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 officerASW and RMO. The former will now
be approved mental health professionalsAMHPsand will be
drawn from nurses, occupational therapists and clinical psychologists,
as well as social workers. The role of the RMObroadly speaking,
the doctor in charge of a patients casewill 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.
Supervised
community treatment will be a new form of compulsory measure under
which detained patients may be discharged subject to the possibility of
recall to
hospital if necessary. SCT patients will be expected to keep to
conditions designed to ensure that they receive the required treatment,
and for their own and other peoples protection. With limited
exceptions, it will not be possible to treat them forcibly against
their will without recalling them to
hospital.
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
certificatea certificate under part 4A of the 1983
Actsigned 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 2001the Mental Health Act 1983 (Remedial) Order
2001to 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.
Hon.
Members will be well aware that we have two further measures, which we
shall introduce at later dates. We are on course to introduce in April
next year
the statutory services of independent mental health advocates for most
patients subject to compulsory measures under the 1983 Act. In
addition, our plans are still on track to implement the requirement for
hospitals to ensure that patients aged under 18 admitted for mental
health treatment are accommodated in an age-appropriate environment,
subject to their needs, to avoid the inappropriate placement of
children on adult wards. As we have consistently been saying, that is
scheduled for April 2010. We do not expect either of those forthcoming
changes to generate further 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
problemsand, indeed, the users of mental health
servicesare still concerned about what will happen to the
commissions 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 lastthe
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
healththat is probably not his correct titleProfessor
Louis Appleby. He put it to me that psychiatrists were worried about
what other nameless psychiatristspsychiatrists not like
themwere 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.
I have one
small question to ask, which relates to articles 17, 18 and 19 on
direct payments. I ask it from pure ignorance. I cannot recall anything
in the original
primary legislation that referred to or had consequences for the direct
payment regime, and I should be grateful for clarification of how that
has entered the frame. That aside, I am happy to be here and happy to
support 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 CQCs 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 patients 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 tothat 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 patients 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.
Resolved,
That
the Committee has considered the draft Mental Health Act 2007
(Consequential Amendments) Order
2008.
Committee
rose at eight minutes to Three
oclock.