2 Scope of the Proposed Order
Scope of Matters
SCOPE OF MATTER 9.2 - ASSESSMENT
OF MENTAL HEALTH AND TREATMENT OF MENTAL DISORDER
46. New Matter 9.2 which the proposed Order would
add to the legislative competence of the National Assembly for
Wales is intended to confer competence to pass primary legislation
on the assessment of mental health and treatment of mental disorder.
Treatment of mental disorder is widely defined to mean "treatment
to alleviate, or prevent a worsening of, a mental disorder or
one or more of its symptoms or manifestations; including (but
not limited to) nursing, psychological intervention, habilitation,
rehabilitation, and care".[49]
Mental disorder is equally widely defined, and means any disorder
or disability of the mind apart from dependence on alcohol or
drugs.[50]
47. Jonathan Morgan AM explained how the scope of
Matter 9.2 has changed since the original proposal:
… in its original form the Order made reference
to the wording in relation to those people who may require assessment.
It said that the Order would apply to persons who are or may be
mentally disordered […] The problem with that particular
terminology is that it raises conceptual difficulties of defining
how persons who may be mentally disordered are identified. Likewise,
reference to persons who appear to be mentally disordered gives
rise to the questions: appears to whom? We were very conscious
to ensure that ambiguities were removed, which is why the start
of Matter 9.2 merely says, 'Assessment of mental health and treatment
of mental disorder'…"[51]
The Assembly's Legislative Competence Order Committee
recommended that the Order should be broadly drafted. Mr Morgan
stated his view:
… that the duty should fall on local authorities
with regard to social services as well as the NHS with regard
to mental health services. It allows for the assessment which
would in many cases, particularly in secondary care, require quite
a multidisciplinary team of people to provide that assessment,
people who may not be employed by the health service but by the
local authority.[52]
48. Mr Morgan acknowledged that the wording of the
matter was broad, "but it is not overly broad."[53]
He believed:
The LCO is sufficiently broad in my own mind
to encompass whichever groups of people might need to be legislated
for within Assembly Measures.[54]
Joanest Jackson, Senior Legal Adviser in the National
Assembly for Wales, believed that the broad wording of the Matter:
… allowed sufficient flexibility for the
current policy to develop and to be adopted to fit suitable circumstances
as they appear. It is intended to allow a building upon the current
legislation which in many ways is restrictive.[55]
49. There was widespread support amongst witnesses
for the broad drafting of the proposed Order. Alun Thomas, Deputy
Chief Executive of Hafal, commented:
The major concern would be getting this LCO through
and agreed and the Measures to come from it but then having to
come back to do the same thing possibly even in 18 months' time
because of the sort of advances that are going on in health and
social care. The changes in investment, changes in political will
could well mean that a very strictly drafted LCO would be too
time-limited for it to have any real effect.[56]
Ruth Crowder, Policy Officer for the College of Occupational
Therapists, noted that "If it is too tightly drawn it is
not going to stand the test of time to actually give us the opportunity
to drive assessment and treatment services as we need them in
Wales."[57]
50. We are persuaded that the rate of change in
the development of treatment for mental health problems justifies
the use of broad drafting in the proposed Order.
EXCLUSIONS
51. Clause 2(2) of the proposed LCO restricts the
scope of the proposed power. The Explanatory Memorandum states:
… the LCO would not allow the Assembly to
legislate in respect of compelling individuals to be assessed,
treated or supervised or subjecting persons to guardianships.
In effect, this means there is no overlap with the main subject
matter of the 1983 Act and the legislative competence of the National
Assembly for Wales.[58]
52. In oral evidence to the Committee, Jonathan Morgan
AM expanded on the exclusion included in the proposed power:
It does not include those people who are subject
to compulsory attendance at any place for purposes of attendance
or treatment. Nor does it include those people who are under compulsory
supervision or guardianship because they are already covered in
other legislation. It was felt that it would be intruding on the
work that is currently done by other Acts of Parliament in particular
which provide for those individuals.[59]
The Parliamentary Under-Secretary at the Wales Office
agreed with the need for this exclusion:
… the LCO is very specific in recognising
that there is no need for, and nor should there be, any impingement
of what is set out very, very clearly in the 1983 Mental Health
Act, and that focus on compulsion. [60]
53. Proposed clause 2(2)(b) provides that the power
does not extend to consent to assessment or treatment. However
Claire Fife of the Welsh Assembly Government explained that:
… the Measures that could be brought forward
would not be able to cover compulsion, but an individual subject
to compulsion may benefit from some of the Measures. For example,
if something was around advocacy and we wanted to provide a measure
advocate, just because a person was subject to detention does
not mean they would not attract the benefits that that measure
advocate could bring forward.[61]
54. The proposed exclusions ensure that the Assembly
will not be allowed to amend existing law relating to treatment
without consent in Parts IV and IVA of the Mental Health Act 1983;
compulsory admission, guardianship or Community Treatment Orders
powers under Part II of the 1983 Act; or the provisions in ss
135 or 136 of the 1983 Act relating to removal to a place of safety
for compulsory assessment. We are satisfied that these exclusions
are appropriate.
APPLICATION
55. The Explanatory Memorandum explains that 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."[62]
56. The College of Occupational Therapists expressed
concern over the application of the Order:
Paragraph 21 states that the duty for assessment
and treatment will be for individuals not previously diagnosed.
This is excellent for early intervention for the group (predominately
young men with psychosis) who are becoming unwell for the first
time. However, we also believe this Order should include those
already known to services who are becoming unwell and recognise
it. As currently constructed, this group would still not get early
assessments or treatment. This would miss the full benefits for
Wales of this LCO.[63]
When we pursed this during oral evidence, Genevieve
Smyth, Mental Health and Learning Disability Officer of the College
of Occupational Therapists, commented that they had been reassured
by "a range of people around who have read the LCO differently
from us" that the order would incorporate people who had
already been recognised but were not currently in services.[64]
57. Claire Fife of the Welsh Assembly Government
conceded that the confusion had arisen due to the drafting of
the Explanatory Memorandum:
… I think perhaps it reflects the drafting
in paragraph 21 of the Explanatory Memorandum and perhaps the
way that the Order of the Scrutiny Committee and the Assembly
was drafted. What the Explanatory Memorandum does not say is that
duties can only be placed in respect of previously undiagnosed
persons, but I accept it does not say that they can either.[65]
She commented that:
… the Order itself certainly does not exclude
a person who is previously or currently diagnosed.[66]
58. This point was also made by the Parliamentary
Under-Secretary at the Wales Office:
I think perhaps the Explanatory Memorandum could
on this point have been clearer […] but to be clear […]
the LCO would allow a Measure to include duties relating to individuals
not previously diagnosed as having a mental disorder as well as
those with a previous or current disorder.[67]
59. Matter 9.2 makes it clear that the duty for
assessment and treatment will be for individuals not previously
diagnosed. As a result of the evidence, we are satisfied that
it is not the intention to exclude those who are previously or
currently diagnosed. We suggest that the Explanatory Memorandum
be amended to make this clear.
DEFINITION
60. Clause 2(3) provides that the definition clause
of Field 9 is to be amended by inserting after the definition
of "illness" in the National Health Service (Wales)
Act 2006 the following:
"mental disorder" means any disorder or
disability of the mind, apart from dependence on alcohol or drugs;
The National Health Service (Wales) Act 2006 states
that "illness" includes mental disorder within the meaning
of the Mental Health Act 1983 (c. 20) and any injury or disability
requiring medical or dental treatment or nursing.[68]
The definition in the Order will be added to that.
61. Jonathan Morgan AM commented that there had been
"quite a lot of consideration" before including a definition
in Field 9 which effectively duplicates the one in the 1983 Act
(and is therefore already within the existing definition in s.
206 of the National Health Service (Wales) Act 2006). He felt
it was necessary to avoid confusion as to what was meant by the
term "treatment of mental disorder".[69]
Joanest Jackson, Senior Legal Adviser to the National Assembly
for Wales expanded on this point:
It ensures that we are not thinking of treatment
as solely medical and medicating somebody to deal with an episode
of ill health but it is broader and deals with rehabilitation,
nursing and psychological intervention but of course it is not
limited to that so it allows for a suitable package to be put
in place.[70]
SCOPE OF MATTER 15.9 - SOCIAL CARE
SERVICES CONNECTED TO MENTAL HEALTH
62. New Matter 15.9 of the proposed Order extends
the competence of the National Assembly of Wales as regards the
provision of social care services to the areas of mental health.
63. We received advice that Matter 15.9, as currently
drafted, would allow the Assembly to disapply in Wales the right
to an Independent Mental Health Advocate (IMHA) for those subject
to compulsory powers under the 1983 Act. Jonathan Morgan AM told
us however that:
… there is no intention to, nor would the
proposed Order enable the Assembly in a subsequent Measure to
dis-apply the advocacy provisions contained in the Mental Health
Act 1983.[71]
Claire Fife of the Welsh Assembly Government commented
that although it was not the intention of the Welsh Assembly Government
to disapply the provision of IMHA "there may be an unintentional
risk that we would be keen to readdress."[72]
64. The Parliamentary Under-Secretary at the Wales
Office conceded that there was a need to re-examine the drafting:
… I have been studying very carefully the
wording in 15.9 and I think that is something that, when we move
beyond the pre-legislative process, we will have to look at again
very, very carefully, because […] though it might not be
a policy intention now or in the foreseeable future, nevertheless
there is at least a theoretical possibility that a certain interpretation
could be put on parts of 15.9 which are not intended.[73]
65. We are satisfied that it is not the intention
in the drafting of Matter 15.9 to allow the National Assembly
for Wales the ability to disapply in Wales the right to an Independent
Mental Health Advocate (IMHA) for those subject to compulsory
powers under the 1983 Act. However we are concerned about unintended
consequences and suggest that the LCO is amended to make this
clear.
Cross-border issues
66. The proposed Order has the potential to raise
cross-border issues which, as the Parliamentary Under-Secretary
commented, "have to be taken very, very seriously."[74]
Claire Fife from the Welsh Assembly Government, said:
… in developing some of the thinking around
the Measures we have given consideration to issues around GP registration,
taking account of this Committee's own findings on cross-border
health services; we have considered issues about where patients
receive secondary care, about patients that are receiving health
and social care in Wales having previously received that elsewhere.[75]
67. Dr Stephen Hunter, Medical Director for the Welsh
Assembly Government, commented on the current situation, where
some patients suffering from mental health problems are transferred
outside of Wales in order to receive "really quite high-level
care, largely in low secure environments and occasionally in specialist
environments".[76]
He also noted that:
Wales does have a significant problem in relation
to transferring individuals out to hospitals, often many hundreds
of miles away from where people's homes are.[77]
68. Our witnesses viewed as a key aim of the transfer
of competence the possibility of providing for patients in Wales
to "receive the help, support and assistance they need as
close to home as possible."[78]
In its written submission, Gofal Cymru stated:
... it might be hoped that improvements to mental
health services in Wales as a result of obtaining legislative
competence might lead to a reduction in the number of people needing
to receive services outside of Wales.[79]
Dr Stephen Hunter noted that that the aim would be
to:
… prevent an individual deteriorating to
the extent where they needed to be transferred out to low, medium
and high secure facilities outside of Wales, because, as with
everything else in medicine, the earlier one is able to intervene
the less likely it is that the consequences are going to be that
extreme.[80]
69. Nonetheless, patients will continue to be transferred
to England for specialist care. The Minister of the Wales Office
stated unequivocally that:
… anything which is agreed with regard to
this LCO and the measures that follow from it will not in any
way question or undermine the existing cross-border protocols
[…] it will be up to the Assembly Government to study any
cross-border implications of their precise policies very, very
carefully…[81]
Impact on the public sector
70. Our witnesses acknowledged that Measures arising
out of the LCO had the potential to increase the burden on health
services. Jonathan Morgan AM commented on the regulatory burden
that could be placed on the NHS as a consequence of Measures permitted
by the LCO, although he believed there was also the potential
of simplifying duties for providers:
There could well be a regulatory burden and Measures
resulting from the requested powers could provide that additional
burden on providers. These also have the potential to replace
a complex array of existing duties […] Although there could
well be a regulatory burden, I would expect that the potential
Measures would clarify the legal position in Wales with regard
to who was actually responsible for what.[82]
71. Witnesses also identified the probability that
initial financial costs would be incurred by the NHS in providing
quicker access to assessment, treatment and advocacy.[83]
The College of Occupational Therapists expressed concern that
funding would be removed from in-patient care to fund the early
intervention services, as had occurred in England:
The Mental Health Act Commission's Twelfth Biennial
Report has identified the declining quality of in-patient units
in England. We believe this is a potential outcome of removing
funding from in-patients units too hastily ...[84]
Claire Fife of the Welsh Assembly Government commented
that it was not the Minister's intention to withdraw services
and funding to inpatient services to fund any statutory duties
imposed by any Measure[85]
and that:
The Welsh Assembly Government has ensured that
there are unprecedented levels of funding to mental health services
in Wales …[86]
72. Witnesses unanimously agreed that new Measures
could in the long-term achieve a positive cost benefit with less
money needing to be paid out on specialist high need services.
As Ruth Crowder, Policy Officer of the College of Occupational
Therapists, commented, "one of the burdens on the public
sector is how long and how expensive it is to support people once
we have allowed them to become so unwell."[87]
Jonathan Morgan also noted that:
… there could well be savings further along
the line where those people thankfully, because of early intervention,
do not then become subject to compulsory detention because they
have become unwell. Many of those people who do not receive early
intervention do find themselves becoming in-patients and of course
in-patient care can be very much more expensive than treating
and providing care and support to someone in the community.[88]
73. The legislative competence conferred upon
the National Assembly by this LCO would allow Measures to be brought
forward which place regulatory and financial burdens on the public
sector. While we recognise that there will be an initial financial
cost incurred by the NHS in providing quicker access to assessment,
treatment and advocacy, it is hoped that early intervention services
will lead to long-term cost benefit. The extent of such duties
would be a matter for future Measures.
49 Clause 2(2) Back
50
Clause 2(3) Back
51
Q 9 Back
52
Q 4 Back
53
Q 9 Back
54
Q 4 Back
55
Q 8 Back
56
Q 34 Back
57
Q 33 Back
58
Explanatory Memorandum, para 22 Back
59
Q 11 Back
60
Q 91 Back
61
Q 69 Back
62
Explanatory Memorandum, para 21 Back
63
Ev 33 Back
64
Q 36 Back
65
Q 71 Back
66
Q 71 Back
67
Q 93 Back
68
National Health Service (Wales) Act 2006, s. 206 Back
69
Q 12 Back
70
Q 12 Back
71
Ev 40 Back
72
Q 75 Back
73
Q 95 Back
74
Q 96 Back
75
Q 76 Back
76
Q 76 Back
77
Q 76 Back
78
Q15 Back
79
Ev 38 Back
80
Q 76 Back
81
Q 96 Back
82
Q 16 Back
83
Q 16, Ev 33 Back
84
Ev 35 Back
85
Q 78 Back
86
Q 77 Back
87
Q 42 Back
88
Q 16 Back
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