Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts

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

[Baroness Thornton]

The noble Baroness, Lady Finlay, has done the Committee a great favour. The previous group of amendments was about whether care managers should do this at all. This group is about how they do it, which is a fair question to ask. I have three points to make, and they run like a stream through the Bill. The first is, if care managers have powers and responsibility, how will that work? Will they be qualified and, if so, how? As my noble friend Lord Hunt stated on the first day of Committee, many care homes do not even have registered managers. They are very small and are not capable of doing this. Secondly, who decides and who pays? I appreciate that the amendments in the name of the noble Baroness, Lady Finlay, are exploring how care home managers would manage, but some amendments in this group actually water down even further the rights and responsibilities relating to deprivation of liberty.

[Baroness Tyler of Enfield (LD)]

I have a fair degree of sympathy with the sentiment behind this group of amendments. It is right that the Committee looks at what an appropriate role for the care manager might be. We have not got it right yet and it is clear from the debate so far, and the representations received from the sector and from people who deal with this day to day, that there must continue to be some sort of more independent element in the assessment. It cannot simply all come down to the care manager. However, I equally have some sympathy with the idea which was partly behind the Bill. We need better integration between care planning and the difficult decisions that have to be made about deprivation of liberty.

That is why we must explore further what an appropriate role might be. I am not quite sure what it is. Is it simply making referrals or some sort of co-ordination? I share the concerns of other noble Lords about dilution of safeguards, conflicts of interests and all that, but equally we must make sure that the care manager has an appropriate role and is not left out of the picture. We are talking about a very important sentiment.

I welcome what the Minister said in response to the previous group of amendments about the position he has now come to on including 16 and 17 year-olds and putting the cared-for person at centre stage to ensure that they are part of the consultation. I particularly welcome what he had to say about changing the language of unsound mind.

[Lord O'Shaughnessy]

I thank noble Lords for a concise but incisive debate on this group of amendments. As the noble Baroness, Lady Thornton, said, this is really about the role of those organising assessments for the deprivation of liberty and about who is responsible for pre-authorisation reviews. As has been mentioned by the noble Lords who tabled them, many of these amendments specify that pre-authorisation reviews must be completed by someone who is not employed by an organisation involved in the day-to-day care of the cared-for person or in providing any treatment to that person.

Paragraphs 12 and 13 of the schedule outline that, in all cases, arrangements must be authorised by the responsible body, which is either a local authority, hospital manager, CCG or local health board. It is our intention that only the responsible body, or an individual working on their behalf, will conduct the pre-authorisation review. Currently, senior social workers will often review DoLS applications when they are received. Similarly, we expect that, under the liberty protection safeguards, those for care home cases will be completed by a senior social worker. There are circumstances in which the responsible body is also the organisation that delivers the day-to-day care of treatment—and that is one of the concerns raised about conflicts of interest. This will usually be the case when NHS organisations are the responsible body, but it will also be the case for authorisations in local authority-run care homes.

Unfortunately—although I understand the motivation behind them—the amendments tabled by the noble Baronesses, Lady Jolly, Lady Thornton, Lady Murphy, Lady Barker and Lady Finlay, would make it harder to satisfy the pre-authorisation review requirement where the responsible body also delivers the day-to-day care and treatment; this would be especially so for smaller NHS bodies such as some trusts and CCGs. It would mean such bodies having to hire people from outside organisations specifically for the role, which could introduce complexity and lead to delays.

Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts

Monday 15th October 2018 Lords Chamber

[Baroness Barker]

My Lords, again I preface my remarks by saying that these amendments were drafted when the role of the care home manager was less clear than perhaps it is now. Nevertheless, they take us to the important point about determinations on mental capacity and the requirement to make sure that they are evidence based. In the Bill as it stands, a huge amount of discretion is given to care home managers and people involved in care to determine whether someone has capacity. We do not believe that that is right. Determining whether someone has capacity is difficult to do and something for which a great deal of training and experience is required. We keep coming back to what would be acceptable levels of training and qualifications to exercise that determination.

Amendment 21 seeks to provide that there should be an evidence base and that those making the capacity assessment should go through it and be ready to justify their decisions accordingly. I will go back to a point and reiterate it, although it must be rather boring: a DoLS assessment is different from a care assessment, and whoever makes and records such assessments should know that they are challengeable in court, which is a big responsibility.

Amendment 22 again endeavours to make sure that the person carrying out the assessment of capacity should be properly qualified, a point I have made before. I do not think that the Bill as it stands is sufficiently robust about the level of professional training needed and therefore this is a matter to which we should return.

Amendment 25 in a way follows on from our previous discussion. With this Bill we will move into a new position where the assessment of capacity is not as clearly specific to the situation as it is under the Mental Capacity Act. We are also moving towards a position in which assessments can be rolled over for longer periods. I am not saying that that should not happen and I take absolutely the point that a number of the assessments being required under DoLS are unnecessary. When someone has had a diagnosis of dementia, for example, their capacity to make decisions may not fluctuate or change, but we need to be altogether a lot more precise in the terminology being used in the Bill. It is not just a change in someone’s condition but may also be a change in their circumstances which has led to the deprivation of liberty. We are bringing in a new test to show that things are necessary and proportionate. I do not think that it is that clear or that it will clarify the decisions which are going to have to be made. This is an attempt on our part to move away from what we believe to be a position where the subjective judgment of care providers would have been given too much weight in the determination of capacity. The amendments on that issue are probing in nature and I beg to move.

[Baroness Tyler of Enfield (LD)]

My Lords, I rise to lend my support to Amendment 21 tabled in the name of my noble friend Lady Barker and to speak to Amendment 22, which is tabled in my name. Amendment 22 is essentially about who should be able to determine whether an individual is, as it currently states in the Bill, “of unsound mind”. That is the terminology being used, but I would prefer to see terms like a “disorder” or a “disability” of the mind. That is one of the three key authorisation conditions. Perhaps I may say again how very pleased I am that the Minister has indicated his willingness to look at some new language so that we do not use the term “unsound mind”, which in my view is stigmatising and has no place in today’s society.

I return to Amendment 22. Currently, the authorisation arrangements in this part of the Bill state that a medical assessment has to be made but do not state who has to make it. It is likely that most people would assume—indeed, it may well be that the Government are assuming it and no doubt the Minister can reassure us on the point in his response—that a medical assessment needs to be carried out by a registered medical practitioner. However, it would be helpful and reassuring to have that made clear in the Bill. The report published earlier this year by the Joint Committee on Human Rights is clear that, in order to comply with human rights law, any deprivation of liberty under Article 5 requires,

“objective medical evidence of a true mental disorder of a kind or degree warranting compulsory confinement, which persists throughout the period of detention”.

Given the requirement for “objective medical evidence”, my contention is that there needs to be a guarantee in the Bill that only a registered medical practitioner with appropriate training has the power to determine whether someone has an unsound mind or mental disorder, depending on which language is going to be used.

[Baroness Thornton]

My Lords, I will speak to two amendments in my name in this group, although I may also come back on what has been said.

Amendment 23 concerns supported decision-making and is based on Clause 12 of the Law Commission’s draft Bill. The amendment would require a clear determination,

“made on an assessment that steps to establish supported decision making are not practicable”.

It states:

“Steps to establish supported decision making are practical if, in relation to decisions about their personal welfare or property and affairs (or both), a cared-for person— … is aged 16 or over, and … has capacity to appoint a person to assist them in making those decisions”.


Amendment 24 concerns the restriction of defence and is based on Clause 9 of the Law Commission’s draft Bill. It states:

“The assessment must include … a description of the steps which have been taken to establish whether the cared-for person lacks capacity”.


NICE recently released guidelines on what it thinks the Bill should say regarding supporting a cared-for person:

“Support people to communicate so that they can take part in decision-making. Use strategies to support the person's understanding and ability to express themselves in accordance with paragraphs 3.10 and 3.11 of the Mental Capacity Act”.


NICE also recommended:

“Practitioners should make a written record of the decision-making process, which is proportionate to the decision being made. Share the record with the person and, with their consent, other appropriate people. Include: … what the person is being asked to decide; … how the person wishes to be supported to make the decision … steps taken to help the person make the decision … other people involved in supporting the decision … information given to the person … whether on the balance of probabilities a person lacks capacity to make a decision … key considerations for the person in making the decision … the person’s expressed preference and the decision reached … needs identified as a result of the decision … any further actions arising from the decision … any actions not applied and the reasons why not”.


These basic and important matters were included in the Law Commission’s draft Bill but not adequately included in this Bill. I am pleased to be part of this group and able to raise these issues. I will let my noble friend Lord Hunt talk about Amendment 50ZA.

Mental Health Units (Use of Force) Bill

Baroness Tyler of Enfield Excerpts

2nd reading (Hansard): House of Lords
Friday 7th September 2018 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, I strongly support the Bill and I know that it has strong support from Liberal Democrats generally. I pay tribute to Steve Reed, who introduced the Bill in the other place, and to the noble Baroness, Lady Massey, for the way she introduced it. To clarify, I too will not be bringing forward amendments. I fervently hope that the Bill reaches the statute book as quickly as possible.

The Bill is a major and much-needed step forward in reducing the use of force in mental health units across the country. I am pleased that we have cross-party support on this point. The provisions in the Bill for greater transparency, oversight and accountability will lead to vital improvements in the care and protection of children, young people and adults who are experiencing a mental health crisis, and to ensuring that their rights and protections are made as robust as possible.

When I looked at the evidence for the Bill to say why it is so timely, I looked at the figures about the use of restraint. They have been going up very significantly in recent years, despite statutory guidance saying that restraint should be used only as a last resort.

When I looked at the figures, I was perturbed to see that children and young people under the age of 20 seem to be subject to the use of force four times more than adults in mental health in-patient units—a point made also by the noble Baroness, Lady Massey. I was concerned, too, to read that girls and women are subject on average to double the number of restrictive interventions experienced by boys and men. Clearly, not only will such restraint be frightening and potentially dangerous but it can retraumatise women and children who may have experienced violence and abuse. I will return to that point later.

Above all, I hope that the Bill proves to be a fitting tribute to the life of Seni Lewis, a young man who tragically died following prolonged physical and mechanical restraint by 11 police officers called to assist healthcare staff back in 2010. Sadly, nothing can bring Seni back, but I hope that the passing of this Bill brings some meaning to those tragic events.

I was struck when reading about that dreadful incident to learn that Seni had been admitted as a voluntary patient, but, following his family’s departure and his becoming increasingly frightened and disoriented, the police were called by hospital staff but his family were not contacted. That is very concerning. Seven years later, an inquest jury unanimously concluded that multiple failures in care had led staff to call the police and that the restraint used by officers was excessive, unreasonable, disproportionate and therefore contributed to Seni’s death.

An issue that I want to highlight today, and which the Bill goes a long way to address, is patient awareness and involvement and the involvement of families. In reality, most patients and their families do not understand their rights in relation to the use of force or even what type of restraint may be used. In some settings, it is clear that force is routinely used without adequate involvement of the patient or their representative in decision-making. Advocates are not routinely involved in post-incident reviews. I hope that the Bill, through Clause 4 and, even more so, in guidance, will be able to rectify that.

Noble Lords have already referred to the inadequate training that currently takes place, with an emphasis on painful techniques rather than de-escalating a situation. Much can be done to improve training and to move away from using combative and uncompassionate approaches towards a much greater focus on de-escalation.

I look back at what the Care Quality Commission said about training in 2017:

“Wards where the level of physical restraint was low had staff trained in the specialised skills required to anticipate and de-escalate behaviours or situations that might lead to aggression or self-harm”.


Those are important points.

There are a number of other points that I want us to probe as the Bill goes through. As I said, we might be able to cover them in the guidance. The noble Lord, Lord Adebowale, has mentioned a number of them, so I do not want to repeat what he said. Ensuring that each mental health unit policy includes a commitment to reducing the use of force needs to be spelled out. Ensuring that a post-incident review occurs to establish the patient’s perspective following the use of force is incredibly important and has not happened nearly enough up to now. Ensuring that patients’ legal rights to advocacy are communicated to them and their families is also important. I also think that, in order to ensure accountability and transparency, parliamentary oversight is really important. We have a critical role if progress is to be made towards reducing the use of force through the annual statement. It is there in the Bill, but there is an issue about timing. It is really important that the annual statement that, as I understand it, the Secretary of State will be obliged to make will be so timed to include the annual statistics produced by, I think, NHS Digital, so that we can carry out good and proper scrutiny. I think that that is extremely important.

I shall finish by saying a few things about the situation for children, young people and women in particular. I have already made some reference to this. When I was looking at the statistics about the scale, the frequency and the impact, I was really alarmed. Frankly, I was very alarmed when I read that, back in 2016, more than one in six in-patient CAMHS providers did not know how often patients were being restrained and how this compared to benchmarks from previous years. If we do not even know that, that is really worrying. I was really concerned to see that children and young people seem to be subject to the use of force four times more than adults over 20. That seemed really alarming to me. Often, these incidents of restraint—I think this relates to adult patients—happen in the first week of admission, a long time before things have settled down.

In terms of gender, I have already mentioned my real concern over the figures for girls and women, who experience, on average, double the number of restrictive interventions. Again, I was frankly surprised to read that; I do not know why, but I was. I want to understand more about why that happens and what we need to do about it, because it seems to me that that is not a situation we should allow. I then looked at the impact of this and realised that it is happening in secure settings—non-mental health settings—in secure children’s homes, secure training centres and young offender institutions. So there is a lot for this Bill to address.

I looked back at what Ofsted had to say on the matter back in 2012. Ofsted made it clear then that restraint should usually be used as a last resort, never as a punishment; that staff should always be trying to calm things down, to de-escalate; that it should not be used by staff just to keep good order and control. Extremely importantly—this is the point I wish to emphasise—restraint should never be used on very young children, children who had only just come in to care, disabled children, children with mental health issues and children who have been sexually abused. That is one of the reasons why this report is so very important and why I feel so strongly about it. That was 2012. In 2016 and 2017, the Children’s Commissioner’s findings from her visits to medium, secure and forensic in-patient settings for children and young people were indicating high levels of restraint and seclusion in units with a learning disability specialism. She found:

“There is no evidence base for the effectiveness of prone restraint in reducing the frequency or intensity of behaviours that challenge. It is a hugely traumatic and damaging experience for children and their families”.


I hope that someone can give me reassurance on my final point, which has been raised by people who are working very hard to ensure that we get the Bill right. I hope that the Minister can give me explicit clarification and reassurance that the Bill applies to children—that it applies to all ages. If so, that is fine, we can all be reassured, but there seems to be an element of doubt and, for the reasons I have set out, I think it is terribly important that we know that children and young people are covered by the Bill.

Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I have listened to the debate and have ended up feeling slightly puzzled. If we are looking at how we improve the quality of life of “P”, what they experience day to day in how they are looked after is what influences that quality of life—in other words, how well the care plan is planned and executed. It cannot be just about the planning phase but about how well it is executed and how that execution of the care plan is monitored, day to day and week by week. In a care home, the person ultimately responsible for care plans has to be the manager because you must have a vertical structure, even though the plans may well be written by staff at a different level. If a person is in supported living, someone will be responsible for overseeing the care and provision in that supported living arrangement by dint of it being supported. Therefore, that must also be planned for and it will not be a care home manager but somebody else overseeing their care.

I can see that there is enormous concern over care homes. We all know that there are some excellent care homes and we have all, sadly, encountered care homes that are not excellent, where one would have concerns about their ability. If we are trying to drive up a person’s experience and quality of life, and make sure that what is done is necessary—because there is no other way of managing them—there need to be restrictions proportionate to the problems that they pose. I add here that we must consult and make every effort to listen to the person. We have that in another set of amendments later.

It may be that our grouping of amendments at this stage is not right because there is so much that interweaves between them. The worry is that if we then say that the people on the ground and the care plan are not the main part of the assessment, we go back to somebody basically helicoptering in, doing an assessment, seeing how they are and going again and leaving approval—that may be for a year—without any pressure to constantly review. Later amendments seek to put pressure on to review whenever the situation changes—to make it a more dynamic situation that really reflects that people deteriorate. Fortunately, some sometimes improve but most of the time you are faced with deterioration.

The other problem is that local authorities are, we know, incredibly short of finance. We know that they already cannot cope with the burden of assessments that they are being asked to carry out. I cannot see how asking them to take back the role and possibly do three assessments rather than six will tackle the problem of the number of people needing to be assessed and thought about being far greater and not matching—I think it never will match—the resources available.

It is easy to say that we need more people to do this but realistically the number of trained and experienced people is just not there. We have to find another way forward. There is a tension because whoever does the assessment may have a conflict of interest, whether about funding the care or receiving the income from the care. Somehow we need a system that improves the quality of life of the person and is subject to scrutiny more often than just on the occasions that the assessment is done initially or when it is reviewed after a fixed time.

I wonder whether a group of us needs to go away, sit down and really try to work this through with worked examples. I should declare that at one of the meetings I had in Wales we used worked examples in different settings. When we started to work through it for supported living arrangements—that was the table I was on—it became easier to see how it could work and how the triggers could work. I am not saying it was a perfect solution. I think the intention of these amendments is superb but I worry that they might not solve the problem.

[Baroness Tyler of Enfield (LD)]

My Lords, I was not going to intervene on this group of amendments but I have listened carefully to all the points that have been put and they have all been absolutely excellent. There is a tension here, as the noble Baroness, Lady Finlay, just said. My main reaction, particularly when I read the letter from ADASS—I shall not read it out again; I have it in front of me—was of real concern. As the noble Lord, Lord Hunt, said, they are not the sort of people who say these things lightly. They do not scaremonger. They do not exaggerate. They make very carefully calculated judgments, as you would expect of people at that level. I read the letter with great concern.

I was equally concerned when I read the briefing, as mentioned earlier, from the Relatives & Residents Association. One phrase really resonated with me, about the association’s great concern that too often we were asking care managers to be judge and jury about decisions in which they were involved. That is how it was expressed. The noble Baroness, Lady Finlay, made some excellent points. We have to find a way through. It would be genuinely helpful if, as in her proposition, there was time to think about those who will be most involved, as they must be, in care planning for these very vulnerable people, and a sufficiently independent element in arrangements so that people feel that care home managers are no longer judge and jury. I do not think we are there yet. I cannot articulate it at the moment but we must work together to secure a slightly different way forward.

[Baroness Barran (Con)]

I echo the appreciation of the noble Baroness, Lady Tyler, of the explanation of the noble Baroness, Lady Finlay, of the choices we face between the care home manager, who in the best cases will know “P” well, and the local authority assessor, who, as was said, might be parachuted in. It underlines the need for the now-familiar new paragraph 17(2) to be well thought-through and implemented. It is clear that the Bill’s intention is for this to be one of the critical safeguards of how this all works in practice, along with the scrutiny role of the responsible authority, which we will no doubt cover in detail.

Amendment 11 in the name of the noble Baroness, Lady Hollins, raises an important point about supported housing and care homes. It raised in my mind a slightly different question, which may have occurred to other noble Lords: do we need more clarity in the Bill on how it applies in domestic settings? For example, when someone who is normally cared for at home is in a care home for a short stay, perhaps because their carer is in hospital, what is the position in the home once the protection of liberty safeguards have been authorised? I wonder whether my noble friend could consider whether there is a need to clarify exactly the role of the safeguards in domestic settings and how they interface with the Care Act and other bits of legislation that would apply in such cases.

Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, to intervene fairly briefly, it is important that we remember that the current DoLS system has effectively fallen over. We have 108,000 people currently waiting to be assessed, so we have to do something. We cannot leave it running so there is an urgency to come up with some way forward. I remind the Committee that, whenever somebody is in a place of care such as a care home, the deprivation of liberty safeguards application—form 1—is a request for standard authorisation and has to be completed and sent in. That form asks about the purpose of the standard authorisation, and for a relevant care plan to be attached. It also asks why less restrictive options are not possible, and other things. So a degree of assessment is already going on at the care home and these forms are sent in. They are then sent to somebody to authorise them.

I worry that, in some of the briefings that we have had, it looks as though the care home manager will be able to authorise in totality, whereas, as I understand it—the Minister may correct me if I have this wrong—the care home manager will still be required to have the responsible body authorise. That responsible body will be able to look—and one would want them to look—at objections that may come forward from somebody. It is to be hoped they will go and visit if they feel there is a discrepancy between the care plan submitted and the original care and support plan that came from the local authority, which may have been involved in the pre-placement assessment that went on.

The idea behind these new approvals is that there is portability: the person may reside in one place, then be moved to hospital, go to outpatients, spend time in hospital and then come back to the care home. Within that portability, however, there is a requirement to review, if the circumstances change. We will come later to amendments that look at discrepancy between the care plan and the care and support plan as submitted. In other words, these are things that should trigger red flags in the mind of the authorising body, rather than the authorising body just being a rubber-stamping exercise, which is, I think, a misunderstanding that there may have been. If it is a rubber-stamping exercise, there are all kinds of dangers in that. Somehow, we have to filter out those people who really need an in-depth assessment and review from those people where the current processes are just burdensome, time-consuming and not contributing to improving their care. That filtering is really difficult. I offer that in the debate at this stage because it is worth looking at these forms, which I hope will be improved because there is not that much room to write on them.

[Baroness Tyler of Enfield (LD)]

My Lords, I make a brief intervention, primarily to underline the importance of two points that the noble Lord, Lord Hunt, made when introducing his amendment. Like my noble friend Lady Jolly, I fear we have no alternative other than to carry on and scrutinise this Bill. The reasons for doing something have just been set out very clearly by the noble Baroness, Lady Finlay, but I retain two really key concerns which I raised at Second Reading.

The first—referred to by the noble Lord, Lord Hunt—is that of timing and understanding the relationship with the review of the Mental Health Act. I understand that it is due in the autumn—I am not quite sure when—together with amendments to the Mental Capacity Act, given that both Acts relate to non-consensual care and treatment. It seems that the overlap between the two systems is one of the reasons why the current system is so complicated, and why so many staff struggle with it. Frankly, it is why I struggle with it so much. There must be real concerns that changes to address problems under one system will have unintended consequences for the other. Clarity is needed from the Government over when patients should be subject to one Act over the other, so that, in the words of Sir Simon Wessely, chair of the Mental Health Act review,

“arguing over the framework does not get in the way of delivering the care that the person needs”.

I could go on at length—I will not, your Lordships will be pleased to hear. I have just one more thought on this. In addition to the need for clarity on when the Mental Capacity Act or the Mental Health Act should be used, it is really important that patients do not find that they are deprived of their liberty by both Acts at the same time. There are examples of this happening, particularly when a patient has both a mental disorder and an unrelated physical disorder.

That is my first point. My second point, which was made very cogently by the noble Lord, Lord Hunt, is about the consultation that is taking place with the sector. Like everyone else, I have received a large number of briefings in the past few days. Frankly, it has been difficult to take them all on board. I have done my best. I was particularly concerned by a survey that was published only a couple of days ago by an organisation called Edge Training. I do not know it personally, I do not know exactly what else it does, but I do know that it was a survey of 900 people and nearly half the respondents were best-interests assessors, with the rest being primarily social workers, health professionals and independent mental capacity advocates. I will not go through what they said, other than to say that there were really very high levels of concern—80% this and 90% that—particularly in relation to the new roles being placed on care home managers, the potential conflicts of interest, plans to charge care home managers with deciding whether it is in a resident’s best interests to have an advocate if they lack capacity to request one, and the lack of a specific requirement to consult the person themselves about a proposed deprivation of their liberty.

My conclusion from all this is that the sort of consultation that should have gone on with the sector for a change such as this, which really has to work—this is not political, it is about something that has to work on the ground and people who do this have to understand it and feel that it does work—cannot have happened to the extent to which I think it should have happened, and that has real importance for the pace at which this can be taken forward and the consultation and implementation timescale.

[Baroness Barker]

My Lords, I just want to share the thoughts that I had over the summer, when we had a very long time to look at this proposal. I have been wrapping my head in wet towels looking at this legislation, trying to work out what it is all about, and to answer a key question: why this Bill now? I am still not happy that I have the right answer.

The noble Baroness, Lady Murphy, referred to the Mental Capacity Act as a “monstrous” Act—the DoLS part of it. But let us be fair, when the Select Committee did its review, we found that the Act was held in quite high regard; the problem with it was that it was not properly understood and that had caused problems with its implementation. It is true that we said in the Select Committee report that there needed to be an absolute root and branch review of DoLS, but we prefaced all our recommendations for the review of the Act on one other premise, which has been ignored by the Government. We said that one of the reasons that we saw for the failure of the Act to be properly implemented was that there was no central ownership of the Act and no single body responsible for its implementation. The Government have chosen to ignore that. Instead, they have shoved responsibility for the MCA on to the CQC, where it does not get specialist attention. There is nothing like the attention paid to the Mental Capacity Act that there is to the mental health legislation, and yet if it is not properly implemented, people can be deprived of their liberty.

--- Later in debate ---

[Lord Cashman]

My Lords, I too support Amendment 2 in the name of my noble friend Lady Thornton, and the consequential amendments. I am grateful to her for bringing her personal experience to this and reminding us of the young individuals involved. This amendment and the subsequent amendments are to be welcomed. By including 16 and 17 year-olds, it offers better safeguards to those who are not served well at the moment. The amendment would see 16 and 17 year-olds protected by the LPS. It would simplify the system, would bring clarity and ensure that their rights under Article 5 of the European Convention on Human Rights were therefore protected. For those reasons and many more, I support this amendment and the subsequent amendments.

[Baroness Tyler of Enfield]

My Lords, I rise briefly to support this group of amendments. I strongly support bringing 16 and 17 year-olds within the scope of the Mental Capacity Act, and support the proposed amendments to the authorisation and safeguards scheme. I will raise a couple of points, and I would be grateful if the Minister were able to provide some answers or reassurance.

First, clarity will be needed on the role of those who currently have parental responsibility, and how that will fit in with the proposals that are being put forward. Secondly, we need to make sure that there is a fully co-ordinated and joined-up approach across a number of different pieces of legislation. I have already talked about the join-up between the Mental Capacity Act and the Mental Health Act, but I am conscious that, when we are looking at 16 and 17 year-olds, we need to look also at other legal mechanisms that authorise a deprivation of liberty, such as Section 25 of the Children Act 1989, and at how the model dovetails with legal frameworks for the provision of care and support, such as education, health and care plans under the Children and Families Act 2014. So I would ask for some reassurance that someone is looking at the join-up with other relevant bits of children’s legislation.

[Lord Hunt of Kings Heath]

My Lords, I would like to follow that up. Clearly, the Government accepted in principle that these provisions should extend to 16 and 17 year-olds but then entered the caveat that,

“changes will need to carefully consider wider rights”,

as the noble Baroness has said. The Government said then that they would consider these matters carefully before bringing forward legislation. The question I would like to ask is: how far has that work got, and is there a prospect of seeing legislation in the reasonable future in relation to it, or is this our opportunity? Other opportunities may not come for some time to come. I realise Ministers are reluctant to commit themselves to particular legislation, but it would be helpful to the House if the Minister could at least give some indication of the work that is now being undertaken and when it is likely to come to fruition.

--- Later in debate ---

Moved by

[Baroness Tyler of Enfield]

3: Schedule 1, page 6, line 4, leave out “is of unsound mind” and insert “has any disorder or disability of the mind”

[Baroness Tyler of Enfield]

My Lords, the essence of this amendment is about language and use of language—in particular, the term “unsound mind”. I think we would all agree that language is important; it sends very important signals. Many noble Lords raised this point with passion at the Second Reading debate. I was pleased that the Minister’s helpful letter of 24 July referred to the debate about “unsound mind” and made clear that the Minister was sensitive to the points made and would welcome views. I guess this amendment is my way of putting forward my views.

The fact remains that, despite growing awareness and acceptance of mental illness, stigma and discrimination remain a regular experience of people with mental illnesses and their families and can put people off seeking help. We were given to understand that the use of the term “unsound mind” within the Bill was to ensure that it was in line with the ECHR—but this was written in the 1950s. Many people, both inside this Chamber and outside, have expressed serious concerns about the inclusion of this language in the Bill in 2018. Frankly, it perpetuates very unhelpful negative stereotypes. I would contend that the phrase “unsound mind” is out of place in today’s society; it is out of place in legislation being looked at in 2018; it is stigmatising and has no clear clinical meaning; indeed, I would say it is offensive to many.

Therefore, my amendment proposes that, in paragraph 2(2)(c) of Schedule 1 to the Bill, the term “is of unsound mind” is replaced by “has any disorder or disability of the mind”. This terminology is already a well-established term in the Mental Capacity Act and has proven to be compliant with the ECHR without, in my view, having anything like the same stigmatising connotations of “unsound mind”. A disorder or disability of the mind, I am informed by the Royal College of Psychiatrists, has a clear clinical meaning. It is well understood by clinicians and should be no more stigmatising than saying someone has a physical disability.

I am aware that the BMA, which supports not using the term “of unsound mind”, has put forward a proposition that this term should be reconsidered and experts and patient groups consulted to find an alternative to it. The BMA may be right, but I felt that, for my starter for 10, I wanted to put forward terminology that I thought was right. I am sure that others will be able to improve on it.

To conclude, above all this Bill must put the people most affected centre stage—that means some of the most vulnerable people in society, as we have already heard. In my view, it is simply not good enough to continue using terms that lawyers and drafters of legislation may find helpful—it might help them fit things in with other bits of legislation and other conventions—but which causes harm and distress to those we are all trying to help. I believe there is a real and welcome opportunity to change the narrative and discourse in a positive way, and this amendment is a way of taking that opportunity.

[Lord Cashman]

My Lords, it is a great pleasure to support this amendment. Language is crucial. Several times during the day I question whether I am of sound mind, and I think that the concept of unsound mind is extremely dubious. I welcome the amendment from the noble Baroness, Lady Tyler, because it seeks focus and clarity, substituting for “is of unsound mind” the words,

“has any disorder or disability of the mind”.

I believe that the Royal College of Psychiatrists has supported this approach. The BMA also suggests that there should be a different approach because the term “unsound mind” reinforces stigma and discrimination, and equally it is outdated. Its continued use merely perpetuates negative stereotypes of vulnerable people, particularly when we are trying to get over those stereotypes in order to get people to speak more openly at the beginning of their problems—our problems—with mental health issues. Therefore, it is a pleasure to support this amendment.

--- Later in debate ---

[Lord Woolf]

In the list of people whose help the Minister is going to seek, may I suggest that parliamentary counsel be invited to consider whether it is possible, through the use of language in the Bill, to ensure that there is no gap?

[Baroness Tyler of Enfield]

I am grateful to the Minister for his response, particularly the last bit, which I found a tiny bit more reassuring. I thank everyone who has contributed. It has been an excellent short debate and we have benefited hugely from highly distinguished medical and legal expertise.

I understand that the Minister may have concerns around risks and gaps, but we need—and he has agreed to bring forward—examples and evidence of what these gaps and risks are and why they could not be dealt with by language that is perhaps slightly different from that which I proposed. There is a huge opportunity to be seized here. I have made it very clear that the wording I propose may well not be quite right. I am sure that others could come up with better wording that meets the Minister’s concerns, which I understand are legitimate. I am grateful that he said he will think further and come back with further evidence. I should like to put down a marker that I will wish to return to this on Report.

Amendment 3 withdrawn.

Mental Capacity (Amendment) Bill [HL]

Baroness Tyler of Enfield Excerpts

2nd reading (Hansard): House of Lords
Monday 16th July 2018 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, I am pleased to be speaking in this debate, conscious that I am a novice in this area of mental health legislation but very grateful that there are so many other noble Lords across the House with deep expertise in it. To start on a positive note, I welcome the intent behind the Bill and believe that it goes some way towards ensuring that the current high levels of bureaucracy, workforce hours and cost that have been a part of mental capacity assessments since the Supreme Court ruling in the Cheshire West case are offset by a more balanced ability to plan and deliver timely care while still safeguarding patients.

However, I have real concerns about its timing and its interaction with the Mental Health Act, and because it is silent on some of the key recommendations of the Law Commission report. I hope that at the end of this debate, the Minister will provide some explanation for the variance with the Law Commission proposals and the unexpected timing of the Bill, which seems to have taken many by surprise.

A quick glance at the statistics reveals the scale of the problem. Last year, more than 200,000 DoLS applications were made—a number certain to rise. The average time taken to complete the assessments was 120 days, with a backlog of more than 120,000 cases. The Law Commission has estimated that the annual cost of all this might end up being close to £2 billion, so there is clearly a major problem here that needs fixing.

The proposals in the Bill, essentially allowing NHS staff rather than the Court of Protection to oversee when and where to deprive people of their liberty, on the face of it seem to strike a better balance between care planning and the provision of what has too often been a box-ticking procedural safeguards process. The Bill comes at the same time as the recommendations from the Joint Committee on Human Rights only last week that a new legal definition of deprivation of liberty should be debated and defined, which could,

“produce greater clarity and would extend safeguards only to those who truly need them, whilst respecting the right to personal autonomy of those who are clearly content with their situation, even if they are not capable of verbalising such consent”.

All the briefings I have received from those working in the sector make it clear that the lack of such a new legal definition is a serious omission and risks jeopardising this legislation’s chance of successful implementation. That all adds up to my overall feeling about this Bill: that we risk acting with indecent haste before all the relevant pieces of the jigsaw are in place to allow a coherent and joined-up new system to be put in place—and I know that that new system is much needed. I note that Sir Simon Wessely, chair of the Mental Health Act review, said as much in a recent blog, drawing attention to the fact that at the moment some people lacking the capacity to consent to their admission for care and treatment will fall under the Mental Capacity Act and the proposed new liberty protection safeguards, and some will be detained under the Mental Health Act. But—and it is a big but—the boundaries between the two are not clear. My main concern about the Bill is that, in rushing ahead to fix the clear deficiencies of the DoLS procedures, we are creating further complexity in an area already beset with confusion and complexity. My view, like that of some other noble Lords today, is that it would have been far preferable to have a single, fully integrated Act covering both mental illness and mental capacity.

The interaction with the Mental Health Act is at the very least a messy one. There is a real tension between wanting to tackle problems with the current mental capacity law straightaway—I fully understand that—and the need to properly link it with plans to improve the Mental Health Act. I know that the JCHR has called on the Government to move quickly on reforming the Mental Capacity Act, but this should not prevent close consideration of the two pieces of legislation and how they relate to each other. In response to the Law Commission’s proposals, I noted that the Government stated that they would await the Mental Health Act review’s recommendations on interface issues, including how reformed DoLS would interact with the Act. I find that quite a confusing statement. Could the Minister say whether and how the Government plan to fulfil that undertaking?

I am also concerned, as are others, that the focus of the Bill is on deprivation of liberty alone, rather than the wider amendments to the Mental Capacity Act proposed by the Law Commission. In particular, the important recommendation to put particular weight on a patient’s wishes in any Mental Capacity Act best interests decision-making process is absent, as are any additional provisions about advanced consent. As I have said, I really feel—others have said it far more eloquently than me—that this is a missed opportunity to treat vulnerable people with the dignity and respect that they deserve in what we all agree is a very difficult situation.

I turn to the issue of including 16 and 17 year-olds in the Mental Capacity (Amendment) Bill, as originally proposed by the Law Commission. The main reasons for this are twofold. First, using parental responsibility to authorise Article 5 deprivation denies 16 and 17 year-olds the uniform statutory protections available to people aged 18 and older. Secondly, including 16 and 17 year-olds would create greater certainty and standardised practices for this age group than currently exist. It is all a bit technical but, as I understand it, presently Article 5 deprivation can be authorised by four different mechanisms: parental responsibility, a court order, a police protection order under the Children Act, or the Mental Health Act.

Front-line clinicians I have spoken to are often unsure which option to pursue. This can cause delays of a number of weeks while professionals argue with each other about the most appropriate option. In the meantime, the 16 to 17 year-old is in a legal limbo, often stuck in a paediatric ward or A&E while these debates take place. The situation gets even more confusing if two people with parental responsibility disagree or if the local authority shares parental responsibility—for example, for children on a care order. This is an opportunity to make the situation for 16 to 17 year-olds much better, and we should take it.

The Law Commission’s proposals also included the very interesting idea that we follow the lead of many countries and include in the Mental Capacity Act a framework allowing people to make formal support agreements. This would hugely benefit family members of the person under the liberty protection safeguards and value their input to the process. However, the wording in the Bill is unhelpfully convoluted, and will make it more difficult for staff, patients and their families to understand.

As the Bill stands, there is a heavy burden on care home managers to manage the applications. An individual would be reliant on the motivation, knowledge and skill of the care home manager to identify deprivation of liberty and to take appropriate safeguarding steps. Managers’ level of knowledge and experience will inevitably vary enormously, resulting in an individual’s human rights potentially being neglected if a manager simply does not recognise what constitutes a deprivation of liberty and takes appropriate action. As other noble Lords have said, a major training programme would be needed, as well as significant resources for implementation.

My final point relates to the phrase “unsound mind”, which I understand is still used because of the reference to the European Court of Human Rights. This is dated terminology which is offensive and stigmatising and has no clinical value. Imagine if you learned that this was an outcome of an assessment of your parent, partner or sibling. I stress again the importance of keeping the patient at the centre of our legislation, not the conventions or convenience of lawyers. Will the Government commit to removing the reference to “unsound mind” from the Bill?

In conclusion, I return to my concern about timing and the outcome of the review of the Mental Health Act, given that both Acts relate to the non-consensual care and medical treatment of people. The overlap between the two systems is one of the reasons that the current system is so complicated, and changes to address problems under one system will inevitably have unintended knock-on consequences for the other. What is needed is simplification and streamlining, rather than incremental, piecemeal reform. There is much to do to improve the Bill; I hope that the Government will be open minded and in listening mode.

The NHS

Baroness Tyler of Enfield Excerpts

Thursday 5th July 2018 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, I congratulate the noble Lord, Lord Darzi, on securing this extremely timely debate, and pay tribute to the wonderful work and care of all staff in both the health and social care sectors. I will start with my favourite Bevan quote before someone else gets it in. Back in 1948 he said:

“Illness is neither an indulgence for which people have to pay nor an offence for which they should be penalised, but a misfortune the cost of which should be shared by the community”.


How do we reinterpret this incredibly important founding sentiment of the NHS in the modern age and over the next 70 years?

Recent polling by the King’s Fund shows that the British people have a great deal and pride in and good will towards the NHS. Despite this, securing proper long-term investment to achieve a fully integrated health and care service has sometimes felt like pulling teeth. Yes, the Prime Minister announced that the NHS would get a 3.4% yearly rise for its birthday and of course that is to be welcomed, but we cannot ignore the fact that the often-cited 4% necessary to even maintain existing standards, let alone improve and transform services, is still some way off. Sadly, as others have said, this new long-term funding settlement has so far ignored social care and public health and there is no clarity on what proportion of this money will go into mental health care—something I hope the Minister will be able to help us with this afternoon.

To meet increasing demand, the NHS will need more than just money: it will need a wholesale shift to promoting health as well as healthcare, to ensuring wellness rather than just treating illness, and to integrating health services so that they can be centred around the individual and the holistic needs of each patient. It came as no surprise to read in the Guardian last week that keeping the same doctor improves a patient’s life expectancy. This is great news so why is it so often not the case?

Turning briefly to social care, as we have just heard, continuous cuts, coupled with chronic long-term underinvestment, have left social care in a dire state. In their recent report, What’s the Problem with Social Care, and Why Do We Need to Do Better?, four leading health and social care bodies reported that to qualify for publicly funded social care, someone now needs to be 12% poorer than eight years ago. Meanwhile, informal carers continue to carry the bulk of the burden. The IPPR estimates that insufficient social care costs the NHS £3 billion a year, and with an ageing population these costs are bound to increase. If we are serious about safeguarding the NHS and its future, social care needs its birthday cake, too, and it needs to be a big one.

Turning to public health, in their recent report, The NHS at 70: Are We Expecting Too Much from the NHS?, those same four health bodies again emphasised that the most important factors in people’s health and life expectancy relate to the economic, physical and social environment in which they live. Therefore, public health must be made a priority if we are to have a healthier population.

Mental health is starting to get the public attention that it deserves. A recent Ipsos MORI poll found that the public rate it as their second-to-top health priority, which is great—but it is critical that those money increases are accompanied by mental health services that are much better integrated with physical health, community care and social care. So when the Minister winds up, perhaps he will tell us whether he feels that it is acceptable that currently only some one in four people with a mental health problem is able to access treatment, and what plans the Government have to increase this—and, specifically, what percentage of the new money announced for the NHS will go to mental health.

I conclude by saying that a good way of addressing all the issues that I and others have raised today will be to reframe the way we talk about the NHS as a national wellness service rather than one that just treats illness. I like to think that Aneurin Bevan and Beveridge would approve of that sentiment.

National Health Service: Mental Health Funding

Baroness Tyler of Enfield Excerpts

Wednesday 20th June 2018 Lords Chamber

[Lord O’Shaughnessy]

The noble Baroness makes an excellent point. The emerging science tells us that heading off mental illness in adolescence is critical to ensuring that it does not deepen and become more severe in later life, with great human as well as economic cost. At the moment, the mental health budget for children and young people does not reflect the burden that children and young people have, which is why the Prime Minister announced an extra £1.4 billion for children and young peoples’ services, as well as £300 million on top of that to support the plans set out in the child mental health Green Paper.

[Baroness Tyler of Enfield (LD)]

My Lords, the Minister has already referred to the mental health investment standard, but recent figures issued by the Royal College of Psychiatrists show that 15% of clinical commissioning groups are not following NHS England’s instruction to increase the proportion of their spend on mental health. What practical steps are the Government taking to ensure that all CCGs meet this standard?

[Lord O'Shaughnessy]

The noble Baroness is quite right in her figures: it was 85% compliance in 2017-18—175 of the 207 trusts. It has to be 100%. It will be independently audited and reported against. Indeed, interventions will take place if that does not happen.

Carers: Health and Well-being

Baroness Tyler of Enfield Excerpts

Tuesday 12th June 2018 Lords Chamber

[Lord O’Shaughnessy]

The importance of respite care is agreed by everybody. I point my noble friend to the better care fund, which provides around £130 million a year to support respite care and carers’ breaks, building on the commitment made in the Care Act 2014.

[Baroness Tyler of Enfield (LD)]

My Lords, the action plan contains a number of generalised statements about the need for health and social care professionals to have improved understanding and awareness of the needs of carers. What specific plans do the Government have to ensure that social worker training—both initial training and later professional development—contains practical guidance on how to identify carer fatigue and distress and ensure that carers receive the support to which they are entitled?

[Lord O’Shaughnessy]

The noble Baroness makes a very important point. Indeed, in the carers action plan there is a specific commitment from the department to work with local authorities to improve social work guidance in terms of spotting carers, many of whom are not even aware that they are formally designated as carers, and signposting them to the right support. There will also be an awareness-raising campaign among social workers so that they understand their duties.

The Long-term Sustainability of the NHS and Adult Social Care

Baroness Tyler of Enfield Excerpts

Thursday 26th April 2018 Lords Chamber

[Baroness Tyler of Enfield (LD)]

My Lords, in its excellent report, the Select Committee chaired by the noble Lord, Lord Patel, makes it plain that very significant investment in the NHS and social care is needed to ensure its long-term sustainability and avoid further damage both to the quality of and the access to care. Indeed, it is no exaggeration to say that the current system is near breaking point. We cannot carry on patching a gaping wound with a sticking plaster.

The recent Nuffield Trust report said that public satisfaction with the NHS is falling. The main reasons cited included staff shortages, long waiting times, lack of funding and government reforms. Primary care is particularly underfunded and overstretched, placing far more pressures further downstream on hospitals. A recent Daily Mail survey found that one in seven patients had to wait longer than a fortnight for an appointment with their GP. In a report earlier this year, the King’s Fund describes public health as dying from a thousand cuts. All the evidence shows that, to mitigate further costs, we must greatly ramp up our public health efforts to prevent disease. That was well addressed in the Select Committee report—but where is the response?

As the Select Committee report plainly stated, the issue of the workforce,

“represents the biggest internal threat to the sustainability of the NHS”,

and I want to focus most of my remarks there. As we heard in our recent debate in this Chamber on Brexit and the NHS, there are roughly 40,000 vacancies in nursing. Yesterday, the Guardian reported three times more departures from nursing than before Brexit. I was struck by a piece on Monday’s “Today” programme about GPs leaving because of the immense stress and pressure that they were under, which left patients in Plymouth regularly waiting two to three weeks for an appointment and one patient calling 93 times to be connected with her doctor. Britain has fewer GPs per person than other wealthy countries and, like nurses, they are leaving faster than they are coming. Those shortages increase the strains further down the system in the more expensive bits of the health service. A trip to the GP costs less than one-third of a visit to A&E. But nowhere is the situation more acute than in the mental health sector. Psychiatry is experiencing some of the highest vacancy rates—between 15% and 20%, with mental health nursing at 15%. In the current climate, it is salutary to note that some 40% of mental health staff come from overseas.

So what is being done about this? Health Education England’s recent draft workforce strategy provided, frankly, precious few solutions. There is a distinct lack of detail, with no modelling for the future NHS workforce beyond 2020-21. A better plan must surely look beyond the culture of short-termism to staffing solutions that can meet long-term demand, address supply issues, promote innovative and technological change and consider—this is really critical—new roles for health professionals and new ways of working for doctors and nurses. This should include applying best practice from overseas and looking at radical reconfiguration of services.

In addition, we must ensure that the workforce operates within far more efficient systems that allow people to get on with their jobs and to spend the time they need with patients rather than dealing with regulation and bureaucracy. Some of our current systems are very unproductive compared with other countries, which other speakers in this debate have touched on. It is clear that the NHS has yet to get to grips with these critical and worsening workforce issues and the current—opaque, I feel—division of responsibility between NHS England and Health Education England is not helping. Can the Minister, when he concludes, say who is ultimately responsible for the long-term planning on these key issues, such as workforce planning and productivity?

Turning specifically to mental health, what should be read into the fact that the key recommendation relating to mental health regarding parity of esteem was totally ignored in the Government’s response? To say it is not encouraging is something of an understatement. What does it say about the Government’s commitment to integrated care? The mental health investment standard is the statutory requirement to increase mental health investment in line with other services. However, recent data from the Royal College of Psychiatrists shows that more than one in 10 CCGs are failing to meet this standard. Can the Minister also say what action the Government intend to take in this area?

It sometimes feels as if we are engulfed in a veritable blizzard of new initiatives of the alphabet soup variety—we have STPs, ACOs and vanguards; I looked on the NHS website and there are a raft of others. I did not really understand what they even stood for and, frankly, it was impossible to understand how one related to another. We know the sustainability and transformation partnerships were set up to integrate health and social care across wide geographical areas, which is absolutely key to sustainability. But STPs have been told in no uncertain terms that they must prioritise cutting debt over everything else.

Achieving long-term sustainability will also need a far greater emphasis on integrated care. If I had more time—which I do not—I would give an excellent example in my own area, at the Whittington Hospital and the Highgate Hospital, of mental health and physical health having a really excellent physical health liaison service and working well together. From these small seeds longer-term change can grow, but it needs real political will and leadership.

On the big picture for future funding, I have been very interested to hear politicians of all stripes and other expert commentators talking about various ideas, including the Liberal Democrats’ long-term funding solution for the NHS and social care, which is a progressive hypothecated tax. Cross-party consensus is important and I hope that a cross-party commission will be set up. I am very rarely disappointed in the noble Lord, Lord Hunt, but I was disappointed at the beginning of this debate when he said that he did not think that was a good way forward. I think it is. We await further details from the Prime Minister on the long-term funding settlement but, frankly, we cannot wait much longer. Unlike previous cash injections that have gone into the black holes of hospital trust debt, any new funding must go to radical reform and, particularly, more resources for primary, community and mental health care.

To conclude, the time is right for a national conversation on all this; it is long overdue, which is something that I think the noble Lord, Lord Turnberg, said. The time is right for it now. The general public have responded quite positively to ideas such as an earmarked tax, as long as it is tied to deliverable promises of real improvements in the health and social care that they receive and they know what they will be getting for their money. This is where we really need to focus moving forward.