Domestic Abuse Bill

Baroness Finlay of Llandaff Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I should make it clear that the noble Baroness, Lady Watkins of Tavistock, has withdrawn from the debate, so we shall not be hearing from her on this occasion. I call the next speaker, the noble Baroness, Lady Finlay of Llandaff

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I should declare that I chair the Commission on Alcohol Harm. I added my name to Amendment 31 in the name of the noble Lord, Lord Hunt of Kings Heath, and the noble Baronesses, Lady Goudie and Lady Hollins. It is very welcome that the Bill will, for the first time, give local authorities a formal role in the provision of domestic abuse support. The voluntary sector has done a heroic job in protecting survivors, victims and their families, but this vital task should not be left to the voluntary sector alone.

The words of the Minister were welcome, reflecting her deep and sincere commitment to tackling domestic abuse. The government amendments recognise the need to ensure that regulation will meet need and are certainly to be supported. If I heard correctly, some of the additional finance will apply only to England. How will parallel community services be financially supported in Wales? Without that additional funding also coming to Wales, there will be a serious risk that women fleeing abuse will also have to flee Wales to get the support they need.

We must not ignore those outside refuges, some of whom are turned away due to their alcohol and substance-use needs, which makes them ineligible for support from their local authority. However, they still need support. The amendment of the noble Lord, Lord Hunt of Kings Heath, is needed in addition to the Government’s amendments. It would ensure that the necessary support is available and would support the whole scoping exercise without any discrimination. I really urge the Government to support it.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the new statutory duty on local authorities to provide safe accommodation-based services for victims of domestic abuse and their children is widely welcomed, but I am still sympathetic to the ongoing fears that this might mean local authorities simply redistributing funding away from community services in order to meet that statutory need. I welcome these thoughtful amendments and the discussion that focuses on protecting specialist community service provision. While I am still not sure whether this issue should be dealt with through legislation, it is very important that it has come up. I am minded to consider seriously Amendments 30 and 31 in particular.

However, there is one category of specialist services that I am worried the Bill has inadvertently not focused on: women’s domestic abuse services, whether community or accommodation-based, which are under threat. Ironically, council funding does not help. The Bill’s increase in funding and the new legal duty on councils will not resolve this issue. There seems to be some muddled thinking about how councils should deliver specialist services more broadly. I would appreciate it if the Minister would take that into account in this set of amendments or in guidance notes.

I declare a minor interest, in that I am a long-standing columnist for the MJ – for the uninitiated, the Municipal Journal. It has been eye-opening watching councils in recent years trying to negotiate equalities legislation in the context of new political trends such as gender-neutral policies. The Equality Act 2010 clearly protects single-sex exemptions that allow women to have legitimate access to women-only services and spaces: gyms, hospitals, changing rooms and, of course, crucial services such as Rape Crisis, women’s refuges and women’s advice services. The newly launched organisation Sex Matters notes that rules and explanations are now confused and controversies around gender identity mean that organisations can be reluctant to communicate their women-only services clearly, and, when they do, councils can use this against them. This needs to be clarified as we go forward; otherwise, all the good will will be undermined.

One example of the unintended consequence of fudging championing women’s refuges is how councils are interpreting equalities impact assessments. In the drive for more inclusive, non-gendered service provision that caters for the needs of all protected characteristics, women’s refuges are in danger of losing funding for not being inclusive enough.

--- Later in debate ---

Moved by

[Baroness Finlay of Llandaff]

21: Clause 55, page 35, line 28, at end insert—
“( ) ensure all child contact centres and organisations that offer child contact services are accredited in accordance with national standards in relation to safeguarding and preventing domestic abuse as specified in regulations made by the Secretary of State.”

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I am most grateful to the Minister for meeting me and the noble Lord, Lord Ponsonby, and the noble Baronesses, Lady McIntosh of Pickering and Lady Burt of Solihull, over this vexed issue of child contact centres.

A little history is important here. In 2007 the Department for Education commissioned the National Association of Child Contact Centres, the NACCC, to develop national standards for child contact, but no regulatory framework was created. The NACCC and the Children and Family Court Advisory and Support Service, Cafcass, agreed a memorandum of understanding on service delivery accreditation standards and safe- guarding protections to keep children safe. This cross-party amendment builds on the work of both. They, along with Women’s Aid, Family Action and Barnardo’s, all support this amendment.

The amendment aims to ensure that these standards protect children wherever they have facilitated contact. The NACCC, Cafcass and key sector providers, including the Salvation Army, Barnardo’s, Family Action, Relate, Action for Children and Core Assets, all do an outstanding job and these third sector organisations agreed by consensus in 2019 that regulation is required by the sector.

Accredited child contact centres and services have clear procedures and staff training and support staff in decision-making where risk may be present, including in safeguarding children and preventing domestic abuse. Sadly, it is not uncommon for one or both parents to have deep-seated problems, including risks of problems with alcohol and/or drug abuse, and the risk of ongoing abusive behaviours.

However, many centres and services currently fall outside the oversight of local authorities, NACCC or Cafcass because the current regulatory framework is only voluntary and patchy. Such unregulated provision of centres and voluntary child contact services unfortunately leaves this field open to those of malintent, including paedophiles and those from extremist factions.

I ask noble Lords to ask themselves why anyone who really cares about children would not want to be fully trained in child development and safeguarding. Is it acceptable to leave children already traumatised by being victims of or watching abuse in situations of increased risk? The amendment closes the loophole by providing the Secretary of State with powers to specify regulations and delivery.

As the Minister requested in Committee, we provided an initial review of evidence to the Minister. I am most grateful to the Minister for meeting us. In the list of over 50 centres advertising on the internet, we found some operating without oversight. Local authorities have a duty when commissioning under Section 34 of the Children Act 2004, but financial stringencies and the lack of universal standards contribute to variability. Importantly, not all services are local authority-commissioned.

For example, one child contact centre had NACCC accreditation withdrawn due to safeguarding and health and safety concerns, including Disclosure and Barring Service checks that were not up to date and poor storage security of personal information and records. After the removal of accreditation, the centre accepted a high-risk supervised referral where the father was on the sex offenders register, but the centre could not provide adequately supervised services. It continues to advertise as NACCC-accredited and take referrals from solicitors.

There are also a significant number of child contact centres with no website presence. In the time available, the NACCC could do only a desktop study and so could not ascertain how many are still operating. For example, I have been informed by the NACCC of at least two that are operational, but their details cannot be found anywhere online.

Without oversight and clear standards, there is no way of verifying how these child contact centres and services are operating, and no levers to close them down. Compounding this, the courts’ awareness of the judicial protocol on child contact is patchy, so inappropriate referrals continue to be made.

The motivation behind this amendment is to ensure the safest environment in child contact cases, to allow regular contact between absent parents and children, and to ensure that appropriate safeguards are in place. All this amendment does is provide the Secretary of State with powers to specify regulations and delivery standards. We cannot let a Bill on domestic abuse proceed without ensuring the safeguarding of those children, already victims in family breakdown, in situations where abuse may be ongoing.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I will be brief. On the first point that my noble friend raised about evidence, I accept that people have done their best in the short time available. However, with respect, the points that I made about the high-level nature of that evidence stand. At the moment, we are not persuaded that there is a need to legislate in this area. On the second point about the loophole, I would be repeating what I said earlier. For the reasons that I set out, the position at the moment is that the use of unaccredited child services is rare. In circumstances where they are used by local authorities, that would be covered by their statutory duty under the Children Act. In those circumstances, we are not persuaded that the amendment is required or would even necessarily be effective.

[Baroness Finlay of Llandaff (CB) [V]]

I am most grateful to the Minister for his fulsome reply and for trying to get to grips with this issue, but I point out that it has been 14 years since the need for standards was originally raised. I did not mention some cases in my speech today because I have not been able to check them out in detail—we could not track down the details of the services—but I have names of services that I would be prepared to share in confidence with the Minister. I believe that there is evidence that this area is unregulated, that there is a gap and that children are at risk now, today. If we are dealing with domestic abuse, we must not leave children vulnerable. Therefore, I wish to test the opinion of the House.

--- Later in debate ---

Moved by

[Baroness Finlay of Llandaff]

23: Clause 55, page 35, line 30, at end insert “including, where necessary, alcohol and mental health support,”

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I declare my interest as chair of the Commission on Alcohol Harm. The commission received evidence from many who had first-hand experience of the relationship between alcohol and domestic abuse. As many noble Lords pointed out in Committee, there is a strong, if complex, relationship between alcohol and domestic abuse. The figure often quoted is that up to half of perpetrators have been drinking when an assault takes place. Alcohol also tends to make violence more serious, doubling the risk of severe violence and rape. Tragically, substance use is a factor in over half of intimate-partner homicides.

It is not only perpetrators who drink. Women who have experienced extensive physical and sexual violence are more likely to use alcohol or drugs harmfully than women who have not. They might do so in an attempt to self-medicate and cope with their experiences, or drink with their partner as a form of bonding. Substances may be part of the abuse itself, and perpetrators may use alcohol to control victims. ONS figures show that around 10% of those accessing domestic violence support services have an alcohol use need, many times higher than the rate for the general population. Around 6% have a drug use need and around 40% a mental health problem. Given the difficulties people with additional needs have in accessing domestic violence support, these figures may well underestimate the scale of the problem.

Indeed, survivors may have been forced to choose which of their needs they are able to get help with. Alcohol treatment is desperately underfunded, and there simply are not enough alcohol treatment services set up to help domestic abuse survivors. For example, female survivors of male violence may not feel able to receive treatment in a mixed space; yet less than half of local authorities in England and Wales have provision for women-only substance use services. Women may also find that their drinking can prevent them accessing a safe space, with some turned away from refuges due to drinking or drug use. Only about one-quarter of refuges in London, when asked the question, stated that they “always” or “often” accept women who use alcohol or other drugs.

Following a very constructive and productive meeting with the Minister last week, she has written reassuring me that this is a priority for the Government. She has agreed to address the issue of alcohol and domestic abuse in statutory guidance and in the domestic abuse strategy, which will set out a comprehensive framework for responding to and supporting victims. I welcome the Minister’s recognition of the seriousness of the problem and her attempts to resolve it. In her letter, she also set out the opportunities created by the new integrated care systems to allow for greater joined-up working between services to better support victims with the alcohol treatment they so often need urgently.

This urgency has increased during the Covid-19 pandemic, making it more important than ever for us to act now. During the first lockdown, visits to the UK’s national domestic abuse website surged by 950% by the end of May. NSPCC Wales reported average referrals for parental substance use to police and agencies were 72% higher in the 10 months to February 2021 than in the first three months of 2020. These figures are frightening, but they go only a small way to illustrate to your Lordships the scale of what people are experiencing right now. I am grateful to the Minister for her letter to the noble Lord, Lord Brooke of Alverthorpe, where she recognised the need for much better sobriety schemes, which we greatly appreciate, but I remind the House of the size of the problems.

I shall finish by sharing the words of a 15 year-old boy who contacted Childline. Speaking of his own experience, he said:

“I’m really scared of my dad, especially when he’s been drinking. Sometimes he gets really angry and throws things at my mum. It’s been getting worse since the coronavirus and I worry a lot. I have no idea what to do as I can’t escape because of the lockdown.”


I hope, therefore, that I will get an even warmer reception for this amendment than I received in the letter from the Minister, and I reserve my ability to divide the House on this very important issue pending the response I get. I beg to move.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I want to take a moment to support the noble Baroness, Lady Finlay of Llandaff, in her Amendment 23. I pay tribute to all her work in this field and to the other signatories to the amendment. I want to single out the noble Lord, Lord Brooke of Alverthorpe, with whom I had the privilege of serving on the ad hoc committee on the Licensing Act 2003.

Without any shadow of a doubt, as the noble Baroness, Lady Finlay, set out, domestic abuse is, unfortunately, aggravated and fuelled by alcohol and drug abuse. It behoves all of us to try to limit the damage done in these circumstances. I therefore hope that my noble friend the Minister will look favourably on the modest change to the wording of the Bill that is proposed here.

I know that Scotland has taken a lead, particularly on the unit pricing of alcohol. I initially had reservations about that until I heard the evidence we took on the ad hoc committee. It was always understood, and we concluded that we would press them, that the Government would come forward with unit pricing in Scotland. I think my noble friend the Minister would agree that it has led to a significant reduction in alcohol abuse.

With those few words, I lend Amendment 23 my support, and ask my noble friend to look favourably on the modest additional wording it proposes.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I am grateful to the Minister for the detail she has provided in her full reply. I understand from a previous conversation that the guidance to the Bill will be statutory, as will, therefore, the implementation of the many factors to be included in it that she listed in her response. I am also glad to hear that the review of my long-standing friend and colleague, Professor Dame Carol Black, will report soon. I have always held her in the highest regard and I am sure that her report will be very sound.

I recommend that all noble Lords recall that we need early intervention; otherwise the next generation to experience alcohol abuse will become alcohol abusers themselves. The link is horribly real and certainly well documented, and I appreciate the Minister saying that there will be no wrong door. The £25 million for programmes for perpetrators is welcome, but there is a lot of evidence to show that every £1 invested in local treatment services saves £3 in wider social costs. This is indeed a sound investment by the Government.

In the light of the full response I have received, I will withdraw my amendment. I am grateful to all noble Lords who have spoken for their strong support, both now and behind the scenes, for the amendment and the work being done. I hope that the Minister will take back to the Treasury the need to recognise the financial cost to the nation of alcohol-fuelled domestic violence. Measures such as minimum unit pricing, a differential duty on off-sales to decrease drinking at home—which would support pubs and restaurants—and stopping the promotion of alcohol close to checkouts in supermarkets are all needed to make her strategy to decrease alcohol-fuelled domestic violence as effective as she and I would hope. These issues do not come directly into the Bill, but they are of wider concern. In the meantime, I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

--- Later in debate ---

[Baroness Warwick of Undercliffe (Lab) [V]]

My Lords, I declare an interest as chair of the National Housing Federation, the trade body for housing associations.

I do not need to repeat the statistics so vividly described by my noble friend Lady Lister and others on the use of coercive control after separation. Suffice it to say that they are clear and troubling enough for the Government to acknowledge both that economic abuse is linked to physical safety and that something must be done swiftly to protect these women. I support all the points raised by my noble friend so powerfully in introducing this amendment; I also pay tribute to the noble Baronesses, Lady Campbell of Surbiton and Lady Grey-Thompson, whom I would have supported. I hope the Minister can respond positively to the dilemma in which they have so troublingly found themselves.

In my brief contribution I will highlight just three things, focusing on what further action is needed once the amendment is incorporated into the Bill and implemented. First, there has been in the past a missed opportunity to see patterns of behaviour which should have led to greater awareness of coercive control behaviours, so it is vital to create greater awareness and understanding of these patterns of behaviour and how economic abuse fits into them. That can be done only through training of professionals right across the police and criminal justice system. This has come up on other parts of the Bill, including very recently, and I hope the Minister will address it in her response.

Secondly, when legal aid is sought, survivors could be unfairly assessed as failing the means test due to money or assets they appear to own but which they are unable to access or control due to economic abuse. Will the Minister acknowledge this and undertake to refer it to her MoJ colleagues to ensure it is taken into account in the legal aid inquiry? In that context, I very much support Amendment 71 in the name of my noble friend Lord Kennedy.

Thirdly, the SEA charity, whose briefings on this—as every contributor to this debate has said—have been invaluable, highlights the inadequacy of data collection on controlling or coercive behaviours in both the Crime Survey of England and Wales and ONS reports. Can the Minister, in taking forward this legislation, undertake to ensure that this is brought to the attention of the relevant government department so as not to undermine the effectiveness of this excellent piece of legislation, which she has so ably steered through this House?

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, Amendment 45 is crucial and unreservedly welcome. It is awful to see someone subject to coercive control; to see how the woman—I have seen only women subject to it—is made mentally and physically ill by such passive-aggressive behaviour. Sometimes it is more active than passive. By adding her name to this amendment, the Minister has shown her understanding of this.

Amendments 46 and 47 are similarly essential. Coercive control can be very difficult to pick up under safeguarding. As the noble Baroness, Lady Jolly, stated, disability applies to those with profound learning difficulties as well as serious physical difficulties, but their communication difficulties can make it very hard to detect what is going on. As the noble Baroness, Lady Uddin, described, the terrible fear induced in the victim is something that feeds the controlling coercive behaviour from the abuser.

None of us wants to delay the Bill. I hope the Minister will take to heart and address the difficulties that my noble friends Lady Campbell of Surbiton and Lady Grey-Thompson have been put in, and will seek to ensure that the statutory guidance relating to the Bill recognises that there is true domestic violence occurring from personally connected intimate care providers.

[Baroness Burt of Solihull (LD)]

I am grateful to have the opportunity to speak. I was delighted to see the Minister’s name on Amendment 45 and the consequential Amendments 88, 89 and 96. That is three times that I have been delighted today so I do not quite know what is going on. I welcome the extension of “personally connected” in the context of coercive control to family members or people who have been in an intimate relationship, whether living together or not.

The noble Baroness, Lady Lister, talked about how important training for police and professionals is in the implementation phase. As several noble Lords have said, a lot of individuals who are being coercively controlled do not know or appreciate that fact. It is a bit like the story of the frog in the beaker where the water gets heated more and more, very gently, and the frog does not realise that it is trapped until it is too late. It really makes a difference if other people can recognise what is going on, perhaps even before the victim themselves.

Post-separation abuse is a terrible thing. Having thought that you had escaped the abuse but then realising that you are being dragged back and dragged down financially and emotionally takes a toll. We have heard a number of examples of just how awful that is, so I cannot say just how happy I am.

We have been pushing the boundaries somewhat regarding the definition of “personally connected” in several contexts. I will talk about disabled people in a second but, with regard to family members or people who have been in an intimate relationship, whether or not they are living together, I am glad that the Minister has listened. I am sure that is right, and the Bill will be stronger for it.

Amendments 46 and 47 extend the definition to the relationship between a disabled person and their carer. We had this discussion on Monday, so I will not repeat the arguments that were used then, but I was disappointed by the Minister’s response. The House showed its concerns and feelings, and I hope that the Minister takes them into account in her remarks, but also takes the opportunity to have another think before Third Reading and the Bill goes back to the House of Commons.

We strongly need disabled people to be heard. We heard strong arguments for this on Monday and tonight, not least from the noble Baroness, Lady Grey-Thompson. I hope that the Minister listens to them. I very much welcome Amendment 45.

--- Later in debate ---

[Lord Garnier (Con)]

My Lords, I co-signed and spoke in favour of this amendment when it was moved in Committee by the noble Lord, Lord Marks of Henley-on-Thames, and supported by the overwhelming majority of contributors to that debate. His arguments are as powerful today as they were in February. I join him in thanking my noble friends Lord Parkinson and Lady Penn for discussing the issue with us on Zoom since Committee. It was a helpful and useful meeting.

I explained in Committee—reasonably cogently, I hope—why this amendment would work both theoretically and practically as an addition to the criminal law and that, although not an exact replica, it is similar to laws in force in at least three other countries that adhere to the European Convention on Human Rights, namely Belgium, France and Luxembourg.

The Government raised two substantive arguments against the amendment in Committee. First, my noble friend Lord Parkinson of Whitely Bay said in his courteous response that a new offence criminalising controlling or coercive behaviour by persons providing psychotherapy or counselling services would alter the “dynamic” of a Bill specifically about domestic abuse and, further, would upset the Bill’s “architecture”. Secondly, my noble friend said that there were other remedies more suited to dealing with the issue such as registration with, or accreditation by, existing and respected professional bodies. Quacks and charlatans do not bother with accreditation; they do not bother with qualifications gained after years of study. But if accreditation is to have value, it needs to be underpinned by the force of the criminal law to deter the quacks and charlatans.

No doubt, requiring psychotherapists to be professionally qualified and accredited members of a professional body would enable well-motivated counsellors to gain standing and proper recognition. It already assists members of the medical and legal professions—such as the noble Baronesses, Lady Finlay and Lady Mallalieu, the noble Lords, Lord Marks and Lord Alderdice, and me—to be members of the royal societies, colleges or other bodies regulating our respective professions. It also, of course, assists our patients and clients.

More pertinently, however, it is a criminal offence under Section 49 of the Medical Act 1983—not just a breach of a regulation or professional etiquette—for someone wilfully and falsely to pretend to be, take or use the name or title of

“physician, doctor of medicine, licentiate in medicine and surgery, bachelor of medicine, surgeon, general practitioner or apothecary, or any name, title, addition or description implying that he is registered under any provision of this Act, or that he is recognised by law as a physician or surgeon or licentiate in medicine and surgery or a practitioner in medicine or an apothecary.”

A similar criminal offence is set out in Section 21 of the Solicitors Act 1974, and a man was recently jailed for over four years for a string of deception-related offences that included pretending to be a barrister by unlawfully carrying out what is known as a reserved legal activity.

My noble friend the Minister accepted the argument put by the noble Baroness, Lady Mallalieu, that as a country we have been slow to appreciate the scale of coercive behaviour. He further acknowledged that most noble Lords who supported this amendment in Committee had pointed to evidence and indeed to specific cases suggesting that fraudulent psychotherapists and counsellors were taking advantage of their position to supplant friends and families in the minds and affections of their clients for the purpose of turning them against those friends and families.

So far as worries about the Bill’s “dynamic” or “architecture” are concerned, one can accept or reject them depending on how urgently one thinks the problem needs to be addressed. I suggest that this is no more than a variation of the oft-repeated line that this or that amendment, while commendable in almost every respect, is being attached to the wrong Bill. The Minister told us in Committee that he did not want to be seen to be downplaying the seriousness of the issue, and of course I accept his word without question. It may well be that this amendment does not fit into the precise definition of domestic abuse within the particular relationships specified in the Bill, but as the noble Lord, Lord Marks, has just said, it is in order and it complies with its Long Title.

Like other amendments which have been accepted by the Government today, in my submission this amendment does not upset the Bill’s architecture. Looking at just two relatively recent Acts of Parliament, one is entitled to ask if the Government’s architectural analogy is a good one. The Criminal Justice Act 2003 deals with subjects as varied as search warrants, bail, cautions, disclosure, mode of trial, appeals, bad character evidence, sentencing and release on licence. The Policing and Crime Act 2009 covers subjects as diverse as the appointment of senior police officers, prostitution, selling alcohol to children, gang-related violence, confiscation of property and airport policing, among others. The architectural combination of the Baroque, the Romanesque and the Gothic in the cathedral of Santiago de Compostela has a more cohesive theme than many Acts of Parliament. If that building has stood for many centuries, I suspect that this Bill can accommodate this amendment.

Many of our criminal law statutes are Christmas trees on to which people hang the latest fad, but this amendment has been carefully thought about. It is necessary and it is timely. I would not want it to be thought that the Government’s desire to get this right through further cautious study was simply an excuse for delay and the cultivation of long grass.

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, we discussed in Committee that there are no laws against anyone operating as a therapist, psychotherapist or counsellor. Cheap online courses allow people to cheat to complete them, leading to qualifications that are often meaningless. The Health and Care Professions Council is a statutory regulator for practitioner psychologists in the UK. “Registered psychologist” and “practitioner psychologist” are protected titles, as are the specialist titles “clinical psychologist”, “counselling psychologist”, “health psychologist” and others. The title “chartered psychologist” is also protected by statutory regulation, meaning that a psychologist is a chartered member of the British Psychological Society, but not necessarily registered with the Health and Care Professions Council. However, the title of “psychologist” by itself is not protected, meaning that if psychologists do not use one of the protected titles, they can offer their psychological services without any regulation. The public have no idea that these people are not regulated in any way; even if serious concerns are expressed or complaints raised about them, they remain immune from investigation because they are not registered.

These people can wreak huge harm and havoc in other people’s lives. They can drain them of all their finances, create false assertions, produce false evidence and exploit them, driving them away from family members who love them and would support them, and trapping them in a cycle of ever more dangerous psychological dependency. Yet, the victims of such charlatan practitioners have no redress. That is why this amendment is needed and I strongly support it.

[Lord Alderdice (LD) [V]]

My Lords, in addition to the powerful arguments that have already been brought by noble friends, I have a few more. The first question is whether the amendment is appropriate to a Bill about domestic abuse. Few would argue that the victims of domestic abuse are not entitled to seek emotional and psychological help and support. The problem is that, either when they are undergoing the abuse or when they are trying to put their lives back together after a period as a victim of abuse, they are likely to seek psychological help.

If they can access psychotherapists, psychologists or others through the health service, there is a degree of protection. Even in a context where there is no statutory registration of psychotherapists working within the health service, as is the case, there is a degree of protection for the patient or client. But the majority of psychotherapists do not work in the health service; they work in private practice, community facilities or voluntary organisations, but not in the health service.

This produces two kinds of vulnerability. First, as we have already discussed, the victims themselves are open to be abused by those who claim to be psychotherapists, but who have a malign influence. I do not think I would have to go terribly far in your Lordships’ House to find uncertainty or confusion about what is a psychiatrist, psychologist, psychotherapist or similar title. One could hardly expect vulnerable victims to be more able to parse and find an appropriately trained person.

There is a further complexity, which has been made worse by Covid. Many perfectly reasonable and helpful people who are not registered psychotherapists and, in some cases, are not registered with any organisation never mind statutorily are working in quite isolated situations themselves now. I have talked to some psychotherapist colleagues, who are working from morning until night, every day of the week, on Zoom, with very vulnerable people. They are isolated themselves, socially and professionally, so their relationships with their patients and clients begin to have a degree of dependency. These people are not even professionally protected so, apart from the malign individual who consciously exploits the victim of domestic abuse, either currently or after their victimhood, it is not hard to see how a person who is not particularly malign may find themselves behaving in that way, for a series of psychological reasons.

What is troubling is that the knowledge of this has been around for a long time. In 1971, the Government commissioned and received a report from Sir John Foster. It was stimulated by concern about the Church of Scientology, but it looked at people who used coercive or controlling behaviour when providing psychotherapy or counselling services under that institution. The recommendation was that there needed to be registration —50 years ago. In 1978, Paul Sieghart produced a report with the same recommendations and, in 1981, Graham Bright produced a Private Member’s Bill in the other place based on Paul Sieghart’s report to register psychotherapy.

When I was appointed as the first consultant psychiatrist in psychotherapy in Ireland, north or south, I started training in psychotherapy through the medical faculty at Queen’s University Belfast, not just for those who were medically qualified but for others who were not, to enable them to become properly qualified. However, I quickly discovered that there was lots of what I call “wild psychotherapy”, so I talked to the Department of Health and Social Services, which agreed and provided some funds. We appointed one of my staff, Gillian Rodgers, to do a report, and she presented it to the department in May 1995—nothing was done.

Learning Disabilities: Child Trust Funds

Baroness Finlay of Llandaff Excerpts

Thursday 11th February 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, the reason is that it is not for the Ministry of Justice to give its blessing to private sector schemes and to say whether they do or do not comply with the relevant legislation. That legislation is important: it is there to protect people. If the private sector wants to put in a scheme, that is a matter for the private sector. So far as my department is concerned, we need to make sure, so far as we can, that the court rules and procedures are appropriate, proportionate and accessible.

[Baroness Finlay of Llandaff (CB) [V]]

I declare an interest as chair of the National Mental Capacity Forum. As Covid lockdown difficulties for the Court of Protection have now led to delays of around 20 weeks for uncontested applications, can the Government confirm that forms marked “Urgent” are prioritised and digital options are being explored by the court, to improve access while retaining the important protections from the MCA against exploitation or misuse of funds?

Domestic Abuse Bill

Baroness Finlay of Llandaff Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 8th February 2021 Lords Chamber

[Baroness Mallalieu (Lab) [V]]

My Lords, on Wednesday, both the noble Lord, Lord Marks, and the noble and learned Lord, Lord Garnier, put the detailed legal arguments for this amendment, and I have added my name to it as well. I shall not try to repeat what they said, but instead will say something that has, perhaps, been said by all bar the last speaker in this debate, which is that I strongly support this amendment.

As a nation we have been very slow to recognise the way in which the human mind can be coerced and controlled by unscrupulous people without the use of violence. I am not sure that until “The Archers” featured Rob Titchener in its storyline about marital coercive control, and gripped the nation with it, many of us would have been able to describe or recognise it on our own doorsteps. We have been even slower as a nation to recognise and enact legislation to protect those who are its victims in another category, namely those whose vulnerability, whether it is emotional or psychological, renders them a target for the bogus counsellors, the amateur psychotherapists and the self-styled life coaches, usually bent on profit, who may appear to be well intentioned but still often inflict real harm and damage on their so-called patients and their families.

This is not a new phenomenon. Unhappy people often search for explanations and cures, and the unscrupulous offer false promises of help and future happiness. They frequently obtain substantial amounts of money from them and very often, using transference, seek to replace contact with parents and families, sometimes by implanting false memories, which in turn often sever domestic relationships for life. As a pupil barrister in 1970s, I remember cases involving the Scientologists. I know the noble and learned Lord, Lord Garnier, remembers cases involving the Moonies. Domestic alienation was a common feature then, 50 years ago, as it is today with some of the quasi-healers operating in this country right now with impunity.

I personally am aware of one family whose adult daughter fell into the hands of just such people in London. They were paid substantial sums of money by her. Their methods involved repeated “counselling” sessions lasting six or seven hours at a stretch during which, exhausted, she was persuaded to sever all contact with her parents and her family. It took some years for them even to find her, and eventually get her back. She was one of the lucky ones. These people are untrained, unqualified, unregulated and damaging to the vulnerable on whom they prey. Yet our present law currently provides no adequate protection from their activities.

Our understanding and recognition of mental illness is, thankfully, advancing rapidly today. Yet we are only beginning to understand more about how the power of words, whether they are spoken directly or via the internet, can convince an otherwise intelligent adult to become a jihadi or embrace a coronavirus conspiracy theory and, in so doing, often damage and even destroy their closest domestic relationships. On this form of abuse, we have looked the other way for far too long. We have given protection, as the noble and learned Lord, Lord Garnier, said, to other vulnerable categories by law—whether they are children, the mentally ill or the elderly—and it is now surely time to add those who are at the mercy of these bogus healers.

The Government argument is often, “Yes, but it’s not right in this Bill”—but I do not see a better Bill on the horizon to deal with this particular lacuna in the law. I totally understand that members of a Bill team that has produced an excellent Bill, as this team has, will always be reluctant to look at a new amendment that may, they fear, perhaps alter the architecture of the Bill on which they have worked so painstakingly. However, I do not see any other way, in the near future, of tackling something that I believe has not only been overlooked for far too long but I suspect is likely to grow, particularly in these times when so many young people are searching for an explanation of why their lives have changed so drastically from their expectations.

I hope that the Minister will agree to take this amendment away, have a look at it with his Bill team and, hopefully, come back with a solution. If he did so, I believe that he would have support across the whole House.

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, this important amendment seeks to include controlling and coercive behaviour by a psychotherapist or counsellor in the Bill.

The noble Lord, Lord Marks, and the noble and learned Lord, Lord Garnier, clearly laid out the reality of very unscrupulous practices. When working as they should, psychotherapists are generally trained to work over a long period of time with more complicated mental health issues, whereas counsellors are generally trained to work in the shorter term with life issues such as bereavement and relationships—although in practice there is huge overlap.

A problem arises for the person whose world is in tatters, who feels at sea and is desperate for some help. How do they have any idea whether the person they have been referred to or had suggested to them to see is a charismatic charlatan or an excellent counsellor who will help them to restabilise their life? In this process, they are even more vulnerable than prior to the consultation—a vulnerability that is exploited by the unscrupulous and by sects, as we have heard. They go to speak to a stranger, often paying for the privilege, and as they tell their story, they reveal their vulnerabilities and are often retraumatised by remembering the abuse as they relate events. This is psychological intimacy, and the person is certainly profoundly psychologically connected to their victim.

As we have heard, only the titles “clinical psychologist” and “counselling psychologist” are professionally restricted and must be registered with the Health and Care Professions Council. By contrast, the terms “therapist”, “psychotherapist” and “counsellor” are not protected; courses in these subjects are unregulated and vary very widely, which leaves unregistered and poorly trained people wide open to engaging in controlling and coercive behaviours.

Reputable employers providing counselling services, such as Women’s Aid, will expect an employee to have undertaken professional training. Often membership of a relevant professional body, such as the British Association for Counselling and Psychotherapy, the UK Council for Psychotherapy or the National Counselling Society, is required to ensure continuing professional development and ongoing supervision to enhance practice. All these bodies stipulate certain standards and ethical codes.

Proposed new subsections (1) and (2) set out what constitutes an offence and emphasise that controlling and coercive behaviour can be both physical and psychological. However, given the lack of regulation, I wonder whether this important amendment sets too high a bar, even for registered and well-trained professionals.

Proposed new subsection (4) raises a concern for me, but I am sure that it can be sorted out. It states that it is a defence to show that, when engaging in the behaviour in question, the psychotherapist or counsellor was acting in the person’s best interests. Here I declare my interest as chair of the National Mental Capacity Forum. As your Lordships know only too well, the term “best interests” is laid out in the Mental Capacity Act.

If a person has capacity to consent freely to whatever is proposed, there seems no rationale to make a best interests decision for them, and no form of controlling or coercive behaviour would be in their best interests. The person must have had the capacity to be able to consent to the counselling session. If the person lacks capacity to consent to a particular decision at a particular time, that decision should be deferred until they regain capacity for that decision. If restrictions of any sort have to be put in place in a person’s best interests because they cannot consent to the proposal, a formal best interests decision-making process, as laid out in statute, must be undertaken. A deprivation of liberty safeguard procedure or safeguarding may be required. I am worried that this defence, as written in the amendment, actually lessens the safeguards of a vulnerable person. I am sure that that is not what it aims to do.

--- Later in debate ---

[Lord Randall of Uxbridge (Con) [V]]

My Lords, it is always a great pleasure to follow my noble friend Lord Young of Cookham, whose amendment I support. I will speak to my Amendment 147—I am grateful to the noble Lord, Lord Kennedy of Southwark, for adding his name to it. I also thank Women’s Aid for pointing out the problem that I aim to solve with this amendment.

Women and men experiencing domestic abuse face long-term and often lifelong risks from the perpetrator. Domestic abuse does not end when a relationship ends and research has consistently found that women are at significantly high risk when leaving the relationship. Often a woman can access safety only when she moves far away from the perpetrator. However, in recent years, Women’s Aid has seen a worrying trend in local authorities introducing “local connection” rules to tenders, with local refuges being capped on the number of non-local women whom they are able to accept. The very existence of refuges depends on these services’ ability to accept women from out of the area, as women will often need to flee from their local area to be safe. Data from Women’s Aid’s annual survey in 2017 shows that over two-thirds of women in a refuge on one day crossed local authority boundaries to access it. Women often cannot access a refuge in their local area due to the severe and ongoing risks faced from a perpetrator.

Women fleeing to a refuge rely on these services being able to accept them and their children from outside their local area, with no “local connection”. Government guidance makes it clear that locality caps and restrictions should not be written into tenders or contracts relating to domestic abuse and violence against women and girls. However, this guidance is not consistently applied across England, leading to something of a postcode lottery of access to refuges and a major risk to the safe operation of this national network of services.

Similarly, there are real concerns about the inconsistencies between local authorities across England in meeting their obligations to house those from another area fleeing domestic abuse. I agree with Women’s Aid and many other NGOs that the ban on “local connection” rules and residency requirements must extend to wider homelessness duties and housing allocations, to ensure that all survivors can access safe housing.

Homelessness teams refusing to support women who are escaping abuse because they are not from their local area must also be included. Nearly a fifth of women supported by Women’s Aid’s No Woman Turned Away project in 2016-17 were prevented from making a valid homeless application on the grounds of domestic abuse for reasons that included having no local connection to the area, with local housing teams deprioritising survivors who do not have a local connection within their housing allocation policy.

Guidance from the Ministry of Housing, Communities and Local Government currently encourages

“all local authorities to exempt from their residency requirements those who are living in a refuge or other form of safe temporary accommodation in their district having escaped domestic abuse in another local authority area.”

However, this is not a requirement and does not apply to women who have not escaped into a refuge or other form of temporary accommodation. Local authorities often use blanket residency tests in allocation schemes, without accounting for exceptional circumstances, such as for a woman fleeing domestic abuse.

The Government already require local authorities to make exemptions from local connection requirements or residency tests for certain groups, including for members of the Armed Forces and those seeking to move for work. My Amendment 147 would include a specific bar on local authorities from imposing local connection restrictions on survivors of domestic abuse when accessing refuges and, importantly, longer-term housing. This is needed to sit alongside the government department’s proposed statutory duty on local authorities to fund support in refuges and other forms of safe accommodation. This will ensure that all women and children fleeing domestic abuse can access safe accommodation where and when they need to.

Women’s Aid has given me a real example that highlights the urgency and importance of why this amendment is needed:

“A has experienced domestic abuse for the last 10 years from two partners as well as witnessing domestic abuse perpetrated by her father against her mother growing up. She has been diagnosed with depression, anxiety and PTSD. After fleeing her abusive partner with three children, she moved into a refuge in a London borough to be near her mother, who was her main source of support. She was only able to find a refuge in a different borough to her mother, and after six months she was required to leave that refuge. She presented to the borough her mother lives in, but she was informed she was not entitled to be housed there as she did not have a local connection. The local authority stated she had a local connection to the borough she had been living in for six months. This is despite her being a survivor of domestic abuse, having no option other than to live in the first borough where a refuge space was available at the time of fleeing and the fact that she felt at risk from the perpetrator’s extended networks there.


The borough her mother lived in then housed A and her three children, who were all under 14, in one room in mixed-sex temporary accommodation. This was extremely distressing for her. She describes feeling retraumatised from the experience of being forced to live alongside men she did not know. She also felt scared for her children, who did not feel safe in the mixed-sex hostel. The room was highly unsuitable as the entire family lived in it and were required to cook in it, which is of course unsafe for a toddler. Another child had ADHD, so A struggled to provide them with any quiet time and appropriate support. This experience also exacerbated her PTSD, depression and anxiety, and she reported feeling low and stressed regularly due to feeling unsafe in the accommodation. She is now having to live there indefinitely while the boroughs have been assigned an arbiter to decide who has a duty.”


I would also like this to apply to victims of modern-day slavery who can equally fall foul of this problem, as I, as a deputy chairman of the Human Trafficking Foundation, am only too aware. While I am aware that this Bill deals only with domestic abuse, I would ask my noble friend to look into this, whether people are the victims of domestic abuse or, indeed, of modern slavery. I ask that this should be done because housing has to be looked at seriously as a way of addressing the abuse that these victims suffer.

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I wish to speak to Amendment 146A, to which I have added my name. We know about the strong link between domestic abuse and homelessness, with access to housing often presenting as a critical barrier to survivors fleeing abuse. For example, in Wales, between 2018 and 2019, nearly 2,500 households were provided with assistance by their local authorities following homelessness caused by the breakdown of a relationship with a partner. Almost half of those relationship breakdowns were violent. In May 2020, the Government listened to the expertise of organisations across the domestic abuse and homelessness sectors, and the views of women who had experienced domestic abuse. In response, the Government amended this Bill to extend automatic priority-need status for housing to survivors of domestic abuse in England, as was already the case in Wales. This welcome amendment will provide a vital lifeline for many survivors of domestic abuse.

In Wales in 2018-19, over 300 households were owed a duty to secure settled accommodation as they were in priority need after fleeing domestic violence or being threatened with violence. However, organisations across the domestic abuse and homeless sectors have raised concerns that the government amendments will not adequately guarantee clear access to housing for all survivors of domestic abuse. Critically, it will not enable other members of a household to apply for this assistance on the survivor’s behalf, as is the case in other areas of homelessness legislation. For example, when a woman is pregnant, a partner is allowed to make the application for them. This sounds like a small distinction, but front-line services that are supporting survivors every day know that it is not always safe for survivors of abuse to make an application for homelessness assistance themselves. Allowing other household members to be the lead applicant provides a vital safeguarding mechanism which could give a vulnerable survivor a route to safety when they need it most.

--- Later in debate ---

[Lord Ramsbotham (CB) [V]]

My Lords, in moving Amendment 155 and speaking to Amendment 156 standing in my name, I must declare two interests: first, I am chairman of the Criminal Justice and Acquired Brain Injury Interest Group; secondly, I am a vice-chairman of the All-Party Parliamentary Group for Acquired Brain Injury.

The chairman of the APPG, Chris Bryant MP, unsuccessfully tabled these two amendments in Committee in the other place. Since then, he and I have had a discussion with Victoria Atkins MP, Minister for Safeguarding, during which she assured us that the Government recognised the impact of acquired brain injury on victims of domestic abuse. Since then, she has forwarded a copy of the draft guidance to be issued to the police on domestic abuse protection notices and orders. Both are mentioned in Amendment 155, which includes referral to an independent domestic violence advocate, who can advise a victim on a range of issues, including healthcare. That has been forwarded to noble Lords by the noble Baroness, Lady Williams of Trafford.

These two amendments are linked in that both are to do with assessing whether a victim of domestic abuse is suffering from an acquired brain injury. I will speak first to Amendment 156, which covers prisoner victims of domestic abuse. It was the assessment of their needs conducted by the Disabilities Trust at HMP Drake Hall, a women’s prison in Staffordshire, that first alerted us to the added problems faced by victims suffering from an acquired brain injury.

The trust, which is a member of the interest group that I chair, had carried out an assessment of head injury at HMP Leeds, finding that over 40% of male prisoners were suffering from an acquired brain injury that affected their behaviour. The trust introduced a link worker scheme, in which someone who had worked with a prisoner while he was in prison supported him for six months when he was released into the community. The trust then carried out a similar assessment at HMYOI Wetherby, finding that a similar percentage of young offenders were suffering from an acquired brain injury.

Turning to women, the Ministry of Justice funded the trust to conduct a two-year specialist link worker scheme at Drake Hall. The trust found that 64% of the prisoners reported having suffered a brain injury, 98% of which were traumatic. Forty per cent of those suffering from a traumatic injury had a mental health diagnosis, and 62% of the women reported that they had received their injury during domestic abuse. For some, this was the first realisation that the injury was the cause of their behavioural symptoms.

In that connection, I have mentioned before in this House my disappointment that Theresa May, when Prime Minister, dropped the prisons part of David Cameron’s Prisons and Courts Bill. A number of us had hoped to use it to make statutory certain initial assessments on being received into prison, including an assessment of head injury. I hope that this Bill will provide the opportunity to make that good.

We have also corresponded with Alex Chalk MP at the Ministry of Justice regarding the follow-up to the Disabilities Trust report on Drake Hall. He confirmed that work was under way to improve the identification of individuals with an acquired brain injury and ensure that prison and probation staff were better informed and trained to understand and support the behavioural challenges of those with an acquired brain injury.

I shall move on, or rather backwards, to Amendment 155. In addition to the draft guidance for the police about domestic abuse protection notices and orders, I should draw attention to the inclusion of a time factor. Early assessment is of the essence in understanding the effects of an acquired brain injury no less for the victims than for those responsible for treating them. I beg to move.

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, the noble Lord, Lord Ramsbotham, has raised an important issue and outlined the size of the problem. Brain injury can arise from many different causes such as violent trauma, lack of oxygen to the brain or self-medication with alcohol and drugs. Sadly, brain injury is in large part irreversible, although sometimes the brain has the ability to relearn under intense rehabilitation, which is why rehabilitation services are so important.

One can see the motivation behind the amendment, but I fear that it may be difficult to have it in the Bill. In acute head injury, haemorrhage, usually a subdural haematoma, needs to be detected rapidly and the clot removed neurosurgically. If missed, the injury may become a chronic subdural as the clot acts like a wick, drawing fluid into it so that it slowly expands in the fixed box that the skull provides.

The other main category is that of repeated impact injury, sometimes associated with episodes of concussion as classically seen in boxers, which can lead to dementia. The part of the brain that is damaged determines the clinical signs exhibited. If the frontal lobes or some of the main nuclei of the brain are damaged, there can be profound personality and behavioural changes, while in others, speech and movement are affected. It can be very variable. Sadly, although supportive care can help a person to cope with deteriorating brain function and slow its effect, it is not reversible.

A possible difficulty with the amendment is that it requires a two-week timeframe for assessment, given that there are already waiting lists for MRI machine time for those with symptoms indicating brain pathology, such as cancers that need urgent treatment. Awareness of head injury is gained first and foremost from the patient history, followed by appropriate physical examination, after which further investigations may or may not be indicated. It is the history of the injury and the clinical signs that may indicate brain injury; the screening itself can establish only that the findings and type of injury described are, on the balance of probabilities, likely to be causally linked. This well-motivated amendment should raise awareness of head injury so that women are asked about the type of injury, including how it happened and when. A high index of suspicion of head injury is needed, but I fear that the amendment as worded would not be workable in practice.

[Baroness Burt of Solihull (LD)]

I support the amendments in the name of the noble Lord, Lord Ramsbotham, which he spoke to so convincingly. Amendment 155 deals with screening for traumatic brain injury for female domestic abuse victims who choose to have it within two weeks of a domestic abuse protection notice or order, or when the abuser has been charged. This should provide valuable evidence of abuse for the court and possibly a diagnosis that could help health authorities to treat the injuries that have arisen both physically and mentally. We heard from the noble Baroness, Lady Finlay, about the harm to victims that acquired brain injury can cause; they are complex and worrying.

Amendment 156 relates to female prisoners. As the noble Lord, Lord Ramsbotham, confirmed, many prisoners of the male variety have been knocked around and may well have brain injuries, although I would suggest that that does not happen very often as a result of domestic abuse.

As we have been told, the amendment is based on research by the Disabilities Trust which shows that nearly two-thirds of offenders at Drake Hall had had a brain injury, of whom 62% claimed that the injury was a result of domestic abuse. Of those diagnosed as having a brain injury, nearly all of them had suffered traumatic brain injury, potentially leading to very serious health consequences, as we have heard.

The amendment provides for all female prisoners to be screened within two weeks of starting their sentence. While they are inside, remedial treatment can be started, I hope, although I accept the very informed and concerning comments of the noble Baroness, Lady Finlay.

Right to Die

Baroness Finlay of Llandaff Excerpts

Thursday 14th July 2016 Lords Chamber

[Lord Faulks]

The noble and learned Lord will not be surprised that I am not able to give any announcement to the effect that there should be some sort of commission at this stage, but clearly there remains great concern. This is a very difficult issue. Polling indicates a move towards the approach exemplified by the noble and learned Lord’s Bill. No doubt any Government, of whatever hue, will have in mind what the public want.

[Baroness Finlay of Llandaff (CB)]

Do the Government recognise that, apart from the defeat of the Bill in the House of Commons, the BMA has undertaken an extensive study of end-of-life care? I declare an interest as a former president of the BMA and as someone involved in palliative care. The study showed that doctors do not want to be involved in this because they see it as unsafe. A survey undertaken showed that only one in seven GPs is prepared to be involved in assisted suicide, physician-assisted suicide or euthanasia and that, when the public heard more about what was involved, support decreased so that it became equipoised? Overall, there was objection from doctors, which was reinforced recently at the BMA annual representative meeting.

[Lord Faulks]

The House and I am aware of that and of the noble Baroness’s particular expertise in this area.

Prison Safety

Baroness Finlay of Llandaff Excerpts

Tuesday 3rd May 2016 Lords Chamber

[Lord Faulks]

The prison population is of course a feature of the sentences passed by judges. We are as anxious as anyone else to reduce that prison population in a way that is consistent with the safety of the population and that respects the sentences that have been passed. I have already answered the question about increasing prison staff. As to psychoactive substances, we are world leaders in what we are doing to track the ingestion of these substances. We are trying a test to detect them in 34 different prisons. We hope, when that is proved successful, to roll it out through the prison estate, so that we have an offence and a test which should get this under control.

[Baroness Finlay of Llandaff (CB)]

My Lords, what is the Government’s policy in relation to terminally-ill prisoners and the delegated authority of the governor, particularly for remand prisoners, who are innocent until proven guilty? If they are terminally ill, they risk dying in the prison sick bay rather than spending their last days and weeks at home prior to a trial.

[Lord Faulks]

All prisons, whether remand prisons or others, should have in place appropriate procedures for supporting prisoners in that condition. There should be appropriate arrangements for palliative care. Prisoners should have contact with their families and they should be advised, where necessary, of the possibility of compassionate release—either permanent release or release for particular events. This is a matter of importance and I will be sure to convey the noble Baroness’s concern.

Mental Capacity Act 2005 (Select Committee Report)

Baroness Finlay of Llandaff Excerpts

Tuesday 10th March 2015 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, this important report shows that the laudable principles of the Mental Capacity Act have clearly not been realised as was hoped. I will focus on a few failures of the rollout in routine NHS care, particularly in relation to advance decisions to refuse treatment, advance statements of wishes and the issues around best interest decisions. I have a Question for Short Debate on DoLS next week, which this debate will inform.

The Government’s response and Box 1 of the excellent post-legislative scrutiny report both highlight the underlying principles for the purposes of the Act. They are clearly written, and when the Bill was going through this House they seemed clear. However, misunderstandings have continued, with a failure to acknowledge that mental capacity is decision and time specific, and frequently fluctuates in those who are seriously ill and undergoing treatment. Indeed, even small doses of commonly taken medication can sometimes alter and distort a person’s thinking.

One difficulty is that healthcare professionals are not trained to assess capacity over time. There is a risk-averse culture across the NHS, which leads staff such as nurses and social workers in particular to be fearful of assessing capacity in case their decision is subsequently tested or challenged. It becomes easier to delay or defer or say that it is somebody else’s responsibility, even though the Act very clearly states that the healthcare or social care professional with the patient should consider and act to enhance capacity for the particular decision to be taken.

Why have expectations not been met? Perhaps it is partly through failure to deliver effective training. I have been involved in teaching medical postgraduates about the Mental Capacity Act and participated in training programmes run by others for health and social care professionals. I have been repeatedly struck by the ability of trainers to make this ever more complicated. Then the principle of empowerment of the individual becomes lost, as risk-averse staff excessively focus on process and on the duty to protect. We know from other aspects of healthcare that simple messages are effective, while complex messages create muddle, yet many of these training programmes seem inordinately complex. Trainees often seem to have a patchy understanding of the principles and keep searching for a tick-box type of framework, because they are risk averse; the culture around risk aversion has sapped their confidence in their own ability to assess, and they hesitate to enable others to meet the patient’s needs and wishes, particularly when these may seem unusual or could be classified as possibly a competent but unwise decision. The requirement to take all practical steps to help a person to take a decision are often inadequately attended to, so someone is labelled as lacking capacity when the decision could be deferred until acute delirium is resolved, for example, and even a hearing aid repaired.

I turn to the issue of advance decisions to refuse treatment. The terminology is indeed confusing, as the report highlights. The term “advance directives” is dangerous, because a person cannot direct somebody to do something to them at some time in future should they lose capacity. For example, a person with cancer cannot direct that they will have radiotherapy or neurosurgery in the event of getting a brain metastasis, but they may state in advance of the event of that happening they would not want surgery or another specific treatment. In other words, they can refuse treatment in advance. Perhaps the shorthand should be “advance refusals”, not the misleading terminology of “advance directives” or “living wills”, or whatever.

The principle of an advance refusal underpins “Do not attempt cardiopulmonary resuscitation” and also can underpin good care planning. A person may not want CPR, but simply to say “Do not attempt resuscitation” cannot be considered valid, because it is so non-specific that the clinicians cannot be held by law to withhold absolutely everything unless the documentation states what that absolutely everything is. Is it fluids in the event of dehydration, blood in the event of a massive haemorrhage, or antibiotics in the event of sepsis, and so on? All are resuscitative measures.

In Wales, our new national DNACPR policy will ensure that the patient has a copy of the form and that one form is used across all care settings, in line with the spirit of enforceable advance decisions to refuse treatment. An advance refusal must also be included in the electronic patient record as part of their care plan and must be available to everyone in hours and out of hours who might be involved in a patient decision. For example, an ambulance crew must know of a DNACPR decision when they are on their way to respond to a call. That is how it will be possible to avoid the distressing situation when an ambulance crew feels that it has to attempt CPR while the family are objecting.

Many people are fearful of heroic measures being undertaken in the event of them collapsing in the street, and I have explored whether a medic-alert bracelet or pendant might be a way of a person carrying their DNACPR policy with them. However, until its validity can be assured, there is little appetite for this idea. Advance statements of wishes were included in the Act, thanks to the tireless efforts of the noble Baroness, Lady Barker, who is speaking after me. She rightly argued for equipoise around advance decisions, and it is these advance statements of wishes that have formed the basis of good individualised care plans.

In my closing time, I want to deal with best interest decisions, which are poorly understood. As the report highlights, there is confusion between best interest decisions and clinical decisions; families do not understand why they are not a proxy decision-maker automatically, particularly as they will be asked to consent to organ donation, for example, after a person’s death. It is striking how often families want more intervention and treatment, not less, when end-of-life decisions have to be made, and how many times they have a complete misunderstanding of what is going on.

One difficulty often for patients and their families is lack of clarity over who exactly is in charge of care—in other words, which clinician at the end of the day takes the decision. I hope the initiative of the Royal College of Physicians of having the consultant’s name over the bed will help deal with this. It is important for all the disciplines in the clinical team to recognise that, ultimately, that one consultant will carry the can when a best interest decision has to be made and will be answerable for it.

As my colleague, Dr Regnard, who gave evidence to the committee, argued, a central role of this Act is when decision-making must determine best interests, as distinct from best clinical practice judgments. A best interest decision must be in the interests of that person and, when in doubt, there is a principle of default to life. Indeed, when somebody is dead they are no longer a person. Death is inevitable for us all, but as a corpse we have no personal interests. It was because of the anxiety over what happens if somebody is brought into an emergency department, and their family, or another person, come in waving an advance decision to refuse treatment and the inability to determine its validity, that we felt when the legislation was going through that the ultimate default to life was the safest option.

There is ongoing tension between safeguarding and empowering. There is an ongoing tension between confidentiality and openly discussing issues with people important to the person who has lost capacity for one or more decisions. I would suggest that we need to roll out clear straightforward messages across health and social care if we are to clear the current fog that surrounds this well intentioned and laudable piece of 2005 legislation.

--- Later in debate ---

[Baroness Warnock (CB)]

My Lords, the Government are right in their response to insist that the Mental Capacity Act is innovative, in that at the heart of the Act lies the so-called empowerment ethic. This is entailed in principle (3) of the Act, which states:

“A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”.

This suggests that it is recognised that mental capacity, as my noble friend Lady Finlay said, is fluctuating and depends on when the person is being assessed. But when the time comes that a decision has to be made on a person’s behalf, then principle (5) comes into operation—namely, that the decision must be made “in his best interests”. Here, like my noble friend Lady Finlay, I find the troubles really begin.

The Government apparently agreed with the committee that more social workers principally—but other people as well—needed to be trained to be assessors of best interest. Of course, this is very difficult because, even with the best training in the world, to make a determination of somebody’s best interest is to make a value judgment; and whatever the training, it remains true that the values of the person making the determination of best interest may be different from those of the person whose interest is in question. For example, it is perfectly possible that the person who is the trained assessor of best interest may think that it is always, or nearly always, in the best interest of a patient who is incompetent to stay alive. On the other hand, the patient himself, if he had been able to make a decision, may have disagreed with that and may have preferred to be allowed to die sooner rather than to live on in a state of incapacity, humiliation, distress and, of course, pain.

It cannot be overemphasised how slippery and evasive the idea of best interest actually is, and lawyers have long disputed—certainly since the Bland case, and probably before—what actually counts as best interest and whether, in the case of Bland, for example, he could be said to have had any interest at all, being in a permanent vegetative state. This is a huge difficulty that really cannot be brushed aside. We need more trained people. The notion of best interest must be addressed in a different way. This is what makes the question of advance decisions—although I infinitely prefer the new title that my noble friend suggested—a matter of enormous importance. Therefore, the question of so-called advance directives is central to the interpretation of the Act and what the Government propose next to do.

It is not only the public at large who are ignorant of, and therefore careless of, making such advance directives but, disgracefully, the medical profession and other professionals who will be involved with people trying to make such decisions. It is also true that these professionals, including doctors, are unwilling to discuss any such matter. I remember the acute embarrassment of my own then GP when I asked him to keep a copy of the living will, as it was then called, that I had made. He did not want to think about it.

In their response the Government were right to say that the royal colleges have a great part to play, particularly the Royal College of General Practitioners. The college will not like being told what it ought to do, but it has a duty to influence all GPs to keep in their surgeries information about how to make such an advance decision. This is genuinely a matter of urgency because, whatever the status is thought to be of an advance decision, it must be taken into account, at the very least, if it has been made properly, if it seems to be applicable and, most important, if it is known at the time of the patient’s deterioration, or first entry into hospital or care home, that he or she has made such a decision.

This is part of the difficulty. There must be an easily accessible register which shows who has or has not made such a decision. As my noble friend suggested, there must of course be a way in which the person, whatever his capacity, can show that he has made such a decision. Therefore one needs something like a donor card or a bracelet that he can wear to say that he genuinely has made such a decision. This will have to be formalised so that it is known to be genuine, and this will be backed up by the register. These matters are of enormous importance because the question of the early, well formed wishes of the person under consideration must be taken into account. After all, this is the heart of the Mental Capacity Act.

It is a rather fiddly little reform that must be taken and GPs are, whether they like it or not, at the heart of it. After all, their surgeries are absolutely stuffed with leaflets and instructions about what to do if you have got diabetes or a mad mother and so on, but not anything about how to record your wishes about your own care and your own decision to refuse treatment in certain circumstances. There is nothing about that at all and I honestly believe that most people do not know that they have, first, a right to refuse treatment and, secondly, that there is a way of making this known. This is the most important issue that the Government must address through general practitioners.

I entirely support what my noble and learned friend Lord Hardie said about the disappointment that it seems that only a forum will be set up. The word “forum” sends shivers down my spine because it means nothing except a talking shop with no powers that will finally wither away out of alienation and boredom.

[Baroness Finlay of Llandaff]

I listened with great interest to what the noble Baroness said. Will she clarify whether she agrees with me that a so-called best interest decision that leaves a patient in pain and distress is actually not a valid best interest decision because it is not in the interests of the person to be left in pain and distress? That decision would, therefore, be open to challenge?

[Baroness Warnock]

I entirely agree with my noble friend.

Assisted Dying Bill [HL]

Baroness Finlay of Llandaff Excerpts

Friday 16th January 2015 Lords Chamber

Moved by

[Baroness Finlay of Llandaff]

13A: Clause 2, line 2, leave out “registered medical practitioners” and insert “licensed medical practitioners who are on the General Practice or specialist register”

[Baroness Finlay of Llandaff (CB)]

My Lords, I shall speak briefly to my Amendment 13A but I also have other amendments in this group. If I am procedurally correct, I should address only Amendment 13A at the moment and address the other amendments in the group afterwards. I am looking for confirmation from the Minister that that is correct.

[Baroness Garden of Frognal (LD)]

The noble Baroness may speak to all the amendments in the group.

[Baroness Finlay of Llandaff]

Thank you. I apologise for requiring clarification on that. I did not want to make things difficult for the Committee.

I tabled Amendment 13A because, as has been alluded to, doctors can be registered with the General Medical Council but not licensed to practise. To be licensed to practise means that one has been revalidated after an annual appraisal, and may maintain one’s clinical professional competencies. However, that is not enough for a matter of this gravity. One does not want decisions to be taken by doctors who perhaps are still in training, or not in a specialty but doing sessions in it, or whatever. The additional requirement should be that they have completed their training and therefore be on the general practice register or the specialist register, which would mean that they are recognised as having completed their specialist training and would be able to apply for a consultant post.

[Baroness Jay of Paddington (Lab)]

I apologise to the noble Baroness and realise that she will speak to the other amendments to which she has put her name. Would it not be much simpler to agree Amendment 15 to which she has also put her name but is primarily in the name of the noble Baroness, Lady Murphy, who unfortunately cannot be here today? That amendment simply does what the noble Baroness, Lady Finlay, has just described by inserting “registered” and “licensed” into the Bill.

[Baroness Finlay of Llandaff]

I am most grateful to the noble Baroness for that intervention because it allows me to clarify that I think that such doctors should, in addition, be on the general practice or specialist register for the reasons I have just outlined. Indeed, I was grateful to the noble Baroness, Lady Murphy, for having picked up a point that came in later amendments that I have tabled in relation to the doctors involved.

I shall proceed to speak to the other amendments, however. Clause 2 of the noble and learned Lord’s Bill caters for people who have been told that they have a terminal illness and are expected to die from it in the near future—within six months. Such situations exist; most of us will know of people who have been in this position. However, terminal illness is, I am afraid, a much more complex matter than that. There is a tendency to think that people who are terminally ill are somehow a group distinct from others who are not, but the reality is very different.

Yes, there are people who were apparently healthy but have discovered that they have a malignancy or other condition that seems likely to bring about their death in the not-too-distant future. However, many more people have conditions—for example, multiple sclerosis, Parkinson’s disease or heart disease—that are incurable and life-shortening and which, at some point in the future, can be expected to result in their death. All these conditions would fall easily within the definition of terminal illness, as described in the Bill, which is,

“an inevitably progressive condition which cannot be reversed by treatment”.

But that is not enough. Some conditions are progressive and cannot be reversed by treatment, but the underlying cause may be curable—hence the insertion of “direct”, so the provision would state that as a “direct consequence” of the disease the person is expected to die.

However, there is another aspect to treatment that matters. Some conditions can now be so significantly halted in their progress that the person’s life expectancy lengthens and their quality of life improves dramatically. These are people who at one time appeared to be terminally ill, or even actively dying, but have responded so well to treatment that they no longer fit the definition. I hope that the noble and learned Lord, when he responds, will clarify just how six months will be determined.

The noble and learned Lord will no doubt point out to us that the Bill contains another parameter of terminal illness—namely, that the person seeking assistance with suicide not only has a progressive condition but is reasonably expected to die within six months. It is true that not everyone with a progressive and incurable condition is expected to die in six months, but it is necessary to recognise that the Bill as it stands would bring within its ambit not only people who have been told that they are terminally ill but everyone with moderate-to-severe progressive and chronic illness. After all, how often have noble Lords said, “I would not be surprised if so and so died within the next six months”? Indeed, I regret to say that that has been said within this Chamber about noble Lords at times—and yet, fortunately, they have reappeared on these Benches a long time after those six months. Perhaps they might be described affectionately as a “creaking gate”. It is important to recognise that fact because it has a bearing on the question of prognosis.

Let me illustrate the point with a specific example. A colleague of mine in his late 60s had very brittle type 1 diabetes, episodes of heart failure—the prognosis for which is usually worse than for cancer—and other co-morbidities. All his colleagues thought that he would be dead soon. Over several years, I and others have reasonably expected him to die within a few months. Over 10 years or more, at any point in time, I or another doctor would have stated that he could reasonably be expected to die, but he has not. I have had many patients who I really thought were dying. I have sat the family down and told the patient that I really thought that their life expectancy was in months. However, by our going back and rigorously looking at things again with meticulous attention to detail, they have vastly outlived the prognosis, not only by months, but fortunately often by years, with a good quality of life.

I ask the noble and learned Lord to clarify whether the Bill is designed to include cases where the prognosis might be much longer. In his Second Reading speech, he suggested that the Bill purports not to do that. That is why I have proposed the insertion of the word “direct”: the patient must be expected to die not because he is very old or has multiple co-morbidities but directly from that terminal illness.

[Lord Butler of Brockwell (CB)]

Is it not right to remind the House that, if there is a misdiagnosis of that sort and survival continues, people are not obliged to take the final drug? It is just available to them. They can survive.

[Baroness Finlay of Llandaff]

I am grateful to the noble Lord for that intervention. If they have been misinformed—it is not the diagnosis of the disease that is wrong but the prognosis—and they then take the lethal drugs, they are not there to outlive the wrong prognosis.

[Lord Winston]

I might be able to assist the noble Baroness’s arguments slightly. Is not the whole House aware of one of the most famous cases, the person accused of the Lockerbie bombing? He was examined by numerous doctors, in particular Karol Sikora, who is probably the leading cancer expert in the country, who, after great consideration, considered that this man had only three months to live. He was therefore allowed to leave the United Kingdom. In fact, I think he survived for either three or four years.

[Baroness Finlay of Llandaff]

I am grateful to the noble Lord for that illustration, which is very clear and well known to all Members of the House. It is for that type of reason that I have proposed the removal of the word “reasonably” from Clause 2(1)(b) of the noble and learned Lord’s Bill.

A number of clinicians have tried to predict prognosis—for instance, whether to take the risk of a heart or lung transplant, and when to introduce palliative care in non-cancer services for the frail elderly. However, they have found that they just cannot determine time. Prognostication is reasonably accurate on the population level but, as the noble Lord, Lord Winston, has just illustrated, it is not accurate at an individual level at all. It is no better than tossing a coin. Indeed, different studies have shown that a prognostication expecting someone to live for more than a year is not too awfully wrong. Similarly, expecting somebody to die within a month is more likely to be accurate than inaccurate. However, in the interval in between you honestly could toss a coin on it. It is for that reason that I suggested that, if the prognosis in the Bill really is to deal with those people who are distressed during their dying phase, the prognosis section should be shortened to six weeks.

There are other aspects to prognostication that I will point out to the noble and learned Lord, Lord Falconer. The national clinical director for end-of-life care told the commission that he chaired that predicting the course of a terminal illness is “fraught with difficulty”. In 2004 the RCGP made the same point to the Select Committee chaired by the noble and learned Lord, Lord Mackay:

“It is possible to give reasonably accurate prognoses of death within minutes, hours or a few days. When this stretches to months then the scope for error can extend into years”.

The Royal College of Physicians, giving similar evidence, said that,

“prognosticating may be better when somebody is within the last two or three weeks of their life … when they are six or eight months away from it, it is actually pretty desperately hopeless as an accurate factor”.

More recently, we have seen in the report from the inquiry into the Liverpool care pathway, chaired by the noble Baroness, Lady Neuberger, how prognoses of death within 48 hours have sometimes turned out to be wrong. The report called for further research into improving the accuracy of prognosis within the last weeks to days of life.

Yet, in the face of all this evidence, we are being asked to consider legalising assisted suicide or assisted dying for people with a prognosis of six months. The only conceivable explanation is that that is what Oregon’s assisted suicide law says. However, Oregon’s law has been shown to be fallible in the matter of prognosis. Oregon’s own data show that the time from the first request to death by whatever cause, whether through physician-assisted suicide or natural causes, ranges from 15 to 1,009 days, which is two years and nine months. Washington’s data show that, among those being given a prescription for lethal drugs and therefore expected to die within six months, the range was three to 150 weeks. I note that, in every year of that legislation since it has been passed, patients have lived well beyond 24 weeks or six months. The percentage ranges from 5% to 20% of a request for death.

The plain fact is that prognosis of “terminally ill” is highly unreliable over a range of six months. The DS 1500 has been used as a way to allow patients to access benefits rapidly, without having to go through assessment hoops. However, as those who have filled them out know only too often, it is only a guesstimate. Very often, patients vastly outlive the prognosis. We have had to have difficult conversations about how they should now go through the complete assessments. I tabled a Question to ask whether the Department for Work and Pensions collected data on the DS 1500. Unfortunately, it does not. It would be interesting to know for how many months that benefit had been drawn.

The plain fact is that this is unreliable. As a practitioner in the field, I can count the number of terminally ill people whom I have treated. I have not tallied them up among the thousands that I have looked after, but I could bore this House for weeks with the number of clinical stories of people who were expected to die within six months and who stayed alive for much longer. Those are the reasons behind these amendments. I hope that those who are arguing sincerely that the Bill aims to try to improve the dying process in those last days and weeks of life will seriously consider that they are asking people to make a prediction on which there really is not a scientifically accurate basis.

[Baroness Meacher]

The noble Baroness placed a great deal of emphasis on accuracy. Those points completely fail to take account of the fact that we all have a great will to live. Just because the individual finally has control and some autonomy does not mean that they will rush out to try to take some pills. I feel that this is a completely misguided set of arguments. The most important thing about the Oregon law, which has been in place for 17 years and works extremely effectively, is precisely that some people live for three years. They do not take their lives; they live for three years until life becomes unbearable. It is only at that point that they take the pills or whatever it is. We have to be very careful not to be misled, albeit one can come back with arguments that most doctors exaggerate the length of time that they expect people to live. Even that is not the point.

[Baroness Finlay of Llandaff]

When we legislate we need to know that there is accuracy attached to the terms. If we are asking doctors to make a declaration or statement of prognosis, they must at least know that there is some scientific basis behind it. In making a decision, there are three fundamental issues; first, the person must have accurate information; secondly, they must have the mental capacity to make that decision; and, thirdly, it should be voluntary and free of coercion. If you make the decision to end your life because you believe that what lies ahead in the next weeks and months is so terrible but, in reality, you might have improved dramatically and lived for years if you had had the care you needed, then I would say that you are not being supplied with accurate information and that it is therefore not a valid decision.

--- Later in debate ---

[Baroness Finlay of Llandaff]

Before the noble Baroness finishes, will she acknowledge that, quite often, when patients do not undergo further intervention and further treatments they dramatically improve? Indeed, a very good study from America showed that where people had early palliative care, not only was their quality of life better but they lived longer. They were having fewer interventions, not more. The difficulty with all this is that conditions fluctuate. Patients at one point in time cannot believe that they could improve. It is often stated by patients, when their symptoms and their distress are under control, “I never believed I could feel this well again”. When they are in that trough, they are of course inclined to believe that it will go on for ever and that they will go on going downhill and therefore want to curtail their lives.

[Baroness Brinton]

I accept the noble Baroness’s premise that it is vital for medical practitioners to set things out. As I have said, the counterargument to that is that data from Oregon and some other states in America show that people do not make the decision and implement it immediately. There is always a timescale, because I believe that, intrinsically, most people really hope that things will improve.

When the measure has been used in America, it has usually been because there has been such a downturn, when medical practitioners have said to the patient that they cannot help them further. I understand that there will be some people for whom they are seriously concerned and may want to turn to it, but I would also think that a medical practitioner would ask them whether they are depressed at that particular moment and whether it is the right time to make that decision. This Bill allows the practitioner to say, “I don’t think you’re ready for that decision at this particular time”.

I want to say why I believe that the amendment in the name of the noble Baroness, Lady Finlay, is a tripwire. I have been on a series of drugs for my particular condition. My local clinical commissioning group insisted that I went on a drug knowing that it would not work particularly well for me, but would not allow me to have treatment afterwards if I did not have that drug. For six months, I had the drug and it is one of the reasons why I am in a wheelchair, because my condition deteriorated. My worry about the amendment is that it is such a tripwire and could be used to cause real distress to people who are quite clear that they do not want further treatment. To use that to prevent them getting any other treatment or making their own decision seems intrinsically wrong.

[Baroness Finlay of Llandaff]

My Lords—

[Lord Warner]

My Lords, I want to pursue the line of argument that the noble Baroness, Lady Brinton, has started. I agree with the noble Lord, Lord Carlile, that this is an important group of amendments. The noble Baroness has raised the issues of practicality and, possibly, unexpected consequences of some of the amendments.

I want to reinforce the point about the impracticability of Amendment 13. It fails to reflect the fact that in many cases of terminal illness a person will move from the place where the illness was diagnosed and the care of their consultant and GP to somewhere else. We have a National Health Service. You still get treatment if you move from A to B; medical records pass from A to B most of the time, reasonably successfully. The care of that person will be transferred to another GP and another medical practitioner. They may well not have had care of that person for six months. It may simply be impossible to operate Amendment 13 in the case of people who are terminally ill. We need to reflect on the practicality of that argument. I do not believe that the noble Lord expected that consequence from his amendments. That was the point that I was going to ask him about if I had been able to intervene a little earlier. I am happy to give way to the noble Lord.

--- Later in debate ---

[Lord Empey (UUP)]

My Lords, one is reluctant to become involved in a debate when so many noble Lords with senior medical and legal experience have been putting forward their interpretations. However, I want to deal with a couple of matters. With this amendment, the noble Lord, Lord Carlile, is clearly adding that a medical practitioner will have to have significant knowledge of the patient.

I want to speak on this issue because I feel that the Achilles heel of the whole Bill is that it is built on sand. It works only on the assumption that the medical profession will deliver it, whereas it is obvious to most of us that the vast majority of the medical profession do not want to deliver it. That leads us to what may be the essential contradiction or conflict in the amendment. A number of noble Lords have said that specifying six months would be an overburdensome requirement. Therefore, we have the dilemma that either you have a medical practitioner who knows the patient, knows the condition and knows how that patient is likely to react to certain drugs, or you have a complete stranger who comes in and makes a judgment on the spot, having read a medical file. I fear that a rent-a-doctor procedure will develop and will distil down to those who are prepared to do it, and that, in my view, will create a whole series of new problems.

I want to raise another point regarding these amendments. We talk about having conversations, discussions and processes. I represented an inner-city constituency for more than 25 years and my question is: with whom and at what time are people going to have these discussions, conversations and processes? At the moment, nurses hardly have time to feed patients on their ward, let alone to involve themselves in very complicated and difficult conversations, discussions and processes.

Therefore, looking at the modern-day NHS and all the pressures that it is under, to some extent we are adding a further pressure without the active support and consent of the medical profession. Also—this is the one thing that I worry about more than anything else—we are changing for ever the potential relationship between a doctor and a patient. In an inner-city area, the ordinary person will say, “Oh, here comes Dr Death. How can that person help me on the one hand and put my lights out on another?”. I fear that that is how this will be distilled down to street level.

In the amendment, the noble Lord is clearly trying to put in place the safeguard that the patient will at least be dealt with by somebody who knows him or her. I understand that and accept the rationale for it. However, there are practicalities, which have been raised by others. With inner-city practices, it is hard enough to get the patient to go to a doctor in the first place, but if they think that that doctor could at some point in their lives, as they would say, sign them off, will the amendment achieve the worthy objective for which it is meant?

The word “control” has been used a number of times. I think the noble Baroness, Lady Meacher, and others used it. One can see that people would want to have control over their lives. It could happen to any of us. But in the real world out there, many people who are seriously ill may not have the means. They do not have access to the courts, money or knowledge. Control may be all right for those of us in this House, but it is not always available to the ordinary person in the street. That is where I believe there is a fundamental weakness in this. Without the act of involvement of the medical profession who really want to do something, we are forcing them into a corner. It will inevitably boil down to a handful of doctors who will go around the country signing off people they do not know.

[Baroness Finlay of Llandaff]

The noble Lord made some cogent points in relation to this group of amendments. He made me wonder whether he thinks the solution may be that the discussions could happen earlier but the provision of the assistance to end life should be much later. The timeframe could change. Discussion of whether someone is terminally ill could start much earlier, and could therefore take more time, but the delivery of the lethal drugs could happen much later. For clarity, they are not morphine or heroin. The drugs are a massive overdose of barbiturates, which is completely different and would never be used therapeutically. That is the way that you end people’s lives under the Oregon and other legislation. That might be a solution. I also ask the noble and learned Lord, Lord Falconer of Thoroton, whether he would consider that type of solution in looking again at the clause.

--- Later in debate ---

[Baroness Finlay of Llandaff]

I am grateful to the noble and learned Lord for having finally got on to the timeframe issue and for his acknowledgement that, on a balance of probabilities, things are more likely to be accurate within a shorter timeframe than at six months. Does he accept that it might be worth considering uncoupling the time in which the discussions can occur from the time within which the prognosis indicates that it is eligible for the lethal drugs to be taken to the patient? That was the question that I asked the noble Lord, Lord Empey, and on which the noble Baroness, Lady Symons, came in, but the noble and learned Lord has not answered that question at all.

[Lord Falconer of Thoroton]

I apologise to the House for taking so long to get on to the point about six months versus six weeks. I very carefully considered whether one should say that, once you have a diagnosis of six months to live, you should be able to have the discussions but only be able to take the drugs within six weeks. I am strongly against that.

[Baroness Finlay of Llandaff]

I—

[Lord Falconer of Thoroton]

If I may finish, the reason I am against it is that once the diagnosis is given by the doctors, there is a process that will take a considerable time, and that once the court has approved the process and said that somebody should do it, it should be for them to decide when they do it. It would be an unsatisfactory and, I suspect, an unenforceable process to have to go back and get a doctor to say that you have six weeks or less to live. I thought carefully about that point before it was raised. It is not referred to in any amendment and I assumed that nobody had properly considered it. I am against it.

[Baroness Finlay of Llandaff]

If I may come back on that, does the noble and learned Lord recognise that those discussions are currently being had with patients, day in and day out, up and down the country? It is not as if the Bill, as some noble Lords implied, would be the way in which people start talking about their dying because it should be a routine part of clinical practice, as laid out in the GMC guidance. However, I do not think that he has yet answered my question on whether there would be merit in uncoupling those discussions and that process from the time at which the drugs were delivered. If I hear him right, he is saying that when you are in that zone of complete uncertainty and could toss a coin on it—you might die within six months or, as the noble Lord, Lord McColl, said, within three years; indeed, in the case of some of my patients you might die within 10 years, as it happens—the fact that the doctor has mistakenly said that he believes you are terminally ill would suddenly give the message that you should be considering having an assisted suicide. That would probably start to trigger these discussions. That is the danger in not uncoupling them.

[Lord Falconer of Thoroton]

I thought that I had answered the question but I will answer it again. A doctor has concluded that he or she reasonably believes that you have six months or less to live; another doctor has confirmed the diagnosis; and the courts have concluded that it is an appropriate case for an assisted death. Thereafter, my view—I should be clear about this—is that you should be entitled to have an assisted death as prescribed by the Bill. I am therefore against the decoupling of the beginning of the process from the time at which the drug could be taken.

The noble Baroness says that these discussions are taking place at the moment. No, they are not; the discussions taking place are about how somebody wishes to die. It does not involve discussions about assisted dying in the context of my Bill because that is not permitted at the moment, so this is dealing with a new situation. My clear answer to her is that I am not in favour of the decoupling. My proposition is that if two doctors certify and the court says yes, once that process has been gone through, it is for the patient to decide the moment he or she takes the drug, and there should not be another process for a doctor to certify that the patient has six weeks or less to live.

I shall deal with the other points raised in this group. First, for reasons I just cannot understand, the noble Lord, Lord McColl, and the noble Baroness, Lady Finlay, suggest that where the Bill states,

“reasonably expected to die within six months”,

or less, the word “reasonably” is deleted. That seems unwise. In my view, it is appropriate that a doctor giving such a diagnosis has a proper and reasonable basis for doing so. I am against that change.

In the context of the amendment moved by the noble Lord, Lord Carlile, the noble Baroness suggests we refer to a “licensed” practitioner rather than a “registered” practitioner. Although I do not agree with the amendment moved by the noble Lord, Lord Carlile, the point that the noble Baroness, Lady Finlay, is making appears to me to be a good one. We should discuss, outside the Chamber, the precise language. The noble Baroness, Lady Murphy, has an amendment that puts the language in a slightly different way. We are all concerned to allow this to be done only by doctors who have the appropriate qualification and are in practice. I am happy to agree an amendment that reflects that.

The noble Baroness, Lady Campbell, made a number of powerful submissions in relation to how this affects disabled people. The noble Baroness, Lady Brinton, responded to them and made it clear that disabled people can have different views about the adequacy or otherwise of the Bill. I was very struck by the reference to “The Theory of Everything” and Stephen Hawking, who is, in fact, in favour of some process of assisted dying.

The underlying anxiety that has been expressed to me by disabled people is that if we pass an assisted dying Bill, we in some way devalue the lives of disabled people and put them more at risk. I do not believe that we devalue disabled people in any way by passing this Bill. I believe it is incredibly important that disabled people have exactly the same options as everybody else when they are terminally ill. I also believe that the safeguards in the Bill are much stronger than the existing safeguards in relation to decisions about treatment. I completely echo the point that the noble Baroness, Lady Brinton, made: this will not be forced on anybody. It is an option to be asked for, and even when asked for, it can be given effect only when two doctors have certified that it is appropriate and the High Court of Justice has said that it is okay. Having spoken widely to disabled people, I do not believe that it puts them more at risk than the population as a whole. Although I, like everyone else in the Committee, am very moved by what the noble Baroness, Lady Campbell, said, I do not accept the criticism that she makes in relation to the Bill.

I think I have dealt with all the main proposals. This has been a very worthwhile debate. The areas where I think further discussions would be of value are in relation to the “doctor for hire” proposition and how we properly identify the qualification required for a doctor. In relation to the other proposals, I am broadly against them.

--- Later in debate ---

[Lord Falconer of Thoroton]

The Oregon experience is that that does not happen, but the safeguards—two doctors, and the High Court judge approving it—are in my view sufficient to prevent the sort of abuse to which the noble Baroness refers.

[Baroness Finlay of Llandaff]

I am grateful to the noble and learned Lord for having responded to the question about the qualification of doctors, which is an amendment to the amendment in the name of the noble Lord, Lord Carlile. I will make just a couple of points in response. One is that I am glad to see that the noble and learned Lord recognises that the way the Bill is currently drafted is a problem and that you need doctors with experience, but I wonder how he will achieve that. Clause 3(7) requires, rightly, that the doctor holds an appropriate qualification. However, yesterday the Association for Palliative Medicine published the results of its consultation with its members, which had a very high response rate and showed that only 4% of palliative medicine doctors who are licensed to practice are prepared to have any involvement in this process. Therefore if the conscience clause is to have any meaning, it is something to which we need to return, and I welcome the noble and learned Lord’s commitment to engage in discussions over it. We will come to other amendments later, which I have tabled, on how we might solve the problem, but I do not think that we will get to them today. I beg leave to withdraw the amendment.

Amendment 13A withdrawn.

Criminal Justice and Courts Bill

Baroness Finlay of Llandaff Excerpts

Wednesday 22nd October 2014 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, my Amendments 120A and 120B in this group both concern the use of force in secure colleges. Amendment 120B would delete paragraph 10 of Schedule 6 which provides—I say iniquitously—that:

“If authorised to do so by secure college rules, a secure college custody officer may use reasonable force … in carrying out functions”,

which include ensuring good order and discipline on the part of young offenders in custody and attending to their well-being. Amendment 120A would introduce restrictions on the use of force which accord with good practice, with the civilised treatment of young persons in custody and with the European Convention on Human Rights. Furthermore, my amendment accords very closely with the principles set out in the Government’s consultation paper published last week on the proposed secure college rules.

The authorisation of the use of force for the purpose of ensuring good order and discipline—said in the consultation paper to be clarified or modified by the proposed secure college rules—has been the subject of a judgment against the Government in the Court of Appeal in the case of C v Secretary of State for Justice 2008 concerning secure training centres. The clear view of the Joint Committee on Human Rights in relation to the Bill is that provisions authorising the use of force for the purpose of ensuring good order and discipline should be deleted. Those words can go without affecting the implementation of proposals for the sensible and modified use of force, suggested in the consultation paper. What is proposed is not a clarification but a departure—and if it is a departure, good order and discipline should disappear from the legislation altogether.

It is not right for the Government to say that merely because the use of force is authorised by the statute, as circumscribed by the rules, it would be appropriate for the legislation to authorise force for the purpose of enforcing good order and discipline. I believe that the correct conditions for the use of force should be plain in the Bill. There is no reason for not limiting the authorisation in the Bill to accord with what is appropriate. There should be no chance of any misunderstanding or misconception of what is and is not authorised and no internal inconsistency, apparent or real, between the primary and secondary legislation. The Joint Committee on Human Rights considered the Government’s case that there was a distinction to be drawn between the requirements for the Bill and those for the rules—and it rejected it.

On a practical note, as the noble Lord, Lord Ramsbotham, pointed out, the Government’s consultation paper on the secure college rules has only just been released. The Government’s response to the consultation cannot possibly come before Royal Assent for the Bill. That means that unless the Bill is clear about the restrictions that should be imposed on the use of force, the secondary legislation may not properly reflect the will of Parliament, even allowing for the affirmative resolution procedure being applicable to the rules—if it is.

My amendment would make the position clear. The first three purposes for the use of force are uncontroversial. They are to prevent injury to the young person concerned, to prevent injury to others and to prevent serious damage to property. The limitations on the use of force, as contained in the second to fifth conditions of my amendment, are also uncontroversial and in accordance with best practice. They are that force must be used as a last resort only, that the force authorised must be the minimum necessary to achieve its purpose, that it must be applied for the minimum duration necessary to achieve that purpose and that the techniques used should be in accordance with an approved system of restraint. Furthermore, it is important that all those authorised to use force should be properly trained in its application and in techniques of minimum restraint.

However, since Committee, and in the light of the publication of the consultation paper, I have been convinced by the two so-called “scenarios” set out in the consultation paper that there may be a need for force to be authorised also to maintain a safe and stable environment, subject to extra conditions. The first of the two scenarios is where an abusive young person in a secure college disrupts a visiting session for all those in the visiting room, including other detainees, their visitors and families, and simply will not move. The second is where an aggressive young person needs to be moved to protect another young person who is threatened by him, where that other young person is at unusual risk from that aggression. In both these cases I can see that some force may be required to move a detained young person. However, such force as may used in those circumstances—that is, to promote a secure and safe environment—should be limited to circumstances in which a young person poses a risk to the present safety or welfare of another person and should never involve pain-inducing techniques.

These restrictions represent the Government’s view, clearly expressed without reservation in the consultation paper. I simply cannot see why they should not be expressed in the primary legislation, particularly when the secondary legislation will come so late in the day.

The issue of the use of force in secure colleges is serious. We should not forget that in April 2004 at Rainsbrook secure training centre, 15 year-old Gareth Myatt was asphyxiated while being restrained in an approved hold; nor that in August 2004, 14 year-old Adam Rickwood committed suicide at Hassockfield secure training centre after being subject to the so-called “nose distraction technique”. Accordingly, I ask the Government to reconsider their position, to limit the use of force in the Bill in accordance with the principles set out in their consultation paper, and to accept either my amendments or those of the noble Lord, Lord Ramsbotham.

[Baroness Finlay of Llandaff (CB)]

My Lords, I have added my name to three amendments in this group, and will focus particularly on some of the health aspects. The question of how these colleges will be run becomes critical.

In his response to the previous amendment, the Minister said that there would be assessment of those with acute needs and vulnerabilities. I suggest that the health needs are far greater than has previously been estimated. I declare an interest as president of the BMA. Our report Young Lives Behind Bars is due to be published on 4 November. I have had extensive discussions with my successor, Al Aynsley-Green, who was previously the Children’s Commissioner and who looked at length into the management of offending children. He was particularly struck by the smaller units in Spain, and was clearly persuaded that moving children away from their original area of domicile, to which they would eventually return, was potentially quite harmful because of the disruption to the support for their health and well-being.

Children in the offending group generally have a much higher incidence of serious problems. About 12% are known to have been bereaved of a parent or sibling; that is far higher than the incidence among children in the general population. About 60% have significant speech, language and learning difficulties, 20% to 30% are learning disabled and up to 50% have learning difficulties. Put simply, about one in four has an IQ estimated to be below 70 and over a third have a diagnosed mental health disorder. Over a quarter view drugs and alcohol as “essential” to their well-being.

When the House of Commons Justice Committee examined reports on acquired brain injury, which affects around 10% of the general population, it found that it typically affects between 50% and 80% of the offender population. A relatively small 2012 study, covering 179 male offenders, found that 60% reported some form of brain injury and 40% reported a loss of consciousness, which indicates probably quite severe brain injury.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My Lords, the hour is getting late and I am aware that we are hoping to divide the House on another amendment. I have spoken about the antecedents and health problems related to some of these young people’s behaviour. However, I remind the House that there are big differences between the girls and boys. More than half the girls have witnessed domestic violence, compared to about a quarter of the boys; 35% of the girls have substance-abusing mothers, compared to about 9% of the boys; and 18% of the girls have substance-abusing fathers, compared to 5% of the boys. When you take the very small number of girls who are extremely disturbed into an environment and confine them near a large number of boys who are also very disturbed, it is almost like putting them in a pressure cooker. I hope that the importance of not having a minority of girls on this site has been taken on board by the Government.

I cannot stress enough the importance of having high-quality clinical staff available, too. This is not just about staffing the posts but having very highly trained people who want to live in that area, be there with a sufficient support infrastructure and have ongoing training and education—as well as succession planning so that one is not left with low staffing levels that could create a crisis.

[Baroness Howarth of Breckland]

My Lords, most of the arguments about girls on this site have been clearly made, so I want to make a quite different point rather than repeat the ones that have been made.

I have looked carefully at both sets of plans for this site. Were one not to accommodate girls and young boys at the far end of the site, the flexibility one would have—maybe for the pathfinder to succeed—would be far greater than one would have with the complication, described by my colleagues throughout this debate, of confining girls who will be claustrophobic, adding to their difficulties. The young boys will simply learn from being on that site all the bravado that comes with it. If one wanted this proposal to succeed at all, one could instead have more space and better capacity provision. The Minister knows I am not in favour of this proposal but I know that it is the wish of those who have visited some of the other establishments to do something better. As I said, one could do even better by using that part of the site to make sure that the pathfinder succeeds.

Criminal Justice and Courts Bill

Baroness Finlay of Llandaff Excerpts

Monday 20th October 2014 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I shall speak also to Amendment 43A, which takes the place of Amendment 43 on the Marshalled List. The intention was to have withdrawn Amendments 45 and 46, so I shall not refer to those two amendments today.

I must apologise to the Minister and your Lordships for coming into this debate rather late in the day. The noble Baroness, Lady Finlay, who I was going to say is not in her place but who now is, is the person who has raised the concerns about Clause 19 at earlier stages and had a very helpful meeting with the Minister.

Clause 19 introduces a new offence of ill-treatment or wilful neglect by care workers, including doctors and nurses. A similar offence for care providers is introduced in Clause 20. I have less of a problem with an offence of ill-treatment—it seems to me that that is a proactive act which is a little bit clearer—but I have no doubt that an offence of wilful neglect of an individual would lead to criminal investigations of good clinicians simply because patients may believe that they should have had medications or treatments which were not appropriate at the time or may have been judged not appropriate by the relevant clinician.

Our amendments would raise the bar for such offences for individual doctors and nurses by introducing the requirement that the care worker commits an offence only if their activities amount to a gross breach of a relevant duty of care owed to the individual who is allegedly ill-treated or neglected. Of course, I understand the history behind Clause 19 and the fact that offences already exist for ill-treatment and wilful neglect of children in certain circumstances and of adults who lack capacity. I suggest that such situations are rather different from those of competent adults in, for example, an acute hospital or GP surgery. My concern is that we have lost sight of proportionality here, and the consequences will be disastrous, both for good, conscientious clinicians and for the NHS, with its impending £30 billion funding gap.

Of course, none of us can accept ill-treatment or wilful neglect of patients—and I will come back to that in a while. I wonder whether those in the Government who designed this new offence for individual clinicians have really appreciated the devastating effect on conscientious care workers if they find themselves under criminal investigation when it is clear that they have used their clinical judgment in good faith or done their very best with the resources available to them.

The Government have stated that the offences are intended to deal only with the most serious incidents—that has to be right. However, the offence is broadly drafted and the police will have an obligation to investigate cases of alleged neglect unless it is absolutely clear at the outset that there is no case to answer. Almost any decision could potentially be investigated for wilful neglect, even though, later, the vast majority and probably the whole lot would not go all the way to prosecution and a guilty verdict. The question of proportionality is therefore highly relevant.

Criminal investigations are incredibly disruptive, time-consuming and costly. The potential cost to the NHS of disproportionate criminal investigations is impossible to estimate accurately, but my main concern is the unwarranted distress and catastrophic nightmare that such investigations would cause for the conscientious worker—and the vast majority facing investigation probably would be conscientious workers. It is not acceptable for the Government to say that it would be up to prosecutors not to prosecute other than in serious cases. It would be far too late at that stage to prevent the damage. Doctors and nurses are likely to find themselves suspended during a criminal investigation—it is very different from a disciplinary investigation. Their self-respect, and professional and public respect, will be in ruins. Huge damage will have been done before the matter comes anywhere near prosecutors. Does the Minister agree that the problem with Clause 19 is the investigations rather than, later down the line, the prosecutions?

I am aware of the Government’s consultation in March this year on the proposed formulation of the new offence. They claim, and I do not doubt it, that the 130 responses indicated broad support for the proposals. On the face of it, they sound eminently reasonable—how could one disagree with them that we need to deal with these problems—but I question the clarity of the consultation documents on the consequences of Clause 19 and those investigations. I do not believe that the British people would support the cost, disruption to services, and devastation caused to good workers, doctors and nurses that criminal investigations would create under these provisions.

I understand that the appalling consequences for doctors in hospital settings have been debated at earlier stages of the Bill. I agree with others that Clause 19 will be entirely disproportionate in its consequences for those hospital staff. I will focus on GPs because they are incredibly vulnerable to malicious complaints.

As things stand, we know that GPs daily experience fear of complaints. We know, and the Minister knows, that GPs regularly have to see 60-plus patients in a day. Many of those patients will have relatively minor ailments, but in that list will undoubtedly be patients with life-threatening illnesses. This means 10 hours of stressful, direct patient contact. Any one of those patients may leave the surgery dissatisfied, rightly or wrongly, with the outcome of the consultation. The patient may want an antibiotic and the doctor may know that it is not the right thing. The issue then is whether the doctor really has the time to explain the whole business about why an antibiotic may not be a good idea. That is their vulnerability: if they had all the time in the day slowly to explain to patients, or to people with learning difficulties or language problems or whatever it is, there would be no problems, but doctors do not have that luxury, and GPs certainly do not. Any angry patient could regard this as wilful neglect. Of course, it is not, and ultimately there would not be a prosecution, but the investigation will nevertheless have to take place.

The point then is not about the prosecution. Does the Minister really believe it appropriate for the threat of a criminal investigation to hang over GPs, nurses and doctors every time they go to work? I could not cope with work if every day—and every 10 minutes—I was worried that I might face a criminal prosecution for the judgment I was making. I say it again: we will not tolerate ill treatment or wilful neglect of patients. The question is whether Clause 19 and criminal investigations are the best way of dealing with these issues.

Have the Government assessed the likely impact of this new offence on the willingness of doctors to become GPs and on their early retirement plans? In this country we already have a shortage of doctors willing to train as GPs. Large numbers of doctors—six in 10, we understand—are planning early retirement. What will happen to the supply of GPs if Clause 19 comes into effect? The BMA describes the situation already as having reached crisis point. GPs are moving abroad as the pressures in this country become more and more unpleasant.

Applicants for GP training are at their lowest level for five years. Advertisements for GP partners that we know five or 10 years ago would have had 30 responses now receive maybe none. Nobody wants to be a GP partner these days even in quite desirable areas—and I happen to know a few. At the same time the pressure to transfer more care into the community rises year on year. I appeal to the Minister to think again before Third Reading. The Minister can quote from the ambitious figures for the number of GP training places to be made available, but will there be any trainees to fill those places? There is also the expectation—I would say a wish—that the number of trainee doctors becoming GPs will increase from 40% to 50%. Well, I doubt it if this clause becomes law.

Amendments 42 and 43A seek to raise the threshold for a criminal investigation of a professional care worker. I read the Minister’s letter to the noble Baroness, Lady Finlay, but I have to confess that I was not persuaded by the arguments. As I said, none of us can condone ill treatment or wilful neglect of patients. I have repeated that again and again because that is not the point here. The point is how we deal with these things not whether we do so. The Government have strengthened the Care Quality Commission and I applaud them for doing that. The Care Quality Commission needs to be able to deal with these things effectively, and much better they be dealt with through the Care Quality Commission than in this way. I hope the Minister can assure us that further thought will be give to this damaging clause before Third Reading. I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, I apologise for coming in just after my noble friend Lady Meacher had started speaking, due to traffic congestion. I am most grateful to her for having put the amendment so clearly. I endorse the point that nobody, but nobody, thinks that wilful neglect is all right. It is not all right. It is not to be allowed to even happen let alone condoned. The problem is that the burden of proof on the individual and on the organisation that employs them has been set at different levels as the clauses are currently drafted. The requirement is to prove gross neglect for an organisation but that had not appeared in relation to the offence committed by the individual. The difficulty is proving intent.

I had a meeting with the Minister at which he spent a great deal of time—I am very grateful to him—and he replied fulsomely with a long letter following that conversation. I remain unconvinced that the Bill will not effectively result in healthcare professionals being hung out to dry—that was a phrase I used before and I use it again—by an organisation that does not support its clinical staff adequately when serious complaints come in. At the end of the day, it is not wilful neglect but it is interpreted and viewed by understandably distressed relatives as neglect of their relative who may have suffered serious harm within the system or become extremely ill because of the progress of the disease. Although the work conditions for the staff have made it extremely difficult for them to function well, they have not been guilty of wilful neglect.

I stress that I do not think this applies only to nurses and doctors. If a physiotherapist or an occupational therapist declines to comply with a request from a patient or their family, that could be interpreted by the family or patient as wilfully withholding something that they feel they need. There is then some unintended adverse incident further down the line that was not predicted and the complaint goes against that healthcare professional. No one should underestimate how damaging it is to a healthcare professional to have a complaint made against them, and how most extremely conscientious healthcare professionals can feel quite destroyed by a complaint. However, an accusation of wilful neglect that goes to the police would certainly destroy somebody’s professional reputation. Even if it proceeds no further, they will find it very difficult to shed the trauma of that experience of being referred to and investigated by the police.

I hope the Minister can clarify exactly how intent will be interpreted and implemented, and how it will be proven that an organisation has intent to neglect patients. I suggest that the organisation can prove that it did not directly intend to but, actually, if it is really badly managed and is not supporting its front-line workers, it is neglecting patients because it is not allowing its staff to do their duty properly. However, I can see that such an offence would be very difficult to stick anyway. Certainly, if the burden of proof is higher for the organisation than for the individual, as I said before, I foresee that people will be hung out to dry.

[Lord Winston (Lab)]

My Lords, I hope I will be forgiven a short interjection on the amendment, which I fully support, particularly the points raised by the noble Baronesses, Lady Meacher and Lady Finlay. Perhaps I can best illustrate the point I want to make by telling a true story to the Minister, who I know is a very compassionate man. I think, like me, he will feel extremely angry about this particular incident within our health service.

My next-door neighbour was ill for years with Parkinson’s disease and, eventually, was so incapacitated that he had to be taken into care because he could not be looked after at home. His wife reluctantly saw him go into care. When eventually he became comatose, he was admitted to the Royal Free Hospital in Hampstead. His wife went to visit him every day while he was comatose. She used to speak to him and a nurse came up and said, “Madam, I don’t know why you are speaking to him because, of course, he can’t hear a word you are saying”. The nurse did not recognise that an unconscious patient is often fully capable of hearing and at least mentally responding if they cannot physically respond. In a sense, that is a pretty neglectful issue.

After a while, my neighbour’s wife—I should say that her husband has since died—then went to the nursing station and said, “My husband has not been washed or shaved for five days. He is lying in bed in a very dishevelled state and I feel very unhappy about this”—she is a very polite woman. The nurse in charge said, “That is not my job. I have nothing to do with that”. She was then rather cursorily directed towards a ward orderly. She said to the ward orderly, “I wonder if there is any possibility that my husband could be washed and shaved”. The orderly simply said to her, “That is not my priority at the moment”.

Does the Minister feel that that is wilful neglect? It seems to me to be a question of definition. I am sure that he feels, as I do, that this is not a criminal offence and not suitable for punishment with imprisonment. It is certainly suitable for a reprimand and for proper management in a ward of a teaching hospital.

Sadly, this kind of incident is not rare. It goes on all the time and goes on particularly, as we all know, in wards with distressed, elderly people, some of whom are sometimes completely irrational and sometimes mentally disturbed and wandering. Often they are treated with grave disrespect at the least—and often they seem to be treated with a good deal worse. I do not believe that that is wilful neglect, but if this amendment is not passed or some form of it is not accepted, there is a real possibility that people who should not be in court and should not be charged by the police may find themselves charged with a criminal offence. That would be absolutely wrong and very bad for our National Health Service.

Assisted Dying Bill [HL]

Baroness Finlay of Llandaff Excerpts

Friday 18th July 2014 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, like many others, particularly doctors who will be expected to be involved in assisting their patients’ suicide, I do not support this Bill. But the Supreme Court has asked Parliament to look at the issue and we should not oppose it at Second Reading. I have worked caring for dying patients for more than 25 years and I have registered my interests.

This Bill has broad categories into which almost anyone can be shoe-horned and it comes within a whisker of full-blown euthanasia. Are there safeguards? No, there are only broad categories into which you will find some doctor who would state that almost anyone fits. Let us take a prognosis of six months: there is no accurate test at all. Even a best guess is so surrounded with inaccuracy that the only honest answer to the question, “How long have I got?”, is to say, “I honestly can’t tell”. Even of those thought to be likely to die within 48 hours, about 4% improve and some even go home. But this Bill is not about them or about better care at the end of life; it is about assisted suicide, effectively on request.

Nor is it about a right to die. Everyone will die. If you do not want treatment that might prolong your life, you can refuse it. For those with motor neurone disease on a ventilator who want to stop treatment, we can manage their dying peacefully and gently as they die of their illness. When treatment is withdrawn, it is not withdrawn with the doctor’s intention of bringing about the patient’s death; when lethal drugs are supplied, they are supplied with that intent. This Bill is about licensing doctors to supply lethal drugs to some of their patients and helping them to commit suicide, however long their life might otherwise have gone on for. I have seen the strongest people, including politicians and senior doctors, be the most vulnerable when facing dying—vulnerable to coercive influence and vulnerable to their fears. The role of my profession is to address those fears and to support those people, not to encourage them, even silently, to believe that they should foreshorten their lives.

Today’s doctors are worn down by workload. They do not know their patients in detail. They know only what they are told in a brief encounter. They cannot possibly detect coercion from family. I cared for a lady whose family we all believed were loving but they stopped visiting as much once her fixed-term life insurance expired. What about subtle coercion from staff attitudes that are negative or instil hopelessness?

The signature of a second doctor provides no assurance. Who is going to find this second doctor? He or she is likely to be known to the first doctor as someone who sees physician-assisted suicide as a reasonable response to severe progressive illness. Let us not forget that Dr Shipman’s 176 cremation forms were all countersigned by a second doctor.

Of course, palliative care does not have a magic wand to make everything right. Nothing in medicine has 100% success. Even assisted suicide sometimes fails to kill. But we do not kill patients with morphine properly prescribed to relieve pain, or with nerve blocks or other interventions. The Francis report showed how bad care can be. The well intentioned Liverpool care pathway failed: it became just another tick-box exercise. That is what this will be—a set of forms to be filled in, without proper scrutiny of the assessments, the processes and the administration.

Those of us at the sharp end who care for terminally ill patients day in, day out know that the real work of assisting someone to die is not just something on a to-do list. It calls for good care, dedicated support and time, and not the quick fix of offering the medical equivalent of a loaded gun.