| Previous Section | Index | Home Page |
(a) not being a qualifying patient falling within subsection
(2) above, he discusses with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 57 above applies; or
(b) not having attained the age of 18 years and not being a qualifying patient falling within subsection (2) above, he discusses with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 58A above applies.
(4) Where a patient who is a qualifying patient falling within subsection (3) above is informed that the treatment concerned is proposed in his case, he remains a qualifying patient falling within that subsection until—
(a) the proposal is withdrawn; or
(b) the treatment is completed or discontinued.
(5) References to the appropriate national authority are—
(a) in relation to a qualifying patient in England, to the Secretary of State;
(b) in relation to a qualifying patient in Wales, to the Welsh Ministers.
(6) For the purposes of subsection (5) above—
(a) a qualifying patient falling within subsection (2)(a) above is to be regarded as being in the territory in which the hospital or registered establishment in which he is liable to be detained is situated;
(b) a qualifying patient falling within subsection (2)(b) above is to be regarded as being in the territory in which the area of the responsible local social services authority within the meaning of section 34(3) above is situated;
(c) a qualifying patient falling within subsection (2)(c) above is to be regarded as being in the territory in which the responsible hospital is situated;
(d) a qualifying patient falling within subsection (3) above is to be regarded as being in the territory determined in accordance with arrangements made for the purposes of this paragraph, and published, by the Secretary of State and the Welsh Ministers.
130D Duty to give information about independent mental health advocates
(1) The responsible person in relation to a qualifying patient (within the meaning given by section 130C above) shall take such steps as are practicable to ensure that the patient understands—
(a) that help is available to him from an independent mental health advocate; and
(b) how he can obtain that help.
(2) In subsection (1) above, “the responsible person” means—
(a) in relation to a qualifying patient falling within section 130C(2)(a) above (other than one also falling within paragraph (b) below), the managers of the hospital or registered establishment in which he is liable to be detained;
(b) in relation to a qualifying patient falling within section 130C(2)(a) above and conditionally discharged by virtue of section 42(2), 73 or 74 above, the responsible clinician;
(c) in relation to a qualifying patient falling within section 130C(2)(b) above, the responsible local social services authority within the meaning of section 34(3) above;
(d) in relation to a qualifying patient falling within section 30C(2)(c) above, the managers of the responsible hospital;
(e) in relation to a qualifying patient falling within section 130C(3) above, the registered medical practitioner or approved clinician with whom the patient first discusses the possibility of being given the treatment concerned.
(3) The steps to be taken under subsection (1) above shall be taken—
(a) where the responsible person falls within subsection (2)(a) above, as soon as practicable after the patient becomes liable to be detained;
(b) where the responsible person falls within subsection (2)(b) above, as soon as practicable after the conditional discharge;
(c) where the responsible person falls within subsection (2)(c) above, as soon as practicable after the patient becomes subject to guardianship;
(d) where the responsible person falls within subsection (2)(d) above, as soon as practicable after the patient becomes a community patient;
(e) where the responsible person falls within subsection (2)(e) above, while the discussion with the patient is taking place or as soon as practicable thereafter.
(4) The steps to be taken under subsection (1) above shall include giving the requisite information both orally and in writing.
(5) The responsible person in relation to a qualifying patient falling within section 130C(2) above (other than a patient liable to be detained by virtue of Part 3 of this Act) shall, except where the patient otherwise requests, take such steps as are practicable to furnish the person (if any) appearing to the responsible person to be the patient’s nearest relative with a copy of any information given to the patient in writing under subsection (1) above.
(6) The steps to be taken under subsection (5) above shall be taken when the information concerned is given to the patient or within a reasonable time thereafter.”
(3) In section 134 (patients’ correspondence), in subsection (3A), for paragraph (b) substitute—
“(b) “independent advocacy services” means services provided under—
(i) arrangements under section 130A above;
(ii) arrangements under section 248 of the National Health Service Act 2006 or section 187 of the National Health Service (Wales) Act 2006; or
(iii) arrangements of a description prescribed as mentioned in paragraph (a) above.”’.— [Ms Winterton.]
Brought up, and read the First time.
4.15 pm
Ms Winterton: I beg to move, That the clause be read a Second time.
Mr. Speaker: With this it will be convenient to discuss the following:
Amendment (a) to the proposed new clause, after paragraph (1), insert—
‘(1A) The appropriate national authority must ensure that help under arrangements made under subsection (1) is available to a qualifying patient from the point at which he undergoes any assessment for the purposes of this Act.’.
Amendment (b) to the proposed new clause, in new section 130C(3)(b), at end insert
‘, or is admitted to, or remains in, a hospital, or registered establishment in pursuance of such arrangements as are mentioned in section 131(1).’.
Amendment (c) to the proposed new clause, after new section 130C(3)(b), insert—
‘(3A) A patient is also a qualifying patient if he is about to undergo, or has undergone, any assessment for the purposes of this Act.’.
Government new clause 5— Independent mental capacity advocacy service: exceptions.
New clause 15— Treatment requiring consent (period of time since administration of treatment)
‘(1) Section 58 of the 1983 Act is amended as follows.
(2) In subsection (1)(b) leave out “three months” and insert “two months”.’.
New clause 17— Nomination of carer as nearest relative
‘(1) The 1983 Act is amended as follows.
(2) After section 26(4) insert—
“(4A) Where a person has made an advance nomination with regard to the choice of a relative or other person to be his nearest relative, his nearest relative shall, subject to the power of the court under section 29 to appoint an acting nearest relative, be determined by giving preference to that choice.
(4B) “Advance nomination” means a nomination made by a person (“P”), after he has reached 18 and when he has capacity to do so and in contemplation that he shall become subject to any act or decision exercisable under the provisions of this Act that his choice of nearest relative shall take precedence over the provisions of subsection (3).
(4C) For the purposes of subsection (4B) P’s nomination must be his carer as defined by section 1(1)(a) of the Carer’s and Disabled Children Act 2000.
(4D) For the purposes of section (4B) nomination cannot be made or withdrawn if P is subject to an order under this Act.
(4E) An advance nomination is not valid if P—
(a) has withdrawn the decision at a time when he had capacity to do so, or
(b) has done anything else clearly inconsistent with the advance nomination remaining his fixed decision.
(4F) An advance nomination is valid only if—
(b) it is signed by P or by another person in P’s presence and by P’s direction,
(c) the signature is made or acknowledged by P in the presence of a witness, and
(d) the witness signs it, or acknowledges his signature, in P’s presence.
(4G) The court may make a declaration as to whether an advance nomination—
Amendment No. 104, in clause 23, page 15, line 27, leave out ‘or’.
Amendment No. 105, in page 15, line 29, at end insert—
‘because his appointment poses a risk to the health or well-being of the patient; or
(f) that in the reasonable opinion of the patient the person is not appropriate.’.
Government amendments Nos. 51 to 58, 60 to 66 and 68
Ms Winterton: It is a pleasure to report back from the Committee after our extensive debates. It is particularly pleasurable to start with this group of amendments, as the amendments that we have tabled on advocacy are in response not only to what was said in the other place and in the detailed discussions that we had in Committee, but to the many representations that we received from organisations that have an interest in people with mental health problems having access to advocacy.
Government new clause 3 and Government amendment No. 66 provide for advocates to be available to patients detained in hospital for assessment or treatment, to community patients and to patients subject to guardianship. In the other place and in
Committee, the issue was raised of specialist advocacy for black and minority ethnic patients, child patients and patients with learning disabilities. My hon. Friend the Member for Hackney, South and Shoreditch (Meg Hillier) spoke in Committee of the great benefit of specialist advocacy for patients for whom English is not their first language. The need for specialist advocacy is the reason that we have included a regulation-making power that will allow us to make different provisions for cases when it comes to the training requirements for advocates.
As was pointed out in Committee, patients must know that they have a right to advocacy. We have provided for them to be told orally and in writing. In addition—I know this will interest the hon. Member for Tiverton and Honiton (Angela Browning)—Government amendments Nos. 52 and 61 amend the Mental Capacity Act 2005 and give the person deprived of liberty or their representative the statutory right of access to an independent mental capacity advocate to explain to them the authorisation for the deprivation of liberty and to provide support with a review or with an application to the Court of Protection. Again, these Government amendments, which reflect representations made to us, also ensure that both the person and their representative are told about the IMCA service.
Mr. David Kidney (Stafford) (Lab): My right hon. Friend mentions the existence of independent mental capacity advocates under the 2005 Act; now we are to have independent mental health advocates. Can she assure the House that they will effectively be the same bodies of advocates, with common training and arrangements?
Ms Winterton: My hon. Friend is right to raise that important issue. We believe that there is scope for advocates, if they wish, to receive training in both areas. Naturally, some people will perhaps wish to specialise. He is probably aware that the pilot training for IMCAs is already under way, but there would not necessarily be any problem with people being able to specialise in both areas.
Mr. Edward Garnier (Harborough) (Con): I apologise for coming late to the subject. I was not a member of the Public Bill Committee, so this matter may have been discussed already, but will the advocates be funded from the Minister’s budget or from the Ministry of Justice’s budget, or will they be paid for by the people for whom they will provide representation? It seems a little unclear.
Ms Winterton: I can assure the hon. and learned Gentleman that they certainly will not be paid for merely by the people who need to use them. They will be paid for by the supervisory body—whether that is the local authority or health authority will depend on the IMCAs and, in a sense, those for whom they are to be used. In the case of mental health advocates and mental capacity advocates, individuals will not be expected to pay for them.
Mrs. Madeleine Moon (Bridgend) (Lab):
I have today received an e-mail from Mental Health Matters,
a charity in Bridgend that provides a community advocacy service. One of the things that it welcomed was this provision and this change on the part of the Government. In particular, it has written to say that it is an important change, which it welcomes, but that it is having difficulty in getting the local trust and the local authority to fund its community advocacy service. Does my right hon. Friend agree that it is important that the voluntary sector is approached in providing such services, as it gives confidence to many users of mental health services that advocacy is independent and works in their best interests?
Ms Winterton: My hon. Friend is right. During debates on the Mental Capacity Bill, we were able to give assurances that we saw an important role for the voluntary sector in such instances because that sector often has such expertise. One thing that we hoped would flow from our taking statutory powers in this sense would be the ability to ensure that a number of voluntary organisations would have access to some of those streams of funding, particularly because such organisations are often seen as independent and as having quite a lot of expertise already. There is no point in reinventing the wheel in some of these cases, but we need to ensure that the organisations have proper training. That is why, through some of the IMCA pilot sites, we have been ensuring that that takes place.
Angela Browning (Tiverton and Honiton) (Con): Will there be a statutory right for the patient to see the independent advocate in private?
Ms Winterton: We would like to ensure that the advocacy services are delivered in the most appropriate way. If there is a need for privacy to form a part of the service, that would be expected to be the case. I take on board what the hon. Lady says. However, we would have to be careful not to give the impression that every interview had to be held in private in case that was not appropriate for an individual, for example if it caused them distress. It is right to say that we should think about ensuring that privacy is provided wherever possible. Perhaps we could take the subject away and consider it in respect of such issues as the code of practice in both instances, as well as the importance of training in that area.
Meg Hillier (Hackney, South and Shoreditch) (Lab/Co-op): It seems to me implicit in new clause 3 that an advocate should be able to speak with the patient, and should perhaps therefore be able to speak another language. Will my right hon. Friend explain her views on bilingual advocacy? It is not the same as having advocates with translations. I appreciate that it would be difficult to make an open-ended commitment to ensuring provision in every language spoken by people in my constituency, but for an advocate truly to understand the case—and this is stressed by Derman, a Turkish and Kurdish advocacy service in my constituency—they need to understand the cultural implications of someone’s background.
Ms Winterton:
That is exactly why, as I have said, we have included in the power relating to regulations the
ability to consider the issue of specialist advocacy; that will cover exactly those points.
Hywel Williams (Caernarfon) (PC): Further to what the Minister has said, would advocates in Wales be treated as working for a public body, as defined by the Welsh Language Act 1993?
Ms Winterton: That is something that the hon. Gentleman will need to take up with the National Assembly for Wales. Obviously, some of those matters will be devolved. The Bill enables powers to be taken, but some of the implementation, particularly with regard to specialist advocacy, may well be covered by the Assembly.
Section 40 of the Mental Capacity Act 2005 provides that an IMCA is not required to be appointed in certain specified situations. Government new clause 5 and Government amendments Nos. 62 to 64 and 68 would limit the exceptions under section 40. Where someone has been appointed for matters related to property and affairs, the appointment will no longer preclude an IMCA from being instructed for health and social care matters.
I want now to turn to the amendments tabled by the hon. Member for Romsey (Sandra Gidley), which would make changes to the Government new clause requiring advocates to be made available to patients who had not yet been detained for the purposes of assessment or treatment, and for child in-patients who were not subject to detention. I completely understand her concerns, but we need to target resources at the most vulnerable. We do not agree that it is necessarily either appropriate or workable to provide advocates to people who have not yet become subject to an application for detention, or who are not being treated under the Mental Health Act 1983, except in the specific and limited circumstances that we have set out. We must prioritise, and we believe that we have identified the priority group.
There are also links between some of the nearest relative provisions and our intentions in introducing advocacy; I know that my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones) sees the nearest relative as being, in a way, the patient’s representative. The aim of new clause 17 and amendments Nos. 104 and 105, tabled by my hon. Friend, is to provide patients with the opportunity to have their carer appointed as their nearest relative, and to extend the grounds on which they can apply to displace a nearest relative.
That is an issue about which there were lengthy debates in the other place, particularly about whether a patient should be able to choose their nearest relative. Those debates continued in Committee. I considered the matter extremely carefully, because I can understand the intuitive sense that it is the right approach.
Having looked at it, however, I came to believe that it would be inappropriate to make the kind of changes that my hon. Friend the Member for Birmingham, Selly Oak is suggesting—so that someone could choose a nearest relative in the same way as they would choose a direct representative or a next of a kin. We need to start from the position that the nearest relative has very
particular powers under the Bill, some of which are quite specific, in respect of preventing detention and applying for discharge.
| Next Section | Index | Home Page |