1 Purpose of the draft Order
Purpose
18. The full background to the proposed Order is
set out in the Explanatory Memorandum accompanying the proposed
Order. The provision of assessment and clinical treatment in respect
of mental health is provided as part of the National Health Service
under the National Health Service (Wales) Act 2006. There are
two main legal duties of relevance to assessment and treatment.
They are:
(1) the duty imposed on a local authority to
assess the need for detention or guardianship under s. 13 of the
Mental Health Act 1983, which deals with the manner in which patients
may be compelled to receive assessment in hospital for their mental
disorders and to receive treatment of the same;
(2) the duty of a local authority to assess a
person's need for community care services under s. 47 of the National
Health Service and Community Care Act 1990.
These legal duties are supplemented by duties under
the Welsh Assembly Government's Adult Mental Health National Service
Framework.
19. The Mental Health Act 2007 amended the Mental
Health Act 1983 and provides for advocacy services to be provided
in certain circumstances in respect of patients subject to certain
provisions of the 1983 Act, known as Independent Mental Health
Advocates (IMHAs). The Mental Capacity Act 2005 also provides
for advocates in certain prescribed circumstances, known as Independent
Mental Capacity Advocates (IMCAs), who provide extra protection
to the most vulnerable people who lack capacity.
20. The Explanatory Memorandum states that the objective
of the proposed Order is to enable the Assembly to bring forward
Measures which:
… would allow duties to be placed on NHS
bodies and social service providers to assess a person's mental
health. The LCO would allow such duties to be placed in respect
of individuals not previously diagnosed with a mental disorder,
but who are presenting with the appearance of mental ill health.
Duties may be placed on NHS bodies and social service providers
in respect of the treatment of a person's assessed mental disorder.[15]
and:
… extend legislative competence as regards
the provision of social care services to the area of mental health.[16]
21. In oral evidence to the Committee, Jonathan Morgan
AM stated that there are:
… very clearly gaps in the provision of
three key areas and those three key areas [are] the assessment
of individuals, the treatment and care that could be offered to
them and also the provision of independent advocacy […] It
[is] felt that a Legislative Competence Order, subject to approval
by both the Assembly and Parliament, could provide greater clarity
and ultimately better services in Wales.[17]
Wayne David MP, Parliamentary Under-Secretary, Wales
Office, told the Committee that:
… the Legislative Competence Order will
allow the Welsh Assembly Government to introduce Measures to address
the assessment and treatment of mental disorders for individuals
who are not covered by the 1983 Act and provide comprehensive
and wide-ranging advocacy services.[18]
22. The Welsh Assembly Government at present has
executive functions which relate to the Mental Health Service
but no power to legislate regarding mental health. Welsh Ministers
have powers to issue directions and policy and practice guidelines:
- Under s. 12(3) of the National
Health Service (Wales) Act 2006, Welsh Ministers may give directions
to a Local Health Board about its exercise of any function, and
under s. 19(1) they may issue directions to NHS Trusts. Welsh
Ministers also have the power to issue directions under s. 7A
of the Local Authority Social Services Act 1970. Directions must
be complied with.
- Welsh Ministers may issue "policy guidance"
under s. 7(1) of the Local Authority Social Service Act 1970.
- Finally they may issue practice guidance, which
although it "lacks the status accorded by s. 7(1)" is
advice "to which regard must be had" by councils in
carrying out their statutory functions, and if they adopt a different
course to the advised in the guidance, they should have a good
reason for so doing.[19]
The proposed Order and existing
Welsh Assembly Government policy
THE IDENTIFIABLE NEED FOR THE PROPOSED
ORDER
23. The Explanatory Memorandum by Jonathan Morgan
AM, endorsed by the Welsh Assembly Government, lists six perceived
gaps in the current arrangements:
- The existing framework does
not provide for a comprehensive duty vis-à-vis
the provision of the
assessment of mental health and the treatment of mental disorder
outside of compulsion;
- The need for an improved focus on early intervention
and treatment through statutory duties as regards the provision
of assessment and treatment which is the preferred option of many
service users and their families;
- The extant duties on local authorities to provide
certain assessments do not translate into duties to provide services
arising out of the assessments;
- The duties for assessment by local authorities
are applicable only in respect of those who are mentally disordered,
and not those who appear to be exhibiting symptoms or manifestations
of such disorder. This can result in individuals having to reach
a certain level of ill health before becoming eligible for assessment;
- There is a patchwork of duties in respect of
specialist mental health assessment and treatment within secondary
services. In Wales such services are increasingly provided on
a multidisciplinary basis, which involves a range of professionals
and service. Those working within such services are keen to ensure,
in line with the Welsh Assembly Government's strategies and service
frameworks for mental health, that multidisciplinary working in
this way should be strengthening. This would allow for a more
seamless approach to service provision for the individual recipient,
and for those services to be focused on the needs of the individual
in line with effective care planning;
- The existing legislative framework does not provide
for a wide ranging and comprehensive advocacy service—the
role of the IMHA is limited to specific functions in respect of
qualifying patients in limited circumstances. There is a need
to ensure advocacy is available for people at a time when their
mental health and usual support mechanisms may be breaking down,
leaving them vulnerable when key decisions about treatments and
support may need to be made.[20]
24. In evidence to ourselves and the Assembly Committee,
witnesses highlighted the lack of suitable powers under the current
legislative provision that could be used to deliver a comprehensive
assessment, treatment and advocacy framework for Wales. Edwina
Hart AM, Minister for Health and Social Services, told the Assembly
Legislation Committee that:
There are many issues that the current legislation
is not addressing in some key areas. We have secondary legislation
powers under the Mental Health Act 1983, but these do not cover
assessment, treatment and advocacy or those who are not subject
to compulsion. There are various duties for the NHS and for local
government in terms of the provision of services that, individually,
go some way to secure assessments, but taken collectively, that
is not cohesive across Wales.[21]
25. In oral evidence to us, Jonathan Morgan AM commented:
There is a feeling that, whilst Parliament has
clearly legislated in the past for those people who become detained
under the 2007 Act, there is very little in terms of duties that
are placed on public bodies in Wales or anywhere else for that
matter which would allow for the assessment at an earlier stage,
perhaps in many circumstances preventing people from becoming
detained at the point at which that crisis kicks in.[22]
Similar arguments were also raised by Neil Buffin,
Senior Lawyer at the Welsh Assembly Government:
One of the things about the 1983 Act [...] is
that it lays down the framework under which people may become
subject to compulsion and liable to detention under that Act,
but the 1983 Act does not actually deal with the provision of
assessment, the provision of treatment or services. Turning then
to the NHS and Community Care Act, that does allow assessment
of needs but within the social services context rather than within
the health context. Further, it relates to adults rather than
children.[23]
26. Witnesses highlighted that the intention of the
proposed order was to 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. In their written evidence, the College
of Occupational Therapists noted that the LCO "offers the
opportunity for Wales to create a whole-system, modern approach
to mental health legislation. This should move away from the medical
domination of access to services to a more client led, multi-professional
approach."[24] They
expanded on this in oral evidence to the Committee:
We are looking at the development of early intervention,
we are looking at better development of community multidisciplinary
teams so that people are able to access the range of services
because if those continue to sit in secondary care you cannot
actually access them until you are admitted to hospital, whereas
if we were able to have more practitioners in occupational health
services, if we were able to keep people in work, in their own
role, in their own communities, then we could be delivering those
services before we get to the expensive end of the service and
start destroying people's lives.[25]
27. Current legislation on mental health is suitable
for people who may become subject to compulsion and liable to
detention. However the current legislative framework does not
deal with the provision of assessment, the provision of treatment
and advocacy services for those for whom the exercise of coercive
powers are inappropriate. There is wide support for an extension
of legislative competence to deal with this gap and we agree
that a clear need for the proposed Legislative Competence Order
has been identified.
THE "FIT" WITH EXISTING
WELSH ASSEMBLY GOVERNMENT POLICY
28. Part of our scrutiny of proposed Orders is to
ascertain the extent to which the Order "fits" with
existing Welsh Assembly Government policy. In this case, the proposed
Order clearly develops previously announced Welsh Assembly Government
policy.
29. The Welsh Assembly Government's Strategy for
mental health services for adults of working age in Wales was
published in 2001,[26]
setting out the Assembly Government's aspirations for a modern,
community-focused mental health service which is based on the
principles of equity, empowerment, effectiveness and efficiency.
As highlighted by the Explanatory Memorandum, the National Service
Framework (NSF) for Adult Mental Health Services was published
in 2002, setting the standards and outlining the key actions necessary
to drive up quality and reduce variations in health and social
care policy. A Revised NSF for Adult Mental Health services, Raising
the Standard[27],
was published in October 2005, following the 2005 Report of the
Wales Audit Office which found that mental health services were
not effectively organised to promote achievement of the NSF's
objectives.
30. Edwina Hart AM, Minister for Health and Social
Services in the Welsh Assembly Government, told the Assembly Legislation
Committee that she supported the broad principles of the proposed
Order, and confirmed that it is in line with the Government's
commitment in One Wales to making mental health a key priority.[28]
In evidence to us, Chris Stevens from the Legislative Policy Branch
of the Wales Office commented:
I think the UK Government would agree that it
is appropriate for this legislative competence to be devolved
in that it meets the criteria set out in Devolution Guidebook
16. This is an area of policy where the Assembly Government have
functions and they have a clear case for the power to be devolved
and we believe that the scope of the proposed competency is appropriate
and, therefore, for that reason, we are happy for this competence
to be devolved ...[29]
31. We conclude that the proposed Order clearly
develops and is consistent with previously announced Welsh Assembly
Government policy.
Use of the Legislative Competence
Order Procedure
NATIONAL SERVICE FRAMEWORK
32. National Service Frameworks (NSFs) are intended
to be a major vehicle for improving the quality of health services,
and recognising the entitlements of patients to a service which
is responsive to their needs and involves them in planning and
service delivery decisions.
33. Standard 2 of the Adult Mental Health National
Service Framework deals with service user and carer empowerment,
and aims "To encourage the full and genuine participation
of service users and carers in all aspects of mental health services,
including planning and commissioning." The following Key
Actions in the NSF are relevant to the proposed amendment to Field
9:
Key Action 5. By March 2006 local authorities and
Local Health Boards (LHBs) were to produce bilingual, locally
accessible, service directories which include arrangement for
access out of hours and also provision in the voluntary sector.
Key Action 13. Any individual with an identified
mental illness is to be able to contact local services on a 24-hour
basis in order to have their needs assessed and receive appropriate
advice, treatment, care and/or support.
Key Action 14. People with mental health problems
are to be made aware of the national mental health helpline CALL
and other available helplines.
Key Action 23. Out of hours access to services, including
CMHTs [Community Mental Health Teams], is to be made available
during public holidays, at weekends and during the evening.
Key Action 25. A range of specialist services is
to be available and accessible across Wales. These should include
eating disorder services, mother and baby units, low security
care, liaison psychiatry, neuropsychiatry and early intervention
services accessible to each Trust area.
By March 2007 LHBs/NHS Trusts/Health Commission Wales
(HCW) were to ensure timely access to specialist tertiary inpatient
care where necessary via an agreed referral route. Referral will
include ensuring that all opportunities to deliver care via specialist
community services or secondary care inpatient settings have been
explored and assessed as inappropriate.
34. The National Service Framework is non-statutory.
It aims to "set standards for services in Wales, drive up
quality and reduce unacceptable variations in health and social
services provision".[30]
The NSF sets out a number of Key Actions each with a time frame
and performance target, together with monitoring information and
identification of the organisations responsible for implementation.
The Standard and Key Actions form the basis for any future assessments
of mental health services carried out by regulatory and inspectoral
bodies. The NSF includes a commitment by the Welsh Assembly Government
to "ensuring that mental health remains a top health and
social care priority for Wales".
35. While witnesses commented that the National Service
Framework had set a "fantastic framework for mental services",[31]
Hafal and the College of Occupational Therapists agreed that it
lacked "teeth".[32]
Jonathan Morgan AM commented:
Although they are there to guide the NHS to provide
better services, there is no public duty that exists. There is
no legal duty on those bodies to provide either the assessment,
the level of treatment and care that that person may require or
ensure that that person gets access to the level of advocacy that
they may need [...] It is very clear that the national service
frameworks in themselves, although providing a strategic direction,
do not have the legislative oomph in the way that placing duties
through Assembly Measures on the back of this LCO could. I think
that is quite fundamental.[33]
Claire Fife of the Wales Assembly Government, agreed
that "the NSF is a strategic framework within which services
can be provided, but it remains a strategic framework—it
does not provide a statutory duty to deliver those services".[34]
36. Witnesses commented that the lack of "legislative
teeth"[35] led to
deficiencies in the monitoring of the NSF via the inspecting and
regulatory bodies. Alexandra McMillan, Public Affairs Manager,
Gofal Cymru, stated:
You can inspect and monitor as much as you like,
but if at the end of the day all that produces is a report saying
that something is not happening and there is no follow-up to that
then that is not very helpful.[36]
37. We also examined the possibility of providing
advocacy services outside the framework of the Mental Health Act
1983 or the Mental Capacity Act 2005. Key Action 6 of the NSF
require that:
A range of appropriate independent, trained and dedicated
advocacy services should be available and promoted across Wales.
Statutory advocacy is to be compliant with the requirement of
the proposed new Mental Health Act 2007 and accessible by 2007.
Non statutory advocacy services are to be developed and fully
available at inpatient sites by 2008/9 and in the community by
2009/10.
The target date for in-patient non-statutory advocacy
to be introduced was March 2009 and for the community service
March 2010.
38. Witnesses commented on the lack of quality and
availability of advocacy services across Wales. Alun Thomas, Deputy
Chief Executive, Hafal, highlighted the "postcode lottery,
this very patchy approach" that existed in Wales.[37]
Claire Fife of the Welsh Assembly Government agreed that advocacy
services varied in quality and frequency and availability, and
that "using Measures that the National Assembly could bring
forward after achieving competence, I think, would strengthen
that."[38]
39. Gareth Jones of Mind Cymru noted that advocacy
services were not currently provided throughout Wales:
At our conference last year, which was based
on advocacy, we had a panel session which was attended by the
Deputy Health Minister, Gwenda Thomas, and […] a commissioner
for health services in the north of Wales. They were on the same
panel and he was asked, "Why are you not providing these
advocacy services as per the National Service Framework?"
and his reply quite openly in front of the Deputy Health Minister
was, "Because I'm not required to do so. I have other priorities
that I am required to do and those are what I do".[39]
Jonathan Morgan AM felt that:
… advocacy had to be part of the package
if we were to ensure that a legal duty being conferred upon public
bodies should not just apply to the assessment and treatment[40]
NEED FOR THE LEGISLATIVE COMPETENCE
ORDER
40. Witnesses agreed that an LCO would allow the
Assembly to make Measures relating to mental health which could
go wider than the NSF and that "full use has already been
made of existing powers to issue statutory guidance and/or secondary
legislation in relation to this Matter."[41]
Mr Morgan commented:
A competence order that ties together the variety
of assistance that is currently provided in those [...] Acts of
Parliament [...] together with the national service frameworks,
would give clarity to what the Assembly Government wanted to achieve.
It would also allow the Assembly Government by Measure to go slightly
further than the national service frameworks. The national service
frameworks themselves are confined to those people who are not
detained. However, the Assembly's Health Minister is keen to ensure
that there is a level of advocacy which is extended to those people
who are detained as well as those who are not detained. A national
service framework as it is currently drafted within the current
legal framework would only apply for those people who have not
been detained. A Legislative Competence Order would tie all of
that together to allow the Assembly to legislate by measure for
people regardless of their circumstances.[42]
41. Dr Stephen Hunter, Medical Director, Welsh Assembly
Government, argued that:
... the NSF, even if we amended it, would not
deal with people as yet to be identified as suffering from a mental
disorder; it would not significantly direct or even empower community
mental health teams, assertive outreach teams, crisis resolution
teams, and so on [...] Measures taken under this order would enable
services to identify much earlier and place an obligation on them
to intervene much earlier. I do not think that could be achieved
through a National Service Framework. I think that could only
be achieved by some legislative force majeure in that sense.[43]
42. Dai Davies MP, however, questioned the need for
a specific Welsh LCO, commenting that the changes could be made
using primary legislation at Westminster:
If amendments are needed to legislation regarding
those with mental health issues, and if arguments for those changes
are strong enough to require such a change in the law—because
of the way they improve the lives of mental health sufferers—then
such improvements should be argued for and made on behalf of all
sufferers across the UK! [...] If what is being proposed is best
practice, and/or first-rate new thinking which will alleviate
suffering, then why not roll it out to everyone in the UK by amending
not just the Wales Act but UK Acts which affect such provision
across the UK.[44]
43. When this issue was raised with Jonathan Morgan
AM, he acknowledged that framework powers under the 2007 Mental
Health Act would have been desirable. However he noted:
… we are where we are and the Legislative
Competence Order route is certainly the only opportunity afforded
to me as a backbench Member. As I understand it there are no other
Bills currently before Parliament that would afford the Assembly
Government the opportunity to ask for framework powers.[45]
Richard Rook of the Mental Health Division of the
Department of Health commented:
… the UK Government has only relatively
recently taken through what became the Mental Health Act 2007
in which many of these issues were discussed, but the view that
the Government took was that it did not think that a legislative
solution was the best way forward.[46]
He further commented:
… the UK Government felt that [early intervention]
was not a justification for providing a specific duty for a relatively
small part of the population in relation to one set of health
problems, to have a separate duty to assess mental health problems
when there is no equivalent duty for people with physical problems.[47]
44. The Parliamentary Under-Secretary at the Wales
Office believed that the LCO represented "the Welsh Assembly
and its Government identifying what its priorities are within
the overall UK framework."[48]
45. While the Adult Mental Health National Service
Framework has set a clear strategic framework in Wales, it does
not provide a statutory duty to deliver those services. The Legislative
Competence Order would allow the Welsh Assembly to make Measures
relating to mental health to ensure earlier assessment, treatment
and access to advocacy services. The UK Government's current view
is that is does not wish to legislate in this area. The Legislative
Competence Order procedure is therefore the only legislative route
currently available to allow Mr Morgan's proposal, endorsed by
the National Assembly for Wales, to proceed.
15 Explanatory Memorandum, para 21 Back
16
Explanatory Memorandum, para 25 Back
17
Q 2 Back
18
Q 85 Back
19
R v Islington LBC ex parte Rixon (1998) 1 CCLR 119, pl131E,
(1996) 32 BMLR 136 (QBD) Back
20
Explanatory Memorandum, para 19 Back
21
Record of Proceedings, para 5, 6 May 2008, Proposed Provision
of Mental Health Services LCO Committee Back
22
Q 4 Back
23
Q 62 Back
24
Ev 33 Back
25
Q 31 Back
26 Equity,
Empowerment, Effectiveness, Efficiency,
National Assembly for Wales, September 2001 Back
27
Welsh Assembly Government, Raising the Standard; The Revised
Adult Mental Health National Service Framework and an Action Plan
for Wales, October 2005 Back
28
One Wales: A progressive agenda for the government of Wales,
27 June 2007 Back
29
Q 87 Back
30
Welsh Assembly Government, Raising the Standard, Revised Adult
Mental Health National Service Framework and Action Plan for Wales,
October 2005 Back
31
Q 32 Back
32
Q 28, Q 32 Back
33
Q 5 Back
34
Q 67 Back
35
Q 48 Back
36
Q 49 Back
37
Q 40 Back
38
Q 72 Back
39
Q 46 Back
40
Q 13 Back
41
Ev 40 Back
42
Q 6 Back
43
Q 67 Back
44
Ev 35 Back
45
Q 20 Back
46
Q 98 Back
47
Q 101 Back
48
Q 98 Back
|
