Oral Answers to Questions

Debate between Caroline Dinenage and Baroness Keeley

Thursday 18th March 2021 Commons Chamber

[The Minister for Digital and Culture (Caroline Dinenage)]

The Government recognise the importance of international touring for our creative and cultural sectors. The DCMS-led working group on creative and cultural touring, which involves sector representatives and other key Government Departments, is working through the issues to ensure that the sector gets both the clarity and the support that it needs.

[Barbara Keeley [V]]

Musicians are eager to get back to work when restrictions allow, but for those who would normally tour Europe that will require a mountain of paperwork to be negotiated both for themselves and their instruments. This is increasingly urgent as we approach the lifting of lockdown restrictions, with little time left to negotiate bilateral agreements. Can the Minister confirm that Ministers are talking to their EU counterparts about securing visa waivers to allow our musicians to tour Europe freely when restrictions are lifted?

[Caroline Dinenage]

The hon. Lady is right: the end of freedom of movement has inevitably had some consequences for touring artists. We want our cultural and creative professionals to be able to work easily across Europe, in the same way that EU creatives are able to work flexibly in the UK, and we are working very closely with the sector to consider all the available options. I have said right from the start that our door will always be open if the EU is willing to reconsider its position, but we are also working with colleagues across Government and members of our working group on our engagement with different member states. I met FCDO colleagues only yesterday once again to discuss this, and we want to ensure that touring can resume as easy as possible for UK artists.

UK Musicians: EU Visa Arrangements

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 19th January 2021 Commons Chamber

[Caroline Dinenage]

I thank my hon. Friend for that question. The negotiating team did negotiate an opportunity to come back and review this in the years ahead, so the light at the end of the tunnel is not entirely switched off. But there is quite a lot we can do between European nation states to try to make things a lot easier and straightforward. She is right to highlight that this impacts EU artists as much as it does those from the UK. We want to make their lives as easy and as straightforward as possible.

[Barbara Keeley (Worsley and Eccles South) (Lab) [V]]

As well as issues with visas or work permits, UK musicians working in EU countries risk being double-charged their social security contributions if they work in a country that has opted out of the social security co-ordination under the detached worker rules. Can the Minister set out what the Government are doing to avoid that and ensure that UK musicians do not face that financial penalty while they are working in the EU?

[Caroline Dinenage]

I am really pleased that the hon. Lady has given me the opportunity to answer that question. The protocol on social security co-ordination secured in the agreement ensures that UK nationals and EU citizens have a range of social security cover when working and living in the EU and the UK. It also supports business and trade by ensuring that cross-border workers and their employers are only liable to pay social security contributions in one state at a time. That is, obviously, very beneficial in particular to smaller cultural organisations that may not have the required cash flow to finance any duplicate payments. Member states have until 31 January to sign up to the detached worker provision. The UK continues to engage with our European counterparts via our global and international stakeholder network to encourage countries to sign up to that provision ahead of the deadline.

Arts, Culture and Heritage: Support Package

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 7th July 2020 Commons Chamber

[Caroline Dinenage]

I love an agricultural show. Sadly, they fall under the remit of the Department for Environment, Food and Rural Affairs, but in the Department for Digital, Culture, Media and Sport we are doing everything we can to support rural cultural establishments.

[Barbara Keeley (Worsley and Eccles South) (Lab) [V]]

I want to raise the survival of orchestras. The support package for organisations is welcome, but as we keep hearing it will not help thousands of freelancers—the musicians who are not eligible for Government support schemes. Other vital measures are reforms to orchestra tax relief and gift aid. To help orchestras survive and rebuild, will the Government look again at support for freelance musicians, and at the vital reforms to orchestra tax relief and gift aid?

[Caroline Dinenage]

I have met with orchestras almost weekly over the past few weeks as we try to navigate our way through some of the particular challenges that they are experiencing. We will certainly look at some of the hon. Lady’s suggestions.

Oral Answers to Questions

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 28th January 2020 Commons Chamber

[Caroline Dinenage]

The Prime Minister has set out his plans. He wants to seek political consensus and bring forward a plan for adult social care this year, and we are looking at a whole range of solutions, including free personal care. The issue we see in Scotland is that the initiative must be backed up with a huge amount of money. The money that the Scottish Government used to give to individuals covered around 50% of their care home costs and now only covers around 25%. That is why we must ensure that we address this issue with a long-term view.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

It is time to tackle unmet need, which is clear from my hon. Friends’ questions. Ministers say that they want to seek a consensus on the future of social care, but we already have a proposal with wide-ranging support, including from former Conservative Chancellors in the Lords, major national charities, and the official Opposition: free personal care funded from taxation. Will the Minister accept that the way to move things forward is for the Government to join the existing consensus on introducing free personal care?

[Caroline Dinenage]

The Prime Minister said that the Government will deliver on our promises. We will bring forward a plan for social care this year—

[Barbara Keeley]

When?

[Caroline Dinenage]

This year. However, there are complex questions to address. A Joint Committee of the Housing, Communities and Local Government Committee and the Health and Social Care Committee came up with an entirely different solution—a social insurance model—which shows why we want to build a consensus. Even the Liberal Democrats have said that they want to build cross-party consensus, but we know the hon. Lady’s view on cross-party consensus: her way or the high way.

Oral Answers to Questions

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 29th October 2019 Commons Chamber

[Barbara Keeley (Worsley and Eccles South) (Lab)]

Mr Speaker, as this is the last time that we will have Health questions with you in the Chair, I want to thank you for being a fantastic Speaker—particularly through your support for Back Benchers and ensuring that we can be heard through urgent questions.

Last week, we found that the number of people receiving publicly-funded social care has fallen by 15,000 in the past year. We know that 95 people a day die while waiting for care and that cuts of £7.7 billion have been made from social care budgets since 2010. Older and disabled people are paying the price. Labour has set out our plans to deliver free personal care for people aged over 65 who need it. We are providing dignity in old age. When will the Secretary of State give people the dignity and care they deserve, and bring forward the Government’s plans for social care?

[The Minister for Care (Caroline Dinenage)]

The hon. Lady will be aware that the Queen’s Speech announced a Bill to tackle the cost of adult social care. She will also know that the Prime Minister said on the steps of Downing Street that the Government will set out plans to fix the social care crisis once and for all. We need to get through Brexit, and Labour Members need to vote for the methods that will help us to deliver that, because we can then get on to the things in life that really matter, such as ensuring that no one will ever have to use their home to pay for their care.

Oral Answers to Questions

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 23rd July 2019 Commons Chamber

[Caroline Dinenage]

The hon. Gentleman is right: we do have a number of vacancies—a large number of vacancies—in adult social care. That is why, earlier in the year, the Government announced a recruitment campaign, “Every day is different”. It ran for a few months, with enormous success. There have been 14% more apply clicks on the relevant Government jobs site as a result, so we have just announced that we are going to expand and extend that recruitment campaign, with an additional £4 million of funding.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

Among those most affected by lack of access to social care are the 2,300 autistic people and people with learning disabilities stuck in inappropriate in-patient units because of a lack of funding for community placements. Labour, my party, has pledged to spend £350 million per year to support moving as many of those people as possible into community placements. I note that the Health and Social Care Secretary actually pledged extra funding for social care if he became Prime Minister, so will the Care Minister tell us if he now promises to match Labour’s pledge and ensure that autistic people and people with learning disabilities can live in homes, not hospitals?

Oral Answers to Questions

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 18th June 2019 Commons Chamber

[Caroline Dinenage]

The hon. Lady has often spoken very movingly in the House about her personal experiences, and she is absolutely right: abuse of vulnerable people is absolutely abhorrent. We are very determined to stop it, and we want to prevent it from happening in the first place through the tough inspection regime. We want to shut down poor-quality homes and, most importantly, we have made sure that across the country, police, councils and the NHS work together to help to protect people in the long term.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

The integrity of CQC ratings was dealt a mortal blow by the uncovering of abuse at Whorlton Hall by BBC “Panorama”. Watching the abuse on that programme is made worse by the knowledge that the abuse may have started five years ago. The unpublished inspection report from August 2015 described allegations of assaults on patients, the undocumented use of a seclusion room and the use of rapid tranquilisation not backed by an organisation policy. I do not have any confidence that the review called by the CQC will uncover the truth behind that abuse. Will the Minister agree to set up an inquiry into this matter, so that we can establish whether the care regulator is fit for purpose?

[Caroline Dinenage]

The hon. Lady is absolutely right: abuse of any kind must not be tolerated, and we have heard horrific accounts of abuse that must be tackled. That is why in May, we announced much stronger commissioning oversight arrangements, where people are put in place out of area. Local commissioners must visit regularly. The CQC has commissioned two independent reviews, and the findings and recommendations of both will be published. The point is that opportunities to intervene have been missed, and we must be open and transparent in getting to the bottom of what happened.

Whorlton Hall

Debate between Caroline Dinenage and Baroness Keeley

Thursday 23rd May 2019 Commons Chamber

[Caroline Dinenage]

The Care Quality Commission is taking the situation incredibly seriously. Some massive concerns were raised last night, and Paul Lelliott from the CQC apologised and said that the matter would be very thoroughly addressed and investigated by its team.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

I appreciate the Minister’s response, but the Secretary of State really should be here to deal with this. The abuse shown on the BBC “Panorama” programme last night was appalling, and it should never have been allowed to happen. The fact that it is eight years since the Winterbourne View scandal and nothing has changed should be a source of shame for the Government. Rather than warm words—the Government seem to be getting good at warm words these days, but little else—will the Minister take personal responsibility and tell us what she is doing to ensure that this never happens again?

The abuse that was shown was tantamount to psychological torture, with residents sworn at, threatened and intimidated. Other residents were violently restrained or deliberately hurt by care staff. As the Minister has mentioned, other cases—such as Mendip House and Thors Park—show that this is not an isolated incident; it is part of a pattern of cruel and callous behaviour in such institutions. There is only one sure way to end this abuse, and that is to close down the institutions and move people into supported placements in the community.

Many of the people who were abused at Whorlton Hall were hundreds of miles from their families. Does the Minister recognise that cutting people off from their support networks allows such abuse to carry on without anyone noticing? Labour has pledged £350 million extra per year to ensure that people can move from such institutions and be supported in the community instead. Will the Minister match that commitment?

In 2011, the Government pledged to end the use of units such as Whorlton Hall. Eight years later, however, there are still more than 2,200 people detained in inappropriate institutions. More recent targets, which were less ambitious, were also missed. After years of broken promises, autistic people, people with learning disabilities and their families cannot trust the Government to deliver on their promises. Is it not time the Government brought in an independent commissioner to oversee the closure of such units?

[Caroline Dinenage]

I do not agree with the hon. Lady that what I have said today is about warm words; it is about action. The CQC report that came out on Tuesday was commissioned by our Secretary of State to really shine a light on the matter. We are shining a light on some of the most distressing information so that we can address it—so that we cannot brush it under the carpet and speak warm words about it. Not only did we accept all the CQC’s recommendations, but we made more recommendations of our own that we intend to put into practice.

In answer to some of the hon. Lady’s questions, I am very clear that as far as possible, people should be treated in a community setting. If they have to go into an in-patient setting, they should be as close to home as possible and they should be there for the shortest possible time, with a very clear route out and plan for their future. To help to deliver that, we have committed £4.5 billion to community funding as part of the NHS long-term plan, and I expect a good proportion of that money to be spent on investing in the community settings that we need.

[Barbara Keeley]

Why not close them?

[Caroline Dinenage]

The hon. Lady is saying from a sedentary position that we should close settings, but we are talking about very vulnerable people who have complex needs and require special care, and we need to make sure that there are sufficient services in the community to support them. It would be a complete dereliction of our duty and responsibility to take people out of one setting that is not working for them and put them into another setting that will be as bad, or worse.

Learning Disabilities Mortality Review

Debate between Caroline Dinenage and Baroness Keeley

Wednesday 15th May 2019 Commons Chamber

[Barbara Keeley (Worsley and Eccles South) (Lab)]

(Urgent Question): To ask the Secretary of State for Health and Social Care to make a statement on the learning disabilities mortality review.

[The Minister for Care (Caroline Dinenage)]

I would like to start by restating our commitment to reducing the number of preventable deaths among those of our population with a learning disability and to addressing the persistent health inequalities that they experience. It is completely unacceptable that people in our country with a learning disability, and indeed autism, can expect a shorter life than the population as a whole.

Each and every death that might have been prevented is an absolute tragedy, and we must not compound that tragedy by failing to learn any lessons we can that might improve the care that is provided in the future. That is why the Government asked NHS England in the first place to commission the learning disabilities mortality review programme, known as LeDeR. The principle behind it is a relentless determination to learn from these deaths and to put in place changes to the way care is organised, provided and experienced, to make a real difference locally and nationally. It means challenging often deep-rooted, systematic or cultural issues that have existed for decades. It is driven by the fact that we are clear that the quality of care offered to people with a learning disability sometimes falls very short of the standards we expect, and that is simply not good enough. The existence of the LeDeR programme testifies to our commitment to address this issue so that people with a learning disability can access the best possible care and support. The annual reports published by the LeDeR programme and the recommendations it makes are all part of this.

Over the weekend, the media reported on the findings of a draft of the third annual LeDeR report, which is due to be published shortly. In making this statement, I would like to record my deep regret at this apparent leak. It is also a regret that Her Majesty’s Opposition should table an urgent question based on leaks and, indeed, that the Speaker’s Office should see fit to grant it. More generally, the House—

--- Later in debate ---

[Caroline Dinenage]

Thank you, Mr Speaker.

With regard to the LeDeR programme, I have committed in the past and will commit once again to bringing the final report before Parliament on the day of publication, which we are told by NHS England will be in the next few weeks. Members will feel as concerned as I do about some of the things in the report that have been leaked, and I will be happy to discuss the more detailed information when the report is fully published.

[Barbara Keeley]

Well, this is a mess, isn’t it? Last year, the first report from this important review was sneaked out on a Friday, in the middle of the local election results, and this year we have read about it through leaks to The Sunday Times and the Health Service Journal. The Minister says that it is a draft that is going to be published shortly; I understand that the authors handed it over on 1 March. How long does it take the Department to turn round a draft? Clearly, somebody somewhere thinks it should be out there, because somebody somewhere is leaking it. Will the Minister take responsibility for this process and ensure that future reports are published in a timely manner? I am not happy with “shortly” or “in a few weeks”; will she tell us when the full copy of the report—not just what was leaked, first in the Sunday papers and now in the Health Service Journal—will be available?

It appears from the leak that the review has been able to consider only a quarter of the premature deaths reported to it, leaving more than 3,000 families waiting for closure—it is those 3,000 families on whom we should be focusing—and that well over a third of cases do not even have a reviewer assigned to them. That shows that, as we suspected last year, the LeDeR programme is significantly under-resourced, so will the Minister pledge now to ensure that the review has the resources it needs in future?

Last year, the Government made 24 specific commitments relating to the annual report, and 15 of them were due to be completed by now. Will the Minister update the House on the progress on those commitments?

The leak tells us that the review found that in 8% of cases the care given

“fell so short of good practice that it significantly impacted on their wellbeing or directly contributed to their cause of death”.

What is the Minister doing now to ensure that no more people with learning disabilities die early because of poor care?

Lastly, and most disgracefully—I am certainly going to mention this from the leaked report—the report says that over a period of two years, at least 19 people with learning disabilities who died had “learning disabilities” or “Down’s syndrome” given as the reason not to resuscitate them. A patient having a learning disability or Down’s syndrome is not a reason to put a “do not resuscitate” order on their care. Does the Minister agree that such an approach, if it exists, smacks of eugenics and is completely unacceptable? What action will she take to ensure that it does not continue?

[Caroline Dinenage]

This is not a mess; the Department of Health and Social Care requested that NHS England commission the whole LeDeR programme. The report is an independent document, which is very important because we are talking about people’s lives and about deaths that could have been prevented. It is really important that the work is done by an independent group and that it is carefully scrutinised, and that that scrutiny and work to look at the recommendations—[Interruption.] If the shadow Minister would like to bob up and ask some questions, I will happily answer them, but if she is going to keep murmuring from a sedentary position, I will not be able to address anything that she says.

It is so important to do this process in an independent way, because we are talking about people’s lives. NHS England says that the LeDeR report has not been published yet because it contains some serious recommendations, as have other such reports, and NHS England needs to make sure that the correct people will be responsible for implementing those recommendations and that the document can be scrutinised in the correct way before it is published. I understand that the shadow Minister is always keen to get things published as quickly as possible, and not always with the benefit of their being done as thoroughly as possible, but in this case we will not be pushed. This is an independent document and I cannot control when it will be published, but the shadow Minister can rest assured that when it is published, I will be happy to answer any questions that arise from it.

Members will feel, as I do, that recent press reports are a clear indication that we need to do more on this, and I assure the House that we recognise that. The LeDeR programme confirms how seriously we take the issue of premature mortality and differences in life expectancy. We will continue to work with partners across Government and throughout the health and social care system to consider any recommendations that improve care for people with learning disabilities and autism and address the shameful inequalities that they experience. Everybody has a right to expect effective, compassionate and dignified care. If someone has a learning disability, their expectations should be no different.

I have already stated that I do not intend to comment on the specifics of the leaked bits of the document, which is independent and has not yet been published. However, like other Members, I am particularly concerned about any suggestion that doctors have recorded learning disability or Down’s syndrome as the reason for a “do not attempt cardio-pulmonary resuscitation” order—a DNACPR, as they call it. People with a learning disability have exactly the same right to enjoy a meaningful life as everyone else, and their disability should never, ever be used as an acceptable reason for a “do not resuscitate” order. We are taking immediate steps to ensure that doctors are reminded of their responsibilities and avoid any form of discrimination. [Interruption.] The shadow Minister says from a sedentary position that doctors should not need reminding. That is the whole point of commissioning the LeDeR review. Sometimes there are systematic or cultural ways of going about things in everyday life, whether in the medical profession or anywhere else, that mean people are not treated with the dignity and respect that they deserve. The whole point of the LeDeR review is to learn from every single preventable death and to make sure that no one else suffers in the same way.

The LeDeR programme published its second annual report in May 2018, and the Government’s response, which we published in September 2018, set out a range of actions for the Department of Health and Social Care, NHS England and other national partners to help to reduce premature mortality and improve outcomes for people with learning disabilities. Many of those actions have now been completed—for example, we recently closed our consultation exercise on plans to introduce mandatory training in learning disability and autism awareness for health and care staff, and we will set out plans to move forward on that later in the year.

The latest report will no doubt reinforce what we already know: that the Government and our health and care system need to do more to ensure that people with a learning disability receive good-quality, informed and safe care. There has been a significant improvement—there has been a tenfold increase in the number of LeDeR review cases that have been covered, the backlog has improved, and in 2018-19 NHS England invested an additional £1.4 million to support the local teams to accelerate the process, as well as to train 2,100 experts to carry out reviews. The process is new, but we are pushing forward and putting in the necessary resources to make sure that we deliver on time. The LeDeR programme is there to help to achieve what we have set out, which is to make sure that those with a learning disability should never expect to receive worse health outcomes. We will respond to the full version of the report as soon as it is published.

Oral Answers to Questions

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 7th May 2019 Commons Chamber

[Caroline Dinenage]

That is a really good point. We all know that access to respite care can be incredibly valuable, both for autistic people and their carers and their loved ones. That is why we are supporting CCGs that want to invest in respite care, and we are looking more carefully at how we can direct funding to these important services.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

Eight years after the Government pledged to move autistic people out of in-patient units following the Winterbourne View scandal, there are still 2,260 people in such units, many of whom are subject to restraint, over-medication, seclusion and even neglect. Rather than reviews and warm words, will the Secretary of State now act to change things by matching Labour’s pledge of £350 million of extra funding to move autistic people and people with learning disabilities back into the community where they belong?

[Caroline Dinenage]

Of the original 2015 cohort that the hon. Lady mentioned, 6,325 people have been discharged and 476 beds have been decommissioned, but the thing is that people are still coming in. The only way we can achieve permanent, long-term cuts is if we invest in community health. That is why the long-term plan commits to an extra £4.5 billion a year for community health. Local providers are expected to use some of that to develop the right specialist services in the community to reduce avoidable admissions.

Local Government and Social Care Funding

Debate between Caroline Dinenage and Baroness Keeley

Wednesday 24th April 2019 Commons Chamber

[Caroline Dinenage]

As the hon. Lady will know, a version of the Green Paper already exists, but that does not mean that we are resting on our laurels while we are waiting for an opportunity to publish it. We are continuing to improve it and evolve it so that when we do publish it—as soon as possible—it will be in the best possible shape.

My hon. Friend the Member for Chelmsford also spoke about dementia, and about the importance of investing in dementia care and research. We lead the world in this regard, but we know that there is more to be done if we are to achieve our aspiration of being the best place in the world in which to live with dementia by 2020.

The hon. Member for North Tyneside (Mary Glindon) spoke about some of the difficulties for councils that had been addressed by “working smarter”. She also said that she thought it unfortunate that councils had had to raise council tax in order to have the money that they need. I point out to her gently that the average annual increase in council tax bills from 1997 to 2010 was 5.8% and since 2010 it has been only 2.2%—half what it was under the previous Labour Government.

The hon. Member for Lewisham, Deptford (Vicky Foxcroft) spoke about youth violence and the importance of schools, social services, voluntary sector organisations and public health bodies working together through a community-led approach to deal with it. She was absolutely right.

My hon. Friend the Member for Sleaford and North Hykeham (Dr Johnson) spoke about the challenges facing rural communities and the higher costs of delivering things such as domiciliary care. She also spoke about the importance of innovation, quality of care and being outcome-focused. She spoke glowingly about the National Centre for Rural Health and Care.

I always listen very carefully to what the right hon. Member for North Norfolk (Norman Lamb) has to say because he has done this job. He spoke about the importance of investing in prevention and said that social care must help people stay independent for longer. He admitted that this job is not quite as easy as it looks and that when he was fulfilling it, there were difficult funding decisions that had to be made. It will be no surprise to him that that continues to be the case and that nothing has changed since he left the role. It is important that he recognises that the challenges continue.

The hon. Member for Chesterfield (Toby Perkins) said that innovative choices have had to be made, that there are better services that cost less in his constituency and that the local authority has had to invest in order to save money. He did make a couple of errors, unfortunately. He mentioned that Labour councils are producing lower council tax, but everybody knows that it is actually Conservative councils that deliver better value for money, with a combination of delivering great quality services while keeping council tax lower than either Labour or the Liberal Democrats.

The hon. Members for Burnley (Julie Cooper), for Bradford West (Naz Shah), for Warrington South (Faisal Rashid), for York Central (Rachael Maskell) and for Peterborough (Fiona Onasanya) all made passionate speeches, mainly about the impact of austerity on areas of deprivation.

The hon. Member for Redcar (Anna Turley) spoke about an innovative employment hub that has grown from the loss of the steelworks in her constituency. She spoke about the Care Academy in Cleveland, which is doing great work equipping more people for roles in adult social care. She mentioned how the challenges of caring for an ageing population are being addressed at a local level. I say to her that that is something that will have to be addressed not just at a Government level, but at a local level and a voluntary level. We all have to work together to face these challenges, which are being faced the world over.

The hon. Member for Totnes (Dr Wollaston) spoke about how important it is to have cross-party and collaborative work on this issue. We all face difficult choices. For too long, adult social care has been used as a political football. Even today, the Opposition spokeswoman talked about the dementia tax once again. That is very unhelpful language that does not help us come to a meaningful consensus or to work together.

[Barbara Keeley]

Will the Minister give way?

[Caroline Dinenage]

I will in a moment.

The hon. Member for Crewe and Nantwich (Laura Smith) asked about the important issue of sleep-in shifts. The Court of Appeal judgment last summer ruled that employers are not required to pay the national minimum wage. That has now gone to the Supreme Court, the ruling of which should give clarity to both providers and employees. The Government have taken account of the costs deriving from the national minimum wage and gave an additional £2 billion of funding to local authorities in the spring Budget of 2017. We encourage employers to pay more than the minimum wage where possible, and I recently wrote to local authorities to state my view that the judgment should not be used as an opportunity to make ad hoc changes.

[Barbara Keeley]

rose—

[Caroline Dinenage]

I am just going to make a bit of progress.

The hon. Member for Glasgow North East (Mr Sweeney) highlighted the difficult choices we have had to make. By painting an even bleaker picture of how things have panned out north of the border, he showed just how difficult those choices have been.

The hon. Member for Kingston upon Hull West and Hessle (Emma Hardy) spoke movingly about her constituents, Paul and Lily. She was right to highlight the very personal cases and individual stories that every single one of us comes across in our constituency casework. If she wants to send me more details, I am happy to raise the issue with my colleagues at the Department for Work and Pensions.

The population is ageing. The number of people aged 75 and over is set to double over the next 30 years, and the number of people of working age with care needs is also growing. Some of today’s speakers have painted a picture of a social care system that is broken as a result of a lack of funding, but the truth is that while money is undoubtedly tight, if we are to face the challenges of an ageing population, we need to do more than just put more money in. We need a large-scale reform of the system if we are going to face the future with confidence that we can care for and support those who most need it. In the short term, we have put in around £10 billion of additional funding, but we will be bringing forward an adult social care Green Paper that will look at the long-term funding of adult social care.

Question put and agreed to.

Resolved,

That this House notes that despite the Prime Minister announcing that austerity is over, local authorities’ spending power per household is on course to fall by an average of 23 per cent by 2020, and that nine of the 10 most deprived council areas in this country have seen reductions that are almost three times the average of any other council under this Government; recognises that this has resulted in social care budgets in England losing £7 billion; further notes that at the last General Election Labour committed to a fully costed plan to invest an additional £8 billion in social care over this Parliament; and calls on the Government to ensure that local authorities and social care are properly and sustainably funded.

Mental Capacity (Amendment) Bill [Lords]

Debate between Caroline Dinenage and Baroness Keeley

Ping Pong: House of Commons
Tuesday 2nd April 2019 Commons Chamber

[Caroline Dinenage]

The code of practice is being worked on as we speak. It is very important that we take it forward in partnership with all the key stakeholders and those who are involved at the front end implementing the liberty protection safeguards. Once we are all content that the code of practice is robust and fully covers everything that we want it to it will then be presented to both Houses of Parliament.

This will mean that the definition will be considered regularly. It will remain up to date with evolving case law. It means that we are laying a report of the review before Parliament and that there will be a review within three years of the measure coming into force to ensure that it is working as intended. The review will extend to all the guidance related to the liberty protection safeguards contained in the code of practice and not just the definition. By regularly reviewing the code in this way, we will ensure that there is up-to-date guidance for people and practitioners and this will support the successful operation of the liberty protection safeguard system.

The amendment will ensure that the code clarifies when a deprivation of liberty does or does not apply and provide useful guidance for families, carers and professionals while also ensuring that we do not put a definition in statute that conflicts with article 5 of the convention and I ask the House for its support in this.

I shall briefly turn to Lords amendment 25A, which was tabled in the other place with the admirable aim of ensuring that the authorisation record is provided to the individual and other relevant persons in a timely manner. This followed the Government amendment that clarified the responsible body’s duty to provide information to the person and other relevant persons. Noble lords amended the Bill to specify that a record must be kept if the authorisation record is not provided immediately. If the authorisation record is not provided to the person within 72 hours then a review must be conducted.

The Government agree that it is very important to make sure that the authorisation process record is provided quickly. However, there are some issues with Lords amendment 25A that need to be addressed before it can be put into statute. For example, it does not make a specific person or organisation responsible for recording that an authorisation record has not been provided for completing a review, so the duty cannot be enforced. Government amendment (a) in lieu of Lords Amendment 25A states:

“After authorisation arrangements, the responsible body must, without delay, arrange for a copy of the authorisation record to be given or sent.”

Government amendment (b) in lieu will ensure that if the responsible body has not done this within 72 hours of the arrangements being authorised, it must review and record why this has not happened. Providing information, including in the authorisation record, is so important to ensure that people are able to exercise their rights. The Government have listened and reflected on the concerns of the other place and have brought forward this amendment. I ask that the House supports it.

Finally, I take this opportunity to put on record my thanks to the Members of both Houses. We set out to consult very widely on this piece of legislation and to listen very carefully to the concerns of both Houses. Both Houses have very carefully scrutinised this crucial piece of legislation. I also thank many of the stakeholders who have supported its development. I thank the Bill team, particularly the Bill manager Sharon Egan, and officials across the UK and Welsh Governments who have worked with the team to deliver this reform. I thank, too, the legal team and my private secretary Flora Henderson. It is through a great deal of dedication and hard work that we will be able to rectify a failing system and provide protections to the 125,000 vulnerable people for whom it currently falls well short.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

When we last debated this Bill, I was clear that Labour did not think that the Bill was adequate to become law. The Minister has just expressed her thanks, but we did make it clear that it contained a number of serious flaws and this still remains the case. While improvements have been made in the House of Lords, they do not fix many of the concerns that we still have with this Bill.

The Bill still places more power than it should in the hands of care home managers. From organising assessments to carrying out consultations with the cared-for person, the Bill means that an untrained, or an ineffective, care home manager could end up carrying out the process in a flawed or improper way.

Recently, there was a focus on the scandal of abuse that happened at the Mendip House Care Home in Somerset, with six autistic residents with complex needs. The Safeguarding Adults Review carried out by the Somerset safeguarding board revealed a host of management failures by the National Autistic Society. The registered manager of that particular care home did not address the unprofessional behaviour of a thuggish gang of male staff. This resulted in the following abuse being meted out to the residents of Mendip House: they were “ridden like horses” by staff; forced to crawl on all fours; made to eat raw chillies; and, in one horrific instance, forced to eat food spiked with mustard, which caused the resident to vomit. The resident was then made by a member of staff to drink that vomit.

People living in Mendip House had complex needs and all would have lacked capacity to make certain decisions and all required deprivation of liberty safeguards. The Care Quality Commission had not receive any notifications that DoLS had been authorised. On care planning and recording, the review report on Mendip House states:

“Care plans were very poor with no mental health or Best Interests assessments recorded... DoLS not being followed.... recording poor, plans out of date...”

The Minister has previously said that, through this Bill, the Government

“are ensuring that people’s wishes are always considered and respected, and that people are safe, cared for and looked after.”—[Official Report, 18 December 2018; Vol. 651, c. 757.]

But I have just cited a case where the care home manager neglected both care planning and safeguarding, so what steps will the Minister take to investigate what happened at Mendip House? Will she ensure that such behaviour does not continue under the provisions of this Bill, given that so much power is given to care home managers? Today is World Autism Awareness Day, and we must do more than pay lip service to showing solidarity with autistic people.

Oral Answers to Questions

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 26th March 2019 Commons Chamber

[Barbara Keeley (Worsley and Eccles South) (Lab)]

There are still 2,295 patients who are autistic or who have learning disabilities in hospital in-patient settings, despite a Government pledge in 2012 that no one would be in inappropriate settings by 2014. In 2015, the Government said they would close up to 50% of these in-patient places, and they failed to meet that pledge, too, because of a lack of social care funding. Will the Secretary of State now commit to proper social care funding for this programme and renew the pledge to end the misery of these placements by 2022?

[The Minister for Care (Caroline Dinenage)]

The NHS long-term plan has made it clear that learning disability and autism are one of the key clinical pillars in its absolute priorities. This transforming care work is incredibly important. Where people need access to in-patient services for assessment and treatment of their needs, it has to be for as short a time as possible, it has to be as close to home as possible and it has to be with a very clear discharge plan in place.

Oral Answers to Questions

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 19th February 2019 Commons Chamber

[Caroline Dinenage]

First, I welcome the hon. Gentleman to his new location in the Chamber. From that location, he might recognise that actually, there has been a failure of successive Governments to get to grips with this very thorny issue of the long-term funding of adult social care. We are the Government who have decided to tackle the issue. We will no longer put it in the “too difficult” pile, and we will be publishing this document shortly.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

But the Government are not tackling the problem of the long-term funding of social care, are they? Age UK found that 50,000 people who had applied for social care had died waiting in vain for that care in the 700 days after the Government first announced their Green Paper. How many more people will have to die waiting in vain for social care before the Government fix the crisis they have created?

[Caroline Dinenage]

I cannot stress enough how much money we have made available. The Government have given councils access to almost £10 billion—a 9% increase—to address this issue. Local authorities have a statutory duty to look after the vulnerable, the elderly and the disabled people in their area, and we have given them access to the funding to do it.

Mental Capacity (Amendment) Bill [Lords]

Debate between Caroline Dinenage and Baroness Keeley

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 12th February 2019 Commons Chamber

[Caroline Dinenage]

I do not think it is ever possible to say that. This particular area of law has always been open to legal challenge. We decided to include a definition because so many stakeholders, as well as the Law Commission and Members of the other place, thought it essential, but the wording is very specific.[Official Report, 13 February 2019, Vol. 654, c. 7MC.] It refers to what does not constitute a deprivation of liberty rather than what does, because we did not want to leave out accidentally something that could open up a legal challenge further down the line. This is where the code of practice comes into its own. It will include case studies and examples, so that those affected by the Mental Capacity Act will have a better understanding of how it works for them.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

The Minister has just mentioned case studies, and she has mentioned them before. She has circulated case studies to a few people, but they were not circulated to me or to any other members of the Committee, which I think was very discourteous. We keep hearing about things that are in the distance—over there—and will come together at some point, but those case studies have not been circulated, and they should have been.

[Caroline Dinenage]

I think that there must be some confusion. The case studies will be part of the code of practice. They will be gathered together in the document, and third-sector organisations will contribute to ensure that we cover every cohort. We must bear in mind that we are trying to cater for wildly different groups of people. The document will have to cover the young person with an acquired brain injury to whom the hon. Member for Rhondda referred, a 16-year-old who has had a learning disability since birth and the 97-year-old with dementia. It must not be the box-ticking one-size-fits-all exercise for which the current legislation provides.

We are aware that mental capacity assessments may be of particular concern to the group of people mentioned by the hon. Member for Rhondda. Assessing the capacity of people with acquired brain injuries can be particularly challenging, and will require skilled and careful consideration. Government amendments 28 to 37, which I shall discuss later, outline our intention to publish regulations in order to ensure that the assessors have the appropriate knowledge and experience.

We agree that the likelihood of capacity to fluctuate should be ascertained during the assessments, and we will expect that to be considered in the authorisation, in the length of authorisation and in the frequency of reviews. Fluctuating capacity is complex and fact-specific and deserves in-depth and detailed guidance, which is why we will include the details in the code of practice. I appreciate what the Opposition amendments are trying to do and I fully agree with their spirit, but I hope that my commitment to work with others on the code has given the hon. Gentleman and other members of the all-party parliamentary group the reassurance that they need.

Through the scrutiny of the Public Bill Committee and the ongoing engagement with stakeholders, we have identified a number of areas in which the Bill could be strengthened further. As I have said before, I firmly intend to introduce a more effective, efficient system of robust safeguards, moving away from the one-size-fits-all approach that no longer works. I am committed to doing this in a very collaborative way, and where possible to identify legislative improvements that can be made to work. I am committed to looking at this again, and as a result a number of Government amendments have been tabled that improve the Bill and the way in which liberty protection safeguards work.

Amendment 5 aligns the definition of a care home manager in Wales with that in England. The Bill as currently drafted defines care home managers in Wales as a registered manager. This amendment changes that so that it is linked to the registered service provider. Amendments 7 to 23 will remove any perceived conflict of interest where a deprivation of liberty occurs in an independent hospital. Under amendment 14 the responsible body in cases where arrangements are mainly carried out in an independent hospital would be the local authority in England and in Wales the local health board for the area in which the hospital is situated. This removes any potential misuse of power or conflict of interest in independent hospital settings. Amendment 22 outlines that in England the responsible body is the local authority responsible for the education, health and care plan or the care plan under the Care Act 2014. If a person does not have one of these, the responsible body is that in the area where the hospital is situated.

--- Later in debate ---

[Barbara Keeley]

I absolutely agree with that. Local councils face a serious resource issue, and we see a pressing of this role away to care home managers. I have got some examples with me, but I do not know whether I will have time to go through them. However, we can see that there will be a strong temptation in local councils simply to presume that the care home manager is right. We have to recognise that over-stretched professionals in local councils will sometimes simply accept the word of care staff without fully investigating the case.

In the Public Bill Committee, I talked about the recent case of Y v. Barking and Dagenham. This was the case of a young man who was placed in an inappropriate care home. Initially his parents were satisfied with his placement, but over time the quality of his care deteriorated. We hear a lot and have great concerns about restraint. That young man was restrained in that care home 199 times in two years and suffered significant harm. Y eventually got out of that placement, following a court-appointed guardian visiting and raising concerns, but it took the intervention of somebody outside the care home—that is the key thing.

[Caroline Dinenage]

The hon. Lady is making a powerful case and she talked about many such cases in Committee. Does she agree that this shows exactly why the DoLS system needs overhauling? It is not offering the required protections for vulnerable people, which is why this Bill is so urgent.

--- Later in debate ---

[Barbara Keeley]

I could not disagree with the Minister more, because what she is doing is putting people into the lion’s den. I do not know whether she is listening to me, but I am reading her a case where the difficulties arose because the local authority listened to care staff and did not listen to the parents’ objections at all. That is the difficulty. Under the new LPS system, that young man would not have had any safeguards or protection, because the care home staff would have been the people sorting out his authorisation.

[Caroline Dinenage]

Under the new system, family members and parents will be listened to, because they will be the approved person, the representative and the advocate. Their voices will be heard, which is not happening currently.

[Barbara Keeley]

It is not helpful if the Minister and I argue about this. We have had this argument enough times in Committee. She just needs to see that there is a level of concern. I am quoting a case where significant harm was done to a young person in a care home because the parents were not listened to and the care staff were.

Mental Capacity (Amendment) Bill [ Lords ] (Fifth sitting)

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 22nd January 2019 Public Bill Committees

[Barbara Keeley (Worsley and Eccles South) (Lab)]

I beg to move amendment 45, in schedule 1, page 19, line 34, at end insert—

“(2) In varying an authorisation, the responsible body may also consider—

(a) whether the cared-for person’s capacity is likely to fluctuate, and

(b) whether any restrictions imposed are necessary to prevent harm to the cared-for person and proportionate to the likelihood of that harm, and are likely to continue to be necessary for the duration of the authorisation.”

This amendment enhances safeguards around the variation of conditions by the responsible body. It indicates that the responsible body should consider whether the person’s capacity may fluctuate, and whether the restrictions which are proposed should be in place for the duration of the authorisation.

It is a pleasure to speak under your chairmanship again, Mr Austin. At least we do not have a boiling hot room to contend with.

The amendment deals with the way fluctuating conditions are addressed under the liberty protection safeguards system. The concept of fluctuating capacity is not expressly addressed or provided for in the Mental Capacity Act 2005, including the deprivation of liberty safeguards. The Mental Capacity Act code of practice recognises the steps that should be taken to support a person with fluctuating capacity to take their own decisions—choosing the time of day at which they are most alert, for instance. However, it does not indicate what should happen where an assessment is required of a person’s ability to make decisions on an ongoing basis about a particular matter. As such, the Law Commission did not consult on fluctuating capacity. However, when it launched its consultation, it received a large number of submissions on the topic.

It is clear that individuals with fluctuating capacity represent a major challenge under the current system. That is unsurprising, as capacity to consent is not a black and white issue. Everyone has varying capacity from day to day and from issue to issue. It is not reasonable to categorise people as entirely having or lacking capacity in all cases. My hon. Friend the Member for Dewsbury gave an example of how that can go wrong in practice.

Our amendment 32 would have required an assessment to be made of whether a cared-for person’s capacity was likely to fluctuate. That would have laid the ground for our amendment 45, which would allow the responsible body to take account of fluctuating conditions in varying an authorisation.

Under the current system, a deprivation of liberty safeguard must be terminated if a person regains the capacity to consent; the Mental Capacity Act makes no mention of what should happen if a person is likely to regain capacity only for a short period. That is not changed in the Bill. Under paragraph 26 of new schedule AA1, the authorisation will end if

“the responsible body believes or ought reasonably to suspect that any of the authorisation conditions are not met.”

That includes the person regaining capacity for any length of time.

There are two ways the issue can be dealt with. The first is that a new authorisation will have to be sought every time someone regains and then loses capacity, but that would dramatically increase the number of applications made. It would place more pressure on approved mental capacity professionals and on the cared-for person, who would be undergoing regular identical assessments. I understand that one aim of the Bill, as we have discussed, is to reduce the backlog of applications for deprivation of liberty. Requiring regular repeated applications for the same individual would not help to achieve that.

The second outcome is that the liberty protection safeguards will not be used properly. For example, in the case of older people with dementia whose condition fluctuates, such assessment might need to be hourly. It would simply not be practical to reapply for an authorisation every time they lost the capacity to consent. A person cannot give advance consent to be deprived of their liberty, so either they will be inappropriately deprived of their liberty through a blanket application or they will not receive the safeguards in the system because no application will ever be made. I reiterate that it does not matter, under the current system, whether a person is perfectly happy with arrangements when they have capacity. The moment that they no longer have capacity to consent, that consent is invalid. They cannot consent to any future arrangements.

Both outcomes leave responsible bodies potentially liable for breaching people’s rights under article 5 of the European convention on human rights. The Law Commission report states:

“it is not acceptable for the legislative framework simply to ignore fluctuating capacity. That exposes health and social care professionals and those authorising a deprivation of liberty to significant legal risk. It is therefore vital that the Liberty Protection Safeguards provide for fluctuating capacity expressly.”

However, the Bill the Government have brought forward makes no provision for fluctuating capacity. Our amendment is aimed at addressing that.

Amendment 45 would allow the responsible body to consider whether the arrangements it is authorising need to be in place for the entire duration of the authorisation it is granting. That would allow authorisations to be granted with specific provision for the arrangements to be suspended while a person has regained capacity. We will return later to what deprivation of liberty means, but that is relevant here. It may be that while someone has capacity, they are free to come and go as they please, with no supervision. But when they do not have capacity, they must be accompanied at all times for their own safety. There is no need for arrangements to require that they be accompanied at all times, regardless of their capacity. Instead, it should depend on their condition on a given day.

This comes back to the amendment moved by my hon. Friend the Member for Birmingham, Selly Oak. In it, he called for arrangements to be authorised only if there were no less restrictive alternatives available. If care providers treat capacity as something that, once lost, remains lost, people will inevitably be subject to unnecessarily restrictive arrangements—not all the time, but for the periods when they have regained capacity. That approach also fails to recognise that people’s capacity can vary without crossing the legal line in the sand. There will be days when someone with dementia can, with a certain amount of support, make the decision that they want to go out for coffee with an old friend, but it may be that, because they cannot make such a decision normally, there is no provision in the arrangements for them to go out. I am sure that the Minister would agree that we do not want over-zealous care managers, concerned about the danger of litigation, to end up unduly restricting a person’s liberty purely because they are treating capacity as a constant. Instead, we must establish a system that recognises the way capacity changes and what that can mean for the cared-for person, and that system should be described in the Bill.

The current system deals with fluctuating capacity through the code of practice. I will be concerned if the Minister says in her response that the Government mean that to continue to be the case. The Law Commission was clear, in its assessment of this legislation, that the code of practice was simply not an appropriate place to deal with this issue. I remind the Minister of the Law Commission’s comment that

“it is not acceptable for the legislative framework simply to ignore fluctuating capacity.”

Bringing individuals with fluctuating conditions within the scope of the Bill would not require them to be deprived of their liberty when that was not appropriate. An authorisation is not an order or injunction to detain the person, and professional discretion should of course be exercised—for example, as to when to take or not take steps to ensure that the person is not allowed to leave, or to bring about their return if they do leave.

Will the Minister cast her mind back to 14 March 2018, the day she published the Government’s response to the Law Commission review of the Mental Capacity Act 2005? On page 6 of the response, she accepted the Law Commission’s recommendations about fluctuating capacity. I should like her to clarify why she accepted them if she had no intention of taking on board the commission’s advice that they be contained in the statutory framework.

The amendment would require a consultation to be carried out before arrangements can be varied to account for fluctuating conditions. In some cases, where capacity fluctuates for short periods, that would be an onerous requirement, but it would also mean arrangements could not be made more restrictive when that might not be appropriate. The amendment does not go as far as the Law Commission wanted to on this topic, so it could be seen as a compromise.

In its draft Bill, the Law Commission set out provision for people to consent in advance of being deprived of their liberty. That would have meant that a cohort of people with degenerative conditions, who foresaw the requirement to deprive them of their liberty, would be removed from the system altogether. The Law Commission also said that

“the giving of consent should generally be regarded as an ongoing state of mind which is required in order for a confinement not to amount to a deprivation of liberty. There will be some who will lack capacity to give such consent for such a substantial proportion of the period covered by the proposed authorisation, and regain it for such brief periods, that it is right to regard them as, overall, lacking capacity to give or withhold consent to the arrangements.”

That is in line with the provisions in the current code of practice. It would codify them in statute, ensuring that the group in question would be adequately covered by the liberty protection safeguards. I do not understand why the Government have not yet taken those suggestions on board. They would ensure that people whose conditions fluctuate are properly dealt with by the new liberty protection safeguards, and close up one of the most glaring holes in the current Act. It seems clear that detaining someone while they have capacity would, at the moment, be a breach of the Act. We need real amendments to the Bill to make sense of the system, rather than yet more promises about a code of practice that we have not yet seen. I acknowledge that the Minister has sent us a list of its contents—but that is not the code of practice.

[The Minister for Care (Caroline Dinenage)]

It is a great pleasure, once again, to serve under your chairmanship, Mr Austin.

I thank hon. Members for raising an important point. We agree that the likelihood of fluctuating capacity should be addressed by the mental capacity assessment. We also expect fluctuating capacity to be considered when the responsible body is deciding to give an authorisation and setting the length of authorisation and frequency of reviews.

I think I set out in my comments on amendment 32 that I am tempted by some of the hon. Lady’s suggestions. However, they do not quite encapsulate the “What then?” of the issue: fluctuating capacity should be considered, but what then? That is why I have concerns. Fluctuating capacity is a complex, fact-specific matter that deserves in-depth, detailed guidance. That is why we will include details of it in the code of practice. We consider that a much better way, allowing examples and real guidance to be set out. That will include the issue of where a person with fluctuating capacity meets or does not meet the authorisation condition of lacking capacity to consent to the arrangements, and whether the authorisation continues in force or ceases to have effect.

The backdrop to the matter is the fact that courts have been considering whether decision makers can take a long-term view in some cases of fluctuating capacity. We expect a judgment from the Court of Appeal soon, in the case of Royal Borough of Greenwich v. CDM. Hopefully, that will give legal guidance on how decision makers should deal with fluctuating capacity. That, of course, will be reflected in the code.

With those assurances in mind, I hope the hon. Lady will feel able to withdraw the amendment.

[Barbara Keeley]

The Minister says she is tempted by the amendment. It is about time, because she accepted the recommendations when she accepted the Law Commission’s report, and I have even read out the date when she did that. The Law Commission was clear in saying that fluctuating capacity is not something that can be dealt with adequately in the code of practice.

Despite the Minister’s having said that she would accept the recommendations, the Government have made no attempt to deal with fluctuating conditions on the face of the Bill. There is a real danger that breaches of the Act will be encouraged because responsible bodies and care practitioners have no proper avenue to pursue if a cared-for person has a fluctuating condition. It is open to the Minister to move an amendment on Report, but we will be putting our amendment to a vote this morning.

Question put, That the amendment be made.

--- Later in debate ---

[Caroline Dinenage]

We are, largely, starting on the same page. We all agree that advocacy is of the utmost importance for the cared-for person. The Bill is clear that everyone has a right to an advocate, whether an appropriate person, an IMCA or, in some cases, both. The Bill sets out clearly that, if no appropriate person is available or able to represent and support a person, the responsible body must take all reasonable steps to appoint an IMCA, if the person has capacity and requests an IMCA and wherever a person lacks capacity, unless in very rare cases it is not in their best interest, as my hon. Friend the Member for Halesowen and Rowley Regis mentioned.

I thank hon. Members for recognising in the amendment the wishes of the cared-for person as a condition for appointment, as we would not wish to force advocacy on anyone. The Bill already allows an appropriate person to request the support of an IMCA. However, I am concerned about the way in which that best interest has been discussed today. Best interest is the standard that governs decision making under the MCA. I am concerned that the Opposition are disregarding that in relation to IMCAs. I apologise if I have misinterpreted what hon. Members have said. The core aspect of best interest is the person’s wishes and feelings. That has to be the primary consideration when it comes to rights and IMCAs.

[Barbara Keeley]

Given that the Minister has just expressed her view on how we are presenting our views on best interest, I hope I can summarise the examples that we have given and the view that we are putting forward that it is a subjective judgment. There is a difference with a cared-for person being allowed to have an advocate, as a default arrangement, unless they do not want that, as in some of the cases we have mentioned. The best interest test is at best a subjective judgment. There are many examples where somebody’s best interests have been ignored. That is why we have given many cases; those cases illustrate how incorrectly this test can be applied and how wrong it can go.

[Caroline Dinenage]

I thank the hon. Lady for that clarification. I am really grateful for all the interesting case studies and examples set out today. They show the incredible variety of cases, experiences and issues that the Bill needs to encompass, and the challenges of getting it 100% right. That is why we have to be incredibly careful with carte blanche.

We think it would only be in very rare cases that it would not be in the person’s best interest to have an IMCA or appropriate person representing them. Of course, the default is that they would. If the appropriate person is not fulfilling their duties, there should be an alternative appropriate person in place, or an IMCA should be appointed by the responsible body.

There is a presumption in a case where a person lacks capacity. They have the right to request an advocate, if they have capacity, and that best interest test is to avoid overriding their wishes and feelings in cases where they do not. Families of those who lack capacity have told us that they often feel left out of the process. Allowing them to act as appropriate persons enables them to be involved and provide support. I am sure hon. Members agree that that is a good thing.

The role of appropriate person is an important way of involving those who are close to a person, but is not necessarily a matter of either/or. An appropriate person can request support from an IMCA if they wish, and that will include access to challenge in court. We are expanding rights to IMCAs. Currently they are available only to people in hospitals and care homes. The liberty protection safeguard would expand that to those in the community and supported living.

We have set out the fundamental requirements of who can act as an appropriate person and the code of practice will give further detail. I know there were concerns that an IMCA would make a one-off visit and, once everything was settled, they would never be seen again, but it is clear that an IMCA must keep up ongoing contact outside of review times to ensure that the person’s rights continue to be protected and respected.

[Barbara Keeley]

The Minister said that that is clear. How is it clear? It is not clear anywhere in the Bill that there have to be constant visits. Where is that provision in the Bill?

[Caroline Dinenage]

It is clear in our minds, and it will be clear in the code of practice that hon. Members can approve.

--- Later in debate ---

[Caroline Dinenage]

I will in a moment, but I also wish to consider those parts of the amendment with which I fundamentally disagree, as that is important. The amendment would require all 16 and 17-year-olds to have an IMCA as well as an appropriate person. I feel strongly that automatically appointing an IMCA for a 16 or 17-year-old would risk freezing out parents from providing representation and support, and parents are often best placed to take such a role.

The hon. Member for Worsley and Eccles South often talks about the desperately distressing case of Bethany and countless others, where parents’ wishes and concerns are not listened to or heeded. We have been clear about giving families a strong role in this model, and we do not want to risk that. As with an appropriate person, a parent or family can request the support of an IMCA, or for their role to be performed by an IMCA.

[Barbara Keeley]

I am surprised that the Minster seems to be referring to an advocate as someone who will get in the way of the parents. When I have met parents—I have met Bethany’s father—a great deal of advocacy is going on. Stakeholders in the Bill help with the provision of advocates—indeed, they themselves provide advocacy and legal support. I know for a fact that Bethany’s father would not have got very far because, as the Minister knows, an injunction against him by his local council tried to prevent him from even speaking about his daughter’s case. People need professional support—parents need it, as do other carers—and I hope the Minister will not categorise the support of an advocate as somehow “getting in the way”. The professionals who make decisions have to be challenged, not advocates who are there to support people and their parents.

[Caroline Dinenage]

The hon. Lady slightly misrepresents what I am trying to say. Of course we have seen numerous examples of how important advocacy can be—it can literally make the difference between people living a happy life that suits their needs, or being kept in a place where they feel unhappy and that does not fulfil those needs. I agree that people should be able to access advocacy, that advocates should be able to work alongside parents, and that if parents feel that they cannot take on such a role, advocates should do that work instead of parents. I also feel, however, that if parents feel that they want to do this on their own and not take on additional advice they should not be forced to, and that is probably the fundamental difference between the Government and Opposition positions. People should be allowed to make decisions for themselves if they wish, and they should not continually be forced to take advice if they do not want to.

We want to make this model person-centric—that is key—and base it on the needs of individuals. By mandating the conditions for IMCA appointments in primary legislation we would once again be prescribing a one-size-fits-all approach that does not consider someone’s individual circumstances, or the wishes and feelings of those involved and their family and loved ones. I hope hon. Members agree and will withdraw the amendment.

[Barbara Keeley]

The Minister seemed to imply—I think she used similar words—that appointing an IMCA will be the default, but that is not the case in the Bill. The Bill states that an IMCA should be appointed if the responsible body is satisfied that being represented and supported by an IMCA is in the cared-for person’s best interests. There is a best interest test there, which will potentially get in the way. With the wrong sort of process going through in independent hospitals, it will be subject to that best interest test. That is how people can end up ignored, festering in situations where they do not want to be.

[Caroline Dinenage]

I am struggling with this, because the hon. Lady is giving the impression that best interest should not be taken into consideration. “Best interest” is basically code for the wishes and feelings of the individual. Is she honestly saying that because a person may be lacking capacity their wishes and feelings should be totally ignored, and they should be given what everyone else thinks is best for them?

[Barbara Keeley]

The Minister knows that that is not an accurate interpretation of what I am saying. We spent a fair amount of time talking about independent hospitals, which are still a massive worry and concern. There is still great concern about the potential role of care home managers, because of the conflict of interest in the case of both independent hospitals and care home managers. There are too many actors in this process who could get in the way and be the people deciding whether a best interest test is met.

Were the best interest assessors the people who are used to this and have been doing this job in local authorities, I would be more comfortable. The Government are trying to give power over the process to care home managers and independent hospitals as responsible bodies, and we disagree with that profoundly, because of the cases that I have brought to the Minister’s attention. I think she and the Government are wrong to put faith in bodies where there is a conflict of interest. That is why I feel so strongly about this.

--- Later in debate ---

[Caroline Dinenage]

Amendments 11 and 12 are technical and tidy up the provisions in part 7 of new schedule AA1 to the Mental Health Act 1983 that set out the interface with that Act. They provide that liberty protection safeguards cannot be used to recall to a hospital a person who is subject to the Mental Health Act and is residing outside a hospital. If someone is subject to a community power under the Mental Health Act and needs to be recalled to a hospital, that should be done through the Mental Health Act. That is already the case under the current DoLS system, and the amendments ensure that the Bill replicates that. The Bill is already clear that an order made under the liberty protection safeguards cannot conflict with an order made under the community provisions of the Mental Health Act, so if someone is required to reside at a place under a community treatment order, they cannot be required to live somewhere else under the liberty protection safeguards.

Amendment 13 ensures that that principle also applies to other legislation with a similar effect to the community powers of the Mental Health Act. That means that if someone is required to reside in a particular place under equivalent enactments that extend to England and Wales, they cannot be required to be placed somewhere else under liberty protection safeguards. The amendments effectively ensure that liberty protection safeguards are not used inappropriately to complete functions that should be completed using the Mental Health Act, and clarify what we all know: that a person cannot be required to be in two places at once. I hope the Committee supports the amendments.

[Barbara Keeley]

I understand that the amendments are designed to address the interface between the Mental Capacity Act and the Mental Health Act, and to keep that interface exactly the same as it is now. I think this is the point to say that this is not the course we wanted the Bill to take. Amendment 52, tabled in my name and to be discussed later, would delay the implementation of the Bill until the Government have given proper thought to how that interface ought to work. We will not oppose amendments 11 to 13, because I can see that they are intended as technical, drafting amendments and we will treat them as such, but I think this is a missed opportunity.

There is a considerable grey area between the Mental Capacity Act and the Mental Health Act, and in his recent review, Sir Simon Wessely made some valuable recommendations on how that divide could be clarified. At this stage, the Government have not tabled amendments to enact those recommendations, but through these amendments they will instead maintain a deficient set of arrangements. I fall back on what I have said before: I call on the Government to pause the Bill until they have given proper consideration to the interface between the two Acts and can produce a Bill that will not require near-immediate amendment and generate a lot of court cases, as we think this Bill will do.

Amendment 11 agreed to.

Amendments made: 12, in schedule 1, page 24, line 10, at end insert “in a hospital.”

This is to provide that only arrangements to enable medical treatment for mental disorder in a hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded from being authorised under the new Schedule AA1.

Amendment 13, in schedule 1, page 27, line 16, at end insert—

“(g) anything which has the same effect as something within any of paragraphs (a) to (f), under another England and Wales enactment.”—(Caroline Dinenage.)

If arrangements conflict with requirements, conditions or directions imposed or given under certain provisions of the Mental Health Act 1983 those arrangements cannot be authorised under the new Schedule AA1 of the Mental Capacity Act 2005. This amendment provides that arrangements which conflict with requirements, conditions or directions arising from an England and Wales enactment having the same effect as the provisions of the Mental Health Act listed in paragraph 54 also cannot be authorised under the new Schedule AA1.

Schedule 1, as amended, agreed to.

Clause 2

Deprivation of liberty: authorisation of steps necessary for life-sustaining treatment or vital act

--- Later in debate ---

[Caroline Dinenage]

I do not know about the Law Society. The Law Commission was tasked with reviewing the measure—it took three years to do so. The commission took evidence from across the sector and we have used its recommendations as the basis for this provision.

[Barbara Keeley]

It is interesting that the Minister is being so selective about which of the Law Commission’s recommendations she is accepting. I challenged her earlier about a recommendation that she had accepted at the time it was made and which has not been taken further in the Bill. This is a five-clause Bill, which Opposition Members have had to battle our way through. It is not the fifteen-clause draft Bill that the Law Commission brought forward, which had been consulted on. It is rather rich of the Minister at this point, when it suits her, to be quoting the Law Commission’s recommendations and adopting them when she has not accepted them on many other occasions, including the one on which I moved an amendment this morning.

[Caroline Dinenage]

The reason for that is quite simple. The Law Commission’s draft Bill had a whole lot more scope and took into it things that we have not been able to look at as part of this particular revision of DoLS, on which we want to focus. We are painfully aware of the fact that 125,000 people are still in a backlog, waiting for DoLS. They do not have the protections that they need; the families do not have the reassurance; and the people caring for them do not have the protection of the law. That is why, necessarily, this had to be a very narrow Bill. Where possible, though, we have taken the words of the Law Commission to its very heart.

[Barbara Keeley]

I am astonished that the Minister thought it was okay not very long ago this morning to not accept a Law Commission recommendation and then, in her very next speech, put forward such a recommendation as the main reason for turning down an amendment. There is an astonishing lack of logic.

Opposition Members believe that it cannot be right that emergency authorisations have no time limit. There is a concern that it could become easy to drop into using the provision given that there is no time limit on it. We can see how, given how systems are designed, people can get into going to the easiest place. If it is the easiest place to deprive someone of their liberty, that situation can become dangerous.

By failing to include a time limit, the Bill fails to incentivise local authorities and the courts to hear emergency authorisation cases promptly. There is no time pressure on them—they can take as long as they like. Applications can already take too long to process and, without a hard end date, they could drag on for weeks or months. The emergency authorisations contain far fewer safeguards than full authorisations, and as such Opposition Members believe that they should be used only sparingly and for brief periods.

Question put, That the amendment be made.

--- Later in debate ---

[Caroline Dinenage]

The ability to deprive someone of their liberty for a short period of time prior to an authorisation being in place or in an emergency is an important part of this model, as we have discussed. That can be done only to provide the person with life-sustaining treatment or to prevent a serious deterioration in their condition.

I spoke on amendment 16 about how this provision is limited to emergency and life-sustaining treatment or a vital act, and to the time limit that is legally enforced. We agree that the provision of information to the cared-for person and those who care for them is extremely important to help them understand the process and exercise their rights. I have committed in respect of other clauses to look again at information and how quickly and early it is disseminated and distributed. I agree in principle with the information part of the amendment.

My only reservation is that, given the nature of the situation, medical professionals have to work urgently in a short period of time, so the amendment might not be practical in practice. However, I agree 100% with the hon. Member for Worsley and Eccles South that information needs to be given out and that people need to understand what is happening to them and their loved ones, so I will commit to look again at this matter.

We agree, and I confirm that, when people are deprived of their liberty, records will need to be kept and those will need to be available after the event. We will outline the details in the statutory code of practice, including how that information should be shared with others.

The amendment outlines circumstances when objections to deprivation of liberty for the provision of life-saving or sustaining treatment should be referred immediately to the Court of Protection. Under the Bill, all people in those cases will have the ability to challenge emergency authorisations in the Court of Protection via section 16 of the Mental Capacity Act, and it is unnecessary for that to be made explicit again in the Bill. The applications will also operate alongside a full authorisation made under new schedule AA1 where appropriate and, of course, there will be full recourse to the court to challenge those authorisations too. For that reason, the Government cannot support the amendment.

[Barbara Keeley]

I am disappointed that the Minister will not accept the amendment because I have given her a very powerful example of why she should. I had not understood, until I engaged with Paula McGowan recently, how defective the processes were. I know that the Minister has been engaged in that case, so I ask her to think about how it adds to the burden of grief and bereavement for the parents that the processes that should have protected a young person such as Oliver were not engaged properly.

The point about information is important; the McGowans were not informed of their rights or listened to. There was no best interest meeting for Oliver. Had that happened, his parents could have pointed out the danger of the anti-psychotic medication. The Minister has just said that medical and care professionals are busy. That is the problem, is it not? That is how these cases happen—in the busyness of urgent care. The warnings about the medication were just ignored. That is why we very much need information to be given.

Mental Capacity (Amendment) Bill [ Lords ] (Sixth sitting)

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 22nd January 2019 Public Bill Committees

[The Minister for Care (Caroline Dinenage)]

It is a pleasure to serve under your chairmanship once again, Mr Pritchard. Clause 2 relates to the authorisation of steps necessary for life-sustaining treatment or vital acts. This clause is incredibly important. It allows care givers, in limited situations, to deprive someone of their liberty for a short period of time prior to an authorisation being made or in an emergency. This can be done only to provide a person with life-sustaining treatment or to prevent serious deterioration in their condition.

The clause replaces the urgent authorisations that exist under the current deprivation of liberty safeguards system. Urgent authorisations last for up to 14 days in a situation where the need to deprive someone of liberty is urgent. However, providers are left without legal cover when the authorisation runs out and, due to the backlog, the council has not completed the necessary assessments.

We of course want to ensure that there is adequate oversight and that the measure will not be misused to push through unjust deprivations of liberty. Records will need to be kept and provided after the event. The regulators—which, in England, we expect to be the Care Quality Commission and, in Wales, to be Healthcare Inspectorate Wales and Care Inspectorate Wales—can use this to monitor whether adequate care is being given. With that in mind, I recommend that clause 2 stand part of the Bill.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Powers of the court to determine questions

[Barbara Keeley]

I beg to move amendment 18, in clause 3, page 3, line 14, leave out

“whether Schedule AA1 applies to the arrangements”

and insert

“any issue in relation to the application of Schedule AA1”.

This amendment seeks to clarify that all relevant issues pertaining to Schedule AA1 can be addressed by the Court of Protection, for example whether an IMCA should be appointed or an AMCP involved.

It is a pleasure to serve under your chairmanship in this part of the Committee, Mr Pritchard. Amendment 18 may appear to be minor, but it could have significant consequences for the proposed system of liberty protection safeguards. The Bill removes the section of the Mental Capacity Act 2005 that deals with court appeals for deprivation of liberty, and clause 3 proposes a new section in its place.

The Government have made few substantive changes to the power of the Court of Protection. We believe that this is a missed opportunity. The Law Commission said in its report:

“significant reforms should be made to the Court of Protection to ensure that it works for the people who apply to it.”

The fact that the Government have refused to consider this as part of the Bill is another sign, I am sorry to say, that this Bill is being rushed through. Rather than considering this issue in the round, they are simply seeking to reproduce the current deficient system. The people who are subject to the Mental Capacity Act deserve better, so when the Minister replies, can she reassure us that the Law Commission’s comments are being taken on board and that a full review of the Court of Protection will be forthcoming?

At the moment, the Bill gives the Court of Protection a limited set of powers. It can determine whether the liberty protection safeguards apply to the case; it can determine the length of authorisation; it can rule on the arrangements the authorisation relates to; and it can determine whether the authorisation conditions are met. So that hon. Members are clear on that final point, let me remind them what the authorisation conditions are. Paragraph 12 of schedule 1 reads:

“The authorisation conditions are that—

(a) the cared-for person lacks the capacity to consent to the arrangements,

(b) the cared-for person has a mental disorder, and

(c) the arrangements are necessary to prevent harm to the cared-for person and proportionate in relation to the likelihood and seriousness”

of that harm. When the court is asked to rule on whether a liberty protection safeguard should have been granted, those are the only things that it can determine.

The court cannot determine whether a cared-for person should have been given access to an independent mental capacity advocate—we had a very full debate this morning about the role of advocates. It cannot determine whether the case should have been reviewed by an approved mental capacity professional. It cannot determine whether any of the assessors had a conflict of interest that should have precluded them from carrying out an assessment. It cannot determine whether the consultation has been properly carried out. It cannot determine whether the person was given the information that they should have been given. In short, it cannot determine whether any of the safeguards that we have discussed in this Committee were properly applied.

In some cases, the process will be every bit as important as the outcome, and I remind hon. Members of a case I mentioned previously. Ethel, an 85-year-old woman living in a care home, wanted to leave the care home and return to her own home. She was subject to a deprivation of liberty safeguard. With the help of an advocate, she appealed her case to the Court of Protection. Although the court ultimately ruled that Ethel should remain in the care home, the advocate found during the appeal process that the conditions placed on her authorisation had not been read and were not being applied until the Court of Protection made sure those conditions were attached to the authorisation. If the process is carried out improperly, it may be that less restrictive options for the person’s care are not considered. It may be that a strong objection from a close family member, which could have altered the decisions made, is not expressed.

These concerns are widely shared. The Law Society has supported this amendment, as has a wide range of stakeholders, including Mind and Learning Disability England. It is my hope that the Government did not intend to exclude all the vital areas that I have just discussed, but I simply cannot understand why we would not want to give the Court of Protection the widest possible remit in this case. The court is intended to be the final safeguard against deprivation of liberty being used incorrectly or inappropriately, and if we restrict the issues that it can rule on, we blunt its effectiveness. The Opposition do not want to hear, a year or two down the line, of cases in which the responsible body has clearly not followed the correct process but the courts find themselves unable to do anything about it. Our amendment is designed to avoid such a situation ever arising, and I hope the Government will accept it.

[Caroline Dinenage]

I understand that hon. Members want the Court of Protection to consider matters such as whether an IMCA is appointed or an AMCP is involved. That would mean that the court was considering procedural matters regarding the liberty protection safeguards process. The hon. Member for Worsley and Eccles South has asked me about the review of the role of the Court of Protection; she will be aware that the Ministry of Justice is currently reviewing courts in the round, and that review will of course include the regionalisation of the Court of Protection. However, the Bill is clear that the pre-authorisation review must be completed by an approved mental capacity professional in cases in which an objection has been raised. That provides a clear route for arrangements to be considered if that is something the person wishes to happen.

Government amendment 9 is clear that, in independent hospital cases, an approved mental capacity professional must complete that review—that is a duty—and if an independent hospital as a responsible body fails to do that, it would be in clear breach of its responsibilities and could be subject to legal challenge.

With regard to IMCA appointments, the Bill introduces an effective presumption that an IMCA will be appointed by the responsible body if there is not an appropriate person in place, which ensures access to representation. With that in mind, I hope that I have provided reassurances that the system will be robust regarding IMCA appointments and access to AMCPs. I therefore hope that hon. Members are willing to withdraw the amendment.

[Barbara Keeley]

As I said, the amendment seeks to clarify the role of the Court of Protection. It broadens the narrow set of responsibilities in the Bill, giving the court the explicit right to rule on any matter relating to the new liberty protection safeguards. It ensures that the process, as well as the outcome, of authorisations is covered by the court.

Question put, That the amendment be made.

--- Later in debate ---

[Caroline Dinenage]

I thank hon. Members for initiating this discussion. Amendment 52 would delay the introduction of liberty protection safeguards until the Department has fully responded to the report of the independent review into the Mental Health Act.

The hon. Member for Worsley and Eccles South said that I was stubborn. I am sure that a number of people, not least my husband, would agree with that sentiment. I think she would agree that I have committed to looking again. A number of issues have been raised during the Bill’s passage through Committee, not least ensuring that people get information as early as possible—I agree with her on that—and how we can maximise protection for those being cared for in an independent hospital. I am sure she would agree that I would be being equally stubborn if I were to take the amendments on board without giving them careful and due consideration, and without checking the legal ramifications and making sure that we are offering all the protections that we need to. I am sure that the hon. Lady, other Opposition Members and stakeholders will forgive me for making sure that we consider everything thoroughly and properly.

On amendment 52, I welcome Sir Simon Wessely’s landmark report and I am sure that it will very much set the direction for improving the way the Mental Health Act works for thousands of vulnerable people. The Government have already committed to bringing forth mental health legislation when parliamentary time allows, taking that very important report into account. We have already accepted two important recommendations, which will give service users more choice and control, but it will take time for us to consider the rest of the recommendations, of which there are 152. We will respond to the remaining recommendations in due course, but Sir Simon said that the Government would need to consider the “practical implications” of the interface recommendations, and that it would be “problematic” to introduce those recommendations in this Bill.

Hon. Members will be aware that the reforms in the Bill are desperately needed—I cannot repeat often enough that we cannot wait any longer to improve the situation of the backlog of more than 125,000 people who have been deprived of their liberty without authorisation. As much as there are concerns among stakeholders—I have met a number of stakeholders and we will continue to consult them, to take their views on board and to make sure that we work with them at every step of the way when it comes to the code of practice—they also share our concern that 125,000 people have been deprived of their liberty without authorisation, that their loved ones have been deprived of peace of mind and that their care providers have been deprived of legal protection.

[Barbara Keeley]

I have two points to make to the Minister. I remind hon. Members that we have heard examples of authorities—they include mine, that of my hon. Friend the Member for Stockton North and some London boroughs—where there is no backlog and where the local authorities have dedicated enough resource to the situation. Despite the number of DoLS applications increasing since the Cheshire West case, they are dealing with it. Let us not talk in Committee as if it is the same everywhere; it is not. Some local authorities are coping perfectly well with the backlog, and there is no pressure in those local authorities to change to a worse system that will cause a problem.

Secondly, I asked the Minister about the cost of dealing with the backlog, and I hope she will touch on that. She has raised the backlog again and again as a reason for rushing the Bill through. It is not a reason for rushing through a new piece of legislation that is this important. I hope that she will come on to say exactly how the backlog is to be dealt with and what resources will be available to deal with it, because that is an important issue. If the backlog is the reason for doing things this way, how is the backlog going to be dealt with?

[Caroline Dinenage]

Yes, of course I will go on to talk about the transition between the two systems and the backlog. I also say gently to the hon. Lady that she and others may be in the fortunate position where their local authorities have got to the stage where they do not have a backlog—in many cases, that is due to a political decision to prioritise it—but I think all those local authorities would recognise that there is duplication and cost in the system that they could do without. They have had to take very tough decisions to prioritise this issue over other things that they could be spending their money on, when money is tight. I do not think the attitude of, “I’m alright, Jack, there’s no backlog in my constituency,” is a very good one, when 125,000 other people are waiting.

--- Later in debate ---

[Caroline Dinenage]

Parliamentary procedure requires a privilege amendment to be included in a Bill that starts in the House of Lords and has financial implications. It is then removed in the House of Commons as a standard procedure.

Clause 5 sets out the territorial extent of the Bill, which is England and Wales. This clause sets out that clause 4, except subsection 6, and clause 5 come into effect immediately on the Bill being passed. The rest of the Bill comes into force on a day nominated by the Secretary of State. Different days may be appointed for different purposes or different areas of the Bill. Clause 5 also gives the Secretary of State a power to make transitional arrangements by regulations. I recommend the clause to the Committee.

[Barbara Keeley]

Government amendment 1 is, of course, entirely uncontroversial. We cannot implement a new system until the Government are authorised to pay for it. I have a question for the Minister, following our conversation about the financial impact of the Bill: in the light of the changes that have been made to the Bill in the past few months, will she give us an estimate of how much expenditure we are being asked to agree?

We will not oppose the amendment, but I feel that members of the Committee should have an idea of what they are agreeing. We definitely need to have the updated impact assessment as soon as possible and certainly before Report stage. It is not acceptable to have an impact assessment that is six months out of date. We want to know how much the new system will cost before the Bill concludes its passage through the House. Only if that happens will we be confident of the amount of expenditure agreed to.

On clause 5 more generally, I am disappointed that the Minister has opposed all our amendments. In particular, I remain concerned about the code of practice, when it is finally produced. I counsel her against trying to rush it through the House, with little opportunity for Members to provide feedback. We have tried valiantly on this Bill Committee to bring up issues of great importance in the Bill, and they need to be listened to.

The Government have said that the new system will not come into force until the code of practice has been published, so there is no real reason not to agree to have the code of practice approved by each House before the Bill is enacted.

I hope the Minister will reflect carefully on what has been said in our debate on the Bill. As is evidenced by the letter from all those organisations in The Times today, the Bill contains significant flaws. It would not be unreasonable for some of our concerns to be addressed before the Government even try to bring in the new system. With that, we will not oppose clause 5 stand part, but we hope the Minister will use the powers in the clause to ensure that the Government get the system right before they roll it out.

Amendment 1 agreed to.

Clause 5, as amended, ordered to stand part of the Bill.

New Clause 1

Meaning of deprivation of liberty

“(1) After section 4 of the Mental Capacity Act 2005 insert—

‘4ZA Meaning of deprivation of liberty

(1) In this Act, references to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the Human Rights Convention and, accordingly, a person is not deprived of liberty in any of the circumstances described in subsections (2) to (4).

(2) A person is not deprived of liberty in a particular place if the person is free to leave that place permanently.

(3) A person is not deprived of liberty in a particular place if—

(a) the person is not subject to continuous supervision, and

(b) the person is free to leave the place temporarily (even if subject to supervision while outside that place).

(4) A person is not deprived of liberty if—

(a) the arrangements alleged to give rise to the deprivation of liberty are put in place in order to give medical treatment for a physical illness or injury, and

(b) the same (or materially the same) arrangements would be put in place for any person receiving that treatment.

(5) A person is free to leave a particular place for the purposes of subsections (2) and (3) even if the person is unable to leave that place provided that if the person expressed a wish to leave the person would be enabled to do so.’

(2) In section 64(5) of that Act (interpretation) for the words from ‘same’ to the end substitute ‘meaning given by section 4ZA.’”—(Caroline Dinenage.)

This New Clause provides the meaning of “deprivation of liberty” for the purposes of the Mental Capacity Act 2005.

Brought up, and read the First time.

[Caroline Dinenage]

I beg to move, That the clause be read a Second time.

The new clause provides statutory clarification in relation to the meaning of deprivation of liberty for the purposes of the Mental Capacity Act. The Mental Capacity Act defines a deprivation of liberty by reference to article 5 of the European convention on human rights. The proposed new clause adopts the same fundamental approach, by anchoring the meaning of deprivation of liberty to article 5.

As Committee members will be aware, the 2014 Supreme Court Cheshire West case changed what was commonly thought of as a deprivation of liberty, resulting in an eighteenfold increase in people entering the DoLS system, and applications are still growing year on year. That resulted in a significant rise in resource use for local authorities and the care sector, resulting in a backlog of over 125,000 people waiting for their applications to be authorised, as I have mentioned on numerous occasions during our debates.

The Law Commission was against a definition of a deprivation of liberty, but noble peers, stakeholders and the Joint Committee on Human Rights have all called for a definition to be included in the Bill, to bring proportionality to this situation and ensure that liberty protection safeguards are appropriately applied. The new clause does that by bringing clarity to prescribing circumstances, or exceptions, that are not a deprivation of liberty. If a person meets the conditions in one of its subsections, they are not being deprived of their liberty and so do not fall under the liberty protection safeguards. These subsections are drawn from case law.

The Department has decided not to include a full definition of a deprivation of liberty because primary legislation needs to be extremely clear and precise, and case law is constantly evolving. That makes it difficult to draft a definition that will remain sufficiently precise, given that the definition may change as case law develops. For that reason, we must be extremely wary of the unintended consequences of including a full definition in relation to such a complex matter. By taking this exclusionary approach, we will enable the definition to remain valid as new cases come forward, as there should be sufficient flexibility within the clause for case law to develop in parallel.

An important point to make Committee members aware of is that the clause would be accompanied by detailed statutory guidance and case studies within the code of practice. Here we would set out scenarios as workable examples of the subsections, to assist practitioners as they determine whether someone is being deprived of their liberty. I would like to assure colleagues that these supporting materials will give the detail and depth required for those in the sector, and local authorities, to identify a deprivation of liberty. We are working with stakeholders already to gather these scenarios in a wide range of settings, including care homes, private domestic settings and supported living. The clause would apply to 16 and 17-year-olds, as the rest of the Bill does, but we recognise that the circumstances of this vulnerable group of people can be different, and that will also be reflected in the guidance.

The inclusion of a clause in relation to consent has been carefully considered, but one has not been included. That is for several reasons. First, to give valid consent, an individual would need capacity, as set out by the Mental Capacity Act. If they have capacity and are consenting to the arrangements, then that automatically cannot be a deprivation of liberty. Secondly, there is not enough in case law to support the validity of de facto consent—that is, consent given by someone without capacity—and I am concerned that it would not be compatible with the Human Rights Act 1998. Above all, we must protect the rights of cared-for people.

The new clause will clarify issues post Cheshire West, it will determine when the LPS should and should not apply, and it will support those planning care in considering the least restrictive options to enable greater freedom for those in their care.

--- Later in debate ---

[Caroline Dinenage]

Is the hon. Lady suggesting that there should not be a definition?

[Barbara Keeley]

No, I welcomed the fact that the Government were trying to put in a definition, but this definition is not fit for purpose. The problem is that, as with everything else in the Bill, it was rushed. At the meeting I had with stakeholders not very many weeks ago, almost everyone in the room had fears about it. Many of them had not even seen it. The process has been wrong.

I made it clear to the Minister what I think the Government should do. They should withdraw new clause 1 and not put it to a vote. They should put the definition out to consultation, and not introduce it again until those involved with the definition are happy with it. Then we can be clear. Pitting a Government decision against decisions of the Supreme Court and the European Court of Human Rights is not wise; it is a knotty problem. I am not a lawyer myself, but I have listened enough to people who are experts in this area to know that it is a problem.

Perhaps I can encapsulate the problem in one final question to the Minister. On the front of the Bill the Secretary of State certifies that he feels it is compatible with the European convention on human rights. Given some of the points that I have just raised about the definition, is the Minister confident that the Bill would still be compatible if we agreed to the new clause?

--- Later in debate ---

[Barbara Keeley]

I constantly get the feeling when I listen to the Minister that she is describing a happy situation that, unfortunately, the evidence suggests does not exist. The notion that she is co-producing the definition with stakeholders is not what stakeholders say. My hon. Friend the Member for Nottingham North and I read out the list of organisations that object to the Bill and the severe comments they have made about it. If the Minister were in fact co-producing parts of the Bill and the definition with stakeholders, they would not be writing to The Times describing the Bill in that way.

[Caroline Dinenage]

We are talking about the definition. I am not saying we have co-produced it with stakeholders, but we have given a copy of it to stakeholders, asked for their feedback and asked them to supply case studies. Some have welcomed it and see it as absolutely necessary to provide the clarity we are looking for.

The Law Commission report shows that overly cautious application of DoLS is unnecessary, but we want an effective system with access to safeguards, as required by article 5 rights. The hon. Lady raised a number of case studies, including Stanev v. Bulgaria, in which Mr Stanev needed permission to leave. We will make it very clear in the code that a person is not free to leave if they require approval or permission. That is also clarified in subsection (5) of proposed new section 4ZA of the Mental Capacity Act.

We intend to set out in the statutory guidance, by reference to case studies, how that should be interpreted. For example, we understand that in care homes, cared-for people are often left unsupervised for many hours of the day yet may still be regarded as being deprived of their liberty. We do not intend to exclude those people without discretion. We will set out in the guidance the circumstances in which someone should be regarded as not being under constant supervision, such as how frequently they are checked and the monitoring that is present. We are also conscious that “continuous supervision” means different things in different settings, and I welcome the contribution of my hon. Friends towards that.

There is also a sliding scale of situations we expect to be excluded by subsection (3)(b) of proposed new section 4ZA. We will expand on that in the guidance in consultation with stakeholders. For example, the place must be one to which the person has a wish to go rather than one solely of staff’s choosing. It is worth pointing out that both limbs of subsection (3) must be met for a person to be excluded by it. For example, if a person is not continually supervised in a care home but is not free to leave temporarily, the subsection does not apply.

Although we aim to bring clarity, we recognise that every case is different. I hope I have articulated that this will be a person-centric system. We do not want a one-size-fits-all approach, which is the problem with the system that we have now. That approach is no longer fit for purpose for such a vastly different and vulnerable group of individuals. With that in mind, I ask that new clause 1 stand part.

Mental Capacity (Amendment) Bill [ Lords ] (Third sitting)

Debate between Caroline Dinenage and Baroness Keeley

Thursday 17th January 2019 Public Bill Committees

[Caroline Dinenage]

Absolutely; we completely agree that objections raised by parents about the arrangements should be considered with the utmost care and attention. That is why we have already built those safeguards into the authorisation process. The Bill states that an approved mental capacity professional must conduct the pre-authorisation reviews where it is reasonable to believe that the person objects to the arrangements, and it clarifies that an objection can be raised on a person’s behalf by someone interested in their welfare. For the vast majority of 16 and 17-year-olds, of course, that would include their parents. In those cases we would expect an approved mental capacity professional to consider the objection carefully, meet both the person and their parents, and establish how they feel.

I understand the concerns of the hon. Member for Worsley and Eccles South about how the legislation relates to the Children Act 1989. I can confirm that the advice I have been given is that nothing in the Bill conflicts with that Act, or indeed with any other existing legislation. The hon. Lady may also be aware that the role of parental consent in the deprivation of liberty is currently being considered by the Supreme Court, and of course the Government will closely consider the implications of that judgment when it is handed down. The hon. Member for Stockton North spoke about the consultation on this issue, which of course was part of the Law Commission’s recommendations on the inclusion of 16 and 17-year-olds, and all the aspects of that. They spent three years working on those recommendations and consulted widely with stakeholders, including children’s charities, third-sector organisations, social workers and education providers.

Our view on the amendment is clear. Although almost all parents have their child’s best interests at the heart of everything they do, a tiny minority do not—maybe for good reasons; maybe for reasons of heart over head, as one Member has said today—and those are the children we have to protect. Parents should be at the heart of the process and they must be consulted where appropriate, but the person whose wishes and feelings must be at the dead centre of that process is the individual whose mental capacity is deemed not to be there. I hope that I have been able to provide clarification. On that basis, I ask the hon. Member for Worsley and Eccles South to withdraw the amendment.

[Barbara Keeley]

As I said earlier, it is welcome that the Bill expands eligibility to 16 and 17-year-olds, because it prevents them from slipping through the gaps that the Bill would otherwise create. However, I persist in the view that there are issues with the way the Bill interacts with the Children Act 1989. The difference is that under section 20 of that Act, parents can object to their child’s placement and can also remove their child from that placement.

I gave an example—the case of Y v. Barking and Dagenham—in which parental objections were overlooked by the responsible body. The key point is that there are many other such cases, as I am sure the Minister knows—she probably hears about them even more often than I do. That was a recent case, but it resulted in significant harm. That young person, still a child, was kept in a care home and deprived of his liberty for two years. He was restrained 199 times. He was assaulted by somebody in the care home, but the social worker only listened to opinions from the care home. The amendment is a safeguard, and it is vital that we put it into the Bill to prevent similar cases being enabled by the Bill. I put it to the Minister that she will be enabling more such cases if she does not include this provision on parental objections.

[Caroline Dinenage]

Can I just challenge that? Under the existing Mental Capacity Act 2005 there is recourse to the Court of Protection for the parents. Their views have to be taken into consideration, but if they feel in any way, shape or form that the best interests of their child are not being followed, they have that recourse to the law, and the amendment of the Act does not change that.

[Barbara Keeley]

Indeed, and we will be talking more about the Court of Protection, which is of course an important safeguard. However, parents should not have to have recourse to the court just to express objections and get them listened to. The Court of Protection is a good safeguard, but recourse to the law involves expert advice and all kinds of things. I shall discuss that in relation to a later amendment, but for ordinary people it is a serious matter to take on.

Sometimes the Minister encounters, as I do, parents who are confident enough to challenge things, go to the media and make a stir, but I have just given a strong example where a young person was kept in appalling conditions and was hurt and damaged. Such cases affect a young person’s ability to live in a home or community situation and should be avoided. Two years of detention in an unsuitable home, assault, and being restrained 199 times will surely lead to traumatic stress. That is why I think that the amendment is important, and why we will press it to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Barbara Keeley]

Yes, I agree that my hon. Friend the Member for Birmingham, Selly Oak should not run down his amendment, because it has provoked a useful debate. The purpose of the amendment is to expand the number of people who receive an AMCP review. It goes further than the amendments that I tabled, but we support it in principle, and I hope the Minister will consider it carefully.

[Caroline Dinenage]

I thank the honourable—I seem to be test-driving someone else’s teeth today, Mr Austin. I thank the hon. Member for Birmingham, Selly Oak for raising the issue and facilitating an important discussion. I have absolutely no doubt of his dedication and good intentions in the matter. I wish to offer him some reassurance, because the Bill already requires that an approved mental capacity professional carries out the pre-authorisation review where an objection has been raised. In such cases, authorisation cannot be granted unless the pre-approved mental capacity professional is 100% satisfied that the authorisation conditions are met. Amendment 9 would strengthen this provision, as the hon. Member for Worsley and Eccles South mentioned.

Should an approved mental capacity professional not complete the pre-authorisation review, it would be completed by someone who is not involved

“in the day-to-day care of the cared-for person…in providing any treatment to the cared-for person, or…who has a prescribed connection with a care home.”

We believe that this would ensure that the pre-authorisation reviewer is sufficiently independent. We expect that the review would be completed by professionals such as social workers, nurses or physicians. The hon. Member for Birmingham, Selly Oak talked about the use of the term “appropriate experience”, which is set out very clearly in extensive case law.

Mental Capacity (Amendment) Bill [ Lords ] (Fourth sitting)

Debate between Caroline Dinenage and Baroness Keeley

Thursday 17th January 2019 Public Bill Committees

[Caroline Dinenage]

It is a great pleasure to serve under your chairmanship, Mr Pritchard. A warm welcome to the Committee—albeit not quite as warm as it would have been had you been here on Tuesday.

These technical amendments build on important amendments tabled by the Government in the other place. They ensure that a person with a connection to a care home cannot conduct the assessments needed for an authorisation or the pre-authorisation review, and thereby eliminate any potential conflict of interest. It is vital that assessments and pre-authorisation reviews are completed independently. The amendments not only ensure there is no conflict of interest in the process but prevent the approval of over-restrictive arrangements that are in a care home’s interest but not in the best interests of the individual.

The amendments clarify that the definition of a person with a connection to a care home will be set out in regulations; the Bill therefore confers regulation-making powers. That may not have been sufficiently clear in previous drafting, so those connections will be laid out in regulations, which will allow us to provide the necessary detail and ensure that all care home staff and those connected to a care home are excluded from completing assessments and pre-authorisation reviews. Consideration was given to setting that out in the Bill, but we concluded that regulations would better serve our intention of ensuring that we exclude agency staff and others who do not work directly for the care home. I hope the Committee supports these clarifying amendments.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

It is a real pleasure to serve under your chairmanship, Mr Pritchard. The atmosphere is so much nicer than it was on Tuesday, when we were so horribly hot. You avoided being in a sauna for a few hours.

It is a pleasure to speak to such uncontroversial amendments. We will discuss conflicts of interest further, so I will not say too much now, but I wish to make one comment. The amendments make clear that assessments and reviews should not be carried out by people who have certain relationships with a care home, but I hope the Government take a broad view of the kinds of relationships that should be ruled out. The regulations must not provide that the only people with a prescribed relationship with a care home are its employees. I also hope the Government take an open and consultative approach to drawing up the regulations. Many stakeholders will have strongly held views about the kinds of relationships that should be prescribed, and the Government should ensure that they take all that expertise on board.

Amendment 5 agreed to.

Amendment made: 6, in schedule 1, page 15, line 4, leave out “prescribed connection” and insert

“connection, of a kind prescribed by regulations,”.—(Caroline Dinenage.)

This amendment is to make it clear that a regulation making power is being conferred by paragraph 19(4) of the new Schedule AA1.

--- Later in debate ---

[Caroline Dinenage]

I thank the Opposition for raising this issue. As we have heard, the amendment would require that parents’ wishes and feelings about the proposed arrangements for their 16 and 17-year-old child are ascertained. That would be in addition to the main purpose of the consultation, which is to ascertain the wishes and feelings of the cared-for person.

I understand that hon. Members are concerned to ensure that parents’ voices are heard—so, of course, are the Government. Parents have a vital role in caring for their children, especially when they lack mental capacity. We would fully expect the responsible body to consult parents about their views of the arrangement, where appropriate, while ascertaining the wishes and feelings of the person. We therefore believe the amendment to be unnecessary, because parents involved in the care of their child will already be included in the consultation process, where appropriate. I refer Members to my earlier comments on the safeguarding issues that must also be taken into consideration.

The other thing to be taken into consideration, which I mentioned earlier, is the Birmingham case which is being considered by the Supreme Court. That will bring further clarity to parental responsibility for young people lacking mental capacity.

[Barbara Keeley]

I hope that the Minister was listening to the cases that I cited—I know that she has been involved in and heard of those cases, and sometimes met the individuals. Parents, however, were not consulted in desperately difficult and at times tragic circumstances. She knows that Paula McGowan and Oliver’s father were not consulted; in fact, they were ignored. On a number of occasions, I have talked about the case of Y, whose parents were ignored—the social worker just ignored them—to the real damage of that young person, who was held for two years. The Minister says somewhat glibly, if she will excuse me saying that, that parents will be consulted, but they are too often ignored. It seems to me that the working practice of many professionals in this field is to ignore the parents. I do not think that the amendment is unnecessary, because it creates a situation in which we draw attention to the importance of the input that parents can make. I have certainly seen no evidence that that is routinely used at the moment.

[Caroline Dinenage]

I very much take on board the hon. Lady’s concerns, and she knows that I have enormous respect for her work in this field. As she said, I have met with a number of parents involved in these tragic cases—she mentioned Paula McGowan and her son, Oliver. It was not just Oliver’s parents whose wishes and feelings were ignored; it was Oliver’s. In the initial period he said that he could not have the medication that they were giving him, and they still gave it to him anyway. Her point is incredibly valid, but it needs a lot more than this to achieve what we are aiming for. That is why we are bringing forward the consultation on the appropriate training for people who work in health and care settings, on how to be able to communicate with, understand and properly look after people with autism and learning disabilities.

[Barbara Keeley]

I respect that the Minister has taken on board Paula McGowan’s campaign, but how much more powerful would the training of medical professionals and others involved with the care and treatment of people like Oliver be, when it is started, if it could be said in the consultation that they have to listen to the views of the parents? That would be a change, because clearly they are not doing so at the moment.

[Caroline Dinenage]

I completely agree with the hon. Lady. We are making it clear that parental voices must be heard, but we have to be careful about putting anything in the Bill that could create unintended consequences. We have spoken about it before and those safeguarding issues have to be taken very seriously. To our cost, we have learned from previous Bills that a loophole in the law can take the whole policy off in a way that we had not entirely expected. We do not want to recreate that. I hope that with that reassurance hon. Members feel they are able to withdraw the amendment.

[Barbara Keeley]

No, I am afraid I do not. Amendment 34 requires the views of parents to be given particular weight in the consultation process, when the cared-for person is 16 or 17 years old. That is the third of our amendments designed to ensure that 16 and 17-year-olds have proper safeguards. It is necessary, because of the greater safeguards that this age group currently receives under the Mental Health Act. I think there will be a shift in which piece of legislation is used in regard of 16 and 17-year-olds. We cannot have a situation where the safeguards are less under the mental capacity legislation than they are under the Mental Health Act or a court order. We will press this to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Caroline Dinenage]

I will take an intervention from the hon. Member for Worsley and Eccles South.

[Barbara Keeley]

I can see the Minister’s drift, but I do not understand how the Bill deals with a person who has a prescribed connection with a care home, but not a prescribed connection to an independent hospital. If it is important to have that in the Bill for a care home, why is it not important to have that in the Bill for an independent hospital?

[Caroline Dinenage]

It is in there—it is in both. In addition we have the AMCPs. As I said when discussed amendment 19, I fully understand hon. Members’ concerns around independent hospitals. I know the hon. Lady shares my concerns, and this matter has been raised by Members across the House. I said to her, in relation to amendment 19, that I wanted to go away and consider it further.

[Caroline Dinenage]

Yes, by requiring authorisation in independent hospitals to be considered by an AMCP, we add that extra level of scrutiny and build those safeguards into the model.

Given that I have committed to look at independent hospitals again, as I said in relation to amendment 19, I hope that the hon. Lady is willing to withdraw the amendment.

[Barbara Keeley]

I tried to ask the Minister another question. I do not want her just to go away and think about it. Is she prepared to look at adding the words “independent hospital”? Amendment 36 is a fairly simple addition of a few words. Is that what she is considering?

[Caroline Dinenage]

At this stage, I am prepared to say that I fully take on board and share the concern felt by the hon. Lady and others about ensuring that independent hospitals are not only seen to be above board, but are above board in every way that we can manage. That is why I have committed to looking again at everything that we have said so far to see if there is anything further we can do.

[Barbara Keeley]

I thank the Minister for saying that. She will need to go further and say that she is prepared to amend it on Report. Otherwise we will have to press our amendment to a vote. It is very important. I do not really understand the difference.

Ministers have accepted in the Lords that they want to prevent this important independent review from being conducted by a person with a prescribed connection to a care home. Responsible bodies include independent hospitals. I do not understand. If the Minister is prepared to go away and table a Government amendment we will not press this amendment to a vote. Otherwise, we will.

[Caroline Dinenage]

I appreciate the hon. Lady’s tenacity and dedication to this matter. I am afraid that, at the moment, all I can I say is that I am committed to looking at it again.

[Barbara Keeley]

That was helpful to know, because for us it is unacceptable for an independent reviewer to be employed by the same organisation that delivers care and support. That is unacceptable in a care home and in an independent hospital. The Bill is drafted too narrowly and precludes only individuals who are personally involved in the delivery of care. We certainly need to vote on the amendment. It seems to me to defy logic to have such a provision for care homes, but not to be every bit as cautious about independent hospitals.

Question put, That the amendment be made.

--- Later in debate ---

[Caroline Dinenage]

I thank the hon. Gentleman for that clarification, but we may be dancing on the head of a pin slightly. To my mind, the meaning of amendment 42 is that in all cases the AMCP should turn up and see the person, whereas we are saying that that should happen in all cases, with some very small exceptions. With that reassurance, I hope that the hon. Member for Worsley and Eccles South will withdraw the amendment.

[Barbara Keeley]

The Opposition believe, as the debate has shown, that the amendment would be a crucial safeguard. We have spent a lot of time discussing the code of practice, which is beginning to seem a bit like a unicorn—it is something out there that might or might not appear and be useful.

The amendment is important because the AMCP will have to be satisfied that the reality of the situation matches what is in the application. I am sorry that we are so often having to doubt care home managers and people working in independent hospitals, but that is only because we come across such appalling cases. Earlier today I cited the case of a young man in a care home who was deprived of his liberty for two years and restrained hundreds of times; other cases include people having their arms broken through the use of restraint techniques. All these things happen, and it does not help if an AMCP is prepared to accept the word of the care staff or the people in the independent hospital—the very people who have used the restraint that broke the arm or caused the damage.

I am afraid that we therefore wish to persist in pressing the amendment. I have made it clear that the meetings would not need to be burdensome, and I fully accept that there are circumstances in which a person doing such work will have to be flexible, but I would expect people with the appropriate knowledge, skills and experience to understand how to deal with an end-of-life care case and with the needs of very vulnerable people.

--- Later in debate ---

[Steve McCabe]

My amendments were probing amendments, so I do not wish to push them to a vote. I hope the Minister will reflect again on what I said about monitoring how the detention periods are used, because I fear there is a greater risk here than people may have anticipated. I beg to ask leave to withdraw the amendment.

[Barbara Keeley]

Can I just make a couple of points? There is near unanimity in the sector that three years for renewals is too long. Even the Alzheimer’s Society is worried about the impact it could have. The power on renewals lies with the managers of independent hospitals or care homes, who are people with a vested interest in renewing the authorisation and keeping the cared-for person as a client. In the amendment, we suggest a 12-month period, which would allow the renewal process to be built on the all the other assessments that cared-for people undergo annually as part of their care programme. That would avoid the process placing an excessive burden on them.

[Caroline Dinenage]

I am sorry for pushing everybody’s patience, but I need to clarify something the hon. Lady said. I am sure she said it inadvertently. She said that a care home manager can renew an authorisation. That is not correct. Only a responsible body can renew an authorisation and only when the responsible body is satisfied that the conditions continue to be met.

[Barbara Keeley]

The point remains for independent hospitals. In other amendments, we have tried to move that independent hospitals are not responsible bodies, but the Government did not accept those amendments.

Amendment, by leave, withdrawn.

Amendment proposed: 44, in schedule 1, page 18, line 24, leave out from “less” to end of sub-paragraph (1)(b).—(Barbara Keeley.)

This amendment limits the period of renewal of any authorisation to twelve months.

Question put, That the amendment be made.

Mental Capacity (Amendment) Bill [ Lords ] (First sitting)

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 15th January 2019 Public Bill Committees

[Caroline Dinenage]

As I said, due to the cumbersome and inefficient nature of the current DoLS system, many people are not receiving the vital protections they need. Members across the House heard on Second Reading that there is a backlog of 125,000 people waiting to have their safeguards considered. That is 125,000 people who are not receiving the protections they are entitled to, as well as families who do not have peace of mind and carers who do not have legal cover. Worse still, more than 48,000 of those people have been waiting more than a year for an authorisation to be considered. I hope hon. Members agree that that simply cannot be allowed to continue.

The Government tasked the Law Commission with reviewing DoLS and, after more than three years of extensive engagement, it concluded that the system needed to be replaced as a matter of pressing urgency. The Bill concentrates on the Law Commission recommendations that focus on the delivery model. In certain regards, such as making consultation on the individual’s wishes and feelings an explicit feature of the Bill, we go further than the Law Commission recommended.

The Bill has passed through the other place. We worked constructively with the Lords to make important changes, including by ensuring there is no conflict of interest in the role care home managers play in the new system and by removing references to “unsound mind”, which is outdated and stigmatising. We hope to continue working constructively as the Bill passes through the Commons. Indeed, I have already met hon. Members from across the House, as well as key sector stakeholders, to ensure that we listen and respond to their concerns. I know the hon. Member for Worsley and Eccles South cares as much as I do about getting this right.

Clause 1 inserts schedule AA1 into the Mental Capacity Act. This replaces DoLS with a new administrative scheme for authorising deprivation of liberty, known as liberty protection safeguards.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Austin. I look forward to the hours of important debate we have ahead of us on the Bill. Let us hope the temperature in the room balances out somewhat over the next few hours, because we are suffering a little bit at the moment.

I want to say clearly that the Opposition are committed to improving the Bill, despite the many reservations we have about not only its contents, but the way it has been developed so far. Should the Government push ahead with the Bill, our job is to ensure that it is the best it can be. We have tabled nearly 30 amendments, which are the minimum reforms needed to ensure that the Bill is fit for purpose.

I am sure that the Government want to produce a Bill that works. No Minister or Department wants to introduce a law that creates complicated case law and necessitates further legislation in the near future. We will work with the Government over the next few weeks to improve the Bill in a spirit of co-operation. If we can do that, we might just have a serviceable Bill at the end of this process.

We will not oppose clause 1 stand part. Indeed, clause 1 is the only part of the Bill that nobody is trying to amend.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Schedule 1

Schedule to be inserted as Schedule AA1 to the Mental Capacity Act 2005

[Caroline Dinenage]

I beg to move amendment 2, in schedule 1, page 5, line 19, leave out

“if a person objects to arrangements”

and insert “in certain cases”.

This amendment is consequential on Amendment 9.

--- Later in debate ---

[Caroline Dinenage]

In each case, these are professional social workers who have the required skills and training to make this kind of decision. We do not want to recreate the current system, which very much leaves families and loved ones excluded from the whole process. We want to make sure that their consideration is taken into account at the same time, but we also want to rely on the judgment of professionals, who are incredibly skilled and well trained and who will have the additional workforce training to ensure that they are able to carry out this function successfully.

Amendment 39 broadens the criteria for objections within liberty protection safeguards. The Bill currently provides that the referral must be made to the AMCP if there is a reasonable belief that the person objects to the arrangements to reside in or receive treatment at a specified place. The amendment would expand this to care and treatment overall. I agree that it is important to take into account a person’s wishes and feelings in relation to their care and treatment. It is really important to remember that the provision of care or treatment is already governed by section 4 of the Mental Capacity Act. This amendment to the Act does not override some of the existing parts of the Bill, which are very valuable. In these situations, a best interest decision would need to be made, having regard to ascertainable wishes and feelings, as set out in the Act.

If a person objects, or has objected in the past, to the care or treatment, this must be taken into account within best interest decisions. In some cases a best interest decision must be referred to a court if the person or their family objects. Nothing in the Bill changes this. The statutory code of practice will set out how liberty protection safeguards work within the wider framework of the Mental Capacity Act.

[Barbara Keeley]

I will come to this in more detail later, but constantly referring to a code of practice we have not seen is not helping us here. We are trying to make sure that the Bill is fit for purpose.

[Caroline Dinenage]

I completely understand the hon. Lady’s feelings on this. She will know, because we met and discussed this, that I am very keen that the code of practice is put together by taking on board the advice and guidance of all stakeholders and Members from across the House. This work has already started. We have a first meeting in a couple of weeks, where we will get all the stakeholders together to flesh this out.

This is a statutory document that will bear weight in a court of law. There has already been a lot of commitment in both Houses to what the code of practice will include, so we would like to provide Members during the Committee with a document that will set out exactly the sort of things that we are already committed to.

[Barbara Keeley]

Briefly, if the Minister had done what I asked her to do on Second Reading, and what 40 organisations asked her to do, and paused the Bill, she would have had time to develop the code of practice before we got to this point. We would have the Bill and the code of practice here, and we could check them. We do not have them. That is why we will have a problem.

[Caroline Dinenage]

I understand where the hon. Lady is coming from. The code of practice will be a living document. It will go alongside the Bill and have case studies. It has to be put together in a very co-operative and collaborative way. It will have to come before both Houses to be signed off before it can be published and released, so there will be plenty of opportunity for Members to get involved in drawing it up. I have committed to providing a list of what we have already agreed will be part of it. Members will get a chance to vote on it before it is published, and it will need the approval of both Houses because it is a statutory document.

--- Later in debate ---

[Barbara Keeley]

I agree with my hon. Friend that that argument makes the case for us. In amendment 37, we suggest that the Government adopt in the Bill the process for assessing risk that social services departments up and down the country currently use on the DoLS application backlog. That is what they are doing and that is why that important amendment should be taken forward.

In response to the points made about amendment 39, it broadens out the terms of objection that would trigger an AMCP review. As I showed with examples, it is not always about the location. Just being able to raise objections about location is not enough. People often object to forms of treatment. There are some very difficult cases, such as eating disorders. There are often difficulties around the treatment.

I gave the example of an older person receiving palliative care who did not want dialysis. Medical people might find it hard, but there are cases where somebody does not want a treatment but wants the course of their disease to progress. In the cases I have mentioned, people were forced into situations that they did not want and where they did not have a basis to object. I believe that there is a case to broaden the grounds of objection to include not just location but the other points we have put forward in the amendment.

I just wanted to finalise those points and pull together what my colleagues have said. We will push our amendments to the vote at the appropriate time.

[Caroline Dinenage]

A number of valid points have been raised by hon. Members and I will cover some in more detail when we reach the relevant part of the Bill. I want to get through as many as I can now that relate to this matter.

The hon. Member for Birmingham, Selly Oak may have done it with a cheeky smile, but he said that I am flirting and dismissive in the way I address amendments to the Bill. Can I reassure him from the outset that I have not been dismissive of any of the amendments? I take the Bill incredibly seriously; I am not flirting with it. I look at every single amendment to see whether it would add to the Bill. That is why we amended the Bill so much in the House of Lords. I have committed to that.

I want to talk briefly about 16 and 17-year-olds. The hon. Member for Worsley and Eccles South is absolutely right that we have to be incredibly careful. The current system just does not work for 16 and 17-year-olds and the only recourse is the Court of Protection. We see a swathe of 16 and 17-year-olds who have no protection and no form of DoLS. That is simply not good enough.

Before making this change, we gave careful thought to how the inclusion of 16 and 17-year-olds would interact with other legislation, including the Children Act 1989. We are comfortable that it would work alongside existing legislation. We also looked at the interface with the Mental Health Act and the Mental Capacity Act. Sir Simon Wessely, who is conducting the review of the Mental Health Act, suggests that that is the way it should go.

We have given careful thought to how parents are involved when their child is subject to liberty protection safeguards. Where appropriate, they will be consulted. We have to say “where appropriate” because of the very small number of safeguarding issues that could arise. That is the problem with having absolutes in the Bill. We do not want to recreate what we have at moment—a system that tries to catch all and to be one size fits all, but that ends up helping nobody. We want a targeted system focused on resources where they are needed most. That is why we have not taken a blanket approach to AMCPs.

The hon. Member for Stockton North suggested that the problem is something to do with resourcing, but it is not—it is about focusing resources where they are most needed. In a case where a young person agrees to their care, their parents are happy with it and all professionals agree it is in their best interests, what does an AMCP add? The case would still be reviewed by someone not involved in their care, through the pre-authorisation process. Every single application under the liberty protection safeguards will be carefully reviewed by someone not involved in their care or treatment.

[Barbara Keeley]

The Minister asks what an AMCP review adds; it adds independence at a point where family members are banned from contact, where 16 and 17-year-olds are involved. This is new legislation and a new process. In amendment 37, we suggest that there is a need for additional safeguards; the safeguards we suggest are the ones currently used by social services departments up and down the country.

[Caroline Dinenage]

With the greatest respect, I do not think the hon. Lady listened 100% to what I said. I said that in a case where the young person agrees to their care, their parents are happy with their care and all professionals agree that it is in their best interests, what does an AMCP add when there is already pre-authorisation scrutiny? It is not to do with resources but with wanting a targeted system that focuses resources where they are most needed, protecting vulnerable people in the very best way we can. We understand that there are particular concerns about the use of restrictive practices on young people with learning disabilities or autism. That is why we have tabled an amendment to clarify that responsible bodies can refer cases other than those with objections to an AMCP. In many cases, we would expect that to happen.

The code of practice keeps being referred to as something peripheral, but it is key. The hon. Member for Birmingham, Selly Oak talked about not having the ability to scrutinise it. There is not only the ability to scrutinise the code of practice; hon. Members can contribute to it. That is why it is very important that it is laid out in the way my hon. Friend the Member for Halesowen and Rowley Regis said. That is exactly the place where we lay out the case studies, individual concerns and the very complex cases that need to be definitively scooped up by this Bill. Trying to do a catch-all in the Bill would not provide sufficient protection for the people we all care so desperately about.

--- Later in debate ---

[Caroline Dinenage]

I disagree. We are not putting more responsibilities on to local authorities—we are just targeting them better. The hon. Gentleman says £2 billion would be a small price to pay. That would be £2 billion wasted on a system that all the stakeholders across the board say is not fit for purpose, whatever their feelings about the Bill at the moment. The hon. Gentleman worked in his local authority, and he will know that there is desperate waste in the system. We are trying to get to the bottom of that waste here; we are trying to make sure that the money is much better spent, supporting the vulnerable.

[Barbara Keeley]

It is important that we do not tar all local authorities with the same brush. The overall situation is as the Minister presents it, but my hon. Friends are right to highlight that some local authorities—Stockton is one—have decided, in the current situation of cuts, to dedicate resources, and they have a very low backlog. In my own area of Salford, fewer than 200 applications were outstanding at the end of last year. In the London Borough of Bexley, the backlog is as low as 20 cases, and it had 1,385 applications last year. Some of our larger authorities—Salford, Bexley and Stockton—have decided to dedicate resources to this area, to effectively take resources away from other areas of their operation and to make this area a priority.

I met with DoLS leads in stakeholder meetings for the Bill, and they have a feeling that we are somehow denigrating them and running them down. A brilliant job is being done in places such as Salford and Bexley, and certainly Stockton. I do not want to send out a message from here that a resource problem that came up on this process because of the Cheshire West decision should be used to denigrate a process that can work and is working in some of our larger authorities. I hope the Minister will agree.

[Caroline Dinenage]

I agree very much with that sentiment. We know that local authorities up and down the country are doing sterling work processing applications, but we also know that there is huge geographical disparity, and there are vulnerable people who are not being looked after, with 125,000 cases in the backlog—48,000 of those for more than a year. As with the case of my uncle, many of those cases could already be moot. He had been in and out of hospital and was already back in his care home, and two DoLS applications were still sitting waiting on the backburner that would now never need to be done and were just adding to the bureaucracy, when there are other valid and vulnerable cases waiting to be addressed.

I will move on to a few other issues that were raised. The hon. Member for Worsley and Eccles South raised objections in terms of medication rather than location. There must be a best interests meeting, and sometimes a court hearing, on things such as covert treatment. That is already part of the Mental Capacity Act. We want objections to be considered as broadly as possible. They can be raised by those with an interest in welfare, a family or an independent mental capacity advocate. Streamlined systems mean that objections can be considered more quickly and can be acted on sooner.

The hon. Lady also spoke knowledgeably and passionately about the case of Steven Neary, who was held for a year despite parental objections. Under the provisions in the Bill, Steven’s parents would have been able to raise an objection on his behalf. Independent AMCPs would meet Steven and his parents. They could determine that conditions are not met and could agree arrangements so that these things would not be authorised. That type of provision would need to be reconsidered if they continued to deprive him of his liberty; it would be a breach of statutory duty but also of article 5 of the European convention on human rights.

[Barbara Keeley]

The Minister is making an assertion there, but to my view, the crux of the Steven Neary case was that the social worker involved listened to the care home staff and not to Steven Neary’s parents. She dismissed his parents’ objections entirely. We have talked about that substantially, and it is an important aspect. His parents’ objections were ignored, and it is quite clear from the court case that the social worker just listened to the care home managers. The Bill, as we will discuss later, just brings that to the fore. We will cover that later, but the Minister should not jump over that point in talking about that specific case.

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[Caroline Dinenage]

I am grateful to the hon. Lady for clarifying that point, but I feel strongly that having an independent responsible body overseeing how these things are processed will make matters clearer.

[Barbara Keeley]

It is not clear what the Minister is saying there. In the specific case of Steven Neary, which independent responsible body would have done that? The local authority is the responsible body. This was a case of a care home and a young man held against his wishes and his parents’ wishes. Which independent responsible body is the Minister talking about? That did not work in the Steven Neary case. The parents were ignored.

[Caroline Dinenage]

The hon. Lady makes a strong point, but that underlines the issues we have with DoLS at the moment: despite a backlog of 125,000 and a cost ticket of £2 billion, the system is not working. That is why we need to change it.

I will talk briefly about the ADASS—Association of Directors of Adult Social Services—tool. ADASS worked carefully to develop it in response to increased numbers of cases, which were overwhelming some local authorities. That included recognising issues such as clear objections that are raised and providing help with prioritising important cases, but it still leaves that 125,000 backlog, and that is unacceptable. There are various other issues about how we will resource it, but we will discuss those nearer the time.

In conclusion, AMCPs can consider any relevant case —for example, a particularly restrictive practice that is being used, or people with mental disorders. In this case, an AMCP can complete the pre-authorisation review. We will set out the detail, the case studies and clear guidance when we have the statutory code of practice. Every authorisation must be reviewed by somebody who does not deliver the day-to-day care or treatment, and the pre-authorisation reviewer must be satisfied that the authorisation is valid before approving it.

AMCPs should have the opportunity in certain cases to allow a targeted approach that will deliver a more efficient system and to allow people the better protections they need more quickly. I appreciate 100% the hon. Lady’s concerns about the conflict of interest in independent hospitals. We will discuss that at greater length, but she knows I share her concerns about how individuals in those settings can best be protected.

Amendment 2 agreed to.

[Barbara Keeley]

I beg to move amendment 19, in schedule 1, page 8, line 17, at end insert—

“(aa) if the arrangements are for the cared-for person to be accommodated in an independent hospital for the purpose of assessment or treatment for mental disorder, and that care is commissioned by a clinical commissioning group or Local Health Board, it is the clinical commissioning group or Local Health Board, that is the responsible body;”

This amendment would mean that, where a person is accommodated in an independent hospital for the assessment or treatment of a mental disorder, and their care is commissioned by a CCG or Local Health Board, then the responsible body will be the CCG or Local Health Board.

Mental Capacity (Amendment) Bill [ Lords ] (Second sitting)

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 15th January 2019 Public Bill Committees

[The Minister for Care (Caroline Dinenage)]

It is a great pleasure to respond on the amendment, after our short break, in this delightfully warm and cosy room. I will start by addressing some of the issues raised by hon. Members.

The Opposition spokeswoman, the hon. Member for Worsley and Eccles South, spoke powerfully about concerns to do with independent hospitals and, more particularly, about the case of Bethany. We are absolutely clear that it is completely unacceptable to be subject to prolonged seclusion in the way that the hon. Lady mentioned. We have commissioned an independent review under the NHS serious incident review framework. That does not necessarily have to do with the Bill, but I felt it important to set that out for clarity. In addition, the Secretary of State commissioned a section 48 Care Quality Commission review of restrictive practices, including seclusion and long-term segregation, to understand the extent to which these things happen. NHS England is working very urgently to support Bethany into a community placement. Her father and Mencap have issued a pre-action protocol to challenge the current arrangements.

More broadly, with regard to the Transforming Care agenda, detentions of people with learning disabilities and/or autism in mental health hospitals are completely inappropriate and must end. We will achieve a 35% reduction in that at the earliest opportunity.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

Can the Minister say why the NHS long-term plan appears to go backwards on that? It is going from 25 people with a learning disability or autism in an in-patient unit per million adults to 30. That does not sound like progress; that sounds like removing a priority.

[Caroline Dinenage]

I understand why the hon. Lady says that, but looking at it in context, we committed to reducing the numbers by between 35% and 50% by the spring. There is no dilution of that commitment, but we have recognised that ensuring that community alternatives are robust is absolutely fundamental, because as she is well aware, we have seen people taken out of hospital settings and put into the community, but ending up back in hospital because community facilities were not sufficiently robust. That is why, as part of the NHS long-term plan, both autism and learning disability are highlighted as one of the four clinical priorities.

The plan commits to building in full the right support, to continuing that support, and to reducing in-patient numbers by 50% no later than 2023-24. The key is an enduring commitment—not knee-jerk reactions to an awful circumstance such as that mentioned by the hon. Lady—to address the issue for vulnerable people in the long-term. We are clear that in assessment and treatment units, the sorts of restraints we are talking about should be very much a last resort. We are committed to supporting those with learning disabilities and autism to live well in the community, and to putting an end to inappropriate detentions.

The amendment seeks to make clinical commissioning groups in England and local health boards in Wales the responsible bodies for arrangements in cases where they commission the care of people accommodated in independent hospitals. I am sure the whole Committee agrees—I know the hon. Lady does—that it is vital to provide protection to vulnerable people in independent hospitals. We have all seen how the misuse of authority in such settings can lead to the kind of tragic and unacceptable consequences that she highlighted.

The Bill demonstrates the Government’s commitment to ensuring that vulnerable people receive protection. The Government have further strengthened those protections with amendment 9, which requires an approved mental capacity professional to conduct the pre-authorisation review if the cared-for person receives care or treatment mainly in an independent hospital. By requiring authorisations in independent hospitals to be considered by an AMCP, regardless of whether there is any objection, we add a further level of security. The AMCP will meet with the person concerned, complete a consultation and review assessments to decide whether the authorisation conditions are met.

I further reassure Members that the AMCP will act independently of the responsible body. I know that the hon. Lady has concerns about that. The AMCP will be approved by a local authority, act as an independent decision maker and be accountable to their professional body. Those acting as AMCPs will be experienced professionals who have successfully completed approved post-qualification specialist training, which will require them to demonstrate the capability to ensure and promote the person’s best interests and protect their rights.

[Barbara Keeley]

The point I was making very strongly, and which I ask the Minister to consider again, is that it is easy to see a situation in which the relationship between an independent hospital and a preferred list of AMCPs could get very cosy, with the AMCPs working only in those hospitals and the work starting to become a large part of their livelihoods. The Minister cannot reassure me that that would not happen. The responsible body is entirely responsible for the whole process of selecting the AMCP and making the arrangements, and it can just plump for the same people time and again, and develop a cosy relationship. That is a real fear.

[Caroline Dinenage]

The hon. Lady has legitimate concerns. Making the responsible body the independent hospital was a recommendation in the Law Commission report. Amendment 19 changes the responsible body in cases where a CCG or a local health board is responsible for commissioning the care of people for the assessment or treatment of a mental disorder.

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[Caroline Dinenage]

The hon. Gentleman makes a good point; we have to look at that interaction. The AMCP will be a professional social worker, will be accountable to a professional body, and will have the high level of skills and training to enable them to carry out their job with great professional integrity. However, the reasonable concerns that have been raised by hon. Members need to be taken into consideration, and I find the suggestion that they make in this amendment very interesting; I have a good deal of sympathy for it, and am certainly willing to reflect further on the amendment. The problem is that its exact wording does not work. We need to ensure that any changes work for the whole system. We also know that there are examples of NHS England commissioning the care from an independent hospital; it is not just CCGs. With that in mind, I commit to considering this amendment further. I hope that answer enables hon. Members to withdraw it.

[Barbara Keeley]

Our concern is that the Bill enshrines a fundamental conflict of interest by allowing independent hospitals to be the responsible body for deprivation of liberty in their own hospitals. That is what is wrong: they have that power in their own hospitals. They are not independent of the people who are in those hospitals, and the important thing is that, as I have described, these are organisations with a vested interest in putting people in their hospitals. There was not much debate about this issue in the House of Lords, because the Lords concentrated on the role of care home managers, but the point was made that the vested interests of independent hospitals are different from those of NHS hospitals.

NHS hospitals are not perfect. We have had awful issues in them; Connor Sparrowhawk’s death happened in an NHS hospital, as did other deaths. As the Minister will know, when somebody is admitted to an NHS hospital, the pressure on the system is to get them discharged. That is not the case here. The Minister knows from the case of Bethany, which I cited, and from other cases that the vested interest of independent hospitals is to keep people there. Maybe we should be looking at fee levels separately, because that is part of that vested interest, but there is a vested interest, and I would not be content to allow the situation that this Bill permits. Independent hospitals have a very substantial vested interest; the Minister heard the figures that I gave. Those are serious amounts of money, and a serious waste—it is not even a good use of money in the NHS.

Independent hospitals often receive hundreds of millions of pounds in public funding every year. They are not all bad, I am sure, but programmes such as the BBC’s “File on 4” and journalists such as Ian Birrell have repeatedly revealed cases in which they are bad and things are going wrong, the most recent being the Priory group and the death of young Amy. That hospital was making £720 million out of the NHS every year. These hospitals receive public funding, and they are not up to the job that they are doing. I ask the Minister for Care to accept that these independent hospitals are, in too many cases—we do not know what proportion—deeply flawed. The company I just mentioned had been criticised by the coroner 20 times since 2012—Southern Health had a lot to answer for—so we are not talking about one or two deaths.

As I mentioned, 40 people died in assessment and treatment units between 2015 and 2018. There are numerous cases involving the bodies that the Bill designates as responsible for organising this whole process, and that is what is wrong. The Government amendment, which will involve AMCPs in these cases, is not sufficient. It is clear to me that the power of deprivation of liberty should never lie in the hands of the organisations I have talked about, which are making such profits and have such vested interests.

The Minister is clear that she wants to address the appalling abuse that is sometimes meted out in independent hospitals, and I believe she is sincere about that. However, without this amendment, there is a danger that the Bill will enable more of that type of case, because it is clear to all parties that more cases will be dealt with under this new process than under the Mental Health Act 1983—and the Act has more safeguards.

In my view, the wrong signal is being sent at this time of heightened concerns about these hospitals. If the Minister is concerned about this issue, she should be prepared to accept the amendment. We will press it to a Division; it is important that we do so. If there is anything we can do to improve the amendment before Report, we will do it, but we are going to press it to a vote today.

Question put, That the amendment be made.

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[Caroline Dinenage]

I beg to move amendment 3, in schedule 1, page 8, line 19, leave out from “mainly” to “that” in line 21 and insert

“through—

(i) the provision of NHS continuing healthcare under arrangements made by a clinical commissioning group, or

(ii) in Wales, the provision of an equivalent to NHS continuing healthcare under arrangements made by a Local Health Board,”.

“NHS continuing healthcare” is defined, for England, by paragraph 8 of new Schedule AA1. This amendment provides that in the case of arrangements carried out through the equivalent of NHS continuing healthcare, in Wales, the responsible body is the Local Heath Board making the arrangements.

This is just a technical amendment that will help to ensure that the new liberty protection safeguard system, which I am sure we all agree is a really important part of this process, works well in Wales. There is no statutory definition of “NHS continuing healthcare” that applies to Wales. The amendment clarifies that, while in England the CCG will be the responsible body when care arrangements are mainly done through continuing healthcare, in Wales, local health boards will act as responsible bodies, if the arrangements are mainly carried out through the provision of an equivalent to NHS continuing healthcare, as defined in English legislation.

In the new system, the responsible body will have the important role of arranging pre-authorisation review, in which a person independent of delivering the day-to-day care or treatment will review the arrangements before authorising them. This is a vital safeguard in a system that will ensure that arrangements receive proper scrutiny.

I put on the record my thanks to colleagues in the Welsh Government who have worked with us to ensure that the drafting of this amendment will allow the system to work in Wales as the Law Commission recommended and as the Government intend. I ask the Committee to support the amendment.

[Barbara Keeley]

We welcome this amendment, which gives clarity on arrangements in Wales, so that there is uniformity with England through the equivalent to continuing healthcare arrangements.

Amendment 3 agreed to.

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[Barbara Keeley]

I thank my hon. Friend for introducing his amendment. Through the progress of the Bill, we are discussing the circumstances where it is appropriate to deprive someone of their liberty. That should never be done lightly. Nobody should be deprived of their liberty unless it is in their best interests. That point is really worth making and it should go without saying, but the Bill does not give an assurance that this will always be the case.

I acknowledge that other areas of the Mental Capacity Act 2005 discuss this interest, but it is such a vital point that it bears being made again. We cannot leave practitioners in any doubt that best interest must be foremost in their mind when they are making decisions. Best interest, of course, should not be entirely decided by practitioners. Even where people lack capacity, we must do everything we can to take their wishes into account. Again, I hope this is an obvious point, but it is not in the Bill.

Part of the difficulty of having such a short Bill is that many words should be included to make the concept clear and they are not there. I am sure the Government do not wish to see people deprived of their liberty when it is not in their best interest. I am absolutely sure about that. I look forward to hearing from the Minister how the Government will ensure that that is the case.

The amendment also makes clear that deprivation of liberty should be allowed only if there are no less restrictive alternatives—that is a key point. Nobody should be deprived of their liberty because it is easier, cheaper or requires less paperwork, or, indeed, because it is more expensive and makes a profit for firms. If there is a way to keep somebody safe that does not deprive them of their liberty, we should always seek to pursue that.

I have touched on the fact that thousands of people with autism and learning difficulties are currently held in assessment and treatment units. A number of people in mental health hospitals, independent hospitals and others are being held under the Mental Capacity Act. I gave the numbers of applications that are made under the deprivation of liberty safeguards earlier. We know that they are kept in isolation and denied freedom. I have no doubt that in some cases they were exhibiting challenging behaviour, and that became the path of least resistance. That is why it is very dangerous. If the amendment were accepted, hospitals and care homes would have to consider whether there were less restrictive ways to keep someone safe. Those other less restrictive ways may not be the easiest to organise, but that is not a good reason to deprive somebody of their liberty.

As the Minister knows, these topics were all raised in the House of Lords. She may say that everything will be laid out in the code of practice, but we do not have that in front of us and, as I made clear earlier, it will not carry the same weight as statute. The Bill is relatively short and it can bear additions; indeed, it is so brief that it needs them. Putting these provisions in the Bill would make intentions clear to practitioners. The deprivation of liberty should be a last resort and, of course, should never happen if it runs against a person’s best interest. The intention of the amendment by my hon. Friend the Member for Birmingham, Selly Oak is noble and I hope the Government will take it on board.

[Caroline Dinenage]

I thank the hon. Member for Birmingham, Selly Oak for highlighting the issue, about which I always listen to what he has to say. Of course, he is quite brilliant in his own special way, and he has taken a lot of time to engage with me and to do his homework on the subject, which is close to his heart. I am grateful for that.

I share the hon. Gentleman’s sentiment. As the hon. Member for Worsley and Eccles South said, we are talking about depriving somebody of their liberty, which is our most fundamental human right, so we cannot do it quickly, based on cost, or based on the current system, which Simon Wessely described as a “perfunctory and box-ticking” exercise. It has to be done with people’s best interests, and their wishes and feelings, at heart. Excellent care and the interests of the cared-for person have to be at the heart of everything we do.

In responding to the points the hon. Gentleman made in moving the amendment, it is worth reminding hon. Members that the Bill will not replace the current Mental Capacity Act 2005, but amend it. Best interest decision making remains fundamental to the existing Act, within which the liberty protection safeguards will sit. Before a liberty protection safeguards authorisation is considered, it will need to be decided that the arrangements are in a person’s best interests. That is included in section 4 of the 2005 Act. It must then be demonstrated that arrangements to enable that care and treatment are necessary and proportionate.

I understand the hon. Gentleman’s concern about the words “necessary” and “proportionate”, but the word “proportionate” was chosen because it has a specific meaning in human rights case law. It means that assessors must consider less restrictive options, and cannot base their decisions purely on cost or any other box-ticking exercise. The word “necessary” is used in conjunction with the word “proportionate” in the Bill, which means that the arrangements must benefit the person.

That part of the liberty protection safeguards takes place at the second stage test. I agree with hon. Members that it is fundamental for people deciding whether to authorise a deprivation of liberty to consider whether less restrictive options are available. A necessary and proportionate assessment would also include the consideration of less restrictive practices. Considering less restrictive alternatives is already an important aspect of the wider 2005 Act. In fact, the fifth principle of that Act specifies that decision makers have to have regard to less restrictive options. Nothing in the Bill changes that. Indeed, we will ensure that that is a core part of the consideration of what is necessary and proportionate.

On the matter of wishes and feelings, which the hon. Gentleman talked about so powerfully, it should be noted that they are already part of the first stage of best-interest decision-making under section 4 of the 2005 Act. I can confirm that the Bill does not change that. Wishes and feelings will form a key element of the necessary and proportionate test. During the Bill’s passage in the other place, we tabled an amendment that makes it explicit that regard must be given to a person’s wishes and feelings in relation to arrangements. We tabled a second amendment that explicitly requires the cared-for person to be consulted under the consultation duty. Those amendments were made purely because we agree that the person’s wishes and feelings should be at the heart of the liberty protection safeguards process.

I hope that that provides some clarification and reassurance for the hon. Gentleman. I am certainly not in the business of keeping the Bill as small and tight as possible just for the sake of it; if there are amendments that I feel will materially add to the Bill, I am more than happy to take them on. In this case, I hope that the hon. Gentleman will withdraw the amendment.

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[Caroline Dinenage]

I beg to move amendment 4, in schedule 1, page 11, line 19, leave out from beginning to end of line 7 on page 12 and insert—

“13 (1) As soon as practicable after authorising arrangements, the responsible body must ensure that a copy of the authorisation record is given to—

(a) the cared-for person,

(b) any independent mental capacity advocate appointed under paragraph 39 to represent and support the cared-for person,

(c) any person within paragraph 39(5) in respect of the cared-for person (the “appropriate person”), and

(d) any independent mental capacity advocate appointed under paragraph 40 to support the appropriate person.

(2) As soon as practicable after authorising arrangements, the responsible body must take such steps as are practicable to ensure that the cared-for person and any other person listed in sub-paragraph (1) understands—

(a) the effect of the authorisation,

(b) the right to make an application to the court to exercise its jurisdiction under section 21ZA,

(c) the programme of regular reviews specified by the responsible body in accordance with paragraph 35(2),

(d) the right to request a review under paragraph 35(3)(b),

(e) the circumstances in which a referral will be made to an Approved Mental Capacity Professional under paragraph 35(4),

(f) the circumstances in which an independent mental capacity advocate should be appointed under paragraph 39, and

(g) the effect of there being an appropriate person in relation to the cared-for person.”

This amendment substitutes a new paragraph 13 of the new Schedule AA1 to require that, as soon as practicable after arrangements are authorised, the responsible body must provide to the cared-for person and any other person listed in paragraph 13(1) a copy of the authorisation record and take steps to ensure that those people understand the matters described in paragraph 13(2).

This amendment relates to the responsible body’s duty to provide information to the person receiving protections, an appropriate person, or an independent mental capacity advocate. When depriving someone of their liberty, it is crucial that they are provided with all the information necessary for them to exercise their rights. Arrangements under liberty protection safeguards will not simply be something that is done to a person, but a process they are part of—I hope that I have already explained that quite plainly in answers to previous amendments.

The duty to provide information derives from article 5 of the European convention on human rights, which is brought into effect in UK legislation through the Human Rights Act 1998. The Law Commission did not outline this duty in its draft Bill. However, views expressed in the other place have made it clear that this Bill should reflect the right to information explicitly on its face. This amendment has therefore been tabled to provide clarity on exactly what is required.

The amendment requires the responsible body to provide a copy of the authorisation record to the person under protection, as well as any appropriate person or independent mental capacity advocate, or IMCA, as soon as practicable after the authorisation is granted. It also specifies that the responsible body must, as soon as practicable after authorisation, ensure among other matters that the person understands the effect of the authorisation and their right to challenge it in a Court of Protection.

The amendment replaces the amendment inserted in the other place on this matter, which was unfortunately not workable within the existing Mental Capacity Act. The Lords amendment set out a range of information that should be shared with the person, but it did not provide clarity on where this information should be shared, which could lead to practical difficulties for practitioners and create exactly the sort of legal loopholes we are trying to avoid.

The Government amendment clarifies exactly what information needs to be provided and to whom, as well as specifying a clear point at which information should be shared. It will impose a legal duty on responsible bodies, so it must be clear where these duties arise. Information can, of course, be shared prior to this point, and in most cases we would expect and encourage this. We will set out more details of this in the code of practice and hopefully make that as explicit as possible.

The amendment is explicit about the point at which the information about the authorisation must be shared, and I hope the Committee will support it.

[Barbara Keeley]

Opposition Members cannot support Government amendment 4. The evidence provided to this Committee by Lucy Series suggests:

“Article 5(2) ECHR requires information to be provided to the person—or others capable of representing them—about the legal and factual basis for the deprivation of liberty and rights of appeal, in a language that they understand, so that they can exercise rights of appeal.

Both the DoLS and the MHA”—

the Mental Health Act—

“set out in statute who is responsible for providing this information to the person and any others representing or supporting them. It places explicit duties on the detaining authorities to take all practicable steps to help them to understand it. Surprisingly, this Bill did not contain rights to information when first read in the House of Lords; section 13 on ‘rights to information’ was inserted into the Bill after…a vote in the Lords.”

The Government’s new amendment would restore the fundamental imbalance in proposals that were removed by the House of Lords in the current paragraph 13 in regards to rights of information. Paragraph 13 established that the individual would receive information about their rights in a meaningful way in advance of the authorisation. That was a critical addition. Being giving information before authorisation of a deprivation of liberty is a fundamental human right.

Where a person would not be able to understand the information, it must be given to others capable of representing their interests. That is also a crucial condition, for several reasons, which were explained in the debate in the House of Lords. First, receiving information is critical because, in many cases, having information given to cared-for people and their families at the outset can clear up misunderstandings that can unsettle the cared-for person. Most people will not know what the liberty protection safeguards are, let alone have a good understanding of how they work. Knowing what the liberty protection safeguards are, the reasons for a cared-for person’s detention, and what recourse they have to change the situation in which they find themselves are critical parts of the entitlement to appeal. Knowing that the cared-for person can review this decision reduces anxiety, even if they do not wish to exercise that right of challenge at that point.

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[Caroline Dinenage]

I completely agree that information sharing is vital in the system, and that it should be done at the earliest possible point. Liberty protection safeguards are not something that should simply happen to an individual, but something they need to be involved in from the outset. The Bill specifies that information must be shared after an authorisation is granted, purely because that is a legally cogent point. It includes having a watertight trigger point for information sharing from a legal perspective, but it does not prevent information from being provided beforehand.

Unlike the amendment tabled in the other place to existing paragraph 13, this amendment provides a clear trigger point to specify when information about the authorisation must be provided. We are clear that that point is absolutely the latest point at which information should be shared. In the vast majority of circumstances, that should be done much earlier, or at the very beginning of the process. The amendment does not prevent that from happening. The code of practice will provide detail regarding when it is appropriate to do that, and I have already made a commitment to the Committee to set out what will appear in the code of practice—

[Barbara Keeley]

The Minister cites legal points, but I read out earlier that article 5 of the European convention on human rights requires that a person be given information about the legal and factual basis for their deprivation of liberty so that they can exercise their right of appeal. Telling them after the authorisation process does not meet that requirement. I cited a case in which only on understanding their right to appeal was the person able to exercise that right, which brought about a less restrictive care situation. Apart from mentioning the code of practice again, the Minister has not explained why the focus has shifted from before an authorisation to afterwards. That cannot be right.

[Caroline Dinenage]

I hope that what I will say gives the hon. Lady more clarity. Amendment 4 follows the current approach in the deprivation of liberty safeguards system—the DoLS system—which requires information to be provided as soon as practicable after authorisation is granted. We agree that from a legal perspective, that is a clear point at which we will always be able to carry out that duty. Amendment 4 removes the requirement to provide information about the process, which was in existing paragraph 13. This is a matter of drafting, but the paragraph did not list the significant parts of the process about which a person must be informed.

The Bill ensures that the person has the right to representation and support from either an advocate or an AMCP. If there is no appropriate person and the person does not have capacity, there is an effective presumption that an independent mental capacity advocate—an IMCA—will be appointed. Responsible bodies will ensure that the person has representation and support. The Government amendment includes steps to ensure that the cared-for person and the IMCA understand the authorisation and the right both to review and to access court.

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[Caroline Dinenage]

We will do that during Committee. The hon. Member for Stockton North spoke about the involvement of expertise, particularly in assessing those with speech and language difficulties. That is something that I am really interested in. It was also raised on Second Reading by the hon. Member for Swansea West (Geraint Davies), whom I met yesterday to discuss the matter. I am aware that sometimes a speech and language difficulty can be misinterpreted as somebody lacking mental capacity.

Speech and language therapists already play an important role. We are putting an individual’s voice at the heart of the process, meaning that speech and language therapists will play an even greater role. We agree that their skills are essential and that all relevant health care professionals will recognise the role of speech and language professionals. That will be part of the training for this new role.

[Barbara Keeley]

There will be confusion about this, because the Minister is going back over what she has already said. Can she explain to me and my hon. Friends why the Government amendment would remove the following important steps:

“Prior to the authorisation process, the cared-for person must be fully informed of their rights…The responsible body must take such steps as are practicable to ensure that the cared-for person and any appropriate person…representing and supporting them understand the possible outcome of the assessments, the reasons why the cared-for person may be deprived of their liberty and their rights—”?

I do not understand why the Minister thinks it is a good idea to table an amendment that starts:

“As soon as practicable after authorising arrangements, the responsible body must ensure that a copy of the authorisation record is given”.

We will lose the vital early stage of explaining to the person or their advocate what is going to happen, and explaining the person’s rights. Existing paragraph 13 has widespread support. I have explained to the Minister that I think the Government have done badly in talking to stakeholders. To remove a provision that has widespread support—I have quoted some of the organisations that support it—is really rather shocking. For the Government to remove the requirement to provide explanations and fully inform a cared-for person of their rights seems to me to be a contravention of human rights and a serious matter. The Minister has not explained why the Government are doing this.

[Caroline Dinenage]

Let me explain why in two short sentences. In delivering a better and more effective system, we must ensure it is legally cogent. That includes having a watertight trigger point for information sharing.

[Barbara Keeley]

I do not understand that point.

[Caroline Dinenage]

I am very happy to discuss the matter further with hon. Members, but the issue is that there is not a watertight trigger point. When we say that information must be delivered at the earliest opportunity, it is very difficult to codify and define that in law.

[Caroline Dinenage]

I am happy to commit to going away and looking at the matter again. I understand that it worries hon. Members; if I am honest, it worries me, too. As I understand it, the reason is that the starting point is different, depending on the individual circumstances.

That is the problem we have had with the current Bill, from beginning to end. We are looking to create a Bill that satisfies the needs of somebody like my elderly uncle who was living with dementia, as well as the needs of a 16 or 17-year-old who was born with a learning disability. We want the same Bill to cover the needs of a 30-year-old who has been involved in a road traffic accident and has an acquired brain injury.

It is very difficult to ensure that we cover the legal bases and offer the protection needed by every one of those individuals, with their own personal support requirements. That is why we have to pay close attention to what is legally cogent, and why it is important to ensure that the Bill contains a watertight trigger point.

[Barbara Keeley]

I read out the evidence given by Lucy Series to this Committee. I am not a lawyer. We are talking about legal cogency, and I think that that is a difficulty, but the European convention on human rights requires information to be provided to the person or the people representing them about the legal and factual basis for the deprivation of liberty and about their rights of appeal in a language that they understand so that they can exercise rights of appeal. Where is that in Government amendment 4? It does not appear to me to be anywhere. The amendment starts with “after authorising arrangements”. The Minister talks about cogent points, but she has not given me any cogent information about why she is shifting the point at which people are entitled to information to after the authorising of arrangements. That is not right. I have read out the evidence and advice given to the Committee by a very qualified lawyer, which is that the European convention on human rights insists that the information has to be given at the start, not halfway through the process.

[Caroline Dinenage]

I will say in response only that amendment 4 follows the approach taken in the current DoLS system.

Question put, That the amendment be made.

--- Later in debate ---

[Barbara Keeley]

I have picked up that it was generally thought that Ministers, and possibly the Bill team, have a rather honeyed view of the relationship between local authorities and care home managers, and of how much care home managers get involved in care planning. She has just illustrated that point.

These are the points that the Minister seems to be ignoring and needs to answer. First, 11% of care homes have no manager; there is an 11% vacancy rate. Secondly, one in 20 care homes requires improvement or is inadequate. She has talked about care home managers being involved in care planning, but that does not happen in the 11% of care homes where there is nobody there to do it, or in inadequate homes. In the care home that collapsed recently in Tameside, the staff effectively took over almost everything. There are many care homes—thousands, according to my hon. Friend the Member for Stockton North—possibly dealing with 70,000 people, that are not in an acceptable situation. There appears to be no recognition in the Bill, or in anything around it, that that is the case with our care sector.

[Caroline Dinenage]

I understand the hon. Lady’s concerns, but she is not 100% correct. Where there are concerns about the care home, it is possible for the local authority, which would normally be the responsible body, to carry out these functions. Care home managers should be able to arrange assessments and identify and provide valid assessments previously completed by the responsible body. Let me say why. This goes to the crux of why care homes and the system face this overwhelming bureaucracy today.

Let us take a straightforward case, such as that of my uncle, whom I spoke about earlier. He was in a care home—he is sadly no longer with us—and he was very happy. We were very happy with him being there. There was a clear medical assessment of his condition and his state on the care home’s books. Why couldn’t the care home manager gather that? If there was no care home manager, or if the local authority—the responsible body—had any concerns about that person, their role, or their ability to fulfil that function, they could do it themselves, as they currently do.

--- Later in debate ---

[Caroline Dinenage]

I am more than happy to do that, and I will deal with that shortly. The amendments would remove the role from the care home manager entirely, and would separate the liberty protection safeguards from the wider care planning that is already being done. It risks recreating the existing failing system, in which DoLS are too often considered a separate, overly bureaucratic, one-size-fits-all, box-ticking exercise.

We have to be careful. The hon. Member for Worsley and Eccles South rightly spoke about not castigating local authorities. She also mentioned that we must not demonise care providers. I agree. Of our care providers up and down the country, 83% are rated good or outstanding. They provide an incredible level of professional integrity and care, as well as daily vocational commitment, sometimes in difficult circumstances.

[Barbara Keeley]

I want to pick up what the Minister for Care says about DoLS being a box-ticking process. I have given at least two examples of people being freed from a totally inappropriate care setting because of a well-run DoLS process. The DoLS process runs well in my local authority, in Stockton and in other large authorities. Let us not denigrate that. With regard to care homes, 83% are better than satisfactory, but 17% are not, and 11% have vacancies. Unless we are talking about a figure in the high 90s, we cannot have confidence. We have properly trained DoLS assessors. She is calling that a box-ticking exercise, and says that half a day’s training for a care home manager—when almost one in five of them are not doing an adequate job—is somehow going to be better. It is not. It will be disastrous in some cases.

[Caroline Dinenage]

I would just say to the hon. Lady that I am quoting Sir Simon Wessely. In his view, this is too often a bureaucratic tick-box exercise and does not put the individual, their wishes, feelings and best interests at the heart of what we are all trying to achieve. I would also reinforce what I said to her before: the responsible body can decide to carry out these functions where there are concerns about the quality of the care provider. That might be because there are inexperienced staff at the helm, or no care home manager, or even particularly strong social worker involvement. When it is appropriate, the responsible body can carry out the functions. The Bill already makes provision for the involvement of social workers and allows for that where appropriate. We also need to ensure that self-funders, who have had very little involvement from a responsible body, receive protections. Removing all forms of role for care home managers could easily risk such people falling through the cracks.

The hon. Member for Worsley and Eccles South raised a couple of issues that I want to address. We absolutely agree that families should be able to object, and the Bill is very clear that those with an interest in the welfare of cared-for persons can flag objections on the person’s behalf. An AMCP can review the case. That can be done directly with the responsible body, bypassing a care home, which solves the problem where people have the experience that the hon. Lady spoke of, where they do not have a good relationship with the care home. If they do not have confidence or are worried about raising concerns, the AMCP can be triggered.

The Bill already makes provision for the involvement of social workers. It already allows that, where appropriate, the responsible body can take on the functions from the care home if there are any concerns. My biggest concern is, in a nutshell, that these amendments, if passed, would risk fundamentally weakening the protections available to people. On that basis, I ask hon. Members to think seriously about the amendments, which are effectively recreating a system that we have all recognised is not fit for purpose, and I ask the hon. Member for Worsley and Eccles South to withdraw her amendment.

[Barbara Keeley]

We have had a very useful debate. It has been really helpful to hear the useful contributions from my hon. Friends, although I have to say it is very quiet on the Minister’s side. It is a pity that we are not hearing more from that side, as I am sure there are people here with useful experience as constituency MPs.

Although progress was made on this issue in the House of Lords, there is still potential for a conflict of interest to arise in relation to the role of care home managers. I do not resile from what I said: the provisions in the Bill risk further entrenching a postcode lottery in our social care services. We already have a postcode lottery and it could be much worse.

We believe that this is a serious situation, where local authorities diligently retain some of their role, while others are delegated to care home managers. On the point that the Minister covered at the end of her speech, it is particularly unacceptable for care homes to retain a role in carrying out the consultation. I gave case study examples where cared-for people and their families become wary of expressing objections to the people delivering care for fear of reprisals. It is true that in care homes, with GPs and in NHS hospitals people do not always say what they feel about the treatment they receive because they are so worried about reprisals, and that is very much the case with ongoing care situations. I gave several examples where family members were stopped from seeing a cared-for person after objections were raised. We have to take that seriously.

As we heard, as well as it being inappropriate that care home managers retain a role in carrying out the consultation, it is not clear to me at all from meeting organisations such as Care England, the network representing care home managers, that they want or are willing to take on the role. As we mentioned, they are currently under significant strain. That is a real factor. Having an 11% vacancy rate for registered care home managers is another real factor. Adding another role to them, without proper resourcing, will inevitably lead to services suffering.

In our discussions on the Bill, we need to have a proper debate about resources, because there was no time to discuss it in the Lords. There has been no real discussion on it yet, and it is absolutely crucial. There is a cost, as I covered in my speech, and we cannot just shunt the role on to care home managers who do not even want it.

Some care home providers are concerned that local authorities will delegate the role without providing training or additional resources to care home managers. I talked about the backlog of pay claims for sleep-in rates, which is a problem. Care England and the care home networks feel very strongly that a shunting-across is going on that will lead to financial difficulties for them. It will lead to care homes either leaving the market or no longer taking on clients who require deprivation of liberty authorisations. As I outlined, those could be cases of people involving dementia or brain injury. They will not take those cases if they think there is going to be a lot of admin linked to the processes.

Oral Answers to Questions

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 15th January 2019 Commons Chamber

[Barbara Keeley (Worsley and Eccles South) (Lab)]

This Government’s cuts to council budgets have meant that 100,000 fewer people received publicly funded social care over the past three years, and 90 people a day died while waiting for social care last year. What does the Secretary of State think it says to their families that the social care Green Paper and the meaningful funding settlement have been delayed again?

[The Minister for Care (Caroline Dinenage)]

The hon. Lady knows that we have given councils access to nearly £10 billion over a three-year period to address this very issue, but she is right to highlight the issues at the heart of social care. We will be publishing the Green Paper very shortly.

Oral Answers to Questions

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 27th November 2018 Commons Chamber

[Barbara Keeley (Worsley and Eccles South) (Lab)]

The learning disabilities mortality review—the LeDeR—investigated 1,000 early deaths of people with learning disabilities in hospital settings, but today major concerns have been raised by the parents of Oliver McGowan about the way in which some deaths have been investigated. The Secretary of State knows that 40 autistic people and people with learning disabilities died in assessment and treatment units, and he has called for a year-long review of the use of seclusion in ATUs. But that is not urgent action. Will he commit to stopping the use of ATUs immediately and to looking urgently at how early deaths are being investigated, particularly that of Oliver McGowan?

[The Minister for Care (Caroline Dinenage)]

I have met Oliver McGowan’s mum, Paula, on a number of occasions, so I am more than aware of this case. I have spoken to her about the deeply distressing report she has had on Oliver’s death. The NHS is looking into this case and will continue to work with Bristol University to further develop and improve guidance and local review teams.

Assessment and Treatment Units: Vulnerable People

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 6th November 2018 Commons Chamber

[Barbara Keeley (Worsley and Eccles South) (Lab)]

(Urgent Question): To ask the Secretary of State for Health and Social Care to make a statement on the long-term seclusion and deaths of autistic people and people with learning disabilities in assessment and treatment units.

[The Minister for Care (Caroline Dinenage)]

I want to address the care that the NHS and social care system gives to some of the most vulnerable in our society. The millions of people who work in the NHS and social care do so every day with compassion and commitment to care for us all, but sometimes the system gets in the way, and when we see that, it is our task and our duty to change it. That is the case with the care given to people with some of the most significant and complex needs, such as those with learning disabilities and autism who are in-patients in assessment and treatment units and other mental health in-patient settings across the country. The care received by some of the people with the most significant needs quite simply is unacceptable.

With respect to in-patient care in assessment and treatment units and other in-patient settings, I absolutely share Members’ concerns about reported deaths, and I want to restate my Department’s commitment to reducing the number of preventable deaths among people with a learning disability. NHS England is ensuring that relevant investigatory processes have been followed in respect of each and every one of the cases it has responsibility for, and it is seeking assurance from all relevant clinical commissioning groups that they too have ensured appropriate investigation. As it stands, there is no indication that any of the deaths were untoward or that due process was not followed in every single case, but we are double-checking each and every one.

The hon. Member for Worsley and Eccles South (Barbara Keeley) mentioned seclusion. Like everyone in the House, I have been incredibly moved by reports of the care for Bethany and by the dignity of her dad, Jeremy, who has described the daily battle he has fought to get her the best possible care. It is completely unacceptable for seclusion to be used in this way. Restrictive practices must only ever be used as a last resort, and we must strive to totally eliminate them. With that in mind, the Secretary of State has instituted a serious incident review in Bethany’s case, and we will act to ensure that she gets the best possible care for her.

However, this is not just about individual cases; it is about the system. Three years ago, the Government committed to reducing the number of people with learning disabilities or autism detained in mental health hospitals by at least a third. The latest information we have shows that the number is down by around 20%, but that is not nearly enough. Today, 2,315 people with a learning disability and/or autism in England are held in mental health hospitals. I want to see that number drastically reduced, and in the first instance I want us to meet the target of reduction by a third. I want to see everyone who can be cared for with their family living as normal a life as possible.

The Secretary of State has instituted a wide-ranging review into the inappropriate use of prolonged seclusion and long-term segregation as restrictive practices. He has asked the Care Quality Commission to initiate that review immediately, and it will be undertaken in two stages. Furthermore, he has asked the NHS to address this issue in the long-term plan that it is writing for the future of the NHS, and I know that NHS leadership shares our passion to get this right. We will also address the role of local authorities in the social care Green Paper, and both of those will be published before Christmas.

--- Later in debate ---

[Barbara Keeley]

I want to put on record my disappointment that the Secretary of State tried to shoehorn an issue of this severity into an NHS policy announcement yesterday, and my thanks to you, Mr Speaker, for allowing this urgent question.

The treatment of people with autism and learning disabilities in assessment and treatment units is nothing short of a national scandal. Six years ago, these units were described by the then chief executive of NHS England and the chief executive of the Care Quality Commission as a model of care that has

“no place in the 21st century”.

Seven years after the Winterbourne View scandal, the Government have not rid the country of these units or substantially cut their use. Indeed, as the Minister said, there are still 2,315 people in assessment and treatment units, including 230 children, and the number of under-18s has been increasing.

A Sky News investigation last week revealed that, since 2015, at least 40 people with a learning disability or autism have died while in assessment and treatment units, and nine of those who died were aged 35 or under. Some of the country’s most vulnerable people are being exposed to physical abuse in institutions that the chief inspector of mental health services described as being

“in danger of developing the same characteristics that Winterbourne View did.”

Can the Minister tell us why the NHS is still sanctioning the use of settings that expose thousands of vulnerable people to abuse, at a cost of half a billion pounds, despite the Government pledging to close them?

The transforming care programme has manifestly failed. What are the Government going to do to ensure funding is available for cash-strapped local councils to pay for community placements with care support for autistic people and people with a learning disability? The Times has revealed that the private companies running these units are making millions of pounds out of detaining vulnerable people in unsafe facilities, in one case funnelling £25 million into a secret bank account in Belize. Can the Minister tell us what the Government are doing to immediately stop private companies that have a vested interest in keeping people with learning disabilities in these Bedlam-like conditions from doing that?

On Saturday, as the Minister has outlined, the Secretary of State ordered the Care Quality Commission to undertake a thematic review of assessment and treatment units, and he has ordered a serious incident review in the case of one young autistic woman, Bethany. Reviews are not urgent action, there are very many Bethanys trapped in seclusion, and 40 people have died in these units. Will the Minister tell us the timetable for the completion and publication of the CQC review and what urgent action can be taken to free all the young people and adults trapped in these appalling conditions?

[Caroline Dinenage]

Hon. Members will be very aware of and concerned about the report published this week by University College London. As the hon. Lady said, the report, which was commissioned by the NHS, draws attention to how people with learning disabilities die on average 15 to 20 years sooner than the general population, often for reasons that are not an inevitable consequence of any underlying medical condition. I was reassured that this report shows that programmes and opportunities that Government are putting in place to improve outcomes for people with learning disabilities and autism are addressing some of the concerns. However, I share very strongly her views and the views of this report that there is still much further to go and that now is the time to take action.

As hon. Members will know, the LeDeR report—the learning disabilities mortality review—is looking into the deaths of all people with a learning disability. It published its second annual report in May and in their response in September the Government accepted all the recommendations and included detailed actions for implementing them. NHS England has also committed that the long-term plan for the NHS will include learning disability and autism as one of the four clinical priorities. The long-term plan will also set out the future of the transforming care programme, which the hon. Lady raised.

Government policy on restrictive practices, including seclusion, is to reduce their use. Where such interventions have to be used, they must be a last resort and the intervention should always be represented as the least restrictive option to meet immediate needs. Incidents of restrictive intervention are recorded in the mental health services dataset and this data is published. The Mental Health Act code of practice highlights the particularly adverse impact of seclusion on children and young people. It advises careful assessment and periodic reviews.

I want to turn to the Care Quality Commission review into the inappropriate use of prolonged seclusion and long-term segregation. The first stage of the review will focus on settings that relate most closely to Bethany’s circumstances, focusing on people of all ages receiving care on NHS and independent sector wards for people with learning disabilities and/or autism and on child and adolescent mental health wards. That will start immediately and this stage will report in May next year. It is very important that service users, their families and people with lived experience are able to contribute to that. The second stage will report in the winter and will examine other settings in which segregation and prolonged seclusion are used. That stage will include NHS and independent sector mental health rehabilitation wards and low secure mental health wards for people of all ages, as well as residential care homes designated for the care of people with learning difficulties and/or autism. As I have said, individuals who have been subject to segregation and/or long-term seclusion and their families and carers will be invited to provide evidence, including through interviews. The Care Quality Commission will make recommendations at the end of both stages, which will seek to eliminate system-wide inappropriate use of prolonged seclusion and long-term segregation, and ensure that vulnerable adults and children supported by health and social care are accorded the best possible care.

I should point out that not all the numbers that the hon. Lady spoke about are in separately identified assessment and treatment units. The data reports there being 2,315 in-patients with a learning disability and/or autism in mental health in-patient settings as of September, but some 360 of them were in in-patient settings described as for people with acute learning disabilities

It is important that commissioners should be able to access very high-quality, value-for-money care in their local area, whichever organisation provides it. We recognise the concern that people have expressed about what happens in the transforming care process, but I see it very much as a process and not as an event that will continue. The NHS has transferred more than £50 million to ensure that the right care is put in place in respect of community support, so that people are better cared for when they are out in the community.

Oral Answers to Questions

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 23rd October 2018 Commons Chamber

[Barbara Keeley (Worsley and Eccles South) (Lab)]

Last week, The Times reported that a young autistic woman with severe learning disabilities and an IQ of 52 was sexually exploited for months after her care provider had a court accept a plan for her to have sexual relations with men at her home. It is unacceptable that the agency charged with the care of this young woman decided that unsupervised contact with men for sex was in her best interest, yet the Government would give all such care providers a role in assessing the mental capacity of the people for whom they care. Will the Secretary of State urgently investigate this case? Given that the case illustrates the conflict of interest that arises from involving care providers in mental capacity assessments, will he pause the Mental Capacity (Amendment) Bill to allow time to make it fit for purpose?

[The Minister for Care (Caroline Dinenage)]

The hon. Lady is absolutely right to raise this incredibly concerning case. Unfortunately, because the case is ongoing and due to be heard before the High Court very shortly, we are unable to discuss the specifics of the case, but we are incredibly concerned by what it suggests. We have made it clear in statutory guidance to support the implementation of the Care Act 2014 that we expect local authorities to ensure that the services they commission are safe, effective and high quality. Once this case has gone through the High Court, we will look to take further action.

Autism and Learning Disability Training: Healthcare Professionals

Debate between Caroline Dinenage and Baroness Keeley

Monday 22nd October 2018 Westminster Hall

[The Minister for Care (Caroline Dinenage)]

It is a pleasure to serve under your chairmanship, Mr Austin, and that of your predecessor, Dame Cheryl, who has done more to further the cause of people with autism than any other Member of Parliament. I put on record my thanks to all hon. Members who have taken part in the debate. There have been some impressive and high-quality contributions. In particular, I thank the hon. Member for Cambridge (Daniel Zeichner) for bringing the case before us and the Petitions Committee for permitting the case to be brought. I also thank the hon. Member for Sheffield, Hallam (Jared O'Mara) for his testimony, although he is no longer here. I am sure we all agree that it was incredibly powerful, extremely important and exceptionally brave.

It is hard to hear the story of Oliver McGowan, which inspired the debate and the petition that triggered it. I am the mum of a teenage boy a bit younger than Oliver, so I find it heartbreaking to even think about what Paula and her family have been through. I have been in this role for nine months, and one of the great honours of the job is being able to speak to some incredible, awe-inspiring people, but surely the most amazing of them are the mothers who have turned the unthinkable heartbreak and anger at the loss of a child into a crusade for change.

Dr Sara Ryan, who has already been mentioned, whose son Connor Sparrowhawk drowned in a bath while under the care of Southern Health, is the most remarkable campaigner for the way that we support adults and children with learning disabilities. Another example is the incredible Paula McGowan, Oliver’s mum, who I met last month. To say that I feel humbled by her story is a massive understatement. The way that she has been fuelled by the unspeakable tragedy of Oliver’s death to fight, to battle and to campaign to ensure that other children and parents do not have the same experience is incredibly brave and courageous. She is nothing short of an inspiration, and she inspires me to strive to tackle the inequalities that people with autism and with learning disabilities face and to do my best to prevent further avoidable tragic loss of life.

The health inequalities between people with learning disabilities and autism and the general population are well understood—virtually every hon. Member present has mentioned them. In recent years, there have been ongoing efforts to address them, but the shameful case of Winterbourne View Hospital is an example of how things have not worked.

It is a sad fact that it takes an avoidable tragedy to spur the action that we want. Since then, significant programmes of activity have been devoted to tackling the inequality that has blighted the experiences of people with learning disabilities in society—inequality is not confined to health and social care. That activity is not only about reducing the number of deaths that may have been preventable, but about improving people’s genuine experiences of care, reducing the use of restrictive interventions, increasing health and wellbeing, and ensuring that people are not hospitalised when they can be better supported in the community.

The existence of the learning disability mortality review programme—LeDeR—testifies to our commitment to reduce the number of preventable deaths among people with a learning disability. LeDeR is focused on learning disability, but has important lessons that relate to the care of autistic people. The programme, led by the Norah Fry centre at the University of Bristol, was introduced to ensure that local evidence-based action is taken to improve support for people with a learning disability. The result is that commissioners are focusing their attention on their local mortality rates and the reasons for them, and are highlighting the further national action that is needed. We must learn from those deaths quickly and translate that learning into effective remedial action that prevents any repetition.

In May, the University of Bristol published the second annual LeDeR report, which showed that 13 deaths had involved circumstances where an individual’s health had been adversely affected by entirely avoidable external factors. The report also found that, based on the examples that were reviewed, the median age of death is 23 years younger than the general population for men and 29 years younger for women. It makes for shocking and chilling reading. LeDeR is ongoing, so many reviews are still to come. Since then, there has been significant action to increase the number of reviews undertaken, including NHS England investing an additional £1.4 million in support of them. Hon. Members from across the House will feel, as I do, that the report is a stark message that we need to do much more to ensure that people with a learning disability receive the best quality care.

In the Government’s response to the LeDeR report, which we published on 12 September, we set out a clear action plan to make progress against each of its national recommendations. The key theme is that of facilitating better care for people with a learning disability by sharing information on their needs and by making reasonable adjustments to improve access and the responsiveness of services to meet those needs. It highlighted some actions that I am glad to say were already well under way, as well as many new actions.

[Barbara Keeley]

The Minister has used the word “action”. If we had been able to discuss the Government’s response to the LeDeR report, which came out the day before the conference recess, I would have said to her that there is very little action in it. The whole point of the cross-party feeling of the debate is that we want action. There are an awful lot of consultations in the response but, as I highlighted in my speech, we have had 10 years of reviews, starting with the report that came out 10 years ago. The Minister used the word “action”—can we not just get on with some?

[Caroline Dinenage]

We have accepted every single recommendation in the LeDeR report, and the only reason we are consulting on the recommendations about training is that we have to do that to introduce legislation and change the regulations. We need to do that properly and ensure that we take on board the experiences of people from a wide range of backgrounds so that it actually works. Training is already in the guidelines for healthcare professionals, but the hon. Lady and many other hon. Members have said that it is simply not happening. This is not about action for the sake of it or to say that we have ticked a box to make it happen, but about meaningful action that will save lives. That is why I want to get it right. I am not going to hang around; it will be done to a timescale, which I will explain more about in a moment.

An example of action is that NHS England is working with NHS Digital to add a reasonable adjustment flag to digital care records to indicate the potential adjustments that people with a learning disability may require. The flag will be available to all organisations that provide care. It will support improved communication between patients, their carers and clinicians and lead to more personalised, safer patient care and better outcomes. That capability is being developed for piloting in the NHS summary care records application this summer. We are also exploring with NHS England and NHS Digital the potential for a comparable autism flag.

We have also commissioned Oxford Brookes University to look into best practice in co-ordinating the support for people with a learning disability and a long-term condition. Hon. Members have raised the difficulties that autistic people and people with learning difficulties experience in communicating their needs to health professionals, and also highlighted the importance of hospital passports in overcoming these difficulties and ensuring that their hospital stays are safer and more comfortable. However, I know that Oliver had such a passport and it was not read, so that needs to be taken into consideration as well.

As part of our governance arrangements for the autism strategy, we have set up a task and finish group on health, care and wellbeing, which is looking at barriers to care. We will ask it to consider how we can best disseminate tools such as the hospital passport, to ensure that patients receive effective, personalised care.

Of the new actions, the one that most concerns us today is the commitment to consult on mandatory training. I believe that the steps we are taking will address the shameful inequalities that people with learning disabilities continue to experience. Everybody has the right to receive effective, compassionate and dignified care, and having a learning disability or autism should not be a bar to that.

I am absolutely committed to ensuring that all staff have the skills that they need, whether for learning disability or autism, to deliver excellent and compassionate care. We are already taking forward actions in this area, which I will set out before moving on to discuss mandatory training.

We have supported the development of the learning disability core skills education and training framework, which sets out three tiers of knowledge and skills in relation to learning disability. We are also working towards the development of an autism core skills and competency framework for health and care staff, and for staff in organisations with public-facing responsibilities.

In addition to the existing criteria for professional regulation and registration, there are also existing health and social care regulations that are designed to ensure staff have had appropriate training. However, it is clear from the tragic deaths of Oliver and the many, many like him that that is not enough; we need to go further. One of the recommendations in the LeDeR report echoes the petition in saying that there should be mandatory learning disability training for all health and care staff.

We welcome that recommendation and we have made a commitment to consult formally on it, and we will conclude the consultation by the end of March. I can also confirm that we will include autism within this consultation. My aim is not to mess around with this work, as I have already articulated; the Government’s plans will be published by the summer and regulations could be introduced by the end of 2019. A formal consultation is essential if we are going to change regulations, which is one of the routes by which we can ensure that training is absolutely mandatory.

I appreciate that several hon. Members have asked me specific questions about all sorts of logistical issues, what the content of the training should be and how it might be different for different staff groups. Of course those are all the sorts of issues that we will consult on. We need to canvass the widest possible range of opinions and we clearly are not in a position now to guess the outcome of the consultation. If it was up to me, I would want to embed this training in initial training through all the professional bodies, royal colleges and training providers, having it at all levels of health and social care, so that anybody who has any role in a health and care setting would be mandated to receive some level of this training, obviously with different levels of training for people who work in reception and for those who are medical staff.

One of the key elements of the recommendations in the LeDeR report is that people with learning disabilities should be involved in the training. We will work with people with learning disabilities and autism, and with the groups that represent them, such as Mencap, in shaping the consultation and identifying the key questions that we have to ask. I am absolutely thrilled to say that Paula McGowan has agreed to help us with this.

The petition also refers to mandatory autism training. Of course, LeDeR looks at the deaths of people with learning disability rather than autism, but when it comes to inequalities and the patient experience there are clear parallels between the experiences of both groups and in the sort of reasonable adjustments that might be made to support both groups. It would be a missed opportunity if we did not consider in our consultation the training requirements of staff to better support autistic people as well those with learning disabilities.

Our response to LeDeR and the implementation of Building the Right Support are part of wider efforts to tackle inequality for those with learning disabilities and autism. I will briefly highlight three of these efforts in particular that have great potential. First, there is quality checkers. NHS England is developing toolkits for GP services and mental health in-patient services. These will support people with a learning disability to act as quality checkers, to examine services from their perspective and to have a dialogue with providers and commissioners on what needs to improve.

Secondly, and so importantly, there is stopping the over-medication of people with a learning disability, autism, or both, which is known as STOMP. This national programme brings together multiple organisations in the health and care field, with a common purpose to stop the over-medication with psychotropic medicines of people with a learning disability, autism or both.

Finally, commissioning guidance on autism services, and an accompanying best practice toolkit for local health and care commissioners, are due to be developed shortly and are expected to be available by next spring.

As we develop the consultation on mandatory training, it is particularly helpful to hear these issues and concerns, which hon. Members and their constituents want to see being addressed. We will reflect on, and listen to, those issues and concerns in our consultation. The consultation document will be issued in the new year, giving us sufficient time to conclude the formal consultation period by the end of March, and of course I am extremely happy to discuss with any hon. Member, or any lord in the other place, any particular issue that they would like to see reflected and indeed tackled by the consultation at any time, either before or during the consultation.

[Barbara Keeley]

I asked the Minister earlier whether she could give an outline of the timetable after the consultation. When does she believe that we will see regulations to make this training mandatory?

--- Later in debate ---

[Caroline Dinenage]

I believe I have already answered that question. I said that I would like the Government plans to be published by the summer and the regulations to be amended by the end of the year.

[Barbara Keeley]

Can the Minister give a date, rather than a seasonal time?

[Caroline Dinenage]

I am afraid that I am not the scheduler, but that would be my aspiration as the Minister. Obviously, I do not have the timing for the Government, the Chambers and what have you, but that is definitely my aspiration.

It is absolutely vital that we do everything in our power to get this matter right. We owe it to Oliver and to the many, many young people with autism or learning disabilities whose lives have been tragically shortened. We owe it to Paula and Tom, and to the many parents and family members who have suffered unimaginable grief. We owe it to ourselves—a country should be judged on how it cares for its most vulnerable and on this, we must not be found wanting.

Health and Social Care

Debate between Caroline Dinenage and Baroness Keeley

Wednesday 9th May 2018 Ministerial Corrections

[Barbara Keeley]

The Secretary of State announced to the House in December 2016 that he would ask the review for annual reports on its findings, so why was a review of this importance published during the recess, before a bank holiday weekend in the middle of local election results, giving Members little chance to scrutinise its findings? When asked about the report on the “Today” programme on Radio 4, Connor Sparrowhawk’s mother, Dr Sara Ryan, said that she was

“absolutely disgusted by the report”

and that the way it had been published at the beginning of a bank holiday weekend

“shows the disrespect and disregard”

there is for the scandalous position of people with learning disabilities shown in the report.

[Caroline Dinenage]

On the date of publication, the hon. Lady will be aware that this was an independent report prepared by the University of Bristol and commissioned by NHS England, which wanted to look into this really important issue, and because it was an independent report, it did not actually alert us to publication, so we had no more notice than she did. We are investigating through NHS England and others why that happened. [Official Report, 8 May 2018, Vol. 640, c. 546.]

Letter of correction from Caroline Dinenage:

An error has been identified in the answer given to the hon. Member for Worsley and Eccles South (Barbara Keeley) on 8 May 2018.

The correct answer should have been:

Learning Disabilities Mortality Review

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 8th May 2018 Commons Chamber

[The Minister for Care (Caroline Dinenage)]

The Government are absolutely committed to reducing the number of people with learning disabilities whose deaths may have been preventable and have pledged to do so with different health and care interventions. The learning disabilities mortality review programme was established in June 2015; it was commissioned by NHS England to support local areas in England to review the deaths of people with a learning disability. Its aims were to identify common themes and learning points, and to provide support to local areas in their development of action plans to take forward the lessons learned.

On 4 May, the University of Bristol published its first annual report of the LeDeR programme, covering the period from July 2016 to November 2017. The report included 1,311 deaths that were notified to the programme and set out nine recommendations based on the 103 reviews completed in this period. The Government welcome the report’s recommendations and support NHS England’s funding of the programme for a further year at £1.4 million. We are already taking steps to address the concerns raised, but the early lessons from the programme will continue to feed into our work, and that of our partners, to reduce premature mortality and improve the quality of services for people with learning disabilities.

[Barbara Keeley]

Mr Speaker, I think it is disgraceful that the Secretary of State has just run out of the Chamber, rather than answering this question himself—it is disgraceful.

Seven years after Winterbourne View and five years since the avoidable death of Connor Sparrowhawk, the findings of the review show a much worse picture than previous reports about the early deaths of people with learning disabilities. One in eight of the deaths reviewed showed that there had been abuse, neglect, delays in treatment or gaps in care. Women with a learning disability are dying 29 years younger than the general population, and men with a learning disability are dying 23 years younger. Some 28% of the deaths reviewed had occurred before the age of 50, compared with just 5% of the general population who had died by that age.

The Secretary of State announced to the House in December 2016 that he would ask the review for annual reports on its findings, so why was a review of this importance published during the recess, before a bank holiday weekend in the middle of local election results, giving Members little chance to scrutinise its findings? When asked about the report on the “Today” programme on Radio 4, Connor Sparrowhawk’s mother, Dr Sara Ryan, said that she was

“absolutely disgusted by the report”

and that the way it had been published at the beginning of a bank holiday weekend

“shows the disrespect and disregard”

there is for the scandalous position of people with learning disabilities shown in the report.

Only 103 of 1,300 cases passed for review between July 2016 and November 2017 have been reviewed. That is a paltry number. The report cites a lack of local capacity, inadequate training for people completing mortality reviews and staff not having enough time away from their duties to complete a review.

If there are issues around capacity and training, what is NHS England doing to rectify this? Sir Stephen Bubb, who wrote the review into abuse at Winterbourne View, said this in response to the report:

“there can be no community more abused and neglected than people with learning disabilities and their families. How many more deaths before we tackle this injustice?”

Dr Sara Ryan said:

“things have actually got worse than they were 10 years ago”.

What action will the Government take to show the families of people with learning disabilities that their relatives’ lives do count?

[Caroline Dinenage]

I thank the hon. Lady for raising this issue; the report makes for very troubling reading.

On the date of publication, the hon. Lady will be aware that this was an independent report prepared by the University of Bristol and commissioned by NHS England, which wanted to look into this really important issue, and because it was an independent report, it did not actually alert us to publication, so we had no more notice than she did. We are investigating through NHS England and others why that happened.[Official Report, 9 May 2018, Vol. 640, c. 8MC.]

As the report clearly identifies, there is still more work to do, and we will work with partners to see how the recommendations may be implemented. We are committed to learning from every avoidable death to ensure that such terrible tragedies are avoided in the future. She mentions Dr Sara Ryan, whose son, Connor Sparrowhawk, died in such tragic circumstances in my own Southern Health Trust area. She and other parents like her are testimony to the incredible dedication of people who have worked so hard to get justice for their loved ones at a time when they feel least able to do so.

We have done several things already. We have introduced a new legal requirement so that from June every NHS trust will have to publish data on avoidable deaths, including for people with a learning disability, and provide evidence of learning and improvements. We are the first healthcare system in the world to publish estimates of how many people have died as a result of problems in their care. Learning from the review is also informing the development of the pathways of care published by NHS England and the RightCare programme, which is tailored to the needs of people with learning disabilities. Pathways on epilepsy, sepsis and respiratory conditions will be published later this year.

We have introduced the learning disability annual health checks scheme to help ensure that undiagnosed health conditions can be identified early. The uptake of preventive care has been promoted and improved, while the establishing of trust between doctors and patients is providing better continuity of care. We have also supported workforce development by commissioning the development of learning disabilities core skills education and training framework, which sets out the essential skills and knowledge for all staff involved in learning disability care.

As I said, the report makes for troubling reading, but we asked NHS England to commission it so that we might learn from these deaths and make sure that trusts up and down the country are better equipped to prevent them from happening in the future.

Social Care Provision and the NHS

Debate between Caroline Dinenage and Baroness Keeley

Thursday 3rd May 2018 Westminster Hall

[The Minister for Care (Caroline Dinenage)]

It is a great pleasure to serve under your stewardship, Dame Cheryl. I thank the hon. Member for High Peak (Ruth George) for securing the debate and setting out the issues so articulately. I congratulate her on making it to the debate, and I thank you, Dame Cheryl, for allowing it to take place. It would have been a great concern to us all if that had not happened.

As hon. Members will know, I am relatively new to my role as the Minister for Care in the Department of Health and Social Care. That is why I am really grateful for the chance to focus on the interface between social care and health, and to outline how integration is absolutely at the heart of what we do. The renaming of the Department of Health as the Department of Health and Social Care must be more than just a change of title; it must provide a sense of direction and a change of culture. We know that health and social care are umbilically linked, and that one is a key driver of the other.

We recognise that many of our challenges stem from the very good news that people are living longer, which is to be celebrated. Worldwide, the population aged 60 or above is growing faster than all other age groups. In developed countries the proportion of the population aged 65 and above is expected to rise by 10% over the next 40 years. That means that, in England, by 2026 the population aged 75 and above, which currently stands at 4.5 million, will rise by 1.5 million. By 2041 it will have nearly doubled.

People’s expectations and wishes are also changing. The traditional model of social care is based on care homes, but we know that increasingly people want care to be delivered in their own homes. We want to encourage people to live independently and healthily in their homes, where many people want to stay. We know that nine in 10 older people live in mainstream housing, and that only 500,000 of those homes are specifically designed for their needs. Adapting homes to make them more suitable is therefore incredibly important. The disabled facilities grant has a vital role to play. Home adaptations and investment can be incredibly effective. Not only do such adaptations allow people to lead independent healthy lives, but our analysis shows that for every £1 spent, more than £3 is recouped, mostly through savings to the health and care system. Housing that enables people to live independently and safely allows us to reduce the number of people who need to go into hospital or have other social care requirements.

We have to look at the way we provide and fund services for the long term. Complex conditions must be addressed, and we must move to a system in which care, whether social care or health care, is individually tailored to people’s needs. The hon. Member for Glenrothes (Peter Grant) put it beautifully when he talked about how we need to stop using social care and our health service as a political football. We need to champion where there is good practice, not just talk about where it is bad. We need to look at how we can produce much more person-centred care, where we address an individual’s needs. We need to celebrate the amazing places up and down our country where it is going right, and we need to support the incredible workforce in this country—both the informal workforce, and the dedicated hospital and social care workforce. A number of pieces of work are ongoing. As the hon. Gentleman said, we need to have the courage to tackle the difficult questions, and that is what is happening.

A number of key pieces of work are happening at the moment to address many of the issues that the hon. Member for High Peak raised. Many of those issues will be tackled in the forthcoming Green Paper. We have an ongoing workforce strategy that is taking place jointly between Health Education England and Skills for Care. In order to address the challenges of our ageing population, we need to attract more people into the workforce. We need to ensure that they are properly rewarded for their work, that there is continuous development within that work, and that we attract people from a much more diverse range of backgrounds.

As the hon. Member for Worsley and Eccles South (Barbara Keeley) said, we also have a carers action plan, which is to be published shortly. She spoke about her constituent, Katy Styles.

[Barbara Keeley]

The person I was talking about is not a constituent; she is a national campaigner for the MND Association, and she has an e-petition. It is important to note that she is running a national campaign.

[Caroline Dinenage]

I am grateful to the hon. Lady for clarifying that. I would say to Katy Styles that the decision about whether it is called a strategy or an action plan was taken before I was in my role, but an action plan sounds to me like a much more positive thing.

Actions speak louder than words. We are talking about not just a sense of direction, but what we are doing and how we intend to do it. That is why the carers action plan will be a really important piece of work. I massively value the work of carers up and down the country—indeed, my mother was one—and I want to ensure that we properly recognise and reward what they do. We must be doing what we can, and not just through the Department of Health and Social Care but in collaboration with colleagues across Government, to help and support carers and ensure that the issues they face on a daily basis are tackled.

[Barbara Keeley]

It is worth clarifying this point while the Minister is talking about the action plan. I told her that I did that piece of work years ago on the first national carers strategy, which came out in 1999 and went right across Government. The difference I see is that that was signed by many Departments, with commitment from those Secretaries of State, but the action plans under the coalition, and those we have seen recently, are just signed by Social Care Ministers; they are very much smaller things. Departmental action plans are not the same as cross-Government national strategies, and I understand why carers feel that strongly.

[Caroline Dinenage]

The hon. Lady has a surprise coming—this action plan is signed by Ministers from across Government.

The hon. Member for High Peak raised cost pressures. We can all admit that local authority budgets have faced pressures in recent years. They account for about a quarter of public spending, so they have had a part to play in dealing with the historic deficit that we all know we inherited in 2010. That means that social care funding was inevitably impacted during the previous Parliaments. However, with the deficit now under control, we have turned a corner.

Thanks to a range of actions taken since 2015, the Government have given councils access to up to £9.4 billion of more dedicated funding for social care from 2017-18 to 2019-20. Local authorities are therefore now estimated to receive about an 8% real-terms increase in access to social care funding over the spending review. In Derbyshire, the hon. Lady’s local council has seen an increase of £33 million in adult social care funding from 2017-18 to £201.8 million, which is above the 8% figure—it is a 10.3% increase on the previous year. The Care Act 2014 places obligations on local authorities and the extra funding is designed to help them meet those obligations.

Social Care

Debate between Caroline Dinenage and Baroness Keeley

Wednesday 25th April 2018 Commons Chamber

[The Minister for Care (Caroline Dinenage)]

I thank the hon. Member for Worsley and Eccles South (Barbara Keeley) for introducing the debate. We want this to be the best country in the world in which to grow old and in which people can face their third age knowing that they will be supported to live healthy, independent lives for longer and for as long as possible, with a choice of good-quality, affordable care that is there, should they need it. Today’s debate is a welcome opportunity to cover the action that this Government have taken to improve social care, highlighting a few examples where real progress has been made, as well as discussing our longer-term plans for the Green Paper, which will be published later this summer.

Most of all, however, I want to do something that the hon. Lady forgot to do, which is pay tribute to the extraordinary people—both the social care workforce and the informal carers—who play such a vital part in our health and social care system. At the heart of their endeavours is the commitment to do all they can to support individuals and families throughout the country.

[Barbara Keeley]

The Minister has just said that I did not pay tribute to informal carers. That is just not true. Everybody who knows me knows that I have never stopped paying tribute to informal carers, and I did so in my speech today. Please will the Minister not attribute comments to me that I did not make?

[Caroline Dinenage]

What I actually said was that the hon. Lady forgot to pay tribute to the social care workforce, who play such a vital part in our health and social care system. At the heart of their endeavours is the commitment to do all they can to support individuals and families throughout the country to live healthier lives with comfort, dignity and respect. However, it is absolutely right to begin by acknowledging that this sector has been through some really difficult times.

--- Later in debate ---

[Caroline Dinenage]

If the hon. Lady will bear with me, I will come on to discuss that, but there will be a separate, parallel workstream on working-age adults, who account for over half of the spending—

[Barbara Keeley]

Why?

[Caroline Dinenage]

If the hon. Lady will give me the courtesy of allowing me to finish my comments, I will explain why in a moment.

The hon. Member for Oldham East and Saddleworth (Debbie Abrahams) wondered why we are going back to the past and looking at Labour’s record, but Labour is asking people up and down the country to vote for them in the local elections, so they will rightly look at Labour’s record and at how it dealt with the social care crisis when it was in government. After 13 years of inactivity and bluster, people need to be able to make a choice based on historically accurate facts.

[Barbara Keeley]

Will the Minister give way?

[Caroline Dinenage]

The hon. Lady had plenty of time to make her comments, so I will make a little progress.

When the Conservative party formed the coalition Government in 2010, it is worth remembering that not only did we have to deal with the parlous state of the country’s finances, but we inherited a burning platform of social care. Of course, that meant taking difficult decisions in those early years, which were challenging times for local authorities.

--- Later in debate ---

[Caroline Dinenage]

I will make a bit of progress.

The shadow Minister asked about Allied Healthcare. She is right to raise that, and I am grateful that she has done so. As she said, Allied Healthcare announced last Thursday that it is proposing a company voluntary arrangement to its creditors. I want to talk about that specifically because people across the country will be concerned. I spoke to the chief executive officer last Thursday to emphasise the importance of continuity of care for everyone receiving its services, both in adult social care and primary care, and the company has made it clear that those who receive services from Allied Healthcare will continue to receive the same level of care and that their care plans will not change.

[Barbara Keeley]

I am glad the Minister has responded in that way, but I asked her how she would ensure that 150 councils can fulfil their statutory duty to provide care if that company goes bust. We need to know a bit more than that she has had verbal reassurance. Of course the chief executive, in his current position, will try to give her verbal reassurance but, under the CVA, the creditors have to be satisfied within four weeks. What is going to happen if this company goes bust? Is it going to be another Southern Cross?

[Caroline Dinenage]

I am happy to answer the hon. Lady’s questions, which she is right to ask. Although we are very hopeful that this procedure will have a positive result, we are taking steps to ensure we are prepared for all eventualities. The Care Quality Commission and my Department are monitoring the situation, and the CQC will notify local authorities in the event it considers it likely that services will be disrupted as a result of business failure. The law means that local authorities will step in to meet individuals’ care and support needs if a care provider business fails and its services are disrupted. The relevant local authorities are working up contingency plans to ensure individuals’ care and support needs continue to be met.

While the long-term options are being resolved, it is right that funding for social care comes from a variety of sources, including business rates, general taxation and the social care precept. Delayed transfers of care is one area where that money is clearly making a difference. This Government are clear that no one should stay in a hospital bed for longer than is necessary; doing this removes people’s dignity, reduces their quality of life and leads to poorer health and care outcomes.

--- Later in debate ---

[Caroline Dinenage]

I will certainly take that into consideration.

[Barbara Keeley]

The Minister is just proving that she was not listening to what I was saying. What I said was that the British Red Cross has said that it had found innumerable cases where discharges have happened so quickly that people were discharged without the right amount of care, and that can just lead to a cycle of readmission. A constituent told me that, in the case of Salford Royal, which is an excellent hospital, she felt she had been “thrown out of hospital.” That is what she told me.

[Caroline Dinenage]

I very much thank the hon. Lady for that clarification.

Our funding increases have gone into initiatives such as the better care fund, which provides a mechanism for local authorities and clinical commissioning groups to pool budgets for the purposes of integrated care.

Oral Answers to Questions

Debate between Caroline Dinenage and Baroness Keeley

Tuesday 20th March 2018 Commons Chamber

[Caroline Dinenage]

The Secretary of State has already had conversations with councillors about this matter, but my hon. Friend is absolutely right to raise it. The Care Act 2014 placed a duty on local authorities in England to promote diverse, sustainable, high-quality care, and it is important for them to continue to do that.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

The National Audit Office says that our care system is not “sustainably funded”, the Care Quality Commission says that one quarter of care facilities are not safe enough, and care providers cherry-pick to whom they will give care places, and even evict people with advanced dementia on cost grounds. What is the Care Minister doing to address those issues and the sharp decline in public satisfaction with the social care system?

[Caroline Dinenage]

We know that the sector is under pressure because of the ageing population, but the Government have given councils access to £9.4 billion more dedicated funding over three years. The hon. Lady is right to emphasise the importance of putting power back in the hands of residents and their families, which is why we published a package of measures to ensure and protect consumer protections in the social care sector, and we will continue to look at that very closely.

Women and the Vote

Debate between Caroline Dinenage and Baroness Keeley

Wednesday 8th June 2016 Commons Chamber

[Caroline Dinenage]

I will give way in a moment. Last year, 44% of new public appointments went to women.

[Barbara Keeley]

Will the Minister give way?

[Caroline Dinenage]

I will in a moment, but first let me say this. I am delighted that, in my local council of Gosport, nearly 40% of our councillors are female, and I pay tribute to every single one of them.

[Caroline Dinenage]

Yes, absolutely. That is very much to be celebrated.

[Barbara Keeley]

I hope the Minister will join me in paying tribute to my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman). She has been a remarkable leader of this party at times and has almost got to the role. She certainly played her role in Prime Minister’s questions. I hope we can think of her as we applaud these other remarkable women.

[Caroline Dinenage]

Absolutely. The right hon. and learned Lady is also very much to be celebrated. It is a shame that she is not here so that I can thank her personally.

Women and the Economy

Debate between Caroline Dinenage and Baroness Keeley

Wednesday 9th December 2015 Commons Chamber

[Debbie Abrahams]

rose—

[Barbara Keeley]

rose—

[Caroline Dinenage]

Give me a couple of minutes to make a little progress.

I want to talk about the motion. Where do I start? The evidence is deeply flawed. Unfortunately—I am sad about this—it is the typical back-of-a-fag-packet stuff we have come to expect from Labour Members. Frankly, they have made bizarre and outdated assumptions about how households divide their money. There is even an implication that lower fuel prices somehow do not help women. The pink battle bus may have run on something other than petrol, but the rest of us fill up in the normal way.

--- Later in debate ---

[Caroline Dinenage]

My hon. Friend makes an excellent point. Inheriting an economy that was riddled with debt did nothing for women in this country, and not tackling the deficit would have been the real crime and created an unacceptable risk for our economy and people’s lives and futures. Not tackling the deficit would have put at risk the very jobs and services that women depend on. It would have risked their children’s education and security, and for those of us who want to ensure that everyone is able to fulfil their potential, such risks are unacceptable.

[Barbara Keeley]

The Minister is talking about competence, and I have already quoted from a former Pensions Minister who admitted to a bad decision that cost millions of women who were born in this country in the 1950s £30 billion. That was a mistake. The Pensions Minister now admits that he was not properly briefed, and he added two years to the pension age of millions of women without even realising what he was doing. Does the Minister really claim competence for a Government who do things like that?

[Caroline Dinenage]

The hon. Lady fails to recognise that in the new pension changes, women who have taken time out to raise children will now not be penalised by the system. She is being a little unfair. Thanks to the Government, we are able to increase support for childcare costs, and protect key Government services.

The commitment to supporting women in work is a priority for the Government, which is why the Prime Minister pledged earlier this year to end the gender pay gap within a generation. Let me be clear: there is no place for a pay gap in today’s society. That is why we committed to requiring employers to publish information on the difference between men and women’s pay and bonuses. We will shortly be consulting on the regulations needed for gender pay reporting, and I urge all employers to consider those carefully.