away and it has grown in the past year.
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
Does my hon. Friend agree that in addition to the immediate injection of £2.5 billion funding for social care, with 20% of the poorest local authority areas losing nearly £280 million in the past year compared with 20% of the most affluent local authorities gaining £55 million, we also need to address the issue in relation to the deprivation grant funding allocation?
Mr Jim Cunningham (Coventry South) (Lab)
Following on from that point, one issue I have raised on a number of occasions in this House is the lack of local authority funding for social workers. We end up with a situation where people cannot be released from hospital—we used to call it bed-blocking. Does my hon. Friend agree that this is causing major problems both for local authorities and the patients concerned?
Barbara Keeley
Indeed. My hon. Friend makes a really good point. I noticed that the number of delayed transfers of care due to care packages has started to rise, even though it is not fully winter—[Interruption.] Yes, they have, over the last couple of months. The Care Quality Commission has said that in some parts of the country the social care system has now reached the tipping point that of warned of two years ago.
The response from the Secretary of State was to announce that £240 million would be given to councils to deliver packages of home care to people this winter. That is nowhere near what is needed. The social care funding gap is already over £1 billion this year and, as my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams) said, it will reach £2.5 billion by 2020 unless the Government intervene.
By my calculations, the Government’s offer will provide only three months’ of care packages for 70,000 people, so when the Secretary of State gets to his feet, will he tell us what will happen to people who need publicly funded home care when the money runs out? What plans do the Government have to provide care beyond the winter?
Mrs Madeleine Moon (Bridgend) (Lab)
For some people, it is not possible to wait for money to be available. A third of people who are diagnosed with motor neurone disease will die within one year and over half will die within two years. A delay of a matter of weeks can alter someone’s pathway towards death. Does my hon. Friend agree that there is no time to delay?
Barbara Keeley
I very much agree. In recent months, I have met carers of people with MND and one becomes aware of how much time presses on them.
Our motion deals with social care funding, but this debate is really about people, such as the people my hon. Friend just referred to. It is about how society treats older and younger adults, how we should enable them to live independently and with dignity, and how this Government are badly letting them down. I will look today at the damage caused by Government inaction—damage to vulnerable people who rely on social care to live with dignity, damage to the lives of unpaid family carers who have had to step in to care for their friends and relatives, and damage to 1.4 million hard-working care staff, many of whom are so badly paid and so overworked that they cannot deliver the care that people need.
Layla Moran (Oxford West and Abingdon) (LD)
I am not sure whether the hon. Lady knows that in Oxford this is now starting to affect the local NHS. The John Radcliffe Hospital had to suspend non-urgent operations on two separate occasions in March because 170 beds were being bed-blocked. Does she not agree that it is time to see the promised Green Paper on social care, before this winter?
Barbara Keeley
Indeed. As I said, it is now coming up to a year since that was promised and it is about time that we started to see some plans. However, we have to bear in mind that a Green Paper is only the first stage of change—and a very early stage at that, really.
I want to pay tribute to the care staff I just mentioned. There has been a lot of talk recently about low-paid staff and how they will fare in terms of migration policies. Being low-paid does not mean that caring roles are low-skilled. Caring staff are highly skilled. They are a credit to this country, and without their dedication the problems facing social care would be immeasurably worse. Unfortunately, their efforts cannot paper over the cracks that have emerged because of this Government’s hammer blows to council budgets. I will come on to talk about the impacts that social care cuts have on people.
James Cartlidge (South Suffolk) (Con)
The hon. Lady talked about the Green Paper and how we will fund this in the long term. Obviously, we all have to contribute to that. I was interested that in the last debate she said her party was looking at such things as a wealth tax. I wonder whether she has developed her thoughts on how we should pay for this and whether it will be considering a wealth tax.
Barbara Keeley
We have indeed been doing more work on this, but we laid out in our manifesto—the hon. Gentleman’s party did not—what our future plans for social care funding were. We said what the three options for funding social care were and that it would either be one of those three options, or perhaps a combination of all three—I think that the party that is being left behind here is his.
The impact of social care cuts means that less care is now available for older and younger adults alike. Four hundred thousand fewer older people got publicly funded care in 2015 than in 2010, and 1.4 million older people now have unmet social care needs. Put simply, that is over 1 million people who are not getting help with washing, dressing, going to the toilet, making meals or taking medication.
Kevin Hollinrake (Thirsk and Malton) (Con)
The hon. Lady mentions the plans in the Labour party’s manifesto, but since then the Health Committee and the Communities and Local Government Committee have produced a joint report on the future funding of adult social care that unanimously recommends adoption of the German-style social insurance system. Will Labour consider those recommendations? Is she minded to support that cross-party recommendation?
Barbara Keeley
The hon. Gentleman asked me the same question six months ago, on our last Opposition day debate on this subject, and I will give him the answer I gave him then: he should really be trying to influence his own party. I thank those Committees for the work they did, as the Prime Minister did today. Labour has got as far as producing a White Paper—not a Green Paper. We have a 2010 White Paper, and I have a copy with me. I recommend that Conservative Members who keep asking about this look at the extensive proposals in that White Paper, which followed a Green Paper and an extensive consultation. The party being left behind is the Conservative party.
The Secretary of State for Health and Social Care (Matt Hancock)
For the information of the House, will the hon. Lady answer the question from my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake)? Does she support the measures recommended by the Select Committees—yes or no?
Barbara Keeley
It is really up to the Secretary of State, whose party has not produced any proposals, to answer that. On the point about cross-party working, it is the Conservative party that has no proposals. The only proposals it has come out with are the damaging ones that have now been abandoned.
Melanie Onn (Great Grimsby) (Lab)
My hon. Friend is doing a very good job of reminding the Government that they are the ones in power and the ones with the decision-making powers. If they support the Select Committees’ report, they should bring forward their Green Paper and adopt them all in full. They have the opportunity to do that.
I want to ask my hon. Friend about unmet need and the growing gap between social care funding and continuing healthcare funding. I am increasingly seeing severely disabled individuals in my constituency with very high levels of need being bounced from pillar to post between continuing healthcare funding and social care funding, neither of which is meeting their needs. What does she suggest the Government do to bridge that gap?
Barbara Keeley
I suggest that the Government start with the cash injection that our social care system needs. The Labour party promised a £1 billion injection upfront to ease us out of the crisis and £8 billion across this Parliament. I suggest that that would be a starting point and that the Conservative party then tell us how it will fund social care in future.
Several hon. Members rose—
Barbara Keeley
No, I will not give way; we have very limited time.
As my hon. Friend the Member for Great Grimsby (Melanie Onn) just said, the effects of reduced access to care are very keenly felt, especially by older people, but I want to highlight what happens to young adults with learning disabilities and autism when there is too little funding to support them in the community. A recent BBC “File on 4” programme on transforming care highlighted the impact on young people with autism or a learning disability of being kept in assessment and treatment units for long periods.
The nature of these settings is chilling. A young woman with autism and extreme anxiety called Bethany, aged 17, is being kept in seclusion in St Andrew’s Hospital, Northamptonshire, in a cell-like room and fed through a hatch in a metal door, at which even her father must kneel to speak with her when he visits. She is being detained and held in seclusion despite an assessment that the current hospital setting cannot meet her needs and a recommendation that she be moved to a community residential setting with high support. As “File on 4” pointed out, however, moving a young person such as Bethany to a community setting would involve her local council paying £100,000 to £200,000 a year from the adult social care budget, instead of leaving the NHS to pay what is a much higher bill—in this case, £676,000 a year, or £13,000 a week.
The lack of funding is clearly a factor here. Bethany’s dad was told by the Walsall Council officer responsible for her placement that her care had already cost the council £1.2 million. To be frank, he said, “Walsall could do with a breather.”Bethany is being treated shamefully. It is hard to imagine someone making a similar comment about the cost of treatment for a young person with cancer.
Bethany’s case highlights a growing problem which is part of the crisis in adult social care. Underfunding social care places people with a learning disability or autism at risk of being left for long periods in institutional care settings. Now that I have raised this case, the Secretary of State must look at the state of funding, which leads to perverse incentives for private hospitals like St Andrew’s to charge the NHS for keeping vulnerable young people with autism or learning disabilities in expensive and unsuitable placements because the local council does not have the resources to fund a community placement.
The journalist Ian Birrell recently wrote about Bethany’s being kept in those appalling conditions, in seclusion in a tiny cell. He asked, “Have we moved far from Bedlam?” The answer is, I am afraid, that we have not. The transforming care programme is making hardly any progress. The most recent data, published in May this year, show that 2,400 people—people like Bethany, with a learning disability or autism—are still in in-patient units, and that is an increase from an earlier figure. Many people in such units are subject to over-medication, inappropriate restraint and seclusion. They can be far from home, and they can be kept there for a very long time. The average stay is more than five years.
As the National Audit Office found, such placements are extremely expensive. In 2012-13, the NHS spent £557 million on people with a learning disability in mental health hospitals. Will the Secretary of State tell us why the Government are still funding the institutionalisation of so many people with learning disabilities, or autism, at great cost, seven years after the scandal of Winterbourne View, after which they promised to cut those placements by half?
Dr Sarah Wollaston (Totnes) (Con)
The very troubling case that the hon. Lady has described illustrates why we, as a House, must get this right. Does she accept that there has been political failure to resolve the issue of how we fund social care, and will she commit herself to taking a constructive, cross-party approach to getting it right?
Barbara Keeley
The hon. Lady has asked me that question a number of times, and I always find it difficult to answer. She will know that my party really tried, but when we produced that White Paper in 2010—when we had a way forward and a set of funding proposals—all that we heard was “death tax”. In last year’s Budget, the Chancellor raised the issue of the “death tax” again: he said that it was not an option. I wonder how the hon. Lady thinks that Labour Members can talk to a party whose Chancellor has ruled out one of the options right at the start, before anyone sits down and discusses anything. I think that that is impossible. I value the hon. Lady’s role as Chair of the Health Committee, of which I used to be a member. Perhaps she will write to the Chancellor, and ask him to stop doing that.
Dr Wollaston
As the hon. Lady will know, this is a pattern that has pinged backwards and forwards with successive Administrations. I repeat that we must get it right. We cannot continue these cycles of political failure. We will only solve the problem—particularly in a hung Parliament—with a constructive, cross-party approach.
Barbara Keeley
I am constantly astonished when Conservative Members talk about a cross-party approach. It is up to their party to come up with some proposals. When it has some proposals, there will be something to talk about. All that we have seen the Conservatives do is to abandon all the proposals that they have previously had. We legislated, in the Care Act 2014, for a cap on care costs and a lifting of the ceiling—the asset threshold—but the Conservatives have abandoned that now. They had a set of policies at the time of the election last year, but they have abandoned that. The hon. Lady needs to speak to her own Secretary of State, and I hope that she can have a constructive conversation with the Chancellor as well.
The Government’s cuts have not just reduced access to care in the ways that I have outlined; they have reduced care quality. Cuts mean that there is less good-quality care, which causes great indignity to both older and younger adults. The Care Quality Commission tells us that one in five care services—about 4,000 facilities—requires improvement or is inadequate. In too many care facilities quality is hanging by a thread largely because of the good will and dedication of care staff, but there are times when even their efforts cannot prevent standards falling. In a recent case in Tameside a care home rated inadequate was eventually forced to close for financial reasons. Care home staff were not only not being paid themselves, but they had paid out £5,000 for the food for care home residents, and an agency was owed £37,000 to pay care staff. An earlier CQC report had noted that that care provider had been made bankrupt. During the time before this home was closed, care quality was scandalously low. In 2017 the CQC found that one resident had been left in bed for five months without a bath or shower. It beggars belief that the Government think that care home managers in such situations should be given responsibility in the process for assessing a cared-for person’s mental capacity under the proposed mental capacity legislation currently in the other place, but that is what the Bill currently says—even care home managers in that failing home would be given a part in the process of assessing mental capacity—and it seems that the Government will not shift from that. I join others in the other place and urge the Secretary of State to pause the passage of the Mental Capacity (Amendment) Bill and listen to the concerns being raised about his proposals, because that is not a role that should be dumped on care home managers in the way the Bill is trying to do.
Thelma Walker (Colne Valley) (Lab)
The Kirklees Solidarity Economy Network in my constituency is working to establish a community-based care co-operative. The model it is developing seeks to demonstrate that a better way is possible by putting people before profit, valuing, rewarding and respecting careworkers, and ensuring that the people receiving care and the workers providing that care have a real say in how the service is run. Does my hon. Friend agree that we could all look to that model in the future?
Barbara Keeley
I very much do and thank my hon. Friend for making that point. There is a great place for co-operatives and mutuals and other such organisations. Organisations like Shared Lives are producing outstanding care in some parts of the country, and we must look at all those models.
I want to talk about hard-pressed family carers, because the situation of less care and lower quality care means that family carers are under pressure as never before to step in and provide care. The strain of caring has seen almost three quarters of carers suffer mental ill health and nearly two thirds suffer physical health problems, according to Carers UK. But too few carers can access respite from caring; they are at breaking point.
Problems with poor care quality and a lack of support were highlighted earlier this year in a report by Age UK entitled, “Why call it care when nobody cares?” At the launch of that report, both I and the Care Minister heard from carers like Joyce. At 73, Joyce cares full-time for her husband David who has had a stroke and a massive brain haemorrhage. Joyce has to do everything for David to make sure he is
“clean and comfortable at all times”.
That involves regularly lifting him in and out of his bed or chair to wash him, or take him to the toilet, throughout the day and night. She said:
“It is extremely hard to get good respite care where we live in Cheshire. Our local care home is no longer an option due to being cut as a provider by the local council. I had to fight tooth and nail for the care David currently gets in a day centre—but it just isn’t enough.
I don’t know how I’ll continue to cope without more support and regular respite breaks. Our care was cut in March, the third time that we have had respite care pulled. I am so angry and frustrated, I am so worried at what is facing us at the moment I hardly dare think about it.”
What carers like Joyce need is comprehensive support and carers breaks to allow them to look after themselves as well as the person they care for. What they have received from the Government is the damp squib of a “carers action plan” in place of a proper national strategy.
Labour has already pledged to deliver a national carers strategy as we did with our second national strategy in 2009. That national carers strategy pledged £150 million of funding for respite care breaks for carers. That funding has now disappeared into a black hole in the better care fund, leaving carers like Joyce to fight “tooth and nail” to get any respite at all.
Barbara Keeley
I must make progress.
For care staff, the combination of cuts to social care funding and increasing demand for care has created the perfect storm of pressures, affecting the quality of care. Care staff themselves are reporting seeing a major decline in standards of care over the past couple of years.
Kim, one member of care staff, told her trade union, Unison, that she
“found it increasingly difficult to provide a good standard of care because of staff shortages and the greater need of clients. Often visits to clients have to be rushed, making medication mistakes by staff more commonplace and no social time for clients.”
Another care home staff member from Lancashire said that
“a lot of the time it feels like we are operating a ‘people warehouse’ and just offering the basics of feeding and personal care.”
I find those comments deeply troubling. They show the direct human impact that the underfunding of social care is having. Staff are rushing from one appointment to another, with no time to talk. They are being seen as
“heartless robots as opposed to a lifeline service”.
That is how one care home staff member described her job. Care staff are some of the most dedicated and highly skilled workers in this country, but these pressures, added to their pitifully low pay and their poor terms and conditions, are driving people from a sector where they have never been needed as much as they are now.
The care sector is teetering on the edge of a cliff. Without an urgent response from the Government, it could topple altogether. Ministers in this place talk glibly about making hard choices, but the truth is that this Government have chosen to pursue austerity on the backs of older people and vulnerable adults, who rely on social care. If austerity is now over, as the Prime Minister has claimed, the Government must put in the funding that social care needs to bring it back from the brink.
At last year’s election, Labour outlined a plan to invest an additional £8 billion in the social care system. We want to lift the quality of care and to lift access to care and support for carers before moving on to build our new national care service, as outlined in our White Paper. The Prime Minister said last year that the Government would act. They must now commit to a sustainable long-term funding plan. I urge hon. Members to vote for our motion tonight, to ensure that the Government honour the Prime Minister’s promise, because the people who need care, their family carers, and the care staff who care for them deserve better than this.
The Secretary of State for Health and Social Care (Matt Hancock)
Each and every one of us in this House recognises and values those who care, from care workers to nurses to the millions of unpaid carers who look after loved ones. I think the whole House can unite behind the statement that how we care for the most vulnerable is a mark of our civility as a society. Across our country, in our NHS and in our care homes, so many people dedicate their lives to caring for others. I want to address the pressures we face in our social care system in the short term, as well as the long-term reforms we must take to ensure that our social care system is sustainable and fit for the future.
Right at the start, I want to address the individual case of Bethany, which the hon. Member for Worsley and Eccles South (Barbara Keeley) rightly raised. On seeing the reports of the case in the media, I immediately asked for an investigation inside the Department, along with NHS England and the Care Quality Commission. This is clearly a distressing case—it was initially brought to my attention by Ian Birrell—and we will get to the bottom of it. More broadly, the number of in-patients is now down to 2,375, a fall of 17% from March 2015, including 600 who had previously been in hospital for five years or more. So there has been some progress, but there is clearly more to do and the hon. Lady was right to raise the issue.
Barbara Keeley
I gave the House a statistic of 2,600. Bethany’s dad, who is campaigning on her behalf, wants to see her in a proper community placement, but there are thousands of Bethanys. This is a serious matter. We had a debate here on transforming care a few months ago, but very little has happened since.
Matt Hancock
As I said, progress has been made. There has been a reduction of 17% in the number of in-patients—down from 2,875 in March 2015 to 2,375 on the latest figures—but I would fully acknowledge that there is more to do and I am determined to see that happen.
Our population is ageing. More people are living longer and, as a society, we must address the challenge that that creates for social care. To put that into context, over the next 25 years, the number of people aged 75 and over is set to double and the number of people aged 85 will rise by more still. Of course, this is good news. It is down in part to the hard work of our NHS. Cancer survival rates are at a record high and strokes are down by a third, but with such successes come new challenges. For instance, we are seeing a rise in dementia and in age-related conditions, with 70% of people in residential care homes now suffering with dementia.
Barbara Keeley
On a point of order, Madam Deputy Speaker. Yet again the Government sit on their hands and refuse to vote on a key social care motion. We have heard in this debate some moving cases of people whose lives are being damaged by the crisis in social care, but no solutions from the new Secretary of State for Health and Social Care. We do not need more warm words which we have just heard from the Care Minister and other Ministers. We need action to close the funding gap. If the Government disagree with our motion, they should have the guts to vote on it, and shame on them for not doing so.
Madam Deputy Speaker (Dame Rosie Winterton)
The hon. Lady has put her point of view on the record. As I am sure she knows, there have been undertakings by the Government that in response to situations like this there will be a report back to the House at a future date, and I am sure those on the Treasury Bench will have heard the points made.
Oral Answers to Questions
Baroness Keeley Excerpts(6 years, 6 months ago)
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Matt Hancock
I pay tribute to my hon. Friend’s long campaign in this area, and I very much look forward to working with him on it to ensure that we get the right evidence-based approach to using all kinds of medicines and technologies for the benefit of patients.
Barbara Keeley (Worsley and Eccles South) (Lab)
I welcome the new Secretary of State to his post. He has said that the whole workforce of the NHS and social care should have the chance to fulfil their potential, but the care workforce has an annual turnover of 27% and a vacancy rate of 7%, and, sadly, care staff learned last week that they would not even be paid the national minimum wage for sleep-in shifts, which will potentially drive even more people away from working in social care. Will the Secretary of State demonstrate the leadership that this Government have lacked on this issue and ask the Chancellor to change the regulations on the national minimum wage for sleep-in shifts, to show care staff that they matter?