Schedule to be inserted as Schedule AA1 to the Mental Capacity Act 2005

Part of Mental Capacity (Amendment) Bill [Lords] – in a Public Bill Committee at 10:45 am on 15th January 2019.

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The average cost of placements in ATUs for people with a learning disability is £3,500 per week, but it can be as high as £13,000 per week, as in the case of Bethany. The average stay in these independent hospitals is five and a half years. Independent hospitals have been shown to have a profound vested interest in detaining people for long periods. The journalist Ian Birrell exposed in The Mail on Sunday the obscene amounts that private companies that run independent hospitals make out of these detentions, which should not come as any great surprise, given the length of time that people are detained. He revealed that seven providers charged taxpayers up to £730,000 for each patient held in an independent mental health hospital. I was astounded to learn that one man alone is thought to have cost the taxpayer more than £10 million after being detained against his family’s wishes for more than 17 years.

Among the companies running these institutions—these places have been called bedlam-like, which I believe is appropriate—are two large US healthcare companies, a global private equity group and a Guernsey-based hedge fund, as well as two British firms. These companies pay their executives half a million pounds or more, and their profit margins are as high as 31%. One director of a British firm was paid more than £1 million over two years. One director of American company Universal Health Services, whose UK operation is run by Cygnet Health Care, earned £39.5 million in a single year.

Then there is the Priory Group, which earned £720 million from the NHS for providing independent mental health hospital services. Since 2012 it has been criticised by the coroner in relation to 17 deaths, including the deaths of five teenagers. Following a recent judgment, it potentially faces millions of pounds in fines because of its failure to protect a girl with a history of suicide attempts in one of its hospitals. In 2012, Amy, the girl in question, who was aged 14, was found dead in her room at a Priory hospital within three months of being admitted. Coroners criticised several elements of Priory’s operations, including its poor communication about the risk that patients could present and its poor record keeping. In one case, staff were found to have falsified notes to show that patients had been observed more than they actually had been.

The Priory Group manifestly failed to protect the vulnerable people it was contracted by the NHS to support. I raise this because it is an example of the type of unacceptable care provided in independent hospitals that treat mental health patients. The recently publicised cases of abuse in ATUs reveal that people are being forcibly detained. Indeed, there were nearly 29,000 restraint incidents in England alone last year—an increase of 12,000 in two years. Many people are subjected, as in Bethany’s case, to cruel and often prolonged seclusion.

I will cite another case, which was brought to me by a person whose godson has been held for more than three years in an independent mental health hospital and subjected to horrific treatments. Despite his family’s efforts to move him into a community setting he is still detained there, and they offer him nothing like the freedom he had in local authority-run care. He has had medication forcibly administered, leaving him obese and causing his teeth to fall out. The hospital detaining him left him for months before fitting incorrectly sized dentures. The individual who contacted me has described him as having been brutalised. They would not call the institutions hospitals, because they say that patients’ health never improves.

Even more chillingly, there has been a string of deaths in assessment and treatment units in recent years. A freedom of information request from Sky News late last year found that 40 people have died in ATUs between 2015 and 2018.

Companies make inordinate profits from detaining vulnerable people in miserable conditions. That is under existing mental health legislation. I make those points because they see it as in their interest to hold patients as long as possible, because of the vast sums that they receive to provide packages of what can only loosely be described as care. Despite the commitments that the Government have made, and broken, to reduce the detention of people in those facilities, the rate at which the operation of those companies is expanding is alarming. That is because the direction of travel is towards greater institutionalisation, not greater community social care provision.

The new NHS long-term plan has diluted important pledges, made by the Government in 2016, to reduce the number of people receiving institutional care to 25 per 1 million people; the NHS now aims for a figure of no more than 30 people with a learning disability for every 1 million adults. We want to ask the Minister why the Government are going backwards through the long-term plan. It is a backward step, suggesting that they are de-escalating the reduction of that type of care as a priority.

The Opposition share the profound concerns of stakeholders, which have been expressed to me in the direst terms by charities such as Mencap, Sense and VoiceAbility, to name a few. Without the safeguards in our amendment, there is a danger that the Bill will create a further avenue for independent hospitals to keep people in detention for long periods under the Mental Capacity Act 2005, and make millions of pounds from doing so.

The issue was discussed only briefly in the House of Lords because the focus of much of peers’ attention, in the short time they had the Bill, was the deeply ingrained and equally dangerous conflict of interest within care homes. Our Labour colleagues in the Lords tabled an amendment to make the CCG or mental health trust the responsible body and ensure that independent hospitals would have no such role as a responsible body. The Minister in the Lords, Lord O’Shaughnessy, rejected that, remarking that he thought the amendment could be improved by making approved mental capacity professionals responsible for pre-authorisation reviews. He said that

“independent hospitals would benefit from AMCP involvement”.—[Official Report, House of Lords, 21 November 2018; Vol. 794, c. 280.]

Clearly, that is true, but it does not alter the fact that independent hospitals should not have any control over the process of making arrangements for pre-authorisations as the responsible body in the first place.

To quote my colleague Baroness Thornton, how can someone

“be liberated from the situation they are in if the deprivation of liberty power remains with the chief executive or manager of the private hospital?”—[Official Report, House of Lords, 21 November 2018; Vol. 794, c. 280.]

Responsibility simply should not lie in their hands.

The Minister in the Lords made a commitment that the issue would be dealt with in the House of Commons, and the Government have indeed introduced amendment 9, which we have just discussed, which stipulates that pre-authorisation reviews must be carried out by an approved mental capacity professional if the arrangement provides for the cared-for person to receive care or treatment mainly in an independent hospital. I gather that the word “mainly” is used to ensure that the pre- authorisation review is carried out if a cared-for person moves regularly between a care home and an independent hospital, but the amendment does not allay our deeply-held concerns, or those of interested stakeholders, that independent hospitals will still have a role as a responsible body for arranging pre-authorisation reviews.

Independent hospitals could be allowed to play a role in the process, selecting their own approved mental capacity professionals. That would represent a dangerous conflict of interest. Independent hospitals could develop cosy relationships with preferred AMCPs, which would undermine the independence of the assessment process. The Minister has referred to that independence, which she clearly thinks is important. We believe that the Bill must guard vigilantly against the potential for private companies to have any say in making the arrangement for the AMCPs as the responsible body.

There are cases that show the danger of giving independent hospitals a role in the process. One was supplied to me by POhWER, a charity which provides advocacy services in the form of a relevant person’s paid representative—that is a little bit of a mouthful; I might start adopting an acronym for it—to people who do not have a friend or family member suitable, able or willing to act on their behalf.

A relevant person’s paid representative, RPPR, is an independent advocate, which local authorities are obliged to appoint in these instances. POhWER was involved in providing a relevant person’s paid representative to a cared-for person who had been in an independent hospital for almost a year, without any representation whatsoever. He had ended up there after falling in his two-bedroom flat, where he usually received a package of home care. He was understandably furious at being held in hospital for such a long time. Shortly after the case was referred to tribunal by the RPPR, the cared-for person was returned home by the court with a package of care and he was deemed to have capacity.

The reason this is so disturbing is that it was in the independent hospital’s interest not to refer the case for advocacy. Why should we have any confidence that it would not act in a similarly self-interested way where assessments are concerned? That is the real fear. Given what I have laid out about the profits that independent hospitals are making, there is a real concern. That is why we have tabled our amendment, which will ensure that independent hospitals will not be the responsible body for arranging such reviews and will have no capability to select their own approved mental capacity professionals.

The Minister and Secretary of State have been full of well-meaning words about how they want to address the appalling abuse that has been meted out to Bethany and thousands of others in these independent hospitals. The Minister has repeated that this morning. I am sure she would not want to be responsible for enabling, through the Bill, the addition of yet more of these abhorrent cases. This amendment provides an opportunity for the Government to demonstrate that they are serious about stopping the pernicious behaviour of independent hospitals. I hope the amendment will secure the Government’s support.