Health Service Safety Investigations Bill [HL]

Baroness Meacher Excerpts

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

[Baroness Meacher (CB)]

My Lords, along with other noble Lords I very much welcome this important Bill, at least in principle—I think it could go one way or the other. I declare my interest having worked in the NHS for many years; I also have two doctors in my family, which, I suppose, is bound to influence my opinions somewhat.

During my years with the NHS, I was terribly conscious that it was far from straightforward for lessons to be learned across the complex web of organisations within the NHS following an incident; indeed, lessons from excellent practices in one trust somehow failed to get across to trusts around the country. We certainly have a problem. The other tragedy in our health services, in my view, is the appalling toll on doctors’ morale of investigations into complaints, so many of which lead to no further action—or in some cases lead to minor or, on occasion, inappropriate recommendations—after months of misery for the professional involved. No account seems to be taken of the huge pressures under which doctors and nurses work these days.

The blame culture that pervades the health service undoubtedly reduces staff morale and therefore the quality of service for patients—which, at the end of the day, is what the NHS is all about. This culture also reduces the willingness of doctors to be open, so we do not learn the lessons that we need to learn.

The Bill is not about doctors and nurses versus patients—quite the opposite. If we manage to reduce the blame culture, and the unpleasantness of this culture, for professionals, that will undoubtedly benefit patients at least as much as it benefits the professionals. Much will depend on the relationship between the HSSIB and other regulatory bodies. The GMC refers to Clause 12, which envisages co-operation between the HSSIB and regulatory bodies. It is not clear what this means. What do the Government intend this co-operation to involve? In particular, would the Minister be interested in exploring the possibility of reducing the blame culture more widely through the work of the HSSIB?

Of course, firm action does need to be taken where necessary. Clause 15 makes this point clear and I welcome the emphasis on limiting disclosure to situations where there is,

“a serious and continuing risk to the safety of any patient or to the public”.

The “safe space” for doctors to provide information will need to be protected, as other noble Lords have pointed out. It is absolutely priceless to this Bill.

I hope that we can discuss in Committee the possibility of a restorative justice approach at the very start of certain complaints. Of course, this has worked extremely well in the criminal justice system. It would involve a meeting between the doctor, the patient and an independent person to try to resolve the matter amicably. I think a lot of patients would welcome that approach; certainly, the professionals would. Obviously, if you cannot resolve the matter amicably you have to move on to a further investigation. I would have thought that, in many cases, to avoid the blame matter coming into play, the HSSIB would be a good place for these investigations to go.

The GMC wants greater flexibility to enable it not to waste resources on investigations which lead to no further action. At the moment, it complains, the GMC is required to investigate every one of the thousands of complaints made every year concerning doctors’ fitness to practice. I hope we can support the GMC in its wish to reduce that work and reduce the misery for professionals through amendments to the Bill.

As the Minister pointed out, the model for the HSSIB is of course the aviation safety investigation system that has apparently been so extraordinarily successful in improving safety through getting rid of the blame culture. A particularly difficult issue, I recognise, is raised in Clause 25. The clause limits disclosure to other regulators if the interests of justice in a particular case are outweighed by the public interest in doctors’ willingness to participate in HSSIB investigations and the need to secure service improvements. This will undoubtedly raise concerns in many parts, but I welcome the assertion of the supremacy of the public interest.

NHS Providers proposes that the disclosure provisions be more tightly drawn, limiting disclosure further than envisaged in the Bill. It is concerned about Clauses 17 and 19, and I am inclined to agree with its argument. It argues that it cannot be right for a doctor to be compelled to give information to the HSSIB when they would be committing an offence if they did not do so, and to give that information on the understanding that they are acting within a safe space, and then for the information to disclosed to other investigating bodies. This seems to me to be a very serious issue, and I am sure we will come back to it in Committee.

The Parliamentary and Health Service Ombudsman argues that the HSSIB should be required to disclose information to it because the lack of disclosure could prevent it carrying out an effective investigation. It seems to have managed fine up to now without the HSSIB helping it, so I have no sympathy, I have to say. I would be very concerned if the safe space aspect of HSSIB were weakened. That would surely negate the whole point of the organisation, inhibit openness on the part of doctors and others, and limit the potential for learning lessons. In my view, we really would have scored an extraordinary own goal. Again, we will no doubt return to this issue.

Finally, I support the call from the Royal College of Surgeons in its helpful briefing for the remit of the HSSIB to extend to non-NHS services in the independent sector. That proposal is supported by the Independent Healthcare Providers Network. I understand that the Government have a reason for not including this at the moment because of the Paterson report but, like the noble Lord, Lord Hunt of Kings Heath, I hope that at least we would include an enabling power in the Bill. However, I am much more persuaded by the noble Lord, Lord Scriven, who spoke very powerfully on the basis that we do not need to wait for the Paterson report at all and that the remit of the HSSIB should be extended to the independent sector where it is caring for people not under the NHS. My reason for supporting the surgeons’ proposal comes from my experience as a Mental Health Act commissioner when I used to visit private and independent hospitals as well as NHS ones. It is so clear in my mind that the very worst services that I ever visited were in the independent sector. If we leave that out, we really have not done very well.

Like other noble Lords, I regard the Bill as having great potential. I just hope that we can play a constructive role in making sure that that potential is achieved.

Queen’s Speech

Baroness Meacher Excerpts

Tuesday 22nd October 2019 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I shall speak on health issues in the Queen’s Speech and in principle on a pressing problem that needs government action but does not appear in the Government’s agenda.

I welcome the Health Service Safety Investigations Bill, with its focus on learning and not attributing blame or finding fault. This could transform morale in the NHS, which is fundamental to staff retention and high-quality care. However, it will achieve these benefits only if the blame culture of the many other NHS monitoring bodies is adjusted accordingly. I applaud the Government for that initiative.

The social care proposals, unfortunately, do not reflect the urgency of the situation for older people, those with mental health problems in particular, others and the NHS itself. Several other noble Lords have referred to this problem, in particular that there is no timeframe for the substantive proposals and legislative plans in this area to respond to this problem. Can the Minister give the House some assurance on that issue if at all possible?

I welcome the commitment to issue a mental health reform White Paper by the end of the year, which will pave the way for reform of the Mental Health Act. Can the Minister assure the House that legislation in that field will come forward in this Session?

I hope to contribute to work in these areas, but today I will focus on a health issue that could save the NHS billions of pounds and precious consultant time and which, in my view, should have been included in the Queen’s Speech. On 1 November 2018 medical cannabis was rescheduled and recognised as a medicine for the first time in 50 years, having been used as a medicine for thousands of years before then. However, the job to make medical cannabis available to patients has hardly begun. A year on, only two patients have an NHS prescription and 30 have a prescription from the private sector. In Germany, in marked contrast, medical cannabis was legalised in 2017 and in the following year 95,000 prescriptions were written—not 30 but 95,000—and public health insurers are required to provide cover for cannabis medication. Not in the UK. In Germany, 66 conditions are covered by medical cannabis compared with only one—it could be two by now—in the UK. In Italy, 13,000 patients receive medical cannabis prescriptions; in the Netherlands, 20,000; and significantly, in Canada, which has a much smaller population than we do, 400,000. I could give figures for other countries. We hear no reports of the ill effects of medical cannabis—unlike morphine, which is highly addictive and kills people, but we merrily prescribe that every day.

In the UK, the average cost of medical cannabis for a child with epilepsy is about £2,000 per month for the family, despite medical leaders in the field, such as Dr Mike Barnes, taking no fee for their work. Dr Barnes has spent hundreds of hours hacking through bureaucratic red tape and inertia for no fee. The high cost is due to the crazy rules which require medical cannabis to be imported on a named-patient basis for just one month at a time. The Government need to address this urgently. Bulk importation would slash costs. Cultivation licences are urgently required so that the medicine could be supplied locally and, again, more cheaply.

The Government need to remove cannabis medicines from the “specials” category and enable GPs to prescribe. Only then will the UK begin to come into line with the 50 other countries where medical cannabis has been legalised and patients are rapidly gaining access to the medicine they want and need. In all 50 countries, epilepsy sufferers are prescribed medical cannabis and in 49 countries pain sufferers benefit.

Another major problem in the UK has been the incredibly restrictive NICE guidelines. In its review of medical cannabis, NICE considered 19,491 research studies but dismissed all but four of them because they were not double-blind placebo-controlled trials. However, these trials are not appropriate to assessment of these plant products. I appeal to the Government to raise this issue with NICE so that the hundreds of thousands —probably close to 1 million—patients who suffer the unpleasant side-effects of approved drugs, or risk arrest by buying cannabis in the illegal market, can go to their doctor, get and prescription and improve their health.

In the meantime, drug science is doing its bit to tackle the problem. Professor David Nutt, notoriously sacked as chair of ACMD for telling the truth about the UK’s destructive drug laws, is one of the great experts on medicines and, in particular, medical cannabis. Drug science is doing some important work which will be launched in a couple of weeks’ time.

The NHS could save billions of pounds if medical cannabis was available at realistic prices at GP level. Hospital bed days, consultant appointments and costly medications could be saved. I hope the Minister can give some assurance about the Government’s determination to bring the UK into line with our leading European neighbours, Canada and others.

GP Services in Rural Areas

Baroness Meacher Excerpts

Tuesday 2nd July 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

I am definitely happy to look into the situation in Cumbria, but this is one reason we have increased the funding specifically to primary and community care above the rate of the general increase to the NHS. It is also why we are bringing in incentives for GPs to work together at scale through the primary care networks and why there will be seven new service specifications for this. They will include enhanced healthcare in care homes, personalised care and supporting early care diagnosis, but also local action to tackle inequalities. This will be one of the specific areas for ICSs, which will lead the way we improve social care, as my noble friend Lord Young pointed out in his earlier answer.

[Baroness Meacher (CB)]

My Lords, does the Minister expect there to be at least one doctor in each digital-first centre? If not, how do the Government expect patients to be examined when they need an examination? I do not think a machine will be able to do that.

[Baroness Blackwood of North Oxford]

The noble Baroness is quite right. The digital-first proposals have been launched as a consultation so that we can work out the funding and contract changes to ensure that we get digital-first primary care right. It can mean telephone as well as video consultations, but there would also have to be physical premises in the area to provide face-to-face consultations where necessary.

Mental Capacity (Amendment) Bill [HL]

Baroness Meacher Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 24th April 2019 Lords Chamber

[Baroness Barker (LD)]

My Lords, it has been a privilege to work again on a subject that we have now worked on several times in this House, from the original pre-legislative scrutiny and original legislation through to the post-legislative report on the implementation of the previous Bill. Apart from anything else, it shows the excellent results that can be achieved from the process that we put into scrutinising legislation and scrutinising its subsequent implementation. In light of all of that, I will say that I take a slightly different view from the noble Baroness, Lady Murphy. I think that we have done a very good job. The problem is that the legislation that came to us was fundamentally flawed, and we could not change that. But we changed the legislation where we could, and those changes will make it better.

The noble Baroness hit on two fundamental issues that are problematic. The first is the nature and scope of the Cheshire West ruling and the second is the lack of understanding of the original DoLS legislation. When it was introduced, the training for professionals—all sorts of different professionals—was lacking. Much of what has happened since has meant that we have fallen into a system that is deeply bureaucratic. A number of professionals are scared to exercise their professional judgment. Consequently, a whole bureaucracy has grown up around DoLS which, had it been introduced in the right way, would not have happened. Therefore, the noble Baroness was right to say that the Law Commission was trying to deal with that issue and could not. I have no doubt that what we have in front of us will not solve the problem. I doubt very much whether it will deal with the backlog of cases, about which people are rightly exercised.

My question is one that we were all concerned about—the resourcing for this. One of the first things that we did when we met the Bill team was to query the resourcing—half a day’s training for some doctors and no need for training for people in care homes. Much of that has got lost as we have gone deeper into the wording of the Bill. Will the Minister talk about the resourcing of training and the implementation of the code of practice? I have no doubt that, in due course, there will be further test cases that will shine a light on the deficiencies of this legislation and we will come back to dealing with the fundamental issue: how do we ensure that someone whose liberty is going to be deprived by an agency of the state can be enabled to understand their rights, and their carers enabled to understand their rights, in order that they and the professionals who work with them can ensure that everything is put in place to minimise the deprivation of liberty? If we had done that properly in the first place, we would not be dealing with the deficient legislation that we are now.

The noble Baroness, Lady Murphy, is right that we have not dealt with it, but I take some hope from a lot of the stramash, to use a Scottish word, that we have been through and the attention that has been paid to all of this by the department, by people in the sector and by the lawyers themselves. This is not the greatest job we have ever done, but what we should do today is put a marker down for the evidence that needs to be collated and gathered for the time in the future when we will, inevitably, return to this subject.

[Baroness Meacher (CB)]

I have a couple of points. Other noble Lords made detailed points about the work of this House and the contribution that noble Lords have made to the Bill—very effectively, I think. My experience, although in a sense peripheral, has been that this House has worked very effectively with both the noble Lord, Lord O’Shaughnessy, and the noble Baroness, Lady Blackwood, in their roles as Minister and with the Bill team, and has achieved a certain amount—which is all we ever expect. We do not normally expect to turn Bills upside down and back to front, but we have achieved certain things.

I will mention a couple of things for which I am grateful to the Government, if I am right that we have really seen them home. One of my concerns was the huge and growing number of people in domestic situations where very vulnerable carers are caring for very vulnerable loved ones. Of course we need some sort of safeguard to ensure that the deprivation of liberty, if it occurs, is proportionate, reasonable and all the rest of it, but I was very worried that these poor carers would have layers of bureaucracy that they really could cope with, in addition to the bureaucracy they already had to deal with. I think we had an agreement from the Government that the procedures for assessing deprivation of liberty, proportionality and the rest of it will be undertaken in the local authority’s normal care-planning process, in the work that local authority officials are already doing. That seems a very constructive way forward which will greatly benefit a huge number of carers and cared-for people. It is a small thing, but it may be quite significant.

Cannabis: Medicinal Use

Baroness Meacher Excerpts

Monday 4th March 2019 Lords Chamber

Asked by

[Baroness Meacher]

To ask Her Majesty's Government what steps they are taking to ensure that patients in need of medicinal cannabis are able to access such treatment on prescription.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)]

My Lords, government officials have been working with colleagues across healthcare and the wider system to ensure that patients can access medicinal cannabis where appropriate. Clinical guidance has been issued by the Royal College of Physicians, the British Paediatric Neurology Association and the Association of British Neurologists. Specialist doctors will consider this before prescribing, but we are clear that the decision to prescribe should be for individual clinicians to make in partnership with patients and their families.

[Baroness Meacher (CB)]

I thank the Minister for her reply. She will be aware that only about four people have received a prescription for medical cannabis since it became legal on 1 November last year. Doctors have had no training in prescribing cannabis. They need to know the contents, dosages, side-effects and everything else about medical cannabis products. The pressure on doctors with desperate patients whose standard medications are not working or are causing unacceptable side-effects is intense. Doctors urgently need government help. Will the Minister ensure that the medical director of the NHS makes specialist doctors aware of the new guidelines to be launched later this month by the Medical Cannabis Clinicians’ Society, and of the 12-module online training course already available from the Academy of Medical Cannabis?

[Baroness Blackwood of North Oxford]

I thank the noble Baroness for her question. This is a challenging area, and the evidence base is still developing. However, the Government are working hard to ensure that awareness is increasing, which is why we have asked NICE to develop guidance to be released later this year and have asked HEE to develop a training package to increase knowledge and awareness among health professionals. It is also why officials are working closely with suppliers and importers to ensure that prescriptions are filled when they are given. We understand that there is work to do on this issue and will continue to do so.

Mental Capacity (Amendment) Bill [HL]

Baroness Meacher Excerpts

Tuesday 26th February 2019 Lords Chamber

[Baroness Thornton]

My Lords, I shall speak briefly to Amendment 41A, but first I congratulate the Minister on moving such an enormous group with such coherence. She deserves at least a drink of water, if not a cup of tea. I tabled this small and modest amendment for the sake of completeness. During the passage of the Bill, the noble Lord, Lord O’Shaughnessy, gave us undertakings and assured us that issues to do with independent hospitals would be addressed in the Commons. I congratulate the Government on the fact that indeed they have been. In November, the noble Lord said:

“The Government believe that independent hospitals would benefit from AMCP involvement, and therefore our intention is to bring forward an amendment, or amendments, as required, in the Commons to deal with this issue and make sure that there is such a role for the AMCP in all deprivation of liberty cases”.—[Official Report, 21/11/18; col. 279.]


In some ways the Minister has already partly addressed my concern, which is about the fact that in many independent hospitals most of the patients will be there because of the local authority or the CCG. So the clarification that I am seeking is on whether independence is truly protected when an AMCP is appointed under those circumstances. This amendment seeks to clarify that. The Minister has gone some way towards clarifying that, but I think I need to press her a little on whether that is the case. I declare an interest as a member of a CCG that commissions many of these services. When we are looking at commissioning an independent hospital, should we be the body that also takes the decision about the appointment of an AMCP?

[Baroness Meacher (CB)]

I shall speak very briefly. I welcome very much Amendments 13 and 22 in particular in relation to independent hospitals. In Committee, a number of us raised that issue and were very concerned that independent hospitals, which are often hundreds of miles away from a person’s home, could act as the responsible body and make crucial decisions where perhaps they have a commercial interest in keeping that person on their premises.

With the permission of the current Minister, I will applaud the noble Lord, Lord O’Shaughnessy, because I feel I know that he played a key role in making sure that these amendments found their way into the Bill. The stipulation that the local authority shall be the responsible body is important. Although I understand what the noble Baroness, Lady Thornton, is saying, it seems to be a huge step forward to take the responsible body away from the independent hospital. I would like to feel that local authorities—the professionals dealing with the assessment of such cases—would have a real interest in making sure that those people returned home, if at all possible, as soon as possible. That is what all this should be about.

The other matter I will raise briefly is that of people in domestic settings, where deprivation of liberty is at stake. At our recent meeting with the Bill team we were assured that such cases would be dealt with under this new piece of legislation in the course of the normal care planning process, rather than requiring a reference to the Court of Protection. When an elderly person is caring for a demented husband or wife, the last thing they need is some bureaucratic requirement. This seemed very important, and I was delighted when the Bill team gave us an assurance that this, too, was being dealt with.

There is nothing in the Commons amendments on this, but I wonder whether the Minister could give the House an assurance that it will indeed be the case that people in domestic settings will be dealt with within the local authority planning process, and will not require a reference to the Court of Protection.

[Baroness Finlay of Llandaff]

My Lords, I apologise—I should have declared my interest as chair of the National Mental Capacity Forum at the beginning of the previous debate. Like others, I thank the noble Lord, Lord O’Shaughnessy, for having made sure that the Bill is now in much better shape than it was when it came to us.

I am very grateful to the Minister for confirming that the whistleblowing amendments are there, and in fact are, if I have understood correctly, stronger than when they left this House. I have a couple of questions for her, though. One relates to the group of people who can become approved mental-capacity professionals. I was concerned that she did not include speech and language therapists in her list. People who have communication difficulties can be extremely difficult to assess. Those with a brain injury affecting the speech area can be very difficult indeed to assess because they may also have frontal-lobe disorders, as the noble Baroness herself well understands.

I know that the regulations will be brought forward, and I hope that the Minister will be able to consider additional training—not part of general undergraduate training but additional, postgraduate training for speech and language therapists to be able to develop a full set of competencies and undergo the same training as other people. I think that, without it, we will end up with duplication of assessments and duplication of costs.

My other question relates to portability. I hope that the Minister can confirm that the portability concept, which was so welcomed in the liberty protection safeguards, remains and will be applicable so that people can move between different settings without needing a reassessment. Obviously, emergency medical treatment can arise at any time with anybody, and that is covered separately for someone who lacks capacity and must be treated: that would come under a best-interest decision-taking process anyway.

My last query relates to the determination conditions and the assessment. I have a slight concern on reading the amendments that the assessments seem to be separated from the determination. If I heard the Minister correctly, she said that the care-home managers would not be making either the assessments or the determinations. We had a lot of concern over care-home managers and conflicts of role in previous debates, and I would be grateful if she would confirm that this is my correct understanding, and that we have not had a way whereby the care-home manager can undertake the assessment, and then somebody else, based on that assessment, will make a determination, because the validity of the assessment will determine the validity of the later determination.

Those are my queries in relation to this, and the determination and assessment question relates in particular to Amendments 28 to 38, to which the Minister has already spoken.

Mental Capacity (Amendment) Bill [HL]

Baroness Meacher Excerpts

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

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)]

My Lords, throughout the progress of this Bill both the Government and noble Lords have been keen to improve the protections and safeguards contained within the reformed deprivation of liberty safeguards system so that the welfare of the cared-for person is always of paramount importance. It is that principle which lies behind the amendment I have laid for debate today.

The amendment makes it clear that any relevant person who identifies that a cared-for person is objecting to arrangements is empowered to raise the matter with the responsible body and can trigger a review by an independent AMCP. Furthermore, the amendment specifies that the responsible body must consider the views of anyone engaged in caring for the person or a person who is interested in their welfare. Importantly, this amendment is explicit that staff of all kinds can raise concerns, as well as others with an interest in the person’s welfare, and it will support staff and others, such as families or carers, in their ability to do so. I take this opportunity to thank the noble Baronesses, Lady Finlay, Lady Thornton and Lady Barker, and the right reverend Prelate the Bishop of Oxford for highlighting this very important issue on Report, and for working with and meeting me to agree a way forward.

The amendment that the Government are proposing makes it easier for inadequacies in care provision to be addressed more swiftly. Recent issues with Gosport, Winterbourne View, Mendip House and, sadly, many other cases have highlighted how important it is that family, friends and staff feel empowered to raise concerns, and for action to be taken as a result. The amendment means that if a member of staff or a family member thinks that the person is objecting and that that is not being properly considered, they can raise it with the responsible body. That body, which of course is legally responsible for authorising a deprivation of liberty, will be able to use that to judge whether an AMCP should therefore complete a pre-authorisation review. Being able to raise such concerns directly with the responsible body is particularly important as it means that staff and others can raise concerns without having to go through those who may be directly involved in the care or treatment of the person. That will enable people to feel supported and more confident to take such action.

The Bill already requires that an AMCP completes the pre-authorisation review if it is reasonable to believe that the cared-for person does not want to reside or receive care or treatment at a place. However, I agreed with noble Lords on Report that we should have something in the Bill which is explicit about the sorts of things the responsible body must consider when making this determination so that staff and families feel supported in speaking up. That is what this amendment achieves. I should add that the Government are committed to ensuring that the measure created by the amendment forms part of the necessary training and support ahead of the implementation of the new system.

Noble Lords will note that this amendment relates to the pre-authorisation review process. We understand that it will also be necessary to make sure that the ability to trigger an AMCP review is in place as part of the ongoing review process. Due to time constraints, we have not been able to table an amendment on this subject now, but I commit that the Government will return to this issue at the Commons stages of the Bill.

I again thank noble Lords for raising this issue and for working with the Government to produce this amendment. I hope the amendment satisfies the demands that noble Lords rightly made to give family and staff a higher profile in raising issues and to include that in the Bill. I beg to move.

[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.

NHS: Specialist Services in Remote Areas

Baroness Meacher Excerpts

Tuesday 11th December 2018 Lords Chamber

[Lord O'Shaughnessy]

My noble friend makes an excellent point. The number of CCGs is reducing over time, as they tend to merge. Of course, they are increasingly coming together into integrated care systems, which cover a larger geographic community. Every one of those makes sure that people have not only community care but specialist care available.

[Baroness Meacher (CB)]

My Lords, how many of the 3 million people who face the closure of their general practice in the coming year are in remote areas where they have a long way to travel to a hospital? What do the Government plan to do to ensure that some form of health service is available to those people? Telehealth can help, but people often need an examination.

[Lord O'Shaughnessy]

The noble Baroness is quite right. There is an urgent need to recruit more GPs. We continue to be committed to that. I am sure she will be pleased to hear there are more GPs in training than there ever have been. We are also providing a £20,000 salary supplement to GPs who go and practise in rural areas.

Mental Capacity (Amendment) Bill [HL]

Baroness Meacher Excerpts

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

Moved by

[Baroness Meacher]

3: Schedule 1, page 5, line 33, at end insert—
“(1A) This Schedule does not apply to deprivation of liberty processes in a domestic setting, arrangements for which must be undertaken under the Care Act 2014.(1B) This Schedule does not apply to deprivation of liberty processes where a dominant reason for the deprivation of liberty is the treatment of an underlying condition covered by the Mental Health Act 2007, except in exceptional circumstances.”

[Baroness Meacher (CB)]

My Lords, my noble friend Lady Murphy, who added her name to this amendment, apologises because she unfortunately cannot be here as she is not in the country.

Like other noble Lords, I thank the Minister for really listening to the serious points that have been made by noble Lords across the House and for taking things forward substantially since we started this work.

The two issues that I want to raise are, first, that it may be unhelpful to include within the LPS system cases where there may be a deprivation of liberty in a domestic setting and, secondly, that it may be helpful to all concerned if the Bill makes it clear as far as possible—and I know this is difficult—where the boundary lies between the Mental Health Act and the Mental Capacity Act. I will discuss these issues in turn. Their only common feature is that they concern two groups of people whose deprivation of liberty issues might best be dealt with outside this Bill.

Turning to the question of people in domestic settings, we should probably start with the Supreme Court’s judgment in P v Cheshire West and Chester Council, which has been referred to many times, which set the acid test of when a deprivation of liberty is occurring. Importantly, it lowered the threshold so that deprivations of liberty can also occur in domestic settings. This is absolutely right. It is perfectly possible to envisage cases where abusive relatives may be depriving a family member of their liberty in an inappropriate, disproportionate and even cruel way. A system to deal with such situations is absolutely necessary—I am not questioning that for one minute—and that system must ultimately have a process involving access to a court to determine disputes. The question is what system is appropriate for such cases and how far it can go to try to avoid references to court wherever possible, because these things can be very distressing for relatives and others involved.

Your Lordships will be aware that some informal carers consider the LPS system to be too expensive and an intrusion on family life. My noble friend Lady Murphy and I are—I was going to say “inclined” to agree with them, but we actually very much agree with them. Which system would provide a proportionate and effective protection of the liberty of people in domestic settings is what this amendment is all about.

The British Association of Social Workers, which represents the best interest assessors and others involved in deprivation of liberty cases at present, proposes that a new statutory definition could exclude home situations and domestic arrangements from a deprivation of liberty, thus removing the current expensive practice whereby the Court of Protection has to authorise these to make them lawful. In this scenario, the safeguarding provisions of the Care Act 2014 would be drawn on to protect people’s liberty within domestic settings.

We hope that between the Lords and Commons stages of the Bill—I do not think anything can be done before Third Reading—the Government will consult on this question and come up with very clear amendments to this Bill and to the Care Act 2014 regulations in order to establish a proportionate and effective system to deal with liberty issues in domestic settings. Both will be necessary.

I will give an example to clarify the real importance of proportionality. Under the safeguarding procedures, an 85 year-old caring for her 89 year-old husband with severe dementia, who feels she can manage only if her husband stays in one room, will have a stream of people calling to assess the needs and potential risks which might be involved. Nine different people may be coming to the house—the poor woman does not know who they are or what they are there for. In our view, she should not have to deal with yet more bureaucracy if it can possibly be avoided. It can be avoided if the safe- guarding professionals are able to assess the deprivation of liberty issue alongside—and within the same visit as—the other assessments. The Government will need to consider the definition of “domestic setting” and to determine whether this includes supervised living arrangements, which, of course, are not care homes. Again, that is a matter on which we need to defer to the Government to work out between the two Chambers.

I turn now to the dividing line between the Mental Health Act and the Mental Capacity Act, as amended by this Bill. Unlike DoLS, which are always based on the best interests of the individual, LPS may result in a person being deprived of their liberty, primarily where there is a risk of harm to others. In such cases, the best interests of the others who may be harmed must be taken fully into account, even at the risk of limiting the liberty, and indeed the best interests, of the individual who may cause the harm—one wants however to avoid that as far as possible. The two groups who come to mind are those with Lewy body dementia, and a small number of people suffering from autism. Sub-paragraph (1B) of our amendment would result in such cases being assessed under the Mental Health Act apart from in exceptional circumstances—I was persuaded that that was an important sub-paragraph to include within any amendment. These assessments would be done by people with experience of assessing risk resulting from disorders of the mind. They would be well equipped to assess deprivations of liberty and their necessity in these particular cases.

In my discussions with Sir Simon Wessely, who is leading the Mental Health Act review, and quite separately in a meeting with two of Sir Simon’s colleagues on the review, I came away clear that it would be helpful to flag up the need for further work on this issue. The Law Commission had proposed that,

“risk of harm to others”,

should be an additional possible reason for detention under their “necessary and proportionate” test, and this was explicitly written into their draft Bill. Interestingly, the Government omitted the relevant text from their Bill.

Recently, the Government said in passing that “risk to others” will be a basis for detention, but this will be set out in the code of practice. I hope the Minister will agree that this really is unsatisfactory, unless the code of practice sets out that detention on grounds of risk to others will not be dealt with in this Bill. One could probably do that in the code of practice, but not the opposite. Is that in fact what the Government have in mind?

This is the issue where the outcome of the Mental Health Act review could relate directly to this Bill. The review reports on 12 December, and no doubt the Government will know the conclusions some days before that. I urge the Minister to try to ensure that work is done to produce an amendment to this Bill, clarifying the position of these relatively small groups of people who might best be assessed under the Mental Health Act rather than under this legislation.

The issue of stigma was raised earlier, but even the Royal Family are trying to address stigma with regard to mental illness. One should not put groups of people under the wrong legislation as a method of dealing with stigma, as it will not deal with it.

As the Minister made clear in our meeting, the best interests test is clearly set out in the Mental Capacity Act, and that carries forward into the Bill. That is absolutely right and important, but this is the most powerful argument for excluding “risk to others” as a criterion for deprivation of liberty under the Bill. These two situations—deprivation of liberty issues in domestic settings and deprivation of liberty due to a risk to others—require an appropriate judicial body for determining challenges to authorisations of deprivation of liberty. The judicial body needs to be accessible to enable participation in the proceedings of the person concerned, the speedy and efficient determination of cases, and the desirability of including medical expertise within the panel deciding the cases, when that is necessary—but not when it is not, which is important.

I hope that the Government will consider widening the scope of mental health tribunals to include a limited number of mental capacity cases as discussed here. The tribunals could be named mental health and capacity tribunals. In many cases, the judge of such a tribunal could determine the case on the papers without the involvement of the full tribunal. Sir Simon made the point to me that we do not have sufficient psychiatrists in this country, and we do not want a great backlog to build up simply because there are not the people to do the job. He seems to think that we have an abundance of judges—that would have to be checked; I do not know about that. These two important issues have not been given adequate attention. I beg to move.

[Baroness Thornton]

My Lords, we on these Benches recognise that the noble Baronesses, Lady Meacher and Lady Murphy, have been persistent in raising these issues throughout the course of the Bill. They are absolutely right that these issues have to be addressed and that they are not covered adequately; the briefings we have had suggest that they are not. The reason that possibly we have not been able to develop enough of a head of steam on this is that we have been focusing on other issues in the Bill, which we will come to. The Minister may not be able to resolve this immediately, but I hope that he will recognise its importance and bring forward a solution.

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I hope that with that reassurance, as well as the reassurance that we will be able to consider the consequences of Sir Simon Wessely’s review, the noble Baroness will feel adequately reassured that these issues are being actively considered and that we will have the opportunity to do something about them. I hope that she will therefore feel able to withdraw her amendment.

[Baroness Meacher]

My Lords, I thank the noble Baroness, Lady Thornton, for her helpful comments and the Minister for his considered and careful response and for his commitment to give really serious consideration to both of these issues in the gap between the deliberations of this House and those of the other place. I sincerely want to thank the Minister for all that, and on that basis I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

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[The Deputy Speaker]

My Lords, Amendments 16 and 16A appear to be alternatives, so Amendment 16A will be moved only if Amendment 16 is withdrawn or disagreed to.

[Baroness Meacher]

My Lords, I put my name to this amendment and I very strongly support it. Having been a Mental Health Act commissioner for many years and having visited independent hospitals as well as NHS hospitals and other establishments, I remember those independent hospitals as being the most alarming environments that I ever visited. Very often, the biggest problem was indeed the conflict of interest. People would get into those hospitals and be treated, and that was all good, but whereas in an NHS hospital the pressure all the time, from the day of arrival, is to plan the exit and aftercare in the community, once those hospitals had got the person better they had a lovely ride. The patient was there and was no trouble, no longer had symptoms and was miles—maybe hundreds of miles—from their family. They did not get visits. The conditions in which those people were held were shocking, and the degree of the deprivation of liberty was often deeply shocking. Did they go out in the grounds? Probably not. Did they go out for walks? Probably not. Any kind of a sense of liberty could be lost, not just for days, weeks or even months, but for years. We would do our tiny best, but the fact was that we might get round to one of those hospitals every two years. It was inadequate to say the least. I therefore urge the Minister to take this very seriously. We are worried about care homes, which are probably local and have the family nearby, if there is one. They can be a problem, but this is on another scale and of another degree of severity, so I strongly support this amendment and urge the Minister to consider it.

[Baroness Finlay of Llandaff]

My Lords, I, too, have put my name to this amendment. My noble friend Lady Meacher has laid out very clearly some of the problems and conflicts of interest that can arise. One of the difficulties is deciding which will be the responsible body. If the place where somebody is treated is quite a long way from whoever commissioned their care, it can create real problems for a local authority or a clinical commissioning group, which might be funding outside the range of common care for somebody to be some distance away. That is why we have to decide which is to be the responsible body, and that responsible body must take those responsibilities seriously. The advantage of the responsible body being a designated NHS trust is that the private hospital is likely to have consultant-level staff who are likely to have an NHS contract somewhere at another trust, which may be nearby, or if they are part of a specialised group they will be subject to a degree of oversight, appraisal and so on within that specialist area. They are less likely to have local GPs who would be answerable to clinical commissioning groups. One just does not know. They have to go to one or the other. The most dangerous of all would be to have what one might term a mixed economy of a responsible body in some situations and a clinical commissioning group or local health board in another.

In Wales, things are a little different because the local health board covers the hospital sector and the community, so we have clearly defined geographical boundaries with much easier lines of answerability. My feeling is that we need to plump for one. I hope that the Government will, and I can see that there may, on balance, be advantages in saying the designated NHS trust is the responsible body.

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[Lord O’Shaughnessy]

The reason is that although the deprivation of liberty would take place in that institution, every single case would be examined by an AMCP. The pre-authorisation review and scrutiny would be carried out by the AMCP. They would have the ability to examine the case, to speak to the person and all other relevant interested persons, and to challenge, if necessary, the circumstances of the deprivation of liberty or the care that had been put in place.

To take the hierarchy of decision-making in a care home, for example, the arrangements are made by, but not carried out by, the care home manager. They are referred to the responsible body for preauthorisation review, and if there are concerns of a problem at the level of the responsible body—an objection on behalf of the person or on behalf of somebody who cares for or is connected to them—it would go immediately to the AMCP. In a sense, this vaults the decision-making process beyond the responsible body and, as the noble Baroness, Lady Finlay, pointed out, there are particular issues over which body ought to take responsibility and go straight to, effectively, the last port of call before the Court of Protection. It provides that degree of oversight and challenge in these cases.

[Baroness Meacher]

A concern is that a lot of these people lose touch with their communities and families—they are often a long way from them. Is the assumption here that if somebody objects, then the AMCP would get involved, but that otherwise the hospital management might remain responsible?

[Lord O’Shaughnessy]

That is a perfectly reasonable question, but the AMCP would absolutely look at every case. There would not need to be an objection raised. I was just explaining the hierarchy for non-independent hospital cases. It would be, in a sense, going to the second-highest port of call for scrutiny that we are considering in other cases to highlight the seriousness of it. There would not be that gatekeeper point which the noble Baroness is worried about.

Cannabis: Medicinal Uses

Baroness Meacher Excerpts

Thursday 1st November 2018 Lords Chamber

[Lord O’Shaughnessy]

It is important to state that GPs will not be able to prescribe it; that is part of the new regime. On the specific issue of pain management, the interim guidance from the Royal College of Physicians says there is no evidence to support its use for treating chronic pain. In the meantime, NICE will be providing clinical guidance in about a year’s time, which will take a broader view. So it should not be the case that specialists are providing it in this area—the evidence does not exist and therefore the costs will not occur.

[Baroness Meacher (CB)]

My Lords, I applaud the Home Secretary for finally recognising the therapeutic value of medical cannabis. We know that about 1 million patients up and down the country will be queueing up for these medicines. I very much understand the Government’s narrow approach, but can the noble Lord assure me that Ministers will make available to doctors the comprehensive review of medical cannabis research from the National Academies of Science, Engineering, and Medicine in America? This showed conclusively that there is substantial evidence that medicinal cannabis is valuable for the alleviation of pain—in particular neuropathic pain—and that it does not cause psychotic illness.

[Lord O’Shaughnessy]

We are, thankfully, now taking an evidence-based approach. The Chief Medical Officer said in her statement that there is evidence of therapeutic benefit from cannabis-based products, and that is why they have been rescheduled. However, we need to move cautiously. We know that the active ingredient, THC, is linked to psychotic illness and other things, so we need to make sure that, as we move ahead, its use is properly controlled and that the benefits always outweigh the risks for any patient who takes it.