Mental Capacity (Amendment) Bill [HL]

Baroness Murphy Excerpts

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

As the noble Baroness, Lady Murphy, noted in that debate, the notion that the majority who flit through the system, on short-term contracts and training, many of whom come from outside the EU, can in half a day master the Mental Capacity Act and be trained through this process to make a proper assessment and identify people within the meaning of the Act is completely ludicrous. The care home manager will be responsible for these people and for ensuring that all the things in this Bill actually take place. I do not believe, in all justice, that they are the people to do it, nor do I think they have the capacity to do so.

[Baroness Murphy (CB)]

My Lords, I find myself in something of a dilemma because I have already said that I am very anxious about the role foreseen for care home managers in this Bill. I am also getting the heebie-jeebies about how we are criticising the Bill because of how we have got here in the first place. The noble Baroness, Lady Finlay, and the noble Lord, Lord Hunt, have already mentioned that we are here because at the moment we have a bad piece of legislation; it is not being implemented appropriately because we cannot afford it. The Law Commission, the Department of Health and the Ministry of Justice have tried to bring forward a piece of legislation that makes it a lot simpler.

We are used to having conflicts of interest in public sector services. Every time a GP refers somebody for a hospital appointment or surgery or prescribes expensive medication they have a financial conflict of interest, but we live with that because of the way that the system works. We are used to it—we take account of it day by day.

I am not going to oppose these amendments but we have to say to ourselves that the care home manager is there and we know that the local authority has not got the resources. Would it work better if we could give care home managers proper training? I do not know, but I know that we must at every stage think very carefully about the alternatives that we propose instead of the departmental proposals. We have to make the process simpler. We have to reduce the numbers of people who are subject to it. Perhaps if we reduced the number of people subject to it, we could put in place these better arrangements. Maybe then we can take out the care home manager. Until we do so I still have this great anxiety that we have not come up with an alternative that will really work.

Although I share the anxieties about how care home managers will discharge this responsibility, I have some anxieties about the alternatives. We have to make the process simpler and more affordable. I neither support nor oppose these amendments. We need to give some very careful thought to making sure that we do not end up with a more complex and difficult process than is implementable and affordable.

[Baroness Meacher (CB)]

My Lords, I was not planning on speaking to this amendment at all. I am certainly not an expert on the Mental Capacity Act, but it was suggested to me by BASW that the Bill will cover people in domestic situations. It questions whether those people could be taken out of the Bill. I very much follow the point made by the noble Baroness, Lady Murphy, that it might be a good thing to do something really well for people in institutions while maybe avoiding duplication for people in domestic situations. There is the safeguarding procedure, which, as has been suggested by my medic daughters, is already incredibly bureaucratic, but I will leave that to one side for the moment. If at least the people in domestic settings were left to be assessed by the safeguarding system, that would achieve something and reduce the number of people covered by the Bill. This is particularly true because, as we go along, more and more people will be looked after in domestic settings rather than in care homes.

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[Baroness Finlay of Llandaff]

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

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

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

[Baroness Murphy]

My Lords, I added my name to the amendment of the noble Baroness, Lady Jolly. In view of my previous comments, people may be surprised that I did because it seems to be making life more complicated. In fact, I saw the more professional pre-authorisation process for the smaller group who will eventually be subject to this Act, I hope, as introducing something for the high-risk people who will be assessed by professionals. I like the role of the new AMCP, which sort of takes over from the best interests assessor, because I think it will be a well-qualified group. It would add some solid support if the care home manager’s role is to continue. I saw this, when I first read it, as a good way of providing some pre-authorisation backstop, if you like—a solid foundation on which we would have more confidence that the care manager role could work. I am still anxious about the care management work for all the reasons that the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, mentioned, but this was one way that I saw of adding some professional expertise that would give confidence to the mental capacity community that we were taking this seriously.

[Baroness Thornton]

My Lords, I added my name to the amendments of the noble Baroness, Lady Jolly, and to my noble friend Lord Hunt’s amendment. Pre-authorisation review is essential. We support these amendments because they propose that everyone should have access to an approved mental capacity professional. As drafted, my understanding is that the Bill gives that access only to those who object to the proposed arrangements. If everybody had access to an AMCP it would lessen concerns about the significance of the independence of the reviews.

Age UK has said:

“In respect of self-funders in private homes, there is an existing principle in mental health law that where an assessor has a financial interest in the decision to deprive someone of liberty there must also be an independent external assessor. A preauthorised review by an Approved Mental Capacity Practitioner … will bring this section of the Bill into line with this principle, which is currently reflected in the Conflicts of Interest Regulations to the Mental Health Act. Without such a requirement a significant conflict of interest for the care home manager is likely to arise”.


I will not say more because I think that we have explored that issue.

There also seems to be an assumption that care homes will already have existing written capacity assessments and that staff will have the knowledge to carry out such an assessment. As we have already discussed, that is clearly not the case.

This is a significant group of amendments. The Minister needs to take heed that we are, in a way, returning to some of the fundamentals that underpin the legislation. We on these Benches have listened carefully to stakeholders and are fairly sure that the Government have not got it quite right. As the noble Baroness, Lady Barker, said, in this House we have always proceeded on mental capacity issues on a consensus basis. We would much prefer that that was the case because we have come up with solutions to these very difficult, knotty, complex problems that cut across health, justice and liberty, and take account of things such as the United Nations and the European Union’s rights of the individual. This House is famous for doing that—I wanted to say that at some point this afternoon. This group of amendments lends itself to that because if we get the pre-assessment regime right then a lot of other things will flow from it that will lead to the right decisions and minimise the risk of local authorities, health authorities and CCGs ending up in court because the right procedures have not been taken and the rights of the individual have not been managed.

The noble Baroness, Lady Finlay, mentioned the qualifications needed to be an assessor. We have had several briefings from BASW, for which I am very grateful, that explain how well qualified the people involved in this process are. That of itself creates a problem for care home managers to undertake these issues.

I will paint a scenario for the Minister. If the local authority is the responsible body and therefore will end up in court if this does not work out—it will be expensive and time-consuming and behind it will be an individual who has not been treated properly—it seems quite likely that the local authority will be very risk-averse to the tick-box system that the Bill suggests to assess whether the right procedure was gone through in the assessment process.

Does the Minister agree that we might actually increase the bureaucracy and delays in the system, simply because we did not get the pre-assessment right? That could create one of two things: either a local authority will keep referring back the assessments for reprocessing or it will let through assessments which do not do the trick and therefore bear the risk of ending up in court because somebody’s individual rights have not been properly taken into account. Not only is this an issue of doing right by the individual but there is possibly a compelling case for why it is important to get the pre-assessment right. If we do not, the Bill fall shorts on Article 5 of the ECHR. Had the Government followed the Law Commission’s draft Bill, which contained these safeguards, I think that we would not be having this debate in this form.

Mental Capacity (Amendment) Bill [HL]

Baroness Murphy Excerpts

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

[Baroness Browning (Con)]

My Lords, I refer to my interests in the register. I will pick up on two points that have been raised in the amendments, particularly the amendment in the name of the noble Baroness, Lady Finlay.

At Second Reading, I too raised my concern about the status of attorneys with lasting power of attorney, particularly over wellness and health. These are some of the most personal decisions. In some ways, I am more concerned about that than about attorneys who have power over the money. Money always seems a rather black and white matter—it either is or is not a good idea. But there are many shades of grey over health and, in particular, well-being. I should like to link this with decision-making and the other point in the noble Baroness’s amendment, about the need for qualified speech and language support to interpret and make sure there is a clear understanding of what “P”’s interests really are.

When you look at certain people with certain disabilities, particularly those with communication disorders—such as autism, learning disabilities and, of course, dementia—it is not always the case that they cannot express a view. But getting to that view—unless it is a real, life-threatening medical emergency—takes quite a long time. First, particularly those with autism and a learning disability, the individual has to be comfortable and familiar with the person asking the questions, however experienced. It is no good sending a stranger in for a five-minute cup of tea and a quick chat and thinking that person will then disclose their innermost feelings. How many of us would?

The point is that getting to that view might often be about something known for many years by someone who has been appointed as an attorney with a lasting power of attorney. I believe the two things are linked in those cases. We know from the Alzheimer’s Society that such a lot can be achieved for the quality of life and well-being of people with dementia and Alzheimer’s by giving enough time, when asking a question, to allow the person to process the information before they give an answer. Brain function is very different in these people. They need time to process the question they are being asked and to process how they will communicate the answer; it can take quite a long time.

This point was picked up quickly by the Alzheimer’s Society which says, for example, on a very simple matter, that when people with Alzheimer’s in residential care homes are asked whether they would like tea or coffee and do not immediately reply, they are processing the question and that can take a long time. They might prefer coffee today, but because they had tea yesterday, the answer may be quickly assumed—“I expect you will have tea, you always have tea”—before they can even process the information and the way they will communicate the answer.

How much more complex it is, and how much more time is needed when people are being asked more complicated questions about potentially life-changing decisions. This cannot be left only to someone with speech and language experience, important as that is, and such people need to be experienced. But people with a lasting power of attorney, who might have held an LPA for many years, and who know the individual extremely well, are in a prime position to act as an interpreter when important decisions are being made.

I believe my noble friend is aware of my view on this already. Those of us who served on the original Bill and its pre-legislative scrutiny many years ago know that a lot of thought went into the existing Bill on LPAs. To have one part of a Bill give rights to an individual through their attorney but then to diminish that in another part of the Bill, through amendment, seems not only wrong but seriously, morally wrong. I hope my noble friend will address this point when he replies to this amendment.

[Baroness Murphy (CB)]

My Lords, I have added my name to Amendment 20, tabled by the noble Baroness, Lady Thornton, and I give my strong support to the amendment in the name of the noble Baroness, Lady Finlay. I pay tribute to the good sense that the noble Baroness, Lady Browning, has just brought to our debate.

A theme that will run through our discussions and will come up again when we come to advance decision-making is that we must have more respect for those who have been trusted by an individual to make decisions on their behalf. We must encourage people to make plans and to think about the future, and we must ensure that those who make the very wise decision to appoint a lasting power of attorney are respected. As we have already heard, we do so in other parts of the Bill, and we should not remove that when we come to the question of deprivation of liberty. We must incorporate it in the general scheme of things. It seems absolutely crucial that we respect decisions made by people who have power of attorney and by the court’s appointed deputies. I strongly support the amendment.

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[Baroness Jolly (LD)]

My Lords, I will resist the temptation to rerun Second Reading, but I thank all the organisations which have provided us with informative briefings as well as all the individuals, academics and carers who have done so—you all know who you are.

This rather ugly Gorgon of a Bill matters. It matters to those who are vulnerable and will unknowingly place their future in its hands. It matters to diligent professionals from both the NHS and care services. They do not know it, but it matters to the general population, too—many will become carers one day.

I wish someone had had the courage to tear it up and write a Bill that was clear, compassionate and contemporary—but they did not. Because we care we will spend the next few days in Committee and beyond, trying to make it fit for purpose. The noble Lord, Lord Hunt of Kings Heath, has given us the briefing around which we shape this debate on Clause 1 stand part and for which I thank the Relatives & Residents Association. It covers the role of the care manager, the centrality of the cared-for person and their views, best interests and advanced wishes; an understanding of what deprivation of liberty is, access to information and, indeed, cost.

It is worth mentioning that there are amendments from all over the House that cover each of these areas. Like others, I am concerned about the role of the care manager as assessor. Over the last few years I have met many kind, efficient care managers, both professionally and in my role as a carer. As professionals, they run hotel services, ensure that care needs are met and rosters are filled and deal with people who lack capacity with compassion. But experts in mental capacity they are not and I am concerned that they are given such a key role in this Bill. As chair of a not-for-profit organisation that cares for people with learning disabilities in residential settings, I know how hard it is to do this on the money that local authorities give us.

An efficient home is a full home. The person who determines whether someone should enter that setting or go somewhere else should, under no circumstances, be the manager. The conflicts of interest, no matter what checks and balances are in place, will always be there and that is the same for the private sector, not-for-profit and even, where it still exists—and I believe it does in parts—the public sector. Training and awareness should minimise this but we must be on our guard.

Everyone accepts that the 2005 Act has become not really fit for purpose and that this is a patching exercise. Everyone accepts that DoLS has run its course. Many believe that what we are trying to amend is drafted to save costs and that goes back to the briefing that this debate is based on—people live longer, care costs increase and these processes are not cheap. Can the Minister confirm that these amendments are all drafted to be the most effective way to deliver a better service and not as a cost-cutting exercise?

The noble Lord, Lord Hunt of Kings Heath, mentioned consultation, which is something that we on these Benches are concerned about. My understanding is that consultation did go on but it was with individuals grouped together—they were like focus groups of care home managers, social workers and so on. There was no consultation of the organisations, the umbrella bodies. I phoned many organisations before putting my thoughts together and tabling my amendments. All of them came back to say that they are going to see the department this week or next week but that they have not spoken yet. I think that is disappointing.

Much as there might be a temptation to scupper this Bill by supporting Clause 1 stand part, I know that it is for now the only alternative. I will do that in the hope that the Minister tells his right honourable friend the Secretary of State for Health and Social Care that it is barely good enough and that future patching of legislation is not acceptable. The people we are discussing really deserve better.

[Baroness Murphy]

My Lords, I support the noble Lord, Lord Hunt, in his endeavour to raise this important issue about care homes. I know we will return to it. This is a very good example of where I had not really thought about the twin-track approach to raising the safeguarding issue. I understand completely how this came about as an attempt to try to improve on the monstrous bureaucracy of DoLS. This is a very good example of that, to which I think the noble Baroness, Lady Jolly, alluded. We have a monstrous Bill at the moment. I remember discussions at the Law Commission with the Royal College of Psychiatrists as to how we might make it more streamlined and reduce costs, which in my view is pretty crucial if we are to target the right people. That led to the production of a process to involve care home managers which, on the face of it, looked as though it would cut bureaucracy.

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On a personal note, I have a 12 year-old niece who has severe mental capacity issues. I discussed what will happen to her when she is 16 and became aware that there seems to be a vacuum; there is an issue here which this legislation needs to address. So, in my personal capacity, I hope that we can resolve this issue. I beg to move.

[Baroness Murphy]

My Lords, I support this amendment. As the noble Baroness, Lady Thornton, has already said, the Royal College of Psychiatrists feels strongly that this would clarify decision-making. There may be issues arising from the fact that when the Bill was being put together we had not yet had the Birmingham judgment, which is why we are not quite there yet. However, having the four regimes that we currently have to choose from for this age group makes it very difficult to make appropriate choices. This would clarify it. It was strongly supported by the Law Commission in its first recommendations, and I support it.

[Lord Cashman]

My Lords, I too support Amendment 2 in the name of my noble friend Lady Thornton, and the consequential amendments. I am grateful to her for bringing her personal experience to this and reminding us of the young individuals involved. This amendment and the subsequent amendments are to be welcomed. By including 16 and 17 year-olds, it offers better safeguards to those who are not served well at the moment. The amendment would see 16 and 17 year-olds protected by the LPS. It would simplify the system, would bring clarity and ensure that their rights under Article 5 of the European Convention on Human Rights were therefore protected. For those reasons and many more, I support this amendment and the subsequent amendments.

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[Baroness Murphy]

My Lords, the noble Baroness, Lady Tyler, has produced a perfectly adequate descriptor which would substitute perfectly well for “unsound mind”. We always face this difficulty in discussing terms that relate to stigmatised disorders. We have to keep changing the language to keep it up to date and to refresh people’s thinking about what we are dealing with. “Unsound mind” went out in the 1960s and 1970s—I do not think that I have ever diagnosed anybody as being of unsound mind—and we must now have an alternative. We do not need the convenience of it remaining as it was back in the 1950s. Therefore, I support the descriptor given by the noble Baroness, Lady Tyler. It is a very good one. We have used it before and it would be perfectly adequate. Let us ditch “unsound mind”.

[Baroness Barker]

My Lords, I shall not detain the Committee for long but it is important to recap on a bit of history. The original legislation that came before your Lordships’ House on this issue—the Mental Incapacity Bill—was subject to the first ever pre-legislative scrutiny. In going through that then very innovative procedure, Members of this House and another place did a couple of things which at that time were game-changing. One was that we invited people who lacked capacity to come and give evidence to us. But we went further than that. When we produced our report, we invited them back to discuss with them what we had listened to and what we had changed. One of the first and most important things that we did was to change the title from the Mental Incapacity Bill to the Mental Capacity Bill. We also, for the first time ever, produced an easy-read version of a Bill.

I strongly support my noble friend Lady Tyler because this feels like a real regression in thinking. I understand that the term is there because somebody somewhere believes that it has a legal meaning. We came up against those same arguments all those years ago and this House led the way in getting lawyers and counsel to change their minds. I do not see a reason for us not to do the same again.

I wish to add one point. I vividly remember listening to the people whom we invited back to talk to us after we had produced our report. At this point, there were only Members of your Lordships’ House in the room—the Commons were busy and had not turned up. I remember one particular gentleman who said, “When I first saw this, I thought it was really rubbish, but actually you’ve done quite a good job”. I have to say that in all my years in your Lordships’ House I do not think that I have ever received a more sincere accolade. That is not to belittle anybody’s contribution to this, but I think that my noble friend has made a very strong point.

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[Baroness Murphy]

I really struggle to understand where these gaps might fall. For example, these people who have brain damage, which gives rise to a mental disorder, or people who have transient episodes of epilepsy, which might lead to some fugue state—would they not also be included in mental disorder, under the definition suggested by the noble Baroness, Lady Tyler? I cannot see where these gaps might arise. Have they been identified by psychiatrists? If we look through the Diagnostic and Statistical Manual of Mental Disorders, or the International Classification of Diseases, if you prefer, I cannot understand where these gaps might arise.

[Lord Woolf (CB)]

If the real purpose is to ensure protection under the Human Rights Act for those we are concerned about, has the Minister considered whether that might not be achieved merely by stating that the category of people we are looking at should have the benefit of the relevant section of the Human Rights Act? When I say the Human Rights Act, I mean the convention.

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Moved by

[Baroness Murphy]

4: Schedule 1, page 6, line 4, at end insert “, and
(d) if living in a care home or supported accommodation, meets any one of the following conditions—(i) is under continuous supervision and is not permitted to leave the premises on their own, or(ii) is subject to the use of physical barriers to limit their access to particular areas, or(iii) is subject to the use of force, including physical, mechanical or chemical restraint, or(iv) is subject to constant close observation and surveillance.”

[Baroness Murphy]

My Lords, we have come to what I regard as the most important and possibly stickiest, most difficult issue that we face. It addresses the reason why we are all here today with a new Bill to try to solve the problem of the old one, which did not work. Why did the old DoLS not work? Because they were overbureaucratic, very expensive—we are talking about £2 billion a year and this is cheaper at £300 million, although someone said to me that this costing business is rather a science fiction at the moment—could not be implemented and were predicated on a judgment in Cheshire West that extended the previously accepted notion of deprivation of liberty. I wanted to have a first go at introducing a restricted definition of what constitutes deprivation of liberty for the purposes of this Bill.

I am primarily concerned not about the cost, but the risk. When tens of thousands of people are subjected to a procedure, those whose circumstances really need scrutiny and review—because they themselves or their families or professional carers are objecting to their care or placement—are not receiving the focus and energy of the safeguarding process because they are simply lost in the morass of processing so many cases. Already we know that the tick-box mentality has pervaded the existing procedures, and that is not because the people who are trying to implement them have not been doing their best. There are not enough of them. They are trying to rush around with a list as long as your arm and they cannot get through it.

I had heard that there are now 140,000 unassessed cases, although I think the noble Baroness, Lady Finlay, mentioned 106,000. Noble Lords should think how long that list would take to deal with. With a mean length of stay in residential care of two years from admission to death, many elderly people with dementia—who, after all, are being cared for because of a terminal illness—will never be assessed before the great final assessment. By the way, I only hope that when they encounter Saint Peter at the pearly gates they do not find that a specially approved angel has been designated to assess whether heaven is in their best interests or not—it is quite possible. To return to more serious matters, it is crucial that we reduce the numbers that will be scrutinised by this system so that those who are truly at risk of abuse or of receiving less than adequate care are better safeguarded.

Of course, we could wait for another case to come before the Supreme Court for the penny to drop, but Parliament should surely provide a statutory definition of what constitutes deprivation of liberty in the case of those who lack capacity, in order to clarify the application of the Supreme Court’s acid test and bring clarity for families and frontline professionals. There is a risk that the Law Commission’s proposals—the safeguard principles have much merit—will become unworkable both in the domestic sphere, where we have hardly started to take people into the system, and with the potential expansion of the scheme into domestic care settings, which will become exceedingly invasive and difficult to operate. And that is in the context of care homes and joint living arrangements that are not being adequately met.

Many legal experts, including Lord Carnwath and Lord Hodge, found the decision in the case of Cheshire West puzzling. They said,

“nobody using ordinary language would describe persons living happily in a domestic setting … as being deprived of their liberty”.

In their evidence to the Joint Committee on Human Rights, Sir Nicholas Mostyn and Sir William Charles, retired Family Court judges, submitted that the proposed liberty protection safeguards are based on an acid test in which the starting point is legally wrong, and should be revisited. Sir Nicholas noted that,

“no case from Strasbourg has come close to saying that the case of someone of ‘unsound mind’ (as Article 5 puts it) falls within the terms of that article if they are being looked after in their own home”.

Further, he argued that,

“it is surely vanishingly unlikely that Strasbourg would disagree with the narrower test”,

that used to be used. He said that,

“it is after all completely consistent with its jurisprudence, which mandates a fact sensitive approach and which looks at the range of factors such as the intensity of the restrictions in question”.

The Joint Committee on Human Rights agreed with that point and introduced in its report the case of Mark Neary. I will not go into that case now because of shortness of time, but a number of cases were described where people were clearly being deprived of their liberty and families could not understand why it was happening. The new definition from Cheshire West cast a very wide net, capturing people who were content and those who had expressed de facto consent, albeit not valid consent for the purpose of the law. That has led to incredible family distress—people felt that their loved ones were being deprived of their liberty as a result of care plans—as well as resource issues. It sits at odds with the UN Convention on the Rights of People with Disabilities, which emphasises respecting the autonomy and wishes of those with disabilities.

The question is whether an amendment could be introduced to solve this problem. The Scottish Government gave some thought to amending their own Act and suggested a number of principles that might be followed. First, if a regime looks like detention, it does not lose that characteristic just because the person does not display opposition. Secondly, if a regime does not look like detention but the adult displays opposition to staying there, that should be considered as placing significant restrictions on a person’s liberty. Thirdly, a person may be perfectly content to move to another place of residence, but may not agree with aspects of their care, which amounts to a significant restriction on their liberty. Fourthly, a person may remain in the same residential setting, but become subject to changes in aspects of their care that mean they become subject to significant restrictions on their liberty. We often see that in care homes where people are moved from a general unit to a specialist unit for dementia, or to an elderly mental care unit when they become “unmanageable”, with quite serious restrictions placed on them.

A person may be considered as having significant restrictions if: the adult is under continuous supervision and control and is not free to leave the premises; barriers are used to limit the adult to particular areas of premises; or the adult’s actions are controlled by physical force or the use of restraints, by the administering of medication for that purpose or by close observation and surveillance, which can be very intrusive. However, measures applicable to all residents in a given place that are intended to facilitate ordinary, proper management of the premises, such as security cameras at the front door and front door locks—the sort of things we might have in our own homes—should not necessarily be regarded as restricting liberty.

It is crucial that the first principle of the Mental Capacity Act be paramount in any decision. Whenever possible, a mentally incapacitated person should be listened to and their wishes respected. While short-term memory may be seriously diminished, the individual often still recognises the people around them and can express a wish. Where there is a clear agreement between an adult, their family and professional carers, I believe the state should keep its legislative nose out. This may not be the right amendment, and I look forward to listening to others whose ideas are also contained in amendments tabled in this group, but it seems we should concentrate our resources on those who are really at risk, where we are confident that we have the resources to concentrate training and interest on a smaller group.

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[Baroness Murphy]

Perhaps I may just say that the amendment is my first stab at the issue with no help in creating it or any legal consultation. My next will be a lot better.

[Lord O’Shaughnessy]

I am sure it will be and I look forward to seeing it.

As she pointed out, the noble Baroness has a second amendment which makes the point that the steps taken to deprive a person of liberty, life-sustaining treatment or a vital act should be of benefit to that person, and of course we all agree with that. But as the noble Baroness, Lady Finlay, pointed out, before any authorisation is made or arrangements take effect, a decision will first need to be taken that the care or treatment is in the person’s best interests in accordance with Section 4 of the Mental Capacity Act 2005. It is important to note that this amending Bill does not change it, so that will continue to be true if the Bill before us in this House is taken forward as it stands. The legislation is already clear that if actions are taken to deprive someone of their liberty in these situations, it must be to the benefit of the cared-for person. That was at the heart of the amendment spoken to by the noble Baronesses, Lady Jolly and Lady Thornton, so I want to take this opportunity to say that that provision continues to exist because the best interests test foreruns the subsequent necessary and proportionate test, which we will explore in a subsequent group.

On the point made by the noble Baroness, Lady Finlay, about limiting the time for the duration of authorisation of the steps necessary for life-sustaining treatment or vital acts, the intention, as she will know better than me, is to move consideration of the deprivation of liberty to earlier in the planning stage. Nevertheless, there will be cases where it needs to be applied in an emergency situation. I do not need to bring that to light because other noble Lords have done so. Her amendment, which I think is probing, would require authorisations to be renewed every seven days. She will know that there are limited periods at the moment, but unfortunately they are not always adhered to. If we are honest, they can become a target rather than a limit, and I think that is what is happening. We need to make sure that we have a system which gives providers greater clarity but does so in a way that is more sophisticated than could be achieved in legislation. I therefore agree with her that the code of practice is the right vehicle for that because it will be able to outline the different circumstances and scenarios and thus give a much richer picture of the kind of situations and principles that ought to be considered.

This has been a very useful debate and, as I have said, I should like to take some time between now and Report to consider the opinion expressed by noble Lords and in the report of the Joint Committee about the benefits of a statutory definition. Having started that discussion, which is obviously the phrase of the evening, I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Murphy]

My Lords, I am grateful to the Minister for his positive response to the ideas if not to the amendments themselves. We will return to this at the Report stage, as he has said, and I hope that we may have forthcoming from those associated with the Joint Committee on Human Rights some support at that point for the further debates in this area. With that, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Mental Capacity (Amendment) Bill [HL]

Baroness Murphy Excerpts

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

[Baroness Murphy (CB)]

My Lords, this Bill should be a lesson to us all. It is designed to correct the disaster created by another piece of legislation, introduced not to address a common problem or by popular demand by a group, but at the instigation of the judiciary, addressing a problem we did not know we had. Unfortunately, it does not solve the problem, and this House’s ability to improve it will merely ameliorate the ongoing disaster.

The DoLS legislation, since its inception, was designed to plug the Bournewood gap, which the Minister described quite clearly. However, as the noble Baroness, Lady Browning, pointed out, because this legislation will no longer have the best interests of the patient at heart, it will do nothing to close better the Bournewood gap. It will leave that gap and will leave exposed the several related cases. Although the bureaucracy of the Bill apparently tries to address it, it does nothing of the sort.

The problem is that we are trying to combat an edifice of poor professional practice—in this I echo what the noble Baroness, Lady Hollins, said. However, rather than improve professional practice by working in the way that families and professional carers work and talk to each other about what should happen to improve the situation of the individual, we have moved away from what health and social care considerations should look like and into a world of legalities. Legislation and regulation can never substitute for good practice. They can provide a framework within which good practice is enacted, but they are no substitute. That is where the DoLS legislation has been such a disaster. I respect that the virtue in this Bill is the intention to make things safer, more competent and more accountable, but theoretical legal advantages have led to a massively intrusive bureaucracy of paper schedules and rules, which this Bill diminishes but does not solve.

For the past three years, as a result of widespread concern about the adverse impact of the deprivation of liberty safeguards on the care and treatment of older people, I have been the convenor of an informal group of members of the Royal College of Psychiatrists Faculty of Old Age Psychiatry. The group was established to liaise with the Law Commission and other organisations to consider issues arising from the draft liberty protection safeguards and the original Law Commission’s draft bill, part of which—but only part—now comes to this House as a new Bill. I think everybody here agrees that the monstrous piece of bureaucratic machinery that is the deprivation of liberty safeguards has caused untold harm and cost a huge amount of money that has been diverted from finite clinical and social care budgets at a time when the country can ill afford it, and when the quality of care in hospitals and residential homes is barely adequate and often downright poor. The money pouring uselessly down the DoLS drain is a disgrace. The detailed problems were well articulated by the Law Commission in chapter 4 of its paper 372, published last year.

The Law Commission, through Tim Spencer-Lane and his colleagues, has done an enormous amount of hard work and consulted widely to produce improved and less bureaucratic procedures. However, it was constrained by its brief to take the judgment in Cheshire West as the starting point, which contained, in my view and that of many others, an unworkable definition of “deprivation of liberty”, which most people find extraordinary. That is my main concern about the Bill before us today.

Before I get on to the definition issues, however, I want to express my surprise and concern that some of the most far-seeing and progressive parts of the draft Bill produced by the Law Commission have been omitted from the Bill before us. As many others have mentioned, we have lost proposals that were either accepted or accepted in principle in the Government’s response to the Law Commission. The first relates to strengthening the place of the individual’s wishes and feelings in Section 4, any notion of which has been abandoned in favour of what is “necessary and proportionate”. These are vague words that may well imply that, in this age of austerity, the person will get care in a way that is convenient for the authorities making the judgment to impose and that does not take account of the individual’s expressed wishes or include a discussion about what they might wish. Although “best interests” is mentioned, when the crunch comes, it will be ignored.

I want to refer here to the description of a person as being of “unsound mind”. If that is old-fashioned now, and clinically irrelevant as a phrase, what will it sound like in 10 years, when it really will be past its prime? It is simply not a phrase that we should be using in the Bill.

Secondly, the proposal to strengthen the safeguards around Section 5 in relation to serious interference in people’s lives has been ditched. Thirdly, the proposal enabling advance consent to be given has been omitted, which was accepted in principle and would have had a real part to play in allowing people to say what arrangements they are happy to accept when it comes to a later stage in their life. Fourthly, regulation-making powers for supported decision-making schemes have been omitted. Again, all of these were thought at the time by the commission to be important steps necessary to strengthen the Mental Capacity Act in how it works across the board. There has been widespread approval of these provisions by families, professionals and lawyers—a unanimity that is quite rare. Can the Minister explain why these good things have been dropped when there was such an initial positive response? It is not as though there will be another chance. There will not be another Mental Capacity Act for some time, probably years, so now is our chance to improve it.

I return now to what is meant by “deprivation of liberty”. The Cheshire West Supreme Court judgment 2014, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, indicated, gave a significantly wider definition than had been previously understood both by public authorities and the lower courts to apply in the health and social care context. I will not repeat the argument of the noble and learned Baroness, Lady Hale— a bird in a gilded cage is still a bird in a cage—but her logic, as always, is totally unassailable. However, it has been applied in cases that the Supreme Court did not have the opportunity to review. Difficulty arises where everyone—patient, family members and professionals—are all either consenting to admission and the care and treatment as proposed or are not objecting, which also applies to patients in their own homes.

Approximately 750,000 people in the UK—I have heard a figure of up to 2 million, but I am talking about people who have definite and serious lack of capacity—lack the capacity to make major decisions, and the vast majority of these patients fall into “willing” or “not objecting” categories when it comes to their care. Two-thirds are living in their own homes. It is hard indeed to see in what way they are deprived of their liberty by being admitted willingly to a hospital, nursing home or hospice or being cared for in their own homes by family or professional carers whom they are happy to receive. Furthermore, when these Supreme Court criteria are applied to patients admitted to general hospitals, hospices and care homes as the Mental Health Act 2007 dictates, a ludicrous situation now arises. Before anything is done for the patients, a bureaucratic procedure is enacted to ensure that their rights are being considered, although in practice, nothing changes as a result. Lots of forms are signed and boxes ticked but little else.

Approximately one-third of older patients admitted to hospitals through A&E departments are suffering from transient confusional states consequent on physical illness, or mild cognitive impairments that intermittently, fluctuatingly or permanently affect their capacity to consent. The vast majority of such individuals—of 16 million annual hospital admissions, an estimated 3 million individual admissions—fall under the current jurisdiction. Because nobody is implementing this Act, they are currently being treated informally in their best interests with clinical staff relying on GMC guidance on decision-making and discussion with family and carers. The intrusion of an artificial safeguarding mechanism between those who did not know they were depriving someone of their liberty and those who did not know they were being deprived is a kind of Alice in Wonderland nightmare and ludicrously expensive to administer. We have in the Bill a system that will still be applied to tens of thousands of people and a pie-in-the-sky, almost delusional, impact assessment of its likely costs if it is implemented as drafted.

The result of the overinclusive definition of deprivation of liberty has resulted in very serious interface problems that other noble Lords have mentioned between the Mental Health Act and the Mental Capacity Act, and the misuse or overuse of Mental Health Act legislation to detain elderly people on general wards to treat them for physical health problems, simply because sectioning someone is easier to hurry through than the DoLS procedures and easier than the proposed liberty protection safeguards. The use of the Mental Health Act usually rules out any subsequent placement in a care home because patients are rejected by the care home system if they have been sectioned, and leads to extra responsibility for Section 117 aftercare funding for the local authority. I can give the Minister a catalogue of cases where the misuse of the Mental Health Act and/or DoLS has resulted in poor care or a decision by relatives to reject a care plan because they do not want their relatives stigmatised by being sectioned.

The interface problem has led to widespread illegality by the misapplication of legislation. The Bill continues this problem and, while I understand the wish to wait for Sir Simon Wessely’s review of the Mental Health Act to be complete, we are rather stuck with a gravely inadequate situation. Inevitably, problems will continue to arise at the interface between these two regimes unless we are serious about sorting them out.

The crucial thing for me is that the criteria for “deprivation of liberty” need to be changed before any new legislation is approved. It is pointless to wait to see what we can put into a code of practice. We cannot legislate on such a serious matter by leaving it to a code of practice; I simply do not think it will work. I do not believe it is reasonable to include admission and/or residence of incapacitated persons in homes and hospitals where there is no objection by the patient, family carers or professional carers, or to include private individuals living by personal choice in their own family homes, supervised by family members or professional carers. It really should apply only to those who express dissent or opposition, or where there is clear disagreement between those responsible for the care. I would like the Minister to explain why, given the report of the Joint Committee on Human Rights that supported the view that I and many others have just expressed—there is a need to revise the criteria—a change in the definition has not been included and whether the Government will consider bringing forward an amendment to address this problem before Committee?

No legislation should be enacted until it is clear that the law will improve the care of individuals subjected to it and genuinely protect them from abuse or unwarranted repressive conditions. We need to reinject some common sense into care relationships. Without better definitions and a serious reduction in the number of individuals being subjected to them, the liberty protection safeguards will continue to create anxiety in staff when there should be none and militate against the decent care that I believe everyone in this House agrees society should provide.

Alcohol Strategy (EUC Report)

Baroness Murphy Excerpts

Wednesday 10th February 2016 Grand Committee

[Baroness Murphy (CB)]

My Lords, about a week ago I looked at the list and thought that, well, there are so few of us going to speak in this debate that maybe we should all pack up and go down the pub instead. We have, however, improved our numbers respectably.

As a doctor and a psychiatrist I have, of course, witnessed the ravages of alcohol many times, and I know well its destructive force. Drinking, however, is a pleasure that I greatly enjoy. I can get my endorphins instantly from a glass of wine, which I cannot by going down the pub for at least an hour. Also, I think that most of us in this House, like most of the population of Britain, enjoy a drink; it adds to the conviviality and calm of public gatherings.

I feel that I ought to mention, because it is no longer in the register, that I was for many years a part-owner of a gin distillery, and, in the 1990s, a director of a brewery. I still have some emotional, but not financial, connections with that brewery. I know, therefore, that some members of the alcohol industry realise that it is in its best interest to reduce the associated long-term harm; otherwise they will be subjected, eventually, to what is happening to the tobacco industry, which they are not daft enough not to have seen. The UK has been more effective than any other EU country in reducing tobacco consumption; it has been a great success. If we are to reduce the harm that alcohol does, we need to learn a great deal about that; but we must learn the best of what we know on the evidence, which means having a very diverse strategy. That includes such matters as the noble Lord, Lord Maclennan of Rogart, has mentioned, and the Private Member’s Bill of the noble Lord, Lord Brooke of Alvethorpe, which aims to reduce drivers’ alcohol consumption. A mixed strategy is required to reduce harm overall.

The European Observatory on Health Systems and Policies published a wonderful review in 2013, in which Currie and Gilmore looked at how tobacco reduction strategies were structured in all EU countries. The most effective ones were those with diverse approaches across all elements, as has already been mentioned. It is not only a health strategy. It includes warnings, pricing, taxation and opportunities for treatment and for people across the board to think about what they are consuming.

I congratulate the noble Baroness, Lady Prashar, on her committee’s tackling the way the EU set about its work on an alcohol strategy. It made a mistake that we have often seen made by august bodies such as the WHO and the UN on other matters. They are very good at telling others what to do about strategies, and far less good at thinking about what they themselves can do as a priority. Her committee has issued an excellent report on what the EU should be doing. It is a disgrace that it does not have a strategy to which we can all subscribe, and which makes best sense of what it and individual states can do.

What the EU can do is important and may not be so upsetting to the alcohol industry. Alcohol duty is structured in a barmy way at the moment. As noble Lords know, the problem is that alcohol strength—the quantity of neat alcohol in a drink—which is the driver of harm, is not taxed proportionate to the amount in the drink. Under current EU legislation, you can do it for beer or spirits but not for wine or cider. Have your Lordships ever asked yourselves why supermarket ciders are so darn strong—up to 8% or 9%? It is because they are not taxed in the same way.

The defects in the existing taxation legislation produce these distortions in alcohol pricing. It makes a huge difference. New world wines are now 15%—a slug of Cabernet from New Zealand or South Africa will knock you over. If there was a proportionate alcohol taxation on volume, lighter wines would be encouraged and we would consume far more of the lower-alcohol wines. The same is true of beer. Scandinavian countries, which have taken the point on board, produce many very popular low-alcohol beers. We should press the EU in this area. The industry would be agreeable on this point.

I wholeheartedly agree that rules on food labelling are crucial, particularly for women. I gave up drinking for four months last year because I was on a diet. It was difficult. Two large glasses of white wine, my favourite tipple, are the equivalent of a large plate of French fries. How many women know that? The noble Lord, Lord Patel, is muttering about how many chips I eat. It is crucial that we have proper alcohol labelling. It would help women in particular, but also concentrate the minds of men.

We need to suppress demand in the areas where it is the greatest in order to reduce the culture of drunkenness. We have a culture in this country which is quite different from much of Europe, in that people go out to get smashed. They buy cheap offers at the supermarket and “preload” before they go out—and then get further smashed in the pub. It is encouraging that alcohol consumption is dropping among a proportion of younger people in this country, although that may well be because the population’s structure and demographics are changing. It may be that the attitude to alcohol of native-born, white British, Scots and East Anglians—for example, Norfolk folk—is not changing a great deal. Perhaps we are seeing that in London, with a different sort of population.

We therefore need effective pricing policies for supermarkets, effective taxation and effective warnings. Warning women about consuming large amounts of alcohol during pregnancy is crucial; we should at least get that on the bottles. These are the things that my noble friend Lady Prashar’s committee recommended, and which we should ask of the EU because only the EU can do it. We should say to the EU, “Please, rethink this”, because the industry would, I believe, be agreeable. I am not suggesting for one moment that we do not need to tackle the alcohol industry, but there are ways through the pricing and taxation problem that would be more agreeable to the industry if they were part of an overall strategy. We should press the Government strongly to ask the EU to look again at what could really work. I look forward to hearing what the Minister has to say about what we can do to urge the EU to tackle this problem.

Mesothelioma (Amendment) Bill [HL]

Baroness Murphy Excerpts

Friday 20th November 2015 Lords Chamber

[Baroness Murphy (CB)]

My Lords, I am the last person to speak before the winding-up speeches and the fifth doctor in this debate. Noble Lords will all be highly relieved to know that I will not say anything medical.

Unfortunately, I was unable to participate in the debates on the Mesothelioma Bill last year, so I very much wanted to come along and add my personal support for the initiative of the noble Lord, Lord Alton. Everyone has said that he has been tireless; he is not only tireless but energetic and focused in a way that has brought great rewards for people with mesothelioma. I also wanted to add my personal thanks to the noble Lord, Lord Freud, for the work that he did, and we must not forget the noble Lord, Lord McKenzie of Luton, before him, who also made great strides during his time in office. The noble Lord, Lord Prior, the Minister today, will not be surprised to know that we want to see the same from him.

Why am I here today? Like the noble Lords, Lord McNally and Lord Freyberg, I have a personal story. My father died of mesothelioma. I was a young doctor in the 1970s when I first realised that my father had this appalling constricted breathlessness. He had worked as a powerhouse engineer during the war. He supervised the powerhouses for Boots Pure Drug Company, which was a massive manufacturing plant during the war, making not only the pharmaceuticals needed, from antidotes to chloramine to aspirin, but gasmasks on military contracts. As noble Lords know, military gasmasks had the worst sort of asbestos in them during the war.

There is no doubt that it was the powerhouse lagging and that factory work that produced the illness that killed my father 35 years later. My mother well remembers him coming home with his overalls drenched in white and grey powder, which she washed, of course. She was darned lucky not to get it. As a result of this illness and because of his early death from this terrible disease, she was widowed for 37 years. It is a terrible thing, as a young doctor, to watch somebody dying of this appalling constriction. As the noble Lord, Lord Ribeiro, said, at the time all they could do was keep taking the fluid off. That was the only way to help him through this terrible time.

The mean survival rate has gone up by no more than 2.8 months over the last 30 years. That gives some indication of the desperate need to research. Normally, rather like the noble Lord, Lord Howarth of Newport, I would not have supported the Bill, but we are now at the point where we are seeing a resistance from the insurers. They are not coming to the table. They are not stepping up to the mark and supporting it.

I want to bring home to the Minister what has happened with regard to dementia research because of all the arguments we have heard about why people are not coming forward with good proposals—for example, this is not a fashionable area of research or there are issues about funding. We heard all these arguments in relation to dementia but what made the difference is the point that the noble Lord, Lord Wills, made—namely, there was political focus. Somebody in the Department of Health took an interest in dementia and said that for all kinds of economic and other reasons, and given the seriousness of the disorder, we must focus our efforts on tackling it. Only the Department of Health can get people round a table and ask them, “What are you doing? How can we make this work?”. It does not take a great deal of a Minister’s time to do this. I challenge the Minister to provide a political focus on this issue. He will no doubt tell us how we can tackle the research deficit, but I believe that Ministers need to take an interest in this issue and provide the political focus to make the research happen. Money is important, but providing political support to make the research happen is what is really required.

Atrial Fibrillation

Baroness Murphy Excerpts

Wednesday 4th November 2015 Lords Chamber

[Baroness Murphy (CB)]

My Lords, I am delighted to support the noble Lord, Lord Black of Brentwood, in his campaign to get better recognition for the causes and treatment of atrial fibrillation. I am interested because I have spent a good part of my professional life as a psychiatrist working with elderly people suffering the emotional and neuropsychological aftermath of serious stroke. It makes me hopping mad to come across people who still have atrial fibrillation after they have been treated for their stroke and have then come on for further psychiatric treatment. It is a tragedy to recognise that they still have the atrial fibrillation that could be treated to prevent a further stroke.

I am now retired from clinical practice and I understand that things have improved. It is now much more likely that patients will arrive with appropriate treatment. I congratulate this Government, the previous coalition Government and the Government before that, on supporting the major stroke initiative that has led to much better targeted care of people with stroke, from access and recognition of stroke right through to focused centres and better outcomes in mortality and morbidity. We are making good progress, but there is still much more to be done.

Atrial fibrillation is extremely easy to diagnose, as the noble Lord, Lord Black, said. If you are treating a lot of elderly patients every day, it is very nice to sit down and gently feel their pulse, right at the beginning. This breaks the ice and is a very good way of making contact with an elderly patient you might not know very well. We are now getting to the point when we are joining the elderly generation. Some of us are already well into that period of life. The time has come when we are the patients who need to know about atrial fibrillation and know when we have an irregular pulse. We are the ones who need to understand. The population increasingly understands the causes of stroke and what to look for. We can teach people, with education and public information, how to feel their own pulse. Most people already know; it is so easy, so there is no problem there.

I agree that there is a problem with the drugs. I went to see an elderly friend of mine who was also a doctor in her time and is now 90. She has a touch of atrial fibrillation and she said, “I will take anything except that rat poison”. I told her that she was taking a bit of a risk but she said, “I have discussed it with my doctor, but my next-door neighbour has just died of a cerebral haemorrhage. Are you really going to subject me to that risk as well?”. There are now four new drugs on the market, some of which have been around for about two years, but the problem is that they do not diminish the risk of haemorrhage. We need to discuss the risk with individual patients, but patients are still having to think through whether or not they really want a drug when the side-effect risks are huge.

I have been speaking for four minutes, so I will shut up, but my final point is that we need to take heart from some of the newer treatments. Left atrial appendage ablation, which is available in the States now, and is coming here, is the way forward for the future.

NHS: Clinical Commissioning Groups

Baroness Murphy Excerpts

Wednesday 16th September 2015 Lords Chamber

[Baroness Murphy (CB)]

Does the Minister agree that the inequity of allocations to CCGs is reflected and made worse in allocations on mental health which, for historical reasons, are very skewed to where there are large hospitals? Not only that, but at the moment it seems that CCGs are not even spending the money that is allocated to them for mental health on mental health but are diverting it to other areas. What is going to be done about this in terms of the fairness of the allocations and the insistence that the money should be spent on what it is intended for?

[Lord Prior of Brampton]

My Lords, I am not convinced that the method of allocation is unfair. ACRA will soon be reviewing its method of allocation for 2016-17. I repeat that it is an independent process. How CCGs allocate the money they receive to mental health, physical health, public health or anything else is up to them. With the King’s Fund, we are introducing a range of measures to enable us to see how individual CCGs are performing.

National Health Service

Baroness Murphy Excerpts

Tuesday 17th June 2014 Grand Committee

[Baroness Murphy (CB)]

My Lords, none of us can listen to the noble Baroness, Lady Masham, talking about the noble Baroness, Lady Wilkins, without being moved and horrified by her story. It is indeed a very sad reflection of how, not only occasionally, patients can be treated quite appallingly in the NHS, and I speak as somebody who has worked in the NHS all my life.

There seem to be three sorts of power relations in the NHS. We have been making enormous progress in some of the areas that the noble Lord, Lord Crisp, outlined, as mentioned by the noble Baroness, Lady Brinton. We have thrown ourselves at developing patient involvement groups, voluntary organisations and pressure groups, encouraging them to get involved and to try to change the agenda of the NHS to being more patient-focused. Shifting the perception of clinical outcomes to patient perception outcomes is of course crucial.

We have had the major initiatives on personal budgets, which are very positive, and we have also had, for example, NHS Choices websites, where you can now, TripAdvisor-fashion, comment. I know that GPs take that seriously because I had an e-mail from my own GP in Norfolk—he e-mailed every patient, I might add—saying that he was having difficulty recruiting a partner. He was worried that his ratings on the NHS Choices website were not very good for the practice. He asked whether, if any of us had had good experiences, we would like to comment, which of course we all did. He is now one of the top-rated GPs in the whole of Norfolk. I approve of having a TripAdvisor-type website but we must not take it all too seriously. We have to find other ways of having real surveys.

These sorts of patient powers where groups of patients make a difference, and citizens make a difference through enabling groups, are a substitute for the other, more important power which comes through knowledge of the expert patient and indeed through knowledge from the web. Certainly, there has been a dramatic improvement in people’s ability to access really good information on websites. For example, you can now get cancer information from Cancer Research UK in a very accessible fashion and from the websites of other voluntary organisations. Macmillan has a wonderful website, too. I typed into Google “patient power”. When you do that, you get a wonderful American website run from Seattle which gives information. When my husband was recovering from prostate cancer, I remember that the most important information we got about the rehabilitative phase came from an Australian website called “You Are Not Alone”. It was about men talking about how they managed and it was absolutely wonderful. There was even a section where wives, spouses and partners could comment, which was great.

I want to talk briefly about the other structural problem. This is where I will tread in very dodgy waters and no one will like what I have to say. It probably refers only to access to GPs and A&E. There is a structural problem caused by there being apparently no relationship between what we pay for and what we get. Of course, the vast majority of the population understand that we pay for the NHS out of our taxes, but it is desperately remote. Staff still behave as though they were a charitable clinic dishing out paternalistically to the grateful masses.

The question arises of how we get patients to act more like consumers when they often feel very vulnerable. They also need to feel that they have a stake. I remember being extraordinarily impressed when I first went to the States. I am not by any means praising United States’ healthcare to the roof, but because people have to pay for insurance or care at point of access, Americans have a deep and abiding interest in their own health and that of their children. I remember meeting young women who were my age and being extraordinarily impressed by what they knew about their own health.

We are one of the very few countries where the relationship between us and the GP or doctor in A&E is one of supplicant and provider. It is because we do not make a small direct charge. Let us face it: there are charges within the NHS although not many people pay them. A small contribution for access would make a difference to how you are likely to perceive your immediate relationship with a doctor or nurse. Most people now use private chiropodists; even those who have very little money. They go along to a foot care place run at a supermarket or in Boots and get direct treatment. They do not wait for an NHS chiropodist these days: they organise it themselves. They feel that they are getting the service they make a contribution to and that they are making a choice.

I know that this raises enormous concerns, but we are now in a minority of countries in western Europe and in liberal western democracies that do not make that charge at the point of access. That discourages people. It diminishes and belittles what they need to know to look after their own health and shifts the power base too far towards the professionals who deliver it. We need a little bit of patient power through a little bit of a contribution. It is politically very unpopular, but I believe that it would make a difference just as it does in the way you feel about going to see a doctor in western Europe. It is quite different from how you feel when you go to see one in Britain.

Care Bill [HL]

Baroness Murphy Excerpts

Wednesday 7th May 2014 Lords Chamber

[Baroness Brinton]

My Lords, I add the thanks of the Liberal Democrats to those that have already been offered for the help from the Minister and his officials since this matter was last discussed in your Lordships’ House. There have been a number of meetings and an enormous amount of correspondence during that time. A key part of that has been the definition of “consultation”, and how to ensure that services in another trust area rather than only an adjacent area are considered. I am particularly grateful because the amendment tabled by my honourable friend Paul Burstow in the House of Commons is broadly the same as today’s government amendment. I thank him too for his tireless work in expanding this. I very much appreciate the comments made by the noble Lord, Lord Hunt, in his amendment, which try to strengthen that.

However, I am not convinced that there is a need for further strengthening. The committee is there, and I hope that the Minister will be able to confirm that, following the request made by the noble Baroness, Lady Finlay. The committee is there to help set things up and ensure that the progress made as the special administrators start their work takes place in an appropriate fashion, and that every aspect of the consultation—which clearly has worried your Lordships—is addressed.

I want particularly to come back to the point about not considering only adjacent services. Much of the discussion this afternoon has been very focused on London, for fairly obvious reasons. However, there are issues around reconfigurations in rural areas, which do not mimic the pattern of a large number of hospitals in a fairly narrow space. Services may be much more scattered. That is why the word “adjacent”, to which others have referred, is not particularly appropriate. Quite often people will find themselves going not only to one area but beyond that area for a very particular service. It is important that the amendment laid down by the Government today makes it absolutely clear about the extension of consultation with those affected trusts.

[Baroness Murphy]

My Lords, the disease with the greatest economic impact on the NHS is the disease of inertia. As the Secretary of State, Jeremy Hunt, pointed out in the other place during the debates on this issue, we are now four years on from the very public exposure of the problems of Mid Staffs and we have not yet made a decision. The trust administration procedures are indeed invoked only as a very last resort, but they are a very necessary one. I am very worried because, although the noble Lord, Lord Hunt, thinks that this government amendment does not go far enough, I am afraid that I think that the government amendment as it is goes quite a long way. I was much happier with it before we all started meddling with it.

The real issue is that we must start to make decisions, and we are not making decisions. We are allowing services to carry on producing bad care. We are allowing them to get into debt, which means transferring money from good services. It is almost never possible to reconfigure a bad service out of one hospital, or indeed to shut one hospital or service, without a substantial reconfiguration of services in another hospital. Unfortunately, it will always impose on the wishes of commissioning groups in another adjacent location or a little further down the line in a rural area.

I will, with reluctance, accept the Government’s amendments, although they add a little more consultation to the process. Please, however, let us go no further than that, and please let us not support the amendment of the noble Lord, Lord Hunt, which in my view would take us even further away from where we want to be.

Mental and Physical Health: Parity of Esteem

Baroness Murphy Excerpts

Thursday 10th October 2013 Lords Chamber

[Baroness Murphy (CB)]

My Lords, the sustained commitment of the noble Lord, Lord Layard, to improving mental health care has had a profound impact on mental health services since 2008, and I admire him for it. If today I challenge some of the priorities, this in no way detracts from his remarkable achievements in addressing the needs of a long-neglected group of patients who, after all, make up the vast majority of a GP’s mental health load. But I return to patients with severe mental illness, including schizophrenia, the recurring psychoses, and those with mixed substance abuse and psychosis. As the noble Baroness, Lady Tyler, said, the importance of achieving parity of access and healthcare for them is shown starkly by the increased mortality and physical morbidity that they suffer. As Professor Graham Thornicroft from the Institute of Psychiatry has memorably observed, patients with long-term psychoses have third-world mortality in a first-world country, dying on average 20 years earlier than the general population, often of preventable smoking-related diseases and treatable cancers as well as the obvious suicides and accidents. This is completely unacceptable in a country such as ours, so I would like to know what are we doing for them and whether we are truly prioritising those greatest in need.

There have been considerable successes in the mental health strategy that has been adopted in recent years, and I mention in particular the increased services for people with dementia, which has undoubtedly risen up the Government’s awareness scale. That has been a great help for families which have a person with dementia. We have also had some success in trying to improve the assessment of risk to others posed by some severely mentally ill patients. This year’s annual report of the National Confidential Inquiry into Suicide and Homicide by People with Mental Illness by Professor Louis Appleby and his colleagues shows that homicide by mental health patients has fallen substantially since a peak in 2006. The most recent figures are the lowest since data collection began, albeit in a setting of a national reduction in homicides. This is especially true for people with schizophrenia. The homicide statistics are tiny, in spite of what might have been heard on the news in the past week—they are now extremely small—but they are very important as an indicator of the cultural attitude of mental health workers to assessment of risk.

But all is not well. Suicide by mental health patients has risen again. There were more than 1,300 deaths in England in 2011, after a previous fall. The rise partly echoes the rise in suicide in the general population, probably related to the economic downturn, as has happened in every previous recession that we can measure. But in recent years there have been more suicides in those undergoing home treatment or crisis resolution than in-patient care, which used to be one of the areas with the greatest risks. A substantial proportion of these deaths occurred in patients who live alone, have refused treatment, or are accepting only partial treatment. Services simply are not providing enough round-the-clock care of the right kind to the very severely ill. The mantra of home treatment needs better thinking through if we are to keep patients out of hospital and safe.

So we have made substantial gains in some areas but are losing pace in others. I have concerns about the direction that mental health services are now taking. I do not want to disparage the value of treating patients with common mental health episodes with cognitive behavioural therapy and other NICE-recommended therapies, but we have to be aware that the budget for psychological therapies has gone up from £100 million annually to £400 million without even reaching a high proportion of sufferers of the milder forms of distress, as the noble Lord, Lord Layard, has said. I do not dispute the efficacy of such treatment; with good CBT, faithful to the model delivered by a good therapist, 40% get better, of those who accept the offer of treatment, which is 15% better than doing nothing. For mildly to moderately unwell patients it is effective. But we have to recognise that the studies do not include patients who never accept treatment because of chaotic lives, intrusive events, a dislike of sitting down and talking, a failure of faith in the referrer, which is all too often the case, and sometimes also because people have learning disabilities and are unable to value the treatments, in spite of those patients having a very high order of risk of depression and anxiety. These factors significantly reduce the efficacy of treatments. We would surely get better value for money from addressing the problems which still beset people with more serious long-term mental illness. I accept the economic argument from the noble Lord, Lord Layard, for treating lesser forms of disorder; it is very compelling. But the only true justification for treating patients is the overall reduction in patient suffering and the burden of disability overall in the community, which is worse for those with the most severe illness.

The USA introduced a parity of esteem law in 1996. It was meant to improve the investment in mental health services through Medicaid and other insurance and to bring it up to the level of physical health services. I accept that managed care solutions funded by the public purse in the United States are not entirely analogous to publicly funded systems here, but they are similar enough. There is now worrying evidence that, in the States, the greater access to services for the less severely affected has impacted negatively on the care of the seriously mentally ill. A recent study by the well-known sociologists David Mechanic and Donna McAlpine, who for many years have been experts in the United States on the provision of mental health care, demonstrated that this apparent increased democratisation of mental health has simply shifted money from the severely ill to the lesser forms of illness, away from those with the least chance of ever being able to work and those with the highest excess mortality and suicide rates.

These findings are deeply worrying and should give us pause. There is some evidence that this is already happening here. In 2011-12 there was a reduction in spending on crisis resolution and on outreach services for those in acute crisis, while spending on psychological therapies rose by 6%. Total spending on mental health has increased by a massive 60% in real terms over the decade. That is something for us to celebrate, but now we are beginning to see a fall in investment in the acute care end.

It seems to me that the NHS and social care services should listen more to Mind, Rethink and SANE, and listen to what their priorities are. If true parity of esteem is to be promoted then we must look at the way that these acute and crisis services are running. Four in 10 trusts have staffing levels well below established benchmarks. There are serious issues around safety, respect and dignity in in-patient care. There are still insufficient non-hospital options.

As long as 10% of patients with schizophrenia kill themselves, we have not got our priorities right. As long as the rate of psychosis in prisons is 50 times higher than in the general population, then we have not got our funding priorities right. If we are really to make headway with mental health services, we must first and foremost concentrate on those who pose the highest risk to themselves or the highest risk to others, and try to improve the lives of people whose lives are truly blighted by long-term psychotic illnesses.