Access to NHS Dentistry

James Morris Excerpts

Tuesday 19th July 2022 Written Statements

[The Parliamentary Under-Secretary of State for Health and Social Care (James Morris)]

Access to dentistry was severely impacted by the pandemic. The Government provided unprecedented financial support to the sector during the covid-19 pandemic to ensure that practices remained viable and able to offer treatment during the pandemic and to continue now, as we learn to live with covid-19.

Taking into account the evolving guidance on infection and prevention control NHS England has worked, throughout the pandemic, with the sector to increase levels of dental activity, while keeping dentists, patients and their teams safe. From the beginning of July this year, NHS England has set the expectation that practices will return to delivering treatment at pre-pandemic levels.

With NHS dentists operating at below 100% capacity for over two years, many people have not been able to regularly access a dental professional. We are taking action to address this, in a way which is fair for patients, dentists and the taxpayer.

In April 2021, the Government set out that any changes to NHS dentistry must meet six tests:

Be designed with and enjoy the support of the profession

Improve oral health outcomes (or, where sufficient data are not yet available, credibly be on track to do so)

Reduce perverse incentives for dental care that is not clinically necessary

Demonstrably prevent the loss of NHS commissioned dental activity to private pay

Improve patient access to NHS care, with a specific focus on addressing disparities, particularly those linked to deprivation and ethnicity

Be affordable within available NHS resources made available by Government, including taking account of dental charges

NHSE fully engaged the profession and patient representatives through an advisory board, technical groups and engagement events from May to September 2021 to fully understand the issues and potential solutions. The improvements set out here result from that engagement and have been refined through consultation with the British Dental Association and wider dental sector representatives.

These initial changes are aimed at improving information for patients; improving the incentives in the contract to deliver more complex care; and enabling the NHS to better work with the sector to ensure that dental care is delivered.

Improve care for high-needs patients

We have responded to the call from dentists to improve the remuneration system to incentivise complex preventive and restorative treatment. We will make changes to the way dentists are remunerated for the range of treatments that are currently covered in band 2 treatments. Dentists will be paid more when they need to do three or more fillings or extractions and provide endodontic care.

To provide the capacity to deliver the additional care required by higher-needs patients, we will support practices to adhere more closely to the National Institute of Clinical Excellence guidance on recall intervals which indicate that a healthy adult with good oral health need only see a dentist every two years and a child every one year. We want to decrease the volume of any low-value clinical care provided through NHS dentistry, for the NHS and patients themselves.

These changes will support dentists and patients in getting the care they need as we start to tackle the pandemic backlogs in care.

Promote more effective use of skill mix

Dental care can be provided by a wide range of dental professionals including dental nurses, dental hygienists, and dental therapists. We will make clear that there is no legal barrier to the increased use of these professionals in the provision of NHS care and seek to increase their use in the provision of NHS care, as is already the case in private practice. NHS England will issue clear guidance on how to utilise these team members to provide NHS care that is within their scope of practice and which they have the skills, competence and experience to deliver safely and effectively in the best interests of patients. We will also work with the NHS Business Services Authority to make sure there are no administrative barriers to more effective use of this skill mix in practices providing NHS care.

This will help improve access to NHS care and make dental care professional roles including dentists more fulfilling and rewarding, and help to tackle workforce challenges in underserved areas.

Maximise patient access from available dental resources

NHS England will work with local commissioners to help ensure that dentists are able to deliver high-quality care to patients. Most dental practices consistently deliver their contracted amount of dental activity, but there are some that do not, and some that want to deliver more NHS dentistry.

We want to enable high-performing practices to expand to deliver more NHS care, particularly in those areas where NHS dentistry is less prevalent. To incentivise this, we will enable, subject to commissioner agreement, practices to deliver up to 110% contracted activity.

Where contractors are unable to deliver their contracted activity in-year or persistently across years, commissioners are currently limited in their ability to recommission that activity to contractors better able to do so. In 2019-20,13% of contractors had consistently failed to deliver. This lost activity represents around 4.6 million units of dental activity per annum.

As an initial step NHSE will encourage commissioners and contractors to work together so that where a practice has not delivered 30% of contracted activity by mid-year, 10% of annual activity will be rebased with agreement of the contractor. For contractors that consistently do not meet their targets over a number of years, we will enable NHSE to rebase contracts to achievable levels and release unused funding to commission care from other providers.

Improve communication with patients

Patients told us that they have difficulty finding an NHS dentist, in part because of the limited information on the NHS website. We will make the updating of the NHS website and directory of services a contractual requirement for dental practices. This will make it easier for patients to find a dentist who can deliver the care they need and for the system to refer patients to practices with capacity.

Recruitment of dentists

International professionals form a large proportion of joiners to the General Dental Council (GDC) register—indeed, in 2020, 35% of new GDC dentist registrants qualified outside the UK. They are a vital part of the UK’s dentistry workforce, ensuring that there is more capacity for dental treatment than UK graduates can provide alone

As part of the ongoing reforms to healthcare professional regulation, officials have identified prescriptive detail which restricts the GDC from modernising its international registration processes. This may in turn deter safe and competent professionals from seeking registration to practise in the UK. The Department is therefore taking forward a legislative change which will:

support flexibility for the GDC to ensure that international processes are proportionate and streamlined, while continuing to robustly protect patient safety;

enable the GDC to increase the number of overseas registration exam (ORE) seats it offers by charging a fee which covers the cost of the exam, explore alternative ORE providers, and make changes to the structure of exam and applicant information which will support an increased pass rate; and

allow the GDC to explore alternative pathways to international registration, such as recognition of programmes of education delivered outside the UK, or registration based on recognition of the qualification held by an applicant, as it considers appropriate.

Current arrangements ensure that UK regulators continue to automatically recognise relevant European economic area (EEA) qualifications of healthcare professionals, including dentists. This enables qualified dentists from other EEA countries to continue to practise in the UK and we want to continue to facilitate their vital contribution to the dentistry workforce. EU exit legislation places a duty on the Secretary of State to carry out a review of the operation of these provisions at the start of 2023. The system of automatic recognition will not terminate unless further legislation is made to bring the current system to an end.

Next steps

These changes are the first steps in our work to support NHS dentistry and patients in areas where they continue to struggle with access. We are committed to working with the sector to consider any further changes which meet the six tests set out above, in particular regarding improved access to urgent care and further workforce and payment reform.

[HCWS223]

St George’s University Hospitals Trust: Cardiac Surgery Mortality Review

James Morris Excerpts

Monday 18th July 2022 Commons Chamber

[The Parliamentary Under-Secretary of State for Health and Social Care (James Morris)]

It is a pleasure to be here in my new role as Parliamentary Under-Secretary responsible for primary care and patient safety, and I start by thanking my hon. Friend the Member for Kensington (Felicity Buchan) and congratulating her on securing this important debate on cardiac services at St George’s Hospital. Before responding to the specific issues that she raised, I wish to extend my sympathies to the bereaved families she mentioned who have been affected by these issues.

It might be useful if I begin by setting out some of the background and history of cardiac services at St George’s University Hospitals NHS Foundation Trust. It is important to consider the mortality review in the context of the growing concerns that there were about the culture that existed across cardiac services at St George’s, and the impact that context may have had on the safety and quality of services and questions over mortality rates. Indeed, a number of reviews of cardiac services at St George’s and a Care Quality Commission inspection were critical of services, and concerns were raised by a large group of cardiologists from the hospital. Following two mortality alerts from the National Institute for Cardiovascular Outcomes Research, NHS Improvement commissioned an independent external mortality review, which my hon. Friend mentioned. The purpose of the mortality review was to verify that the trust had identified and addressed the concerns raised through both NICOR alerts, and to inform the trust’s discussions with the coroner regarding the deaths.

It goes without saying that the review’s aims and methodology differed significantly from those of an inquest. The independent panel for the review was composed of consultant cardiac surgeons, cardiologists and consultant cardiac anaesthetists drawn from across the country. It was chaired by Mr Mike Lewis, and published its report in March 2020. The panel found shortcomings in 102 of the 202 deaths it examined. In particular, it found that problems in care probably, most likely or definitely contributed to the deaths of 67 heart surgery patients. As my hon. Friend mentioned, the structured judgment reviews are a standard way of assessing deaths. There is always learning following such a level of scrutiny of a service, including for the regulators. However, I would argue that it would not have been acceptable for NHSI to have ignored the professional and public concerns that gave rise to the mortality review in the first place. The trust and NHS Improvement jointly referred 67 heart surgery patients identified by the review to the coroner. The coroner decided to hold inquests into those cases, which are ongoing. NHS England received a prevention of future deaths report, dated 9 May 2022, to which my hon. Friend referred.

My hon. Friend has raised serious concerns about the findings of the coroner in relation to the mortality review of cardiac services at St George’s, the subsequent impact on the services available to people in south-west London, and the impact of regulatory action on the professionals involved. I have set out the background to the mortality review and what it found. Since the independent mortality review, St George’s has taken comprehensive action to improve the quality, leadership and culture in the cardiac unit. Importantly, mortality has returned to normal levels, patient care outcomes have improved, and the Care Quality Commission has found that services are safe. The review greatly assisted the trust by making recommendations that helped to improve the service and deliver better outcomes for patients.

NHS England London region is continuing to work with the trust to improve the services and leadership of the cardiac unit. The restrictions that were placed on the cardiac surgery unit’s practice before the mortality review have now been removed, and the unit’s outcomes are now in line with those of other trusts. Enhanced oversight of the unit continues, with a package of support measures in place to ensure that improvements are made.

As my hon. Friend said, on 7 May 2022, the GMC found that the two doctors excluded by the trust had “no case to answer”. It is important to emphasise that the referral of those doctors was not as a result of the mortality review, which considered issues of safety and did not criticise any individual. It would be inappropriate for me to comment on individual cases in relation to that matter because of ongoing legal issues. Finally, NHS England is committed to reviewing the coroner’s prevention of future deaths report of 9 May and will response in due course.

NHS hospitals are working hard to provide the very best care for their patients and families, and they should always seek to learn and take action when they have concerns. The Government are absolutely committed to improving the standard of investigations into serious patient safety incidents in the NHS to create a culture of learning from mistakes and to improve patient safety.

Question put and agreed to.

Patient Safety Commissioner for England

James Morris Excerpts

Tuesday 12th July 2022 Written Statements

[The Parliamentary Under-Secretary of State for Health and Social Care (James Morris)]

In July 2021, the Government published their formal response to the recommendations by the Independent Medicines and Medical Devices Safety review led by Baroness Cumberlege setting out an ambitious programme of change. As part of our response, we committed to appoint a Patient Safety Commissioner with a remit covering medicines and medical devices.

I am pleased to announce the appointment of Dr Henrietta Hughes OBE FRCGP SFFMLM as the first ever Patient Safety Commissioner for England. This appointment was made following an open competition, in line with the Governance Code for Public Appointments, and following a pre-appointment scrutiny hearing with the Health and Social Care Committee. Dr Hughes will continue working as a GP and remain Chair of Childhood First.

The First Do No Harm report, led by Baroness Cumberlege highlighted the need to avoid harm and protect patients. The Patient Safety Commissioner will add to and enhance existing work to improve patient safety in relation to medicines and medical devices by being a champion for patients and helping us to learn more about what we can do to put patients first. The Commissioner’s core duties are to promote the safety of patients, and promote the importance of the views of patients and other members of the public. The Commissioner will act independently, and a memorandum of understanding will be agreed to ensure the Commissioner’s independence is safeguarded.

[HCWS198]

Mental Capacity (Amendment) Bill [Lords]

James Morris Excerpts

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

[Kevin Foster]

I accept the point. However, the hon. Lady’s example is not just about standards being ignored, because there was a raft of, bluntly, criminal behaviour and abuse. If we were having a longer debate about care homes and the regulatory system, we could look at whether having the Care Quality Commission cover such a wide range of areas is the best way of ensuring that such things do not happen, but Mr Deputy Speaker is always keen for us to stick to the topic of the debate.

The amendments relating to Lords amendment 1B are appropriate and slightly better than the original, and the amendments relating to Lords amendment 25A make eminent sense. It makes sense to record why something has not happened, because if there are concerns about the management of a care home, there should be a duty to record why something was not done, not just to review it. The management could in theory say, “I’ve reviewed it, but I didn’t record what I’ve concluded,” or try to come up with a conclusion later.

[James Morris (Halesowen and Rowley Regis) (Con)]

On recording things, one issue that arose when we were in Committee related to fluctuating conditions. For example, if somebody were subject to a DoLS, but then medical evidence demonstrated that they could be released from it, that makes it even more important to ensure that records are kept and that there is absolute clarity around the reasons for deprivation of liberty.

[Kevin Foster]

My hon. Friend makes a strong point. We should not just assume that once a DoLS is in place it will be there for life. For some people, it may apply during a particular period of treatment or time, and things will fluctuate for some people if they recover to a point at which a DoLS is no longer appropriate because they are able to make their own decisions. As he says, the appropriate records must be kept to ensure that that is properly reviewed and borne in mind, so that a decision cannot be made that someone should be subject to this forever. There should be a rolling review, to ensure that those in charge of caring for a person and those overseeing the care are satisfied that it is still the appropriate measure, given its impact on the person’s life.

I do not wish to prolong the debate, given that there is consensus across the House, which is welcome. The Bill will be better for having these substitute amendments, inspired by the Lords amendments, and on that basis, I hope the House will endorse them.

NICE Appraisals: Rare Diseases Treatments

James Morris Excerpts

Thursday 21st March 2019 Commons Chamber

[Liz Twist (Blaydon) (Lab)]

I beg to move,

That this House believes that NICE appraisal processes do not properly address the medical treatment needs of people with rare diseases such as muscular dystrophy, phenylketonuria and cystic fibrosis; and calls on NICE to urgently review the appraisal process.

I thank my hon. Friend the Member for North Tyneside (Mary Glindon), who is chair of the all-party group on muscular dystrophy, and the hon. Member for Strangford (Jim Shannon), who is chair of the all-party group on cystic fibrosis, for their help in securing this debate.

My constituent Archie McGovern is 12 years old. He is bright and lively, and full of beans now, but it has not always been like that way because Archie has PKU— phenylketonuria. Putting it simply, PKU is a genetic condition that means Archie and others are unable to handle phenylalanine, which is found in protein—so no meat, no fish and no dairy products. There is a whole range of other things that we would not think had protein in them: the list is endless. On top of that, he has to take a protein substitute drink—if we can call it that, as it is very unpleasant—to keep the balance right.

At present PKU is not curable, and a hugely restrictive diet is the only way of controlling the condition throughout childhood and adult life. The condition is picked up by the pinprick test at birth, and for those identified as having PKU that is the start of a difficult lifetime of dietary control. For children that is especially difficult, but it is also very important because failure to control the condition can lead to serious neurological problems.

That is how it was for Archie until quite recently, but there is a treatment that can help to control PKU. It is called Kuvan, and although it was licensed 10 years ago and is widely available in many countries in Europe, and further afield, it is not available to patients in the UK. Not everyone with PKU responds to Kuvan, but it is believed that more than 20% of people will respond well and see a significant improvement in their life.

[James Morris (Halesowen and Rowley Regis) (Con)]

The hon. Lady makes an important point about Kuvan and PKU. As she will know, last year I and other Members—including the hon. Member for Dudley North (Ian Austin)—took part in the MPs’ PKU diet challenge, so I am well aware of the restricted diet that is required for those who suffer from that condition. The way that NICE evaluates Kuvan does not take into account the social costs associated with the alternative treatment for PKU. That highly restrictive diet impacts on families and wider society, and NICE should consider that point.

[Liz Twist]

Like the hon. Gentleman, I took part in the PKU diet for a day challenge. It was indeed very restrictive, even though I knew it was only for one day.

Archie is one of those who responds well to Kuvan, and last year, his parents took the difficult decision to pay to buy him the drug. That took a great deal of soul searching on their behalf, and it cost them dear—£25,000 a year, even though Archie is currently on just half a dose. They know that for many people with PKU, or for parents with more than one child who has PKU, it is simply not possible to self-fund, and they are acutely conscious of the unfairness of that. The difference that Kuvan has made to Archie is real and significant: increased concentration and energy, so that he can make the best of his education; no recurring mouth ulcers, which were a real problem; and a chance substantially to increase the number of exchanges he can have, and eat a more normal diet. For Archie, Kuvan has made a real difference.

Archie’s case, and those of many others in other constituencies, prompted us to form the all-party group on phenylketonuria, and to consider how Kuvan could be made available to those who would benefit from it. Nearly 10 years after Kuvan was approved, that treatment does not seem to have been an appraised, and in England it is still not available on the NHS. Since we set up the group, there has been a move for Kuvan to be appraised by NICE, and discussions have been held with NHS England about a managed access agreement. We were disappointed to learn just before Christmas that no agreement had been reached on that managed access agreement, and that the NICE appraisal was to be via the single technology appraisal route, and not the highly specialised technologies programme. I understand that following a legal challenge, the Department of Health and Social Care is again considering the appropriate appraisal route, and the all-party group has made representations on that point.

When talking about the NICE appraisal system it is easy to get lost in technical details—QALYs, and everything else, that means nothing to people on the street—but what really concerns people is whether or not there is a fair chance that the drugs they need will be fairly assessed and made available on the NHS.

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

James Morris Excerpts

Tuesday 22nd January 2019 Public Bill Committees

Proposed sub-paragraph (7) sets out an obligation on the responsible body to monitor how an appropriate person carries out their role and to appoint an IMCA to support them if needed. That means an appropriate person will not be left alone if they do not have the time or expertise to advocate for the cared-for person to the best of their abilities. An example of where that might be useful is in maintaining contact with the cared-for person—a crucial but possibly time-consuming task. This is an important provision, as is demonstrated by a case study that was supplied to me by POhWER, an organisation that provides advocates to people who have no one else to support them.

[James Morris (Halesowen and Rowley Regis) (Con)]

The hon. Lady is laying out an interesting case. I wanted to ask a quick question about the amendment. Proposed sub-paragraph (2)(e) states that

“there is reason to believe that the appropriate person would be unwilling”

and proposed sub-paragraph (7) states:

“The responsible body must keep under review”.

I wonder how she envisages that process working in practice. What would the review process be that the responsible body would undertake to determine whether they thought an appropriate person was capable of undertaking their functions? It sounds a bit like a procedure where somebody has power of attorney, which then has to be frequently reviewed. How does she envisage that process working?

[Barbara Keeley]

Obviously, it is an extensive amendment. There are two issues, and I will go on in a moment to talk about how important it is to keep in contact with the cared-for person. It is clear to anybody who knows anything about care homes, or independent hospitals in particular, that some people end up without visitors and without having contact with anybody. The Bill allows renewal periods of three years. We can envisage a situation, given the examples I have given, where a cared-for person is hundreds of miles away from their family. In the example I gave of Sam, the family were not in contact due to the distance of travel.

With regard to review, a responsible body would keep an eye on the situation of a person who never receives any visits or contact. In those situations, it really is up to the care home, the independent hospital or the hospital. Those are the most vulnerable people. The amendment says that it should be a person’s right and the default to have an advocate. It is a matter of how to get the mechanism working towards that. The idea of a review is that the responsible body should be looking out for people who have had no contact with anybody else.

My next example is a powerful one. It was supplied by POhWER, an organisation that provides advocates to people who do not have anyone else to support them. POhWER’s advocate had been visiting an older lady in her care home for a few months. He described his work with her as follows:

“This was supposed to be a two-monthly visit but I felt monthly visits were more appropriate. I carried out mainly unannounced visits due to some of my concerns…

She had been living within the home for over a year. When speaking to the client, she wasn’t really aware where she was living and either referred to it as a temporary placement or a hospital. She didn’t state any unhappiness within the placement, but visually there appeared to be some neglect. There was inconsistency in the way she was described by staff and her documentation was also unclear…

After a few visits I noted her clothes were not appropriate for her skin condition. I was significantly alarmed by her swollen weeping legs and tight trousers that were wet from the fluid. I raised this with the managers immediately. She was then dressed in appropriate clothes. They spoke about the client having choice about what she wants to wear. I explained issues with her statement and the difference between choice and best interests for someone who lacks capacity and for someone who is not aware of the risk.

I asked them to identify this in various care plans, but there was nothing suitable in place…

My following visit saw some changes and this was now reflected in paperwork, but when speaking to the nurse in charge she wasn’t aware of the protocol in place. The client was in a better condition than in my previous visits which was comforting to see. Again I fed back to management about the communication in the team being unclear and was assured by the care home management this would be addressed.

I carried out another unannounced visit and saw my client in a nightie with blood stains. I had seen her legs which looked in extremely poor condition. I asked staff and management how her skin on her legs was and was informed there were no issues and they were following the protocols in place.

My client’s legs were weeping and covered in blood stains. I reported this to the managers of the home. This was also highlighted in my email and reported to the supervisory body and I was advised to contact the safeguarding team.

All my details and findings were reported to the safeguarding team and to the quality standards team. Since the involvement of the safeguarding team my client no longer resides at the home, has changed accommodation and is enjoying living there.”

The only reason the advocate was able to pick up on the poor treatment being received by the cared-for person in that case was because they visited her several times over the course of several months. Had they been involved solely with the authorisation process but then not visited until a scheduled review or renewal, which, as I mentioned earlier, might be three years later, it seems unlikely that the multitude of errors documented would have been seen. Ultimately, that would have led to the cared-for person receiving a much lower standard of care. That is why we want to see an appropriate person or advocate who will keep in touch with the cared-for person, and support to do that should be provided if it is needed.

Paragraph 39(5), which is proposed by the amendment, outlines some of the rights that the IMCA or the appropriate person should support the cared-for person to understand and exercise. I hope that the code of practice sets out in more detail the way in which IMCAs or appropriate persons should carry out their role, but we feel that the rights outlined in proposed sub-paragraph (5) are the most important for the cared-for person to understand. They include the ability to trigger an independent review of the application or authorisation, and I believe that they should be in the Bill. We have not seen the code—we have seen a list of what is going to be in the code—and we have not seen the guidance that will be issued to IMCAs. In the absence of those, we want to ensure that certain key rights are protected in the legislation.

--- Later in debate ---

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to see you in the Chair again, Mr Austin.

As I reflect on what my hon. Friend the Member for Birmingham, Selly Oak was saying, I recollect that we were getting stories some years ago about people—possibly like that young person—who were suffering the fate that could have befallen her. In some cases, their only crime—the only thing they had ever done wrong—was to get pregnant; they were locked away in what, in those days, were called “mental institutions” because they got pregnant. We heard story after story, not so many years ago, of people coming out of those places having lived 30 or 40 years there, when there had been no mental capacity issues or anything like that at all—just something way back in their past. If people in that situation had had an advocate, we might never have had that situation or heard those stories of people being deprived of their liberty, particularly unlawfully, for decades.

To illustrate the case for this amendment—if my hon. Friend’s story does not do so—I want to use real-life examples provided by the advocacy provider POhWER, to which I am grateful. Imagine someone is in a care home; their same-sex partner of more than 30 years has passed away, but the care home staff have denied them the right to look at photographs of their partner, because the relationship they enjoyed over all those years went against God’s will. The staff are depriving that person of their liberty, unauthorised. The person is experiencing homophobia, and they are distressed, as they are not allowed to look at photographs of the person they spent their life loving. In time, however, they get an advocate; their distress is clear to the advocate, yet they smile and laugh when, at last, they are handed a photograph of their late partner. Situations such as that have happened, and are still happening.

Another case in the same care home centred on a cared-for person being prevented from attending the local mosque, because the care home manager, for some bizarre reason, felt the weekly visit from a Christian priest was sufficient to meet everyone’s religious needs. Having seen them operate in hospitals and all manner of places, I know that good priests, rabbis, imams or other religious leaders visiting care homes or hospitals do not discriminate; they will speak to anyone and spend time with them. They do that because their faith is driven by compassion and care, and they have a genuine desire to minister to people regardless of their faith, or even if they do not have a faith at all. However, that is no reason for a person to be denied the right to attend the building that serves them in their faith, but that, too, happened in this care home.

A one-size-fits-all arrangement across the wide range of services provided in a care home is not sufficient, and it certainly does not work with faith and sexuality. The people in those examples were helped in their respective plights, thanks to an advocate—someone who could help to put matters right, who ensured those people had what they needed and who, perhaps more importantly, had the capacity, skills and knowledge to point out the rights of the person in care and to make the point that the actions I described are discriminatory and could be unlawful.

Last week, the Minister rightly spoke in praise of care home managers, and I have made it clear that I believe the vast majority do a good job and are genuine carers. But they too are ingrained; they are stuck in the day-to-day running of their care home, and we cannot expect them to function as an assessor, an advocate or anybody independent whom a cared-for person needs. Even if they did have that responsibility, that would have failed to protect the two people in the two examples I gave.

The default position in the Bill should be that every person gets an advocate unless they actively refuse one after they have been given one. As I and others said earlier, it should be an opt-out rather than an opt-in—my hon. Friends have covered that in some detail. It is much better for a person to decide that they do not want an advocate than for them to be unfairly treated because they did not have anybody to speak up for them.

I agree with Mencap, which argued:

“The new scheme must ensure the right of the person to object to and challenge arrangements if they wish, and have the support and representation to do so”.

If the person in the case I spoke about at the start of this speech had had the support and representation to challenge arrangements, she may not have been so distressed because she was denied access to photographs of her partner. She may have had a better emotional quality of life and, leading from that, probably a healthier physical life as well. Instead, she was let down by care home staff, and her rights to express her sexuality were denied. She was denied her liberty.

Age UK has also backed this amendment, saying:

“Support from Independent Mental Capacity Advocates should not depend on a person’s ‘best interests’ as it is currently drafted in the Bill. Instead everyone should be able to access an advocate and a person who chooses not be represented can then opt out.”

[James Morris]

Obviously, everyone would agree that having advocates is a good idea, but I want to press the hon. Gentleman on the point about the circumstances where there might be a need for a best interest test before an advocate is appointed. Does he accept that the number may be limited, but there may be circumstances in which the particular condition of an individual—the nature of their condition—might mean that their having an advocate might not be appropriate?

[Alex Cunningham]

I understand the hon. Gentleman’s point. Unfortunately, we have to cover everybody with an amendment such as this, otherwise we end up with exclusions left, right and centre. We cannot afford to have exclusions. If an advocate is in place, there is no additional problem associated with that. At least the person has some chance of representation.

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

James Morris Excerpts

Tuesday 22nd January 2019 Public Bill Committees

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Pritchard.

On amendment 52, a great deal of concern was expressed in the written evidence submitted to the Committee about how the Bill interacts with the Mental Health Act 1983. In fact, that the Government have not thought that through enough was one of the many reasons why it was felt that they should not be rushing to push the Bill through. They have not made any statements even to claim that everything will be fine. Due to the overlapping nature of the two pieces of legislation, we must take additional precautions to ensure that they work together. To do that, we must know what the Government’s response to the independent review is prior to the provisions coming into force.

It is regrettable that neither this Committee nor the Committee in the Lords took any oral evidence. It is all the more important therefore to get some of the written evidence before the Committee so that everyone is aware of what organisations have been saying. Such organisations as Mencap have added their voices to the concern about the complex interface between the Mental Health Act and the Mental Capacity Act. I will quote from what Mencap said at some length not only because it is worth listening to, but because it is right. It said:

“Sir Simon’s review proposes to redraw the dividing line between when a person should be detained under the MHA and when they might instead fall under the MCA…The proposed dividing line is objection, so that if a person without capacity does not object to admission or treatment they should be placed under the MCA…The proposed new dividing line of objection needs thorough and broad consultation, possible pilot testing, and pre-legislative scrutiny—none of which are possible under the timescales set by Government for this Bill…Given that Sir Simon Wessely’s review has only just been published, there is a strong case for looking at the interplay between this Bill and the recommendations around the MHA. To not do so, risks creating legislation which fits together poorly.”

Does the Minister disagree with Mencap’s assessment and concerns about the interface between the two Acts? Does she accept that much needs to be done before the Bill’s provisions are brought to bear on our vulnerable people?

[James Morris (Halesowen and Rowley Regis) (Con)]

I have a lot of sympathy with the hon. Gentleman, but will he recognise that one of the central drivers for the Bill is the delay in assessments that has built up over time because of the issue identified in Chester? Obviously there is a timing issue, but does he agree that, ultimately, whatever legislation comes out of the independent review will mark a major change in how we approach the detention of people under the Mental Health Act? There probably will need to be more synergy between the two pieces of legislation, but the timing imperative is driving the need to get this legislation on the statute book.

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

James Morris Excerpts

Thursday 17th January 2019 Public Bill Committees

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to see you again in the Chair, Mr Austin.

It is important to reflect at this point that the purpose of this legislation is to take an existing cumbersome system and to try to make one that works, but of course we are putting a new focus on 16 and 17-year-olds while we do that. So it is important that we have good consideration about how we can do it in the safest way, and in the way that best reflects the needs of the individual and of their family in general.

We will all be aware that social media can skew our view of these things, but the very high-profile cases on social media of young people who are in the settings that we are talking about today, and just how difficult that is for the parents and those young people themselves, mean that we should take every step we can to make what is an exceptionally difficult situation as best as it can be for those parents.

This issue came up in one of our previous discussions—it was raised by the hon. Member for Halesowen and Rowley Regis—when we were talking about access for parents as a matter of course, which I think we will come back to when we consider a later amendment. The idea was discussed that we would not want to put something in the Bill that would give access to a child to someone who was not supposed to be given access at that point.

I reflected on that point, because it is obviously very important, but I do not think that it actually applies in this situation. I was using, as an analogous case, the idea of a parent’s right to have input into their children’s education. If that parent is subject to a non-molestation order, that right falls away, so I do not think that there is anything that we would put in this Bill that would supersede that.

In a similar vein, my hon. Friend the Member for Stockton North used the phrase “with capacity”, regarding the parents being involved. Again, therefore, nothing that we are doing here would supersede the fact that if that parent was not able—

[James Morris (Halesowen and Rowley Regis) (Con)]

The hon. Gentleman is making some serious points, but I just want to probe one of them. If we are seeking to protect the best interests of a child, there may frequently be circumstances in which those best interests are not necessarily served by having parental involvement, because of the complexity of a particular case or the psychiatric condition of a particular child, and somehow that needs to be reflected.

--- Later in debate ---

[Dr Williams]

It is a pleasure to serve under your chairmanship, Mr Austin, for the first time. I will add a few words on fluctuating capacity to those of my hon. Friend. Everyone in the room knows that mental capacity can fluctuate. In this case, we are talking about the capacity to decide whether someone consents to deprivation of their liberty.

[James Morris]

This group of amendments raises some important issues. I want to probe one point: from a diagnostic point of view, establishing whether somebody has a fluctuating capacity is not a trivial issue. That may mean either that the type of professional who can make that diagnosis is unavailable, or that a different process to establish whether there is a fluctuating capacity issue is required. My point is that the intervention into the process that the amendments would require is not trivial.

[Dr Williams]

The hon. Gentleman is right: it is a significant intervention that may well require not only a person with significant skills, knowledge and experience, but a series of different assessments over time to make the judgment.

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

James Morris Excerpts

Tuesday 15th January 2019 Public Bill Committees

[Barbara Keeley]

I think it is worth quickly winding up on the Opposition’s three amendments. As I said earlier, it was right to extend the liberty protection safeguards to 16 and 17-year-olds, and some very helpful points on that have been made by my hon. Friends. I ask the Minister to accept that it introduces a new process to authorise a young person’s deprivation of liberty. We stick to the view that the AMCP’s conducting a pre-authorisation review for 16 and 17-year-olds is absolutely vital.

I ask the Minister to reflect on the points that emerged in the discussion of Opposition amendment 37. Some 4,670 DoLS applications came in from mental health establishments. Of those, 305 did not meet the qualifying requirements. Those people should not have been deprived of their liberty where they were. Given the backlog of DoLS assessments, there might be a larger number than the ones we know about. We need to reflect on the fact that mental health detention is one of the most restrictive under the liberty protection safeguards, which we should take into account. Evidence has been put to us that there is a serious risk of unlawful detention and excessive restriction. Although we want to deal with that through the new process, we do not want people to be detained unlawfully.

Our amendment means that a review will be required for 16 and 17-year-olds where physical restraint, sedation or covert medication is used. The Minister and the Secretary of State are instigating reviews on this, as are other Committees of the House: there is an ongoing review by the Joint Committee on Human Rights. There are really serious concerns and we have to be specific, but we cannot do that without a code of practice, which we have not seen.

On restrictions on contact, my hon. Friend the Member for Nottingham North and I talked about cases in which parents are banned from visiting—they are just not allowed to visit, which is totally unacceptable. There should be a review where there is a less restrictive option for the cared-for person’s care or residence. We should reflect on the well-known case of Steven Neary, which I mentioned. He was kept unlawfully for a year, which should not happen.

[James Morris (Halesowen and Rowley Regis) (Con)]

The hon. Lady talked about it being unacceptable for family members to be restricted in their access to children who have been deprived of their liberty, and I have a lot of sympathy for that point. Does she accept that there are cases where that would be deemed appropriate due to the particular circumstances in which a young person has found themselves? Giving family members an automatic right to have access to a child is not a black and white issue, because it depends on the particular circumstances in which the child has been deprived of their liberty.

[Barbara Keeley]

I very much accept that point. Clearly there are difficult family circumstances and sometimes contact is not allowed. All the Opposition are saying in amendment 37 is that those cases where the family is denied access are more risky, and there should be the possibility of an AMCP review. We are not saying it should not happen—we know it does happen for a variety of reasons—but the risk of another Steven Neary case is clear once parents or other family members are banned. Once family members have their contact reduced or taken away, that becomes a high-risk case.

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

James Morris Excerpts

Tuesday 15th January 2019 Public Bill Committees

[Steve McCabe]

I agree and I think that will be a recurring theme. As I tried to indicate this morning, the divide is between a person’s precious liberty and the need to prove good care and protection for an individual. The whole reason we are here discussing this Bill and the Minister wants to change existing legislation is that it is thought not to be adequate and to provide appropriate independent overview and scrutiny. I certainly agree with that.

[James Morris (Halesowen and Rowley Regis) (Con)]

I have a lot of sympathy for the points the hon. Gentleman makes. One of the underlying principles of the independent review of the Mental Health Act 1983 that was published just before Christmas was that we need to move towards a more care-led Act. That is reflected in some of the deliberations in this Committee.

[Steve McCabe]

I absolutely agree. From time to time we encounter horrendous examples of terrible practices by people who should never work in certain settings—things that are utterly inappropriate—but by and large, the people who work in care and helping professions do it as a vocation. They genuinely care about the people they are trying to look after, and they have nothing but the best intentions. That is my experience. None the less, there is a tendency for the individual to be lost in the management of any kind of care system. The bigger the system or the more pressed the resources in it, the more it moves to a procedure-driven model and the less the focus is on the individual. That is the kind of point that the hon. Gentleman raises, and I agree—that is exactly how it seems to me.

Let me move on to the last part of my amendment that the Minister might consider including in the Bill. I am utterly realistic; I have served on one or two Bill Committees in the past, so I know it is very unlikely that the Minister will leap to her feet and say, “That’s it—that’s brilliant! I’m having those.” That that is not on the cards is a severe disappointment to me, but I wonder if, rather than concern herself too much with the technical nature of my suggested additions to the clause, the Minister will reflect on the point I am trying to make about how to ensure that best interest is the first thing that people think about in this process, with less restrictive options and going the extra mile to try to find them, rather than going for restrictive options because they are convenient?

Finally, Sense argued in its briefing on the Bill that the cared-for person—this is the very point the hon. Member for Halesowen and Rowley Regis made—should be at the centre of the Bill, and every effort should be made to establish their feelings and wishes. My fear is that when the measures move from this nice green Government Bill and deliberations in this Committee to the operational stage of legislation, there is a real danger that they will become more about what we do to people, rather than what we do with and for the person concerned.