Local Government and Social Care Funding

Debate between Barbara Keeley and Norman Lamb

Wednesday 24th April 2019 Commons Chamber

[Norman Lamb]

The hon. Gentleman is absolutely right to highlight the issue of how we care for people of a younger age who have care needs, particularly those with learning disabilities and autism. What happens too often is that those people end up in institutions when they do not need to be there, often away from home and at enormous cost to the public purse. Again, the evidence from around the country shows that where this is done well and where families are supported to keep someone at home, helping them through crises, we not only reduce the cost to the public purse but have a massive impact on their wellbeing. He is also right to highlight the fact that we end up with awful disputes about who is responsible for payment as people are shunted around the country in a way that, in my view, fundamentally breaches their human rights.

[Barbara Keeley]

I am glad that the right hon. Gentleman is talking about this topic. It is absolutely vital, but does he regret the extent to which the Government now seem to have abandoned the transforming care programme? There seems to be no future for it. From the time when he was a Minister, there was a programme to deal with the issue that my hon. Friend the Member for Stroud (Dr Drew) raised, but there now appears to be an abandonment of targets and an abandonment of the future of that programme, and certainly no funding to make it work.

[Norman Lamb]

I am deeply concerned about the future—or lack of a future—of the transforming care programme. One of the problems is that it is often NHS England that is funding care in an institution, and when a local authority is under financial stress, there is not much of an incentive to take that person out of the institution and make them the responsibility of the local authority. There has to be a way of funding the building of infrastructure to support people in the community. That is what has failed to happen so far.

This is not a static issue that we face. There is growing pressure. We are all living longer, often with chronic conditions that in the past used to kill us. That is a great triumph of man and womankind, but there is a cost attached, yet we have no mechanism to address the increasing funding needs of social care and, in particular, dementia.

The hon. Member for Chelmsford (Vicky Ford), one of the valued members of the Science and Technology Committee, made the point that the cost to society of dementia is about £26 billion every year, but that is going to rise dramatically. Whatever we say about spending money efficiently—I completely agree about the need to spend money efficiently and to innovate and do things in a more effective way—the dramatic rise in demand inevitably means that we will have to spend more as a society on supporting people with dementia and on research to find cures for dementia.

Mental Capacity (Amendment) Bill [Lords]

Debate between Barbara Keeley and Norman Lamb

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 12th February 2019 Commons Chamber

[Norman Lamb]

I want to speak primarily in support of the amendments in the name of the shadow Minister, the hon. Member for Worsley and Eccles South (Barbara Keeley), and others. However, I want to comment right at the start—I realise this is not the decision of the Minister—about the time we have to debate a Bill that deals with fundamental human rights. I just think it is absolutely outrageous, and we should place on the record our total opposition to the way in which, wholly inappropriately, it has been rushed through.

I should also say that I completely understand the need for reform. I said that on Second Reading, and I acknowledge the Minister’s sincerity on that. I recognise that we breach the human rights of the people who are on a long waiting list for anything to happen to them, but that is no justification for getting it wrong at this stage. Surely we must not weaken the protections for very vulnerable people, yet the organisations that have followed this process all the way through are very clear that that is precisely what we will do.

I just think this is extraordinary: the Government have commissioned a review of the Mental Health Act, and although we have not had the formal response yet, I expect that much of what the review calls for will be supported by the Government, yet the review moves in a diametrically opposite direction to this Bill. The review talks about “rebalancing the system” and about

“a real shift in the balance of power between the patient and the professional”.

The review also talks about

“a right to advocacy based on an opt-out approach.”

That is what the amendments in the name of the shadow Minister seek. This will not, as the Minister implied, force advocacy on anyone; this is about having it as the default option. The Law Commission has called for a right to advocacy as an opt-out approach, yet the Government are resisting it. Why are they resisting it? This reduces the rights and protections of vulnerable people, and for that reason it seems to me that it is unacceptable.

On Second Reading, I said that I would not oppose the Bill at that stage, and I said:

“Our assessment will be at the end of the process: is it workable? Does it genuinely respect and safeguard individuals’ human rights? Does it result in very vulnerable people being better protected than they are under the existing…flawed system?”

At that time, I asked the Minister to meet all of us, including interest groups, before going into the Committee stage. I said on Second Reading:

“Do not rush headlong into the Committee stage.”—[Official Report, 18 December 2018; Vol. 651, c. 744.]

Yet, within a fortnight, we were in Committee, which is exactly what I had urged her not to do.

Then we come to the views of the sector. I mentioned earlier that over 100 organisations, including care providers, disabled people’s organisations and charities, have written to the Minister. They make it clear that reform should not be at the cost of the human rights of people who rely on essential social services. I want to deal, specifically and finally, with the conflict of interest issue. They say in that letter to the Minister that

“serious conflicts of interest will be placed upon care managers who will be in control of key information about assessments and review processes.”

The Law Society—surely we should take its concerns seriously—says of care home managers that

“any task or role they undertake must be completely conflict free”,

and that they should not be arranging or carrying out critical assessments. Care home managers should not be responsible for consultation with the cared-for person. It describes the current process—it is not a past but a current concern about the Bill, as amended—as “deeply flawed”. It says:

“It is not difficult to envisage a vulnerable person being uncomfortable or reluctant to give an honest answer when questioned by the care home manager on their willingness to stay”—

in that care home—

“or their ‘happiness’ in the current placement.”

The Law Society’s concern is also about the capacity of care home managers to undertake this work, given that the whole system is under massive pressure. Bluntly, the quality of care home managers is such—many of them are really good, but some of them are not, frankly, good enough—that we cannot rely on them to undertake this vital work, which goes to the protection of the civil liberties of vulnerable people.

[Barbara Keeley]

On the training that the Minister has talked about and the hon. Member for Congleton (Fiona Bruce) just referred to, I understand from impact assessments that there is half a day’s training for care home managers and two hours of training for social workers. What does the right hon. Gentleman think of that?

[Norman Lamb]

That is clearly insufficient when it comes to the vital task of playing a role in the protection of people’s civil liberties and human rights. That is what the Bill envisages.

Sue Bott, the deputy chief executive of Disability Rights UK, says:

“Given the rare unanimity across the health and social care sector and disabled people’s organisations we urge the Government to delay the Bill and look again at its provisions. It is better to have a co-produced piece of legislation that works for everyone than rush through a new law that, in its current form, will seriously undermine the human rights of disabled people.”

I urge the Minister to listen carefully to that—the “rare unanimity” across the sector. When I was responsible for taking the Care Bill through Parliament, we ensured that by the end pretty much everyone was on board, although it was a slow and sometimes frustrating process.

The Minister will be applauded if she now recognises that these concerns about the amended Bill are not past ones but current ones. If we are to get people on board and ensure that everyone agrees that we are properly protecting the human rights of very vulnerable people, the right thing to do now is pause, before the Bill goes back to the House of Lords, to ensure in particular that the provisions on conflict of interest of care home managers and the rights of advocacy are properly addressed. If the Minister can do that, she will go a long way towards bringing people on board. I am sure that that is what she wants.

--- Later in debate ---

[Barbara Keeley]

It is appalling that we should have had less than two hours for Report stage of a Bill affecting the human rights of some 2 million vulnerable people who lack capacity—and we had less than two hours for Second Reading. Given that there is no appreciable business to occupy ourselves with next week, it is ludicrous that the Government should have forced the Bill through today.

The Bill that we are being asked to pass today is simply not fit for purpose; it simply replaces the current flawed system, which the Minister has just described, with a new one that is actually more flawed. There are a number of issues that we still consider unacceptable. The largest is that the Bill still creates a major conflict of interest in relation to the managers of private care homes. It is simply wrong that a business with a financial stake in seeing a deprivation of liberty authorisation granted can do all the legwork and then just have its recommendation rubber-stamped by the local council.

I hope that care home managers will seek to carry out their new role well, but we know that they are already overstretched. The Bill creates extra pressures.

[Norman Lamb]

Does the shadow Minister share my confusion and concern that the Mental Health Act review, which the Government commissioned, appears to be moving in one direction—strengthening the rights of individuals—while this Bill appears to be moving in precisely the opposite direction?

[Barbara Keeley]

That is very much the case. We asked on Second Reading for some consideration of the interface between the two.

As well as the issue of care home managers, there is a real concern about the restrictions on access to advocacy under the Bill. Advocacy is a fundamental pillar of any system for authorising deprivation of liberty. The Bill means that vulnerable people who need an advocate may not get one, and amendments that could have changed that have been rejected. The use of a best interest test to decide whether someone gets an advocate has been widely criticised. The Government could and should have removed the reliance on the best interest test.

The maximum renewal period of a deprivation of liberty authorisation is tripled by the Bill. As the right hon. Member for North Norfolk (Norman Lamb) said, the Mental Health Act review is moving in one way while this Bill moves in another. The Bill could see people being detained for three years at a time without a full reconsideration of their case. The only safeguard against that being misused is a series of regular reviews, but we do not know how regular those will be or what they will look like.

In Committee, the Government introduced a new definition of deprivation of liberty to the Bill. It is woefully inadequate and will inevitably result in costly litigation. The Government introduced the definition late on, with next to no consultation. The clashes between that definition and existing case law will lead to court challenges. The definition will see some people deprived of their liberty without the safeguards they need, while the issue is sorted out in the courts.

The process that the Bill has been through could be used as a case study of how not to make legislation.

Mental Capacity (Amendment) Bill [Lords]

Debate between Barbara Keeley and Norman Lamb

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons & Ways and Means resolution: House of Commons
Tuesday 18th December 2018 Commons Chamber

[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.

Social Care

Debate between Barbara Keeley and Norman Lamb

Wednesday 25th April 2018 Commons Chamber

[Barbara Keeley]

Indeed they cannot, and given the fragility in some of these private care providers, I wonder what on earth councils are supposed to be able to do.

[Norman Lamb (North Norfolk) (LD)]

Does the shadow Minister agree that Allied Healthcare looks like the tip of the iceberg? So many care providers are contemplating getting out of the publicly provided social care market or have already done so that we run the real risk of drifting towards a situation in which people with money can get good care privately but those who do not have the money could be left without.

[Barbara Keeley]

That is almost the situation we are in at the moment. It is worth thinking about why we seem to have this issue with Allied Healthcare, given that the problem has occurred in the last few days. It was reported that Allied Healthcare’s cash-flow problems had been triggered by increases in the national minimum wage for care staff and by an £11 million bill for back pay owed to sleep-in care staff. However, Allied Healthcare is not the only provider that is facing a large back-pay bill for care workers on shift. Learning disability social care providers have warned that they will have to withdraw services or close altogether to pay the bill for back pay, placing the care of even more people in jeopardy and putting care staff jobs at risk.

This trend of closures and contract cancellations is set to continue. A recent report into residential care by the Competition and Markets Authority painted a bleak picture of the current care home market.