Mental Health Bill [HL]

Baroness Barker Excerpts

Committee stage
Tuesday 14th January 2025 Lords Chamber

[Baroness Berridge (Con)]

I hate to interrupt the Minister’s flow, but we are going to come back to the code of practice again and again. Can she outline whether we will get to see a draft of that code? If the argument from the Government is that it needs to be in the code and not on the statute, it would be very helpful to see a draft code of practice before Report, at the very latest.

[Baroness Barker (LD)]

Those of us who were here in 2006 listened to the Minister’s predecessor at the Dispatch Box making pretty much the same speech that she has made now, and nothing has changed in the meantime. We are trying to do what we can to make sure that we do not have the same situation for the next 20 years.

I take the point that the Mental Health Act 1983 was not built on principles. Does the Minister accept that it is time that we moved forward to a situation where both the Mental Health Bill and the Mental Capacity Act are built on principles, including that the people who are subject to them have rights to dignity and so on, as we have seen set out in different places, and that if they are not treated in that way they have the right to take people to court?

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[Baroness Merron (Lab)]

My Lords, I am most grateful to noble Lords across the Committee for their contributions. I will start by referring to the points raised by the noble Lord, Lord Scriven. A range of views has been expressed today on the matter of detention. The noble Lord asked what provision will be in place to ensure that we are not using some kind of backdoor, and that is a very good general question for us to hold in our heads. It is a very important matter, given the very poor outcomes we have seen for those with a learning disability and for autistic people under the current Act. I know this is something that has really exercised noble Lords—rightly so, in my view.

The noble Lord, Lord Kamall, is quite right to remind me of comments I made from that Dispatch Box, which I still stand by. I have concerns, as I know he does too. The proposals here are intended to address the matter of improving outcomes. The debate today has been extremely helpful and will allow me to reflect on where we need to go in respect of these. I am also grateful for the range of wider topics raised in this group—for example, on the importance of the community sector—and I look forward to moving on to these when we come to subsequent groups later today.

Let me first address Amendment 4 and the notice to oppose Schedule 1, tabled by the noble Baroness, Lady Bennett of Manor Castle. Currently, a person with a learning disability can be detained for treatment under Part II, Section 3 of the Mental Health Act when their learning disability

“is associated with abnormally aggressive or seriously irresponsible conduct”.

I heard what the noble Baronesses, Lady Browning and Lady Berridge, said. The noble Baroness, Lady Browning, used the word “meltdown”, and she has spoken to me about this before. I know that not all noble Lords like that word, which is why I put it in quotes, but the point is well made and the noble Baroness has explained to me about understanding a person’s conduct. It is also the case that an autistic person can be detained under Section 3 on the basis of mental disorder.

While the independent review found examples where use of the Act can deliver therapeutic benefit, it also found that hospital detention—a number of noble Lords spoke about this—can be detrimental for people with a learning disability and autistic people, due to exposure to environments or experiences that are completely insensitive to what I would call reasonable adjustments. This obviously causes stress and leads to behaviour considered to be challenging. We have heard that it is too often the case that people with a learning disability and autistic people are being inappropriately detained due to a crisis—which may be a better word in this instance—that has arisen due to a lack of community support, rather than for treatment of a mental health condition. That is unacceptable and the point has been extremely well made, both in the Chamber today and on earlier occasions.

The Government are committed to ensuring that hospital detention happens only when an individual has a mental disorder that warrants hospital treatment that has a reasonable prospect of providing a therapeutic benefit. It should not be some form of punishment. Schedule 1 and Clause 3 will change how the Act applies to people with a learning disability and autistic people by introducing new definitions for “psychiatric disorder”, “learning disability” and “autism” in the Act, and making amendments using those definitions throughout the Act. These amendments remove, for the purposes of Part II of the Act, learning disability and autism from the scope of conditions for which a person can be detained for compulsory treatment under Section 3. I hope that will be of reassurance to the noble Lord, Lord Kamall, and other noble Lords.

The noble Baroness, Lady Bennett, argued that the Bill is non-compliant with the UN Convention on the Rights of Persons with Disabilities. The measures in the Bill give patients greater choice, enhanced rights and support, and seek to ensure—I know that noble Lords want to probe this—that everyone is treated with dignity and respect throughout their treatment, and that the treatment is appropriate to the situation. It is the view of the Government that the Bill is compatible with the convention. Detention under the Act is not based merely on the existence of disability: that is something I really want to emphasise. Detention is risk-based. Detention and other compulsory measures are permitted only where they are justified by the risk posed by a person’s mental disorder and, through the Bill, I hope that we are very much strengthening the criteria for detention. We will come back to this later in Committee.

Amendment 4, tabled by the noble Baroness, would leave out Clause 3 and put in a new definition of mental disorder to remove learning disability and autism from the scope of the Mental Health Act entirely. This would mean that a person could not be dealt with under any section of the Act on the grounds of learning disability or autism alone. We very much recognise the arguments for removing these conditions from the scope of the Act, but there could be unintended consequences in the removal of critical safeguards. I know that the noble Baroness does not wish to cause that effect.

For example, the Bill retains the ability to detain people under Part II, Section 2, for a maximum of 28 days, for the purpose of assessment. That can be necessary both for the safety of the individual and the public, and for a clinician to understand fully whether a treatable mental health condition is the cause of the behaviour. I suggest that this is particularly important when considering conditions associated with high rates of co-occurring mental health conditions. Without these powers, there is a risk that the mental health needs of these groups of people are not identified or met appropriately, leading to further health inequalities for this group of people. I know that is not something that noble Lords would wish.

[Baroness Barker (LD)]

I have not spoken in this debate so far, but I have listened intently to everything that everybody has said, including the noble Baroness, Lady Murphy. Members of the Select Committee will remember—they could not forget—the evidence given to us by particular witnesses who have autism and have been through the trauma of being detained. They made to us, unforgettably, the point that there are some people with autism and learning disabilities for whom detention is an aggravating factor.

I happen not to agree completely with the noble Baroness, Lady Bennett, that there should be an end to all detention, although I have some sympathy with her arguments. I believe there are people for whom detention is necessary—both for them and for the safety of others—but they should be held in mental health facilities and not the criminal justice system.

I listened intently to the noble Baroness, Lady Murphy. I understand that it may be absolutely correct to define people with autism and learning disabilities as having a disorder, but we have moved on over 20 or 30 years to understanding that their manifestations and treatment are different from those of other mental health conditions. There is therefore a problem in having the diagnosis and treatment carried out by the same people. I hoped that she would explain, but she did not, why keeping people within the definition would improve their care.

[Baroness Murphy (CB)]

Does the noble Baroness accept that, in talking about treatment, we are talking about care, education and training in social circumstances? Treatment is not about medication, which may be totally inappropriate, but about looking at the individual’s developmental needs as a whole, which include a whole raft of things. I agree that it is not just about psychiatrists or psychologists; it can be about teachers, people with a special understanding of speech and language, and so on. I would never deny that you have to encompass the whole thing—I would promote it.

[Baroness Barker (LD)]

I am sure that the noble Baroness would. Does she accept that for some people, particularly those with autism and learning disabilities, being held in conditions that are noisy, filled with light and full of people they do not know—in which they are made to feel completely powerless and do not know what will happen to them next—will be a contributory factor to their illness? I make that point to the noble Baroness, Lady Merron. She talks about choice, but what increased protections are there in this Bill for people with autism or learning disabilities who find themselves in detention, which is an aggravating factor causing them to be wrongly diagnosed?

[Baroness Merron (Lab)]

I will be pleased to come back to that point. I think agreement broke out for a moment, which I would share, on the fact that detention takes many forms. It is about getting the right form and being sensitive to the needs of the individual, which is what the Bill is all about. I am grateful for those comments.

To pick up my point about the expert consultation that has taken place, a decision was taken to retain the ability to divert people who are autistic or have a learning disability, who have committed a crime, from prison to hospital under Part III of the Act. Without this safeguard, the only alternative to detention in hospital is detention in prison. Noble Lords have referred in this group to how, often, this would be inappropriate in meeting those people’s needs and would exacerbate and manifest distress. On balance, we believe it is right to retain the ability to divert such patients to hospital, where they are much more likely to access the right kind of support and care that they need.

The noble Baroness, Lady Bennett, raised concern about resourcing implications for local authorities. I refer her to the impact assessment, which sets out anticipated costs, including a breakdown of costs for councils. I assure her that we will do further work with MHCLG to assess any new burdens on local authorities created by the Bill. We are very alive to that situation.

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[Baroness Merron (Lab)]

I am sure that I have not been generous enough. I cannot give a commitment to government amendments on any of these areas. As noble Lords will be aware, that is the purpose of the kind of debate that we are having in Committee. However, we will certainly return to these matters.

The Mental Capacity Act protects people subject to arrangements that may amount to a deprivation of liberty in hospitals, care homes and other settings, by allowing a deprivation of liberty only when it is necessary and proportionate. There are instances when it is important that the Mental Capacity Act can be used to protect and to safeguard people where appropriate, and we do not want to lose that aspect.

The concern about the amendment is that it might have the effect of undermining decision-making, or of denying a specified group of people the right to protections under the Mental Capacity Act—although I know that this is not intended. I will give an example. Where a person lacks capacity but does not have a psychiatric disorder that requires treatment, there may be elements of that person’s care plan and arrangements that require deprivation of liberty safeguards to ensure that they can access the community safely and maintain a safe home environment. Similarly, certain specialist community placements are also registered hospitals, so the proposed amendment could unintentionally—I stress “unintentionally”—remove such provision as a viable community-based option, where the individual lacks capacity but would benefit from this placement as an alternative to in-patient care.

The noble Baroness, Lady Berridge, rightly made some comments about the statistics for LDA detention rates. I assure your Lordships that the data and statistics being referred to are absolutely key. They are collected and published, and they will continue to be monitored. If there are any matters where the noble Baroness or other noble Lords feel that we should go further, I would be very pleased to receive their comments.

On the point raised by the noble Baroness, Lady Berridge, about the use of High Court deprivation of liberty safeguards for children, I will refer to the action of the previous Government, which I hope will be seen as very helpful. In 2023, a task and finish group was established called “Improving cross-sector support for children in complex situations with multiple needs”. It was made up of a number of central government departments, operational local agencies and representative bodies, the NHSE and the Youth Custody Service to represent the voice of children and young people, as well as the Children’s Commissioner. This group has been developing a cross-sector response to help ensure that there is suitable provision in place for children and young people with complex needs who are at risk of being deprived of their liberty. To that point, I will take a particular interest in the task and finish group and its work, and we may come back to it.

[Baroness Barker (LD)]

I thank the Minister for giving way again. Listening to the noble Baroness, Lady Browning, set out and explain her amendments, it seems to me that they require the people making the decisions about whether to detain somebody to be clearer about which law they are using to decide to detain at a particular point for a particular person. As I understand it, they are not excluding or preventing the use of either bit of legislation for an individual; they seek just to have greater clarity about which legislation is being used and why, and therefore what protections the person will have. The Minister said that, if these amendments go through, some people will, somehow, be excluded from the correct treatment. Is there a particular group of patients or conditions that are at risk if the amendments tabled by the noble Baroness, Lady Browning, are implemented? Can the Minister give us some examples? Otherwise, I fail to see the logic of what she is saying, given the explanation that the noble Baroness, Lady Browning, gave the Committee.

[Baroness Browning (Con)]

I agree. The amendment seeks to strengthen and to clarify, rather than to make changes that would be completely different to what is intended in the Mental Capacity Act.

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Moved by

[Baroness Barker]

6: Clause 4, page 4, line 41, at end insert—
“(iv) housing”Member’s explanatory statement
This amendment ensures that housing needs are considered as part of care, education and treatment review meetings.

[Baroness Barker (LD)]

My Lords, since this is the first time during our proceedings that I propose something, I declare an interest as a member of an advisory panel for Rethink Mental Illness in an unpaid capacity.

I apologise if I risk sounding like a broken record; it is just that I have been here discussing these issues so many times in the past, as indeed have many other Members of your Lordships’ House. I will not apologise for taking a long-term view of things or for saying that there have been areas of change and areas of progress. But I also do not apologise for explaining to your Lordships the amount of effort and discussion that it has taken to bring about change and movement, not least against some of the entrenched views of the professions, which over the years have put up quite a deal of resistance to change.

It is also our job to look at the proposals that have come forward from patients’ groups and say that some of them are valid and some of them are not. We are in a unique and very privileged position in this House where we get to take a long-term and wide perspective, and we should use it wisely.

I say that because we have debated care and treatment plans time and again. Mental health institutions up and down the country are littered with files of care and treatment plans, many of which have sat on shelves and never been implemented. With this legislation, we are moving to the position we need to get to where everybody who is subject to mental health treatment has a care and treatment plan, the decision-making behind that plan is open to scrutiny, and the people responsible for delivering it are held accountable.

I cannot imagine what it must be like to sit day after day in a place where I know I am supposed to be given treatment that will enable me to get better and get out, and to receive nothing. I imagine the temptation to sit there and think about that all day long is in itself is a gravely depressing factor. That is the sort of thing that we have listened to over the years from people—particularly young people—who have been subject to mental health treatment and care plans and never had them delivered, so how pleased we are to have moved forward to this point. I am also very pleased that Members are trying to take this opportunity to beef these plans up, in particular the accountability around the delivery or failure to deliver them.

I want to include housing in the Bill. You do not have to have a mental health condition to be severely worried about housing these days. Any young person in this country can have real concern about availability of housing, tenure and all the rest of it. If you have a mental health condition and are likely to be detained for an indefinite period, and therefore very likely to lose your tenancy or whatever, that must be a huge aggravating factor.

One reason why I was prompted to table this amendment was because I was on the pre-legislative scrutiny committee for the then Bill back in 2006. Somewhere there is an unwritten law that, when mental health legislation is coming up, Members of this place will be sent to the South London and Maudsley. There is no way out; you have to go. But it is always good to go to SLaM to talk to the staff, who are immensely generous with their time. You cannot go on one of those visits and walk out unchanged from the experience.

I remember, in particular, a bunch of your Lordships going to talk to one of the best teams that I have seen in practice. Back in those days they were called an assertive outreach team; I do not know what they are called these days. They were absolutely brilliant, dedicated individuals. Their job was to work with people out in the community, to know them all and to predict the problems that would arise. One thing I remember them telling us was that they would frequently go to the local authority or to landlords when they had somebody whose particular crisis was that they had got into arrears. They would head it off by negotiating and de-escalating the situation so that the person did not get turfed out and therefore end up in acute care.

Similarly, we know that discharge is a lottery for anybody who goes into any acute hospital for any reason at all. Discharge from the NHS is one of those things that when it goes brilliantly, it goes brilliantly. When it does not, it is an absolute and utter disaster, and the person at the centre of it has absolutely no control over it at all—even less, I would suggest, when they are being discharged from mental health treatment.

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[Baroness Merron (Lab)]

Yes, I understand the intention, but I refer back, perhaps usefully, to the point I made earlier that review meetings would take place at least once in a 12-month period; it is not a maximum—I think I have got it the right way round. It will be at least once in a 12-month period; it is not that it can be only once in a 12-month period. That is, as I said, in line with the maximum timeframe in NHS England’s policy and guidance.

Amendment 13 tabled by the noble Baroness, Lady Tyler, relates to care and treatment reviews. The amendment seeks to ensure that a patient’s review makes recommendations about ensuring communication needs are met where there are additional or alternative communication needs. That is something we discussed very constructively in the first group and it was referred to by the noble Earl, Lord Effingham. We believe that current drafting already provides for that in the Bill.

As set out in the clause, those meetings are to review any needs of the patient for social care or medical treatment and can make recommendations about whether and how those needs can be met. This should include recommendations about the patient’s communication needs, which may be important in ensuring that their treatment is effective and to support their discharge from hospital. As set out in the clause, a number of named persons and bodies are to have regard to the recommendations of the review. That will give them the appropriate legal weight to ensure that they are considered and that there must be clear reasons if they are not taken forward.

The Bill also introduces statutory care and treatment plans for all patients detained under the Act, excluding those under short-term sections. We plan to set out the required contents of the statutory care and treatment plan in regulations. It is our intention that this includes information about communication needs to enable the treating clinician to consider the protected characteristics and individual needs of the patient, which speaks to the point I made in the first group to my noble friend Lady Whitaker, and to make reasonable adjustments. Regulations will also require that the report from a patient’s care (education) and treatment review is attached to the care and treatment plan so that recommendations are included as part of this.

Finally, I turn to Amendments 19 and 20, tabled and supported by the noble Lord, Lord Scriven, and the noble Baronesses, Lady Hollins and Lady Bennett. These amendments seek to ensure that there is a duty on integrated care boards and local authorities to carry out recommendations from a patient’s CTR, or CETR if the patient is a child or young person, unless there is a compelling reason provided for why a recommendation cannot be carried out. I thank the noble Baroness, Lady Watkins, and the noble Lord, Lord Stevens, for their differing but nevertheless significant contributions.

These review recommendations should be given the appropriate legal weight to ensure that they are given serious consideration. We have decided to include these provisions in the Bill to put the existing NHS England policy on a statutory footing.

The duty to “have regard” is a well-established duty that clinicians, ICBs and other public bodies are used to applying and it already exists within the Act. The noble Earl, Lord Effingham, asked how the Government will ensure that these recommendations are implemented effectively. I hope that my comments will assist the noble Earl. Where effective care and treatment is the central aim, we would expect careful consideration of all recommendations. Where those bodies decide not to accept a relevant recommendation, we would expect them to have very good reasons for making that decision. It is an appropriate duty in this context because we do not intend to place an absolute duty on a body to follow recommendations in every case—that would be incompatible with understanding the individual needs and requirements of the person concerned.

The legislation must not impose unreasonable duties on relevant bodies that they cannot fulfil or where it would be inappropriate for them to do so; for example, if a recommendation was made that was outside of their purview. The Bill already requires that certain named persons or bodies carefully consider the recommendations and give them appropriate weight.

In view of all those comments, I thank noble Lords and ask that they do not press their amendments.

[Baroness Barker (LD)]

My Lords, I thank everybody who has taken part in the debate on this group of amendments. We were, in essence, trying to get answers to the following questions. Who is responsible for drawing up the care plans and for reviewing the care (education) and treatment reviews? Who is responsible for ensuring that what is in those plans is compliant with the law? Who is responsible for making sure that it actually happens? Who is responsible for finding out whether it has not happened? Who carries the can if it has not happened?

At various points in the Minister’s answer, I was quite hopeful, then, towards the end, we went down the slope quite badly, because it turns out that, apparently, duties will not be put on people, and that is highly regrettable. The Minister does not need to explain to the Committee the difference between a statutory code of practice and a statutory instrument; the issue my noble friend was trying to get to is the extent to which Members of this House will see that these plans reflect what was intended in the law and what scope they will have to call it out if they do not.

I am pleased that it will be a statutory code of practice. That is one step up from nothing—it is not great, but it is better. I am also glad that the Minister said that care and treatment plans will be put in regulations. Will those regulations be done under the affirmative or the negative procedure? That is quite important. In light of all our discussions, we in this House should have the chance to examine that at considerable length and, if it is not right, to have a second go at it.

It is always salutary to sit and listen to the noble and learned Baroness, Lady Butler-Sloss, on the subject on which she is quite rightly famous, not just in the House but outside it. I listened to her strong statement. She will know from other discussions that we have had on the wider subject of health that I have said many times, and I believe it to be true, that we have a health and social care system that is openly predicated on people’s families doing much of the work, and that is never more so than when it comes to discharge. She will have heard me bang on about this before, but I have a considerable degree of concern about what happens to people who do not have families or children. We have never done research on hospital discharge, but I suspect that, if people do not have a relative standing by the bed saying, “No. You are not discharging this person because they are not fit to go home”, they end up being discharged far too early, and I suspect they then go back into hospital as acute admissions a result of that.

That said, I understand what the noble and learned Baroness says about the involvement of parents. However, in 10% of cases, the parent is not the right person. We have heard that in evidence before, which she may recall, where young people who have been subject to mental health treatment have talked about problems within their families. Similarly, people under the Mental Capacity Act have sometimes been the subject of overbearing, overprotective parenting that they have found to be detrimental to them. I am not being anti-parent or asking that parents be excluded. Nobody knows better than the noble and learned Baroness that families are complex, and, as the Minister said, we must make sure that there is the scope to do the right thing for a child.

[Baroness Butler-Sloss (CB)]

The noble Baroness, Lady Barker, is absolutely right. Any amendment I might put forward in future would have to allow for that, as there must be some parents who would not be suitable.

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[Baroness Barker (LD)]

It is getting late, and people wish to have their dinner because they been here a long time. I think we have had a partial response from the Minister. I believe that care and treatment plans and reviewing them are sufficiently important that some of us will want to go away to see whether, on issues that we may not have got technically right, we can come back, perhaps in discussion with the Minister, to satisfy ourselves.

[Baroness Merron (Lab)]

When I review all of the debates, particularly where there are areas where we need further discussion or information, I will be glad to pursue that. I give that assurance to the Committee.

[Baroness Barker (LD)]

I thank the Minister and welcome that. I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

Mental Health Bill [HL]

Baroness Barker Excerpts

2nd reading
Monday 25th November 2024 Lords Chamber

[Baroness Barker (LD)]

My Lords, I declare an interest as a member of an advisory panel for Rethink Mental Illness.

The House of Lords is an institution that is frequently criticised. Those of us who are often called on—not least by schoolchildren—to defend it often find ourselves having to give examples of work it has done which would not have been done by anybody else. As a veteran of the pre-legislative and post-legislative scrutiny of the Mental Capacity Act, the pre-legislative scrutiny of the Mental Health Act 2007 and all the various bits of subsequent legislation, I think that we have arrived at the point with this piece of legislation where we can make a defensible case for the unique contribution of this place to legislative progress. As the noble Baroness, Lady Merron, was generous enough to say in her introduction, there are a lot of us in this place who have got form on this. Specifically, there are an awful lot of us who have detailed knowledge of all those bits of legislation and of the workings of the 1983 Act.

If the noble Baroness will not mind me saying, we come to these pieces of work in two minds. It is great to have the opportunity to go back, look at what we did in the past and rectify some of the mistakes. However, it is always also deeply frustrating because, in truth, here we are again putting another patch on the 1983 legislation. We will never get the mental health system that we so badly and desperately need until we do more than that.

Having said that, along with other noble Lords, I congratulate Sir Simon Wessely and his team, and specifically the working groups that worked with him. If any noble Lord who has been inundated with briefings from all the interested parties, as we all have been, is ever in doubt about a subject, they should go back to the report of the working groups to understand how people have arrived at their conclusions and what we should perhaps strive for. I say that as the person who sat here night after night during the passage of the 2007 legislation, arguing for an advance choice document against a lot of entrenched opposition, not least from practitioners. It is really important that we use the privilege of our position—I mean that: privilege—to work away at this legislation as we did with that so that, perhaps uniquely, we can make some progress.

Those of us on these Benches will support anything that makes clinicians have to be more accountable and transparent in their work. We can have any legislation we like but, until such time as we call decision-makers to account, we are not going to get anywhere on behalf of people who are detained. They may be detained for their own good. They may be detained for the safety of others, but they are none the less detained. Their opportunities to challenge the decisions made are quite rare. As ever in this House, in the end, when we are coming to a decision, we always have a duty to defend human rights. Human rights legislation exists to defend the people that nobody in society likes. Quite often, that means the people subject to this legislation.

On the issue of principles against the Bill, having gone through the Mental Capacity Act, and having then subsequently reviewed it and its implementation, with serried ranks of professionals coming in to tell us that they just ignored the principles which had been in that Bill since the beginning, I am not overjoyed that they are going to be stuck into a code of conduct. This will surprise the noble Baroness, Lady Merron, not a lot. I do not honestly think it will make any difference at all. They are very good principles but, unless and until they are in the Bill and practitioners believe that their decisions will be judged against them, they will be useless.

Lots of other people can speak about learning disabilities far better than I can. I want to say just two things. First, the noble Earl, Lord Howe, talked about training professionals in relation to young people. Increasingly, people are diagnosed with learning difficulties, and particularly autism, as older adults. We should listen to what the noble Baroness, Lady Hollins, has been telling us for years and require all mental health practitioners to have training in the diagnosis of learning disabilities and autism. That is the one thing that would make a swift and tangible difference in this area.

Secondly, the alignment—or non-alignment—of the Mental Capacity Act and the Mental Health Act has been problematic. We have known about that for more than 20 years. To everybody who knows about it, I simply say “Bournewood gap”. To those who do not, I say that the two pieces of legislation are built on completely different bases. Two people, sitting side by side, can be treated according to one or the other depending on who is in the room at the time. If you get banged up under one, you have quite a lot of rights; if you get banged up under another, you do not. I understand why Sir Simon and his team thought that it would be too long and too difficult a job to sort this out. It was much better that we carried on to do some of the more urgent things in this Bill, but we have to go back and do it. Other jurisdictions are going down that path.

The one thing that the noble Baroness and the Government have to do is give a commitment that they will monitor that and, upon the passage of this Bill, put in place a system of funded research about the change to bring in what is known as fusion legislation. If we do not, we will just consign a load of people to being wrongfully treated, so I hope that she will do that.

In a similar vein, Dr Lucy Series and Luke Clements, who are academics and practitioners who have worked on this for a long time, sent us a briefing that explains in characteristic detail the deficiencies that arise under Section 73 of the Care Act 2014. It means that people who are being treated in private settings, even though their treatment was commissioned by the NHS, are not being properly protected by the Human Rights Act. They have written a very short but effective paper for us, and I simply ask the noble Baroness to commit to a meeting of interested Peers—there are a number of us—with Dr Series and Luke Clements, so that we can deal with that. Can we stop treating people differently just because of the person or organisation that happens to be providing their care?

On CTOs, we are not allowed to wear T-shirts in here but, if we were, I would be sorely tempted to wear one that reads, “Told you so”, because we did. In 2006-07, we sat here night after night saying, “You are telling us that this is not going to be used very often or used disproportionately against some people. That is not true, is it?” It really was not. Because of that and the racial disparities, I and others were for a long time of the view that CTOs really should go because they were enabling bad practice by practitioners. What changed my mind was listening to patients and their families, because there are a small group of people for whom CTOs work, are the least restrictive option and are beneficial. We should therefore keep them. I am reluctant to admit that, but we really have to change all the processes around them to make sure that practitioners are sticking to the intention.

Advance choice documents are another “I told you so”. I am so pleased that they have done what enlightened practitioners said they would back in 2005-06; they have improved care for people. I am indebted to the noble Baroness, Lady Finlay, for telling the joint scrutiny committee about the work that was done in the field of palliative care to make sure that advance choice documents are electronic, and therefore more widely available, and to minimise excuses on the part of practitioners: “Well, I didn’t know about it”. A team from King’s has been looking at that. I hope that, during our discussions, we can go into that in greater depth. I do not quite know how that will work, but it is important.

On prisons and police stations, we were very lucky in the joint scrutiny committee because one of our members was an A&E doctor so we talked about this quite a lot. The truth is that people will still turn up in A&E because the lights are on. That is where people in distress will go. There will also be people who, faced with somebody who is having an episode, still call the police, because they are frightened and do not know what to do. During the passage of the Bill, I hope that the Minister will explain how £26 million will deal with what is quite a big problem and that we look at the transition to the police stepping back to leave everybody else to deal with people who, at the point they meet them, are very ill and disturbed and who need help.

Finally, some of us argued strongly for a mental health commissioner. That was not because we wanted another commissioner—we have lots of commissioners for things already—but because we were trying to deal with a key issue. We do not have a system of mental health care or joined-up services. We have episodes of care, some of which are very good at the time but do not work together as a system. After the hours that we have sat in this place and looked at the various different bits of legislation in great detail, we do not understand why we lock up more people, year on year, and what the best use is of the resources available—they are not infinite—not only to deal with people who are experiencing real crises and trauma but to ensure that we use the best of what we have to put as much as we can into services that are also preventative.

It is a great privilege to be in this House. It is an enormous relief that we can do our work in great detail and largely away from the pressure of headlines, which I know people in the other place always feel whenever there is a failure. It may well be that, during the passage of the Bill, something in the media changes the national mood on this, but our job, privilege and responsibility is to think of the people who are in the worst possible place under this legislation and to do the best possible job that we can for them to make sure that we get the best out of this legislation.

HIV Care: Access

Baroness Barker Excerpts

Wednesday 11th September 2024 Lords Chamber

[Baroness Merron (Lab)]

I can confirm to my noble friend that we are, and say how grateful we are to a number of charities, including the Terrence Higgins Trust and the Elton John AIDS Foundation. As she says, there have been pilots for emergency department HIV opt-out testing since 2018. A pilot that began in April has expanded that to 47 additional sites, and we will be looking closely at the impact of that.

[Baroness Barker (LD)]

My Lords, if that pilot in the 47 areas shows, as it did in London with the Elton John work, that such testing finds people who not only do not know their status but are lost to care, will that form a basis of the national plan the Government are working on? Will there be a particular emphasis on extending services to people in rural areas, who do not have the access to clinics that people in metropolitan areas do?

[Baroness Merron (Lab)]

Yes, and I thank the noble Baroness for making those points, which I certainly agree with. The challenge for us now is to reduce the number of people who live with undiagnosed HIV, but also to reduce the number not seeking care and treatment. For the first time, the latter has exceeded the former, which suggests that we have a challenge we must focus on in the new plan, and we will do so.

NHS Continuing Healthcare

Baroness Barker Excerpts

Monday 2nd September 2024 Lords Chamber

[Baroness Merron (Lab)]

I thank my noble friend for that observation and certainly agree that, in all these areas, it is very important that people understand what might be available and how they might best apply. As I said to the noble Lord, Lord Crisp, the assessment is potentially a gateway to other NHS funding. I feel quite strongly that that needs to be clarified, so that people know what they are going into. I will take my noble friend’s comments on board and discuss this within the department.

[Baroness Barker (LD)]

My Lords, this issue has been a football between health and social care for many decades. We have never sorted out whose responsibility it is to do assessments and to make sure that those who are assessed know about the local services to which they can apply. How will the Government sort out that fundamental part of the problem?

[Baroness Merron (Lab)]

As the noble Baroness is aware, the responsibility for this lies with integrated care boards and a framework applies to both adults and children and to young people. It is for NHS England to ensure that the framework is properly applied. Certainly, the framework for children and young people has not been revisited since 2016 and we need to look at whether it is doing the job it is intended to do, because we want people to be getting the care they need. Each case is unique and complex and, as a person-centred service, that brings its own complexities. We should therefore ensure that the frameworks are applied correctly and get to the right people at the right time.

Integration of Primary and Community Care (Committee Report)

Baroness Barker Excerpts

Thursday 9th May 2024 Lords Chamber

[Baroness Barker (LD)]

My Lords, I too pay tribute to the noble Baroness, Lady Pitkeathley. She and I have sat on a number of Select Committees in recent days, and I have to say that she was excellent as the chair of this committee. She steered us through the depression of weeks on end of people coming to tell us how the IT problems in the NHS were really difficult—and somebody else’s fault. She also took us through the days when people came from NHS England to tell us how perfect the situation was, and how our fears were groundless.

The noble Baroness, Lady Redfern, and I, week after week, bowled questions to people about IT, data-sharing and data governance, and I do not think we ever got a straight answer. Nor does the Government’s response deal with a critical question: who is responsible for the co-ordination of patient data? We can talk about anything we like, but until that question is answered and can be answered by everybody, we are going round in circles—and so are patients.

In preparation for this debate, I went on to the new NHS information portal. There is a lot of good stuff and good guidance on there, but nothing sufficiently definitive, as yet, to lead us out of the central problem: the responsibility of GPs to be the guardians of data. Such is the amount of patient data they have to deal with and co-ordinate that they are drowning in the system. As we have heard, they are having to deal with different IT systems. I know the noble Lord, Lord Altrincham, talked up Manchester, but I urge him to recall that, while Greater Manchester was recording increased health outcomes, two of the boroughs were not. Those boroughs were Oldham and Rochdale, areas I happen to know extremely well, and where for decades there has been a lack of GPs and community health staff.

In London we still have major hospitals that cannot talk to each other because they run on different IT systems. It is as simple as that. Therefore, unless and until we can go back and deal with some of those issues, which we flagged up in our report, we are on a hiding to nothing.

We know that the Pharmacy First programme is being rolled out. Only last week, in a report in the Guardian, pharmacists were cited as saying that they are not being given data. I think this is because GPs are being highly cautious and reluctant to pass on information in case they are held responsible for a data breach.

There are other parts of the health service in which that same problem comes up again—ophthalmology and audiology. Most people who have a problem with their eyes go to an optician, not a GP. The opticians do tests, then they refer somebody to a GP and, if there is a problem, they are sent to the ophthalmology department where, several months later, they go through exactly the same tests and get the same results. The same thing happens in audiology. The story of audiology is not one of the private sector and the NHS working together in a triage system; it is a story of delay, duplication and waste. If we cannot get it right for two conditions for which we have systems that could be put together quite easily—provided a data protocol was established—how will we do it for something such as complex neurological conditions, or some of the conditions that the noble Baroness, Lady Redfern, referred to in connection with old age?

I take the opportunity to say that noble Lords should listen to Hanif Kureishi talking this morning on the “Today” programme about what happened to him when he had a blocked catheter, and how he nearly ended up being unnecessarily blued and two’d into A&E, all because somebody could not find a community nurse. They did at the last minute, and he was sorted out.

One of the things we did not manage to get down to in the report, because we were so busy talking to all the GPs who could not sort out these data problems, is the lack of community health staff and the lack of local authorities that know where the health deficits are in their area, working in partnership with primary healthcare staff. I was sitting in an NHS hospital yesterday and I noticed a screensaver that read, “Confidentiality of patient data is everybody’s responsibility”. What it did not say is, “Co-ordination of patient data is nobody’s responsibility”. That is the issue we looked at and on which we came up with several recommendations. It is a great shame that the Government did not listen.

Foetal Sentience Committee Bill [HL]

Baroness Barker Excerpts

2nd reading
Friday 22nd March 2024 Lords Chamber

[Baroness Barker (LD)]

My Lords, I wish to put on record that although my noble friend and I have very different views, as a matter of principle I defend her right to make her views known, and I hope she will understand why I respectfully disagree with her. I absolutely agree with the noble Baroness, Lady Kennedy of The Shaws: she is spot on. This Bill is part of a far wider anti-gender, anti-LGBT attack on human rights, a campaign which is international and largely but not exclusively put forward by national Conservatives and Christian nationalists.

The noble Lord, Lord Moylan, in his introduction said two things, both of which I think have subsequently been shown to be not true. This Bill is neither modest, nor not about abortion. It is far from that. It is unprecedented government interference in the ethics and practices of abortion care. It seeks to circumvent expert clinical guidelines, not because of another body of clinical evidence but because of an ideological disagreement with the conclusions of the work of the Royal College of Obstetricians and Gynaecologists. I should say to noble Lords opposite that the RCOG is duty-bound to provide evidence-based clinical guidelines, and to think that it would do so without talking to anaesthetists and other relevant professionals is to do that college a great disservice.

This Bill is focused solely on the foetus and says nothing about the rights of women. It is from the same stable that has brought similar legislation about in American states such as Arizona, Kansas and North Carolina, and it absolutely is a precursor to further legislation which will limit and outlaw abortion in full. Setting up a committee in this way, which has no remit to consider the rights of women or their experiences and healthcare, speaks volumes about the real motivation behind this legislation. I have to say to noble Lords opposite, and on the Cross Benches, who have repeatedly drawn parallels with the use of analgesia in animal scientific experimentation that they have ignored the fact that in this Bill we are talking about foetuses that are carried in the bodies of women—who are sentient beings capable of expressing not only their own healthcare needs but those of others.

This has been presented as being a method by which we can get to objective evidence. It is nothing of the sort. This is about setting up a committee to consider selective evidence—evidence that, I put it to the noble Lord, will inevitably lead towards a diminution of women’s rights. Far from being humane, the Bill has considerable scope for unintended consequences. The threats to women, not just during pregnancy but during childbirth, were this to go ahead, are considerable. We have already seen that throughout the United States, in states where these sorts of measures have been introduced.

I put it to you that this Bill does pretty well the opposite of what has been claimed for it. It is actually about picking and choosing selective evidence in order to lead down a path, as has happened in Alabama, towards the complete abolition of abortion. It is a Trojan horse. I really hope that we will not be fooled, and that we will put this in the context of that wider campaign against women’s rights and human rights.

[Baroness Smith of Newnham (LD)]

How does my noble friend account for the disparity between the views of the BMA and of the Royal College of Obstetricians and Gynaecologists?

[Baroness Barker (LD)]

It is not uncommon for health professionals to have different views and for their views to develop over time. However, I would much rather listen to either of those than to a hand-picked political committee making political decisions on what should really be a health matter.

This is a Trojan horse, and I really hope we will see through it. I thank the noble Lord, Lord Moylan, for unveiling, yet again, a little bit more of this wider campaign against women’s rights and human rights. He has done us a service.

Sexual and Reproductive Healthcare

Baroness Barker Excerpts

Tuesday 19th March 2024 Lords Chamber

Asked by

[Baroness Barker]

To ask His Majesty’s Government what assessment they have made of the current level of provision for sexual and reproductive healthcare in England and the case for a workforce plan in this sector.

[Baroness Barker (LD)]

My Lords, I thank all noble Lords and the Minister. Their participation at this late stage is very much appreciated. I also thank the British Association for Sexual Health and HIV, the British HIV Association, the Terrence Higgins Trust and the National AIDS Trust for their briefings for this debate. I draw the House’s attention to my role as co-chair of the All-Party Parliamentary Group on HIV/AIDS and the All-Party Parliamentary Group on Sexual and Reproductive Health. My ongoing involvement in those APPGs reflects my very strongly held belief since I was a young woman that giving people, particularly young people, scientifically correct and fully inclusive sex and relationship education information not only protects them and enables them to study, work and live their lives to their full potential but benefits the whole of society in terms of health and economics.

I want to have this debate because sexual and reproductive healthcare in the UK is in a crisis. That is not me saying that but the Local Government Association, the British HIV Association and the British Association for Sexual Health and HIV—that is, those on the front line trying to hold these services together and make them work. Data from the UK Health Security Agency shows that demand for SRH services has been increasing year on year and hit a record high in 2023, with no signs of abating this year. That increasing demand has not been mirrored in an increase in resources and staffing. The recent Local Government Association report showed that services throughout the UK are at breaking point, with people being turned away from services, which are often open for very minimal times due to a lack of capacity.

Due to the deterioration in numbers of people trying to be genitourinary medicine physicians in the UK, there is a real possibility that very soon we will be without adequately trained experts in out-patient management of complex and complicated STIs. That is worrying for us all. There are huge issues about recruitment, training and staff that can be traced back to commissioning changes that were made under the Health and Social Care Act 2012. Those reforms, which put public health back into local government, were right in principle; public health and prevention and surveillance of disease should start not in the NHS but in communities, where people live. The problem was that this reform coincided with a plummeting of local government finance and, consequently, the commissioning of services has been so severely depleted that services have deteriorated to the point where we have reached the highest levels of cases of gonorrhoea since the 1920s and the highest rates of syphilis since 1948.

The high rate of those diseases, and the lack of capacity for people to be seen in SRH services, has resulted in people presenting late and with levels of infection so high that they may have irreversible harm that could have been treated properly had they been seen earlier.

There has also been a resurgence in neonatal syphilis in the UK—something that we thought was history is now back. We have significant neonatal morbidity. In addition, reduced NHS service capacity has reduced the access to preventive SRH services, including vaccinations and the provision of HIV PrEP, both of which are critical to reducing future transmissions of STIs. In some areas of the UK, particularly outside London, there has been a disproportionate effect, as small clinics have been hit more than others.

It is important to understand in this debate that there are two types of specialists who deliver the majority of SRH and out-patient HIV care in the UK: first, GUM clinics, and HIV physicians who are trained in medicine and specialise in STI and HIV diagnosis and management; and, secondly, community sexual and reproductive health specialists, who train predominantly in women’s healthcare and who specialise in the gynaecological and reproductive care of women across their life course. Most provision of specialist contraception and training of other healthcare workers in contraception, and the leadership of systems across secondary and primary care, is done by community SRH consultants.

Dame Lesley Regan has done tremendous work in the development of the women’s hubs. I ask the Minister whether the Government plan to build on that work to make those into one-stop shops for women, where they can have their reproductive and sexual health issues dealt with all at once.

HIV treatment is different—HIV services are open-access and anybody can come into them—but there is a huge problem in the HIV workforce. Not only is there huge demand; there are so few consultant specialists around to help other staff to train and develop that we are now having a real problem recruiting trainees into genitourinary medicine. That means that those services are becoming ever more fractured, and there is a knock- on effect back to general practice and to pharmacies, which simply do not have the specialist knowledge and training to deal with those more complex cases.

Nurses and allied healthcare professionals are doing much more than they did a year ago, but they cannot deal with the sorts of complex cases that are now being presented to them. We have an inadequate number of consultant specialists working in the field and that is having an adverse effect on training.

Commissioning arrangements are at the root of the problem in all of this. No one is taking responsibility for ensuring that the next generation of doctors and nurses in sexual health services are being trained. No local authority has a training plan and there is no cohesion nationally to drive accountability where it fails. Services that offer no training and education are inherently cheaper and those are the ones being commissioned more and more—for short-term gain for cash-strapped councils, but with long-term harm to public health.

I ask the Minister to address three critical issues: first, making sure that all sexual health medical training posts are 100% funded through NHS England in the same way that posts in primary care oncology and public healthcare are funded; secondly, that NHS England is accountable on its plan to ensure improved recruitment, with the publication of a corresponding action plan to deliver improved recruitment in sex and reproductive health; and, thirdly, that no service is allowed to operate without a GUM consultant within it, no matter how much it depends on lesser-qualified staff.

It is worrying that we are going back to levels of sexually transmitted diseases that we thought were a thing of the past. It is deeply frustrating, because we now have the medicines to deal with these cases, and we know there are new technologies and ways of delivering services that could make the system so much more efficient. If we had nationwide home testing kits for HIV, if we had a greater use of pharmacies for the management of people with HIV in their local areas, rather than them having to go to specialist clinics for ongoing treatment, we could be making great progress. In this field, as in many other parts of medicine, were staff to have the time to sit and think through the ethics and potential of the use of AI, we could make huge strides forward in these public health matters. As it is, these services are stretched to breaking point.

I want the Minister to answer two simple questions. First, what are the Government going to do to stop the crisis and the downward spiral of stretched services relying on staff who are not sufficiently well trained? Secondly, what have the Government made of the lessons that can be learned from the GP recruitment crisis and the opportunities to apply those to increasing recruitment and retention in urinary medicine and HIV, including fully funding training posts? We need to get this workforce back up to the levels we know we can manage in order to deal with a crisis which need not have occurred in the first place.

Cancer: Staffing

Baroness Barker Excerpts

Thursday 14th March 2024 Lords Chamber

[Lord Markham (Con)]

I thank my noble friend and totally agree that GPs are the front line of our medical services. We are trying to do everything we can to make sure that they feel valued and are retained. The recent change to the pension law was all about addressing that very point, answering GPs’ number 1 concern in order to keep them. Their hard work has seen a 25% increase in the cancer referral rate: we treated 3 million people, up 600,000, over the last year, thanks to their work and the expansion in the diagnostic centres we have set up.

[Baroness Barker (LD)]

My Lords, does the Minister agree with us on these Benches that there should be a statutory two-month period between diagnosis and access to appropriate treatment for any cancer patient? In order to achieve that, there needs to be further investment in radiography training and an equitable distribution of trainee radiographers and qualified radiographers across the country. How will the Government ensure that that happens?

[Lord Markham (Con)]

As I mentioned, that was very much the big feature of the discussion that I had with the president of the Royal College of Radiologists just the other day. We have been growing the number of radiographers by about 3% every year, which is a good rate, and we look to increase that even further. The CDCs are about that. However, the actual demand is increasing by about 5% every year. Clearly, as well as recruitment, we need to make sure that we have effective diagnosis, and this is where the field of AI is very exciting. The radiographers are 100% behind it, because they really see the revolutionary effect it is bringing.

NHS: Neurology Care

Baroness Barker Excerpts

Monday 26th February 2024 Lords Chamber

[Lord Markham (Con)]

Yes, that is precisely what I was referring to: the progressive neurological condition toolkit is all about the pathways for that integrated approach to it all. Again, there are 15 million people affected—I think this statistic was mentioned earlier—and one in five deaths come from related conditions, so making sure we have that integration with palliative care as well as the other services is key.

[Baroness Barker (LD)]

My Lords, neurological conditions require diagnosis by a specialist. Thereafter, the individuals need the input of people from all the different disciplines of the NHS. At the moment, the expectation to manage that falls upon GPs, and they cannot manage it. The key people who can are specialist nurses, and we have a severe deficit of specialist nurses for several neurological conditions. Can the Minister say how that deficit is to be addressed by the workforce plan?

[Lord Markham (Con)]

I thank the noble Baroness. Yes, the point about epilepsy nurses was made very clear to me just half an hour ago, and I quizzed both the national clinical director of neurology and Professor Stephen Powis on that subject this morning. I was assured that the next stage of the long-term workforce plan goes into that level of detail. I have made a commitment to the House to share some of that data, so we can make sure that it really is covered properly.

Sexually Transmitted Infections

Baroness Barker Excerpts

Tuesday 5th December 2023 Lords Chamber

[Lord Markham (Con)]

Overall, we spend £3.5 billion on public health. I do not have the breakdown of the advertising within that, but I will happily follow up with that. That is a small increase over the last year. Education is key to all this. Part of the reason for the increase in sexually transmitted diseases is that people used to use condoms because they were scared about two things: pregnancy and HIV infection. As both those risks have gone down, so has the use of condoms, which has resulted in the higher level of sexually transmitted diseases—so education is key.

[Baroness Barker (LD)]

My Lords, in 2022 the rate of STIs went up by 22% and, at the same time, the public health budget has been reduced by 29%. The strain on those services is now intolerable. Is it not time to have a proper, real increase in that budget?

[Lord Markham (Con)]

The figures are slightly misleading because, of course, that was in comparison to a Covid year, when there was much less testing. In fact, if you look at it versus pre-pandemic figures, the numbers are 16% down compared with 2019; that is the real comparison we should look at here. At the same time, I think we would all agree that £3.5 billion is a big investment in this space. It has gone up slightly over the past year but, as I mentioned earlier, education is also key in this space.