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The Government of Wales Act 2006 introduced a procedure whereby the National Assembly for Wales can bring forward proposals which would extend the Assembly's lawmaking powers by Legislative Competence Orders in Council. These proposals for draft Orders may be introduced by the Welsh Assembly, by committees of the National Assembly, or by individual Assembly Members (chosen by ballot). The proposed Legislative Competence (Health and Health Services and Social Welfare) Order 2009 is the first Order referred to this Committee to be introduced by a non-Government Assembly Member. We welcome the high level of co-operation between Jonathan Morgan AM, the backbench Assembly member who sponsored the proposed LCO, the Minister for Health and Social Services and the Welsh Assembly Government, and the Wales Office which enabled this proposal to proceed to its current stage.
Current legislation on mental health is largely designed for people who may become subject to compulsion and liable to detention. It does not by and large deal with the provision of assessment, the treatment and advocacy services outside the legal framework of compulsion. The proposed Order would entitle people who appear to be suffering from mental disorder but do not yet have a firm diagnosis of mental disorder to obtain early assessment of their condition and need for services. We agree that a clear need for the proposed LCO has been identified and is consistent with the Government's commitment in One Wales to making mental health a key priority.
The Adult Mental Health National Service Framework has set a clear mental health strategy in Wales. It does not, however, provide a statutory duty to deliver these services. The proposed LCO would allow the National Assembly for Wales to make Measures for mental health to impose duties and provide earlier assessment, treatment and access to advocacy services. The UK Government's current view is that it does not wish to introduce legislative powers in this area. We conclude that the Legislative Competence Order in Council is the most appropriate legislative route available.
Concerns were raised regarding details of the drafting of the LCO and its Explanatory Memorandum. While the LCO makes it clear that the duty to provide assessment and treatment will be in relation to individuals not previously diagnosed as having mental health needs, the Explanatory Memorandum is unclear regarding the duty towards those who were previously or are currently diagnosed as having such needs. In addition, as currently drafted, the proposed Order would allow the National Assembly to disapply in Wales the right to an Independent Mental Health Advocate for those subject to compulsory powers under the 1983 Act. Because of our concerns about possible unintended consequences of the drafting, we recommend that the LCO and Explanatory Memorandum are amended.
The legislative competence conferred upon the National Assembly by the proposed LCO would allow Measures to be brought forward which place regulatory and financial burdens on the public sector. Whilst it is recognised that there will be an initial financial cost incurred by the NHS in providing quicker access to assessment, treatment and advocacy, it is argued that early intervention could reduce long-term costs.
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