Barts Health NHS Trust

Baroness Finlay of Llandaff Excerpts

Thursday 19th March 2015 Lords Chamber

[Earl Howe]

The decision to create Barts Health was taken following a report that analysed the options open to the department at that time. As the noble Lord knows, there was, effectively, a merger of several trusts to create Barts Health. The advice received by the Secretary of State at the time was that none of the three trusts subject to the merger with Barts was sustainable as a stand-alone organisation. The appraisal of the options identified the three-way merger as the most beneficial and strategic solution for the system as a whole, taking into account a wide range of clinical, financial and government issues.

[Baroness Finlay of Llandaff (CB)]

My Lords, in looking at the non-viability, I have been concerned that the PFI deals that Barts Health is saddled with amount to £115 million a year. I wonder whether the other trusts that went into special measures have also had this albatross of PFI deals around their necks that has pulled them down over the years. Why have the Government been unable to address the problem of the burden of previous PFI deals?

[Earl Howe]

Early on in the Government’s term of office, we analysed all the trusts that were subject to PFI liabilities. The worst affected trusts were singled out to be given ongoing financial support by the Department of Health. Barts has a very large PFI debt of about £1 billion, and I have asked whether it is considered that this in itself has proved to be a deciding factor in the trust’s financial stresses. The advice I have been given is that it is not seen as a particular cause of the difficulties now being experienced.

Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015

Baroness Finlay of Llandaff Excerpts

Thursday 19th March 2015 Grand Committee

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

My Lords, these regulations restrict children’s access to electronic cigarettes. I am glad that we have the opportunity to debate these regulations, as they are the final element of the package of measures the Government introduced in the Children and Families Act aimed at protecting young people from tobacco and nicotine addiction and the serious health harms of smoked tobacco.

The provisions in the Act give Ministers regulation-making powers to introduce an age of sale requirement for electronic cigarettes and we have taken the decision to do so. The market for electronic cigarettes—which are also known as e-cigarettes—has developed rapidly in recent years. There are many different types and brands now available. Some of them are designed to look and feel like conventional cigarettes; others have a tank or reservoir which is filled and refilled with liquid nicotine. E-cigarettes can be disposable or rechargeable.

Most of the e-cigarettes on the market are flavoured and some of these flavours, such as cherry cola, bubble gum and gummy bear, may be appealing to children. The use of e-cigarettes is also increasing. Action on Smoking and Health estimates that 2.1 million adults in Britain currently use them. This is an increase on the estimated 700,000 users in 2012. Use of e-cigarettes by people under the age of 18 is not currently widespread in this country; however, international evidence suggests that this may increase. The emerging evidence suggests that awareness of e-cigarettes by British children is high. A Public Health England report found that two-thirds—66%—of 11 to 18-year olds had heard of e-cigarettes. Some 7% had tried e-cigarettes at least once and 2% reported using them sometimes or often. E-cigarettes are widely promoted through social media. They are sold in a wide range of retail outlets, including supermarkets, newsagents, specialist shops and pharmacies, and are often prominently displayed and promoted in store.

It is clear that more research is needed before we can determine whether e-cigarettes are acting as a gateway into tobacco use. While e-cigarette use by children is currently associated with existing tobacco smoking, research published by the Welsh Government provides tentative evidence that e-cigarette use may represent a new form of childhood experimentation with nicotine. The Chief Medical Officer has raised concern about e-cigarette use by children and the World Health Organization has recommended that they should not be sold to minors.

Nicotine is highly addictive; it is five to 10 times more potent than cocaine or morphine, and young people can rapidly develop nicotine addiction. Research shows that adolescents are more sensitive to the rewarding effects of nicotine and this may be a reason why many people start to smoke during adolescence. We are aware that responsible e-cigarette manufacturers and retailers do not sell e-cigarettes to children at the moment. However, we have decided to introduce an age-of-sale requirement; we consider that concerns about the increased awareness and use of these products by children make this an appropriate step to take. The age of sale requirement will also provide clarity and consistency for retailers and enforcement officers.

Proxy purchasing occurs when a person over 18 buys an age-restricted product on behalf of someone underage. Young people are known to approach strangers outside shops or ask friends, neighbours or, in some cases, parents to buy tobacco for them. That is why we introduced a new offence of proxy purchasing of tobacco in the Children and Families Act. The regulations extend this offence to cover e-cigarettes.

I shall briefly set out what the regulations will do. The first set of regulations defines a “nicotine inhaling product” as any device which is intended to enable nicotine to be inhaled through a mouthpiece. The definition encompasses e-cigarettes, including disposable and rechargeable types, and certain component parts such as nicotine refill cartridges and nicotine refill substances, often called “e-liquids”. It does not cover component parts such as batteries or charging devices. The regulations do not apply to tobacco products, because we already have age of sale laws for tobacco. The regulations include exemptions for products that are licensed as medicines and so are subject to separate regulatory rules. There are exemptions for nicotine inhaling products that are a medicine or medical device made available in accordance with a valid prescription by a pharmacist. The regulations also exempt the sale of any nicotine inhaling product licensed as a non-prescription medicine—that is to say, available for general sale—and which the licensing authority has determined is indicated for use by children under 18. In such cases, the seller need not be a pharmacist, as such medicines can be sold in other types of shops including newsagents. This means that those under 18 years trying to quit smoking would still be able to access e-cigarettes as well as products such as nicotine patches or gum.

The regulations also extend the proxy purchasing provision in the Act to make it an offence for an adult to buy, or attempt to buy, a nicotine inhaling product on behalf of a child aged under 18 years. The penalties for these offences are set out in the Act: a person making a proxy purchase may be issued with a fixed penalty notice or could be referred to court; and the adult making the purchase would be committing the offence, not the retailer. A retailer guilty of selling nicotine inhaling products to someone under the age of 18 could be fined up to £2,500 on conviction. Local authority trading standards officers would be responsible for enforcing the regulations, as they enforce much of the tobacco control laws.

The regulations bring the age of sale offence for nicotine inhaling products within the scope of primary authority. This arrangement allows businesses to form a statutory partnership with one local authority, which then provides advice for other local regulators to take into account when carrying out inspections or addressing non-compliance.

We are also debating a second set of regulations, which set the amount of the fixed penalty notice for the proxy purchase provisions at £90; this is reduced to £60 if it is paid within 15 days. This provides consistency for retailers and enforcement officers as it will bring the proxy purchase of tobacco and nicotine inhaling products in line with the equivalent offence for alcohol.

The regulations will apply to England and Wales and have been agreed by the Welsh Government. They would come into force on 1 October 2015. We have decided to use the October—rather than April—common commencement date to allow time for the training of enforcement officers and to raise retailer and public awareness.

There will also be further negative statutory instruments to complete the enforcement regime. One will set out the fixed penalty notice form for the proxy purchase of tobacco and nicotine inhaling products in England, and one will add age of sale and proxy purchasing to the list of offences for which enforcement officers can carry out directed surveillance, subject to existing safeguards; for example, to allow test purchasing operations.

The Department of Health held a six-week public consultation on the draft regulations and received 81 responses. The consultation responses confirmed that many responsible manufacturers recommend that their products are for use by adults only and responsible retailers already voluntarily restrict children from accessing e-cigarettes. Almost all respondents supported the policy aims and the specific proposals set out in the regulations. Retailers, e-cigarette manufacturers, local authorities, enforcement officers and the public health community have all been absolutely clear that they want these regulations in place.

The regulations are business-friendly and a number of retail organisations have told us that putting the age of sale in law will help those responsible retailers that already refuse to sell e-cigarettes to children, by ensuring that they are not at a competitive disadvantage by doing so. The cost of the regulations is estimated to be very small indeed and will be mainly on businesses that currently profit from selling e-cigarettes to children and young people.

Many consultation respondents emphasised that this is a fast-moving market in terms of product development as well as patterns of consumer use, and that research evidence into the effectiveness of e-cigarettes in smoking cessation and potential long-term health harms is still emerging. I agree that these are all important aspects of this policy area and we have therefore included a duty to review the regulations within five years of them coming into force.

As I said earlier, I am very pleased to be able to present these regulations to the Committee. They represent the final stage in the implementation of the important public health measures in the Children and Families Act. In recent weeks, we have also introduced legislation to end smoking in private cars carrying children, and earlier this week noble Lords debated the regulations that will introduce standardised packaging for tobacco products. They are all part of our comprehensive approach to tobacco control and make an important contribution to our vision of a tobacco-free generation in the future. I commend the regulations to the Committee.

[Baroness Finlay of Llandaff (CB)]

My Lords, I thank the noble Earl for introducing these regulations and welcome the way in which they have been drafted. Clearly, a great deal of care was taken in the drafting, and they seem eminently sensible.

It is most reassuring to know that the Association of Convenience Stores welcomes these regulations and the clarity that they provide. It says:

“We support strong enforcement against proxy purchasing of tobacco. We need to see these properly enforced, something that is lacking with the same powers that are in place for alcohol proxy purchasing”,

and that the penalty for proxy purchasing on e-cigarettes puts everything consistently in line. Indeed, it has welcomed the age restriction.

I was glad, too, to hear the reference to the Welsh study because it was the data from Wales that really began to make me personally concerned about these products. There is evidence of increased use among under-18s. I know some people will say that data from ASH are biased, but ASH has been fairly neutral in its view on electronic cigarettes because of the way that they have helped people quit ordinary tobacco cigarettes. It has found that the number of 11 to 18 year-olds who have tried an electronic cigarette increased from 5% in 2013 to 8% in 2014, although it did put the caveat around those figures that the use is closely linked with smoking behaviour.

One piece of research which is really important to have on the record is the work from Counotte and colleagues, published in Developmental Cognitive Neuroscience in 2011, which found that,

“nicotine exposure during adolescence can disrupt brain development bearing long-term consequences on executive cognitive function in adulthood”.

These are new products, with high levels of nicotine in them. We know that the propensity for the developing brain in the age group up until 25 years to develop addictions of all sorts, right across the board, and addictive behaviour is greater than in the older brain. There is a concern that exposure in the young leads to a much greater propensity to develop nicotine addiction.

I have been concerned at the way that these products are marketed, especially to the young, and about their appeal almost as a fashion accessory. When I have looked at those shops which specialise in selling these products, they have made me feel as if I was probably a bit too old to go and buy one. They seem to be marketed very much to a young, vibrant population, which I find alarming. If they are shown to be as addictive as they might be, this will create a long-term market for them in the future.

I have been to several meetings about electronic cigarettes, including one held here in your Lordships’ House at which I was concerned at the almost aggressive way in which vaping was being pursued by some people present, which set alarm bells ringing a bit in my head over the process. These regulations are proportionate, timely and welcomed by those who have the responsibility for selling these products. I am glad that they appear to have universal support.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I welcome both sets of regulations. The Opposition fully support them. Like the noble Baroness, Lady Finlay, I was very impressed by the evidence from the Association of Convenience Stores and its support for the regulations. It is very persuasive in relation to the introduction of a minimum age of sale and I commend the ACS for the responsible briefing that we were sent ahead of these regulations.

The noble Earl referred to the research, such as the Welsh data and the evidence we have received from ASH, and mentioned the CMO’s concerns. Essentially, although one can certainly see that these products can have a beneficial health impact for many adult smokers, there is this issue about whether children go to smoking through these e-products. Is the noble Earl satisfied that enough research is being undertaken at the moment, either through the traditional research areas such as the MRC and Wellcome or perhaps through Public Health England? I do not know if he has information about this, but clearly it would be good to know that his department is keeping a continuing watchful eye to ensure that enough research is being done. Particularly relating to children, there is enough uncertainty around to make us want to ensure that there is ongoing research on this.

I have another question for the Minister, raised by the evidence that ASH submitted to his department when it was consulting on the regulations. ASH says that there is real confusion about the relative risks of electronic cigarettes compared to smoking, not just among the general public but among health professionals. It quotes from newspaper articles saying that smokers have been given advice by medical people and have had the impression that it is nicotine rather than tobacco smoke that is harmful. ASH quotes a study presented at the UK National Smoking Cessation Conference; it was some years ago so the profession may be more up to date now, but in one study presented at the conference a substantial proportion of GPs incorrectly asserted that nicotine in cigarettes caused CVD, strokes and lung cancer.

The point that ASH makes is that at the same time as regulations are introduced, the Department of Health should promote better understanding of the relative harm of electronic cigarettes and other nicotine products, including those authorised as medicine and their potential benefit to smokers. I understand that with regard to children there are areas where we are uncertain, but there are areas where we are more certain as well. I would be interested to know whether any advice or guidance accompanying the regulations is to be given to medical practitioners in particular.

I welcome the proxy purchasing offence, which is something that we very much support. The Minister quoted cases of young smokers having their cigarettes bought for them by another person, and outlawing this will help to crack down on it and send a wider public message that this is wrong. The other point comes back to the issue raised by the ACS regarding the e-cigarette issue: introducing the offence will give greater power to responsible shopkeepers not to serve people who they know, or strongly suspect, are going to pass cigarettes on to children. Overall, we are glad to see these regulations and to support them.

General Medical Council (Fitness to Practise and Over-arching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015

Baroness Finlay of Llandaff Excerpts

Tuesday 17th March 2015 Grand Committee

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

My Lords, I beg to move the first Motion standing in my name on the Order Paper.

This Section 60 order will amend the Medical Act 1983 to establish the Medical Practitioners Tribunal Service, the MPTS, in statute and make other reforms to the General Medical Council’s fitness to practise procedures. Reforming the way that the GMC adjudicates on cases where a doctor’s fitness to practise has been called into question has been a long-term policy objective for both the Department of Health and the GMC, following the decision not to proceed with the establishment of the Office of the Health Professions Adjudicator, the OHPA, in 2011.

The introduction of these amendments will strengthen and modernise the GMC powers and systems, enabling it to carry out its fitness to practise adjudication functions more effectively. They will place the MPTS on a statutory footing and enable the GMC to make amendments to its fitness to practise rules to further modernise the procedures which govern how fitness to practise cases are handled.

These reforms will increase the separation between the investigation of fitness to practise cases and adjudicating on what should happen in each case to enhance public and professional confidence in the system of medical regulation. They will modernise the MPTS’s adjudication function, including strengthening the case management arrangements, by introducing enforceable case management directions. These include costs for unreasonable behaviour, introducing the ability to hold reviews on the papers where the parties agree, and introducing a duty to use rule-making powers in order to pursue the objective that cases be dealt with fairly and justly, similar to the courts’ Civil Procedure Rules.

The MPTS will be subject to accountability hearings held by the parliamentary Health Committee in Westminster, ensuring transparency and public debate in relation to the way that it discharges its statutory functions. The MPTS will also be required to lay its annual reports and accounts before the UK Parliament, and it is also held to account by the Professional Standards Authority, the PSA, via its annual performance review.

This order will address a number of patient safety issues, including strengthening the power of the registrar to require the disclosure of information from a doctor, to refer a doctor to the MPTS for decisions as to whether to impose conditions in relation to registration or to suspend that doctor in the event of non-compliance.

The GMC currently operates a rule which enables it not to proceed with an investigation if the matters relating to the allegation are more than five years old, unless it is deemed to be in the public interest to do so, and is in the “exceptional circumstance” of the case. The Government are using the opportunity of the order to remove the “exceptional circumstance” element. That is because a developing body of case law demonstrates that the additional test of having to prove that a case has an exceptional circumstance has prevented cases from being taken forward, even when it was considered in the public interest to do so. By expressly setting this out in statute, we are ensuring that an investigation can be taken forward, regardless of the amount of time that has passed, without having to prove exceptional circumstances. That will mean that the GMC will be able to investigate an allegation no matter what the circumstances or how much time has passed, if it feels that it is in the public interest to do so. That can only strengthen public protection and reduce risk to patient safety.

The order will bolster the objectives of the GMC in relation to its fitness to practise functions expressly to take account of the need to promote and maintain public confidence in the profession and the need to uphold proper professional standards and conduct, in addition to protecting the health, safety and well-being of the public. However, maintaining public confidence must only be considered as being relevant in pursuit of the protection of the public. Its inclusion in the overarching objective will help to ensure that it is given due weight in all fitness to practise cases.

The proposed overarching objectives will include the term well-being, as this term encompasses those aspects of a professional’s role that may have an impact on individual patients—not directly impact on their health or safety, but nevertheless affect them in a manner which is relevant to the health professional’s clinical care. Dignity, compassion and respect are all important in delivering care, and it would not be right to disregard them. The inclusion of the term well-being ensures that the well-being of a patient under the care of a health professional is not disregarded as a standard for regulatory action. The Law Commission’s report states that well-being has already been incorporated, without difficulty, into the main duties or objectives of regulators, and it feels strongly that, within that context, the term cannot be misinterpreted.

Increased separation will make it explicitly clear that the GMC has the role of investigating and presenting evidence in fitness to practise cases, but it will be for the MPTS to constitute tribunals to adjudicate on whether a doctor’s fitness to practise is impaired. With the greater separation between investigation and adjudication introduced through the order, the Government believe that it would be appropriate for the GMC also to have a right to appeal decisions made by the MPTS in cases where it believes that a decision does not protect the public. That will provide a transparent mechanism for decisions to be challenged in those instances where the GMC has concerns about a decision made by a medical practitioner tribunal.

The proposals also change the grounds on which the Professional Standards Authority can make a referral to the higher courts. That will enable the PSA to make a reference if it believes that a decision is insufficient to maintain public protection, which involves protecting the health, safety and well-being of the public, maintaining public confidence in the profession and maintaining proper professional standards and conduct. The order will ensure that the PSA can take action where it considers it appropriate in the interest of public protection, guaranteeing its right to intervene and take over an appeal where the GMC has withdrawn. The proposed GMC right of appeal would be in line with these revised grounds.

The Department of Health undertook a UK-wide consultation on making changes to the way that the GMC makes decisions about doctors’ fitness to practise. The consultation received 81 responses from a range of respondents, including medical and legal professionals, healthcare recruitment organisations, regulatory bodies and members of the public. The responses demonstrated strong support for the principle of enhancing the separation between the GMC’s role in investigating fitness to practise concerns and its role in adjudicating on whether those concerns amount to impaired fitness to practise.

A significant proportion of respondents—52%—felt that creating an entirely independent body like the former Office of the Health Professions Adjudicator, rather than establishing the MPTS as a statutory committee of the GMC, was a preferable approach. However, this group included an organised group of 39 co-ordinated and near-identical responses, which the department had to consider as individual responses. The department’s original decision not to proceed with OHPA was taken in 2011 and endorsed and implemented by Parliament in the Health and Social Care Act 2012. The Government’s proposed approach remains that we should enhance and protect the independence of decision-making at fitness to practise panel hearings, to secure public protection and the confidence of doctors and patients. However, the department believes that the same benefit as establishing a separate body can be achieved without the expense by retaining the adjudication function within the GMC and increasing the separation between its investigation and adjudication functions. Taking into account the group of respondents who wanted greater separation, as well as those who supported the statutory committee model, there was significant support for the principle of greater separation. We consider that establishing the MPTS as a statutory committee of the GMC is the right means of achieving this. The majority of consultation respondents did not agree that the GMC should have a right of appeal to challenge MPTS decisions. However, this again included the group of 39 co-ordinated responses, although they did not give reasons.

The policy intention, once separation of functions has been achieved, is to enable the GMC—the organisation that is best placed to challenge a tribunal decision about a doctor’s fitness to practise, having already acted in the prosecution role before the tribunal—to be better able to make such a challenge, given its closer knowledge of the case. These proposals to strengthen and modernise the GMC’s fitness to practice process will make the system more efficient and effective, benefiting patients, practitioners and the health service. They will result in improved public protection and an increase in public confidence in the GMC. I commend the order to the Committee.

[Baroness Finlay of Llandaff (CB)]

My Lords, I am grateful to the Minister for the way he introduced this legislation. We debated much of the content and wording of it previously in discussions on the Health and Social Care (Safety and Quality) Bill. I do not intend to go over that ground again. I simply ask the Minister whether I am correct in believing that the guidance relating to this legislation is to be produced by the GMC, not the Department of Health, and whether the Department of Health will be able to have some kind of scrutiny role over the way that guidance is worded. As I have outlined before, there is concern among the profession—I declare my interest as a licensed practitioner, as well as a registered practitioner—that the term “well-being” could be viewed as being much wider. The public confidence issue is one where there remains concern—I am sure there will be concern—about trial by media and what is in the public domain that might influence the thinking of a panel.

--- Later in debate ---

[Earl Howe]

My Lords, I shall endeavour to answer the questions that noble Lords have asked but first I endorse the comments made by the noble Lord, Lord Hunt, about the GMC, in which we in the department have great confidence. It is a well led organisation and has approached this whole exercise in a very responsible way. The background to this order is of course, as the noble Lord stated, that we do not have— much as we wish we did—a consolidated Bill building on the Law Commission’s work. In the absence of parliamentary time for a Bill, we are therefore working within the limitations of existing legislation and using Section 60 orders. Let me reassure the Committee that we are very much committed to taking forward a Bill in this important area when parliamentary time allows.

The various Section 60 orders being taken forward are driven by the need to address a small number of areas which we view as priorities. They both deal with the priorities of government such as English-language concerns, which will be debated later this afternoon, and address some immediate issues that have hampered the regulators from being able to fulfil their basic function of protecting the public. I therefore welcome the fact that the noble Lord, Lord Hunt, is willing to give the order a fair wind.

The noble Lord, Lord Hunt, asked about the possibility that the inclusion of the objective of promoting and maintaining public confidence in the medical profession could in some circumstances be used in a vexatious way, perhaps at a personal level or in the media’s response to what has happened—a so-called trial by media. If the actions of a doctor appear likely to reduce confidence in the medical profession and influence the decision of individuals as to whether to seek medical help at all, it may be right to take action. However, panels and tribunals will be asked to reach their own objective judgment as to whether particular acts or omissions would affect public confidence if no action were taken. A subjective view, uncritically influenced by public opinion or the media, would be an unacceptable basis for a decision. The question of whether GMC staff will be able to sit on the MPTS was raised. The answer is no, they will not. The noble Baroness, Lady Finlay, asked about the guidance. The GMC is consulting on its rules, and the department, I can assure her, will work closely with the GMC in drafting the guidance.

The noble Lord, Lord Hunt, asked about the issue of legal support for a medical practitioner tribunal. The MPTS will be best placed to assess what kind of legal support a tribunal will need and therefore what criteria legal assessors should meet. It is important that medical practitioner tribunals have appropriate support to make decisions based on strong legal knowledge. Where the MPTS has appointed a legally qualified case manager to also act as a chair of a medical practitioner tribunal, the MPTS may consider that there is not also a need for a separate legal assessor.

The noble Lord, Lord Patel, asked about the right of appeal for the GMC. As I explained, the order would enable the GMC to appeal decisions made by the MPTS in cases where it believes that the decision does not protect the public. Currently a respondent doctor has a right of appeal against panel determinations, although the GMC has no such right. Once greater separation is introduced through this order, the Government believe that it would be appropriate for the GMC to also have a right of appeal. This will reflect and underline the separation of investigation and adjudication. It will also provide a transparent mechanism for challenging decisions where the GMC, as a party to the proceedings, disagrees with a decision made by a medical practitioner tribunal. I hope that that explanation is helpful.

[Baroness Finlay of Llandaff]

I would like to briefly return to the issue of guidance. I was not completely convinced by the noble Earl’s reply. Does he agree with me that there is a danger for a doctor, when there has been a lot of media coverage of the accusation—whatever that is—that the panel hearing the case may have been subject to a barrage by the media, which can be compared to baying hounds, and it can be very difficult for the doctor who is before the panel to be confident of a fair and balanced hearing?

For that reason the guidance becomes critical. It is incredibly stressful for a doctor to be reported to the GMC. The rates of suicide and mental health problems among such doctors are extremely high—higher, in any case, than the baseline population in normal circumstances, but there have been some notable cases of suicide. Does the Minister agree with me that the guidance for panels, particularly about the way they receive reports through the media, will be really important in ensuring that it is a balanced and fair hearing and not excessively influenced by press reports?

[Earl Howe]

I completely understand the point that the noble Baroness has made. I hope that I can reassure her that the GMC is mindful of that issue. It would be the last organisation to wish for anything other than a fair and just approach to every fitness to practise case. I suggest that one of the safeguards here is that the legal representative and the legal assessor would advise the MPT on what is acceptable in law and proceed on that basis, so the tribunal would be governed by legal considerations and the guidance will make that clear. However, if I can add to those remarks in writing after this debate, I will be very happy to do so.

Health: Deprivation of Liberty Safeguards

Baroness Finlay of Llandaff Excerpts

Monday 16th March 2015 Lords Chamber

Asked by

[Baroness Finlay of Llandaff]

To ask Her Majesty’s Government what impact the Supreme Court’s March 2014 judgment on Deprivation of Liberty Safeguards has had on healthcare.

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to the House for allowing this debate to occur at the end of the day today. It relates to the so-called Cheshire West judgment of 19 March 2014 and its impact on healthcare. The background to that judgment was most eloquently laid out by my noble and learned friend Lord Brown of Eaton-under-Heywood in the debate on the Mental Capacity Act 2005 that we had last week on 10 March.

In the judgment itself, the noble and learned Baroness, Lady Hale, said:

“This case is about the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorised”.

I will cover briefly why it was felt necessary to clarify the issue. There appear to have been relatively few authorisations under the deprivation of liberty safeguards: in 2009-10 there were 7,157 and in 2012-13 there were 11,887. The noble and learned Baroness went on to say that,

“it would not be at all surprising if those arranging for the care of people with severe learning disabilities were reluctant to see those arrangements, made in what they think are the best interests of the people concerned, as also depriving them of their liberty”.

In response to the question of whether the deprivation of liberty is the same for all people, the noble and learned Baroness also said that,

“the whole point about human rights is their universal character”.

Indeed, the state of liberty—as defined by the noble and learned Lord, Lord Kerr of Tonaghmore, as,

“the state or condition of being free from external constraint”—

should therefore apply to everyone, irrespective of their disability of any sort. The Supreme Court laid down an acid test of circumstances that are likely to amount to a deprivation of liberty: namely, that the person is under continuous supervision and control, is not free to leave and lacks capacity to consent to these arrangements.

The important conclusions from this judgment are, first, that living arrangements amounting to a deprivation of liberty for a non-disabled person are a deprivation of liberty for a disabled person. In other words, there is parity. Secondly, if a person in a supported living arrangement in the community, care home or hospital setting is under continuous supervision and control, and is not free to leave, their liberty is deprived no matter the reason for the confinement. Thirdly, the person’s compliance or lack of objection is immaterial. Fourthly, periodic checks need to be in place to ensure that any legal justification for such confinement remains in place.

The judgment is clearly written, but it has had wide impact, which is what I want to address. The cost to councils arising from the changes as outlined in the judgment is estimated to have increased by more than £98 million—from the £35.2 million available in 2014-15. That is the estimate from the Local Government Association and the Association of Directors of Adult Social Services. There were 13,000 DoLS applications in 2013-14. Following the judgment, there have already been 86,500. Given this pressure, I ask the Minister: are the decisions made by assessors being scrutinised to ensure that hasty decisions are not made in the context of what is effectively a massive increase in demand?

There has been a reduction in the forms relating to DoLS, which have gone from 42 pages down to 13, and a streamlined process for applications was introduced by the Court of Protection to help cope with the increased demand. However, have families and advocates been asked for their views on the forms and how they are working for individuals?

As a result of the judgment, there has been a significant increase in the circumstances in which deprivation can be seen to take place, such as in hospice care, intensive care units and ambulance transfers, to give just some examples. In many circumstances, there is confusion for healthcare professionals about what amounts to a deprivation of liberty. It appears to be leading to a defensive and bureaucratic mindset, with a risk of stigmatising the care and those being cared for. As a recent paper on ethics and law pointed out:

“The acid test framed by the Supreme Court was not decided in the intensive care setting. However, the concept of a deprivation of liberty is not context-specific, so is capable in principle of applying in this setting. Due to their circumstances, most patients in intensive care units would seemingly fit the ‘acid test’ criteria, and it could therefore be construed that we are depriving them of their liberty. This is supported by a recent case (published 28 August 2014), in which a judge applied the Cheshire West acid test to a maternity unit in a general hospital”.

Can the Minister help to define the scope of the implications of the Cheshire West judgment and say whether it is seen to be appropriate to interpret the implications so widely?

There has been little guidance for families and healthcare staff about how to respond to the judgment. Perhaps I may quote from the experience of a hospice consultant, who has asked to remain nameless but said that:

“The organisation that manages the hospice has become very legalistic and is suggesting that we need to complete a DOLS application for all patients who become unconscious at the end of life—arguing that they have lost capacity and therefore are subject to a DOLS. This causes distress to families and delays the issue of death certificates as the death has to be referred to the Coroner and they hold a ‘desk inquest’ and issue the certificate, but maybe after 2-3 days delay”.

Other hospices have also expressed rising concerns, saying that they have felt impelled to apply for DoLS assessments for all dying people.

A very helpful and detailed letter, of 14 January this year, written to the DoLS leads in local authorities and the NHS by Niall Fry, the MCA DoLS policy lead at the Department of Health, addresses the situation of hospice patients. The letter said that,

“if a person receiving palliative care has the capacity to consent to the arrangements for their care and does consent, then there is no deprivation of liberty. Furthermore, if the person has capacity to consent to the arrangements for their care at the time of their admission or at a time before losing capacity, and does consent, the Department considers this consent to cover the period until death and that hence there is no deprivation of liberty”.

The letter also outlines that “continuous control and supervision” needs to be differentiated from a normal care situation, when you would of course expect there to be close monitoring of a patient and indeed, possibly close supervision, particularly of a very vulnerable person on a ventilator, for example.

The guidance letter is not clear on whether the consent referred to must be in writing, the level of particularity required, nor the extent to which advance statements of wishes, lasting power of attorney or advance refusals of treatment may be sufficient to indicate consent, particularly in relation to their timeliness. The guidance is from the Department of Health but, unlike the Supreme Court judgment, it does not, of course, have legal force, which results in further difficulties and confusion.

A practical issue is the inconsistent interpretation of what may constitute a deprivation of liberty, leading to variations in practice, confusion for hospices and other providers, and distress for patients, families and carers. Hospice stays are on average 13 days across England. As a process of applying for a standard authorisation often takes much longer than the average stay, this means that patients are often discharged or have died mid-process. This can distract staff away from care. The DoLS application may not be completed before the patient dies, and the process causes potential trauma for the family. It does not appear to increase care quality.

Hospices can use urgent authorisations at the time of applying normally, but an urgent authorisation lasts for a maximum of seven days. If that is granted but expires, there is a gap until a formal application is processed. Given our inability to predict life expectancy accurately, even at such a short time, the urgent authorisation frequently expires. As an application for DoLS is setting specific, for a patient transferred to a hospice in-patient unit with a DoLS authorisation in another setting, such as a hospital, the process has to start again. Although it should be started prior to transfer, this can now result in delayed transfers.

What is the position of a patient who requires a home-care package and whose discharge for that home-care support is delayed because the care package cannot be put in place? Are these delayed discharges depriving patients of their liberty if they want to go home and have any impairment of capacity and are not taking their own discharge? It seems that the Law Commission review is urgent. Given that the earliest that draft legislation can be laid is summer 2017, I ask the Minister: is there a need for a test case to appeal to the Supreme Court against the West Cheshire judgment and its implications for hospices and other healthcare settings? If so, who should do this and how would it be funded? On what basis would a test case be brought?

Health Service Commissioner for England (Complaint Handling) Bill

Baroness Finlay of Llandaff Excerpts

Friday 13th March 2015 Lords Chamber

Moved by

[Baroness Finlay of Llandaff]

That the Bill be read a second time.

[Baroness Finlay of Llandaff (CB)]

My Lords, I should like to express my gratitude to the right honourable Member David Davis, MP for Haltemprice and Howden, for inviting me to sponsor his Private Member’s Bill in this House. The Bill has the support of the Government and the Opposition, as I understand it. As noble Lords may be aware, the Bill was motivated by the tragic death of Sam Morrish and subsequent events. Sam died of septic shock at the age of three, on 23 December 2010. In June 2014, the health service ombudsman published a report on an investigation into a complaint made by Mr and Mrs Morrish about the care and treatment provided to their son Sam. Mr and Mrs Morrish also complained about the way in which the NHS investigated the circumstances surrounding Sam’s death.

Sam Morrish and his family came into contact with a number of NHS organisations in the days before he died: the Cricketfield surgery, Devon Doctors Ltd, NHS Direct and the South Devon Healthcare NHS Foundation Trust. In her investigation, the ombudsman found that each of these organisations had in some way failed Sam. In the ombudsman’s report into Sam’s death, Dame Julie Mellor, the health service ombudsman makes reference to her report on sepsis, Time to Act—Severe Sepsis: Rapid Diagnosis and Treatment Saves Lives. This report highlighted the lack of action being taken to save the lives of people with sepsis because a failure rapidly to diagnose and treat can have tragic consequences. Indeed, the tragedy is that the ombudsman found that had Sam received appropriate care and treatment, he would have survived.

However, it took the ombudsman more than two years to investigate and report on the NHS’s handling of Sam’s case. During that time there was a series of factual errors, which Mr and Mrs Morrish repeatedly had to correct. The Patients Association, which supported the Morrish family in its complaints, said that the ombudsman was not fit for purpose. Dame Julie personally apologised to the family and offered to meet to discuss the case. Importantly for this Bill, she said:

“We took too long to investigate this case and made errors in the draft report. I recognise the family’s experience of us has contributed to their distress”.

I agree. Any unreasonable delay in investigating cases adds to the distress of those involved. As David Davis explained in the other place, delay impacts adversely on those grieving and also means that it takes more time to act to correct failings. Reducing unnecessary delay in investigating cases also reduces the distress of those involved, and the Bill seeks to do just that.

This is a simple Bill. Clause 1 is the important part. In summary, it makes provision about the handling of complaints by the Health Service Commissioner for England, which is the legal name for the health service ombudsman. It requires the ombudsman to notify a person making a complaint of the reason for the delay if the investigation of the complaint is not concluded within a 12-month period, and to include in her annual report to Parliament details of how long investigations of complaints have taken to be concluded and action taken, with a view to concluding all investigations within a 12-month period.

As noble Lords will be aware, the health service ombudsman carries out independent investigations about unfair, improper or poor service by the NHS in England. This is the second and final stage of the NHS complaints process. The ombudsman is independent of government and accountable directly to Parliament through the Public Administration Select Committee. She annually lays before each House of Parliament a general report on the performance of her functions. Having looked at her annual reports, I commend Dame Julie for modernising the way that her office works. In challenging circumstances, and across both its parliamentary and health service functions, she has increased the number of cases investigated from 421 in 2011-12 and 384 in 2012-13, to 2,199 in 2013-14, with that figure expected to rise further in 2014-15.

The majority of complaints are reviewed and assessed with strong judgment and in a timely fashion, but certain high-profile cases, particularly that of Sam Morrish, suggest that the ombudsman might benefit from legislative backing to reduce the number of investigations that take longer than 12 months to complete.

I am glad to see the noble Lord, Lord Colwyn, in his place. It is worth noting that concern over NHS complaints is long-standing. Some years ago, he introduced a Bill to try to address this, long before the ombudsman was in place. It was also long before we had the excellent review of NHS hospitals’ complaints systems by the right honourable Ann Clwyd MP and Professor Tricia Hart. They made a number of recommendations to improve the way NHS complaints are handled. I know that from her loss Ann Clwyd MP has put her heart and soul into trying to tackle the system and to raise awareness of the right way to complain about the NHS and the right of people to make such complaints. It is important for all involved in the NHS complaints process to get it right at every stage.

Likewise, when the ombudsman makes mistakes it is important that she takes an open and transparent approach both to the person making the complaint and to Parliament through the Public Administration Committee. In Committee in another place, Bernard Jenkin, who chairs the Public Administration Committee, gave his support to the Bill. He stated that it was important for his committee to see cases that had gone wrong. He referred to the wider programme of public service ombudsman reform taking place. Last year, the committee produced the report Time for a People’s Ombudsman Service, and I understand that the Cabinet Office is conducting a review into the reform of ombudsmen.

The Bill is therefore deliberately limited in its aims. It seeks to make small but important changes to the way the health service ombudsman operates. It recognises that a future Administration will determine how to proceed on wider, more general reform, while acknowledging that some changes made in the shorter term will significantly improve the experience of people taking their complaints to the health service ombudsman and better enable Parliament to hold the ombudsman to account. I thank David Davis MP for introducing this important Private Member’s Bill. I feel quite honoured to have been asked to do this, particularly because I know in some depth about the inquiry that Ann Clwyd MP conducted. I beg to move.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My Lords, I thank all noble Lords who have taken part in this short but important debate. I appreciate the support of all noble Lords who have spoken.

This is a simple Bill that seeks to reduce unnecessary delay in investigating cases and, in so doing, reduce the distress of those making a complaint to the health service ombudsman. I have corresponded with Mr Morrish and am aware that he gains comfort from knowing that this issue is being addressed.

I thank everyone involved with the Bill, particularly David Davis MP, who originally brought it forward.

Bill read a second time and committed to a Committee of the Whole House.

Health and Social Care (Safety and Quality) Bill

Baroness Finlay of Llandaff Excerpts

Friday 13th March 2015 Lords Chamber

We are today in an even more difficult position than the draftsmen because the parliamentary timetable is beyond our control. I look forward to the Minister’s response and I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, I also have an amendment in this group. My intention is very similar to that of the noble Lord, Lord Turnberg, who has just spoken. I, too, state categorically that I do not believe that harming patients is acceptable. Pressure sores, neglect of patients, hospital-acquired infections and so on are not acceptable, and we should aspire to eliminate avoidable harm from our systems in healthcare. However, when we legislate, we must be careful that our wording is accurate, clear and does not raise the probability of unintended consequences. It is that which concerns me, hence my amendment.

The Berwick advisory group has advised that the correct goal is the continual reduction of harm, because patient safety experts report that zero harm is impossible, that cultures must be addressed to reduce harm, and that that is where resources should be focused. We must ensure that open, honest and transparent working cultures exist across the NHS, and that the clause does not inadvertently inhibit innovation, which often involves taking controlled risks, and does not stifle open discussion and reporting of errors. We must not legislate in a way that seeks blame and reverses our move towards such an open culture.

That is why I have suggested that the clause be retitled “Reducing harm in care”. The amendment would amend the National Health Services Act 2006 to include among the Secretary of State’s duties,

“the continuous reduction of avoidable harm”.

Given the time and progress of the Bill, can the Minister confirm that any subsequent regulations will be consulted on and be subject to affirmative resolution?

Can the Minister confirm that the duty in Clause 1 applies to organisations overall rather than to an individual practitioner, who may find himself or herself working in an uphill struggle to decrease harm in a poorly run organisation? As the noble Lord, Lord Turnberg, outlined, my concern is that such an individual could be scapegoated and hung out to dry by such an organisation unless it is absolutely clear that the onus of responsibility in Clause 1 rests on the provider organisation to have appropriate infrastructure in place to reduce avoidable harm. Can the Minister confirm that it is all organisations with which the NHS contracts in any form that must have a harm reduction policy, including private and voluntary sector care organisations, and that this must go across all health and social care?

Harm reduction must recognise the need to take risks at times with the intention of achieving a good outcome. Paralysis caused by risk-averse cultures is beginning to pose a great risk to patients, because not acting or taking the guidance or protocol-type approaches to care can sometimes pose a greater risk to an individual patient with complex individual needs than acting in a way that is outside what might be considered to be the normal confines of activity.

[Lord Warner (Lab)]

My Lords, I support all four amendments in this group, but I added my name to those of my noble friend Lord Turnberg. I speak from the perspective of someone who nearly 12 years ago as a Minister approved a new system to improve patient safety by reporting serious incidents. We did not try at that point to go for unrealistic approaches to improving safety in the NHS. That was not because we were spineless; it was because we needed to get people behind the agenda and bring out into the open serious instances of the poor practice that was going on and jeopardising the safety of patients. I do not think that Clause 1 meets that test. It is likely either to produce excessive caution or simply to drive some of the poor practice underground.

I support every word that my noble friend said and very much of what the noble Baroness, Lady Finlay, said, so I will not repeat them, but I want to draw attention to the briefing that we have all had from three significant organisations: NHS Providers, the Health Foundation and the BMA. I do not always stand up and advocate the policies of the BMA in a number of areas, but in this area it is absolutely right.

I draw attention to what those organisations say in some of that briefing—I shall not read it all out. The Health Foundation makes it clear that introducing a duty such as that in Clause 1 would go against the evidence of what is possible in delivering safe health and care services. It states that the NHS has already demonstrated considerable progress towards building a genuine safety culture and that it is concerned that the message sent to NHS staff through the wording of the Bill may hinder further progress on this. It draws out in a summary of its concerns three very simple points, which might be a consequence of passing the Bill as it stands. First, patient safety experts tell it that causing no avoidable harm is impossible; secondly, legislation is not a solution for cultural problems; and, thirdly, a duty of no avoidable harm will divert further resources from what we know improves safety. My noble friend Lord Turnberg alluded to shifting priorities of what organisations and staff do in a way that is not always helpful to patients.

NHS Providers said very similar things but added something important. It said that should the Bill pass into law, further regulations may be laid by a new Government who have not engaged or given assurances in this area. It urges amendment to ensure that any regulations are fully consulted on and passed by affirmative resolution.

This is an extraordinary point in the electoral cycle to bring forward a provision of this seriousness in the form of Clause 1. The Government have to think again; they should consider whether they really want to be involved with a Bill containing a provision of this kind. It is full of possibilities for unintended consequences; potentially it could do harm to patients. I do not doubt the good intentions of the people behind the Bill and I do not doubt that they will be pretty grumpy about some of us drawing attention to our concerns. This has become the Government’s Bill—let us not mince our words. It may have started off and still nominally be a Private Member’s Bill, but the Government have put a lot of effort into it, as the sheer number of civil servants standing by to help shows. This is, to all intents and purposes, a government Bill. If the Government really want this legislation in this Parliament, they have to consider doing much more than they are currently providing for to meet the concerns expressed not just by Members of this House but by people whose opinions we all respect. With all due respect to my noble friend Lord Turnberg, the easiest way to meet many of those concerns would be to accept the amendment of the noble Baroness, Lady Finlay. The Department of Health needs to consider whether this would be the wisest thing to do.

--- Later in debate ---

Moved by

[Baroness Finlay of Llandaff]

5: Clause 2, page 2, line 36, leave out “best”

[Baroness Finlay of Llandaff]

My Lords, first, I apologise to the House for not declaring my interest as president of the BMA at the opening of this debate, given that the BMA has briefed about problems with the Bill.

My Amendment 5 focuses on the word “best” in the term “best interests”. I have had a concern about this because of the way “best interests” is now used. I have looked back, thanks to help from the Library, at 147 pieces of legislation in which the term “best interests” has been used. If one looks at those that came after 2005, when the Mental Capacity Act was passed, it is notable that that term has been included when it concerns the best interests of children, young carers, safeguarding, protection of those who lack capacity, or with regard to organisations such as charities—but not with regard to adults, who would be considered to have capacity as individuals. The term is also used in connection with the storage of gametes and the provision of local services and pension funds, which must act out of the collective best interest of people with whom the legislation is concerned.

I have also understood—I stand to be corrected—that in legislation the most recent use of a term supersedes all preceding use of that terminology in legislation. Therefore, the Mental Capacity Act should be the Act we look to. However, here we have a specific decision to be made in the so-called best interests of an individual, who can be assumed to have capacity, about the decision over their data, and that decision is being made by another person. My concern is that we are legislating for one person, the health or adult social care commissioner or provider, to decide that inclusion of the NHS number as a consistent identifier is, or is not, in the individual’s best interest, even though the individual with capacity may, if consulted, feel very differently. My concern is because there are quite serious implications about not including the NHS individual identifier.

I turn to the principle of best interests. For years we have tried to make sure that that term was used properly in both health and social care. We had a very interesting debate earlier this week on the post-legislative scrutiny of the Mental Capacity Act. Strenuous efforts have been made to roll out empowerment of individuals to enhance capacity and not to take paternalistic decisions of one person over another. Indeed, I have been involved in trying to teach the principles of the Mental Capacity Act, and I am fearful that this wording—as in this piece of legislation—could be seen to undermine the laudable intentions of that Act in terms of empowering individuals to take decisions.

I turn to Amendment 6 and how the NHS function of the unique identifier is important. In our society, we have several different identifying numbers—national insurance numbers, bank account numbers, passport numbers and so on. The national insurance and passport numbers are held from within the province of government. Perhaps it would be more honest to state that, if you do not wish your NHS unique identifier to be available to be available to you, you have effectively signed yourself out of NHS services.

Indeed, I am grateful for a briefing that I have only just received this morning, which points out—if I have understood it correctly—that opting out of the use of the NHS identifier opts you out of systems such as “choose and book”, screening programmes and so on. So effectively you are in part removing yourself from services that are available as a public health measure, as well as services that would be available to you as a patient. I wonder whether we should state clearly that the onus is only on you as the individual to explain why you wish such a number to be excluded, perhaps because you are a public figure and wish to use an alias—or should we begin to think about whether there should be the occasional possibility for people to have two numbers to use in different situations, rather as you can, in exceptional circumstances, hold two passports?

The NHS number makes links across the whole system of pathways of care. Indeed, it is there to reduce risk. For example, if you have two patients with a similar name who are going for surgery, the NHS number will be used as a checklist identifier to make sure that the right patient of that name is taken down for surgery. We are all aware that, when patients are in hospital and frightened and feel disempowered, they are less likely to challenge the processes that are happening to them than when they are fit and well.

Another problem concerns me. What about the person who is coerced or pressurised into withholding their NHS number because somebody is badly intentioned or abusive towards them and does not wish that abuse to be revealed? A person may appear in different parts of the healthcare system but, without that NHS identifier number, the dots cannot be joined up to protect them or to detect that there is a problem.

I seek confirmation in summing up from the Minister that I am correct in understanding that, if you decide not to use your NHS number, you are opting out of things such as screening programmes, as well as having to present your NHS number to be able to opt out of systems such as care.data, and so on. At the moment, if you opt out of care.data, you are opting out of screening programmes as well.

Another problem for the NHS is that hospital episode statistics rely on the NHS number, which is effectively how the hospital is paid. If there is no number, the only identifier that the hospital has is your name and address, which is a far greater threat to privacy in the system than is the NHS number.

With those comments, I await the Minister’s response to the questions I have posed. I emphasise again that I have real concern about how the term “best interests” is being used. I seek clear clarification in his answer so that we can have clarity on the record about how the term is used in the context of the Bill.

[Baroness Hollins (CB)]

My Lords, Amendment 7 in my name focuses on the proposed duty in Clause 3 to share information between health professionals and social care professionals. I apologise that I was out of the country during Second Reading and was unable to speak. I congratulate the noble Lord, Lord Ribeiro, for championing the Bill through the House. I also thank the noble Lord, Lord Hunt, for supporting this amendment, together with the noble Lord, Lord Low, who unfortunately cannot attend today.

From my own research and the work of the confidential inquiry into the premature deaths of people with a learning disability, I know that there are some appalling patient safety outcomes for people with learning disabilities, where improved information sharing has a real prospect of helping. Data scaled up from the confidential inquiry show that 1,200 people with a learning disability die avoidably in NHS care every year. In many cases this is due to poor or inadequate care or diagnostic overshadowing, where, put simply, professionals fail to see past the learning disability to what is really affecting the patient, may not recognise that the person has a learning disability, or may have had no training on what a learning disability is.

--- Later in debate ---

[Lord Ribeiro]

My Lords, I thank the Minister for clarifying the issues around the consistent identifier. It is interesting that the use of the consistent identifier and the sharing of information was welcomed at Second Reading by the noble Lords, Lord Turnberg, Lord Willis of Knaresborough and Lord Hunt of Kings Heath. The noble Lord, Lord Hunt, confirmed that the Opposition were very supportive of sharing a patient’s information, which, as he said, was,

“clearly in the best interests of their patients”.—[Official Report, 6/2/15; col. 961.]

That slides me very easily and comfortably into Amendment 5 and the question of best interests, which, again, has been addressed. I must confess that I have always used, and continue to use, the term “best interest” without assuming that this can be used only about those without mental capacity, as defined by the Mental Capacity Act 2005. It is my understanding that in these clauses the phrase “best interests” assumes its general meaning and provides a relevant person with a duty to act in the individual’s best interest when providing information for direct patient care. That is my understanding of the term.

As regards Amendment 6, patient control and choice about how their information is used is the subject of wider government policy. I believe that what needs to be done in that respect has already been illustrated. It is about empowerment of the individual and giving them control over their own information. I also welcome the intervention of the noble Baroness, Lady Hollins, in highlighting a key piece of information in patient care. Her description of a patient who died after surgery for want of the right word when asked a question—the patient answered incorrectly, which led to a fatal outcome—was truly revealing. In my experience, it is critical that if an individual has particular communication needs, those who provide care or treatment should know about them beforehand.

I am confident that the requirements to share information in support of direct care in the Bill already encompass communication needs. The Minister commented that Mencap has sought reassurances that health professionals should become more aware of the ways in which people can communicate their health and care needs. I am sure that, from his statement earlier, work on this will take place to ensure that those concerns are met. With those comments, I hope the noble Baroness will be happy to withdraw her amendment.

[Baroness Finlay of Llandaff]

My Lords, I am grateful to the Minister for being so clear in addressing the issues that I have raised and for the supportive further clarification sought by the noble Lord, Lord Hunt, of Kings Heath. It will ensure that the term “best interests” is attributed only its ordinary meaning and not misinterpreted for the purposes of this Bill as meaning “best interests tests” as outlined in the Mental Capacity Act. I am also grateful that the guidance and the Explanatory Notes will be amended as both noble Lords have outlined. I appreciate the welcome of the noble Lord, Lord Ribeiro, for how the debate has gone and what has happened. I therefore beg leave to withdraw my amendment.

Amendment 5 withdrawn.

--- Later in debate ---

Moved by

[Baroness Finlay of Llandaff]

9: Clause 5, page 5, line 13, leave out “safety and wellbeing” and insert “and safety”

[Baroness Finlay of Llandaff]

My Lords, I will also address Amendment 10 in my name. Amendment 9 seeks to ask how a regulator can, through its fitness to practise panels, judge well-being. I can see how health and safety can be judged objectively but well-being is a subjective judgment and it is very difficult to dispute a person’s view of a professional’s action having adversely impacted on their well-being. I have a concern that, as a sole criterion, it could be used in a vexatious way where there are other issues that somebody wishes to address against a professional, perhaps at a personal level, rather than it being focused on their professional conduct.

Amendment 10 seeks clarification of the prioritisation of the issues to be considered by fitness to practise panels. Such panels should not assess public confidence on the basis of purely personal condemnation of a person or the media’s response to what has happened—the so-called trial by media.

--- Later in debate ---

[Lord Ribeiro]

In following the Minister, perhaps I may deal, first, with “well-being”. At paragraph 3.20, the Law Commission’s report states:

“We disagree with the criticism of ‘well-being’. This term has already been incorporated without difficulty into the main duties or objectives of many of the regulators”.

Within that context, it feels strongly that that term cannot be misinterpreted.

The Bill introduces consistent objectives for the PSA and the regulators based on the proposals of the Law Commission’s review last year. Most of the professional regulators have some form of main objective. Although they are not consistently expressed they are generally to protect, promote and maintain the health and safety of the public. It is the health aspect with which the noble Baroness, Lady Pitkeathley, was particularly concerned at Second Reading. I think that that concern has been allayed today.

It is clear that public protection—by “public” I of course include patients—is sufficiently important that it should be adopted expressly in legislation. Defining public protection in terms of these three elements to be pursued by the regulators and the PSA as their overarching objective enables public protection to be considered in its fullest sense. That should give comfort and reassurance to the noble Baronesses who have spoken. With that, I hope that the noble Baroness will agree to withdraw the amendment.

[Baroness Finlay of Llandaff]

My Lords, I am most grateful to the noble Baroness, Lady Pitkeathley, for having expanded on and brought better definition to the points that I was trying to make on the amendments and for the clarification that we have had from the Minister and the noble Lord, Lord Ribeiro. I therefore beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Smoke-free (Private Vehicles) Regulations 2015

Baroness Finlay of Llandaff Excerpts

Tuesday 3rd February 2015 Grand Committee

[Lord Foulkes of Cumnock (Lab)]

My Lords, I greatly welcome this legislation. I want to ask two questions, which I hope the Minister will be able to deal with. Before doing so, though, I want to say why I am particularly pleased about this. In the early 1980s I tried to introduce a Bill in the other place to ban smoking in public places. I was almost literally laughed out of the House because everyone thought that it was ridiculous to have a ban on smoking in public places. Of course, it is now accepted as the norm.

I was also vilified, as indeed were all the anti-smoking campaigners, by an organisation called FOREST, the so-called Freedom Organisation for the Right to Enjoy Smoking Tobacco. I do not know how anyone can enjoy it—they just have to do it because they become addicted—but there we are. The organisation, which was funded by the tobacco companies, twisted all the figures. It was not a very pleasant experience. I know that my friends who worked in Action on Smoking and Health at the time, as well as other people, were subject to the same kind of criticism and attacks. I am very pleased that things have moved on since then and I commend the Government for pursuing this matter.

However, I have two questions. One relates to enforcement. The ban on smoking in public places has been effectively self-enforcing because the penalties and the problems that would be created by people smoking, particularly for publicans, shopkeepers and people responsible for public places, would be substantial, not just in terms of the fines that they might be subjected to but in terms of losing licences and other problems. Therefore, as I said, the ban has been effectively self-enforcing, with all but 100% compliance, I am pleased to say.

However, the legislation concerning the use of mobile phones in cars has not been so effective. I have seen a lot of people continuing to use mobile phones in cars while driving but I understand that there have been relatively few prosecutions of this extremely dangerous habit. I get the impression that the police are not particularly good at making sure that people are pursued in relation to that offence, and I am a little concerned that the offence of smoking in a car with children present will be more akin to using a mobile phone while driving than smoking in public places such as pubs, shops and so on. I would be grateful if the Minister could deal with that and give an assurance that enforcement and compliance will be more effective.

Secondly, unlike the noble Lord, Lord Ribeiro—who I commend for the way in which he has pursued this issue—I am not sure that £50 is a sufficient penalty. I understand that it is similar to the penalty for parking in an inappropriate or illegal place, a much less grave offence than one that causes danger and harm to children. Many people will take the risk of smoking in a car with children present, particularly as, with no disrespect, a £50 fine to Ferrari drivers and drivers of large, expensive cars will not mean very much in terms of their regular expenditure. I wonder whether this is an appropriate penalty for the offence. The Minister mentioned a review; perhaps this matter could be looked at in that review.

Those are my only two reservations, neither of which takes away from my warm welcome to the Government for these regulations. As the Minister knows, I do not regularly welcome the things that this Government do, but on this occasion I am pleased to do so.

[Baroness Finlay of Llandaff (CB)]

My Lords, I welcome these regulations and congratulate the noble Lord, Lord Ribeiro, on his work to achieve this position. Children themselves have asked for this measure. In the 2011 British Lung Foundation survey, 86% of children between the ages of eight and 15 said that they wanted protection. It is worth noting that the Welsh Fresh Start campaign, which was aimed at cutting down smoking in cars when children were present, did not have as great a success as one would have hoped, but these regulations send an important message that will change behaviour. Quite apart from encouragement to change behaviour, there needs to be a clear message out there.

The data from Wales have shown that 4% of children reported being in a car when someone was smoking almost every day, and 23% reported that they were sometimes in a car when someone was smoking. Where a parent smoked, one in five children reported that smoking was allowed in the family car. These regulations are welcome and will have a major part to play in bringing about behaviour change. Of course the fact that there are provisions for a fine is important, but behaviour change will be most sustainable in the long term.

I am grateful to the Minister for his comment that he will keep a watching brief on e-cigarettes and that that consultation will continue. I worry that we are at the beginning of an explosion of a highly addictive substance.

Alcohol: Impact on Accident and Emergency Services

Baroness Finlay of Llandaff Excerpts

Wednesday 21st January 2015 Lords Chamber

[Earl Howe]

My Lords, alcohol-related attendances at A&E are certainly a matter of concern; we fully recognise that. Having said that, there is no evidence to suggest that current pressures in A&E departments are related to trends in alcohol-related attendances. We are taking a range of actions to prevent and reduce harm both nationally and in many local areas. We are certainly not just treating this as a financial issue. This is an issue to do with people’s health, and it is important. The industry is playing its part through the responsibility deal, which is already yielding some encouraging results.

[Baroness Finlay of Llandaff (CB)]

Do the Government accept that currently, the cost to the NHS of these attendances is about £120 per taxpayer for England? The arguments for minimum unit pricing are very strong, given that the attendance range peaks between the ages of 35 and 55 and yet, in that age group, you can drink your whole maximum weekly recommended amount of alcohol for less than £10 with the current pricing system. Minimum unit pricing might bring in more money to cover the cost to the NHS.

[Earl Howe]

My Lords, we are keeping the developing evidence on a minimum unit price under review. It has only ever been part of our alcohol strategy—which, as I said, includes a range of actions. We acknowledge the need to give careful consideration to any possible unintended consequences of MUP, such as its potential to impact on the cost of living, the economic impact of the policy and, importantly, a possible increase in illicit alcohol sales that could ensue.

NHS: Clinical Negligence

Baroness Finlay of Llandaff Excerpts

Tuesday 20th January 2015 Lords Chamber

[Earl Howe]

Yes, my Lords, we are satisfied that the NHSLA does a very good job. Indeed, about half the claims it receives are rejected and it contests robustly any claims that are ill founded.

[Baroness Finlay of Llandaff (CB)]

My Lords, does the Minister agree that complaints need to be dealt with rapidly, preferably by a phone call or home visit, rather than in the current slow systems that often compound the anger of those who feel that they have been wronged by the NHS and which therefore make the procedure of litigation more likely? There should, rather, be rapid settlement, a very sincere apology and lessons learnt with follow-up.

[Earl Howe]

I agree with the noble Baroness. We view it as important that NHS organisations manage complaints in a positive manner and use the information obtained to improve service delivery. Saying sorry is important. People who complain often want an apology, an explanation and an assurance that the same thing will not happen to someone else.

London Health Commission: Smoking

Baroness Finlay of Llandaff Excerpts

Thursday 15th January 2015 Grand Committee

[Baroness Finlay of Llandaff (CB)]

My Lords, like other noble Lords, I welcome this debate and congratulate the noble Lord, Lord Darzi, both on securing the debate and of course on his work on the important report from the London Health Commission. I, also, have had many conversations with patients dying from tobacco-related diseases. I have never had a patient who is glad that they smoked and that their life has been shortened by it, but I have had enormous numbers of patients who regret that they are leaving children orphaned early, because their lives are coming to an end prematurely and there is no way that that can be stopped.

I strongly support the findings of the London Health Commission report and, as has already been said, the Royal Parks becoming smoke-free sets a very clear example and message that these are open spaces—we are fortunate enough to have fresh air in London. I question the assertion from the noble Lord, Lord Naseby, as regards New York, because I have not seen any evidence that the tourist industry there has suffered at all. In fact, anecdotally, I have heard people say it is welcome that in Central Park there is smoke-free and a sporting open area.

The advantage of Parliament setting an example to the rest of us by having Parliament Square Garden smoke-free is of course clear. The city-wide working against illicit tobacco certainly needs to be strengthened, but that is a secondary part of tackling the issue of tobacco overall. As the report states, there are still 1.2 million smokers in London and smoking-related disease causes 8,400 premature deaths in the city and more than 51,000 hospital admissions. We have heard in recent weeks how the whole NHS is creaking under the strain—in London as much as anywhere, though it is widespread. Boroughs with a high prevalence of smoking are also among the poorest, and smoking remains a cause of health inequalities.

The NHS needs a radical upgrade in prevention and public health, as was stated in the NHS Five Year Forward View. The cause of preventable deaths through tobacco is the same as the next six causes put together, including alcohol, obesity and illegal drugs. I hope that the Government will undertake to renew their very successful coalition Government’s Tobacco Control Plan when it expires.

We do, indeed, have the necessary measures to tackle this in the Children and Families Act 2014. There is evidence that two-thirds of smokers start before the age of 18. In 2011, it was estimated that more than 200,000 children aged 11 to 15 started smoking. I warmly welcome the regulations to prohibit smoking in cars that were laid before Parliament in December last year and are due to come into effect this October. I urge the Government to set a date for the regulations to be voted on at the earliest opportunity.

I shall take a moment to address e-cigarettes because I am concerned that they contain nicotine, which is a highly addictive element in cigarettes. That risk certainly needs to be assessed and tackled. There is evidence that e-cigarettes are helping people who are smokers to quit smoking, but I was worried by the Trading Standards Institute’s finding that 40% of retailers are willing to sell these products to young people under 18, despite the fact that the vast majority—about 80%—of the products carry warnings that they should not be sold to people under 18. The consultation on the regulations to bring forward the primary legislation in the Children and Families Act enabling regulations to prohibit the sale of e-cigarettes to under-18s was launched before Christmas. I hope that that will proceed without delay.

Perhaps I may turn to the issue of standardised packs. More than half a million children have taken up smoking since the Government first announced in 2011 that they would consult on this measure. A vote on the necessary regulations has to happen before the general election. If the Government table them immediately this can happen. I am concerned that we have been told that we cannot have them laid before the end of the period of notification to Europe on 2 March this year. That is, in fact, a red herring. I do not understand why they cannot be laid now, so that as soon as 2 March is past a vote can be held. In the extremely unlikely event of an amendment being required, a short timeframe could be used to review whatever recommendation comes out from the relevant committees. I was interested to hear on the “Today” programme this morning that Labour now plans to incorporate this in its manifesto, if I have understood correctly. Perhaps other noble Lords will clarify that.

The security markings on the proposed packs would be no easier to counterfeit than the current security markings. The evidence from Australia has been overwhelmingly positive. Over the last few weeks, more than 4,000 doctors and allied medical professionals have called on the Government to stop dragging their feet on regulations. Section 94 of the Children and Families Act allows the Secretary of State to introduce regulations for these packs and was overwhelmingly passed in both the House of Lords—nem con—and the House of Commons, where only 24 MPs voted against the move. A poll on support for standard packs conducted for ASH found that 64% of adults in Britain were in favour; but what I found interesting is that in Australia the number of smokers supporting the measure has risen from 28.2% before its introduction to 49% after implementation. Therefore, I hope that, in answering today’s debate, the Minister will have some good news for us about the progress on standardised packs.