Mental Disorder: Autism and Learning Disabilities

Baroness Hollins Excerpts

Tuesday 5th November 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

We absolutely agree with the noble Baroness’s point. We need to ensure that everybody who can be cared for in the community is able to be cared for. That is why we have reduced the number of people in in-patient care by 22%; we have set a target to reduce that number by 50%. We are driving that forward as quickly as possible.

On the matter of the serious incident review of Bethany’s case, we have received the report and are working to release it as soon as possible. NHS England is taking action to improve Bethany’s situation and secure an alternative, more suitable, provider in the community as quickly as possible.

Regarding the case reviews of every individual, the Government have committed to providing each patient with a date for discharge or, where that is not appropriate, with a clear explanation of why and a plan to move them closer to being ready for discharge in the community. This significant commitment from the Government should be welcomed.

[Baroness Hollins (CB)]

My Lords, I declare two interests. First, I had an editorial published in the British Journal of Psychiatry last week, proposing that learning disability and autism should be removed from the Mental Health Act. Secondly, I have just agreed to chair a panel to review the cases of people with learning disability and/or autism who are in segregated care. Does the Minister agree with the treatability criterion in the Act, particularly with respect to the question of removing learning disability and autism from it? In other words, does she agree that, in detaining somebody in hospital under the Act, the excuse of doing so to improve—or with the intention to improve—their behaviour, even though their behaviour may be a reaction to inadequate social care, is an inadequate reason for detention under legislation?

[Baroness Blackwood of North Oxford]

I thank the noble Baroness for taking on the chairing of the independent panel. I cannot think of anybody better placed to do so. When it comes to her question about the detention of an individual to improve their behaviour, again, I do not think that anybody in this place or elsewhere could disagree with her. On changing the Mental Health Act, we commissioned the independent review led by Sir Simon Wessely, who is also a leader in the field. He reported in December. In its findings, the review made it clear that we need to modernise the Mental Health Act, ensure that views are respected and ensure that patients are not detained for any longer than is absolutely necessary. Sir Simon stated that there is “no clear consensus” on removing autism from the Act, and that,

“we have heard also about the many negative consequences that could arise from being outside this framework … this should be kept under review”.

Obviously, we will not respond to that immediately. There will be a White Paper by the end of the year. We will consider this carefully and we recognise the strength of feeling on this matter.

Health Service Safety Investigations Bill [HL]

Baroness Hollins Excerpts

2nd reading (Hansard): House of Lords
Tuesday 29th October 2019 Lords Chamber

[Baroness Hollins (CB)]

My Lords, it is a pleasure to follow the noble Lord. I remind the House of my interests in the register.

I will make two main points about the proposed legislation which I hope will be considered carefully. The first relates to the patient safety issues experienced by those with learning disabilities in accessing healthcare, and the second concerns the safety of the wider healthcare community and the role of fear.

As many of your Lordships know, people with learning disabilities face huge health inequalities, with an estimated 1,200 deaths every year that could have been avoided with better healthcare. Many reports have shown this starkly, perhaps none more so than Mencap’s 2007 report, Death by Indifference. The groundbreaking but shocking reports from the Learning Disabilities Mortality Review Programme revealed that people with learning disabilities are four times more likely to die from causes amenable to good healthcare. This is clearly unacceptable in the 21st century. However, will HSSIB be the body which will identify and change the system so that it is truly safer for people with learning disabilities? The Bill we are debating is a small but welcome step towards tackling some of these injustices. What could make a real impact are the proposed and welcome powers of this new body, not only to identify risks to the safety of patients but, as emphasised by other noble Lords, to,

“address those risks by facilitating the improvement of systems and practices”.

Will the Minister clarify whether in practice the new body will have the powers to ensure that learnings from investigations are implemented, and in a timely manner?

Too often, even when solutions to problems are found, implementation of these solutions is either delayed or forgotten about. A variety of factors can be attributed to this, including institutional resistance and lack of political will. One such example is the delay in the implementation of mandatory, co-delivered learning disability and autism training. While the Government have at last committed to its introduction, it is unlikely that people with learning disabilities, and the clinicians responsible for their care, will see the benefits of this in the near future. Fifty per cent of clinicians responding to a YouGov survey in 2017 said that on-the-job training about learning disability would help them to deliver safer and better healthcare.

The second, increasingly serious, issue I should like to raise is staff safety, support and the role of fear. I hope that noble Lords will forgive me for repeating some obvious points, but I want briefly to consider why we investigate serious incidents. Is it because it is usually easy to find somebody to blame and allow the courts and professional regulators to do the rest, passing convictions and apportioning damages? The problem with this approach is that, in all but the most serious cases of individual failure or malice, it does not stop the problem happening again. Serious incidents occur when systems fail. When investigations focus on individuals, systematic failures go unnoticed, nothing of value is learned and harm occurs again.

The case of Dr Bawa-Garba demonstrated this tension well. She was convicted of gross negligence manslaughter and struck off the medical register for her involvement in the tragic death of six year-old Jack Adcock. But there were system failures too. On the day of Jack’s tragic death, Dr Bawa-Garba was covering for two doctors. She had recently returned from maternity leave. This was her first acute shift on call, but she had not received any induction. The GMC says that induction after a period of leave is essential. Furthermore, the IT system responsible for delivering test results was broken.

Whatever her individual failures, it is clear that her criminal conviction and being struck off did little to prevent a similar tragedy in future. It did not address widespread staff shortages. It did nothing to address the way in which the NHS supports doctors returning to work after a period of leave or to fix our broken and outdated NHS IT infrastructure. Out of such tragedies, there should be opportunities to address system failures. Doing so successfully could prevent more deaths and greatly improve the experience of both patients and staff working in the health service.

For those reasons, the placing of the Healthcare Safety Investigation Branch on a statutory footing and the additional investigatory powers granted to it are welcome, but if we are to have a body which undertakes investigations of the systems failures resulting in risks to the safety of patient, could we not include the safety of staff too? After all, the same systems underlie risks to both groups.

I recently heard of a trainee psychiatrist, a young mother working part-time, choosing to wear protective clothing to work to prevent serious injury in the event of a knife assault. Was her fear of being attacked justified? Just the previous week, a colleague had been stabbed, seriously injured and airlifted to a trauma centre. Thankfully he survived. Is not his injury as important to investigate as any other serious failure in the health service? Could his injury have been prevented if both he and the person who injured him had been better supported?

A recent report suggested that in 2016-17, there was an average of 200 assaults on NHS staff every day. The same report found that staff in mental health trusts were more than seven times more likely to be assaulted than staff in other NHS trusts. The most recent NHS staff survey showed that more than one in five workers in mental health trusts had witnessed an error, near miss or incident that could have hurt a member of staff in the previous month.

Fortunately, grave assaults on staff, such as the one I just mentioned, are rare, but they are a grim reality. Last week, I met a young doctor who raised that concern with me. I worry that such young doctors will choose to leave the NHS rather than stay and work in it. We need them.

Incidents involving staff safety provide no less an insight into the workings of our health service than incidents threatening patient safety directly. The same systems failures underlie risks to both, and there can be no doubt that investigating risks to staff could also result to improvements in patient safety. A dilapidated estate, a lack of safe places for clinical assessments to take place and dysfunctional alarm systems in hospitals are just some of the realities that staff working in mental health services face on a daily basis, which no doubt have an impact on both patient and staff safety.

The National Confidential Inquiry into Suicide and Safety in Mental Health, which investigated patient homicides for two decades, had its funding cut recently. It is a great loss that it is no longer able to undertake its important work on homicide. It found that for the 11% of homicide convictions in the UK that involved mental health patients, around half of those patients were not receiving care as intended, either through loss of contact or non-adherence with drug treatment. These observations carry the hallmarks of system failures. The proposed body has an opportunity to pick up where the inquiry left off and investigate the errors, incidents and system failures that result in this worst-case scenario of patient homicide, in particular if the victim was a member of the NHS workforce. Will the Minister therefore consider explicitly including risk to staff in the remit of the proposed new body?

Queen’s Speech

Baroness Hollins Excerpts

Tuesday 22nd October 2019 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I refer to my interests as listed in the register.

In reflecting on the Queen’s Speech and its relevance for the nation’s mental health, I wondered how, in 2019, we would now understand Nye Bevan’s assertion that no society can legitimately call itself civilised if a sick person is denied medical aid because of a lack of means. Over the past 71 years we have deepened our understanding of what it means to be sick and what it means to be healthy. We have seen the futility of separating health from social care, and learned that a person’s capabilities are as essential a resource as their finances.

One of the earliest debates that I was involved with in this House related to the Health and Social Care Act 2012 and the issue of parity of esteem for mental health. Informally, in preparing for that debate, I asked Members of your Lordships’ House what they understood by “health” and “illness”. Your Lordships spoke about strokes, heart attacks, diabetes and so on, but at that time there was little mention of mental illness or mental health.

The conversation has changed since 2012. There is more and better-informed talk about mental health. However, despite the commitment to parity, only 40% of people with mental illness receive treatment, and only £1 in £10 of NHS spending goes on mental health. There has been a 14% fall in the number of mental health beds since 2014 and community services have not been equipped to compensate for this change. For example, at least seven people are known to have died between June 2018 and March 2019—people who had been assessed as requiring admission but for whom no mental health bed was available.

When people are admitted to hospital, as we have already heard from many noble Lords, they are likely to experience some of the worst estate within the health service. The Government’s recent announcement of,

“the biggest, boldest hospital building programme in a generation”,

contained no new funding for psychiatric hospitals.

We are now more cognisant of the social determinants of health. Theresa May noted in her first address as Prime Minister that people born into poverty will live nine years less on average, and we have heard again today about the reduction in life expectancy for black and minority-ethnic users of mental health and learning disability services.

We also better understand the detrimental effects on adult mental health of adverse childhood experiences, including abuse, neglect and parental death or separation. I hope that the Government will seriously consider the effects of proposed longer criminal sentences and the consequent further break-up of families on intergenerational cycles of mental ill-health.

It is difficult to recover from severe mental illness if you do not have shelter, yet half of delayed discharges from mental health beds are due to difficulties in securing appropriate housing and care packages, with some patients choosing to discharge themselves and be homeless rather than remain on understaffed mental health wards, while others remain detained under the Mental Health Act for prolonged periods because of their vulnerability should they be discharged to inadequate provision. This is clearly an inappropriate use of the Mental Health Act and of hospital beds, and it is a problem based on a deficit of adequate housing and social care.

Offering psychotherapy to someone who cannot be sure that tomorrow they will have a roof over their head is like providing medication to a patient in hospital but not feeding them. For people with serious mental illnesses, learning disability and autism, the division between health and social care is not just artificial but harmful.

It is time to extend the parity principle to social care as well as healthcare and ensure that both are adequately funded. Can the Government commit to employing the principle of parity of esteem in their response to the social care crisis by placing the social care needs of people with long-term mental disability on an equal footing with the social care of people with physical illness and frailty in later years?

Just because the health service does not cost money to use does not mean that everyone has the means to use it. Many people are unable to navigate an increasingly complicated healthcare system by themselves. Fragmented and ever-changing services are difficult enough for the professionals working in them to fathom, and it takes effort and luck for any patient to get the best out of the NHS.

With the failure of the Transforming Care programme and the abuse reported at Whorlton Hall eight years on from Winterbourne View, fears that a hospital admission could lead to abuse or even death are understandable. Ongoing review by the CQC into the use of segregation for young people with learning disabilities and autism is essential. These are some of society’s most vulnerable and overlooked people and we need to understand what has gone wrong, without apportioning blame. For this, the newly announced health service safety investigations Bill is welcome.

I hope that some of the difficulties I have highlighted will be addressed through increased integration of services in line with the Government’s commitment to the NHS long-term plan. I want to end by applauding my noble friend Lady Audrey Emerton’s extraordinary contribution both in this House and as a leader in nursing in enabling better life chances for people with learning disabilities. I personally will miss her wisdom and good humour and I wish her a contented retirement.

Child and Adolescent Mental Health Services

Baroness Hollins Excerpts

Monday 25th March 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

The noble Lord, Lord Hunt, is very experienced in this area and has been involved with local clinical commissioning groups. The NHS has already opened 117 additional new mental health beds, and we have introduced new waiting standards for psychosis and eating disorders among children. Progress is already being made, but we should not dismiss the frustrations of those trying to access services. That is why we have put in place ambitious new targets with the long-term plan: we want to see 100% of children able to access the care they need.

[Baroness Hollins (CB)]

My Lords, about two-thirds of children with autism and two-fifths of children with special educational needs experience mental health problems. But the provision of specialist clinical community child learning disabilities services is sparse. What are Her Majesty’s Government doing to ensure that the needs of those vulnerable young people are planned for in the new funding allocation?

[Baroness Blackwood of North Oxford]

The noble Baroness is right: those with particular needs, where autism or learning disabilities cross over into mental illness, must be taken into account. Some distressing figures show that those with learning disabilities do not get the physical health assessments that they need either. This must be taken into account and is in part why the children and young people’s Green Paper puts in place designated senior leads for mental health in schools and mental health support teams in and around schools, so that those needs can be identified as early as possible, and we can prioritise prevention and early identification of mental health needs when they arise.

Children: Oral Health

Baroness Hollins Excerpts

Tuesday 12th March 2019 Lords Chamber

[Baroness Hollins (CB)]

My Lords, there are greater unmet oral health needs for people with learning disabilities. These are issues that start in childhood and continue into adulthood. Does the Minister agree that the educational methods proposed for children should be adjusted to be suitable for children with learning disabilities and extended into adult life, as suggested by the Faculty of Dental Surgery? I welcome the new government guidance that was published last week on the oral health needs of children and adults with learning disabilities.

[Baroness Blackwood of North Oxford]

The noble Baroness makes a very important point about ensuring that dental care is available and accessible to all. Dental commissioning responsibilities are for NHS England, which is responsible for ensuring that dental services meet local needs and helping individuals who are unable to access a dentist. She has raised a very important point about access for those with learning disabilities and I shall ensure that this is raised within the department.

Mental Capacity (Amendment) Bill [HL]

Baroness Hollins Excerpts

3rd reading (Hansard): House of Lords
Tuesday 11th December 2018 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I hope the House will indulge me for one or two minutes. I welcome the amendment and have no objections to it at all. However, I note that the Government have not come forward with amendments in relation to three other issues. The first is the risk to others and the interface with the mental health review. It would be helpful if the Minister could give us an assurance that the Government will not seek in the Commons to clarify the interface between this legislation and the mental health review. There is talk of using “objection” as the key criterion, but in my view we also need to consider the risk to others as a possible principle to be considered. Can we have an assurance that the Government will not seek to resolve this issue during the progress of this Bill in the Commons?

The second issue concerns independent hospitals, which we have debated. Although I certainly do not wish to reopen that debate, can the Minister give us an assurance that work will be done in preparation for the Commons stages on the very serious situation in which many people find themselves in independent hospitals? These hospitals are often remote and—if I may say so—not well run. People are incredibly vulnerable in them, often far more so than in homes. An assurance that that will be addressed in the Commons stages would be helpful.

The third issue regards domestic situations. Whatever the Government decide to do in the Commons, can they bear in mind the importance of trying to limit the levels of bureaucracy and, ideally, of not continuing to use the Court of Protection? Again, many very vulnerable carers caring for very vulnerable people do not have the resources to deal with a lot more bureaucracy—they already have a hell of a lot to deal with. Can the Minister respond on that point?

[Baroness Hollins (CB)]

My Lords, I share my noble friend’s concerns about the impact and relevance of Sir Simon Wessely’s review of the Mental Health Act. It is particularly concerning that the Bill will now proceed to the other place without careful consideration in your Lordships’ House of how it will interface with Sir Simon’s recommendations, which were published in his review only last week. His proposed new dividing line, which identifies whether the Mental Health Act or the Mental Capacity Act should be used in a given situation, will be based on whether P objects or, in the case of people with learning disabilities, whether P’s behaviour puts others at risk. The Mental Capacity Act, as it will be in its currently amended form, has a direct bearing on any changes to the Mental Health Act, and vice versa.

Given this new dividing line, does the Minister expect more or fewer people with a learning disability to move across from the Mental Health Act to the new LPS system? What research is the department doing to explore this, and what impact will the change have on the number of people with learning disabilities and autism detained in assessment and treatment units? Is there a risk that the gains made by the transforming care programme will be reversed? Related to this, and given the uncertainties, will the Government commit to extending the transforming care programme, which is otherwise due to close later this year?

My final point is that the Wessely review specifically recommends that the periods between reviews of renewal decisions should be reduced in the Mental Health Act. This Bill as it stands would allow a responsible body to detain a person for up to three years without renewal review. Surely the Government will want to take this issue equally seriously with respect to the Mental Capacity Act.

Mental Health Budget: Domestic and Sexual Violence

Baroness Hollins Excerpts

Thursday 22nd November 2018 Lords Chamber

[Lord O’Shaughnessy]

I am grateful to the noble Baroness for her recognition of the work that is going on in funding. It is important to point out that NHS England published a sexual assault and abuse strategy this April. That involved funding for sexual assault referral centres and a range of other innovations, including an Identification and Referral to Improve Safety project, which has now been rolled out in 800 GP practices. So work is going on not only to roll out these kinds of services but to make sure that many more victims are coming through to them. I know that the Women’s Mental Health Taskforce is due to report later this month and I will speak to my colleague, Jackie Doyle-Price, who is the lead Minister, to find out if we can give more specificity on how we track the number of users of these kinds of services.

[Baroness Hollins (CB)]

My Lords, we know that sexual violence in childhood, whether as a victim or secondary victim, correlates closely with mental illness in adulthood. Will the Government make childhood trauma a local commissioning priority and invest in trauma-informed models of care?

[Lord O’Shaughnessy]

The noble Baroness is right and I can reassure her that some of the additional £100 million of funding that the Government are providing for this issue is going on children who have been victims of abuse. Indeed, the draft domestic abuse Bill that we look to bring forward this Session will propose tougher sentences when a child has been involved in domestic abuse.

Mental Capacity (Amendment) Bill [HL]

Baroness Hollins Excerpts

Report: 1st sitting: House of Lords
Wednesday 21st November 2018 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I also welcome these amendments; removing “unsound mind” is a major step forward. I have a couple of questions for the Minister and I hope he can clarify. I may have misheard him but I understood him to talk about head injury. It would be helpful if he could clarify that he was referring to acute head injury—or acute brain impairment of any sort—as opposed to long-term damage such as frontal-lobe damage, which can happen when you have had a major brain injury. This can result in very long-term problems and difficult behaviours, which may mean that people currently need to be assessed as subject to deprivation of liberty. Could he clarify that we are not discounting a whole group of people who, it is generally felt, benefit from being properly assessed and safeguarded?

I would also like confirmation from him on another group. In January 2015, the then Mental Capacity Act deprivation of liberty safeguards policy lead in the Department of Health wrote out quite widely. There had been a concern about people who were nearing the end of life, including palliative care patients and patients in hospices. It was made clear in this letter that if somebody had consented to a care package and then went on—as part of their disease process when they were dying—to need some restrictions, and possibly to be moved to another place of care, that would not fulfil the acid test as such; neither would it in the case of people who were being nursed in a side room who were not under continuous supervision and control. The reason was that, in palliative care cases, there is often a time when the family cannot cope as the patient becomes unconscious, is moved to a hospice or develops another condition that had not been anticipated. It would be an inadvertent consequence if this letter from January 2015 no longer stood. It has been important and has made care easier. It was following this letter that we were able to change the regulations for what had to be referred to a coroner. That made a major difference, because families found it terribly traumatic to find a relative subject to a deprivation of liberty safeguard having to be referred to a coroner. I simply seek clarification on those two issues, but I in no way question the importance of removing “unsound mind” from the Bill. I hope this is the beginning of us seeing the end of that term, which is stigmatising.

[Baroness Hollins (CB)]

My Lords, I welcome the replacement of “unsound mind”, but I ask the Minister to consider adding a safeguard to ensure that no one has their liberty denied because of a mental disorder without first being seen by a qualified doctor. It is essential that individuals are assessed for a mental disorder and not another condition presenting as a mental disorder, such as delirium or the side-effects of medication, which are common among older people. It is important that consideration is given to whether the disorder can be managed without depriving the person of their liberty. This requires assessment not only of their mental state but of their past and current physical health and medication. The assessment is a core part of this process. It has great significance because it relates to the deprivation of a person’s liberty. Who can carry this out should be stipulated in the Bill rather than in a code of practice. I ask the Minister to reconsider bringing forward an amendment to add this requirement to the Bill.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I support the noble Baroness on the assessments. The Minister’s amendment is very welcome, but clearly the assessment is crucial. My understanding is that in previous debates, as the noble Baroness suggested, he said that the code of practice will set out which competencies will be needed to carry out this assessment. Like the noble Baroness, I ask him to consider, perhaps between now and Third Reading, whether this might be better put in regulations than in the code of practice. I always worry a bit about the use of “competencies”. It is a word now used in many recruitment processes, but what exactly does it mean? Will it be done by a registered medical practitioner with sufficient expertise in this field? If not, what is the justification? The change the Government have made is enormously welcome, but it is very important that we are confident the assessment will be carried out appropriately.

Mental Capacity (Amendment) Bill [HL]

Baroness Hollins Excerpts

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I feel that I should apologise for leading on this group of amendments, but it was by chance that my number came up. It was not my choice: I did not ask to lead on it.

The role of Amendment 65, which is the one that I really want to speak to, is to state clearly that we must strengthen the voice of anyone who has any concerns so that they can speak up on behalf of the cared-for person. I note that my noble friend Lady Hollins’s Amendment 66 provides powers to the voice of the responsible body and would mean that the responsible body must listen to representations. Amendment 67 strengthens the word “must”. There is a great deal in these amendments. I will not take the time of the Committee by speaking to other noble Lords’ amendments, other than to say that this group of amendments contains a great deal of rich wisdom. I beg to move.

[Baroness Hollins (CB)]

My Lords, this group of amendments concerns the appointment of an advocate, or appropriate person, to support the cared-for person in exercising their rights. The appointment of an independent mental capacity advocate and the identification of an appropriate person rely on care home managers being able to arrange a capacity assessment and a best-interests decision and on them notifying the responsible body. I noted the Minister’s assurance on our last day in Committee that care home managers will not be making an assessment themselves. But how will errors be identified and what will happen if the care home manager gets it wrong? Will the Minister tell the Committee how that will be detected on the basis of a paper-based review by the local authority when the paper has been supplied by the care home manager? The responsible body should not rely simply on what the care home manager thinks.

My Amendment 66 gives the local authority discretion to appoint an appropriate person or IMCA without notification from a care home, with whom there may be a conflict of interest, if the responsible body has reason to believe that such representation and support is needed for the cared-for person. Reasons to believe might include notification by an AMCP or a third party, or local authority social services involved in care planning.

The provision of advocacy can have a transformative effect and be the first time that the cared-for person’s views, and those of their family, are forcefully represented to decision makers. A failure to listen to people or to give weight or credence to what they say lies at the heart of many of the tragedies that have shamed social care and health services over recent decades. For that reason, it is vital for people to get the support that they need to express their views and exercise their rights, either through the appointment of an appropriate individual, often a family member, or an independent mental capacity advocate.

As they stand, Clauses 36 and 37 of the Bill are confusing and poorly drafted, with inconsistencies. For example, the Bill states:

“An IMCA should be appointed if the cared-for person … has capacity to consent to being represented and supported by an IMCA, and … makes a request to the relevant person”—


but IMCAs are instructed to support and represent only people who lack capacity. My Amendments 67, 69, 70, 73, and 74 add emphasis and aim to address these inconsistences and ensure that every cared-for person has access to support from either an appropriate person or an IMCA who is both willing and able to help them understand and exercise rights of challenge.

As it is drafted, the Bill leaves open the possibility of circumstances where a person may have neither an IMCA nor an appropriate person and therefore no means of being able to exercise their rights under Article 5(4) of the European Charter of Human Rights. Rulings such as the AJ v A Local Authority judgment, in paragraph 35, stipulate:

“Article 5(4) may not be complied with where access to a court is dependent on the exercise of discretion by a third party, rather than an automatic entitlement … Where a person lacks the capacity to instruct lawyers directly, the safeguards required may include empowering or even requiring some other person to act on that person’s behalf”.


My amendments therefore remove best interests from the criteria for appointment of a representative, as this should play no role in determining whether people are able to exercise their rights of challenge. Will the Minister explain the basis on which he believes that Part 5 of the Bill as drafted is fully compliant with this ruling and with ECHR Article 5?

I am also concerned about the potential conflict of interest if those responsible for arranging and providing care, such as care home managers, also act as gatekeepers to the person’s ability to exercise their right of appeal through best-interest assessments. There should be a clear route for the cared-for person to be able to appeal and to get the support that they need to do this. We know that access to justice is already a serious problem under the current system. The appeal rate is below 1% and cases such as that of Steven Neary and others show how hard it is for families and detained people to challenge public bodies where they object to the arrangements. I understand that the Government estimate that the new arrangements will reduce the appeal rate even further to 0.5%.

My Amendments 76 and 77 recognise the considerable responsibilities being placed on an appropriate person. In some circumstances, an appropriate person such as a family member who knows the person may well be best placed to assist the cared-for person, but may need some assistance. Making sure that an IMCA is involved in these cases would enable them to fulfil this role with support.

Nothing in the Bill details the functions that the IMCA will perform. It would help the Committee if we understood why this has not been addressed. The Law Commission’s draft Bill provided powers to strengthen regulation provision—Section 36 of the Mental Capacity Act—around how an IMCA is to discharge the functions of representing or supporting, including challenging decisions and facilitating a person’s involvement in relevant decisions. The experience of DoLS over the last nine years has shown us the need for clarity on when the representative—an IMCA or lay person—can or needs to challenge the authorisation.

My Amendment 79 recognises this and reinserts regulation-making powers into the Bill, extending it in the case of an IMCA appointed under the LPS to make provision as to how that advocate is to support the cared-for person, and where relevant the appropriate person, in exercising the right both to make an application to court and to request a review. This provision is necessary to secure a person’s rights under Article 5(4).

The Bill recognises that the role that the appropriate person undertakes provides a vital safeguard for the cared-for person for the purposes of Article 5 of the ECHR, but the Bill fails to place a duty on the responsible body to keep under review whether the appropriate person is undertaking their functions. This is an important safeguard under the DoLS, where the relevant person’s representative role—essentially an identical role to the appropriate person—has a duty to maintain contact with the cared-for person. My Amendment 80 places a duty on the responsible body to keep under review whether the appropriate person is undertaking their functions and, if they can no longer fulfil them, to appoint another appropriate person or IMCA at that point.

The Minister has given reassurances, a number of times, that issues within the Bill will be addressed through the code of practice. The requirement to act needs to be in the Bill. How it is done and implemented could be set out in the code of practice. I hope that the Minister will accept that these amendments address serious and fundamental issues that need to be resolved within the Bill.

--- Later in debate ---

[Baroness Murphy]

May I just add that I think it is important to read all the amendments of the noble Baroness, Lady Thornton? She provides for any opportunity, any chance, that the individual may indicate that they have changed their mind, at which point those things come to an end, essentially. They have to be quite specific that if there is any doubt in somebody’s mind that this is no longer something that can be continued, that there is anxiety about them being implemented, then it comes to an end. So I think those things can be taken care of.

[Baroness Hollins]

My Lords, these amendments are examples of the long and complicated amendments which I think could end up going wrong, because they are trying to cover quite a lot, which will probably become gold-plated and give rather too much weight to the legal profession. I do not think that what Sir Simon Wessely planned to do is relevant here, because it is not really about mental illness but about dementia. If that is the case, people may not be in a position to change their mind at a later date, so these amendments are very complicated and probably rather unwise.

[Lord O’Shaughnessy]

I am grateful to the noble Baroness, Lady Thornton, for introducing this clause stand part debate. We had a chat earlier, so I shall not formally respond to her but instead deal with the amendments as laid, if that is all right with everybody. Clearly, these are very important issues that need to be dealt with properly.

Amendment 84 would allow individuals to provide advance consent to arrangements enabling care or treatment that would otherwise amount to a deprivation of liberty. As noble Baronesses have commented, the Law Commission recommended that provision should be made in the Bill to allow this. This would mean saying that cared-for people entering certain settings, such as hospitals and end-of-life care, where the arrangements are predictable and time limited, would not be required to undergo additional assessments if they needed to be deprived of their liberty. In the Government’s response to the Law Commission, we agreed that people should have choice and control over future decisions being made on their behalf, but we said that we needed to look at the detail of this specific proposal. I understand that there is enthusiasm among some noble Lords for such a recommendation, particularly, as has been said, as a way of alleviating unnecessary assessments for those in palliative and end-of-life care.

On palliative care, before I get on to more general concerns, I think it is important to note that the Government have issued some guidance about consent in the context of palliative care in the last few weeks of life. I realise that this talks only about one part of the time period that we might be talking about. The guidance says that if an individual has capacity to consent to arrangements for their care at the time of their admission, or at a time before losing capacity, and does consent, this consent would cover the period until their death, hence there is no deprivation of liberty. However, the guidance is also clear that this consent would no longer be valid if significant extra restrictions were put in place, after this point, to which the person had not consented. So there is a situation that pertains to people right at the end of life and provides some opportunity for challenge if restrictions change.

If we extend that time period out, not just to weeks but to months and years, it has been brought to light in this debate that, while there is a desire to make sure that a person’s advance consent is taken seriously and given legal force, concerns have also been raised, not least by the noble Baroness, Lady Finlay, about extending the application in such a way that it could actually deprive people of their protections and human rights. These are clearly concerns that we need to take seriously.

Concerns have also been expressed to the department, in engagement with stakeholders, that the inclusion in statute law of advance consent to being deprived of liberty might imply that there is an expectation that people should have an advance statement of wishes in place, and that people may be pressured into making an advance statement. I take the point made by the noble Baroness, Lady Murphy, that in some ways planning for the future may be a good thing but, equally, we do not want to force people to plan for the future when their desire is not to. We protect the right of people to make bad decisions; that is an important part of a person having a sense of agency and autonomy. Concerns have been expressed that that would be put in danger and people would feel pressured to do something that they might not wish to do.

Clearly, the Law Commission made this recommendation with highly laudable aims. However, we have concerns and are not yet convinced of the merits of the amendment. We have tried to deal with some of the issues around integrating planning through the creation of a system based on the production of a care plan. We have talked about the inclusion of a statement of wishes. I would like to know more about the proposal of the noble Baroness, Lady Barker, about advance statements of wishes. I would like to follow that up and understand it a bit better. The process we are envisaging would allow the inclusion of advance decisions to refuse treatment as part of future care planning. That is not affected by what we are discussing here but that would be allowed. We are not convinced of the merits of the amendment—indeed, we have some concerns about the implications of it—but I would be keen to understand a bit more about previous discussions of this topic and whether there are other ways to provide that sense of agency for the person who will be cared for without producing undue pressure on them or legal force in a way that would go against their interests and, in legal terms, their human rights.

Amendment 85 would create a new civil court remedy against some private care providers, including non-NHS hospitals and private care homes, if they have deprived someone of their liberty unlawfully. Again, this provision was proposed by the Law Commission. However, we do not believe that a new legal remedy is required. There is already an ability to seek damages under the Human Rights Act on the basis of a breach of Article 5 and usually Article 8. This is available in private cases, where a private care provider is depriving a self-funder of their liberty unlawfully. A remedy could be sought against the public authority responsible for the deprivation. Obviously, we need to hold private care providers to the same standards that we hold public care providers to. There are already a number of mechanisms that allow for this, and the law provides for them. There is the criminal offence of false imprisonment, as well as the existing law of false imprisonment for civil claims. So people can already bring legal action against private care providers.

On top of this, the Care Quality Commission in England and the Care Inspectorate Wales would also ensure compliance with the liberty protection safeguards. Clearly, they have a range of enforcement actions available to them that apply to the public and private sector alike. Furthermore, as commissioners, local authorities will—and do—have a role in ensuring that private care providers fulfil their legal duties. The Government believe that sufficient levers are already in place and that the creation of an additional civil route could increase care providers’ insurance costs at a time when, as we all know, we are working hard to make sure that there is funding in the system to provide adequate and good-quality social care to everybody who needs it.

I understand and agree with the desire to hold private providers to the same standards that we hold public providers to, but we believe there are existing remedies within the system and there is no need to require or implement new ones. On that basis, I hope the noble Baroness will not move her amendments.

Mental Capacity (Amendment) Bill [HL]

Baroness Hollins Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 15th October 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I have Amendments 47 and 50 in this group. They are concerned with the point at which court proceedings are triggered. It is appropriate that there is an ability to appeal, but it is also important that courts are not inundated and that disputes are resolved outside court as much as possible. Going to court should be the last port of call, but it should be accessible and should occur only when other interventions such as mediation have failed.

Sadly, sometimes cases need to go to court, which is why I have worded an amendment to allow the AMCP to consider going to court as part of their role. However, the AMCP must also be able to verify information and meet independently with the primary source—that is, the cared-ford person. That might mean setting up a meeting well away from other people who have previously been involved so that they can form their own view on whether there are other avenues that might be pursued before resorting to the court.

[Baroness Hollins (CB)]

I have added my name to Amendment 49 in the name of the noble Baroness, Lady Barker. My concern is that a failure to meet the person directly might lead to a desk-based review, which would not enable the necessary scrutiny of the appropriateness of the care arrangements.

[Baroness Meacher (CB)]

My Lords, I support Amendment 45 in the name of the noble Baroness, Lady Jolly, and Amendment 47 in the name of the noble Baroness, Lady Finlay, to which I have added my name. These amendments strengthen the human rights-based duties of the approved mental capacity professional.

As it stands, the Bill weakens considerably the abilities of a person or their family or friends to exercise the convention right, under Article 5.4, of any detained person to take their case speedily to court. I think that all noble Lords understand perfectly well how this has come about. Paragraph 36 of Schedule 1 seems to indicate that an IMCA will be appointed only if the care home manager gives the relevant notification. I would be grateful if the Minister could clarify in what circumstances an independent mental capacity advocate would not be appointed under the new system.

At Second Reading, I raised my concern that the Bill was going ahead before we knew the outcome of the Mental Health Act review. The Law Commission urges the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals to review the question of the appropriate judicial body to determine challenges to authorisations of deprivation of liberty under the Bill. The Law Commission also urges the establishment of a single legislative scheme governing non-consensual care or treatment of both physical and mental disorders where there is a lack of capacity.

At that point I have to delete chunks of my speech, having just had a meeting with Sir Simon Wessely, head of the Mental Health Act review, and Judge Mark Hedley, a former head of the Family Division, who knows all about mental capacity and everything associated with it. The Mental Health Act review will recommend that there should not be a bringing together of the Mental Health Act and this legislation. Therefore, I hereby withdraw my concern expressed at Second Reading.

As I said, following that meeting, I have deleted chunks of my speech, and I am not quite sure where I can pick it up again. Basically, they agreed with me—we agree about everything, in fact—that appeal to a court should be an absolute last resort. It goes without saying that court cases are incredibly time-consuming, stressful and expensive. It has to be seen as a failure of the system if recourse to a judge is needed. I certainly have a great deal of sympathy with the argument that, as far as humanly possible, we need to focus all the resources we can on the care of individuals, whether in the community or elsewhere.

We know that, if a court demands reports, the care of the patient has to come second to those reports being produced. This comes at a time when 10% of psychiatrists’ posts are not filled and vast numbers of all doctors’ and nurses’ posts are not filled, and it is proving more and more difficult to recruit—we will not mention the reason why. It seems to me, following discussion with Simon Wessely, that it is crucial to get the process right to minimise the need to access the courts. That is what his Mental Health Act review will concentrate on, albeit it will be a lot more liberal and professional than the current Act. It is an excellent process so that we can reduce the need for access to the courts.

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[Baroness Finlay of Llandaff]

My Lords, this group of amendments takes us to the heart of the duty to ascertain the wishes and feelings of the cared-for person. For that reason, I am most grateful to the noble Lord, Lord Hunt of Kings Heath, for adding his name to my amendment, which would rename this part of the Bill, changing a consultation to a duty, and move up this paragraph from lower down:

“The main purpose of the consultation required under this paragraph is to try to ascertain the cared-for person’s wishes or feelings”.


That must be paramount. If we do not make arrangements that fit with and respect the known wishes and feelings of a person—or we make arrangements that cut across the feelings of others and cannot justify them very carefully—we will have failed completely in what we are trying to do. We should be empowering people to live as they want to live as much as possible while accepting that we need some restrictions in place.

That is why this group of amendments would also move the cared-for person to the top of the list of people to be consulted and make it clear that the professional responsible for the care plan needs to undertake the consultation. That will then inform what is happening and how the care is to be organised on a day-to-day basis and in the longer term, as well as ascertain whether the restrictions that may be put in place are necessary and proportionate in the light of knowing the cared-for person’s wishes and feelings.

It is important to remember that people do not object only actively. They may signal objection by becoming more withdrawn or less active. They may start eating less or there may be changes in toileting and so on—all of which can signal that someone is unhappy. All these changes should be considered in thinking about whether somebody is objecting in the broadest sense to whatever has been provided for them. They may well signal that their wishes and feelings are not being adequately respected. I beg to move.

[Baroness Hollins]

My Lords, I welcome the amendment tabled by the noble Baroness, Lady Finlay, which seeks to ensure the wishes and feelings of the person are at the heart of decision-making. My Amendment 33 follows this principle by adding the cared-for person to the list of people with whom the assessor is required to engage before arrangements can be authorised.

Self-advocacy groups and charities supporting people with learning disabilities and their families have shared their concerns that the Bill does not require sufficient regard to be paid to their views in particular. I will quote some views expressed by Learning Disability England, a membership organisation:

“Disabled people and their families are especially worried that there is no requirement to consider the person’s own wishes. That is how the institutions were … We do not want to go back to the days of the institutions … There is a risk that we take away people’s independence and give power to people that may not be doing a good job”.


Consulting with people who lack capacity can be challenging and requires quite advanced communication skills. It is crucial that we get this right as the consequences are significant and lead to other improvements or deteriorations in people’s health and independence. I declare an interest here as chair of the Books Beyond Words community interest company, which develops resources and pictures to help doctors, nurses, care staff and others to communicate more effectively with people with learning disabilities and others who find pictures easier than words and to support decisions which, at their outset, appear too difficult or challenging.

Amendment 35 is designed to oblige those carrying out the assessment to explore less restrictive alternatives thoroughly. This would need to take into account the cared-for person’s family and others who know them well and have an interest in their welfare, who are likely to have important information and expertise to share about the person’s needs and what good support, which maximises their freedom, might look like.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have added my name to two of these amendments. We heard earlier that the Minister has agreed that the Bill at some point in the future will reflect the need to consult the cared-for person. This is clearly a great advance and sets the context for the debate on this group of amendments. I particularly commend the suggestion that the consultation should be not just about what the assessment has concluded should be done to the cared-for person—I fear that the sense of the Bill at the moment is “done to”—but what the alternatives are.

This is where I come back to one of our problems with the architecture of the Bill. So much responsibility is given to the care home manager who, inevitably it seems to me, must think about residence in a care home as being the only option because their job is to make sure that occupancy is of the highest level in order to maximise the viability of the home. It would be good to know how the Government think with this Bill and the new arrangements we are going to ensure that the alternatives are properly looked at before someone’s deprivation of liberty is actually authorised.

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Moved by

[Baroness Hollins]

38: Schedule 1, page 13, line 10, after “person” insert “or those interested in their welfare”

[Baroness Hollins]

My Lords, my Amendments 38, 39, 40, 41 and 43 would add in families, friends and carers. They build on and support Amendments 15 and 16, which were debated earlier and tabled by the noble Baroness, Lady Jolly. They would require that every cared-for person has access to an approved mental capacity professional, regardless of whether the assessor considers that the cared-for person might object to the care and treatment proposed.

Not everyone will be able or willing to risk expressing an objection to those currently providing their care. It can be very hard for a person to object to care given by a staff member on whom they may be totally dependent, and may feel obliged to agree with, when they view them, correctly, as somebody who has power over them. I suggest that for some people this will not be an easy judgment even if they are trying to object, particularly if they have difficulty communicating. It is often the case that family members are the most skilled at communicating with their loved ones, as I suggested earlier, and are therefore most likely to understand their feelings and wishes—feelings which may be communicated with subtlety or nuance, and which are unlikely to be confided to unfamiliar people or people perceived to have power over them.

In those situations where someone is not able to communicate their objections, it is vital that their family and others with an interest in their welfare are able to object for them and to trigger a referral to an AMCP—someone whom they can be confident has the right expertise. Otherwise someone with profound communication impairments might not be able to object while those close to them have serious concerns about the arrangements, yet are not able to request an AMCP. Those with the most profound impairments must not miss out on the involvement of an AMCP in this situation. In the 2014 report from the House of Lords post-legislative scrutiny committee, Nicola Mackintosh spoke about the compliant nature of many incapacitated adults. She said that,

“if you have a vulnerable person detained in a care home who is physically or verbally expressing a wish to leave, those cases are more likely to be raised before the court than cases involving a compliant, incapacitated person. That was the case in the Bournewood case. I do not think the DoLS scheme has cured the illegality”.

I do not think that the Bill, as amended, will fill the Bournewood gap. My Amendment 44B has identified a similar issue to that in Amendment 44A, proposed by the noble Baroness, Lady Thornton. It has been tabled to protect the rights of people detained for treatment in assessment and treatment units, and other hospital settings, for treatment for mental disorder. It would include NHS and independent hospitals. These are often the most restrictive settings where the liberty protection arrangements will apply and there are serious concerns about the rights of patients with learning disabilities who are placed in these settings.

However, due to the rules governing the interface between the Mental Capacity Act 2005 and the Mental Health Act, which this Bill leaves largely untouched, these patients will not receive any independent assessment by an AMCP. The reason for this, as I understand it and put as simply as possible, is that the Mental Capacity Act cannot be used to authorise a detention if the person is viewed as objecting to their detention; the Mental Health Act must then be used. This means that patients detained in hospital under DoLS or its successor, the LPS, will by definition be regarded as not objecting by those responsible for their detention. This would include people such as HL in the Bournewood case, who may not be capable of expressing an objection or whose behaviour is hard to interpret by those who do not know them well.

Under the Bill, a person will qualify for an assessment by an AMCP only if there is reason to believe that they are objecting, so for this group a specific trigger is needed to ensure that their detention is scrutinised by an independent, specially trained professional to ensure that it is justified, having regard to the alternatives. Last year there were 4,670 DoLS applications for patients in this category. I hope the Minister will agree that it is important for people in these settings to have access to an AMCP automatically.

I have also had some communication with Professor Sir Simon Wessely today, but I did not achieve the same certainty as my noble friend, who is not in her place. I hope that the Wessely review will remove the learning disability exemption in the Mental Health Act, which allows people with a learning disability to be detained if their behaviour is abnormally aggressive and so on, and that instead their detention will be on the same grounds as for any other person. I beg to move.

[Baroness Barker]

There are two amendments in my name in this group. Amendment 44 is designed to probe an issue that is clearly worrying lots of noble Lords: that the condition that triggers an AMCP is that the person is objecting to their care in a particular place. The noble Baroness, Lady Hollins, is always very good at helping us to understand legislation from the point of view of people with learning disabilities. My background and my chief concern is with older people with dementia who are probably disproportionately likely to be overlooked by this provision because they will not necessarily be vocal.

I return to the questions raised by the noble Baroness, Lady Thornton: why would you object if you do not know what you are objecting to? What will happen if you do object? Will you receive any help? Currently, best interests assessments are required for DoLS detentions but, as I understand this, where a person does not object they do not get to see an AMCP. If they are in a care home, it is the care home staff, but in hospital and community settings the responsible body can use evidence from other assessments to make a determination for somebody. What is the evidence base for this? Do we know how many people currently object to their care and treatment? Why is that considered a sufficiently robust basis on which to make this a criterion in law? There is something deeply flawed and deeply wrong about this.

Amendment 59 may seem a bit strange on the face of it. It inserts a requirement to keep a record of refusals of authorisations. One of the things that the Select Committee of your Lordships’ House found was that the evidence base for DoLS is very sketchy. I have to make it clear that the Select Committee’s report was put together and came out just around the time of the Cheshire West ruling. In the light of that ruling, the number of applications shot up. We have never had a robust evidence base for the way DoLS work. I agree with the noble Baroness, Lady Hollins, that this is not going to close the Bournewood gap, but we should at least try to cover up some of the deficiencies there have been in the past. Therefore, trying to get together some basic stats and information, including how many times things like DoLS have been refused, is important.

I know, as will other noble Lords, that among professionals, or rather among stakeholders, there was a big discussion prior to Cheshire West about whether having lots of DoLS applications was an indication that in fact you were a good provider or whether that would somehow be indicated by the fact that you had none. That is not the right calculation; you can argue it either way.

We still need to get to the bottom of the transparency of the decision-making around this. That was my reason for tabling what might seem to be a rather strange amendment.

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[Baroness Stedman-Scott]

The noble Baroness is pleased with me; that makes me worried.

The amendments from the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt of Kings Heath, would mean that the referral to an approved mental capacity professional would also be required in the following circumstances: if any person interested in the person’s welfare does not wish them to receive treatment at the place, if any other person interested in the person’s welfare makes a request, or if there is reason to believe that an approved mental capacity professional should carry out the review. I am assured that the Bill is already explicit—where it is reasonable to believe that the cared-for person does not wish to reside or receive care or treatment at a place, an approved mental capacity professional must consider their arrangements. If an objection is made on the person’s behalf by a family member of the person or someone who is interested in their welfare, we would generally consider this to constitute a reasonable objection. We will provide detail—including examples—of when an approved mental capacity professional should complete a review in the code of practice. We plan to set out in detail where this would apply in the code of practice but it will include complex cases such as arrangements proposed for people with acquired brain injuries, and people in independent hospitals receiving mental health treatment.

While I understand the intention of the amendment tabled by the noble Baroness, Lady Hollins, the effect would be that any objection by any person with an interest in the person’s welfare would trigger a referral to an approved mental capacity professional. In short, this would mean that anyone could trigger a referral. An acquaintance from social media or a distant relative would be able to raise an objection. While this might be appropriate in some cases, there may be others where it would not represent the person’s wishes and feelings. As currently written, the amendment would undermine the purpose of the duty, which is to ensure that the views of the person are central to the process. I am sure that noble Lords agree that a focus on the views of the cared-for person is vital. That is why the Government have made this core to the new model.

The amendment in the name of the noble Baroness, Lady Finlay, would require a referral to an AMCP when others have expressed concerns, when an authorisation is being justified because of risk to others, or when the arrangements involve restrictions on contact with named persons. I thank her for raising these points and we will consider this carefully for the code of practice. I also hope I can provide reassurance that the Bill only enables authorisation of arrangements that give rise to a deprivation of liberty necessary for the purpose of receiving care or treatment. We would not ordinarily expect the liberty protection safeguards to be used to authorise a restriction on contact and we will make this clear in the code of practice. I am also sure that the noble Baroness is aware that risk to others is being considered as part of the Mental Health Act review.

The noble Baroness, Lady Thornton, wants to ensure that an AMCP conducts the pre-authorisation review for everyone in an independent hospital receiving a mental health assessment or treatment. I am sympathetic to this and wish to consider the matter. Such cases should be referred to an AMCP. Detail of this will be provided in the code of practice.

We have tried to respond to all the points made by noble Lords this evening, but there is more to do. If it is acceptable to your Lordships, we should carry on talking about these issues. The Government are absolutely committed to doing this. On that basis, I hope that I may have passed the exam set by the noble Baroness, Lady Thornton, and that the noble Baroness, Lady Hollins, will be able to withdraw her amendment.

[Baroness Hollins]

My Lords, I am grateful to all noble Lords who have spoken on the amendments in this group and asked very astute questions. I am grateful to the Minister for her optimistic response, but I am not completely reassured. I disagree with her interpretation of my amendment’s intentions. I reserve the right to bring this matter back on Report after further consideration. I will certainly read Hansard carefully and look forward to any other communication which may be forthcoming from the Minister’s office. I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

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Moved by

[Baroness Hollins]

50A: Schedule 1, page 13, line 36, at end insert—
“Clinical ethics committees
20A(1) The Secretary of State must by regulations made by statutory instrument make provision for all NHS bodies to have access to a clinical ethics committee.(2) The main objective of a clinical ethics committee is to provide advice on clinical ethics to professionals on matters relating to Schedule AA1.(3) The regulations in sub-paragraph (1) must make provision for the membership, funding and constitution of the clinical ethics committee.(4) The regulations in sub-paragraph (1) may make provision to require certain cases to be referred to a clinical ethics committee, such as in cases where a dispute has arisen.(5) The Secretary of State must review the operation of clinical ethics committees and prepare and publish a report on the outcome of the review before the end of the period of three years beginning with the day on which this paragraph comes into force.(6) A subsequent report must be published before the end of each period of three years beginning with the day on which the previous report was published.(7) The Secretary of State may arrange for some other person to carry out the whole or part of a review under this section on the Secretary of State’s behalf.(8) The Secretary of State must lay before both Houses of Parliament the reports published under this paragraph.(9) A statutory instrument containing regulations under this paragraph may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

[Baroness Hollins]

My Lords, these amendments in the name of the noble and learned Lord, Lord Mackay, and myself are about mediation, conflict and decision-making. It is a complex area and made more complicated now that the Bill is being extended to 16 and 17 year- olds. Rather than taking time in your Lordships’ House this evening, I believe the noble and learned Lord, Lord Mackay, would prefer to discuss this matter with the Minister and decide whether the Bill is the right place to progress this issue. I am grateful to the Minister for already having agreed to discuss it. I reserve the right to return to this on Report if no progress is made.

[Lord O'Shaughnessy]

We have had a discussion about the issues under consideration here, which are in some ways prompted by the experience of the Gard family and their son Charlie; we are all aware of the tragic circumstances at the end of his life. We agree with the noble Baroness and my noble and learned friend that these are incredibly important issues, and we are grateful to them for tabling the amendment. However, I think this would be best pursued outside of the confines of the Bill. I give her my commitment to do that; I am keen to work with her and with all noble Lords who have a particular interest in this issue, to ensure we come to the right conclusion. On that basis, I am sure she will withdraw the amendment.

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[Baroness Hollins]

I thank the Minister and beg leave to withdraw the amendment.

Amendment 50A withdrawn.