Care Bill [HL]

Debate between Baroness Finlay of Llandaff and Lord Mackay of Clashfern

Monday 14th October 2013 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I declare all my interests in this field, which are listed. These amendments are incredibly important for patients who are dying. The Government’s amendment is to be welcomed; I can see no problems with it. It might sound bizarre but I have some slight anxieties over the wording in two places in Amendment 137. It refers to a preferred place of death, whereas I would rather see the words, “preferred place of care”. Many people who are dying know that they want to spend their last days, weeks or months at home. They want to have everything done to support them at home, particularly out of hours. We have debated this for some time within my own specialist teams and specialist services. We are worried that there could be two unintended consequences. People who are not yet ready to confront the fact that they really are dying will be pushed to have that conversation before they are ready, which would be traumatic. There could also be the unintended consequence of some kind of target developing and patients being whipped out of one place of care.

The difficulty we see clinically is that when clinical situations change, patients sometimes change their mind. It is not uncommon for someone who originally said they wanted to die at home to say, when they really are dying, that they feel safer where they are and want their family brought in and as much of a home environment created as possible. It may be the regulations at ward level, or the way in which they are interpreted, which are blocking that and need to be addressed. For example, it does not matter at all if you have a husband on an all-female ward, but I have occasionally known staff to think that it does and that it is not appropriate to have a man stay overnight, which is absolutely appalling. Staff need to recreate the home environment where that person is as much as possible. However, if they have complex needs or unstable symptoms, they may well feel safer in whichever place they are, whether it is hospice or hospital.

In looking at the amendment I also tried to get some details of how many patients are successful under the DS1500 special rules. It is quite difficult, because I understand that the Department for Work and Pensions does not routinely collect that data. However, it seems as if in the year 2011-12, 11% of all successful claims were for the category of patients who were deemed to be terminally ill. One of the difficulties when you are looking at local authority charges for adult social care is that we cannot predict prognosis. That is always the catch with defining terminal illness. We are making our best guess, as it says in the Welfare Reform Act, as to whether someone can “reasonably be expected” to die within six months, but it is no better than that. It is a guess. There are patients who outlive their prognosis. I understand that the DWP does not push for reassessment inside three years, so there is quite a lengthy period of leeway. The potential difficulty that I can see unless this is really thought through and costed is that if somebody turns out not to be dying, what will then happen? Would they be forced to go through a reassessment? Would that then be used to try to claim back money from them afterwards? I raise those questions which would have to be thought through very carefully.

I certainly find it difficult—in fact, offensive—when people have to be assessed for care when they are quite clearly dying. However, there is that group of people you really do not know about. They appear as if they are dying. They tend to be more in the non-cancer rather than the cancer population, where their prognosis prediction becomes really difficult.

Those are just some caveats, although I support the spirit of the amendment wholeheartedly in terms of having patients where they want to be. However, as I said before, we need to focus on their place of care during their last days, weeks and months, and not only on their place of death.

[Lord Mackay of Clashfern]

My Lords, I very much welcome government Amendment 57. Of course, I have supported the recommendation of the Joint Committee on this matter, and continue to do so. Subsection (a) of Amendment 137 is important as a way forward. However, the difficulties to which the noble Baroness, Lady Finlay, has referred, are quite important in this connection. Many people in terminal situations would find a hospice one of the best places to go if that choice were open to them. Many people, of course, would prefer to die at home in a family situation. The hospices are normally able to engender a family atmosphere around death. People I have spoken to in the hospices have said, “If you have to die, this is the place to do so”; the “if” is not all that important.

There are practical questions to be taken into account, but it would be quite a step forward if the Government were able to come forward at Third Reading with an amendment which allowed some form of indication of the place of care, as the noble Baroness, Lady Finlay, says, or the place where one would wish to terminate one’s life in a way that was registered, so that those responsible would be able to give effect to it, so far as is possible, having regard to the changes that can take place in the last few months, days and hours.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Finlay of Llandaff and Lord Mackay of Clashfern

Wednesday 14th March 2012 Lords Chamber

[Baroness Finlay of Llandaff]

I support the comments made by my noble friend Lord Walton of Detchant. As a doctor, I look after these patients and have found repeatedly that they do not even want to seek compensation but are persuaded to do so. They do not seek it for themselves as they know that their lives are over, but because they want to leave something behind for their bereaved families who will have to live on after their death, facing a loss in pension.

As has been said, a common feature of mesothelioma and the other respiratory diseases mentioned in other amendments in this group is that diagnosis is clear. Histological diagnosis under the microscope shows the fibres and fragments of substance to which these people have been exposed, such as asbestos fibres and small amounts of substances such as beryllium and silica. Another feature of these respiratory diseases is that they form a discrete group. Protection of the respiratory tract has been around for a long time but workers have not always been adequately protected. Sadly, there was a time lag in that regard. Indeed, as regards these diseases, blue asbestos was thought to be the culprit. It took some time before all forms of asbestos were identified as being fundamental pathogens. We must put the interests of the people suffering from these diseases before any other interests. For those reasons, I strongly support these amendments.

[Lord Mackay of Clashfern]

My Lords, obviously, the people who fall into this category should have our sincere sympathy. I certainly feel strongly that they deserve that. However, I want to mention one or two matters. First, when this system of contingency fees—or whatever name you want to call it—was introduced, there was no special rule for such cases. I do not know to what extent the noble Lord, Lord Alton, or the noble Lord, Lord Avebury, have looked into the situation as it was when the system as I introduced it was working.

Secondly, it will not have escaped your Lordships that the next amendment of the noble Lord, Lord Alton, concerns industrial disease cases generally. The amendment we are discussing deals with respiratory cases; the next amendment deals with industrial disease cases. I particularly draw to your Lordships’ attention the question of justice as between different claimants. I entirely accept what has been said by those highly medically qualified noble Lords who have spoken about the disease we are discussing. However, other troubles that are the subject of personal injury actions involve lifelong deprivation of practically all one’s faculties. That kind of long-lasting trouble comprises another type of personal injury action. If your Lordships wish to support this amendment, they have to think how they would justify treating the cases we are discussing differently from other terrible cases which those of us who have experience of personal injury actions know exist.

Long ago I was professionally involved in cases that concerned the National Coal Board. Pneumoconiosis cases were brought but other cases were brought involving people who had been injured while working underground. People who suffered those injuries were in terrible distress and eventually died. However, before they died they were in a very distressing situation. Therefore, one has to be careful about how one distinguishes between the different cases. Justice requires that similar cases be similarly dealt with.

If I understood him correctly, the noble Lord, Lord Alton, said that the cases in the group he was asking for should not be required to subsidise other cases. My understanding of this system is that you do not subsidise other cases: the success fee is dependent on the chances of success in your case. It is a factor which is dependent on a probability of success that works into the success fee. It is not dependent on other cases; it is dependent on the precise potential for winning that exists in the case that you have in hand. Therefore, I do not accept that this system in any way subsidises other cases across the board except in the sense that the probability of success in a particular case is what determines the success fee.

If the noble Lord, Lord Alton, wishes to press this amendment, I assume that he will not have the benefit of the 10 per cent uplift for his amendments in this group, which is on the way as a result of the undertakings given by the Government. There is also the question of the one-way shift. That would probably apply if it were done generally in respect of these cases, but the other may not.

This is a very difficult area. The sympathy of the whole House is with these people, and that is very much the case with me and my noble friend in particular, given his experience of this issue. However, justice requires us to do justice as between different claimants. Other claimants also have very difficult conditions. How do we say to X, “Your claim and the conditions to which you have been exposed are so bad, as distinct from the others, that we can justify treating you differently”?

I should perhaps have said that I of course associate myself with the congratulations offered to the noble Lord, Lord Avebury. I did not suffer from the difficulties that my noble friend Lord Newton of Braintree had.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Lord Mackay of Clashfern

Tuesday 25th October 2011 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, it has been said that if you do not know where you have come from, you do not know where you are going. It is important for us to remember what we are talking about: a nationalised healthcare provision that arose originally because there were people who could access no healthcare. We have a situation in this country that is the envy of the world: if you are seriously ill, by and large you will get treated well and, most of the time, to standards of international excellence irrespective of who you are, your financial means, your social standing or anything. That does not apply in other parts of the world.

Those of us who have spent any time in the US will have seen what happens to some people who are not covered. I will never forget a young black man I saw with a terrible cardiac condition. All the money had run out and he was dying in a hospital because there was no further treatment. I was a medical student then and it made me resolve never to practise privately, which I never have, and to do all I could to further the principles of the NHS.

I suggest that there is much merit in considering a preamble, as the noble Lord, Lord Mawhinney, has just outlined. This brief debate has shown that the wording of this preamble is not right—I am sure that the noble Baroness, Lady Thornton, will not be moving it today—but that there would be merit in taking it away and coming back to it at a later stage. Perhaps I am wrong and she intends to move it; I did not have that discussion with her beforehand. However, I suggest that there is much here to commend.

We have a country that is very worried about its NHS, which is much beloved because it is the universal insurance policy that everyone needs if things go terribly wrong and they lose their health. The NHS Constitution was universally welcomed because it set out simple principles. There is much merit in enshrining that at the front of the Bill partly because, as it is written now, it concurs with the NHS and the direction of travel, accepting lots of change, that we want to see. There is anxiety that this could be amended in future.

We have had scandals about bad patient care. We have heard about bad staff attitudes, things not being done properly and personal interest overriding the interests of the patient population. There is much to be said for looking at putting in the Bill the vocational role of patient care and the duty to the health of the nation for those who are well to prevent ill health where we can, maximise the potential of those who are ill and restore them as much as possible to quality living. In the delivery of that, everyone, wherever they are coming from, whether they are a state sector employee or a private commercial venture, should adhere to the Nolan principles. That very essence of how we care for each other in our society sets the moral tone for the whole of our society. The Nolan principles are, if you like, the minimum that we should require across the board.

There is the question of transparency and openness. Questions have already been raised during this debate about potential conflicts of interest for those commissioning who may also be providing. There is a need for transparency about financial transactions and other personal career interests that might be there—about family members working in different parts of the service, about where people’s thinking might be biased and distorted, and about where there may be a wish to cover up one thing or another for different motives but where transparency would serve the greater good better. Linked to that, of course, is openness.

There is much merit in stating up-front on the Bill where we want to go. Where the NHS has come from, starting before its foundation and then as it evolved, has served us better than the alternatives. We want to drive up care and we want to change. Much can be changed and made more efficient. Nobody is advocating fossilising the services we have, but the principles about what we are trying to do need to be in the Bill.

[Lord Mackay of Clashfern]

My Lords, in 1946, the then Government promoted the National Health Service. They did so in the National Health Service Act 1946. Section 1 of that Act states:

“It shall be the duty of the Minister of Health (hereafter in this Act referred to as ‘the Minister’) to promote the establishment in England and Wales of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England and Wales and the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with the following provisions of this Act”.

Section 1(2) states:

“The services so provided shall be free of charge, except where any provision of this Act expressly provides for the making and recovery of charges”.

These are plain, clear, concise words which completely incorporate the fundamental principles of the National Health Service, as they have done since 1946. What is more, these provisions are enforceable at law, as the decision quoted by the Constitution Committee shows. They are enforceable in law, clearly, easily, without difficulty.

The previous Labour Administration had many skilled Ministers in the Department of Health to my certain knowledge and I pay my warmest tribute to them. One of them was the noble Lord, Lord Darzi, and during his watch in this House the National Health Service constitution was promoted. As some of my noble friends have said, that was agreed by all parties. The noble Lord, on behalf of the Government, declined to put that in a statute. I questioned that, because if we are dealing with the constitution of the service, one would think that it should go into the statute that is the fundamental part of setting up the service.

The Act of Parliament incorporated a duty such as referred to in the first part of this amendment, to have regard to the constitution. Everyone in the health service had to have regard to the constitution. The Government declined to put that into legislation. When I asked the noble Lord, Lord Darzi, why that was, he explained that he did not wish the constitution of the NHS to become a plaything for lawyers.

Noble Lords will understand that that reason was not particularly attractive to me. On the other hand, the sense of what he was saying certainly was, and I accept that it was wise and is still wise. The obligation to have regard to the constitution is fundamental and remains. However, I do not believe that it is possible for us to provide a simpler, clearer and more effective preamble to the National Health Service Act at any time than that which was thought of by the founding fathers of the National Health Service in 1946.

I should point out that this is not strictly a preamble at all; it is a first clause in the Bill. However appropriate some of these sentiments may have been for a resolution at a party conference, they are not suitable for an Act of Parliament, in my respectful submission, because the provisions in an Act of Parliament should be enforceable. When we have such a clear constitution of the NHS and such a fine example in what was provided by the founding fathers, which is enforceable, I respectfully suggest that it is unwise to muddy the waters now. I embrace all the sentiments expressed in this draft amendment and hope that we will have them in mind as we go through our later deliberations. All the sentiments are very acceptable, with the exception of the one about the market, which I find a little difficult. However, I will not elaborate on that now.

I am extremely grateful to the noble Baroness, Lady Thornton, and the noble Lords, Lord Hennessy and Lord Owen, for discussing this matter with me yesterday. I greatly profited from that discussion. It took me back to the beginning of 1946 when I was a second-year student at university. I remember that one of the difficulties envisaged in the founding of the health service was the fact that family doctors—GPs—did not wish to be employed by the Government. Therefore, the constitution provided that the Secretary of State had to provide the service—he did that from time to time at the beginning in hospitals and so on—or secure the provision of the service. “Secure the provision” was, of course, the one operative for GPs. That has served us well. As far as I am concerned, the proposed constitution, however one appreciates the principles that it expresses, is neither as clear or precise nor as readily enforceable as what we have. I respectfully suggest to the noble Baroness that she might wish to consider that aspect.