Amendment 161

Domestic Abuse Bill - Committee (5th Day) – in the House of Lords at 10:30 pm on 8th February 2021.

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Lord Kennedy of Southwark:

Moved by Lord Kennedy of Southwark

161: After Clause 72, insert the following new Clause—“Evidence of domestic abuse for the purposes of legal aid: restriction of fees(1) Where a healthcare professional has examined a person in the course of providing services under a general medical services contract, the healthcare professional may not impose a fee upon that person for providing a letter or report for the purposes of regulation 33(2)(h) of the Civil Legal Aid (Procedure) Regulations 2012 (S.I. 2012/3098) (supporting documents: domestic violence).(2) In this section, “general medical services contract” has the meaning given by section 84 of the National Health Service Act 2006.”Member’s explanatory statementThis amendment aims to prevent GPs who have a contract with the NHS from charging victims of domestic abuse for letters confirming their injuries so that they can seek access to legal aid.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing)

My Lords, Amendment 161 in my name—and those of the noble Baronesses, Lady Bull and Lady Burt of Solihull, and the right reverend Prelate the Bishop of London—seeks to add a new clause to the Bill; its purpose is to deal with an issue that I have been raising in this House since 2016. Although I have had expressions of support from both inside and outside the Chamber, we just have not been able to deal with it.

The problem is that GPs are often asked by victims of domestic abuse to provide letters to a set text, which they need to access legal aid, and a GP can charge a fee for that letter. The vast majority of GPs do not charge and would never dream of doing so, but a minority do, and the charges can be anything up to £150 for such a letter. That is just wrong. The purpose of my new clause is to stop this happening in the future by finally putting an end to this practice, because even one victim being charged is one victim too many.

As I said earlier, this is not the first time that I have raised this issue in the House; I have raised it many times before. I want to give you a flavour of the engagement that I have had with the Government. On 24 January 2018, I moved an amendment on the issue. The noble Lord, Lord Bourne of Aberystwyth, responding for the Government, told me that it was

“far from an ideal situation”,—[Official Report, 24/1/18; col 1058.] that the matter was being discussed by the Department of Health and negotiated with the GPs, and that it would be reviewed in April 2018. The noble Baroness, Lady Manzoor, from the Government supported me. I raised the matter again on 6 March 2018, and was told by the noble Lord, Lord Bourne of Aberystwyth, that my amendment this time was too widely worded but that, in “early soundings”, the Department of Health had confirmed that it was an issue that needed “looking at”.

I raised the matter again on 22 March 2018. This time, I was told by the noble Baroness, Lady Williams of Trafford, that she was “shocked” to learn that some GPs would charge victims of domestic abuse for letters so that they could get access to legal aid. On 15 November 2018, I raised the matter with the noble Lord, Lord O’Shaughnessy, who told the House that

“the Department of Health and Social Care has put this important issue forward as part of the general practice contract negotiations for 2019-20.”

So, this was the second year running that they would be in the negotiations. He said that

“while the progress of these negotiations is not discussed publicly until agreement is reached, I can reassure the House that the Government are committed to dealing with this issue.”

He continued:

“I agree with the noble Lord. I feel uncomfortable with the idea of these letters being charged for. They have been identified by the Ministry of Justice and MHCLG as barriers to accessing support for victims of domestic violence. That cannot be right, and we are seeking to end that situation.”—[Official Report, 15/11/18; col. 1969.]

On 4 March 2019, I raised the matter again with the noble Lord, Lord Bourne of Aberystwyth. He recalled that I had raised the issue before but said again that the issue was part of contract negotiations, and that he was unable to update me or the House any further. I raised the issue again via a Written Question, which was answered on 29 April by the noble Baroness, Lady Blackwood of North Oxford. She said that the Government

“recognise the importance of tackling domestic abuse. General practitioners (GPs) can have an important role in supporting victims, including by providing evidence to enable them to access services.”

I was told:

“GP provision of evidence was discussed as part of the 2019/20 GP contract negotiations and work is ongoing to improve the process. Charges for provision of evidence of domestic abuse are not a specific requirement of the contractual relationship between GPs and the National Health Service. The Ministry of Justice and the General Practitioners Council are currently working together to clarify and improve the process for GPs and applicants in relation to evidence of domestic violence for legal aid applications.”

On 14 May 2019, I raised the matter again with the noble Lord, Lord Bourne of Aberystwyth, when he presented a Statement on domestic abuse and women’s refuges. He did not answer my questions that day but I accept that it was a wider Statement on domestic abuse.

These are not the only times I have raised this issue; I also raised it with the noble and learned Lord, Lord Keen of Elie, and with other noble Lords who spoke on behalf of the Government. I hope that this gives the House just a flavour of my persistent efforts to raise what I believe is a great injustice. For women, there appears to be a postcode lottery: just because of where you live, you can be charged for a letter. That is totally wrong. The BMA has a policy that no GP should charge for these letters. The Government have, through a variety of Ministers, recognised that this is wrong and that it should not happen, but for some reason they lack the political will to deal with it and put this issue to bed. No one supports this practice—everybody seems to be against it—but some GPs are still doing it, and the situation seems to be that we are not going to do anything about it. That is just wrong.

This is a most unsatisfactory situation and no Member of this House should be satisfied with it. Therefore, if we cannot get this resolved in the next few weeks, we are going to have a vote on Report—I can promise the House that. We are finally going to deal with this issue in this House. I hope that the Minister can give us some hope today about resolving this; otherwise, I will add him to my list of Ministers who have expressed support but have not actually done anything about it. I look forward to his response.

Photo of Baroness Bull Baroness Bull Crossbench 10:45 pm, 8th February 2021

My Lords, I am grateful to the noble Lord, Lord Kennedy of Southwark, both for introducing this amendment, to which I have signed my name, and for his persistence, as we have heard, in raising this issue in this House and beyond.

The decision to leave an abusive relationship may be among the hardest choices a person will ever make. However cruel the relationship and however damaging its impact, breaking away cuts a bond. It may be the only type of connection that that person has ever known. Sometimes, the relationship is just one in a lifelong pattern. The person brave enough to make that break needs all the support they can get, but too often they encounter barriers, including those related to access to legal aid. Without it, many abuse survivors are unable to challenge the perpetrator through the courts, yet eligibility for such aid is based on the requirement to provide evidence of abuse. It is hard to imagine the pain of reliving the situations of abuse, the shame it can entail and the difficulty of disclosing details of that abuse to different professionals and services over and over again. It is not hard to see why this is something that many victims will never do.

As we have already heard, research from the Ministry of Justice identifies a number of barriers faced by individuals in providing the evidence of their abuse that they need to unlock support. These include difficulties in gathering evidence if the victims do not disclose the violence at the time to those organisations that are recognised as able to supply evidence. Language barriers can be an issue; data protection issues can be a problem; and, of course, as we are discussing with this amendment, the financial costs of acquiring certain pieces of evidence —and the unwillingness on occasion of organisations and health professionals in particular to provide a letter confirming that abuse has taken place—can be a barrier. Taken together, these issues can be the determining factors in a victim’s ability to access legal aid.

This Bill now includes economic abuse in the definition of domestic abuse, recognising that the ways in which one partner seeks to control and abuse the other often include the control of household and personal finances. Therefore, if there is a financial cost to securing a GP’s letter attesting to the fact that abuse has taken place—as we have heard, it is a letter that can cost up to £150—this could push this vital piece of evidence beyond the reach of survivors. Accessing the money from bank accounts that are scrutinised by the partner might alert the abuser to the fact that the victim is in the process of seeking support, which puts them at further risk.

This amendment would remove what might be a crucial block to victims accessing justice. It is supported by the domestic abuse commissioner for England and Wales. The British Medical Association, as we have heard, has tried to address this issue through guidance, but this has not achieved the aim. This Bill provides the opportunity to put a definitive stop to these charges and ensure that a lack of financial resources is not a hindrance to survivors who are brave enough to try to escape from the perpetrators of domestic abuse.

Photo of The Bishop of London The Bishop of London Bishop

My Lords, I add my voice to this amendment simply because it should go without saying that some things need to be penned into law for there to be consistent access to justice. Amendment 161 has been tabled because it prevents GPs charging survivors of domestic abuse for letters which confirm injuries they have suffered—evidence which survivors need for their legal aid applications. The case for this amendment has been extremely well made by the noble Lord, Lord Kennedy, and the noble Baroness, Lady Bull. I agree with the statements they have made, so there is no need to add much to what has been said.

There should be no gatekeepers when we consider the path to justice, not least from those who are on the path to help facilitate it. As we have heard, the British Medical Association has recommended that patients should not be charged for medical evidence when seeking it for legal aid. I too stand by this, by virtue of calling for this amendment to be included in this Bill.

Photo of Baroness Bertin Baroness Bertin Conservative

My Lords, I support Amendment 161 and thank the noble Lord, Lord Kennedy, for tabling it and for being so tenacious. It is an honour to speak after the right reverend Prelate the Bishop of London. We cannot on the one hand spend years putting together a great Bill like this that says to victims, “We hear you; we are there for you; we want to help you escape”, and on the other hand stand by and allow those same victims to be potentially charged £150—an extortionate amount for many people—for proof of that abuse.

Domestic abuse does not discriminate. You can be a victim of abuse whether you are rich or poor. Unfortunately, while this fee remains, it does and will discriminate against poorer victims. Many of them will go without legal representation, many will return to an abuser and many will be seriously injured or worse as a result of being unable to access the legal remedies that are supposed to keep them safe. I know that the Department of Health has a fair amount on its plate right now, but it should endorse this small change to the Bill. It could have an immeasurable impact on people’s lives when they are at their most vulnerable.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

My Lords, I am grateful to the noble Lord, Lord Kennedy of Southwark, for raising this matter—I am tempted to say “again”, but of course I should really say “again and again”. The list of engagements which he set out was impressive, and I fear I may not be able to provide satisfaction to the noble Lord where so many of my illustrious forebears have already failed. If I can put it this way: what he has said this evening has only increased my resolve to try to sort out this issue, not only because it is plainly an important matter to be addressed, as so many have said, but because it means that I will escape the horrid fate of being added to the noble Lord’s list.

The Government, as will be clear from what has been said by my forebears and what I have just said, wholeheartedly agree that vulnerable patients should not be charged by doctors for evidence to support them in accessing legal aid. That being the case, we are sympathetic to the spirit of this amendment. The issue requires further consideration ahead of Report for the reasons I will briefly set out. While I cannot commend this amendment to the Committee today, I will be looking at it in detail between now and Report. I should also take the opportunity to point out a couple of technical issues with the amendment, which I hope will also be helpful.

I am pleased that the noble Lord, Lord Kennedy, was able to meet with the Minister for Prevention, Public Health and Primary Care and representatives from the British Medical Association ahead of today’s debate to discuss the issue. I think it fair to say that everyone who attended this meeting was seized fully both of the issue and of its importance. As the noble Baroness, Lady Bull, said, we do not want to do anything to prevent or discourage victims of domestic abuse coming forward, and that includes questions of cost. That said, it is fair to say that there was some anecdotal evidence at the meeting which pointed to this perhaps being a diminishing problem, particularly since, as the right reverend Prelate the Bishop of London reminded us, the BMA issued advice to its members last year that they should not charge for this service, advice which they recently reinforced.

Following that meeting, the noble Lord, Lord Kennedy, graciously undertook to provide what evidence he had of this being a continuing issue so that we could consider the matter further. We look forward to receiving that evidence and continuing our discussions. However, as matters stand this evening, we remain to be persuaded that this issue needs to be resolved through primary legislation.

The position is that GPs can provide services in addition to NHS contracted services. They are classified as private services, for which they have the discretion to charge the patient. Letters of evidence to access legal aid is one such private service. It is therefore up to an individual GP practice to decide whether a charge should be levied and, if so, what it should be. However, as I indicated, as part of the 2020-21 contract agreement, the BMA recommended to all GPs that a charge should not be levied for letters of this kind. That is a welcome recognition by the BMA that, as was said, vulnerable patients with limited means should not be expected to pay for such letters. We recognise and commend the vast majority of GPs who are following that guidance, but it is a non-binding recommendation. As the noble Lord, Lord Kennedy, mentioned, we are informed of anecdotal examples where patients can be charged up to as much as £150 for that evidence.

As I said, I should make a couple of observations about the drafting of the amendment, although I recognise that these can be readily addressed in a further iteration of it. First, as currently drafted, the amendment refers to

“providing a letter … for the purposes of regulation 33(2)(h) of the Civil Legal Aid (Procedure) Regulations.”

That regulation was amended by later civil legal aid procedure regulations in 2017, so there is now no such regulation as presently referred to in the amendment. That is something that could be addressed in further drafting, and I respectfully suggest that it is.

Secondly, the amendment relies on the definition of a “general medical services contract” in Section 84 of the National Health Service Act 2006, which applies to England only. I assume that that is the case because, as the noble Lord is aware, the health service is a devolved matter in Wales and therefore this issue is a matter for the Welsh Government. I thought that it was worth making that point clear as well.

I return to the main point, on which, if I may respectfully say so, we have heard a number of very cogent speeches. I have not yet mentioned the contribution of my noble friend Lady Bertin, which was equally forceful. The Government remain committed to exploring options around this issue with the medical profession to ensure that vulnerable patients are not charged, and I would welcome the noble Lord’s continued help in this regard. In particular, once he has been able to provide what evidence he has of GPs continuing to charge victims of domestic abuse for these letters, we will be happy to have further meetings with him ahead of Report.

I hope that in the meantime he will feel able to withdraw his amendment, but he can rest assured that I have it ringing in my ears that I will face a similar amendment on Report if we cannot satisfactorily resolve the matter before that stage. I commit to working with him and to doing all I can to reach that satisfactory conclusion.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing)

My Lords, I thank all noble Lords who have spoken—the noble Baronesses, Lady Bull and Lady Bertin, and the right reverend Prelate the Bishop of London—for their support. I also thank the noble Lord, Lord Wolfson, for his very careful and considered response. It was very welcome.

The noble Lord made reference to the meeting. It was a very good meeting. We actually had four Ministers from three departments on Zoom—I have never had that before—so in that sense I was very pleased. Clearly, Ministers are taking this seriously, and I appreciate that very much.

Obviously, the technical issues can be ironed out. I am not a draftsman, but I am sure that we can get that sorted out. We have been raising this issue since 2016. The negotiations have been going on for a very long time, but we do not seem to have gone beyond the fact that everybody is against it, no one wants to do it, but no one wants to do anything about it. We have not moved on much from that position today.

As I said, I hope that I will not have to push the amendment to a vote at a later stage. I hope that I can work with the noble Lord to resolve this issue but, if that does not happen, we will divide the House. However, at this stage, I beg leave to withdraw the amendment.

Amendment 161 withdrawn.

Photo of Lord Alderdice Lord Alderdice Deputy Chairman of Committees

We now come to the group consisting of Amendment 162. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in debate.