Mental Capacity (Amendment) Bill [Lords]

Helen Whately Excerpts

Ping Pong: House of Commons
Tuesday 2nd April 2019 Commons Chamber

[Helen Whately (Faversham and Mid Kent) (Con)]

It is always a pleasure to follow the hon. Member for Strangford (Jim Shannon), who makes such thoughtful contributions. I will be brief, as we appear to have a large amount of consensus on this piece of legislation.

First, I want to pay tribute to my hon. Friend the Minister for the work she has done on the Bill, her extremely consensual approach to it and the way she has listened to concerns from Members on both sides of the House and consulted stakeholders widely. It has been a real pleasure to work with her on the Bill, and I thank her for that.

This Bill is critical because it concerns some of the most vulnerable people in our society. We have talked about the fact that there are 125,000 people waiting to be processed for deprivation of liberty orders, and the system is not working, but there are 2 million people who have impaired mental capacity in the country, and we need to get the system right for all of them, not just the 125,000 who are being let down by the current system.

It is also important to say that the Bill builds on more than three years of work and the recommendations of the Law Commission. It has been fully scrutinised by the Joint Committee on Human Rights, and the other place has contributed to it, as have members of the Bill Committee. I have received many emails in support of the fact that it introduces a better system, gets rid of the bureaucratic box-ticking exercises in the old system and should be better for both the individuals who are deprived of their liberty and their families.

[Barbara Keeley]

The work that was done for three years was on a 15-clause Bill that is not this Bill. We discussed that plenty of times in Committee. I think it only fair to be accurate. This five-clause Bill is not the Bill that was consulted on, and it is not the Bill that had three years of work. It is not correct to claim that it is. We spent a lot of time in Committee trying to put right the things that were missing and taken out of the earlier 15-clause Bill, and it is better to be accurate about that.

[Helen Whately]

I thank the hon. Lady for her intervention. Broadly, I was attempting to say that a significant amount of work has gone into this. I have heard overwhelmingly from those working in the sector about the importance of doing something about the current situation, because it is not working and cannot be allowed to continue. This is urgent.

It is right that the NHS and social care providers will be given a bigger role in the decision-making process, so that people under their care receive better care and their rights are protected. The fact that we have people outside the system unprotected at the moment clearly cannot be right and cannot continue. During the passage of the Bill, I raised concerns about how it will work for people with fluctuating conditions, and I have been reassured by the Minister that responsible bodies will be required to keep individuals’ circumstances under review. I welcome the fact that there is further detailed guidance on fluctuating conditions in the code of practice.

I turn to the amendments and particularly the debate about the best way to define “deprivation of liberty”. It feels like a sensible conclusion has been reached in order for us to move forward, with a plan to develop the definition further through the code of practice. These things evolve and are extremely complex, and we need a flexible system that meets the needs of our society.

To sum up, the old system is not fit for purpose. The Bill makes important and timely amendments. It is better for individuals and all those around them to ensure that they have appropriate protections for the very serious matter of depriving individuals of liberty.

Question put and agreed to.

Resolved,

That this House does not insist on its amendment 1 to which the Lords has disagreed, and disagrees with Lords amendment 1B proposed in lieu, but proposes amendment (a) to the Bill in lieu of the Lords amendment.

Resolved,

That this House disagrees with Lords amendment 25A proposed to its amendment 25, but proposes amendments (a) and (b) to its amendment 25 in lieu of the Lords amendment.—(Jo Churchill.)

Oral Answers to Questions

Helen Whately Excerpts

Tuesday 26th March 2019 Commons Chamber

[Jackie Doyle-Price]

As the hon. Lady will know, we have brought that service back in-house, but we should leave no stone unturned in relation to thinking more imaginatively about how we spread the word about the need for screening. I should like to pay tribute to those celebrities who have tweeted pictures of themselves going for their smear tests, because it is only by normalising it and ensuring that everyone realises that it is something they should do that we are going to encourage take-up.

[Helen Whately (Faversham and Mid Kent) (Con)]

12. What steps he is taking to improve access to GPs.

[The Secretary of State for Health and Social Care (Matt Hancock)]

Primary and community care are set to receive an additional £4.5 billion a year of taxpayers’ money as part of the NHS long-term plan, to ensure that we can get the best possible access to GPs.

[Helen Whately]

In parts of my constituency, it is very difficult for people to see their GP. For example, in the area of Park Wood, there is just one GP for 4,000 patients. I welcome the extra money going into primary care that my right hon. Friend just mentioned, as well as the additional GP training places and the fact that a Kent medical school is coming our way, but we need more nurses, physios and other health professionals in primary care. What is he doing to ensure that people can see the right health professional when they need to do so?

[Matt Hancock]

This is an incredibly important agenda that is close to my heart. It is at the core of the prevention of ill health to ensure that we have the right primary care services. Yes, that includes more GPs, but it also includes more of the other health professionals who support them. We have 1,000 extra non-GP clinical staff already working in general practice compared with just two years ago, but there is much more to do.

GP-Patient Ratio: Swale

Helen Whately Excerpts

Tuesday 19th March 2019 Westminster Hall

[Gordon Henderson (Sittingbourne and Sheppey) (Con)]

I beg to move,

That this House has considered the ratio of GPs to patients in Swale.

My constituents have a number of major concerns, including local roads, the level of housing in our area, and the ratio of GPs to patients. The three issues are intertwined, as I will explain, but to set the issue in context, I will explain a little about my area. The local authority district of Swale is on the north-east Kent coast. It covers the whole of my constituency of Sittingbourne and Sheppey and also includes part of the constituency of my hon. Friend the Member for Faversham and Mid Kent (Helen Whately), whom I am delighted to see here today. However, the Swale clinical commissioning group area is not coterminous with Swale Borough Council. Instead, it has responsibility only for Sittingbourne and Sheppey. Faversham falls within the remit of the Canterbury and Coastal CCG.

Swale CCG is one of the smallest CCGs in the country, if not the smallest, because when CCGs were first set up, Medway CCG did not want to include Sittingbourne and Sheppey, nor did any of the east Kent CCGs, because my constituency has, historically, a number of areas with a high incidence of health deprivation. Life expectancy in Swale is the lowest in Kent. Within Swale itself, there is a huge, 10-year gap between the highest and lowest life expectancy. In some of the more affluent areas, life expectancy is 84 years, while in the more deprived areas, life expectancy is just 74 years.

A number of areas in my constituency have been identified as being in the bottom quintile on the national deprivation scale—a clear demonstration that not every area in the south-east is affluent—and there is an above-average incidence of obesity-related illnesses in my area. The number of people admitted to hospital in Kent because of health problems related to obesity has rocketed in recent years—around half of Kent’s 1.5 million population is now overweight or obese—and the highest rate in Kent was recorded by Swale CCG, where 1,726 people per 100,000 were admitted to hospital due to obesity-related conditions. My constituency also has a higher incidence of lung-related disease than many other areas in the country. That is particularly true on the Isle of Sheppey.

Such health problems put huge pressure not only on our local hospitals, but on primary care, yet my constituency has the worst ratio of GPs to patients in the whole country. To give an idea how bad the situation is, in Rushcliffe, the ratio is 1:1,192; in Camden—hardly the most prosperous area in the country—the ratio is 1:1,227; and in Liverpool, it is 1:1,283. By contrast, in Sittingbourne and Sheppey, there is just one permanent GP for every 3,342 patients.

My local CCG recognises that the lack of doctors is a problem and managers are doing everything they can to improve the situation, but to succeed, they need to attract more GPs to our area, and to do that they need more help, and more money.

[Helen Whately (Faversham and Mid Kent) (Con)]

I congratulate my hon. Friend on securing this debate on a really important topic. My constituents also face some difficulties getting access to a GP in my area of Swale borough, and also on the Maidstone side of my constituency, where in one practice the ratio of GPs to patients is 1:4,000. It is a real problem. I am concerned that there is not enough of a sense of urgency among some CCGs about fixing the problem. When the Minister sums up, I would be grateful if she could confirm the CCGs’ responsibility, and what metrics they are held to account for, for access to GPs.

[Gordon Henderson]

I accept and understand my hon. Friend’s concerns, but I would put on the record that Swale CCG is doing everything it can to resolve the problem, and does not fall into the category that she mentions.

I accept that Swale is not alone and that the shortage of GPs is a national problem, and that the reason for that shortage is complex. There is little doubt in my mind that successive Governments, including the Labour Government that was in power from 1997 until 2010, and the coalition Government that followed, which of course had to clear up the financial mess left by its predecessor, failed to invest enough in training the doctors we need today. Let us not forget that it takes 10 years to train a GP. To have them practising today, they would have had to start their training back in 2009.

Although there is a nationwide shortage, the problem is more acute in my constituency, and across Kent generally. Indeed, out of the top five areas in England with the worst GP to patient ratios, three of them—Swale, Thanet and Bexley—are in our county. That cannot be a coincidence.

Why is there such an acute shortage in Kent? I believe that the reason is twofold. First, doctors can earn more working in London than they can in Kent, because of the London weighting allowance. I would like to see the London weighting allowance extended to cover Kent, which would make it easier to recruit not only doctors, but also other public sector professionals, such as nurses, police officers, teachers, fire-fighters and prison officers, all of whom it is difficult for us to recruit.

Secondly, doctors undertake their training in London, so they tend to settle in the capital when they qualify. I am pleased that the Government have recognised that problem and a new medical school will be opening in Kent next year. We hope that doctors training in Kent will be more inclined to stay in the county once they have qualified. However, the reality is that any such newly qualified doctors who do decide to stay in Kent and go into general practice will not be available until at least the year 2030, by which time the need will be even greater because of other factors. That is where the two other concerns I mentioned at the beginning of my speech—roads and housing—come into the equation.

The roads infrastructure in my constituency is close to breaking point. We have continual problems of congestion, particularly on the M2, the A2 and the A249, and that congestion is creating ever higher levels of air pollution. As I mentioned, my constituency suffers from a high incidence of lung-related diseases. Ever more traffic congestion will produce ever more air pollution and increase the number of people who, in the future, will seek medical help. Their first port of call will naturally be a GP, putting even more strain on an already stretched primary care system. Something must be done to improve the strategic roads infrastructure in Sittingbourne and Sheppey in order to reduce congestion and air pollution, and that something must be done soon. Time is running out.

The second concern, and a major contributor to our poor GP to patient ratio, is the huge number of housing developments in my constituency over the past 20 years. The area has been transformed and is changing beyond all recognition. Housing numbers have already grown dramatically, and the housing targets being imposed on Swale Borough Council by the Government will see that growth accelerate. The reality is that we are facing the prospect of an ever-growing population at the same time as the number of GPs is diminishing, because the shortage that I spoke about earlier is being made worse by the number of doctors in our community who will retire in the next few years.

If the Ministry of Housing, Communities and Local Government were represented here today, I am sure that it would insist that any future housing developments should have planning conditions placed on them to require the developers to provide health facilities such as a local health centre, as the Ministry has done in the past. What is the use of section 106 money and the community infrastructure levy if we fail to recognise an inconvenient truth: forcing a developer to build a health centre is all well and good, but without the necessary doctors to staff it, at the end of the day it is just another building? Somehow, we have to ensure that something is done to reduce housing targets in areas in which GPs are in short supply, such as my own, until such times as more doctors come on stream.

I appreciate that the Minister has no responsibility for either roads or housing, but I hope she will at least join me in lobbying her colleagues in the Department for Transport and the Ministry of Housing, Communities and Local Government to provide Sittingbourne and Sheppey with the help that is needed to solve the road congestion problem and reduce the planned level of house building. If we can do that together, we will go some way towards improving the health of my constituents and reducing the pressure on primary care in Sittingbourne and Sheppey.

--- Later in debate ---

[Caroline Dinenage]

My hon. Friend makes an excellent point, and I completely understand that places in the London catchment area can very easily lose key public sector professionals. It is very difficult to compete with the potential extra wages that they might be able to achieve by working in the Greater London area. It is important to acknowledge that diversifying the range of different medical professionals who people can see will immeasurably help general practice to cater for the additional number of patients. It means bigger teams of staff providing a wider range of care options for patients, which effectively frees up more time for GPs to focus on those with more complex needs.

I was very pleased to hear that the CCG general practice in Swale is already using the skills of a wider workforce, including pharmacists working alongside GPs and paramedics providing home visits. We are training more GPs than ever before, and last year Health Education England recruited the highest number of GP trainees ever: 3,473. As my hon. Friend said, a new medical school is opening in Kent next year.

It has been made easier and quicker for qualified doctors to return to the NHS through the national GP induction and refresher scheme. Yesterday NHS England launched a new “Return to Practice” campaign, which is aimed at promoting the support that is available to GPs who have left practice, with a view to trying to tempt them and encourage them back. To bridge the gap while that training is ongoing—my hon. Friend rightly says that it takes a very long time to make a GP—NHS England’s international GP recruitment programme is bringing suitably qualified doctors from overseas to work in English general practice.

[Helen Whately]

I completely agree with what the Minister is saying about the importance of a greater range of healthcare professionals—it is not always about seeing a GP, so there needs to be a shift in expectations—and the plans to increase the number of GPs in the system, including through the Kent medical school, for which I campaigned very hard. I urge the Minister to come, if she can, to my point about an access metric. It would be really helpful to have a better way for patients to know what level of access they should expect. At the moment, we seem to have the proxy of a GP-to-patients ratio, but it is not good enough. It would be helpful if she could address that.

[Caroline Dinenage]

It is quite tricky. As my hon. Friend knows, general practices are independent contractors. Each general practice is required to meet the reasonable needs of their registered population, so there is no exact metric or recommendation for how many patients a GP should have, as the demand that each individual places on a GP can be significantly different. There is obviously much greater pressure on a practice in an area with a much older population—with more retired people and those with more complex needs—than on practices in other areas. That is where the complicating factors arise.

It is really important to work on innovative ways not only to bring in a new raft of GPs, but to hold on to the ones that an area already has. I understand that Swale CCG is working with GP practices across the area to improve retention. Supported by funding from NHS England, it is shortly due to launch a pilot GP recruitment and retention scheme. It is being proactive in recruiting the next generation of general practice staff and has been working with local schools and colleges to encourage local students to consider healthcare, and particularly primary care. I understand that three training practices in Swale offer placements for trainee medics, to give them the opportunity to experience general practice and consider general practice training. As of December, there were 11 direct patient care apprentices working in general practice across Swale.

My hon. Friend the Member for Sittingbourne and Sheppey rightly made the point that three of the areas with the highest patient to GP ratios are in Kent. I have been advised that, alongside the CCG’s work, the Kent and Medway sustainability and transformation partnership has set up a primary care workforce group, and has secured £1.5 million from Health Education England and NHS England to implement its workforce transformation plan.

The range of other issues that deter medical graduates from general practice include the spiralling cost of purchasing professional indemnity cover, which is a major source of stress and financial burden. We have addressed that in the new GP contract and from 1 April this year, the new state-backed clinical negligence scheme for general practice will bring a permanent solution to indemnity costs and coverage. That will help drive recruitment and retention of GPs.

We recognise the huge contribution that the general practice partnership model has made to patients over the lifetime of the NHS, but we also recognise that increasingly that model faces challenges, as fewer young GPs want to become partners. An independent review, led by Dr Nigel Watson, reported in January and made seven recommendations on workforce business models and risk, to which we will respond shortly.

My hon. Friend made the point well that air pollution, road infrastructure and congestion contribute massively to the pressure on general practice. The Government recognise that air pollution poses one of the biggest environmental threats, particularly in the case of frail elderly people and young children. Removing congestion from roads is certainly one of the sure-fire ways to reduce some of the air pollution hotspots. My Department will always be happy to furnish him with data that he needs on the health impact of pollution, to support any of his activities for attracting the local road investment that will tackle the problem and help his constituents.

My hon. Friend also raised a concern that housing targets placed on Swale Borough Council by the Government put additional pressure on doctor’s surgeries. The national planning policy framework, which was published last year, makes it very clear that strategic policies must make sufficient provision for community facilities, such as health education and cultural infrastructure. As he says, it is not enough to build a building; we need staff inside it. The views of local clinical commissioning groups and NHS England must be sought with respect to the impact of any new development on health infrastructure and demand for healthcare services.

Examples of primary care being delivered in an innovative way can be found across the country, for example using other professionals to deliver care or GP practices grouping together to work more collaboratively. That is exactly the kind of innovation and co-operation envisaged in the long-term plan, which seeks to change the balance in how the NHS works by shifting more activity into primary and community care. That is enabled by expanding multidisciplinary team working. The NHS long-term plan also commits to the recruitment of 1,000 social prescribing link workers by 2020-21. I encourage my hon. Friend to have a conversation with Swale CCG to see if any of those innovative measures could be introduced to help his constituents.

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

Helen Whately Excerpts

Thursday 17th January 2019 Public Bill Committees

[Helen Whately (Faversham and Mid Kent) (Con)]

My hon. Friend might be coming to exactly this point but, having been involved in some of the conversations about the review of the Mental Health Act 1983, I know that lots of concern was expressed about families feeling that they were not involved enough in the care of their relatives and in decisions about them being detained, for instance. I am keen for her to reassure us that parents will not be overlooked and will be involved, so long as they are acting in the best interests of their child.

--- Later in debate ---

[Dr Williams]

I thank my hon. Friend for referring to the Law Commission’s recommendations.

I am sure that the Government will argue that the substance of the amendment will be reflected in the code of practice, but it is so important and so fundamental that it needs to be reflected in the Bill. Obviously, somebody may well have the capacity to consent to different decisions. Capacity is not just assessed over a period of time; assessments depend on the decision that somebody is going to make. Somebody may well have the capacity to decide whether they want tea or coffee, but may not have the capacity to decide all the time whether they consent to their deprivation of liberty.

Anyone who has ever spent any time with somebody who has capacity issues—we are usually talking about people who have a dementia, as the majority of people who have fluctuating capacity, though not all, have a dementia—will know that people have good and bad days. Sometimes people have good and bad hours. It is common for someone to say, “She was bright and sharp this morning,” or, “He’s not quite himself tonight.”

Acute illness can affect capacity, but so can sleep, stress and nutrition. The very nature of memory issues means that people fluctuate in and out of having capacity sometimes. In the same way, many physical issues have a fluctuating nature. People with arthritis have good and bad hours, and good and bad days. Rheumatoid arthritis is typically worse in the mornings.

The amendment is fundamental because the assessments of capacity that are made as part of the authorised deprivation conditions are likely to determine the length of the liberty protection safeguard. At the least, they may be one of the important determinants of the length of the safeguard—possibly the most important. In deciding how long the safeguards should apply, it is imperative to know whether someone has fluctuating capacity. As I have indicated, that might require more than one assessment of capacity.

[Helen Whately]

I spoke about my concerns about fluctuating capacity on Second Reading. The hon. Gentleman just mentioned that in these discussions, we usually think about someone with dementia, but it has been flagged to me that sometimes the Mental Capacity Act has been used to detain people who have other serious mental health conditions—not necessarily just dementia. Those conditions very much fluctuate, too. It is important that the Bill addresses the fluctuating capacity of people with serious mental illness if they might be detained under the Bill. I am keen for the Minister to respond on that point.

[Dr Williams]

The hon. Lady’s words are wise. The fact that people’s capacity is likely to fluctuate makes them uniquely vulnerable to the wrong decisions being made about them.

My assessment is that it is better to err on the side of caution. People with fluctuating capacity are likely to need regular review. The liberty protection safeguards are likely to be put in place for shorter periods. Unless that assessment of fluctuating capacity is mandatory and put front and centre of the decision-making process about the length of the safeguard, there is a risk that the wrong decisions will be made. For that reason, I support amendment 32 as a fundamental requirement to assess whether the cared-for person’s capacity is likely to fluctuate.

--- Later in debate ---

[Caroline Dinenage]

As I say, I am tempted by what hon. Members have said, so I will take this point away and look at it, but we have to consider this matter very carefully. We have to consider whether there are appropriate protections already in the Bill. That point relates to what I spoke quite a lot about on Tuesday—we have to be really careful about the unintended consequences of putting too much in the Bill, because if we then leave something out, we may create the sort of legal loopholes that caused so many problems with the previous DoLS legislation.

[Helen Whately]

The Minister is discussing whether there is already the necessary content in the legislation. Is she referring to the Act that we are amending or the Bill that we are discussing? It might be helpful to clarify.

[Caroline Dinenage]

Both, really. For example, the Bill lays out how every authorisation has a programme of reviews—if there is a change in the circumstances meaning that authorisation conditions are no longer met, the authorisation is no longer valid, and a review is triggered by reasonable request or significant changes in a person’s circumstances—so it is well within the scope of the Bill to address people with fluctuating capacity and to make sure that there is the necessary capacity.

The other issue that I have to take into consideration is that in a case regarding a patient known as CDM, fluctuating capacity has been considered by the Court of Protection, and that is currently being appealed. We are awaiting that decision, which will give useful guidance on how care workers should assess those with fluctuating capacity. That is something we will want to reflect on.

The hon. Member for Dewsbury spoke about the Law Commission and asked why we have differed a little bit from what it recommended. It is simple. The Law Commission had anticipated an entirely separate scheme for fluctuating capacity, adding a hugely complex dimension to this whole piece of work. Under its recommendations, people with fluctuating capacity would be dealt with in a separate authorisation process not directly linked to the main scheme. That is why there is a bit of confusion there.

There will be an awful lot of detail on this matter in the code of practice, which we consider the most appropriate form of guidance, given the level of detail it will require—this is a very serious matter. That will continue the practice under the current deprivation of liberty safeguards system, where the code of practice addresses fluctuating capacity. As I say, the Bill talks about regular assessment, including a limit of a year in the first instance—that is the maximum. The assessments can be set at very short-frequency time periods in order to deal with somebody who might have fluctuating capacity. Statutory guidance will include cases where a person with fluctuating capacity meets or does not meet the authorisation condition of lacking capacity to consent to arrangements, and will cover whether the authorisation continues in force or ceases to have effect.

Amendments 31 and 33 seek to ensure that medical assessments are completed by a registered medical practitioner. I completely agree that the person who conducts the medical assessment must of course be suitably competent, but the Bill already states that a person carrying out a medical capacity assessment must have “appropriate experience and knowledge”. We expect capacity assessments to be completed by a registered professional such as a nurse, social worker or occupational therapist, and medical assessments must be completed by physicians, such as family GPs and other doctors. However, we have to take into consideration that objective medical evidence does not require a registered doctor in all cases. Case law confirms that it can also include psychologists, for example, as was confirmed by the Law Commission.

In addition, to show the complexity of the issue, registered medical practitioners can include doctors who do not currently have a licence to practise. I know the hon. Member for Stockton South will be aware of that, given his knowledge and profession, but we need to consider carefully the law of unintended consequences when thinking about putting that in the Bill. We could be opening up a whole unwanted can of worms. We need to consider carefully whether we allow that particular group to give medical evidence.

It should also be noted that case law on article 5 of the European convention on human rights already requires that a deprivation of liberty must be based on objective medical expertise. The focus is therefore on competence at every stage rather than on qualifications. We are making it clear that all appropriate medical professionals should be included, which includes the speech and language therapists in the case that the hon. Member for Dewsbury spoke about.

I hope I have provided confirmation that medical and capacity assessments will be completed by somebody with the appropriate experience and knowledge to do the job, and that they will have the competence required to make a reliable assessment. I hope that I have provided Members with the reassurance they need to not press the amendments.

NHS Long-term Plan

Helen Whately Excerpts

Monday 7th January 2019 Commons Chamber

[Matt Hancock]

I enjoyed my visit to Derriford Hospital’s night shift and learned an awful lot from it. One of the consequences of seeing what is happening on the ground is that we are providing it with a new A&E facility. We are putting tens of millions of pounds into the hospital, so it would be a bit better if the hon. Gentleman mentioned that as well as rightly raising concerns about performance. That funding was the result of the campaigning of the hon. Member for Plymouth, Devonport, who is an absolutely brilliant campaigner for his local community—[Interruption.] Yes, the Members for Devonport and for Moor View. I am a big supporter of Derriford Hospital and think it does a brilliant job, and in challenging conditions, but it is going to get a better A&E because we have provided the funding to allow it to do that.

[Helen Whately (Faversham and Mid Kent) (Con)]

I welcome the commitment to mental health in the NHS long-term plan, particularly the badly needed new care model for young adults, the commitment to more care for people with severe mental illnesses and the further expansion of mental health liaison services in A&E. I also welcome the commitment to more performance standards for adults with mental illnesses. Will my right hon. Friend make sure that those mental health standards are introduced sooner rather than later, so that we do not have to wait too long for the waiting time standards? Transparency is so important for the parity of esteem between mental health and physical health.

[Matt Hancock]

My hon. Friend is absolutely right. Those standards are being trialled at the moment. Of course we want to get them right, but we will look at the results of those trials as soon as we can.

Mental Capacity (Amendment) Bill [Lords]

Helen Whately Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons & Ways and Means resolution: House of Commons
Tuesday 18th December 2018 Commons Chamber

[Helen Whately (Faversham and Mid Kent) (Con)]

It is a pleasure to follow the right hon. Member for North Norfolk (Norman Lamb), who has such expertise in this area and brought such valuable content to this debate as well as a valuable tone, which was very good to hear. I want to say a few things, first, in support of the Bill. As the right hon. Gentleman said, it is very important that we take a moment to reflect on the significance of getting this right.

Depriving someone of their liberty is a very significant act. Liberty is a fundamental right and freedom. We must take it seriously, and we must get this right. It is clear that the current system is not working. The fact that between 100,000 and 200,000 people are waiting because of an applications backlog is clearly unacceptable and cannot continue, given the consequences for individuals who have been deprived of the safeguards to which they are entitled, and the impact on their families and on care homes in which they may be residing.

[Jim Shannon (Strangford) (DUP)]

Earlier today I had a chance to speak about this matter to the Minister and some of her officials. Is it the hon. Lady’s understanding that the issue of human rights has been included in legislation that has been endorsed by Age UK, the Law Commission and Simon Wessely? If that is the case, the action that the Minister and the Government are taking this year is right, because it brings everyone together and ensures that there is legislation that everyone in the House can support.

[Helen Whately]

The hon. Gentleman has made a good point about the support for the Bill. Some Opposition Members have suggested that there is not much support for it, but it is, in fact, widely supported. Yes, there are concerns, with which I shall deal shortly, but, as the hon. Gentleman has said, there is widespread support for improvements in the current system. Those improvements include simplification—less bureaucracy and fewer administrative burdens—and the critically important representation of individuals through the independent mental capacity advocates, which will give them a voice. The frequency of assessments will become more appropriate; as my hon. Friend the Member for Berwick-upon-Tweed (Anne-Marie Trevelyan) said earlier, timings can be inappropriate and excessively burdensome. There is a better choice of language: the Bill removes the term “unsound mind”, which is very stigmatising and completely unnecessary. I am also pleased that the Government have listened to the concerns expressed by some of my constituents about, for instance, potential conflicts of interests for care home owners when a financial interest may be involved.

However, I have three outstanding concerns. First, there is the question of how the amended Act will work for people with severe mental illnesses. The Bill clearly focuses on those who lack capacity because of, for instance, dementia, learning difficulties, autism or brain injuries, but, if I understand it correctly, it could be applied to people with severe mental illnesses. Figures suggest that the current Act is applied to a significant number of people in such circumstances. We know that such illnesses—bipolar disorders, for example—are likely to fluctuate, and that as a result people’s capacity may also fluctuate. That could cause them to be detained and deprived of their liberty when, in fact, they have regained capacity. The Minister in the Lords, Lord O’ Shaughnessy, gave a commitment that that would be addressed in the code of practice, but may I press this Minister to ensure that there are sufficient safeguards in the Bill?

[Norman Lamb]

Does the hon. Lady agree that, given the cohort that could be covered by both pieces of legislation, it is particularly important that the approach be consistent?

[Helen Whately]

I completely agree, and that relates to my second concern, which others have mentioned and which relates to the interaction between the Bill and the 2005 Act. In his review, Sir Simon Wessely suggested that there should be a new dividing line between the two. I hope the Minister will explain how that will work.

My third concern is whether the Bill will address a situation that I suspect many of us have encountered, when elderly people are locked into their homes. When I have been knocking on doors, I have sometimes been told, “Do not knock on that door, because the lady there has been locked in by her family, and she becomes very distressed and upset if someone rings the doorbell because she cannot answer the door and she does not understand why.” This is clearly a completely inhumane way to treat people, but it is happening. People are being detained at home without appropriate safeguards for their safety as much as anything, so I ask the Minister to say whether the Bill can address this problem, or are there any other steps we might take to deal with the issue of people being inappropriately locked in at home and deprived of their liberty?

I appreciate the spirit in which this Bill has been presented to the House, and the willingness of the Government to listen, as they have already shown as the Bill has been going through the Lords. I have listened to Opposition Members, but think there is widespread support for the Bill among interest groups and experts. I look forward to the Government continuing to listen and improve the Bill so that we have a better system sooner rather than later.

[Several hon. Members rose—]

Department of Health and Social Care and Ministry of Housing, Communities and Local Government

Helen Whately Excerpts

Monday 2nd July 2018 Commons Chamber

[Helen Whately (Faversham and Mid Kent) (Con)]

It is a great pleasure to follow the thoughtful speech of the hon. Member for Sheffield South East (Mr Betts). I really enjoyed listening to it.

Everybody has an NHS story, whether a child born, a disease cured or a life saved. I have seen the NHS at its best—when my five-year-old son got appendicitis on Christmas day and three days later was home and happy, without his appendix. I have also seen it at its worst, however—when my fiercely independent grandmother tripped over and bruised herself. What followed included misdiagnosis, mis-medication, a morphine overdose, a six-month stay in hospital and enormous frustration trying to access social care. She returned home only to die. I suspect that my experiences reflect a national picture, of many, many lives saved against the odds and huge public support, rightly, for the NHS, but also of the tragedy of lives lost through omissions and errors.

I would like to take a step back in this the NHS’s 70th birthday year to say there is much to celebrate in our national health service: 44 million babies born, millions more treated, cancers cured, thousands of people alive who would not have been without its help, and long-term conditions such as diabetes much better managed, with much improved quality of life as well as life expectancy. Our health service is renowned around the world for providing the most equitable access to healthcare, and for this it is the envy of the world.

But we must not be misty-eyed about the NHS. Even on access, in my area of Kent there are some terrible A&E waits, while 1,500 children are waiting for mental health treatment, over 100 of them for more than a year. In some areas, NHS outcomes are not what they should or could be. There is still far to go to join up parts of the health and social care systems, as others have said this evening, and too little emphasis on public health and ever rising demand. I welcome the recently announced £20.5 billion of funding for the NHS, and also the forthcoming social care settlement, which is really important, because funding the NHS will not work if we do not also give social care the funding it needs.

The NHS has a huge opportunity to make the funding go further, and I do not mean through salami-slicing, penny-pinching and cost-cutting, through saving on biscuits and paper clips—I actually think a little more should be spent on enabling staff to eat together. I just want to touch on three areas of better spending. One is technology. There is a huge opportunity here. It has been said many times, but should be said again, that there is much further to go to improve the use of technology in the NHS, whether that is just updating systems so they work—so that doctors do not spend time cutting and pasting patients’ information or waiting for a system to turn on after it has turned itself off; having a fully functional single patient record that brings together mental and physical health, dental records and end-of-life instructions; or giving patients far more opportunity to use technology. In that regard, I welcome the recently announced app for booking appointments online. There are many other tools for better self-management. We must drive forward the potential for big data, artificial intelligence and personalised medicine, which could make such a difference to what we get from our NHS.

Secondly, on the workforce, it is fantastic that we are training and recruiting more doctors, including 100 more in a medical school in Kent, but with vacancy rates too high, particularly in mental health, and high staff turnover, we know that for parts of the workforce things are just not working. Junior doctors have told me they feel like cogs in a machine, and so too often do nurses, therapists, healthcare assistants, porters—you name it. So often I have heard them say things like, “Nobody ever listens”. In some parts of the health service, command and control has unfortunately dehumanised the experience of working in the NHS—a job that should be so full of satisfaction. The NHS has much to learn from itself, and from other systems and other sectors, about how to be a better place to work and to make the most of its fantastic workforce in order to provide the care we aspire to.

Thirdly, it is time to end the divide between physical and mental health. We need to give a greater share of the funding pie to mental health, as the Government have recognised, and knit together mental and physical health. When the two are joined together, it improves outcomes for patients and provides better value for the NHS—better outcomes at lower cost, which is exactly what we need and want.

We need to talk about the funding of the NHS and social care, as many Members have done so eloquently this evening. We need to talk about how much money is needed, and about the big question of where we are to find that money. Those are not difficult conversations, and they do not involve difficult decisions. However, we also need to talk about how to make the best use of the money, so that we can have the health and care system that we want for years to come.

Gosport Independent Panel: Publication of Report

Helen Whately Excerpts

Wednesday 20th June 2018 Commons Chamber

[Mr Hunt]

The right hon. Gentleman is absolutely right: we have a regulatory landscape that is very complex, does not achieve the results we want, and forces regulators to spend time doing things they do not want to do and does not give them enough time for things they do want to do. Obviously, because of the parliamentary arithmetic, if we are able to get parliamentary consensus on such a change, that would speed forward the legislation.

[Helen Whately (Faversham and Mid Kent) (Con)]

There are many “if onlys”, but one of them is: if only the junior doctors and others who spoke up had been listened to. I know my right hon. Friend is committed to making sure that people and whistleblowers are listened to and that he is committed to transparency. Will he say a bit more about what he is doing to make sure that everyone involved in patient care—from consultants to healthcare assistants, porters, patients and families—are listened to and that their concerns are acted on?

[Mr Hunt]

I think we have made progress when it comes to whistleblowing because every trust now has a “freedom to speak up” guardian—an independent person inside the trust whom clinicians can contact if they have patient safety concerns. That is a big step forward, which was recommended by Robert Francis. Where I am less clear that we have solved the problem is in relation to having someone for families to go to if they think that everyone is closing ranks, and we now need to reflect on that.

NHS Outsourcing and Privatisation

Helen Whately Excerpts

Wednesday 23rd May 2018 Commons Chamber

[Jonathan Ashworth]

My hon. Friend, who is extremely experienced, shows with great eloquence the dangers of this relentless outsourcing of services. It damages patient care and is not in the interests of the taxpayer.

[Helen Whately (Faversham and Mid Kent) (Con)]

I thank the hon. Gentleman for giving way. I remember well when I worked in the NHS under a Labour Government, before I was a Member of Parliament. All around me was talk of independent sector treatment centres, offering more choice through bringing in more private sector provision to the NHS, and PFI contracts. That was under the previous Labour Government, who I believe were trying to make the NHS give better patient care, but Labour has changed its tune. I am concerned that this seems to be all about ideology. I care—

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

Order. Members cannot make speeches in interventions.

--- Later in debate ---

[Rosie Duffield]

Absolutely. I was just about to speak about Unison, which is my union.

Leading unions have called the move in my local NHS trust—the East Kent Hospitals University NHS Foundation Trust—a “wolf in sheep’s clothing” and fear, with good reason, that workers’ conditions, including pay, will be eroded. I know many of those workers personally and they include some of my friends. The unions are right: workers’ conditions will be eroded, and it is already happening in other public services across Kent.

The Conservative-run Kent County Council, for instance, has introduced another ALMO called the Education People. Educational psychologists currently working directly for the council are being transferred to be employed by the Education People. The terms and conditions being offered by the ALMO to new educational psychologists are significantly worse than existing terms and conditions for those employed by the county, so no new educational psychologists have been recruited for Kent. We already have a serious shortage.

Of course, Kent County Council is doing that because central Government have starved it of funds and, perhaps because it is the same shade of blue, it is too timid to make that big a noise about things, so I will do it instead: Conservative central Government cuts are reducing our ability to care for people properly. In my constituency, the local NHS is potentially doing the same by setting up an ALMO to make yet more cuts by stealth. More money, less responsibility.

My union, Unison, represents nearly half a million healthcare staff employed in the NHS. That is one in every 60 or so working adults in one sector in the UK represented by one union standing up with one voice against injustice.

In Canterbury, rooms at the once thriving city hospital can now be found stacked with old equipment, and staff tell me that whole wings of old, neglected hospitals, such as the Buckland in Dover, lie abandoned, underused and under-occupied while waiting rooms in our not-so-local accident and emergency departments remain rammed. In Canterbury, services that were removed “temporarily” in 2017 look likely never to return to those old buildings. Proposals are afoot for a new hospital, but it simply will not be built if the central Government funding is not there to fill it. I am the only Labour MP in Kent and, as such, I am proud to make a loud noise about and stand up against the Conservative cuts that have caused vital hospital services to disappear in my county in recent years.

Things need to change drastically, and the new university medical school in Canterbury will be part of that much-needed change. If someone in my constituency is sick, they currently have to travel a long way to Ashford or Margate to get the emergency care they need.

Combine an underfunded NHS with a South East Coast Ambulance Service in special measures, and we have the ingredients for chaos. Chaos and a lot of sadness are apparent in all the letters I receive from constituents about the NHS week in, week out. Members will get the idea. The funding is not there, so the services have gone.

[Helen Whately]

I have a question about what the hon. Lady said regarding the loss of services at Canterbury Hospital. She and I both oppose that. Does she acknowledge that services were lost under a Labour Government?

[Rosie Duffield]

I agree that services started to be cut under a Labour Government, but they have got so much worse that our hospital is now underused, unusable and unrecognisable.

Madam Deputy Speaker, you will hear the same thing repeatedly from my concerned Labour colleagues this afternoon. The impact of austerity on our health service has been truly dreadful. Trusts are beginning to look to PFIs to keep walls from crumbling, and the desire for a short-term fix has meant that private companies, such as Virgin, Serco and Spire, have stepped in, especially near me in Kent, to profit from sickness, which is fundamentally abhorrent.

So much must change. The privatisation of the NHS and supporting services must be stopped and funding must be fully restored to the levels it was at under the last Labour Government. If Conservative Members continue to erode our health service and encourage private companies to step in to fill in the gaps, there will be little left when they finally realise what they have done. With so many pieces given away, the NHS jigsaw will certainly never look the same again.

Labour Members are constantly accused of running down, criticising and putting down our health service. The fact is that we are telling the truth about the urgent state of our broken NHS, which is staffed by amazing, dedicated and selfless people who deserve so much better from this Government.

--- Later in debate ---

[Alex Chalk (Cheltenham) (Con)]

The allegation of privatisation of the NHS is wholly misconceived. It is a reheated and debunked myth that irresponsible elements have been trotting out for decades, and repeating it does not make it any more true. NHS outsourcing to private providers is being weaponised in a way that involves dressing it up as a threat to the NHS’s guiding principle that treatment should be provided free at the point of use and regardless of ability to pay. That is what people understand when the expression “privatisation” is used, but the reality is that nothing could be further from the truth.

That principle is fundamental, inviolable and enduring. It is all those things because it reflects so much about the kind of country we are and want to continue to be. It is the principle that says that when a member of the public is rushed into hospital needing emergency care, we take pride in the fact that the ability to pay is irrelevant. NHS staff are interested in vital signs, not pound signs. There is no appetite in this country for the Americanisation of British healthcare. Even if there were, I could never support it, my colleagues could never support it and the Government could never support it. That is why it is so important that we make that position crystal clear.

On the issue of outsourcing, we must not rewrite history. As moderate members of the Opposition concede, certain services have been provided independently since the NHS’s inception 70 years ago. Most GP practices are private partnerships; the GPs are not NHS employees. The same goes for dentists and pharmacists. Equally, the NHS has long-established partnerships for the delivery of clinical services such as radiology and pathology, and for non-clinical services such as car parking and the management of buildings and the estate. To give an everyday example, the NHS sources some of its bandages from Elastoplast. That is common sense; it would be daft if public money was diverted from frontline patient care in order to research and reinvent something that was already widely available.

That is why certain members of the Labour party have slammed this kind of argument as scaremongering. Lord Darzi, a former Health Minister, has been highly critical. In 2017, the shadow Secretary of State said on the “Today” programme that there may well be examples

“where in order to increase capacity you need to use the private sector”,

so this argument is completely misconceived. In 2009, Andy Burnham admitted that the private sector could benefit the NHS. As Labour’s Health Secretary, he said:

“the private sector puts its capacity into the NHS for the benefit of NHS patients, which I think most people in this country would celebrate.”—[Official Report, 15 May 2007; Vol. 460, c. 250WH.]

[Helen Whately]

My hon. Friend is making the point extremely well that there is complete inconsistency in Labour’s argument on this point. Which of the various parts of NHS services that are provided by independent sector providers is Labour against?

[Alex Chalk]

My hon. Friend is absolutely right. I shall give three brief examples from my own constituency. First, Cobalt is a Cheltenham-based medical charity that is leading the way in diagnostic imaging. It provides funding for research, assists with training for healthcare professionals and provided the UK’s first high-field open MRI scanner. Is the Labour party now suggesting that that should be ditched—that we should axe that fantastic facility in my constituency?

Secondly, the Sue Ryder hospice at Leckhampton Court is part-funded by the NHS and part-funded by charitable donations; again, is that for the axe under Labour? Thirdly, what about Macmillan and its nurses? It is a fantastic organisation, yet we have the extraordinary situation in which the Labour party says, “Macmillan is all right, but another provider is not.” What is the logic of the Labour position? What about Mencap? The list goes on and on.

Let me deal briefly with the second part of Labour’s motion, whereby it wants to ensure that all communications between Ministers and their officials are revealed. The reason why that is so bogus was explained clearly by the former senior Labour Secretary of State Jack Straw in a statement that was quoted with approval in the Chilcot committee’s report. He said that meetings in Cabinet

“must be fearless. Ministers must have the confidence to challenge each other in private. They must ensure that decisions have been properly thought through, sounding out all possibilities before committing themselves to a course of action…They must not be deflected from expressing dissent”.

What about advice given by officials in the form of memorandums and so on? What would Labour Members say to those officials about a motion that might result in the making public of the advice of professional civil servants—people who, of course, can never answer back themselves—that they thought was given to Ministers in confidence? As I have already indicated, it would also be completely inconsistent with the Freedom of Information Act 2000, which was introduced by a Labour Government. On both bases, the motion is misconceived, and I shall have no hesitation in voting against it.

--- Later in debate ---

[Helen Whately (Faversham and Mid Kent) (Con)]

A constituent wrote to me last year to say that, against the backdrop of negativity around healthcare in this country, he personally had had a really good experience of treatment on the NHS at his nearest hospital. It happened to be KIMS Hospital, an independent sector provider, but it had given him what he really wanted: timely, high-quality and caring treatment free at the point he needed it.

The shadow Secretary of State recognised earlier that there was a place for private providers in the NHS. As in the example I have just given, that place might be enabling somebody to get timely treatment at a time of huge pressure on NHS resources, but, from what we have seen, it seems Labour considers the place for private treatment to be whenever Labour is in power. As we heard, in the years running up to 2010, when Labour was in power, there was an increase in the use of private sector providers in the NHS, as I saw when I worked with the NHS, and there was an increase in their use last year in Wales, where Labour is in power.

I do not want to make an ideological argument—I do not particularly want to talk about who provides the care, because what matters to me and my constituents is that they get good care when they need it—but, as Labour is picking this fight, it is only fair to put some truths on the table, and as far as I can see, the place for private providers, from Labour’s point of view, is whenever it is in government.

What matters to me is great care, and I have observed some ways of getting it. In some parts of healthcare, one way is by offering choice. Giving mothers-to-be the choice of where to have their baby makes maternity teams say, “Hold on. We want to be the best place in the area to have a baby.” Choice works, so long as it is accompanied by transparency, and the Government have done much to improve transparency in healthcare, meaning that people can know where to get good treatment and where there are problems, which has driven up quality.

Innovation and new technology can also transform healthcare. Whether the introduction of keyhole surgery, which has hugely shortened stays in hospital, or the exciting things happening with genomics and personalised medicine, innovation is making a huge difference, and it should not matter where that innovation comes from. If it comes from the private sector, we should welcome it. The workforce also matter. We have skilled, capable and committed people providing great care day after day, but I would argue the Government need to place an even greater emphasis on the workforce to make sure that those who work in the NHS or train to be doctors, nurses or other healthcare professionals are valued and nurtured and have rewarding careers that make the most of their talents.

I will conclude with some facts, given the many myths peddled this afternoon: it is clear the NHS is not being privatised—there has been a zero increase in the last year in the use of the independent sector; the NHS is getting more money—£8 billion more this Parliament; and the NHS is treating thousands more people. Times are difficult, but the NHS is rising to the challenge. We should get away from these ideological arguments and put our energies into making sure we have the best possible NHS.

Oral Answers to Questions

Helen Whately Excerpts

Tuesday 8th May 2018 Commons Chamber

[The Parliamentary Under-Secretary of State for Health and Social Care (Steve Brine)]

I will be very happy to meet the hon. Gentleman to look at his local issue.

[Helen Whately (Faversham and Mid Kent) (Con)]

I welcome the Green Paper on mental health in schools, which was published earlier this year, but it does prompt a question about the mental health of students in further and higher education. Does my right hon. Friend have any plans to look into that issue? If he does not, may I urge him to do so?

[Jackie Doyle-Price]

I thank my hon. Friend for her question and her continued industry on these matters. As she mentioned, the Green Paper outlined plans to set up a new national strategic partnership focused on improving the mental health of 16 to 25-year-olds. That partnership is likely to support and build on sector-led initiatives in higher education, such as Universities UK’s #stepchange project, whose launch I attended in September. The strategy calls on higher education leaders to adopt mental health as a strategic priority, to take a whole-university approach to mental health and to embed it across policies, courses and practices. [Interruption.]