Conclusions and recommendations
The LCO process
in this instance
1. We welcome the
first proposal for a Legislative Competence Order formally laid
before Parliament to have been introduced by a non-Government
Assembly Member. We note Mr Morgan's frustration with the time
the process has taken in receiving Whitehall clearance for the
proposed Order. We applaud the level of co-operation between Mr
Morgan who sponsored the proposed LCO, the Welsh Assembly Government,
and the Wales Office. We look forward to similar support by the
Welsh Assembly Government and Wales Office to further backbench-sponsored
LCOs. (Paragraph 15)
The identifiable need for the proposed Order
2. 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. (Paragraph 27)
The "fit" with existing Welsh Assembly
Government policy
3. We
conclude that the proposed Order clearly develops and is consistent
with previously announced Welsh Assembly Government policy. (Paragraph
31)
Need for the Legislative Competence Order
4. 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. (Paragraph 45)
Scope of Matter 9.2 - Assessment of mental health
and treatment of mental disorder
5. 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. (Paragraph 50)
Exclusions
6. 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. (Paragraph
54)
Application
7. 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. (Paragraph 59)
Scope of Matter 15.9 - Social Care Services connected
to Mental Health
8. 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. (Paragraph
65)
Impact on the public sector
9. 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. (Paragraph 73)
Conclusion
10. The
proposed Legislative Competence Order would allow Measures to
be made by the National Assembly for Wales that are a departure
from the settled views of the UK Government. The evidence we have
received shows wide support for Legislative Competence to be devolved
to the National Assembly for Wales. We agree that the National
Assembly for Wales should have the ability to legislate with regard
to the assessment and treatment of mental disorder and access
to advocacy services. The use of the Legislative Competence Order
procedure is appropriate and acceptable in this instance. (Paragraph
74)
11. We congratulate
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. We hope that Mr Morgan and the Welsh
Assembly Government will take our comments regarding drafting
of the Legislative Competence Order and the Explanatory Memorandum
into account. (Paragraph 75)
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