Personal Social Care: Funding

Lord Hunt of Kings Heath Excerpts

Tuesday 16th October 2018 Lords Chamber

[Lord O'Shaughnessy]

The noble Baroness makes an excellent point. I do not know about the distribution of such services, but she is absolutely right that what everybody wants—the cared-for person and those looking after them—is to stay in their homes and remain independent for as long as possible, which is why so much more care must be delivered in the home. I will write to her on the specifics of meals-on-wheels services.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Lord talked about taking a firm policy decision. I have yet to understand why the Government commissioned the Dilnot commission, accepted the principles of its recommendation, legislated to introduce it but then failed to implement it. Why?

[Lord O'Shaughnessy]

The noble Lord is right: the Dilnot commission proposed risk pooling, which we legislated for, and it was decided that it was not the right time to proceed with those proposals. However, I can tell the noble Lord that Sir Andrew Dilnot continues to be involved in the policy-making process, as does Dame Kate Barker, who chaired another review. We want to ensure that we can draw on their expertise as we put our ideas forward.

Mental Capacity (Amendment) Bill [HL]

Lord Hunt of Kings Heath Excerpts

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

[Baroness Finlay of Llandaff (CB)]

My Lords, any restriction to a person’s liberty is a serious step that calls for a corresponding level of scrutiny. To do otherwise would devalue the currency of liberty. We must remember how this legislation will work in practice and that it is authorising one citizen to detain another, usually more vulnerable, citizen. This decision carries risks, not least the risk of undermining an individual’s self-esteem and dignity. Therefore it is imperative to ensure that only appropriate and experienced individuals are given the authority to assess capacity and plan the care programme for the cared- for person, with their best interests at the heart of decision-making.

I will speak to the amendments in this group that are in my name—Amendments 14A, 16A, 19C, 19E, 19F, 30C and 32C—which seek to probe an alternative to involving the care manager directly in the process and to align it more closely with the Care Act. Much anxiety has been expressed since Second Reading about the role of the care home manager because there has been concern that the manager is not an appropriate person to carry out or even co-ordinate assessments. There have also been concerns that the cost of providing adequate training would be high and that the proposed training of a few hours would prove grossly inadequate.

The Minister gave assurances on the first day in Committee when he explained that,

“the care home manager would be responsible for arranging the assessments for the responsible body—not necessarily carrying out but arranging”.—[Official Report, 5/9/19; col. 1882.]

He pointed out that care homes already play a role in arranging assessments because they are responsible for identifying deprivation of liberty and then notifying the relevant local authority which under current arrangements, will then send out a best-interests assessor to visit and assess. He pointed out that the assessments that the care home manager will have a duty to arrange will be carried out at the care assessment stage as part of early planning, often by social workers.

However, in discussion with stakeholders, concern has highlighted self-funders, who could risk getting a low level of protection in law and find that the cost of assessment is rolled into their care home costs. Whatever is decided, a care home manager will remain responsible for identifying those whose liberty is restricted and therefore will be responsible for triggering assessments. Nothing in the Bill permits searches to case-find anyone who has not been flagged up and therefore is illegally detained.

Unfortunately, the concerns expressed by stakeholders have not diminished, despite the many meetings at which reassurances have been offered. Those concerns include that the care home manager, even if not undertaking assessments directly, would have a power of veto and that the authorisation of assessments would become a paper exercise. There is also concern that the costs associated with making the assessment would be transferred from the local authority to the care home, but that the funding would not move from the local authority to the care home, leaving the person being assessed, if they are a self-funder, to carry the burden of additional costs.

Regarding conflicts of interest, although some care managers are excellent, not all have the appropriate background experience, and the local authority would remain liable in law for authorising the deprivation based on information from the care home manager. But we must not lose sight of why the Bill is here. The number of people waiting for assessments seems to be rising exponentially and is currently around 125,000 in England and Wales. Even if money was thrown at assessments now, there are not enough people and the current process is too complicated to ensure that they happen.

It is relatively easy to talk about a process, but we must focus on the individual. To the individual, it is not the assessment per se that protects their liberty but the way that they are cared for on a day-to-day basis. They can have the most thorough assessment in the world, but if it is a once-a-year process, they may spend the rest of the year with restrictions on liberty that go unnoticed. That is why a new process to protect liberty must link directly to the care plan that contains details of how the person’s freedoms will be enhanced and how they will be empowered within the ethos of the Mental Capacity Act to live as well as possible. Some may argue that you can have a well-written care plan that is not carried out, but later amendments would enable people to raise concerns and request a reassessment.

It is important to recognise that necessary and proportionate arrangements may restrict liberty in some areas in order to empower the person to live as fully as possible despite the restrictions that their disorder has imposed on them. In some care homes a great deal is done to enhance living through outings, personalised crafts and musical arrangements, or when residents are encouraged to pursue their interests while keeping them safe from obvious dangers. Sadly, in other care homes residents are left sitting in a circle around a blaring television. Their experience means either that they have a low quality of life or in effect feel imprisoned.

It is the day-to-day living experience that matters. The way the care is delivered to allow that experience should be enshrined in a good care plan that encompasses encouraging social interaction and contact with the family, and accepts a reasonable degree of risk while avoiding clearly identifiable major risks. It should specify what the protection of liberty arrangements are that need to be approved by the responsible body. Words matter. Perhaps we should drop the words “liberty protection safeguards” because they can be confused with safeguarding procedures and instead use the term “liberty protection arrangements”, which would probably be abbreviated to PoLAs to replace DoLS.

I know that Amendment 14A looks strange because it comes half way through a paragraph. Ideally the amendment would delete the whole of paragraph 13 in Part 2 of Schedule 1, but given that we reached the end of line 35 on day one of Committee, I believe that the amendment can start only at line 36. However, I hope that the other amendments I have tabled in this group make better sense if we understand that the whole of paragraph 13 should have been deleted.

We know that we cannot throw money at a failing system and that not everyone needs the full might of the current assessment process of DoLS. If care homes are not described differently, it may open the way for others to be required to do the assessments in all settings by the responsible body’s direction, which would mirror Section 42(2) of the Care Act, which states:

“The local authority must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case (whether under this Part or otherwise) and, if so, what and by whom”.


That subsection was designed to safeguard by triggering an inquiry if there is a suspicion of unmet care needs, abuse or neglect. In the amendments I have tabled, I have tried to make the responsible body reflect the same arrangements so that it would either provide assessments or cause them to be provided. Many supported living settings are competent to do such assessments and many care homes could do them in routine cases by being asked for information by the responsible body without any power of veto resting with the care home manager.

I am grateful to Lorraine Currie, the professional Mental Capacity Act lead in Shropshire, for discussing this with me in detail. I hope that by more closely aligning liberty protection with the Care Act we might have a more streamlined process. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, Amendments 17A, 19A, 30B, 30D, 32B an 32E are in my name. The noble Baroness, Lady Finlay, expressed very well some of the key challenges we face in scrutinising the Bill. My amendments would remove the role of the care manager in overseeing the determination that the arrangements are necessary and proportionate. They would also remove the care home manager from carrying out consultation to try to ascertain the cared-for person’s wishes or feelings on the arrangements. In both cases, the result of my amendments would be that responsibility falling to the responsible local authority.

The noble Baroness, Lady Finlay, spoke about the issues facing the sector in trying to implement the current legislation. The problem seems to be that the Government, in their haste to respond to this and the undoubted challenge of the Cheshire West judgment, have come up with a streamlined procedure in which the human rights of the cared-for person are sacrificed on the altar of bureaucratic convenience. The careful balance that the Law Commission put into the draft Bill has been overturned, safeguards have been removed and protections have been overridden. The analyses we have received have been very valuable, but the Law Society’s analysis is a succinct, devastating critique of the Government’s approach.

The proposal means that the very people with a vested interest in keeping cared-for people occupying beds in care homes have been placed in the driving seat in the process of overseeing the restriction of their liberty. According to the Bill, those cared-for persons have lost the right to participate in decisions affecting them, have no right to be consulted, have no right, like their relatives, to be told how to challenge a deprivation of liberty and have no right to request a review. On that latter point, they must rely on the interested person who, when you look at the Bill, remarkably turns out to be the care home manager; nor is there any obligation for the responsible body to meet the cared-for person before signing off on their deprivation of liberty. That is the background to why the amendments are so important and why the Bill’s basis is so flawed.

I cannot find an explicit duty to consult the cared-for person about their wishes and feelings. That is worrying in itself; it is a major defect in relation to the existing legislation. I also find worrying the extraordinary proposition that the care home manager should carry out the consultation. Essentially, they are judge and jury for the person’s liberty, since the consultation is about the outcome of the required assessment that the care home manager is responsible for arranging. As far as I can see, the care home manager will choose who will make that assessment and, presumably, pay their fees. They are also the gatekeeper for the appointment of an independent mental capacity advocate, which cannot happen without the care home manager saying that it is in the cared-for person’s best interests. However, we can see that the care home manager has a vested financial interest in these matters, as does the care home. On consultation, the Bill must be seriously rethought. That also applies to paragraph 16 of Schedule 1 on the determination that arrangements are necessary and proportionate. Currently under the Bill, it falls to the care home manager to decide who should make the determination. This, of course, is a vital test and the determination of the arrangements relates directly to the practice under Article 5 of the European Convention on Human Rights.

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[Lord O’Shaughnessy]

We believe that case law does establish that suitably qualified people need to be appointed. Clearly that is something we need to continue to discuss to persuade the noble Baroness that that is the case, but that is our understanding. As she pointed out, “suitably qualified” can include medical and other qualifications.

On care home managers’ capacity, they are of course carrying out some assessments. The intention is they will carry out more assessments. I agree with the noble Baroness on that point. The point that the noble Baronesses, Lady Barker and Lady Thornton, raised was about the capability and capacity of this group of people to carry out these roles. On our previous day in Committee I committed to explain how we would ensure that that group of people had the requisite training and skills to carry out these kinds of assessments.

The noble Baroness made a point about weakened access. I want to update the House on our thinking about making sure that the person is consulted. We are trying to create a more proportionate system such that, where all those concerned with the care of a person are content that the arrangements have been properly put in place, it does not need to be escalated and reviewed by an AMCP or similar person. The problem we have at the moment is that the system takes every decision to the highest possible level. This is not about weakening access but about trying to have a proportionate system and also about making sure—we will debate this further tonight—that at every stage there are the right opportunities to seek advocacy support and to refer concerns so that an AMCP or responsible body can intervene and review a case if necessary.

Unless we find a way to deliver a more proportionate system we will simply be re-enacting the system we have now, which is not working. This is why I am so keen to work with noble Lords to make sure that we can determine the proper role and responsibilities of, and checks and balances on, care home managers so that we can get the system right and deliver a reform that saves money, enables more people to have their cases reviewed and enables us to make sure that people are protected, which is what we want to do.

[Lord Hunt of Kings Heath]

The Minister read out a list of safeguards that will still be in place despite the streamlined nature of the Bill. The issue I have with that is that the care home manager seems to act as the gatekeeper to many of them. I hear what he says about a streamlined approach, which I agree with, and I also hear what he says about the people who will do the assessment. But there is still a real issue about why the care home manager, of all people, is the person overseeing this whole process. If the Government are really willing to sit down and talk about how to achieve a streamlined programme but continue with some of the essential safeguards that are in the Bill at the moment, clearly the role of the care home manager has to be looked at seriously.

I am not really hearing from the Government whether they are seriously prepared to debate the fundamental construct that they have come forward with. It seems to me that they dreamed up an answer to the problem but did not consult fully—they had selective consultation where individuals were picked off—and the result is that they do not now have consensus support, and the Bill is in trouble because of that.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, my Amendment 37A would preclude the care home manager undertaking the pre-authorisation review, which follows on from what the noble Baroness, Lady Meacher, was saying. However, the Minister floated his answer to this point very recently. I thought I caught him saying that the pre-authorisation review can be done only under the auspices of the responsible body. Perhaps he can confirm that when he comes to speak because it is not clear in the Bill, as I see it. On page 10, paragraph 12 of Schedule 1 states:

“The responsible body may authorise arrangements, other than care home arrangements, if … a pre-authorisation review has been carried out in accordance with paragraphs 18 to 20”.


That relates to those cases where the care home manager does not have a role. Paragraph 13 of Schedule 1 simply states:

“The responsible body may authorise care home arrangements”,


if a number of qualifications have been met, including if,

“a pre-authorisation review has been carried out in accordance with paragraphs 18 to 20”.

I cannot see anything in the Bill that says that the pre-authorisation review cannot be carried out by the care home manager. If that is the case, it would be nice to see its inclusion in the Bill, which would provide some reassurance.

I know that we always stray here because we keep coming back to the issue of a conflict of interest. Has the Minister read the Law Society’s view, which we received over the weekend? The society described the fact that the care home manager has been put into a position of co-ordinating the way in which the Bill needs to be operated when a care home setting is involved as a “conflict of interest”. It stated:

“Vulnerable adults would be put at risk if care homes were given increased responsibility for decisions about their liberty”.


It also said that important safeguards “would be weakened”, stating that the,

“shift of responsibility for carrying out independent assessments of vulnerable people from local authorities to care providers”,

is not something that the Law Commission developed. However, we are working on the basis of a Law Commission draft Bill.

Although the noble Lord is as committed as ever to the care home manager having this key role, I am not at all convinced that this really is feasible. It will not be good enough for the Government to provide reassurance, which I doubt they can, about the training of care home managers and their capacity to carry out this responsibility, particularly in view of the big backlog that will have to be confronted, I suppose, by the care homes. I do not see any provision in the Bill for the current backlog to be dealt with under the existing legal requirements. There is a great deal of scepticism about whether this is going to work.

[Baroness Finlay of Llandaff]

My Lords, I have one amendment in this group and I wonder whether the group is focused on lines of answerability. Who is going to be responsible? If the person is in the community in any setting the responsibility will go or should go, as I understand it, to the local authority. If the person is in hospital then it would go to the hospital. However, we have a problem. A lot of people on continuing care funding are in the community. I am concerned that if the authorisation for those people sits with the clinical commissioning group rather than the local authority, we may end up with some people getting lost in the system. The standards and criteria against which the different assessments and processes are benchmarked and what is expected, particularly how the process is monitored, could be unclear. It will be much harder to monitor out in the community than in a hospital or in-patient setting.

Following on from our previous debate, I had a quick look at the requirements to be a best interests assessor. As far as I can see, to enrol on the course you must have had two years’ post-registration experience as an approved mental health professional social worker, registered with the Health and Care Professions Council, or be a nurse, a psychologist or an occupational therapist. The people who potentially will migrate to become approved mental capacity professionals are registered professionals. That is incredibly important and we should not lose that in any aspect of the Bill. If they are registered professionals they have a raft of professional duties that go with that.

This part of the Bill and the process is not terribly clear, and I worry particularly about people on continuing care out in the community, or those who may become self-funders, managing their own budgets for care.

Mental Capacity (Amendment) Bill [HL]

Lord Hunt of Kings Heath Excerpts

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

[Baroness Hollins]

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

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

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


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

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

[Lord Hunt of Kings Heath (Lab)]

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

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

[Baroness Barker]

My Lords, can I take this opportunity to ask the noble Baroness some questions? Can she confirm my understanding that this duty to consult does not come under Article 4 of the Mental Capacity Act? As I read the Bill, the responsible body or the care home manager is under a duty to consult only in so far as they deem it to be practicable or appropriate to do so. They make that decision. Is that correct? Under DoLS, if somebody was “unbefriended” and if there was nobody to consult, that automatically triggered the right to an advocate. I do not believe that is the case under the Bill. Finally, this duty to consult is a stand-alone one. What happens as a result of that consultation? For example, it does not make it clear that if a family—like Mark Neary—objects to a placement, it does not trigger the need for an AMCP or another assessment. Yes, there is a long list of people but, as I understand it, there is no nearest-relative rule as there is under mental health legislation. There is no sequential order. My basic question is: what happens as a result of this duty to consult? It is not clear to me that anything necessarily happens.

Mental Capacity (Amendment) Bill [HL]

Lord Hunt of Kings Heath Excerpts

Monday 15th October 2018 Lords Chamber

[Baroness Thornton]

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

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

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

It states:

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


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

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


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

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


NICE also recommended:

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


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

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to my noble friend for that invitation. Amendment 50ZA refers to circumstances in which the pre-authorisation review is not undertaken by an approved mental capacity professional. Paragraph 18(2) of Schedule 1 sets out the circumstances where that applies, stating that the AMCP will be brought into play where,

“the arrangements provide for the cared-for person to reside in a particular place, and it is reasonable to believe that the cared-for person does not wish to reside in that place, or … the arrangements provide for the cared-for person to receive care or treatment at a particular place, and it is reasonable to believe that the cared-for person does not wish to receive care or treatment at that place”.

Paragraph 20 of Schedule 1 sets out what the person carrying out the review needs to do,

“if the review is not by an Approved Mental Capacity Professional”,

but it does not say who should do it. I want to raise this issue with the Minister. Clearly, there is concern that it may not come to the attention of the responsible body that the cared-for person does not wish to be treated in a particular place or receive a particular form of care or treatment. We could go back to the architecture of the Bill. We think that it puts too much authority in the hands of the care home manager who, in many cases, has to unlock the door to allow these concerns to be raised. Given that some people should be assessed with their review undertaken by an AMCP, but this will not happen, it is important to know the circumstances under which the review would then take place.

Essentially, my amendment is a probing one. The pre-authorisation review referred to in paragraph 20 of Schedule 1 does not have to be done by an AMCP, but Amendment 50ZA says that the person who undertakes it should at the very least,

“be qualified as a medical practitioner, nurse, social worker, speech therapist, occupational therapist or other profession as may be specified in regulations”.

That covers the point made earlier by the noble Baroness, Lady Finlay, that those professions are regulated. It is important for us to be clear. Some people may fall through the net and not be seen to qualify under paragraph 18(2) of Schedule 1. Therefore, the people doing the reviews who are not AMCPs must have enough professional standing to identify problems that might arise. I hope that the Minister, who is in a concessionary mood today, will agree to look at that.

--- Later in debate ---

I have one final point on Amendment 50ZA. I believe that it would also allow responsible bodies to determine in care home cases whether somebody has the necessary skills and experience to complete a necessary and proportionate assessment. I think that was the intention.

[Lord Hunt of Kings Heath]

No, it was not.

[Lord O'Shaughnessy]

In which case I will not go any further.

On that basis, I hope that I have dealt as thoroughly as I can with the substance of all the amendments in the group. Clearly, we want to make sure that the evidence is as good as possible when making these very important and serious decisions. As I said, in this instance the code of practice is a good vehicle for much of this work. On that basis, I hope noble Lords will not press their amendments.

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[Baroness Murphy]

I support the comments made by the noble Baroness, Lady Hollins, on some of the training issues. Like many people here, I suspect, I have spent a great number of years training junior doctors in how to use mental health legislation, as well as social workers and occupational therapists. One of the most difficult things is to convey the culture of what we are trying to achieve in legislation of this kind. We all refer to the European court and the agreements, but what we are trying to achieve for individuals and why is difficult for many people to grasp when they have grown up in a very didactic, academic environment, where these things are not necessarily considered.

A key aspect of that cultural shift which is so required is the problems that arise between relatives, carers and professionals over what should happen to an individual. All the way through this Bill, I have been scratching my head and thinking, “Will this solve the Bournewood problem?” All the cases from Bournewood onwards have arisen because of a cavalier approach or attitude by professionals to discussing with relatives and carers what the individual wanted, needed or was used to. If we do not get those things right, we will not solve the problem and there will be another case because it will all be up again for grabs where the professional training has not been accurate.

I note that there are some very specific proposals about care home managers. There are some very specific difficulties about what training care home managers currently have, and it is absolutely basic and rudimentary. It is largely about keeping the accounts right. We need to find a way to get the culture of what we are trying to achieve for individuals and families into this Bill. Exploring those training options is crucial if we are to avoid another Bournewood.

[Lord Hunt of Kings Heath]

My Lords, the noble Baroness, Lady Murphy, has made a very telling comment. Part of the issue of training is cost. It seems to me that part of this Bill is about cost shift from local authorities, which have found managing this process very difficult, to care homes. We have not discussed this very much, but will the Minister tell us who he expects to pay the cost of this whole process? I suspect that the answer is that it is going to be in charges, mainly for self-funders, who not only will probably pay the cost of their own assessment, but will probably—as they do at the moment—have to subsidise the cost of local authority-funded people who come under the provisions of the Act. Clearly, the Government did the RIA on the basis of trying to show that the cost will be minimal in order to prevent being rumbled on essentially what they are seeking to do, which is clearly to cost shift the public sector in favour of self-funders.

The RIA is simply non-believable, and puts into question quite a lot of the architecture of the Bill. We know that care home managers, as the noble Baroness, Lady Murphy, said, have rudimentary qualifications. We also know that the turnover for care home managers is quite high. Therefore, major new responsibilities are being given to people who are in a sector where they are often pretty poorly paid; they do not have much training, and they do not have professional qualifications in many cases.

Training is very important indeed, and we need to have some answers as to how this is actually going to happen and who is going to pay for it. If the answer is that it will mainly be paid for by self-funded, vulnerable people, I do not think that is right.

NHS: Dangerous Waste and Body Parts Disposal

Lord Hunt of Kings Heath Excerpts

Wednesday 10th October 2018 Lords Chamber

[Lord O'Shaughnessy]

I thank my noble friend for her question. I will certainly take up the issue of waste disposal in general with my colleagues in Defra who, as she knows, are responsible for it. On the specific question of incineration capacity, Defra calculated that in 2017 there was a total of more than 30,000 tonnes of spare capacity for clinical and hazardous waste incineration. That was across a year, but we know that the NHS has identified more than 2,000 tonnes of incineration capacity this month. So the capacity is there; the point is that it should be used to get rid of the stockpile. As I said, the contracts are now in place to ensure a continued flow of service to NHS trusts.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I do not understand the timescales in this. According to the Statement, the Environment Agency notified the Government on 31 July. Why did it take until October for NHS Improvement to write to the company expressing its concerns? As for reporting to Parliament, we met for two weeks in September. Why did Ministers not come to the House during that period? The Minister seems to be saying that commercial secrecy trumps public accountability.

[Lord O'Shaughnessy]

I am absolutely not saying that. To go through the timescale, the noble Lord is quite right that 31 July was the escalation from the Environment Agency to Defra, which then contacted the Department of Health and Social Care. Ministers were informed on 8 August, by which point a huge amount of effort had gone in not only to analyse the problem but to put in place contingency plans. A final enforcement notice for the Normanton site was issued by the Environment Agency with a need to comply by 25 September, which fell after the two-week Sitting that we had in September. In the meantime, plans were put in place—the Secretary of State chaired a cross-government meeting—and on 3 October the partial suspension was put in place. That is what triggered the termination of contracts by NHS trusts and their replacement by a new contract with Mitie.

NHS: Healthcare Data

Lord Hunt of Kings Heath Excerpts

Thursday 6th September 2018 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is a great pleasure for me to follow the noble Lord’s excellent and visionary speech. First, I declare an interest as president of GS1, the barcoding association, which is involved with the department of health and the Scan4Safety and procurement efficiency programmes.

The noble Lord spoke with great force, all the more for being a patient advocate. Clearly, the opportunities that we have through the effective use of data must be seen not just in terms of a contribution to UK plc but, crucially, in terms of better outcomes for patients. I wholly endorse what he says. I like the concept of making the most of the value that can be generated through the use of this important data, and of taking full advantage of it as a health service and as a country. However, we face a conundrum, which is the public’s attitude to the use of their data.

The noble Lord said—and I agree—that we should put trust in patient demands to have their data used to full effect and for it to be regarded as unethical if it is not. He went on to say that we should engage patient representative groups, clinicians and the wider public sector, as well as the general public, in establishing the priorities for using healthcare data and reinvesting its value. He also said at a later stage that if the public want to opt out of allowing their data to be used in the ways that it can be, that must be respected. That is crucial.

We know from the work of the Parliamentary Office of Science and Technology, among others, that public trust in the governance of data is considered to be crucial to the use and expanded use of medical records for health research and management. We also know from surveys that the public are strongly in favour of the use of this data, but concerns remain. These are about the use of data without consent, the use of identifiable data, data security, a lack of transparency, potential discrimination by employers or insurance companies, and access by commercial organisations. Because of those concerns, some patients might withhold information from healthcare providers, and that of course could well be detrimental to their own health and that of other patients and to the quality of the data being collected.

The King’s Fund analysed the implications of these developments and said that it felt that national policy has been to keep a balance between responding to legitimate public concern about security and confidentiality of data, and enabling data to be shared and used by NHS organisations and third parties. I think that that is the right approach. Of course, you run into problems when you see previous attempts at data sharing in the NHS, such as Care.data, which was an unmitigated disaster. More recently, thousands of pieces of information about data were leaked by companies this summer, I think in July.

The problem is that other instances which may occur in the future will or could reduce public confidence. Is the Minister confident that the NHS is in a fit state? I take note of the Secretary of State’s comments this morning about the lack of progress that has been made in the use of IT generally in the health service. Is the Minister really confident that the service can tell the public that their data is secure? Secondly, can he deal with the problem that the public are finding that trying to opt out of certain information collections is becoming more difficult? I am indebted to medConfidential for this information. My understanding is that post GDPR and post new opt-outs, NHS Digital’s release register confirms that in two-thirds of releases patient opt-outs are ignored.

I shall give another example. There is no way apparently for a parent to make a consent choice for their dependent child using the online service. Instead, NHS Digital tells parents to send four forms of ID by post to their processing centre and that it will consider the request. I am fully behind efforts to use NHS information to the fullest extent and to make the most value out of it, but we will go down a wrong path if we make it difficult for the public to opt out where they want to do so. We know what will happen if there is a campaign— campaigns have been run previously. Care.data was a great example of a campaign run by a media outlet which has had a negative impact on the development of shared medical records within primary care. It may be painful, but more work and more ability for patients to opt out will in the end lead to the noble Lord’s vision being achieved.

Mental Capacity (Amendment) Bill [HL]

Lord Hunt of Kings Heath Excerpts

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

Debate on whether Clause 1 should stand part of the Bill.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I was not able to be present at the Second Reading and I have recently been apprised of concerns by the Residents & Relatives Association about care home residents without mental capacity who, they believe, are at risk of being let down by some of the proposed changes in the Bill. At Second Reading, the noble Baroness, Lady Tyler, mentioned that the timing of the Bill had taken many by surprise and added to that the rather pick-and-mix approach of taking some aspects of the Law Commission proposals but not others, which means that extensive scrutiny is well deserved. Unfortunately, the scheduling of the first day of Committee so soon after we came back means that many of the briefings from key stakeholders have come too late and we have not been able to translate them into amendments. So I thought it might be useful if I used a debate on the first clause to discuss some of these issues.

In particular, let me make it clear that I do not disagree with the aim of the Bill. I support its general intent, and therefore the aims of Clause 1, but there are some real concerns, particularly with the Government’s decision to depart from the Law Commission proposals regarding the role of care home managers. There are some real concerns here: first, the conflation of care planning with significant deprivation-of-liberty decisions; secondly, the burden and risk being shifted to providers; thirdly, the inherent conflict of interest being placed on managers and providers in the design of the new system; and fourthly—this came up at Second Reading—the capacity and capability of the sector to implement the proposals.

These concerns emanate from the decision to move responsibility to form the new assessments from local authorities to the care provider. This means that, in effect, care managers will become responsible for organising and conducting the assessments necessary for the liberty protection safeguards, when they are responsible for that person’s care. The Department of Health’s argument is that all it is doing is taking the Law Commission’s proposition that care planning should be at the heart of the new model, but the Law Commission did not say that these assessments should be done by care managers. In any case, if we are talking about a preventative approach, and if the aim is for assessments to take place prior to admission, which I think it is, one has to ask how it can possibly be appropriate for the care home manager to do that job.

The reality is that care home managers will have the responsibility to make crucial decisions about restricting a resident’s freedom that were previously made by independent people. The assumption seems to be that the resident’s best interests will generally coalesce with that of the provider, but we know from experience that that is not necessarily so. The Relatives & Residents Association, which has a helpline that receives lots of calls from anxious relatives and friends, points out that currently, families can be in conflict with the care home when the resident and their next of kin or lasting power of attorney may wish to move elsewhere, about who may or may not visit, and about whom they may or may not wish to see. This sometimes results in relatives or friends being restricted or banned, or residents being given notice to quit by the care provider.

These examples alone ought to give rise to concerns about what could be described as draconian powers now being given to care home managers. The responsible body makes its decision having regard to the report by the care manager and supporting evidence, but there is no requirement that I can see to have regard to other evidence. Although the responsible body must be satisfied that the care manager has been through the process in the Bill, the impact assessment suggests that this will be merely a desktop exercise. I would be glad if the Minister could confirm that, or say just what it is that the local authority can undertake. At the moment, on the face of it there is a massive conflict of interest with no external checks if the manager reports that the person is not objecting. That would, for instance, open the door to collusive relationships between the home and relatives.

There is then the question of training, which was raised at Second Reading by a number of noble Lords. We have already heard that there were problems with people in the field understanding the requirements of the existing legislation. What is now being put forward is, in my view, in many ways a more demanding and wide-ranging process, certainly in the care sector. Despite the statement in the Government’s impact assessment that they have engaged with service providers, it is noticeable from the briefings we have received in the past two days from many care providers that they too are very concerned about the responsibilities being placed upon them. The consultation seems to have been selective, in that the people who were consulted do not appear to speak on behalf of the sector. Again, it would be useful to nail this one as we go through our debates.

The impact assessment assumes a zero cost to homes and that half a day’s training will suffice. Surely the Government cannot be serious about that. Are they really saying that these new responsibilities can simply be subsumed into the everyday business of care homes at the moment? That surely gives the lie—the concern is that the deprivation of liberty in relation to people covered by this amendment Bill is not being taken seriously enough.

Over the weekend I read a briefing from a national group of regional deprivation of liberty safeguard leads, who should know a thing or two about this. They point out that, as we know, the provisions relating to care homes were never part of the original consultation, and that at no point have local authorities had an opportunity to road test how taking on such a significant assessment role would work in care homes. They say that this is all the more important because the Bill leaves the detainer determining whether the conditions for detention are met, and again, this potentially creates a conflict of interest and risks a return to the state of arbitrary detention.

In summary, it is not appropriate to give care home managers these new and inappropriate responsibilities for vulnerable and often isolated residents for the following reasons. First, they clearly require the care home manager all too often to be judge and jury about decisions in which they were involved, and in which the viability of whose business may depend on income received from detained patients. Secondly, the state of the sector surely gives rise to concern. I know that there are some fantastic care homes, but one in five has no registered manager in post, despite this being a mandatory requirement, while turnover is estimated to be a massive 27%—and they need only half a day’s training. That is simply not believable.

I question whether care managers have the background, time or training to carry out this onerous role. I also question why care home residents, who are surely part of the community, are being treated differently from peers living in their own homes who may be equally vulnerable. This is worth a more general debate, although I recognise that there are amendments to come. However, the Government need to think again and at least explain in rather more coherent terms why they think it is reasonable for care home managers to carry responsibilities which have built into them clear conflicts of interest.

--- Later in debate ---

In a further group, we will have the opportunity to discuss the reasons for doing this, as well as the role of the care homes, the arguments and the reasons, the responsibilities, the authorisations, regulatory functions and so on, which is why I have not touched on them here. On that basis, I do not think we should be stopping what we are doing. We have a responsibility to make sure we proceed to fix what is clearly a faulty system to the best of our ability so that those people who are currently being denied justice will not be. On that basis, I hope that the noble Lord, Lord Hunt, will withdraw his opposition to Clause 1 standing part.

[Lord Hunt of Kings Heath]

I am grateful to the Minister, although I am reeling from the shock that he thinks that I called for a second Second Reading debate to take place on a Clause 1 stand part discussion.

I of course agree that the current system is not fit for purpose. I agree with the Minister and with the noble Baroness, Lady Finlay, and other noble Lords. I agree with the need for a streamlined system, but it has to be the right system. I say to the noble Baroness that one of the briefings that I received was from 39 Essex Chambers, which is pretty expert in this area. It was a very interesting piece by Victoria Butler-Cole which sets out seven changes to the Mental Capacity (Amendment) Bill that the courts are likely to make unless Parliament gets there first.

We have to be very careful that in wishing to support the Government to get a streamlined process through we do not build in mistakes and errors that, rather like the Cheshire West decision, will lead to the court, and then to further legislation. In her piece, Victoria Butler-Cole says that the Court of Protection has a record of rejecting capacity assessments conducted by consultant psychiatrists with years of training in mental health and specifically in relation to the MCA. The Bill permits care home managers to assess capacity in this context. There is no way that will withstand scrutiny by the court, and there are likely to be even more cases in which assessments of incapacity are overturned as care home managers with little or no relevant training are required to carry out what can be a complex task. That seems to me to be the problem.

I know that this has to be signed off by the local authority. The impact assessment makes it clear that in the vast majority of cases that will be a desktop exercise. That does not fill me with confidence that these assessments will be scrutinised effectively by local authorities which themselves are very hard pressed. That is why I think that, when it comes to the detailed amendments, this is a very important part of this legislation. We need to be very careful to ensure that this is going to work effectively.

On training, the noble Lord has made some very welcome comments, but I refer to the fact that there is an annual turnover of 27% in this sector among the people who are going to have to do this work. I say to the noble Baroness, Lady Murphy, that I was trying to be polite. This is a very vulnerable sector, with low-paid people who have low qualifications being asked to deal with issues to do with the fundamental liberty of people in this country.

My gut feeling is that it will not do. This cannot be left to care managers. The Government will have to look again at the Law Commission’s assumption that local authorities would do the work. I of course do not wish to prevent Clause 1 standing part of the Bill.

[Baroness Barker]

My Lords, I hope that it is permissible for me to rise again. For the avoidance of doubt, will the Minister confirm that I understood him correctly? Is he saying that the role of the care home manager has not changed? I understand that, under the existing law, a care home manager may request that somebody’s capacity be assessed, but that assessment is not usually done by them. That assessment is done by somebody else. Is he saying that that is not going to change? I am sorry, but I think it very important that noble Lords understand what the Minister says.

[Lord O'Shaughnessy]

In answer to the noble Baroness’s question, the point that I was making is not that the role of the care home manager will not change but that they are not being asked to do something of which they have absolutely no experience or responsibility for at the moment. As the noble Baroness, Lady Finlay, pointed out, care home managers are already required to make applications and to consider capacity and restrictions, so they already have a role. The distinction is that, as the Bill sets out, the assessments can be made within the care home itself—of course, not by a person with direct responsibility for care. That is one of the issues, of avoiding conflict of interest. In all cases, those will be authorised by the local authority. If there is any reason, through that authorisation, for concern—for example, of conflicting views between the person cared for and their family—then the AMCP, the mental capacity professional, will have the opportunity to decide on the right course of action. That is what I meant by escalate—not that there is a choice of whether to escalate authorisation to the responsible body, as that will happen in all cases, but that there is a further opportunity for consideration by an AMCP if there is any sense of this happening. We will explore in more detail in future groups whether there is a reason for further investigation, including, of course, speaking to the cared-for person, their family and others.

[Lord Hunt of Kings Heath]

With regard to what is going to be a desktop exercise, the question then arises as to how the local authority will know that there are concerns. On conflicts of interest, it seems that the job of the care home manager is to make sure that their home is filled. There is a fundamentally wrong issue here. The initial assessment will be done by someone with a financial interest in its outcome. It is wrong.

[Lord O'Shaughnessy]

Perhaps I may say that to some extent we are getting ahead of ourselves, because we will explore these issues in further amendments. There is clearly already a system in place, which will continue and will be enhanced, to make sure—whether it is through family members and others with an interest, or, as we have discussed before, through those with a lasting power of attorney—that those who have an advocate working for them are able to register their concerns, objections or whatever it is through the process. So it is not simply the case that the care home manager would be able to wrap up the entire discussion and not let any other point of view be heard—quite the opposite. And, as I said, we will discuss that in further detail.

On training issues, addressing the second point talked about by the noble Baroness, Lady Thornton, she is quite right. That is precisely why I said that it is important for us, the Government, to explain, on the basis of consultation with the sector, what will be required to make sure that those who will have these extra responsibilities will be able to exercise them properly. We will discuss that outside this Chamber. I know that noble Lords want to make sure that, where there is a proposed change, even if they still require some reassurance about the benefits of such a change, it will be implemented properly. Clearly, that has big implications for training, capacity and so on. So we will take that away and make sure that we are able to provide more detail on it.

--- Later in debate ---

[Baroness Tyler of Enfield]

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

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

[Lord Hunt of Kings Heath]

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

“changes will need to carefully consider wider rights”,

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

[Lord Touhig]

My Lords, the Law Commission supports this and I certainly support the amendment as tabled by my noble friend Lady Thornton. Including 16 and 17 year-olds would offer some legal protection for organisations such as the National Autistic Society, of which I am a vice-president. We do a huge amount of work with young adults and strongly believe that this is important for them—for their work and for their future. This was raised during Second Reading by a number of people—I was one of those who raised the matter. The Minister indicated that he would look at it and, indeed, in a letter from him on 24 July, he said:

“During my speech I indicated that I would like to reflect on the matter of how the model could fit with 16 and 17 year old young people”.


Perhaps, when he gets up, he will have some good news for us.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My Lords, I support the principle behind Amendment 8 in particular. Perhaps this is something the Minister will want to view as going in the code of practice, as I am not sure that putting this on the face of the Bill is necessarily the right place for it—although I completely understand the sentiment, which is to avoid serious risk. We live in a risk-averse system, and it is serious risk that we must be concerned with.

A case that I heard about in the last few days came to mind. An elderly lady with dementia became extremely agitated when it snowed. Because of her tendency to wander, she was not going outside unescorted. A conversation with her son revealed that she had been a meteorologist, so her view was that when it snowed she had to go outside and measure the depth of the snow and telephone the Meteorological Office. What they did was simply wrap her up really well, let her go out and measure the depth of the snow, give her a telephone and let her make a mock phone call to the Meteorological Office. She was very calm and happy. You do not want her to go wandering because she is near a main road and a railway line and all the other risks, but it was not a serious risk to let her out in the garden, well-wrapped up when it was snowing. That illustrates the granularity of the need to take appropriate decisions focused around the individual person.

Other cases that do concern me are those people who will become sexually disinhibited when exposed to great temptation. That struck me about a case I came across in a home for people with a history of sexual offences. There had been a DoLS in place for somebody not to go unescorted through woodland because, if he came across a young girl on her own in woodland, his sexual drive would overcome his rational behaviour—exposure to porn sites would also overcome his rational behaviour. However, the rest of the time, he could live well. Sadly, that DoLS was apparently overturned by the Court of Protection and, within weeks, he offended and ended up being imprisoned for his offence, but he had been living well with an enormous degree of freedom prior to that point. I think that the serious risk to the cared-for person has to be considered, because there the risk to him was that he would offend and, sadly, that came true.

I hope that the Minister will look sympathetically on the sentiment behind this.

[Lord Hunt of Kings Heath]

My Lords, my Amendments 27 and 28 follow the same lines of argument that we have heard from the noble Baronesses but relate to paragraph 16, “Determination that arrangements are necessary and proportionate”, on page 12 of the Bill.

I know the Minister will refer us back to Section 4 of the Mental Capacity Act, which is very comprehensive in defining what “best interests” are. Clearly, the intention is that, because it is stated there as a principle at the front of the Act, that permeates through all of the issues that we will be discussing in this amendment Bill. There is always an issue when you have an amendment Bill. It is not incorporated in the principal Act and is quite difficult to follow. It will be difficult to follow for the practitioners who are going to have to operate the new provisions. This must relate, too, to the code of practice. We seek certain reassurances that it will be made clear to the people at the front line who are going to operate it that the best interests provisions in this amendment Bill will apply equally.

What is confusing is the wording “necessary and proportionate”. In a sense, the Government are saying there is a qualification—that things have to be necessary and proportionate. I wonder whether that is helpful. It is confusing that we have a qualification of necessary and proportionate, but in the principal Act it is “best interests”. Clearly, these are probing amendments, seeking to tease this issue out, but I wonder whether the Government could give further consideration to how we can ensure that everyone involved is very clear that the best interests apply.

[Lord Touhig]

My Lords, at Second Reading I expressed the hope that the Government were in listening mood. They certainly needed to be. To be fair, the Minister and his team are to be congratulated on the level of engagement that they have been willing to participate in to help us perhaps make a better Bill at the end of the day. But—there is always a but—the Bill might have had a smoother passage if the Government had published an equality impact assessment. They are yet to do so; perhaps the Minister can tell us why. Many concerns have been expressed in debate on other amendments, which might have been assuaged—and we might have made more progress—had such an assessment been available to us.

Mental Capacity (Amendment) Bill [HL]

Lord Hunt of Kings Heath Excerpts

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

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have added my name to the amendment tabled by the noble Baroness, Lady Hollins. As she eloquently said, the puzzle relates to paragraph 17 of new Schedule AA1 on consultation, which references those who must be consulted. The aim of the consultation is,

“to try to ascertain the cared-for person’s wishes or feelings in relation to the arrangements”,

but the paragraph does not specify that the cared-for person must be consulted. The Minister might just refer me to Section 4 of the Mental Capacity Act and say that it is covered there, but so are the provisions in sub-paragraphs (a) to (e) in paragraph 17(2)—they are all listed in the best interests test. Therefore, the puzzle is why the Government have decided that there should be no attempt, at least in statute, to seek the cared-for person’s wishes and feelings. We are already concerned that these measures are not focused on the interests of the cared-for person; they are about streamlining bureaucracy and saving money, and this rather lends to that suspicion. I hope that the Minister will be able to agree to the noble Baroness’s amendment, because it is a very important symbol of what this is really all about.

[Baroness Thornton (Lab)]

My Lords, this group of amendments tests the proportionate nature of the decisions being taken. Amendment 29 would put the views of the cared-for person at the centre of the assessment and ensure that adequate weight was given to their wishes and feelings. I have not been able to find in the Bill where that is expressed, and that is shocking and surprising. We have to see a clear statutory duty to consult the cared-for person, and the scope of that consultation must include their past wishes, feelings, values and beliefs. I invite the Minister to tell me whether he believes that the Bill as it stands achieves that, because I cannot see that it does. If this amendment is not agreed to, the Minister and the Bill team must think about how they can best make sure that the Bill reflects the need for consultation with the cared-for person.

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

I thank noble Lords for tabling their amendments and for contributing to a debate that has continued the discussion that we had before dinner. It again gets to the heart of why we are here, which is to make sure that when people need to be deprived of their liberty, it is in their best interests to do so and that the restrictions are proportionate and necessary and so on.

I agree with the spirit of the amendments. It is important that we intend to, and do, safeguard the well-being, wishes and feelings of the cared-for person. Dealing with the first set of amendments, I take this opportunity to reassure noble Lords that the changes being sought are already required by law in several ways.

First, the European Court of Human Rights has made it clear that a decision on whether arrangements are necessary and proportionate must include consideration of the cared-for person’s wishes and feelings about the arrangements. It should also be noted that, as the noble Lord, Lord Hunt, pointed out, wishes and feelings are already a part of the first-stage best interests decision-making under Section 4 of the Mental Capacity Act and I can confirm, as I have done already, that the Bill does not change this. Furthermore, wishes and feelings will also be considered as part of the “necessary and proportionate” test, and the code of practice will provide further detail about how that will work in practice.

Going even further, as has been referenced by several noble Lords, we have created in this Bill a specific requirement to ascertain a person’s wishes and feelings in relation to the proposed arrangements through the duty to consult with anyone with an interest in the cared-for person’s welfare—first and foremost the person themselves, as well as their family, carers, friends, advocates, interlocutors or anybody with a substantive interest in their care. I believe that there is substantial legal protection, force and direction to make sure that the person’s wishes and feelings are considered first and foremost in any of these kinds of arrangements. As this debate has demonstrated, there are clearly lingering concerns that that is not the case, because of the existing framework, notwithstanding the enhancements through the duty to consult that we are introducing. However, I am eager to make sure that it is well understood, and to work with noble Lords so we can make clear that those responsibilities already exist, both in statute and—

[Lord Hunt of Kings Heath]

I understand the Minister’s argument, were it not for the fact that the amendment, in paragraph 17(2)(a) to (d), just copies what is already in the best interests clause. I would argue that, if we are going to copy four of those, why do we not copy the issue about the cared-for person being listened to? The Minister is arguing different points from amendment to amendment on this.

[Lord O'Shaughnessy]

We try to be consistent, but it is not always possible. The noble Lord makes a good point; it is something that I would like to explore further.

Turning to the matter of considering less intrusive arrangements, again this is incredibly important. Case law establishes that the test of whether the arrangements are necessary and proportionate must also include consideration of whether less intrusive arrangements are available and have been fully explored. As we discussed in the last debate, it is already a principle under the Mental Capacity Act. The code of practice will provide further detail about how that will work in practice.

This has been a useful debate, continuing, in some ways, the previous debate on best interests. As we have all agreed, it is important that the person’s wishes and feelings are at the centre of arrangements being proposed. That is certainly our intention through the liberty protection safeguards scheme that we seek to introduce. I want to continue working with noble Lords over the coming weeks to make sure that there is clarity that that is the case. I hope that on that basis, the noble Baroness will be prepared to withdraw her amendment.

--- Later in debate ---

[Baroness Hollins]

My Lords, Amendments 11, 12 and 13 deal with a perceived conflict of interest pointed out by numerous charities and care providers with regard to the role that care home managers are intended to play under the Bill. As drafted, the Bill places a new duty on care home managers to carry out the assessments and consultation prior to authorisation. My amendments would ensure that the duty for carrying out assessments resides with the responsible authority, with a retained duty to involve care home managers in carrying out those assessments.

I raise a puzzle that I have. I have been trying hard to get my head around some of the possible unintended consequences of the way in which we think about care homes and care home managers and the relationship between the different kinds of care and support that are provided. Some services, with great encouragement from local authorities, have been trying to convert their residential care homes into supported living houses. That has been the trend. Often, these new supported living houses are located on the same site as the remaining residential care homes or in the same area but with the same organisation running them and the same chief executive. Sometimes, the registered care home manager is not only the care home manager for the residential side but is also the manager for the supported living homes. They are located on the same site, close together and within the same organisation within the same management structure, but the organisation will have two different systems for authorising the provisions of the Act, which will be very confusing for it.

I wonder whether there might be a perverse incentive for adult social care to reverse its previously encouraged trend towards supported living, to reduce its administrative burden and to register more care homes. This seems to be a backwards step when, in times of personalisation, we want to move more people to settings that are not registered care homes, but are more supported and likely to take note of their personal wishes, if that is not too much of a conundrum. It is one of the real puzzles I have been struggling with over the Bill.

The whole ethos of DoLS was that those making the decisions about deprivation of liberty were independent of those providing care to the person, and that independent assessment is an important safeguard. More specifically, the new arrangements raise concerns that a number of stakeholders have pointed to. For example, it can be easier to care for someone by placing more restrictions on their freedom. It is harder to support them in the least restrictive way possible and to maximise their choice and freedom. We know that health and social care professionals are naturally risk-averse and, if there are some possible risks, they will often choose the perceived safer, albeit more restrictive, option over increasing liberty.

I believe the vision, which is great, is to integrate decisions about liberty protection safeguards and deprivation of liberty into care planning. This means that, at the point of making decisions about placement, decisions about restrictions are also considered, with a view to seeking the least restrictive option. This makes sense, but I do not see how this can happen if the care home is making the determination. It is already a done deal that the cared-for person is going to be in that care home. Their care manager will be looking at the arrangements within the care home. They are unlikely to say that the person would be better off and able to have more freedom in a different setting—for example, a supported living setting. There is a bit of a conflict of interest here.

Currently, the care provider feeds into the DoLS assessment, sharing their expertise as a provider. That is a different role and skill set from making decisions about necessity and proportionality. Consulting with relevant people is a different role from being one of those consulted. The assessments are complex and this new role is being placed on care managers who, by definition, have a different skill set. The sector is trying to deliver care for people who, in many cases, have complex needs and require intensive support to live as independently as possible. I am interested to know what conversations the Minister and officials have had with those upon whom this new duty would fall, as I suspect they will have raised many similar concerns.

Perhaps it is worth reflecting on the judgment by Lady Hale in the Cheshire West case. In speaking about the extreme vulnerability of the people concerned, she said:

“They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the deprivation-of-liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us”.


I wonder whether this paperwork exercise for non-objecting people is what she envisaged as an independent check. In his response, I would appreciate the Minister’s view on whether he sees a conflict of interest here and whether he agrees that the assessment should be carried out by someone independent of the care home, and who that should be. I wonder if we need to make more use of service brokers to do the care planning, listen to the person’s wishes and ensure that the decisions made lead to an effective care plan. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I have added my name to that of the noble Baroness. She has succinctly put forward the case for the removal of care home managers from this important position, and at this point, I am very supportive of that. While we debated this issue earlier, I want to come back to a point raised then. The argument was put that we ought not to worry because the local authority remains the body that approves authorisations; it will provide independent scrutiny and oversight. I have already referred to the fact that the impact assessment treats this essentially and mainly as a desktop exercise, but my advice from Professor Lucy Series of Cardiff University is that unless care home managers themselves indicate that an AMCP referral is required, all the responsible body will be able to make the decision on is the information supplied by those care home managers. She states that that is a very weak independent safeguard, and indeed it is when care managers have a financial interest in these decisions. That is why this arrangement simply cannot be allowed to stand.

The other thing I would point out to noble Lords is the evidence I received on Monday from ADASS, the association of Directors of Adult Social Services. Like everyone else, it supports the overall thrust of the Bill—there is no question about that—but it has some concerns relating chiefly to the expectation that care home managers will be responsible for the assessments required to authorise the deprivation of a person’s liberty. It says that it is in discussions with the Care Quality Commission and the Care Provider Alliance, which both have similar concerns. That answers the point raised by noble Lords about where the CQC stands in relation to this. I am not surprised that the CQC has concerns because of the very difficult challenges it faces in the care sector generally. One has to think carefully about whether adding to its responsibilities is the right course of action.

ADASS has stated:

“Whilst registered care providers have previously been required to assess individuals, to determine that they can meet the person’s needs and to undertake care planning, they have not been required to assess to protect people’s liberty. Planning Care and assessing whether deprivation of liberty is in a person’s best interest when they are unable to decide for themselves are very different things. ADASS therefore believe this to be a new activity, requiring new skills and resources. We have real concerns relating to a) care home capacity, b) care home staff competence, c) perverse incentives and potential conflicts of interest, d) additional cost (for training and additional capacity) and e) whether and how such costs will be resourced”.


Noble Lords who know those at ADASS will know that they do not make such statements without very good evidence. The noble Baroness is proposing in her amendment to take out the reference to care managers, and my assumption is that the role of assessing will be restored to the local authority, which of course was in the Law Commission’s original plan. From what I have heard, surely we have to stick to what the Law Commission proposed.

General Practitioners: Indemnity Scheme

Lord Hunt of Kings Heath Excerpts

Monday 16th July 2018 Lords Chamber

[Lord O’Shaughnessy]

My noble friend makes an excellent point and I will certainly do so. There is an attempt not just to recruit many more GPs into service but to recruit them into hard-to-reach areas, such as rural areas, through a targeted recruitment campaign. I am sure that that is one of the areas that we will want to look at.

[Lord Hunt of Kings Heath (Lab)]

My Lords, is it intended that locums will be covered by the scheme?

[Lord O’Shaughnessy]

My understanding is that the scheme is for all providers of primary medical care services under GMS, PMS and APMS contracts.

Health and Social Care Act 2012

Lord Hunt of Kings Heath Excerpts

Thursday 5th July 2018 Lords Chamber

Asked by

[Lord Hunt of Kings Heath]

To ask Her Majesty’s Government, in the light of the Prime Minister’s criticism of the regulatory framework established under the Health and Social Care Act 2012, what plans they have, if any, to bring forward measures to amend or repeal that Act.

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

My Lords, the Government have announced a five-year funding settlement, and we have asked the NHS to develop a 10-year plan to transform health and care. As my right honourable friend the Prime Minister said, as it develops its plan we will listen to the NHS about whether there are any barriers created by legislation. We will consider, after that, what changes may be needed.

[Lord Hunt of Kings Heath (Lab)]

My Lords, in her speech on 18 June the Prime Minister referred to chief executives of NHS organisations having to make so many reports to different regulators that they have no time to improve their own organisation, and to a typical clinical commissioning group having to agree 200 contracts with other parts of the NHS. Is not the answer to the first question from the noble Lord, Lord Hamilton, that the NHS, employing 1.3 million, is not hard to manage, but the fact is that the Government have bequeathed to it an organisational structure that is dysfunctional and costs billions of pounds? If he really wants to help the NHS, will the Minister not come forward with a Bill to repeal the Health and Care Act 2012?

[Lord O'Shaughnessy]

My Lords, since the 2012 Act was passed, there have been some significant improvements in NHS performance, not least in cancer outcomes, for example. There are also around 42,000 more staff since 2010. So improvements have clearly been able to happen within the legal framework set by Parliament in 2012. Nevertheless, we recognise that as the service is required to become more integrated and people across different care functions are required to work together, we need to look at the structure. There is already joint working, for example, between NHS England and NHS Improvement at the regional level. But if the NHS identifies any barriers, we will look at those.