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Public Bill Committee Debates

Draft Mental Health Act 2007 (Consequential Amendments) Order 2008

The Committee consisted of the following Members:

Chairman: Mr. Peter Atkinson
Browne, Des (Kilmarnock and Loudoun) (Lab)
Cooper, Rosie (West Lancashire) (Lab)
Cruddas, Jon (Dagenham) (Lab)
Gidley, Sandra (Romsey) (LD)
Gummer, Mr. John (Suffolk, Coastal) (Con)
Hamilton, Mr. Fabian (Leeds, North-East) (Lab)
Hope, Phil (Minister of State, Department of Health)
Howells, Dr. Kim (Pontypridd) (Lab)
Jenkin, Mr. Bernard (North Essex) (Con)
Johnson, Ms Diana R. (Kingston upon Hull, North) (Lab)
Milburn, Mr. Alan (Darlington) (Lab)
Milton, Anne (Guildford) (Con)
Pugh, Dr. John (Southport) (LD)
Syms, Mr. Robert (Poole) (Con)
Thornberry, Emily (Islington, South and Finsbury) (Lab)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Rhiannon Hollis, Committee Clerk
† attended the Committee

Second Delegated Legislation Committee

Wednesday 15 October 2008

[Mr. Peter Atkinson in the Chair]

Draft Mental Health Act 2007 (Consequential Amendments) Order 2008
2.31 pm
The Minister of State, Department of Health (Phil Hope): I beg to move,
That the Committee has considered the draft Mental Health Act 2007 (Consequential Amendments) Order 2008.
It is a pleasure to make my first address in my new role as Minister of State with responsibility for care services and mental health under your astute chairmanship, Mr. Atkinson. The Committee has a galaxy of talent, and I am delighted that we have this opportunity to enact these measures.
The order is intrinsically straightforward. It makes a number of amendments to legislation, which must change following implementation of the changes that the Mental Health Act 2007 makes to the Mental Health Act 1983. The Committee will recall that one of the main changes made by the 2007 Act was to introduce a new and simplified definition of mental disorder involving removal of the unnecessary and sometimes unhelpful distinction between different categories of mental disorder. In future, the powers in the Act will apply to all mental disorders regardless of the legal label attached to them.
The changes give rise to the amendments in articles 4, 5, 6, 8 and 10 of the order. In three instances, the order essentially substitutes the simpler term “mental disorder” for references to one or more of the four categories in the 1983 Act. The other two articles refer to “mental impairment”, a term that no longer features in the 1983 Act.
Another important difference is the increase in the number of professions from which people may be drawn to perform the role of approved social worker and responsible medical officer—ASW and RMO. The former will now be approved mental health professionals—AMHPs—and will be drawn from nurses, occupational therapists and clinical psychologists, as well as social workers. The role of the RMO—broadly speaking, the doctor in charge of a patient’s case—will be renamed “responsible clinician” and will be open to approved nurses, occupational therapists, clinical psychologists and social workers, as well as doctors. Articles 3 and 20 are required as a consequence of those changes. In both cases “approved mental health professional” will be used in place of “approved social worker”.
Removing the rigid demarcation of professional roles, and introducing a new approach will ensure that practitioners with the right skills, expertise and training may carry out important functions not currently open to them. That reflects modern NHS practice, which has moved towards a more competency-based approach to roles and responsibilities, and will help to deliver better care for patients.
Articles 17(a), 18(a) and 19(a) flow from the introduction of SCT. Articles 17(b), 18(b) and 19(b), together with articles 11 to 14, reflect the abolition of aftercare under supervision. Those articles take effect on the later date of 4 May 2009, because the provisions that they abolish remain in force until the end of the transitional period for people currently on aftercare under supervision. I note in passing that that period was extended from three months to six in response to comments from key stakeholders on the consultation version of the secondary legislation.
Article 7 provides that the Mental Health Act Commission takes on an additional function in respect of patients on SCT. If a patient on SCT requires treatment in the community, the clinician responsible should ensure that that is received. If the treatment is still required after the first month, the clinician responsible must ensure that a part 4A certificate—a certificate under part 4A of the 1983 Act—signed by a second opinion appointed doctor is obtained. The SOAD service is provided by MHAC and therefore provides an additional important and independent safeguard for patients.
Article 9 revokes the Mental Health (Patients in the Community) (Transfers from Scotland) Regulations 1996, which also relate to aftercare under supervision. As those became redundant when the Scottish Parliament passed the Mental Health (Care and Treatment) (Scotland) Act 2003, they need not wait until next year to be repealed.
Article 15 is simply a tidying-up measure to revoke an old order that amended the 1983 Act in 2001—the Mental Health Act 1983 (Remedial) Order 2001—to put right an incompatibility with the European convention on human rights in respect of the powers of the Mental Health Review Tribunal. The revocation does not change the 1983 Act itself.
Article 16 reflects a change in the title of the main mental health regulations. We have taken the opportunity afforded by the new primary legislation to update and improve the current secondary legislation. As a result, the current Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983 will be replaced by the new Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008. That change needs to be reflected in the Private and Voluntary Health Care (England) Regulations 2001.
The other main changes that the 2007 Act brings in on 3 November will change the rules about electro-convulsive therapy so that, except in emergencies, detained patients with the capacity to consent to ECT cannot be given it without their agreement. In addition, patients will be allowed to apply to the county court for their nearest relative to be changed. The lack of any route whereby patients could change their nearest relative had been found to be incompatible with the ECHR. Neither of those changes gives rise to any need for consequential amendments.
I hope that, on the basis of that information, the Committee will approve the order. I look forward to hearing the debate.
2.39 pm
Anne Milton (Guildford) (Con): It is a pleasure to serve under your chairmanship, Mr. Atkinson. I also congratulate the Minister, who is new in his role; it is a pleasure to face him today. It is wonderful that such a distinguished Committee is considering the order, but I will not be tempted to take up any more of its time than is necessary, because generally speaking there is nothing terribly controversial in the order.
I should like to flag up a couple of issues. Article 7 refers to the Mental Health Act Commission. I assume that the powers of MHAC will be passed to the Care Quality Commission when MHAC goes. I hope that the Minister will forgive me for making what may be a gratuitous comment about the MHAC, but those who represent people with mental health problems—and, indeed, the users of mental health services—are still concerned about what will happen to the commission’s work once the commission is combined with the other two organisations to form the CQC.
The other point that I wish to flag up is this. It is obviously sensible and progressive to care for and treat people within the community whenever possible. Indeed, some good examples have demonstrated that the move back into the community can itself significantly improve mental illness. However, there is always a balance to be struck. I hope that the Minister will remain open-minded, and consider cases in which persons with a mental illness can be a danger to themselves as well as those cases that cause concern in the community.
The rules on ECT are important. The treatment remains controversial, but despite the bad press that it has received for the past 20 or 30 years it is still an important form of therapy. It can still produce effective results, although we are now far clearer about the circumstances in which it should be administered and in which it can be effective.
The only other thing that I wish to raise with the Minister, particularly as he is new to his post, is the matter that he mentioned last—the treatment of children. Some of the figures are shocking. The treatment of children in adult facilities is clearly undesirable and unsuitable, and in many cases detrimental to their mental health. Under a recent freedom of information request, details gained from 52 of the 72 mental health trusts demonstrated that 26 children under the age of 16 were treated in adult wards in 2007-08; and those wards also accommodated 390 young people aged 16 and 17.
In November 2006, the hon. Member for Bury, South (Mr. Lewis), then a Health Minister, pledged that the practice of looking after children in adult wards would cease, citing November 2008 as a target. I urge the Minister to do everything in his power in that regard. As I said, not only is it undesirable for children; it is detrimental to their health.
All that remains is for me to welcome the Minister again to his new post. I hope that we have a constructive cross-party dialogue in the months ahead.
2.42 pm
Dr. John Pugh (Southport) (LD): I am delighted and astonished to be here today; I did not discover until 1.55 pm that I was due to be debating this statutory instrument. My hon. Friend the Member for Leeds, North-West (Greg Mulholland) had to withdraw because of a migraine, and my hon. Friend the Member for Romsey is currently engaged in an Adjournment debate.
None the less, I have what I believe to be a unique advantage over other members of the Committee as I was a member of the Standing Committee that considered the Mental Health Act 2007. I now regard that legislation as both enlightened and difficult, but at the time it was thought to be extraordinarily contentious; the other House was most vocal, as were the non-governmental organisations. The end of civil liberties was predicted, and Stalinist-like procedures were supposed to be on the verge of being implemented throughout the mental health field. Indeed, the matters dealt with in the order were contentious at that time, such as community orders, the use of non-psychiatrists, the issue of ECT, which was mentioned earlier, and the redefinition of mental disorder itself.
When the legislation reached the House of Commons, things calmed down appreciably. That is a tribute to the right hon. Member for Doncaster, Central (Ms Winterton), then the Minister of State at the Department of Health, whose charm produced a number of sensible and rational amendments, including amendments on the treatment of children, a matter that was alluded to by the hon. Member for Guildford.
Much depends on how legislation is implemented and acted upon. As the legislation unfolded, I had conversations about it with the director of psychiatric health—that is probably not his correct title—Professor Louis Appleby. He put it to me that psychiatrists were worried about what other nameless psychiatrists—psychiatrists not like them—were likely to do with the legislation. To that extent, we need to consider carefully how the detail of that legislation pans out.
I believe that there will be a further statutory instrument specifically on the code of conduct. During the passage of the legislation, we were told that many of the difficulties that had been raised would be resolved by a code of conduct. Opposition Members, as per usual, sceptically said, “Ah, well, that could change everything. There may be all sorts of things in the code of conduct that do not resolve the issues but instead make them more complicated.”
Well, the code of conduct is out. I have spoken to a number of NGOs and asked them to notify me of their concerns about it, but so far I have been confronted with a deafening silence. So we are in calmer waters and I have no real objection to the order as it stands.
2.46 pm
Phil Hope: I thank hon. Members for their kind words. It is a pleasure to be in this role and I hope to be taking forward our proposals to promote the needs of people with mental health problems very energetically over the next year or so. I shall answer some of the specific questions that were asked.
I was asked about the handover of powers to the CQC. I assure the hon. Member for Guildford that the Mental Health Act Commission work will be an important part of the CQC’s work, and we gave assurances to that effect during the passage of the Health and Social Care Act 2008. Nevertheless, the point that she raised is important and we need to ensure that it happens in reality as well as in debate in the House, so I will take that into account.
The hon. Lady made a good general point about getting the balance right in care in the community. Generally, our approach, which has cross-party support, is to provide more care in the community, and the new SCT proposal provides the reassurances that she seeks that the balance is right and that the safeguards are there. The same is the case for the concerns about ECT treatment. As I said in my opening remarks, with the exception of some emergencies, people must be able to give their consent. I think that was the safeguard that the hon. Lady was describing.
A substantive point was raised about children. I want to re-emphasise the point that I made earlier: we do think it is important for children and young people to be treated in an age-appropriate environment. That is why we have committed to commence section 31(3) of the Mental Health Act 2007 by April 2010. That will place a duty on hospital managers to ensure that a patient’s environment in hospital is suitable, having regard to their age. The outcome will be the combination of a programme of awareness-raising, self-assessment and support for mental health trusts, delivered by the National Institute of Mental Health in England.
On the specifics of children under 16, in November 2006 the Government made a commitment that within two years no child under the age of 16 would be treated on an adult psychiatric ward. I remind the House that capital funding of £31 million has been provided in 2007-08 for some 17 projects specifically designed to help eliminate the inappropriate use of adult psychiatric wards for children and young people. This is something that we must bear down on hard and ensure—
Dr. Pugh: Clearly it is partly a resource issue. Most people believe very strongly that children should not be kept with adults when they are suffering with grave mental disorders, but in some cases the alternative is to have no secure provision for children. One assumes that capital investment is going on in the places where that is already occurring, where in a sense lack of resource is driving people to give children a less than adequate environment.
Phil Hope: Yes; the hon Gentleman is right. That is what we need to ensure. We need to ensure that we bear down on this practice and deliver on the commitment that we made, because during the passage of the Bill and in this Committee hon. Members have been and are in full agreement about the changes that we need to make. It is part of my job to ensure that we monitor progress, and monitoring is happening and resources are being put in place to ensure that we achieve the outcome that I think we all share.
The hon. Member for Southport raised some further points. I think he was right to say that the 2007 Act was controversial at the time of its passage. I think he is right to say that things have moved on. If he will permit me, I will pass on the very kind remarks that he made about my right hon. Friend the Member for Doncaster, Central. I think she did a fantastic job of taking the Bill through the House and dealing with all the concerns that people raised.
The code of practice is now being used for training purposes. My understanding is that the revised code was subject to the negative resolution procedure and was laid in Parliament on 12 May 2008. The 40-day period was up on 1 July, the code was published on 28 August and now it is out in the field. I do not know whether that is new information to the hon. Member for Southport, but perhaps he needs to know that.
Lastly, the hon. Gentleman raised the issue of direct payments. We are using the powers in the Health and Social Care Act 2001, as amended by the Health and Social Care Act 2008, to carry out a consultation on whether direct payments should be extended to patients with a mental disorder who are in the community. That consultation is current. It was launched on 19 August and will close on 11 November. We are keen to hear the views of the profession and of representatives of political parties.
Dr. Pugh: I do not dispute that that is a good idea. I was asking whether it was correct to define that as a consequential amendment to the Mental Health Act 2007, or whether it was simply a good idea that was bolted on to the order.
Phil Hope: The hon. Gentleman served on the Committee that considered the 2007 Act. He will know that these provisions are consequential; these regulations do apply. We are now in consultation about how, not whether to—that is the decision that has been made, and these regulations pursue it. The question is in what circumstances it is appropriate, and how we can do it in a way that meets the patient’s needs, to ensure that people who live independent, quality lives are at no risk to themselves or the wider community. That is the purpose of the changes that we are making. It is part of a wider strategy, through Putting People First, of encouraging individuals to take more control over their own lives and have more choice to develop and improve their social care and support. I hope that, in the particular circumstances of people with mental disorders, where it is applicable that can apply no less to them than to others. That is what the consultation is set to prove.
Question put and agreed to.
That the Committee has considered the draft Mental Health Act 2007 (Consequential Amendments) Order 2008.
Committee rose at eight minutes to Three o’clock.

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