The National Health Service

Alex Norris Excerpts

Wednesday 23rd October 2019 Commons Chamber

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

It is a pleasure to follow the hon. Member for South West Bedfordshire (Andrew Selous), whose personal leadership on tackling modern slavery is something we very much appreciate in this place. We may well have seen a reminder today of why that is more necessary than ever.

I made my maiden speech in a Queen’s Speech debate. Google tells me it was 848 days ago, which feels very strange. It feels simultaneously like a lifetime ago and yesterday. These have been very strange and tumultuous times. If I had been told then about things that have happened subsequently, I would have been sceptical, but no more sceptical than at the idea that we would still not have a social care Green Paper. We have had five delays and, despite it not being a laughing matter at all, it has become a long-running joke and a focus of derision.

The ever-delayed social care Green Paper is absolutely critical, because we know that up and down the country millions of people, paid and unpaid carers, are getting up in the dark, coming home from work in the dark, working split shifts and double shifts, and working for poor pay on insecure contracts. They are the backbone of not only the social care system, but the NHS and all public services. If only 10% of our social carers, whether paid or unpaid, walked away tomorrow, all our public services would come to a grinding halt. We need to do much, much better by them. I hope the Government, in showing movement on this issue, intend to bring forward their plans quickly.

In its latest annual assessment, the CQC highlighted concerns about cultural and geographic barriers to access to care, deficient regional staffing, a lack of stability in the adult social care market, and the Government’s failure to implement a sustainable long-term plan to fund social care. It said that that directly impacts nearly 1.4 million older people and millions of people with disabilities or illness who do not have access to the care and support they need. It is time for us to act.

The Government need to be brave and honest. If they are worried about the reaction of current service users to their proposals, I would remind them that the current service users have lived experience of the fact that the current system does not work, so they have no need to be afraid of them when it comes to change. When it comes to millennials like me, we are realistic. We know that the system that cares for our grandparents and our parents will not be the same for us. Let us be honest about that. There are profound and difficult decisions that have to be taken—let us get to that point. We do not need to be afraid.

I know that the Minister for Health, the hon. Member for Charnwood (Edward Argar) is a good and honest man, but when it comes to funding for social care—this is a really important point—we always see the Secretary of State or the Prime Minister use phrases such as, “We have given access to an extra £11 billion”. The Government should be honest about where that money comes from, because the bulk of it is from a social care precept on the local ratepayer. There is a political argument—I disagree with it fundamentally—that says, “Well, the Government believe that there should be a transition of the burden for social care from the national taxpayer to the local taxpayer”. I disagree, but if that is the belief on funding the social care system, the Government ought to say so, because that is very important.

Similarly, I know that this is a health debate, but I will not miss the opportunity to say that we must all reflect for a moment on the BBC and the removal of the free TV licence. As part of someone’s care, and as part of someone’s life in their 70s and beyond, we know that television plays an important part. We should be honest about why this has happened because that cut lands at the door of the Government, despite what they might say.

We know that failures in social care have a profound impact not only on the individual, but on the national health service. I have a real passion for integrated care—I cannot quite see the shadow Secretary of State from where I am standing, but when I was his Parliamentary Private Secretary, I used to bore him at great length about the virtues of integrated social care. When I was health and social care lead in Nottingham for three years, it was by far the least popular thing I did and I had campaign groups at my door weekly talking about my enthusiasm for certain models. There were flaws in the models for sustainability and transformation plans, accountable care organisations and accountable care systems—whatever re-branding we are on at that moment —but, fundamentally, integrating the national health service with our local authority social care is a very good thing and, if we did it properly, it would lead to people not having to ring up multiple agencies to sort out their loved one’s care. It would lead to proper, seamless care that, rather than being based around organisations, would be based around individuals. Again, I say to the Minister: Ed, let’s be bold on integrated care. Let’s be brave —[Interruption.] Madam Deputy Speaker wasn’t concentrating, I got away with it. Let’s be bold about this. If you are, you will see the best of politics working and a lot of consensus building.

I want to use the limited time available to me to refer to public health. I am proud of what I said on integrated health and what we did in Nottingham—we did good things. One area from my time in local government that I reflect on without pride is public health. We did good things on trying to be more innovative with the public health grant, but fundamentally, because of the nature of the cuts that have come down the line over the last nine years, we made cuts to public health services. I made cuts to smoking cessation services—a terrible public policy decision—because there simply was not enough money.

[Norman Lamb (North Norfolk) (LD)]

Is the hon. Gentleman aware of the Health and Social Care Committee report today that highlights the fact that there has been a 30% cut in funding for drug treatment services over just the last three years, which is catastrophic for the people involved?

[Alex Norris]

Having had a long four-and-a-bit hour vigil in the Chamber, I have not had chance to see that, but I certainly will. That is the picture up and down the country, including in Nottingham. The key thing is that as well as being absolutely dreadful for the individuals affected, it is terrible for the system not to have those good, often early, interventions on drugs and alcohol. If we let those things spiral, the impact on the individual and the costs related to the system grow exponentially. These are really bad value choices and we could do much better on public health.

I will finish with a point about cannabis on prescription. We have had important conversations on this today, and it is good that both the right hon. Member for Hemel Hempstead (Sir Mike Penning) and my hon. Friend the Member for Gower (Tonia Antoniazzi) are here. Their leadership on this has been absolutely crucial. I heeded what the right hon. Gentleman said about how to describe it, and I changed my speech from saying “medicinal cannabis” to “cannabis on prescription” as a result. I have had a case in my constituency, as many have, with a very, very frustrated parent who could not understand why their child did not fit the criteria.

[Sir Mike Penning]

The hon. Gentleman is making a really important point, and I thank him for changing his speech slightly. The reason why it is so important is that we need the observational trials. We need to know about the THCs and the chemicals that come from the cannabis oil; we need to know the strengths and what it is. That is why talking about the prescribed medical use of cannabis oil is crucial when we make this argument; otherwise, we will lose the public will.

[Alex Norris]

I am grateful to the right hon. Gentleman for improving the quality of my speech by adding that to it. I am very confident about this matter, and this afternoon has only increased my confidence. He will have heard the shadow Secretary of State say that if primary legislation is needed—

[Sir Mike Penning]

It’s not.

[Alex Norris]

Clearly not. Whether it is regulations, or whatever, we are very capable in this place of having a grown-up conversation on this and finding a solution. That is what my constituent and her mother are desperate for us to do.

We are very grateful in Nottingham for our excellent health and social care staff. They do an incredible job, keeping our communities going and bringing hope and enjoyment of life to many people struggling with profound challenges, but they want us to do better. The social care Green Paper would be a good chance to do that, and I hope we can do it quickly. Integrated health and social care promises many virtues. We just need to get around the table and have a proper conversation about it. I hope we can do that.

Access to Medical Cannabis

Alex Norris Excerpts

Monday 8th April 2019 Commons Chamber

[Matt Hancock]

My hon. Friend makes an important point. The Border Force should not be criticised in this case, because it was following the rules: if a clinician has not signed something off it cannot come in. It is incumbent on us on the health side to sort out this problem. He makes a broader point, however, that this is a completely separate issue to the recreational use of cannabis. I do not support a change in the rules on the recreational use of cannabis; this is about the specialist provision of drugs to some children who are the most vulnerable people in society, and the need to ensure that the medical benefits of such drugs can be brought to bear on people who really need them.

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

Like many colleagues, I have spoken with parents of children who have profound challenges that could be ameliorated by medicinal cannabis. They are at their wits’ end, and it is no surprise to find that some in this country resort to desperate measures. I have listened for 45 minutes now and I cannot tell the answer to this question: is the Secretary of State really saying that we have a clear, universal, safe and compassionate approach to this issue and, if we do not, when will we?

[Matt Hancock]

I am saying that if a patient needs medicinal cannabis, and if a clinician will sign off on that need, the prescription can happen. The guidance from the association does not override the individual judgment of that clinician. That can happen but, because it has not been happening in many cases that have been brought to light, some privately and some very publically, I am putting in place a system of second opinions to ensure that we can get that clinical decision right, at the same time as developing a stronger evidence base for the future.

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

Alex Norris Excerpts

Tuesday 22nd January 2019 Public Bill Committees

[Alex Cunningham]

The Committee is going to get this example whether it wants it or not. The case went to court, and the judge accepted the evidence and ordered that the cared-for person be returned home and that the sibling be evicted so that the live-in or an overnight carer could be accommodated. The gentleman in question returned home successfully and was later assessed as having regained capacity.

That is the power of an advocate, and it proves the necessity of an advocate in all cases, so I hope that the Minister takes these comments on board and ensures that she helps to enhance the quality of life for vulnerable people by including this amendment in the Bill. It would probably also ensure that she plays an important role in getting people who can be supported in the community the right result for their lives, rather than their being effectively locked up in a place where they do not want to be.

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

It is a pleasure to follow so many colleagues making so many eloquent points about just how important advocacy is. I think that all of us in this room recognise that. An individual up against powerful organisations, across all sectors, is in a very uneven power relationship. If we then add in perhaps a lack of knowledge of how systems and services work, they might need support. Certainly, when they do not have capacity either, there is a clear need for some sort of support.

Sometimes we might read, whether in our postbags or online, that we in this place do not get it on an issue. On this issue, we definitely get it, because every day all of us at some point are battling the local council, the health service or the Home Office—that feels like a regular one—in advocating, as Members of Parliament, for people who do not know the system the way we do. They might look at something and think, in a natural justice way, “Hey, this isn’t right” or “I’m not happy about this,” and we provide extra support and learned knowledge to try to help them through that.

We do get it, and I hope that we can layer that into this very important legislation. We know the sensitivities of the individuals we are talking about. The whole purpose of the Bill, of our being here for the third day and of the time in the Chamber as well, is to take a system that, at the moment, does not work in terms of system capacity and has in the past created outcomes for people that we would not wish for ourselves, our loved ones or anybody, and to try to get something that does work and is robust. Fundamentally, we would always want to know that, as a result of what is decided by Parliament in this legislation, people living in Nottingham, Bristol or Birmingham, with relatively similar circumstances, would have similar outcomes, irrespective of the fact that the person in Nottingham had an adult child who was very active or even a DoLS specialist and the person in Bristol had no one. We would want, irrespective of those circumstances, that those people got consistent outcomes, because that is what a fair system means.

If we take away advocacy as a default, we get into the fundamental question of whether families, including active families, would even know to know that they could have an advocate. If the quality of the engagement with the responsible authorities is not good, for whatever reason—that has sometimes happened in the past—would the family know that they could ask for an advocate, or that there might have been a best interest assessment and a judgment that, given that the family were around, advocacy was not necessary?

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

Alex Norris Excerpts

Tuesday 22nd January 2019 Public Bill Committees

[Barbara Keeley]

Going back to amendment 52, the process of bringing the Bill forward has been disappointing. It has been rushed and stakeholders feel that their views have not been taken on board. How do we know that that is the case? A letter was published in The Times today under the headline “Mental Capacity Bill Attracts Criticism” from a group of organisations including Liberty, Mind, Alzheimer’s Society, the National Autistic Society, POhWER—to which we have referred a number of times in our debates—the British Institute of Human Rights, Sense, Compassion in Dying, YoungMinds, Learning Disability England, Voluntary Organisations Disability Group and Headway—a very comprehensive list of organisations. They say:

“It is with dismay that we note the lack of improvement within the Mental Capacity (Amendment) Bill. The bill would replace existing deprivation of liberty safeguards with an entirely unfit new system of protection. To avoid the risk of exploitation and abuse it is vital that there are robust safeguards in place.

Alarmingly, the bill proposes to triple the time that people can be deprived of their liberty without review…while not doing enough to guarantee that all patients have access to independent and impartial advocates.”

This is what we have been debating.

The letter continues:

“The bill also creates a worrying conflict of interest for care home managers, giving them a greater role in the assessment process. Many vulnerable people will find it hard to express their concerns to a person providing them with care. The result is a rushed, incomplete and unworkable bill that will replace one dysfunctional system with another”.

That encapsulates everything that we have been trying to say.

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

My hon. Friend lists a range of the most eminent and significant organisations in the field that we are discussing. They use words such as “dismay”, “rushed” and inadequate. Should that not be a big, flashing red light for hon. Members to say that perhaps this course of action is not the right one to be taking?

[Barbara Keeley]

Absolutely, I agree with my hon. Friend. On Second Reading, I said that the Bill should be paused, while we wait for the Government’s response to the Mental Health Act review. Every time I mention this, there is a groan from the Government Benches. We should not be rushing these complex areas. Even senior judges find the interface between the two pieces of legislation very difficult. We should not be introducing legislation that will be out of date almost immediately.

The impact assessment was produced over six months ago and it is now out of date. We have no idea how much the proposals in the Bill will cost or how much they will help to reduce the backlog of applications. We are being asked to debate and vote on the Bill now, and it is difficult with a six month old, out of date impact assessment. Even in the original impact assessment, it was unclear where some of the costs came from. The Government have not adequately explained the cost of their proposals. In the last sitting, I asked a series of questions about implementation. I would be grateful if the Minister could write to me with responses to those important questions.

We have heard constantly in our debates about how things will be included in the code of practice. On the first day of Committee, the Minister said that she would supply an outline of what it will contain. We only saw that document last night. An outline of what areas will be covered does not give us the full idea of what the code will contain. To some extent, it is better than nothing, but we have no idea of the detail. We cannot be asked to agree to a new system when so much of the detail is yet to be published. We need Parliament to approve the code of practice, rather than it being taken through by a method that is near impossible to stop. If there are problems with the code of practice, we should be examining the Bill and the code of practice side by side. We will press the amendment to the vote.

Question put, That the amendment be made.

--- Later in debate ---

[Barbara Keeley]

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

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

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

[Alex Norris]

Liberty, Mind, the Alzheimer’s Society, the National Autistic Society, POhWER, Parkinson’s UK, the British Institute of Human Rights, Sense, Compassion in Dying, YoungMinds, Learning Disability England and Headway all say that this is “rushed, incomplete and unworkable”, and that in general they feel the whole exercise is entirely unfit. It is well within the prerogative of the Government of the day to say that they are right and that all those organisations are wrong, but it is, dare I say it, quite a brave thing to do. For the benefit of the Committee, and of everybody else who has taken an interest in these proceedings, it might be worth explaining why the Government feel that they are right and the Bill is fit for purpose, and that the new clause, which very much puts the cherry on top of the Bill, is worth standing part of it.

[Mr Dhesi]

Does my hon. Friend agree that that is an indictment of the whole process, and of the rushed manner in which the Bill has been introduced? To have one organisation from among those 13 eminent organisations come forward in The Times today and use words such as “rushed”, “incomplete”, “unworkable”, “unfit” and “dysfunctional” would be bad enough; to have all 13 do so makes the entire process look like complete folly.

[Alex Norris]

I completely agree. To me it is a big, blinking red light that says that perhaps we need to pause and think again. Nothing typifies that more than new clause 1. It is helpful to have a definition in the Bill, and there is broad support for that. I also have some sympathy for its being exclusionary, rather than put in a positive manner, because we know, irrespective of what ends up in the Bill, that it will end up in court.

This is a hotly contested area of case law. It feels a bit like what it must be like to be an American legislator—we are almost waiting for what we do to be tested in court to see if it is okay. I have no doubt, with things as they are currently comprised, that we will be back. I do not know whether it will be a couple of months down the line or a couple of years, but if we carry on we will certainly be back.

The approach laid out by my hon. Friend the Member for Worsley and Eccles South is sensible and proportionate, and it might give us an opportunity to resolve the issue, by sending the new clause, which has appeared between stages, to the sector and asking, “How do you feel about this?” in order to get some engagement. That would give us more time for the lawyers to do their thing too. That seems quite sensible.

It would also give us a chance to take a breath on the whole Bill, and a little more time to see whether we can resolve some of the issues that we have discussed over the last two weeks. Many of the things we as an Opposition have put forward have had merit; perhaps our approach has not always been perfect, but to find better ways to try to address those things would be good for us all.

I will move on to my second concern. If new clause 1 becomes part of the Bill and the Bill becomes an Act, the smoke will come out of this place and send a clear signal: “We know that DoLS doesn’t work and hasn’t worked for a long time. Here is what is going to come next. Here is what we mean by ‘deprivation of liberty’ and here is what you can expect.” I maintain my anxiety that we will have only solved half of the problem, or one of two problems, because it is entirely possible for a big problem—in this case DoLS, the backlog and people’s experiences of that process—to be multifactorial.

No one has contested the fact that the DoLS system did not work and ought to be replaced, but there is a big, yawning and currently unanswered question of resources. I was concerned to hear the Minister say that they are the result of political decisions. I have been in that chair, as the local adult services lead on my council for three years, wrestling with DoLS. Is it a political decision? Yes, maybe it is, in the sense that we are basically trying to juggle whether to deal with assessing new people on their social care needs, assessing whether the needs of people currently in the social care system have gone up or down or, indeed, areas such as DoLS, all of which carry enormous risk to an individual, a local authority and a community as a whole.

In the sense that it is a political choice, it is like saying, “Your house is on fire; are you going to put out the lounge or the kitchen first?” You would just grab the bucket of water and chuck it at it, frankly. There is no political decision in that, or certainly not one of due prioritisation. Ultimately, if we are going to include this new clause in the Bill to set up the new system and legislation to set the new way, we must have absolute clarity that the finances are going to be met. Otherwise, the system will fail and we will, certainly with new clause 1, have elevated people’s expectations. At the moment people expect to be disappointed, because they know the system does not work. Now we are going to tell them that we have a new system that works, and then it will not. I suspect that is why all those eminent organisations have said that it is where it is.

On this point and on others, I feel that we on the Opposition Benches have made strong arguments about ways of improving the Bill, but it is not just us. It is not just partisan knockabout; it is not political. It is not a case where the Government say one thing so therefore the Opposition oppose. We should look at the organisations that are also saying, with flashing lights, “Please stop and have a think about this.” Otherwise, as I say, we will be back.

[Caroline Dinenage]

I think it would be helpful if I began by setting out how we got to where we are, for the sake of clarity, although I know that many hon. Members know this. The case of MIG and MEG and P widened the understanding of the scope of deprivation of liberty safeguards with the Supreme Court decision that:

“A gilded cage is still a cage”.

Even though the cared-for person was happy in their situation, it was still a deprivation of liberty and required a safeguard. The acid test set out by Baroness Hale in Cheshire West had two limbs: first, is the person subject to continuous supervision and control, and secondly, is the person free to leave? We can see that test running through this clause. We cannot directly challenge or go against Cheshire West, as it is the Supreme Court’s articulation of article 5, and our Bill must be compliant with the European convention on human rights. That is why deprivation of liberty continues to be defined by reference to article 5 of the ECHR.

We are confident that the exceptions in subsections (2) to (4) represent existing case law. The clause defines deprivation of liberty in that way, and the subsections are consistent with and drawn from existing case law—for example, as I have detailed, subsections (2) and (3) are based on the Cheshire West acid test. It is unlikely that there will be a mismatch between our clause and the High Court’s view; it may be that the clause is subject to litigation in future, but we are confident that the Government’s approach of providing for situations that would not constitute a deprivation of liberty will give sufficient flexibility for the meaning of the clause to develop alongside case law as that evolves.

Much of the discussion has emphasised how incredibly complex a legal matter this is; the clause must be drafted incredibly carefully to ensure that it is legally compliant. We have worked with other Government Departments such as the Ministry of Justice to develop the clause. We listened to stakeholders and peers during the progress of the Bill through the House of Lords to understand their requirements for a definition and drafted the new clause in a way that would achieve what they wanted legally. Since drafting it, we have shared it with stakeholders to explore its impact. We are consulting a wide variety of organisations to gather case studies, which we will use in the statutory guidance.

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

Alex Norris Excerpts

Thursday 17th January 2019 Public Bill Committees

[Alex Cunningham]

That is very much the case. I always try to place myself into such a situation. I am at the grandfather stage of life now, and I think about how that would affect the children of my children, or other parts of my family who have children. I would most certainly want them to be at the centre of it—I would probably try to interfere a bit myself as well.

The Children Act, however, provides protection—it is a real safeguard—and yet the Bill is not at all clear about how it will sit with that existing legislation. Surely, as my hon. Friend the Member for Worsley and Eccles South suggested, parents must be consulted and have that ability to make decisions about their child, even if they are 16 or 17. We must ensure that such safeguards are enhanced, not watered down or in conflict with each other.

The Royal College of Psychiatrists has highlighted to me that encompassing 16 and 17-year-olds in the Bill can be positive where they lack capacity to make their own decisions, but that must be authorised by an appropriate safeguarding system. The RCP shares my belief that a parent or legal guardian with capacity to make the decision should be able to authorise the required deprivation of liberty.

Many social workers and other professionals in the field have made submissions. There is a strong consensus that additional safeguards should be available where objection is made by a person with parental responsibility. The Mencap submission, too, welcomes the inclusion of 16 and 17-year-olds in the Bill, but it also expressed concern that we might be reducing protections and eroding parental rights. Mencap has asked the Government to conduct further public consultation on the measures for 16 and 17-year-olds to understand the implications fully.

Does the Minister believe that the Government have consulted properly on the issue of 16 and 17-year-olds? Clearly, the organisations with an interest in such matters do not think so. Will she commit to undertake a rapid consultation exercise ahead of Report, in the hope that we in Committee can be reassured about parental rights and the very necessary protections for young people?

Mencap highlighted the particular uncertainty about how the new system works alongside existing legislation. I have already talked about that, but a complex web of legislation and guidance relates to those young people who might fall under the LPS system, including looked-after children. My hon. Friend, however, has already spoken about that. It is essential for the Minister to provide clarity in such areas, preferably now but certainly before Report.

In closing, I will make a general point about involving parents in all manner of processes in the health and social care world. For them to be excluded from the process, denied the right to report or told simply that the authorities know best must be an exception. It is not always the case that the authorities know best. At times, I have a tremendous caseload of parents coming to talk to me about issues affecting their children and how they feel excluded.

I put it to the Minister, if a child affected in a particular case was one whom she knew personally, one whose parents she has had contact with, would she be content for them not to have every possible access to information or not to be consulted at every stage? I remind her that a child is being deprived of liberty—this is an opportunity to lock a child up, basically. We need to understand and empathise with parents in their desire to be consulted in the decision-making process, and I believe that the amendment would go a long way to ensuring that that actually happened.

[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 ---

[Alex Norris]

I thank the hon. Gentleman for that intervention, because that point is really important. It is perfectly conceivable that the heart might override the head and parents might be so desperate to keep their family together—which we can all relate to—that they might make decisions that are not the best decisions.

Again, however, that would mean entry into a pre-existing legislative space, in the sense that if a parent were acting negligently, we already have a series of protections for a child in that case. So, if we have what we are talking about today in law and then we have a case of the kind that the hon. Gentleman and I are both talking about, that would tip into a negligence situation, and therefore I think the matter would still be unresolvable in the best interests of the child. So I do not think that anything that we are suggesting here in this amendment would disqualify any of that.

I think the amendment is proportionate: it would just give that extra layer of protection. We understand that the cohort that we are talking about are particularly vulnerable; we understand the impact that this change would also have on parents; and we understand that fundamentally parents will want the best for their children. However, we also understand fundamentally that if a bad decision were being made by a parent, there are other sources to make sure that a young person’s needs are being met.

Actually, when we add all that together, I think the amendment would put in significant safeguards and important protections for both young people and their parents, but without creating a situation where we might unknowingly create some risk and perhaps do some harm.

[The Minister for Care (Caroline Dinenage)]

As ever, it is a great pleasure to serve under your chairmanship, Mr Austin.

I thank Opposition Members for initiating a discussion on this really important matter. Parents, or those with parental responsibility, have a vital role in caring for their children—of course they do—especially when the child lacks mental capacity. We would fully expect that the responsible body took every opportunity to consult parents with regard to their views about arrangements, where it was appropriate to do so as part of the consultation process, and we will make that clear at every stage in the regulations.

However, as the hon. Member for Nottingham North and my hon. Friend the Member for Halesowen and Rowley Regis have said, we have to allow for the very rare occasions on which parents may not have the best interests of their children at heart. That is why we have to be careful about adding this provision to the Bill.

--- Later in debate ---

[Alex Norris]

It is a pleasure to follow my hon. Friends the Members for Dewsbury and for Stockton South, who made compelling arguments that I hope to add to a little.

On fluctuation, by definition we are talking about some of the most challenged individuals in society. As a result, their medication needs could be significant, and the nature of their challenges can change over time. It is not only conceivable but probable that those individuals’ needs may vary. Therefore, the protections we need to give them may have to be slightly flexible.

Behind the Cheshire West case and the television documentaries that make us all throw our hands up in the air and think, “Goodness me, how awful”, is the idea that none of us thinks that someone whose liberty needs to be taken away for their own protection should ever be put away and forgotten about. None of us wants that at all. That is in keeping with the theme of wiring into the Bill the understanding that we are talking about human beings, and that things change and their conditions change, as they do with us all. Therefore, we may need to change the way they are looked after and supported.

I reflect on the point the hon. Member for Halesowen and Rowley Regis put so well; on Tuesday I was wringing my hands about my past anxieties about the lack of assessing capacity. I then put my name to an amendment that asks for greater specialism among those assessors as people who could pick up something that, as the hon. Gentleman said, was not trivial. I understand his view but do not completely share it. We want to include in the Bill the possibility that an individual’s needs may fluctuate—not how those needs will fluctuate. It would not necessarily mean that all the assessors have to have the ability to make that judgment. If the assessment says, “There is a reasonable chance that this individual’s needs may fluctuate,” that puts a “So what?” test on the responsible body, which may say, “Okay. We may therefore need to call in someone who has that specialism at an appropriate moment.” That could be covered in the code of practice. I do not think that test puts an unreasonable or unnecessary burden on the assessing capacity, which is finite.

I support the point that my hon. Friend the Member for Dewsbury made. Most of this discussion has been framed around the idea that some people are deprived of their liberty because they are deemed not to have the capacity to look after themselves, but because their needs fluctuate, that may not have needed to happen. As my hon. Friend said, there is another cohort of people who are assessed not to have fallen into a deprivation situation, but that might not be safe for them either. It is important that we bring that into the discussion. This is not just about people who are deprived of their liberty when that may not need to be the case; it is also about people who, the vast majority of the time, are not in those circumstances, but in a conceivable situation relating to their personal health challenges, may need to be deprived of their liberty. That is a really important point.

Amendments 31 and 33 get to the nub of what we have been talking about for the past two and a half sittings. What are we trying to do with assessment? If the Bill tilts towards moving assessment away from local authority-hosted social work into care settings, with the people who are around the individual the most and have great familiarity with them, the Opposition have expressed some discomfort about that. Nobody is arguing for perfunctory or tick-box assessments—hon. Members on both sides of the Committee have been clear about that. With amendment 33, we want to put on the face of the Bill a requirement that the people who carry out assessments have the right qualifications—I hope that will apply to pre-authorisation assessments, too—so we have the confidence to say to people, after this Bill has wended its way through Parliament, that we have not created a system that has moved away from skilled assessment, which is expensive, finite and a challenge in this country, towards unskilled assessment because it is easier or cheaper. Nobody wants that; I certainly do not. By putting that on the face of the Bill, we can give comfort to the people who observe our proceedings and those who will engage with us during the Bill’s progress that we are not seeking to do that.

[Mr Dhesi]

My hon. Friend is making a very powerful case. As a former trustee of Alzheimer’s & Dementia Support Services, which dealt with people with very serious vulnerabilities, I can attest to the fact that amendments 31 and 33 are entirely sensible and should be incorporated in the Bill. Not having a registered medical practitioner undertaking these assessments, especially when we are dealing with very vulnerable individuals, would be detrimental to the entire process.

[Alex Norris]

I appreciate that intervention. One of my favourite things about being in this place—certainly in Bill Committees, out of the white heat of the Chamber—is that we learn a lot that we did not know about people’s knowledge and expertise, whether it is personal experience, professional experience or experience from their spare time. It helps us all. That contribution adds to the debate, and I greatly appreciate it.

These amendments will help to give confidence that what we are all trying to achieve here will be achieved in the Bill. I would expect it to be enhanced by the code of practice, but in law and in statute, in the Bill, we in this place will have made a clear commitment about what sort of legislation we want. In that spirit, I commend the amendments to the Committee.

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

Alex Norris Excerpts

Thursday 17th January 2019 Public Bill Committees

[Barbara Keeley]

I beg to move amendment 34, in schedule 1, page 15, line 34, at end insert—

“(3A) Where the person consulted under sub-paragraph (2) has parental responsibility for the cared-for person, the consultation shall seek to ascertain that person’s wishes and feelings in relation to the arrangements.”

This amendment introduces a requirement to consult parents about their child’s care arrangements.

The amendment follows on from amendment 30 on parental consent and amendment 38 on approved mental capacity professional reviews for 16 and 17-year-olds. It would provide an additional and equally important tool to ensure that 16 and 17-year-olds, who will now be subject to the Mental Capacity Act 2005, are afforded the proper safeguards.

I have previously welcomed the inclusion of 16 and 17-year-olds in the Bill, as it is important that they do not fall through the cracks in the system. Their inclusion provides consistency with the remainder of the Mental Capacity Act, which makes no distinction between 16 and 17-year-olds and people older than them, but the Bill does not go as far as was recommended by the Law Commission, which wanted the Government to carry out a full review of mental capacity law as it relates to children and young people. I hope the Government are still considering that recommendation. The current system leaves children under 16 in an uncertain legal position as there is no provision for them to be subject to mental capacity legislation, so I hope a review is forthcoming.

The amendment focuses on the consultation process that must be carried out before an authorisation is either granted or renewed. That is one of the most important processes that will be carried out under the liberty protection safeguards, as it will ensure that the cared-for person and others who are interested in their welfare have a say. Since we will not cover consultation in great detail in future, I will briefly outline why the process is of such importance in the context of the amendment.

In this area, the Bill goes considerably further than the existing deprivation of liberty safeguards system. It is welcome that we are moving on from a situation where consultation is optional to one where it is mandatory. That is a crucial part of understanding whether the arrangements are in a person’s best interests, particularly in cases where a person has communication issues—we explored that this morning. Those with an interest in a person’s welfare may be the best placed to comment on their wishes and feelings. That is a broad group, which is why the phrase “people with an interest in the cared-for person’s welfare” is so vital. It covers family members, but goes further where it needs to. It could include anyone, from fellow members of a church congregation to a neighbour who keeps an eye out for the cared-for person. The consultations are not optional; the Bill contains provision that those people must be consulted. Unfortunately, how the results of the consultation should be integrated with other assessments is not mentioned. I suspect that, again, that will appear in the much-fêted code of practice when it is finally published.

I hope it will become clear that the results of the consultation should be given appropriate weight in considering whether arrangements are necessary and proportionate. In most cases, that will be sufficient, but the views of some of the groups to be consulted that are mentioned, and one crucial group that is not specifically mentioned, should be given greater weight. This amendment refers specifically to 16 and 17-year-olds, and there is a group with a specific legally grounded interest in their welfare: the individuals who have parental responsibility for the cared-for person. We want to ensure that people with parental responsibility have their different role recognised. Amendment 30 on parental objection was one way that could be achieved; amendment 34 is another.

In the Mental Capacity Act 2005 there are a number of provisions, as part of the best interest requirements, that would be integrated into the consultation process. I will quote from those briefly. Section 4(6) of the Act requires an assessment to be made on

“the person’s past and present wishes and feelings…the beliefs and values that would be likely to influence his decision if he had capacity, and…the other factors that he would be likely to consider if he were able to do so.”

Those are not necessarily things that would be obvious to just anyone interested in a cared-for person’s welfare. In particular, beliefs and values are often deeply personal. To ensure those are properly captured, we must ensure that those people who know the cared-for person best are not only consulted but given a meaningful say on the arrangements.

When the Bill was published, the requirement was that anybody with an interest in the cared-for person’s welfare must be consulted, but as I said, it went no further than that and did not specify what the consultation would seek to do. Because the Bill extends to 16 and 17-year-olds, that provision is now clearly deficient. Parents have a greater stake in their children’s welfare than others, but more than that, parents can give a greater insight into the beliefs, values, wishes and feelings of their children than those who have other relationships. Legislation such as the Children Act 1983 recognises that fact and provides parents with a far greater say over what their children do than is normally given to other family members. In particular, existing legislation creates a presumption that a person with parental responsibility has a significant say over where a child or young person lives. We are talking about an age group that requires parental permission to get married or even to get a tattoo. It is clear that the parents of 16 and 17-year-olds have rights and responsibilities that vastly outstrip those found in other relationships. The amendment would reflect that importance.

This is a distinct issue from the one raised in amendment 30 on the role of parental consent in authorising arrangements. We have touched on that before. Inevitably, there will be cases where parents do not wish to withhold their consent completely, but none the less have reservations or suggestions that should be taken on board, particularly in the case of 16 or 17-year-olds, who may sometimes display challenging behaviour. In those circumstances, parents may not wish to veto arrangements completely, as that may leave them without the support they need.

We are taking about situations where parents may find themselves pitted against professionals. We all know the feeling of being told by a doctor that something is in our best interests; mostly, we do not challenge those assertions, but that does not mean that professionals are infallible. In cases of such importance, where we are dealing with people’s fundamental human rights, it is important that we test such presumptions.

I have spoken previously about the case of Bethany, who was held inappropriately in St Andrews independent hospital. Despite the difficulties, in some ways Bethany is fortunate that her father is able to stand up for her and argue against what professionals are telling him is in her best interests. Steven Neary, whose case I also mentioned, was also fortunate that his father worked tirelessly to have him moved from the unit in which he was being held so inappropriately.

There is another deeply tragic case, illustrating the difficulties parents have in challenging professionals’ determination of what is in a patient’s best interest—that of Oliver McGowan. I know the Minister met Oliver’s mother Paula following her successful petition for a debate on the treatment of people with autism and learning disability. Oliver was autistic, but had a full life expectancy. He had previously had adverse reactions to the type of antipsychotic medication that eventually killed him, yet despite his parents’ raising concerns, the clinician treating him continued to administer that medication and Oliver died. That tragic case highlights what parents can be up against.

The unfortunate reality is that parents such as Bethany’s dad and Steven Neary’s father, who have been able to challenge decisions affecting their children, are notable for being the exception, not the rule. There are any number of parents of children in this situation who have been told so often by professionals that the arrangements are in their children’s best interests that they find it hard to persist in challenging that over months and years. It is particularly hard for parents who do not have the resources, time or confidence to draw public attention to their case. Other parents need to be proactively supported to comment on the proposed arrangements.

To summarise my argument, some parents will not feel confident enough to try to overrule professionals who are telling them that certain arrangements are in their child’s best interest. That does not mean we should not pay particular attention to their views on whether the arrangements are proportionate or on whether there may be less restrictive options available.

One point that must be considered is where parents would prefer that their child continue to live in the family home. I spoke earlier about the importance of never depriving somebody of their liberty unless that is the only option, but the unfortunate reality is that local authorities face severe funding pressures, and professionals sometimes tend toward ensuring physical safety at the cost of all else. That can lead to parents who may want to keep their child at home being told that the only way to keep the child safe is to move them elsewhere. Giving their views particular weight at the consultation stages is one way to ensure that arrangements are not authorised when a less restrictive option is desirable.

The amendment provides a dedicated outlet for parents to give their views. It reflects the greater role that parents and those with parental responsibilities play in caring for their children. The purpose is to strengthen the role that parents can play throughout the process of authorising a deprivation of liberty. Our amendment 30 would have required them to give their approval to any arrangements, but there is a final reason to specify that those with parental responsibility must have their views considered. I discussed at length earlier some cases where care homes restricted contact between a cared-for person and their family. That can be done for no reason, with only spurious grounds given. The cases I raised earlier all related to an older cared-for person, but the same provisions are sometimes put in place for younger people, with parents restricted from seeing their own children. However widespread that practice may be, it is another instance where a single case of a parent being denied a say on their child’s care for no good reason would be too many. I hope amendment 34 makes it clear that the responsible body, or whoever else is organising the consultation, cannot simply sideline those with parental responsibilities. The amendment is about ensuring that the parental voice is heard throughout the process and can shape the form that arrangements may take.

We are talking about a cohort of young people with immensely complex needs. They need the people who know them best to be not only informed, but actively consulted on the arrangements they will be subject to. By doing that, we can ensure that when 16 or 17-year-olds are subject to the liberty protection safeguards, it is done in their best interests.

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

It is a pleasure to serve under your chairship, Mr Pritchard. This morning we talked a lot about the role of parents in these circumstances, so I will not rehearse all those arguments again. We tested the view of the Committee on the principle that there would be a parental override, and the decision of the Committee was that that was not appropriate. Amendment 34 is perhaps a step back from that, but would still give parents a very important place and role in exceptionally difficult decisions. I hope it might find a little more traction with colleagues.

--- Later in debate ---

[Alex Norris]

This debate harks back to what we talked about on Tuesday—the perverse incentives for those providing care to let individuals remain on care packages for their own commercial interests, whether consciously or subconsciously. There is definitely a conflict of interest there. We have not taken previous amendments on that, but at some point I believe a line will have to be drawn stating, “These are the very clear in law protections that we are putting down to ensure there is no conflict of interest.”

It is entirely possible that the code of practice will refer to that and at the first stroke make it clear that it would be highly inappropriate for the assessments or reviews to be done by individuals who have a close connection or employment relationship with the provider themselves. That might be so, but we do not have that code of practice yet, and in any case, it is probably something that would be better in the Bill than in guidance, notwithstanding what the Minister has said previously about the standing of the code of practice.

We know that care facilities have narrow financial constraints. Their finances are tight and, as my hon. Friend the Member for Stockton North says, there is a pressure to provide as cheaply as possible. That is a clear and present danger. To avoid that concern and send a clear signal about those who conduct these types of reviews, now is a good time to put it in the Bill.

[Caroline Dinenage]

I am grateful to the hon. Members who have raised this important issue. I will address each amendment in turn.

On amendment 35, I agree that the independence of the pre-authorisation reviewer is of the utmost importance for ensuring that there is no conflict of interest in the pre-authorisation review. The Bill provides for separation between those who will authorise arrangements and those who will carry them out. The Bill is clear that anyone involved in a person’s day-to-day care or treatment or with a prescribed connection to a care home cannot complete a pre-authorisation review. That was an amendment made to the Bill after discussion in the other place.

--- Later in debate ---

[Alex Cunningham]

I know that the Minister is well intentioned with this Bill, but it remains the case that the cared-for person is not always at the heart of it. That is a major worry, not just for us, but for people across our society. The issue has been brought to me by the Law Commission, by the Alzheimer’s Society, by experts who work for pro-liberty groups and by constituents who have taken the time to write to me on this point specifically.

It is baffling to me that the approved mental capacity professional is not required in the Bill to meet the cared-for person. Yet they are the professional who will decide the future of that person—whether or not they lose their liberty. None of us would want that for one of our relatives, would we? We simply would not want that to happen.

It may well be that the person in care does not have the capacity for a meaningful conversation to express their wishes and beliefs, but the assessor does not know that unless they meet them. It is essential. If the person in care does have some capacity, which I suspect would be identified by the assessor, surely their views, however communicated, ought to be taken into consideration—and, who knows, we might avoid the deprivation of liberty for that person.

I have already raised the importance of the role of speech and language therapists. I think the hon. Member for Faversham and Mid Kent mentioned them this morning, and I know the Minister accepts the role that they have to play. They may well help identify the wishes of the cared-for person simply by enabling them to communicate, and surely there should be a separate assessment of the person’s views. If they are opposed to the accommodation or the care plan, an independent advocate should act in that person’s best interest.

Evidence submitted by Rethink Mental Illness raises the important point that nobody should have an advocate forced upon them, especially if they do not want one. However, advocates should still be appointed, even if they are then removed. That would ensure that the opinions of both the advocate and the person in care are taken into consideration, and that a judgment is made by a professional on the need for representation. We will debate advocacy later on in this Committee and I will speak to it in more detail then.

Ultimately, the amendment is about ensuring that the approved mental capacity professional has met with all the appropriate parties, including the person in care themselves, so that they can make the most informed decision possible. Not only does mandating the AMCP to meet the cared-for person before making the decision ensure liberty and respect is given to the person in care; it makes the professional’s job considerably easier, as diagnosis is more effective when they have met the person. As was raised in the evidence-gathering, in some cases simply meeting the cared-for person can make it obvious whether the person has capacity. As I said earlier, I suggest that no one but a professional is fully equipped to make that judgment.

Kay Matthews, from the deprivation of liberty safeguards team in the Borough of Poole local authority, wrote to the Committee and said that she would like to see the

“Wishes of the person—past and present”—

I emphasise “past and present”—taken into consideration in the Bill. She went on to say:

“I would like the person’s wishes—what they want, what they would have wanted—to be central to the assessment. I would like it stipulated that people making decisions on behalf of the person ought to support the person who lacks capacity to make the decisions they would have made if they still had capacity; that the person’s wishes are to be followed unless there is evidence that there is or could be seriously dangerous or significantly distressing consequences for the person.”

Ms Matthews says that that is vital because,

“in practice, some staff and relatives see a lack of capacity as a green light to over-ride the wishes of the person to meet their own needs (which are usually to feel less personally or professionally anxious about the person).”

She says that in her 10 years of experience she has seen it happen “again and again”. It is not only ineffective, but potentially dangerous that the Bill would allow the AMCP to basically come up with a verdict by just reading the in-care person’s file or talking to everyone else apart from the person themselves. I understand that because of tight budgets and cuts, care homes need to save money and time, but that comes at the cost of the in-care person.

While I am on the subject of costs in care homes, can the Minister tell me what assessment she has made of the potential costs that will fall on care homes from their extended role in the process? Has she had any data from the industry on that and, assuming she has, will she publish that assessment and data so that the Committee can understand the additional financial burden she is placing on the sector? Can she also advise us of who will be responsible for those costs? Will it be the hard-pressed care home that has to absorb them? Will there be a charge on the individual if they happen to meet their own care costs? If they do not, will that pass to the local authority, the health board or the clinical commissioning group? Who will pick up those costs? If the Minister does not have the data, will she commit to getting some before Report stage?

Returning to the amendment, do the Government want to be seen to be ignoring the voices of people in care? Most of all, does the Minister want to see people in care deprived of their liberty for the sake of what I see as one essential step in the process? The Mental Capacity Act should be an Act that is designed to support, listen to and respect the opinions of those being cared for. It should not make it easy for other people to quash or ignore the decisions of that individual.

[Alex Norris]

I have specific trouble with the word “practicable”. From my time in local government—I know things have not got better in the 18 months since then—I would argue strongly that the current assessment workload is not practicable for the individual. Earlier in our consideration of the Bill, my hon. Friend the Member for Birmingham, Selly Oak compared social work case loads when he was active in the profession with what they might be today. Putting in legislation how practicable it is for an individual to go and do an assessment creates the chance of a loophole that does something that we do not intend the Bill to do.

It is striking, as my hon. Friend the Member for Birmingham, Selly Oak said, that the Minister has at all turns been careful about what has been put in the Bill so as not to create future loopholes. We know that traditionally, this area has been tested very heavily in case law and it will be tested again in court. She has been very careful not to put those words in there, but this one is problematic. We know that in a time of rising demand and diminished resources, there will be pressures. To put something in that suggests that if it is just too difficult for a social worker to go and do an assessment, that assessment will not take place, is dangerous. I do not think that is what we are trying to do. I believe that it will lead to a serious problem.

The market for providing very high-need care is not very developed. We are talking about very small numbers of people, so there are not masses and masses of providers. When it comes to all of us being older, there are facilities in all constituencies and communities for older people to have residential care, because it is a high-demand area. The very specific, individualised care packages that involve things such as depriving liberty are not found in every community. Often, we hear horror stories in children’s mental health of people being sent a long way away to find the right facility. Are we then saying that a reassessment might not be practical, because the AMCP is in Nottingham and the care placement is a long way out on the east coast in Lincolnshire? That might not be considered by an individual to be a “practicable” thing to do, so I have a real problem with that word.

If the Government are saying that there are circumstances—my hon. Friend the Member for Worsley and Eccles South mentioned the exchange in the other place—where they are relaxed about an AMCP not seeing an individual face-to-face, I think that is a bad idea, for the reasons detailed by my hon. Friend the Member for Stockton North. If the Government are saying that there are circumstances where they are relaxed about that, they should name them and put them on the face of the Bill and be exhaustive with them, so that we can be clear and test the will of the Committee as to whether we agree.

We need to have a greater sense of what we are saying in respect of dialling back people’s rights to see a qualified professional when they are having their liberty removed. If we are rolling that back, let us be really clear about how we are rolling it back—the exact circumstances and what recourse they might have if they or their carers believe that to be wrong. I think this is out of step with all the discussions we had on Tuesday and this morning. I believe it creates a loophole and we need greater clarification.

[Caroline Dinenage]

I thank those hon. Members who have spoken and tabled these amendments. Amendments 42 and 43, as we have heard, would require an approved mental capacity professional to meet with the person in every case where they are carrying out a pre-authorisation review, rather than—as we propose and as is written on the face of the Bill—where it is “appropriate and practicable”.

The Bill currently states that where an AMCP is carrying out a pre-authorisation review, they must meet with the person where practicable and appropriate. In the vast majority of circumstances it will be practicable and appropriate. This qualification comes from the Law Commission draft Bill, which recognised—we agree with this—that the AMCP will be required to meet with the person in virtually every case. This is an important protection within the liberty protection safeguard system.

--- Later in debate ---

[Alex Norris]

Unless I am missing something, the Bill states that

“the Approved Mental Capacity Professional must…meet with the cared-for person, if it appears to the Approved Mental Capacity Professional to be appropriate and practicable to do so”.

The word “if” does not imply to me that the exception should apply only in an extraordinarily small minority of cases.

[Barbara Keeley]

As we have discussed, the AMCP is likely to be engaged only in high-risk cases anyway, so we are not proposing something burdensome. The meeting need only be a few minutes long; I am not suggesting that it has to be exhaustive. It needs to confirm that the condition of the cared-for person matches what is in the application. In a case involving deprivation of liberty, I think family members would welcome someone saying, “I am only here to check that the facts bear out what I am reviewing.” It would be a further safeguard for people in high-risk cases.

We should reject anything that would undermine the ACMP’s ability to make a full and thorough assessment of every case. We wish to press the amendment to a vote.

Question put, That the amendment be made.

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

Alex Norris Excerpts

Tuesday 15th January 2019 Public Bill Committees

[Barbara Keeley]

I have nothing to add.

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

It is a pleasure to serve under your chairmanship for the first time, Mr Austin. It always feels a bit risky to speak before one’s Front Benchers. Let us hope that I do not re-write Labour party policy and cause it to have to be unwritten two minutes later.

This is a really serious issue, as has been said. It is exceptionally impactful for individuals and the health and social care system. The Minister rightly notes the backlog that has built up in the 10 years since the DoLS regulations were put in, that it has been five years since the critical Cheshire West judgment, and that the system is cumbersome. It is right for us to look at that.

As played out on Second Reading, we have significant concerns that this legislation is rushed. We will frequently come back to the point on the code of practice, because it feels as though we are dealing with half the information. We are putting significant arrangements into law, knowing that we will be relying on another code of practice. I am glad to hear of the legal basis for that code of practice, but would like to see it alongside the Bill. Otherwise, how do we know whether these arrangements are really suitable? We do not know what the counterpart arrangements in the code of practice would be. I certainly have fears that the process is rushed, that the arrangements are a little bare, and that we are expecting to fill them out with the code of practice, which we will not get to see during these proceedings, so there is a risk that we will not achieve what we are trying to.

I remember the Cheshire West judgment well. When I looked it up last night, I could not believe that it happened in 2014, five years ago. I was the lead member for adult social care and health on my local authority, Nottingham City Council. I got one of those concerned calls from the director of adult social services that one gets periodically, saying, “We have a problem. Oh, goodness me!” We reacted, as I suspect every other upper-tier local authority did, by saying, “There is a legal risk, which has been tested in case law, that for this case load, we, the local authority, have not been complying with our responsibilities in law, which is very serious.”

Again, we did what I suspect everybody did, which was to traffic-light the case load—to sort it into red, amber and green—to indicate which cases we thought matched most closely the circumstances of the judgment and therefore where the risk was greatest, where there was less risk, and where we thought there was probably no relation. We matched our assessment capacity against that, so that we could get on with ensuring that we were complying with the law, as we would be expected to do.

Assessment capacity is not an infinite resource. It is not a matter of putting in an extra bit of money and gaining more assessors. Assessment capacity across social care and social work in general is increasingly stretched. Local government has been an exceptionally difficult place to work for eight years, so that was a really challenging exercise.

It has been some time since I led that brief in Nottingham and was in local government, but there were certainly times when I felt that the traffic light system was no longer a way of trying to remove an initial risk; it had become the way in which local authorities would have to operate with stretched resources. They would ask, “Where are we most at risk of challenge? Where are we least at risk of challenge? That is how we will match up our resources.” That is not a satisfactory way to operate. Today and in future weeks, it behoves us to ensure that whatever arrangements we come up with go past that and ensure that we operate in the best interests of the individual. That is all we are concerned about, and why I still have concerns.

I am sure we will come back to the subject of impact assessments in future sittings. The impact assessment is very clear about what it would take to develop a series of people who could make the assessments, but there is no sense of who will resource those individuals, whether we have enough of them, how we might find them and how we will grow them for 10 years’ time.

[Steve McCabe]

Does my hon. Friend share my concern that so far, we have heard no reference to resources associated with this legislation? The Minister said at the outset that she was concerned about the backlog, but it is reasonable to argue that the backlog developed partly because of the shortage of local authority resources. It is difficult to see how capacity to grow professionals will develop if that same starvation of resources continues.

[Alex Norris]

I share that view completely. On my first day here, if my hon. Friend had stopped me and said, “You’ve just come from Nottingham, where you were the adult social care lead. What was your situation with DoLS? Why did you have a backlog? Are the regulations too cumbersome?” I would have said that they probably were, but that that was about our assessor capacity, because there have been eight years of growing demand in social care, while the council has experienced extraordinary reductions in resources. That toxic cocktail meant that we were increasingly stretched to the point where we really struggled to keep up with our responsibilities. There is concern that, while we could write the best legislation, if we do not understand the context, we will not deliver what we are trying to.

[Alex Cunningham]

On resources, I spent yesterday evening with the lead member for adult services in my local authority of Stockton-on-Tees, Councillor Jim Beall. He told me that the council has made the political choice to plough resources into the DoLS system to ensure that there is no backlog. Throughout north-east England, political decisions have been made to take resources from other areas and put them into that, to ensure there is no backlog. Might that not be good practice?

[Alex Norris]

Yes. That clearly shows Stockton’s commitment to ensuring that there are no backlogs and that it complies with its legal responsibilities. It also shows that the system there works in the best interests of the individual, rather than around council budgets. That is a political decision, as my hon. Friend says. There is a real question as to whether we establish and resource a system that makes that the norm everywhere, or whether, up and down the country, hard-pressed social care leads will make judgments and say, “Hang on a minute; I am getting a bit of pressure from colleagues at council budget time. Can we really afford to resource this properly?”. That should be a real concern to us.

I move on to amendments 37 to 39. In general, beefing up the arrangements on page 16, line 12, of the Bill seems a good idea; we know that, because the Minister seeks to do it through a Government amendment. I am concerned that if we accept only Government amendments, there is still far too much interpretation in the Bill. My hon. Friend the Member for Stockton North—I have two hon. Friends from Stockton behind me and I am not sure who is from the north and who from the south.

[Alex Cunningham]

I am north.

[Alex Norris]

I am sure Hansard will correct that and make me seem a lot more articulate, which is one of the real perks of this place. Already, we have heard a lot about the interpretation of what is appropriate. I worry that if we accept only what is in the Bill and Government amendments, the Bill will be very much open to interpretation in the moment by a third party who, presumably, is busy and has other responsibilities. Our amendments develop the situation further.

I heard what the Minister said about the perils of putting in a long list that risks failing to be exhaustive, but I would say, “Let’s develop that list a little.” Amendment 37 is clear about our wanting to make sure that areas with the highest risk—those that would have been the flashing reds I talked about earlier—are definitely and in all cases covered, without that being open to interpretation under the Bill. I think that is important.

Amendment 38 extends and tidies up arrangements for 16 and 17-year-olds, and brings in a new category of person—young people—for whom there is lots of risk. It is prudent to make sure that all such cases are covered. Amendment 39 broadens that trigger of objection, so that when a third-party interpretation is made in a care setting, it is a lot clearer what constitutes an objection, and what might just be the individual not enjoying their day. Again, that is wise and gives us a great deal of security. I will finish on that point. This is important legislation, but it is important that we know the full story, which means having the code of practice. If we mean something, we should state it in the Bill, and not wait for interpretation later.

[Barbara Keeley]

It was not clear to me that you wanted me to speak to my group of amendments, Mr Austin, but I understand that now. Some Committee members have not been on a Bill Committee before, and I have not been on one for about two and a half years, so you might have to bear with us. In speaking to amendment 38, I want to mention an important principle that my hon. Friend the Member for Nottingham North touched on, which was introduced in the House of Lords: the extension of the liberty protection safeguards to 16 and 17-year-olds, and their right to a pre-authorisation review by an approved mental capacity professional.

Extension of the liberty protection safeguards was added in the House of Lords. The Government ought to be congratulated for this addition, as there was a large and glaring inconsistency within the Mental Capacity Act. This was timely recognition that 16 and 17-year-olds are vulnerable to slipping through the gaps the Bill would create for them if they were not included. The Mental Capacity Act applies to people aged 16-plus, but the Bill originally excluded those below 18 from the liberty protection safeguards, leaving an important gap in the legislation.

The Law Commission conducted a detailed consultation on this and concluded that most respondents to the consultation supported the proposal to include 16 and 17-year-olds in the new scheme. In its words, most organisations

“argued this would provide consistency with the rest of the Mental Capacity Act, and that in many cases the use of the Mental Health Act and section 25 of the Children Act would be inappropriate.”

The two recommendations from the commission’s report were that

“The liberty protection safeguard should apply to people aged 16 and above”—

this would give effect to their inclusion in the commission’s draft Bill—and that

“The Government should consider reviewing mental capacity law relating to all children, with a view to statutory codification.”

As was noted during Committee in the House of Lords, extending the Bill to cover 16 and 17-year-olds will empower some of the most vulnerable young people and ensure that they can access adequate help. However, the liberty protection safeguards do not completely fill the gap regarding the deprivation of liberty of people under 18. The extension comes with some problems, but these are soluble.

Under existing legislation, deprivation of liberty must be authorised either by a court, most likely the Court of Protection, exercising powers under the Mental Capacity Act 2005—

--- Later in debate ---

[Alex Cunningham]

The issue of conflicts of interest is very important, particularly in relation to the previous discussion about independent hospitals. It beggars belief that we can hand over to countless private organisations the responsibility to determine whether a person in their care—for whom substantial fees are being paid —should be deprived of their liberty and detained without recourse to anyone other than those within their own circle.

We have a duty to protect the public purse in this area, and not just the public purse, but the purses of those people who pay for their own care. Currently in the Bill, the responsible body for an independent hospital is the independent hospital itself. It is simply not appropriate for an independent provider to be responsible for authorising deprivations of liberty of people in its own establishment. The shadow Minister, my hon. Friend the Member for Worsley and Eccles South, has spoken about how that would be a serious conflict of interest, as have many others in the past. The feedback I have had from organisations confirms that. They see the huge financial incentive for an independent hospital to keep people in their establishments. Does any Member here believe that an independent hospital can be truly impartial when treating patients who are paying directly for their treatment, and have no conflict of interest? Can any Member tell me confidently they do not believe that any manager of a private hospital would make any consideration of the financial benefits to the hospital when assessing a patient?

My hon. Friend stressed at length the advantages of amendment 19, which would mean that when a person is accommodated in such a hospital for the assessment or treatment of a mental disorder and their care is commissioned by the CCG or local health board, the responsible body will be the CCG or local health board. What can be wrong with the public sector having a role, not only to determine whether there is a need for a liberty protection safeguard order, but to be involved in determining what is best for the individual?

If we hand this power to an independent private hospital, who will assess whether the placement is still the best way to meet that person’s needs and arrange for them to be moved elsewhere, or to another establishment, or even back to their family? If an approved mental capacity professional was involved and they too were employed directly by the hospital or happened to be their preferred go-to person, they also have a financial vested interest in the outcome of such an assessment.

We have to protect the client first and foremost, and I believe that the amendment would achieve that. There is a genuine worry that self-funders may be deprived of their liberty with no proper authorisation—and if no independent person is there to check up, who will know? An assessment is not satisfactory if there are no checks and balances for the person concerned.

There is also a concern that fees may be required for certain assessments. Again, if no genuinely independent person is involved, who can judge whether such an assessment is necessary? I am sure that the vast majority of people in such establishments will act credibly and honestly, but I am concerned about the few who may not, who may see dashing for a new order as the simplest way forward, when what the person affected really needs is a full and proper assessment. If we cannot completely trust that there can be no ulterior motive when caring for self-funders and that the individual’s care and wellbeing is the only consideration, we must ensure that assessment and care are totally separate.

Many organisations with an interest in the Bill have raised concerns with me. The consensus among them appears to be that the cared-for person will be at serious risk if responsibility for authorising their deprivation of liberty is placed in the hands of the detaining private hospital, because the managers have a vested interest in a particular outcome. As Mencap notes, it would be a serious conflict of interest because there is a huge financial incentive for the independent hospital to keep people.

Our focus should be entirely on people, not profit. There needs to be an absolute separation, so the conflict of interest needs to be removed from the Bill. Organisations tell me that it is essential that the CCG, the local health board or the relevant local authority should act as the responsible body in such circumstances, and that in each case an AMCP should carry out the pre-authorisation review and, critically, retain oversight throughout the duration of the detention. Families need to be able to raise concerns with a person who is genuinely independent; I do not believe that that can happen if the independent hospital is given total responsibility.

Amendment 19 will deliver what is needed if we are genuine about our concern to protect vulnerable individuals. I ask the Committee to agree to it.

[Alex Norris]

The Minister moved part of the way towards us earlier in the debate by noting the challenges that have happened in the sector, especially those that have received public attention. It is worth our looking at the issue, because it is clear that there are perverse incentives for independent hospitals to make judgments that serve—whether consciously or subconsciously—the broader interests of the facility, but move away from the best interests of the individual. It makes abundant sense to put some sort of independence into the system and help those organisations by moving responsibility back to those who would normally have holding responsibilities for the care of individuals.

In an ideal system, a CCG or local authority would purchase a framework, as it would in general needs social care, in which the cost was related to the care that it was buying for the needs of individuals. It would be relatively fixed and understood, rather than going up and down according to individual circumstances. However, with the individuals and the care packages that we are talking about, frameworks break down instantly; the package needed for each person is so specific that there are no models to buy from and no fixed prices, so the benefit of a market falls away. In my experience in local government of commissioning analogous packages of support for people with very profound needs, often only one provider came forward, so it very much set the price.

Amendment 19 would take away the perverse incentive and ensure, as we would all wish, that care is designed around the individual and not around anything else.

Ordered, That the debate be now adjourned.—(Wendy Morton.)

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

Alex Norris Excerpts

Tuesday 15th January 2019 Public Bill Committees

[Barbara Keeley]

I cannot see anything other than that self-funders would end up paying it. Self-funders might not just end up paying it for themselves; they might be paying it for everybody else who is in the care home, which is actually what they do—there is a certain transfer.

I want to make myself perfectly clear. Care home managers should not be involved in the authorisation of deprivations of liberty or the consultations around that. It is unlikely that they would able to do it and, as far as I can ascertain, they do not want to do it. Given that, the best route is surely to move responsibility back to local authorities, which have considerable expertise in this area.

We also propose to remove care home managers from the process of renewing an authorisation through amendments 27 to 29. If anything, that is more critical. At authorisation stage there are some safeguards in place, but to renew an authorisation, all that a care home manager would have to do is carry out a consultation and then certify that they feel the authorisation conditions continue to be met.

I have covered our concerns about the consultation process, so will not go over them again. I cannot see how it can be appropriate, however, for an authorisation to be renewed without anyone outside the care home being involved. The Bill proposes that renewals could last for three years—longer than the initial authorisation—and we have our separate concerns about that. At the renewal stage, however, there is no independent review. There is no medical assessment by a person not connected to the care home. There is no independent consideration of whether the arrangements are suitable.

I understand the Government’s argument, which was made in the House of Lords, that they do not want the renewal process to be stressful for the cared-for person where there is little prospect of anything changing, but that is not an excuse to remove vital safeguards. The most vital of those is that the decision is made by somebody with no vested interest in maintaining the arrangements. Only by doing that can we begin to make sure that the streamlined renewal process does not result in people being wrongfully deprived of their liberty.

Before I make my concluding comments on these amendments, I want to give Members another example of how things can go wrong in care homes. I recently heard from someone who was admitted to a care home after a spell in hospital. She was admitted to hospital after knocking herself out in a fall in her garden and being rescued by ambulance. A social worker had arranged her admission to the care home, which the person thought would be for a few weeks.

The care home was privately run and was

“full of elderly men and women from varied backgrounds. There were writers and businessmen and women, carpenters and vicars but they were all suffering from various degrees of dementia. I met only one resident who wanted to be there and she had been there for about 15 years and had chosen to go there after her husband had died. Most of the people there were women. Most of them were put there by their children and their houses had been sold to pay for their care or, if not, their children or their local council paid the enormous bills.

The home was a miserable place, the food was worse than school dinners and there were no events or outings organised at all. Each day had a routine of getting up, breakfast, sitting in chairs silently looking at the ceiling or knitting scarves, toilets, lunch, sitting, early tea and all in bed by 9 pm. There was no stimulation or crafts to do.”

The woman soon realised that it was difficult for her to get out, because she was given IQ tests and declared to have Korsakoff syndrome. This can happen, I understand, after a head injury. She said:

“The home wasn’t interested in the residents’ wellbeing or recovery. It suited them to have sedated residents sitting doing nothing all day. Their interest was making money. They owned a number of homes in the area. The guests were allowed visitors in the afternoon, but many didn’t have visits at all. I continued to spend all of my days by myself, but read and researched lots of things, and insisted every day that I wanted to see someone about being released. I was told that they could release me if someone came to pick me up and took responsibility for me in their home.”

She started to do exercises designed to improve memory and got in touch with the local council. Someone from social services visited and arranged for a specialist doctor to conduct an IQ test, on which she got very high results. The social worker wrote to the home and to her, and used the deprivation of liberty regulations to secure her release.

The woman left this miserable care home some six months after being admitted there to live in a new house, which she had bought. She contacted me because she was grateful for the safeguards that enabled her to leave that place, which she saw as

“merely a depository for elderly unwanted family members.”

She told me that

“these commercial business homes are terrible institutions created to make money.”

We are asking that people like this person, if they are going to be deprived of their liberty, always have their rights guaranteed by an independent public body, rather than the organisation responsible for providing their care.

What is contained within the Bill is not a solution to a problem. There is near unanimity among stakeholders that it would be better if this role were never carried out by a care home manager. Our amendments would mean that care home managers are not given another task that they have neither the time nor skills to carry out. They would ensure that cared-for people and their families feel confident in speaking out when they disagree with the arrangements. They would ensure that people authorising deprivation of liberty are the people best qualified to do so: the well-trained professionals currently employed by local authorities for this very purpose.

More importantly, our amendments would remove one of the conflicts of interest that the Bill seems to seek to enshrine. They would ensure that nobody is deprived of their liberty in a care home on the say-so of the manager of that same care home, which is making profit from that deprivation of liberty. This is a matter of principle. Private companies should not be given responsibility for denying people their basic rights. It is right and proper that this responsibility should always lie with a public authority that is subject to democratic control. Amendments 20 to 29 achieve that and I hope that the Government will accept them.

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

Thank you, Chair: I know you have put in a double shift as Chair today. I think that might help us get to the root of why this room is so warm. We are trying to echo the micro-climate in Dudley, which I believe is quite tropical at this time of year. It is a pleasure to follow my hon. Friend the Member for Worsley and Eccles South.

This set of amendments follows on from amendment 19. When we were discussing amendment 19, the Minister said that she would take under active consideration the issue around independent hospitals; I am very glad about that. I hope that perhaps she will take these amendments in the same spirit, as they extend the same principle.

At the beginning, prompted by my hon. Friend the Member for Birmingham, Selly Oak, the Minister said she felt that independent hospitals would be a particular focus, because the revelations that we have seen on television showed that there is risk there. I suspect that the same risks are built into the care home sector, too, because the preconditions are similar—for example, a financial vested interest, a lack of outside scrutiny and an unhealthy power balance between those who run such schemes and those who are resident there.

The vast majority of the time, the leadership in such facilities is excellent and is geared towards supporting the individual. However, where that is not the case, those preconditions build up that risk. As I say, what we have talked about in relation to independent hospitals also applies here. We need to address a fundamental question. We have said that we believe that the DoLS system does not work, that the backlog is not tolerable, and that we ought to move to more effective arrangements. That view is very broadly shared, but I do not think that anyone would wish, in reaching a system that is more sustainable for the public purse and better for the individual, to downgrade the assessors from qualified social workers with specific qualifications in the area to others—in this case, care home managers. That is not a good way of saving money or getting things done more quickly, and the best way to make that clear is by finishing the process that began in the Lords, as my hon. Friend the Member for Worsley and Eccles South noted, and completely removing the relevant references from the Bill.

There are a couple of reasons why that is necessary. First, finances in care homes are marginal. We might sometimes blanch at the cost, but we know that they can go to the wall quite quickly. As a result, there are subconscious commercial pressures that could colour a judgment, shifting it away from the best interests of the individual and towards the best interests of the care home in general. That, of course, is not what we seek to do.

It cuts both ways. We have spoken about independent hospitals having a perverse incentive either to hold on to an individual when it is not appropriate or to provide a much more comprehensive service than is necessary, but it can cut the other way, too. I am not aware of the picture across the country, but in Nottingham the most complex care packages in a residential setting are hotly sought after and we do not have a mass market for them; the market for more general needs care in my city is quite mature and sustainable, but that is not the case for higher-end care. A different perverse incentive could therefore arise for a care home if there are individuals for whom starting the assessment process or conducting periodic reviews is more trouble than it is worth. Whatever path we take in the rest of the Bill, the issue will continue to be tested in case law, and I do not know of many care homes that would gladly take on the responsibility of being on the other side of it.

As well as perverse incentives either to keep people or to ensure that they do not stay, there is a second point, as my hon. Friend the Member for Worsley and Eccles South said: are care homes really the right responsible body? I did not know—I am disappointed that I missed it in my research—about the £20 training for care home managers in a really important subject. Of course that is not sufficient; I cannot imagine that it could cover anything beyond filling out a form in a legally compliant way. It instantly pushes us towards a tick-box approach, which nobody wants—an approach that is about clearing the necessary barriers to legal compliance, rather than working around the individual’s needs and being person-centred.

As my hon. Friend said, there is a double risk. Some local authorities will identify the risk straightaway; others will not. Those that are feeling particularly hard-pressed will say, “It is our legal responsibility to ensure that somebody does this, but it does not have to be us.” With public sector cuts as they are, there is a series of perverse cost incentives throughout the health and social care system that result in individuals being pushed from one organisation to another; this will be one such incentive. Other local authorities—we have heard some good examples—will say, “Hang on a minute: this is far too important for that,” but portfolio holders and directors of adult social services are under incredible pressure.

[Steve McCabe]

Is this another situation in which we are in the dark because of the missing code of practice? It may be the case that if the Government have thought about that there will be examples in the code of practice saying how it should operate, what the minimum expectations are to avoid a tick-box approach, what good practice is and what people should aspire to achieve. If we had sight of that—if we had some indication that it was on the Government’s agenda—it might be easier for us trying to scrutinise the Bill, and it would offer some reassurance to the wider public that the fears that have been expressed will not prove well-founded.

[Alex Norris]

I thank my hon. Friend for that intervention. I am perfectly willing to concede that I might be being a bit too sensitive or nervous about this if a blue riband code of practice is going to be laid next to the Bill that plays out all the concerns and things that we are seeking to avoid, and that therefore really protects people and ensures that decisions in the moment will be the right ones. However, the problem is that we simply do not have that, so we are left to conceive of it, which is very difficult. We trust Ministers and civil servants to pursue the goals that they are talking about, and to pursue the best for individuals, but it is still very hard. We cannot fully discharge our responsibility if we have not seen that piece of the puzzle, so that is frustrating.

It is about knocking this bit of legislation into something that gets us to the final goal. I do not think that anybody has advocated a DoLS system that is streamlined and more financially possible simply by pushing the assessments away from someone who is exceptionally skilled and trained in the area to somebody who is not. I do not think that is desirable for the individuals who will be assessed or fair on those who will do the assessing. I hope that Ministers are minded to take that on board.

[Alex Cunningham]

During today’s debate I have already raised concerns about independent hospitals, and about care home managers and their potential role in depriving people in their care of their freedom. I know that my hon. Friend the Member for Worsley and Eccles South has addressed that comprehensively, but I hope that I can still add some value to the debate.

Even if there was some way in which the Government could justify the role of care home managers as outlined in the Bill, there is still a huge number of reasons why the sector would struggle to deliver what Ministers want it to. My hon. Friend has talked about the fact that finances in care homes are very much on the margin—they could be bust one day and make a bit of profit the next. However, some care homes do not even have care home managers. In hundreds of others across the country, the level of competence of managers in running care homes is alarmingly poor. We have some of them in my constituency. We have some great managers, and we have some excellent care homes, but we also have some that fall into the “inadequate” or “requires improvement” categories on inspection. It is not good enough for us to consider handing over this level of responsibility to people who might not be competent, or might not even be there in order to carry out the work.

On the CQC website, 2,550 care homes are listed as requiring improvement, with a further 223 deemed “inadequate”. Some of them are very large homes, but let us say that each one has an average of just 25 people in their care. That would mean that some 70,000 elderly people in care are being failed by the system. Leadership in those homes is one of the reasons they are being failed, and CQC reports bear that out time and again.

I know that that is symptomatic of a broken adult care system that has been neglected by the Government. I am sure that the Minister wants to wring my neck when I start talking about resources again, but it is about inadequate resources. Even after allowing councils to hike council tax to boost the social care budget, there is still insufficient money in the system. Profit-taking companies are often failing to provide adequate care, citing as the reason that they cannot afford to do so.

The system is in danger of failing further, as care homes close and the number of people requiring residential support increases. How on earth can the Government justify placing this most important duty on care home managers, asking them to play a central role in depriving the people in their care of their freedom? Given that the system is broken, that thousands of care homes are not anywhere near the required standard, and that in many cases there is no one competent—or no one at all—in the home, who will fill the gaps and deal with deprivation of liberty issues there? There may be other reasons why someone needs to do the work planned for the care home managers. If there is no care home manager, who are the Government expecting to carry out these assessments? Those managers do not want this duty, so what happens if a care home manager says, “I am simply not prepared to do this work; I do not want this responsibility”? Again, who will pick up that work? Will it fall on the local authority, the local GP commissioning group, or the health board?

East Midlands Ambulance Service

Alex Norris Excerpts

Wednesday 21st February 2018 Westminster Hall

[Ruth George]

I would certainly concur with that statement. It is one of many areas in which the lack of services at an urgent level is creating an increased demand—but in no way has East Midlands ambulance service’s funding increased to cover that level of demand, as we will see later.

Part of the increase is due to the 111 service. We saw the chaos that 111 created when the coalition Government brought it in to replace Labour’s NHS Direct with a much cheaper service with hardly any clinicians. Things have improved, but at busy times the 111 service still does not have enough qualified staff to make decisions, so the call-handlers have to be risk-averse, follow their script, and call out an ambulance if there is any doubt at all.

We have seen the number of 111 calls resulting in an ambulance call-out gradually increase from 100,000 in 2011-12 to 1.3 million across England in 2015-16. That is almost 14% of all ambulance call-outs going to people who did not request an ambulance in the first place—people such as my constituent Gemma. She suffered abdominal pain and called 111 for an out-of-hours doctor to come and see her. Even though Gemma told the call-handler that if she needed to get to hospital she would drive herself there, they still sent an ambulance to her. Gemma was diagnosed with gallstones, and next time she had an incident and needed pain relief urgently she again called 111 to tell them that she knew what the problem was and to ask for a prescription. Instead, they again insisted on an ambulance and would not accept a refusal. Gemma actually drove herself to A&E because she was so determined not to use ambulance time.

The ambulance service says that it is not allowed to reassess 111 calls that have been allocated for an ambulance response, so even if it expects that it is not necessary, it cannot use its expert clinicians to provide the telephone advice and decide whether an ambulance is really necessary. I will get on to the question of resources shortly, but besides resources, my local paramedics have asked whether the ambulance service can reassess 111 calls that it is given if it is in any doubt. I put that question, from them, to the Minister.

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

I thank my hon. Friend for the very strong case that she is making; she is an outstanding campaigner for our region. Nottingham city MPs are very concerned about this issue; I am the only one present because my two colleagues are on other parliamentary business. We would like to see real evidence of the provider coming together with unions, clinicians and service users to try to iron out some of the issues that my hon. Friend is talking about. Does she agree that that would perhaps be a good way to manage better the resources that we have?

[Ruth George]

We can always seek to manage resources better, but East Midlands ambulance service has been seeking to manage resources for a very long time, working with Unison and the unions there.