Mental Capacity (Amendment) Bill [HL]

Baroness Hollins Excerpts

2nd reading (Hansard - continued): House of Lords
Monday 16th July 2018 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I, too, congratulate the noble Baroness, Lady Barran, on her compassionate and informed maiden speech.

Many organisations working in the field of learning disability, the people who are the focus of my speech today, welcome the reform of the deprivation of liberty safeguards. Both the Joint Committee on Human Rights and the House of Lords post-legislative scrutiny committee, of which I was a member, highlighted major concerns about the implementation of deprivation of liberty safeguards. I am grateful to several organisations for their briefings in advance of today’s debate, including Mencap, the Royal College of Psychiatrists, the Royal College of Speech and Language Therapists and others. I refer to my interests in the register. I speak also as the carer of an adult relative for whom I hold a lasting power of attorney.

Recommendation 37 of the post-legislative scrutiny committee suggested that,

“replacement legislative provisions and associated forms be drafted in clear and simple terms, to ensure they can be understood and applied effectively by professionals, individuals, families and carers”.

Some of the briefings received in the last few days remind us of the complexity of this legislative area and how easy it is to misunderstand it.

Any adult, regardless of any communication or cognitive impairment, has the right to make or be supported to make their own decisions wherever possible. The Mental Capacity Act supports this principle while also providing a legal framework, the DoLS, so that decisions can be made when someone lacks capacity. When the Government introduced those safeguards over 10 years ago, the rules required that they would allow a deprivation of liberty if the chosen restraints or restrictions worked in a person’s best interests. I am grateful to my noble friend Lady Finlay for clarifying that best interests will remain integral to the amended Act. I look forward to confirmation from the Minister that that is indeed the case, as it has been a matter of some concern to the organisations briefing me. That takes us to the heart of what they were intended to do, but implementation of the Mental Capacity Act and the deprivation of liberty safeguards has been poor. The health and care sector does not have the training, awareness and skills to carry it out effectively. It takes a willingness and considerable skill to protect people’s liberty.

The impact assessment before the original safeguards were introduced estimated that 50,000 people may be eligible for them, but that the number of applications would be much lower because not all of those at risk would actually need to be deprived of their liberty to protect it. The assessment also held that numbers would fall after the initial year, as parties became familiar with the safeguards and, crucially, found ways to avoid deprivation of liberty happening. In fact, the opposite has occurred. In 2015-16, 105,000 completed applications were received, of which 73% were granted—86% in London. However, the impact assessment estimated that only 25% of applications submitted would be approved and justifiably deprived of their liberty.

The intention was that the safeguards would drive a change in practice that would seek to avoid deprivation of liberty occurring, but it has not happened. Will these new safeguards do better in preventing people being deprived of their liberty and protecting it, as originally intended? Or will they simply streamline the administrative processes and reduce the financial burden to the state of the authorisation process, while reducing the focus on an individual’s own choices and preferences? These are the fears that are being expressed.

We clearly want more than that. Our goals must be to improve care and treatment for people lacking capacity; to reduce restrictive practice; and to ensure that individuals in vulnerable circumstances, their families and carers have a say in their care. This is absolutely necessary, as people who lack capacity may be dependent on the good will of their carers for some of the most basic rights and freedoms, including, for example, the right to choose and spend time with their friends—rights which we all take for granted. This is an issue I am currently struggling with for the adult relative I mentioned earlier. There is an obvious power imbalance in these relationships. The Law Commission report suggested wider changes to the Mental Capacity Act than envisaged in the Bill, including giving more weight to the individual’s wishes and preferences and the establishment of supported decision-making. However, the Government’s impact assessment states that they have decided not to legislate for this,

“at this point, as we think there are other effective levers to deliver improvement in these areas”.

What are these other effective levers?

A key concern of the post-legislative scrutiny committee was the abject failure of many services to understand how to increase someone’s capacity by, for example, providing them with accessible information; patiently making up for limited educational opportunities by increasing their understanding; assessing their communication skills, as recommended by the Royal College of Speech and Language Therapists in its briefing; and assessing their capacity to make a specific decision on more than one occasion. This is what supported decision-making involves and it takes time. The noble Baroness, Lady Browning, explained how time-consuming this is when it is done well. Alongside the need to give individuals a voice about their own care is the need to give families and carers a voice. The principle of best interests in the Mental Capacity Act had much to say on consulting others involved in the individual’s care. I share the concerns expressed by the noble Baroness, Lady Browning, about the Bournewood gap. Would HL have still been detained today, but legally, and would his carers’ views have still been overridden? In his evidence to the post-legislative scrutiny committee, Mark Neary said that he would not want any other family to have to experience the heartache and trouble he did. Will the role of families and LPAs be strengthened or weakened by this Bill? If strengthened, will the Minister reassure the House by explaining exactly how?

Some practitioners have suggested the introduction of support agreements, which would allow people with learning disabilities to nominate their own supporter or co-decision-maker, thus shifting power back to disabled people and those they rely on to help them make decisions. These would be a bit like lasting powers of attorney, only easier to make and more geared towards supporting the person to make decisions for themselves or jointly making decisions with a trusted person. Co-decision-making is very popular with grass-roots community organisations in Canada, and it is being adopted in Ireland, Australia, Texas, Israel and many other states and countries.

The responsibility for gathering the necessary proposed assessments, identifying whether a person is being deprived of their liberty, determining the person’s capacity, and determining whether the arrangement is necessary and proportionate and who should be consulted—all of this may be left to the same person: the care home manager. This puts a large responsibility on this individual and creates a potential conflict of interest. The person who may be responsible for the deprivation may also be responsible for assessing and gathering information. This hardly seems an appropriate way to balance the power differential, and I would like reassurance on this. Do care home managers currently have the skills to take on this responsibility? The impact assessment suggests that they will need half a day’s “familiarisation” with the new policy. That would not be sufficient.

My third area of concern is the ability to appeal decisions to deprive individuals of their liberty. The new role of an approved mental capacity professional is proposed—an independent, skilled assessor with a role similar to that of approved mental health professionals in the Mental Health Act. The expertise and independence of this role is a welcome addition to the safeguards, but it seems that AMCPs will only be called upon if the individual objects. Who judges if the person is objecting? Even access to an independent review would need to be facilitated through the care home manager, as would access to advocacy. We need to think carefully about this.

Finally, the appeal process will still be through the Court of Protection, but this process has been criticised as more complex and more difficult to access than the tribunal system in the Mental Health Act. The impact assessment suggests that only 0.5% of cases will end up in the Court of Protection. But given that a quarter to a half of patients detained under the Mental Health Act appeal to the tribunal system, can the Minister explain how the Government have arrived at such a low number? The review being chaired by Sir Simon Wessely is due out later this year and, as we have already heard, some proposals are expected to relate to the interface between the Mental Health Act and the Mental Capacity Act. Could the Minister clarify, as other noble Lords have asked him to do, whether the Bill will be further amended when the Wessely review is published or whether the final stages of the Bill will be delayed until we know the content of that review and its recommendations?

This amendment Bill may work out to be cheaper for the state, although there are worries about the increased burden on care providers. The role of your Lordships’ House in Committee will be to ensure that the proposed liberty protection scheme lives up to its name.

NHS: Brexit-related Risks

Baroness Hollins Excerpts

Thursday 5th July 2018 Lords Chamber

[Lord O'Shaughnessy]

I am very pleased to do so. The Windrush generation has made a fantastic contribution to our NHS and caring services.

[Baroness Hollins (CB)]

My Lords, I am glad that contingency plans are being made. The British public voted to leave the EU because of the promise of £350 million a week to save our NHS. We now hear, however, that Brexit could have catastrophic consequences for the NHS in areas such as staff recruitment and essential supplies and for the adequate resourcing of the NHS to the standard of our EU partners—a standard that we do not yet reach. Will the Minister admit that these promises were wrong and tell the British people that we may need to think again?

[Lord O'Shaughnessy]

It would be a big mistake for anybody to tell the British people that they voted the wrong way. I point out to the noble Baroness, however, that, whatever was on any side of the bus, as a result of the funding plan announced by the Prime Minister there will be £394 million a week more in real terms for the NHS by 2024. I am also pleased to say that there are more EU staff working in the NHS today than two years ago.

National Health Service: Mental Health Funding

Baroness Hollins Excerpts

Wednesday 20th June 2018 Lords Chamber

[Lord O’Shaughnessy]

Although the particular funding the noble Baroness is talking about is a Home Office issue, I can say that £100 million is available until 2020 to support the victims of domestic violence. From the health service perspective, obviously we are increasing the amount of money spent on treating those with mental illness, regardless of the cause that gave them their illness in the first place.

[Baroness Hollins (CB)]

My Lords, does the Minister agree that more oversight is needed—not just through the mental health dashboard—of how and how well clinical commissioning groups meet the mental health investment standard, previously known as parity of esteem? Can he also explain why the mental health investment standard does not include people with learning disabilities who have mental health needs? Further, what assurances are there that clinical commissioning groups will continue with their current level of investment once the national sustainability and transformation fund finishes?

[Lord O’Shaughnessy]

I reassure the noble Baroness that there is independent audit of performance against the mental health investment standard. Anyone with mental health problems, whether they have learning disabilities or not, should certainly be included in the figures. I am alarmed by what she has said and obviously I will look into it and write to her. However, it is important to say that CCGs have been increasing their spending. In 2016-17 they were expected to deliver at least 3.7% growth in mental health spending, but the actual outturn was 6.3% growth, so that is a good story.

Long-term Plan for the NHS

Baroness Hollins Excerpts

Tuesday 19th June 2018 Lords Chamber

[Lord Hannay of Chiswick]

My Lords—

[Baroness Hollins (CB)]

My Lords—

[Baroness Manzoor]

My Lords, it is the turn of the Cross Benches.

[Baroness Hollins]

My Lords, there is much concern in this House about social care. Can the Minister confirm that the now-promised social care plan will address not only the needs of older people but the needs of all vulnerable people of all ages? It is a little-known fact that the cost of meeting the needs of people with learning disabilities will soon overtake the cost of care of the growing number of older people. It is really important to address that.

[Lord O'Shaughnessy]

The noble Baroness is quite right to highlight the care for this vulnerable group of adults. As she knows, there has been a parallel work stream alongside the work for the Green Paper. Those are two allied but separate pieces of work. At this point in time I do not have a specific date for when that work will emerge into a report or a review, but I will write to her with the details because the Government agree with her that this issue is of equal importance.

Health Inequality: Autism and Learning Disabilities

Baroness Hollins Excerpts

Thursday 10th May 2018 Grand Committee

[Baroness Hollins (CB)]

My Lords, I, too, have a family interest. My son has a learning disability and is on the autistic spectrum.

The Learning Disabilities Mortality Review report was discussed briefly following an Urgent Question last night, and the Minister made some very reassuring comments about training, on which I hope that he will expand today. The mortality review is an extremely important programme, but it cannot change entrenched discriminatory attitudes on its own. Equally important is what action Ministers, NHS England and NHS trusts take to prevent avoidable deaths, given this important evidence.

Interestingly, the recommendations in the recent report are almost identical to recommendations made in 2007 Mencap’s game-changing Death by Indifference report: make sure that hospital staff understand about people with learning difficulties. Make sure that hospital staff work together with other agencies, including families, and that they understand the law on capacity and consent. They are the same recommendations every time, but we do not seem to be able to do anything about it.

It is critical that tackling health inequalities faced by people with a learning disability and/or autism is a priority among Ministers. NHS England must continue the funding of the mortality review programme beyond its current one-year extension and continue the good work of its learning disability programme beyond next March. Other confidential inquiries are permanent. Why is this group being treated differently?

In addition, individual NHS trusts must take urgent action in line with the recommendations of the review, not least in improving learning disability awareness training and practice in relation to the Mental Capacity Act. Doctors and nurses probably need a lower threshold for admission and to understand that sending a person with a learning disability home and suggesting that they come back if they are worried is inadequate. That may be one reason for the episodes of sepsis which underlie 11% of the deaths reported by the learning disability review.

The third sector is campaigning effectively, but it needs the Government and the NHS to commit, too. Mencap launched the Treat Me Well campaign in February, an aim of which is to ensure that no health professional sets foot on a hospital ward without learning disability awareness training. Dimensions, another national learning disability provider, is launching an initiative to offer training within primary care, and we have heard about SeeAbility’s report.

In my time at St George’s at the University of London, the most effective training for medical students was co-delivered by people with learning disabilities. Sadly, it ended on my retirement, because it depends on having a learning disability expert on the staff. If it was mandated, it will be different.

We know that involving people helps health professionals to understand what it is like to have difficulties communicating or understanding complex information. I look forward to working with the noble Lord, Lord Touhig, who has raised this important subject today, and other noble Lords, including the Minister, on this agenda.

Learning Disabilities Mortality Review

Baroness Hollins Excerpts

Wednesday 9th May 2018 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I declare my interest as the chair of a social enterprise that creates communication resources for people with learning disabilities. My own research more than 25 years ago uncovered very similar shocking inequalities. The noble Lord has responded to a question about education but is it not now time for there to be mandatory education for all healthcare professionals? This is not a specialist matter. Does he agree that such training should be co-delivered by people with learning disabilities in order to reduce the fear and lack of understanding among health professionals when it comes to making reasonable adjustments? What action will be taken now?

[Lord O'Shaughnessy]

The point that the noble Baroness makes about the involvement of people with learning disabilities in this process is critical. I did not respond to a question from the noble Baroness, Lady Jolly, about communications with people with learning disabilities. Having written a manifesto in the past and having had it translated into the Easy Read format, I know that this is critical. I know that there are attempts to make sure that communications are made in that format where it is helpful to do so.

On the noble Baroness’s question about training, we have a really good template which my honourable friend Caroline Dinenage mentioned in the other place yesterday, and that is dementia training. It is tiered, with tiers 1 and 2, and it has been rolled out very broadly across the health and care sectors with great success. Therefore, I think that we have a template for doing this, and I know that my honourable friend is taking that forward. It was a specific recommendation in the report by the University of Bristol. My honourable friend committed to take forward with NHS England all those recommendations, and that is what we will endeavour to do.

The Long-term Sustainability of the NHS and Adult Social Care

Baroness Hollins Excerpts

Thursday 26th April 2018 Lords Chamber

[Baroness Hollins (CB)]

My Lords, unlike the noble Lord, Lord Saatchi, I cannot see into the future, but I remember the past. In 1980, when I was a senior trainee in psychiatry, the Reith lecture series was given by Sir Ian Kennedy, who addressed the fundamental problems with healthcare in this country at that time. High among the problems he identified was the value we place on acute hospitals. He argued that prevention was always better than cure but that, unfortunately, spending was always on cure, not on prevention. That was 38 years ago, and despite numerous transformations in the NHS, we are still having the same debate and reaching similar conclusions today. The noble Lord, Lord Prior, commented earlier that too little attention has been paid to prevention in the last six years. I suggest that it has been longer than that.

A consensus is forming today around the need for a more coherent and non-party political long-term strategy, with more robust community healthcare, social care alongside healthcare, and for the same value to be given to mental health as to physical health. In paragraph 34 of this game-changing report, the Royal College of Nursing is quoted as saying that we must consider health and care services and budgets as “fundamentally connected and interdependent”. However, we also heard today about the gap between these aims and what is actually happening on the ground.

I worked as a psychiatrist in the NHS for over 30 years, and will focus my remarks on my own areas of expertise in mental health and learning disability. These services should be at the vanguard of a new sustainable health service. Most practitioners in mental health work in community settings rather than hospitals, and I recall from my own practice my team’s endeavours to prevent the admission to hospital of people with learning disabilities who also have mental health problems, unless absolutely necessary for short-term specialist intervention. The services I developed and had the privilege of working in had close links to social care, with workers working alongside mental health and learning disability workers in community teams. They worked with some of the most vulnerable, isolated people in society who not only struggled with their mental health but had poor physical health outcomes and died much younger than their non-disabled peers. Such close working seems less possible today.

The learning disability Transforming Care programme is due to end in March next year without having changed the all-too-common factor of a one-way hospital admission in crisis being the only option available. I left the debate briefly today to discuss the case of a young autistic man who has spent the last nine years in a private psychiatric unit. He was detained under the Mental Health Act on grounds of learning disability and aggressive behaviour. A recent attempt under the Transforming Care programme to discharge him unfortunately resulted in readmission after only three months. This was because of inadequate support in the community. Funding disputes were central to that failure. The social care support provider has still not been paid a penny, and the local NHS failed to take any responsibility for him. This local failure, still repeated around the country, is priming a boom in private hospital care, costing the NHS as much as £8,000 a week per person. Long-term admissions are good for business but not good for patients. I conclude from this that the barriers within the bureaucracy currently in place are making it well-nigh impossible to provide skilled, effective personalised care for people like the young man I have mentioned.

The Royal College of Psychiatrists highlights that, despite the Government reporting “record” levels of mental health spending, mental health NHS trust income is lower than it was in 2012 once inflation is taken into account. Referral numbers are going up, while the ability of trusts to provide services is going down—the exact opposite of a sustainable system, despite a more confident and competent discourse about mental health and the promised commitment to parity with physical healthcare. According to a freedom of information request reported in the Independent, nationally 50% of clinical commissioning groups say that they are planning to spend less of their total funding on mental health during the current year. How can this be right?

Funding is now so complex that it is difficult to track how national priorities are being translated locally. In any new long-term funding plan for the NHS, new money must not simply paper over the cracks in the current crisis, shifting the problems just five years further along into the next electoral cycle; nor must the money be sucked into acute hospitals, in keeping with practice over the last 40 years. Instead, it must be distributed with a focus on prevention. Funding for mental health services must be ring-fenced. Most importantly, social care should share in the benefit from any extra resources. The Association of Directors of Adult Social Services is calling for parity of esteem for the social care workforce. Its chair wrote that it is a source of shame that this is a minimum wage workforce and asks for serious consideration to be given to regulating the care workforce and to investing adequately in it.

I commend this important report. I also commend my noble friend Lord Patel for his leadership and, in particular, for his call for better health and care outcomes for everyone, including the young man whose shocking case I described earlier.

Health: Medical Respite for Children

Baroness Hollins Excerpts

Wednesday 21st March 2018 Lords Chamber

[Lord O'Shaughnessy]

Yes, I would be happy to do so. I am disturbed by the picture that the noble Lord has painted. He will know, I am sure, that the Government have set out our commitment to end the variation in end-of-life care, and of course this is a co-commissioned service. I would be very pleased to meet him to investigate that.

[Baroness Hollins (CB)]

My Lords, what measures are being taken by the NHS to check that CCGs have the range of specialist expertise available to be able to make assessments individual by individual? These children’s needs are complex. From my experience, often the assessors may be expert in one area but not necessarily that of the case they are assessing.

[Lord O'Shaughnessy]

The noble Baroness is quite right. Many of the children we are talking about are receiving continuing care to meet all their needs, and delivering that is very complex. A national framework for continuing care is being revised at the moment, and it will provide the picture for the skills mix that is needed at local level to ensure that these children are properly served.

Children and Young People: Mental Health Services

Baroness Hollins Excerpts

Thursday 8th March 2018 Lords Chamber

[Lord O'Shaughnessy]

These are interconnected but separate issues. Anyone can suffer from mental health problems, including a high propensity of children with learning difficulties. A separate line of work led solely by the DfE is providing specific educational support for children with learning difficulties. The point of having specialist staff in all primary and secondary schools is to spot any child, whatever their vulnerability, and signpost them to services.

[Baroness Hollins (CB)]

My Lords, have the Government done any analysis of the numbers? My daughter is a child psychiatrist working particularly with younger children. She points out to me that there is little attention given to the needs of nought to two year-olds and their mental health in the Green Paper. We know that interventions are important in those early years. For the prevention of adverse childhood experiences and interventions after adverse childhood experiences, does the noble Lord consider it wise to ring-fence funds to support prevention and early intervention at that stage?

[Lord O'Shaughnessy]

The noble Baroness makes an excellent point about the importance of that age group. I will write to her giving the specifics of the support available to children and families with children of that age. A significant amount of funding is going into specialist perinatal and mental health services for mothers, which is a big part of the picture, but not the whole. Health visitors are being trained in mental health support. I will write to the noble Baroness with more details but I am sure there is more to be done.

Dental Care

Baroness Hollins Excerpts

Thursday 1st February 2018 Lords Chamber

[Lord O'Shaughnessy]

I recognise the benefits of fluoridation that the noble Lord has pointed out. There is no question about that. But we know that this is a very difficult and vexed issue locally—there are strong feelings either way. That is why the position was reached in the 2012 Act. The noble Lord’s idea of a discussion is a good one. I should point out that it is not a policy area on which I lead so I will have to speak to my colleague in the department, but if we can get that going and think about ways to encourage more action it would be a very clever thing to do.

[Baroness Hollins (CB)]

My Lords, I am sure that the Minister is aware that adults with learning disabilities are also at considerable risk of tooth decay, in part because of difficulties in maintaining their dental health. What measures are being taken to improve their dental health? I declare an interest here because I published a book on the subject. I am concerned too about excessive sugar consumption as a major cause of tooth decay. This is a risk for children and adults with learning disabilities. Will the Government consider introducing a ban on advertising high-sugar products on television before the watershed?

[Lord O'Shaughnessy]

The noble Baroness might send me her book so I can get her ideas on reaching adults with learning difficulties. Most adults with significant learning difficulties are likely to be on a range of benefits. That means that their dental care is free, if not for all, I suspect, then for some. She is absolutely right to point to sugar. We now have the sugar levy, which has had a really big impact. About 50% of drinks that would have been affected have been reformulated to either reduce or remove the application of that levy. That is a really good impact. On her point on advertising, we have very tough advertising rules in this country, including the banning of advertising of sweet drinks, sugary products and so on in children’s media. That is one of the reasons why we are seeing some hopeful signs on, for example, the number of extractions falling in primary care year on year.