Mr.
Touhig: I do take the hon. Gentleman’s point, which
I know he feels passionately about, but if he is saying that he has no
legitimacy in this place, then what is he doing
here?
Adam
Price: I am saying that this place has no legitimacy in
those areas that have already been transferred. The subject headings
were clear in the referendum. It was clear what the people of Wales
were voting on. [Interruption.] The hon. Member
for Bridgend shakes her head. Perhaps she would like to share her
thoughts with the Committee—but she does not want to. However,
it was clear that health and mental health were being devolved to the
National Assembly for Wales. We have a tidying-up exercise here, which
is no surprise, because we have a spider’s web, an arcane
devolution settlement that unfortunately necessitates such tidying-up
exercises.
It should not be that way. We should have a clear constitutional
settlement, which is what I hope we will get, when in due course we
have the referendum in part 4 of the Government of Wales Act
2006—then it will be up to the right hon. Member for Islwyn to
decide which side he stands
on. On
the particular matters before us, as other Committee members have
asked, perhaps the Minister could explain why the issues have come to
light at this stage. Was it, for example, raised within the Welsh
Assembly Government in the first instance, or within the Department of
Health or the Wales Office? As the right hon. Member for Islwyn pointed
out, the instrument is the first transfer of functions order since the
separation within the Assembly between the Executive and the
legislature. Can we expect a series of ministerial transfer of
functions orders? Is there a process now whereby the Wales Office in
conjunction with the Welsh Assembly Government is trying to identify
any remaining constitutional
anomalies? In
a spirit of co-operation, I ask the Minister about another issue. I
understand the distinction in terms of the machinery of government
here, whereby those areas that have restrictions applied to
them—the part 3 distinction—remain with the Secretary of
State for Justice. It strikes me that mental health is an area where
health and the criminal justice system collide because some functions
are shared. Was there no discussion with Welsh Assembly Government
Ministers about there being a role for the Welsh Assembly Government?
In the One Wales agreement, there is a commitment by the Labour party
and Plaid Cymru to look at transferring criminal justice powers, albeit
in a limited form to begin with. It appears to me that it would be
worth pursuing that in the area of mental health. I am interested to
know whether that was raised in initial discussions on the order. On
the general rule, we welcome any further powers that can be transferred
to the Welsh Assembly
Government. 10.51
am
Huw
Irranca-Davies: I thank hon. Members for the considered
and thoughtful way in which they have raised their points. They have
genuinely probed the purposes behind the
order. The
hon. Member for Clwyd, West focused particularly on the issue of
goodwill in the second part of the order and asked why that function
should be transferred to Welsh Ministers. The Medical Practices
Committee, which used to be responsible for granting certificates to
ensure that no goodwill was sold, was abolished on 31 March 2003 by the
Health and Social Care Act
2001. It
was agreed at an official level that the function of granting such
certificates should not have been reserved to the Secretary of State
for Health in respect of Wales. In effect, this item has been hanging
around for a bit waiting to be tidied up. People often use the idea of
tidying up when discussing legislation and I usually try to steer away
from it. However, this issue has been hanging around and it has been
identified as a matter that can be appropriately sorted out by the
order. The Welsh Ministers who are responsible for health matters in
Wales should also be responsible for dealing with the operation of this
function of goodwill. As I said, we have tried to track some of the
history of it.
The hon.
Gentleman also mentioned the financial implications of the transfer.
Our assessment is that there will be no major financial implications
for the proposed transfer of functions under section 259 and schedule
21. The very small administrative costs in dealing with these few
cases, which I will come to in a moment, will be dealt with from
existing resources. There has only ever been one case in Wales of the
sale of goodwill of medical practices and that was in
2002. I
guess that that invites the question of why we are doing the transfer.
It is because this process should be exercised in the appropriate place
and that is in the Welsh Assembly. The cost implications will be
minuscule if we go on past records. Hopefully, I have dealt with the
queries on the order of magnitude and the cost. The cost of producing a
certificate on the sale of goodwill is estimated at about £300.
Those costs will be met by the Welsh Assembly Government. I thank the
hon. Gentleman for raising those issues and hopefully he can see from
the answers that there is not a huge
implication.
Mr.
Jones: I raised the issue of why we should not leave the
procedure with the appeal authority unit. That unit has a reservoir of
expertise and could quite happily continue to deal with the very small
number of applications that are made for Wales as agent for the Welsh
Ministers rather than for the Secretary of State for Health. It seems
extraordinary, given the infinitesimally small number of applications
that are made, that it is thought appropriate to transfer the functions
to Welsh Ministers when the unit could simply carry on dealing with
them as agent for those
Ministers.
Huw
Irranca-Davies: That was another helpful intervention. The
issue is where the certificate originates. At the moment, the
certificate originates from the Secretary of State in England. That
anomaly is what we are trying to sort out today, so that the
certificate will be issued on the advice of Welsh Assembly Government
Ministers rather than the Secretary of State in England. I hope that
that
helps.
Mr.
Jones: I understand fully that the certificate will be
issued by Welsh Ministers. My point is: why not simply leave the
procedural aspects with the unit? It has the expertise and the staff,
and it could probably deal with the situation far more simply than if
it were sent to Cardiff for Welsh Ministers to deal
with.
Huw
Irranca-Davies: My apologies. I misunderstood the hon.
Gentleman slightly. I see his point. Perhaps there is an option for
that to remain as it is, but our discussions with Welsh Assembly
Government Ministers at an official level about how many applications
there might be, the resource implications and the pool of knowledge
necessary leave us in no doubt that Welsh Assembly Government Ministers
and their officials are fully equipped to deal with such cases.
Although the situation could be left as it is, there is a devolution
logic to ensuring that it is delivered from the appropriate place. That
place is the Welsh Assembly Government. However, I accept the spirit in
which the hon. Gentleman probed the
issues. The
hon. Member for Ceredigion asked why the measures were not in the
Mental Health Act 2007. It has to do with the policy intent behind the
Act. In retrospect, one can look back and ask whether they
could have been appended somewhere, but the policy intent behind the Act
at the time would not easily have encompassed them. When looking
backwards, one can say, “Perhaps we could have jigged a way to
do this,” but it is not the end of the world to bring the
measures forward today instead. I am certainly glad that the matter is
being debated so much as a result of our considering them
separately. The
hon. Member for Ceredigion referred to the cost of repatriation, the
numbers involved and the cross-border issues. The costs of repatriation
will be met by the hospital manager in Wales. That is currently the
case anyway, so there will not be a change in respect of the costs of
repatriation. Often, arrangements are reached with the hospital to
which the patient is being admitted, so some negotiation takes place as
well. As for the numbers, we estimate that in the past five years,
there have been about 20 in England and Wales. I do not have the
accurate figure, but very few of that 20 were in Wales. Once again, we
are talking about relatively few instances. On the cross-border issue,
there are none in this particular case. The application is made under
section 86 based on the hospital’s location, so it is clear
where the responsibility
falls. To
return to the question why the function was not transferred originally,
the aim behind the Mental Health Act 2007 was to help ensure—I
know that I am reminding the hon. Gentleman of what he already
knows—that people with serious mental disorders can be required
when necessary to receive the treatment that they need to protect them
and the public from harm. It was a big Bill with a lot of controversial
aspects, and the focus on the time was on that and the other policy
intents: bringing mental health legislation in line with modern service
provision, strengthening patient safeguards and tackling human rights
compatibility. Given all that, I am not too distressed that we have
introduced the order today and are giving it an appropriate amount of
discussion on its own, because it involves a transfer of
functions. My
right hon. Friend the Member for Islwyn raised some important points.
There is a critical issue about all aspects of legislation involving
devolution or transfer of powers within existing executive areas, no
matter what route they come through. The critical question is why. What
is it all about? What purpose does it have? How does it benefit? There
are benefits: not only will the order provide devolutionary and
bureaucratic clarity, but it will provide clarity for hospital managers
in Wales, so that when they seek to effect transfers under section 86
they will know exactly where responsibility lies.
Curiously,
there is an aspect of improvement for the patient as well. My right
hon. Friend will bear in mind that transfer to another country is
always effected with the patient’s best interests in mind. It is
marginal, but there should be greater efficiency when a transfer is
deemed appropriate. Decisions will not take a circuitous route from the
Welsh Assembly Government to the Secretary of State for Health and
back, so there is a much more direct line of accountability and
responsibility that will marginally help to speed up the process in the
best interest of the patient. There will be a
benefit. The
mental health review tribunal, to which I referred, has the fundamental
role of giving advice on the issue, so decisions are not made solely at
the behest of the Secretary of State for Health, nor will they be made
that way by Welsh Assembly Government Ministers—they will make a
decision based on the advice given to them by the independent tribunal.
The Secretary of Health currently takes the tribunal’s advice
into account when making a decision in the patient’s best
interests, which is what will happen with the Welsh Assembly
Government. My right hon.
Friend made an interesting point on how the TFO would work. It might
help if I describe exactly what will happen when a request or
authorisation is made and compare that to what happens now. Currently,
hospital managers inform the Secretary for Health that a patient needs
to be removed from a hospital in Wales under section 86. Under the
order, the only difference will be that such a request will be made
directly to the Welsh Assembly Government Minister rather than the
Secretary for Health.
The
patient’s case will then be referred to the independent mental
health review tribunal, which is an England and Wales body. That is
currently done either by hospital managers or the Secretary of State.
In future, the Welsh Assembly Government Minister will deal with Welsh
hospital managers. The tribunal will consider the case in the normal
way. It holds hearings, takes evidence from mental health professionals
and, first, decides whether the patient should be discharged from
compulsion—if not, they decide whether removal is in the
patient’s best interests. The tribunal currently passes its
advice and recommendations to the Department of Health and the
Secretary of State; under the transfer, the advice will go to the Welsh
Assembly Government Minister. If removal is in the patient’s
best interest, the Secretary of State or, subject to the order, the
Welsh Assembly Government Minister, will issue a direction to effect
the removal. If that is not in the best interests of the patient, they
will remain in hospital in Wales subject to
compulsion. The
question why it would not be in the best interests of the patient
arises. The power is used on only a very few occasions, which I alluded
to. Each case is considered individually and a decision is reached on
the basis of the independent decision of the tribunal. There are a
number of reasons why such a removal might not be in a patient’s
best interests; for example, the facilities for their care and
treatment could be totally inadequate for their needs. In such
circumstances, they would remain in hospital in Wales and continue to
receive treatment under compulsion.
On the vital
point made by my right hon. Friend on the role of the Secretary of
State for Justice, the measure does not affect his power one jot. The
powers under section 86 that are retained by the Secretary of State are
entirely unaffected by the order and excluded from the transfer. In
fact, partly in answer to the hon. Member for Carmarthen, East and
Dinefwr, Welsh Assembly Government Ministers have made no request to
open a dialogue on that. The measure is focused on sorting out a legacy
to ensure a fit with the Executive powers—there has been no
request to go further and extend such powers regarding criminal justice
or other matters—but who knows whether inquiries will be made in
future? They do not form part of the measure. Hopefully, the assurance
that I gave to my right hon. Friend makes it clear that the measure
does not impinge on the Secretary of State for
Justice. I
turn briefly to the issues raised by the hon. Member for Carmarthen,
East and Dinefwr, who asked whether he could expect a series of such
orders. Most Executive functions were transferred by TFOs in 1999. A
few additional functions—I do not have the exact
numbers—have been identified, and there might be another short
TFO in the next Session. I am talking about making another appearance
before this Committee to look at similar tidying-up issues and making
demarcations of where responsibilities should lie, but I cannot say
that there will be a series of orders because most such things were
dealt with in 1999.
He asked
whether the transfer of patients was considered, and I can tell him
that it was not, as I have said. The discussions were very much limited
to the order.
I thank hon.
and right hon. Members for their contributions. Today has been useful
because it has given an appropriate level of time and discussion to a
transfer of functions. Members of the Committee have been able to
discharge their scrutiny of the transfer of powers to Wales duties
appropriately, the probing has been in a very good spirit, and it has
been well informed. I thank you, Mr. Cummings, for your
chairmanship, and the Committee for taking part. I commend the order to
the Committee.
Question
put and agreed
to. Resolved, That
the Committee has considered the draft Welsh Ministers (Transfer of
Functions) Order 2008.
Committee
rose at six minutes past eleven
o’clock.
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