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House of Commons
Session 2009 - 10
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General Committee Debates
Delegated Legislation Committee Debates



The Committee consisted of the following Members:

Chairman: Mr. Martin Caton
Brown, Lyn (West Ham) (Lab)
Caborn, Mr. Richard (Sheffield, Central) (Lab)
Crabb, Mr. Stephen (Preseli Pembrokeshire) (Con)
David, Mr. Wayne (Parliamentary Under-Secretary of State for Wales)
Dorries, Nadine (Mid-Bedfordshire) (Con)
Drew, Mr. David (Stroud) (Lab/Co-op)
Griffith, Nia (Llanelli) (Lab)
Jones, Mr. David (Clwyd, West) (Con)
Linton, Martin (Battersea) (Lab)
McDonagh, Siobhain (Mitcham and Morden) (Lab)
Morden, Jessica (Newport, East) (Lab)
Pritchard, Mark (The Wrekin) (Con)
Raynsford, Mr. Nick (Greenwich and Woolwich) (Lab)
Smith, Chloe (Norwich, North) (Con)
Williams, Hywel (Caernarfon) (PC)
Williams, Mr. Roger (Brecon and Radnorshire) (LD)
Glenn McKee, Committee Clerk
† attended the Committee

First Delegated Legislation Committee

Monday 25 January 2010

[Mr. Martin Caton in the Chair]

Draft National Assembly for Wales (Legislative Competence) (Health and Health Services and Social Welfare) Order 2010
4.30 pm
The Parliamentary Under-Secretary of State for Wales (Mr. Wayne David): I beg to move,
That the Committee has considered the draft National Assembly for Wales (Legislative Competence) (Health and Health Services and Social Welfare) Order 2010.
It is a pleasure to serve under your chairmanship, Mr. Caton. The legislative competence order before the Committee is commonly known as the mental health order. Hon. Members will be aware that Back-Bench Assembly Members can bring forward proposed LCOs. The draft LCO has been brought forward by Jonathan Morgan, the Conservative AM for Cardiff North. The Government have made clear our commitment to progress Assembly Member LCOs that have the support of the Welsh Assembly Government. The LCO has the full backing of the Welsh Ministers. I strongly support the ability of Assembly Members to bring forward proposals for devolving legislative competence in that way. It clearly demonstrates the flexibility of the system the Government put in place through the Government of Wales Act 2006 and allows Assembly Members to participate directly in enhancing the legislative competence of the National Assembly for Wales.
The draft LCO will devolve legislative competence in relation to aspects of mental health. Specifically, it will insert two new matters into schedule 5 to the 2006 Act: matter 9.2 in field 9, which relates to health and health services; and matter 15.10 in field 15, which relates to social welfare. Those matters will enable the Assembly to legislate in relation to the assessment of mental health, the treatment of mental disorder and social care services connected to mental health. Let me be absolutely clear that the competence does not extend to people subject to, or likely to be subject to, compulsory detention under the Mental Health Act 1983, except in relation to independent advocacy. It will not allow the Assembly to amend the provisions relating to compulsory treatment or the definition of mental disorder contained in the 1983 Act.
The devolution of competence in relation to mental health has cross-party support in the Assembly. The then First Minister, the right hon. Rhodri Morgan AM, announced the intention to bring forward legislation using the competence conferred by the LCO when he set out the Welsh Assembly Government’s legislative programme for 2009-10 last July.
As always, the proposed LCO was subject to pre-legislative scrutiny by the Welsh Affairs Committee, the House of Lords Constitution Committee and a Committee of the National Assembly. I am grateful for the thorough scrutiny those Committees undertook and the helpful scrutiny reports they produced. Both the Welsh Affairs Committee and the Committee of the National Assembly requested that the explanatory memorandum make it clear that those with a current or previous diagnosis of mental disorder are included within the scope of matter 9.2, as well as those without such a diagnosis. The explanatory memorandum now confirms that position in paragraph 7.14.
The Mental Health Act 2007 introduced to the 1983 Act a new duty to provide independent mental health advocacy services for people subject to detention and specific treatment under the 1993 Act. Matter 15.10 confers competence over advocacy, including that new service, in Wales. The Welsh Affairs Committee, in its recommendations, correctly noted that it is not the intention to disapply in Wales the right to an independent mental health advocate for those subject to compulsory powers under the 1983 Act. The Committee suggested that the drafting of the LCO should be amended to make that clear. The drafting of the LCO has been carefully considered by Jonathan Morgan, the Welsh Assembly Government and the UK Government in light of the Committee’s suggestion. However, it was decided, on balance, not to modify the LCO to exclude advocacy for those subject to the 1983 Act from competence. The explanatory memorandum has been amended at paragraph 7.20 to make that clearer.
Hon. Members might be aware of the Assembly Government’s support for the development of independent mental health advocacy in Wales, including for those subject to compulsion under the 1983 Act. The IMHA scheme has been operating in Wales since November 2008, and I understand that the Welsh Assembly Government expect to develop that further, thus providing an important safeguard for patients. However, excluding competence in relation to IMHA would limit the National Assembly’s flexibility to further improve and develop the advocacy scheme in Wales.
The Committee’s further suggestion to apply conditions to the competence, such that the power to disapply the right to an IMHA would be conditional upon replacement arrangements being put in place, was also carefully considered. However, that suggestion presents both constitutional and drafting issues and has therefore not been taken forward.
4.37 pm
Mr. David Jones (Clwyd, West) (Con): It is a pleasure to serve once again under your chairmanship, Mr. Caton. The proposed order is of particular interest because it is the first Back-Bench proposal of the Welsh Assembly to be translated into an LCO. It is a matter of particular pleasure for me that it is a proposal from my Conservative colleague, Jonathan Morgan. The proposal has also received the positive support of the Welsh Assembly Government and it is fairly clear that, without such support, Back-Bench proposals stand little chance of making progress, as recently demonstrated with the proposal to allow pregnant women to use disabled car-parking bays, which was—if it is not too unhappy a metaphor to use—strangled at birth.
The LCO is to be applauded because of the clarity of its draftsmanship and that of its accompanying explanatory memorandum. The proposal is clearly focused and clearly drafted, which is a marked and welcome difference from the environment LCO that was considered in the House only last week, which was remarkable in its opacity and unwieldy drafting. Indeed, I would go so far as to suggest that this LCO and its explanatory memorandum should become a model for future competence proposals submitted for consideration.
The purpose of the proposal is clear: to empower the Welsh Assembly to legislate to place duties on NHS bodies and social service providers to assess a person’s mental state. That will enable such duties to be imposed in respect of individuals of all ages with a current or previous diagnosis of mental disorder, as well in respect of those presenting symptoms of mental ill health for the first time. In addition, the LCO will enable duties to be placed on NHS bodies and social service providers in respect of the treatment of a person’s assessed mental disorder. As the Minister indicated, that much is gratifyingly clear from paragraph 7.14 of the explanatory memorandum.
This LCO has none of the coyness that usually accompanies applications for LCOs, where the Assembly Government are reluctant to indicate the nature of the legislation that is likely to flow from the enabling order. That may, of course, be because it is a Back-Bench LCO that is focused on dealing with a particular discrete concern. I also suggest that the very fact such an indication of the likely Measures to flow from the order have been communicated at this early stage is a welcome indication of a developing maturity on the part of the Assembly Government and an increasing confidence on their part in the LCO procedure.
Gaps were identified in the existing legislation by Mr. Morgan. Essentially, the legislation does not provide for early intervention for the assessment of mental health and its treatment outside the compulsory process. Witnesses to the Select Committee were agreed that such early intervention was desirable. Complementary duties on local authorities are also desirable, but impossible to impose under the present statutory arrangements, and there is an insufficient framework to provide for a wide-ranging and comprehensive advocacy service. The purpose of the LCO is to enable the Welsh Assembly to legislate for such purposes in Wales.
Given the evidence that was taken by the Select Committee, it is reasonably clear that there are gaps in the present legal framework that need to be dealt with. It is to Mr. Morgan’s credit that he has decided to sponsor an application for an LCO that may have such an obvious benefit. I hope that the Department of Health is considering carefully the proposal with a view to following it through nationally, because it could prove of great benefit to Welsh patients, and provide an example of something that should be taken up by the Department of Health.
I wish to make a couple of observations, to which the Minister may want to respond when he winds up. First, the Mental Health Act 2007 might have been an opportunity for the Welsh Assembly Government to consider making a bid for framework powers, rather than allowing a further two years-plus to elapse during the tortuous LCO process. I understand that Mr. Morgan’s concerns are matters of which the Welsh Assembly Government have been aware for some years, so I wonder why the 2007 Bill was not considered as a vehicle for seeking to apply for the powers that the LCO will confer.
Secondly, cross-border issues will inevitably flow from any Measures made pursuant to the order; they always do when it comes to health matters. Will the Minister confirm that the Welsh Assembly Government will liaise very closely with the Department of Health before publishing any draft Measure and give careful consideration to any such issues that may be raised?
Further than that, I merely wish to add that the LCO has the potential to make life considerably better for mental patients in Wales. One in four of us is likely, at some stage, to suffer from some type of mental illness. Mental health must must therefore be of considerable concern to us all. Wales has the potential now to become a pioneer in this field, and I hope that the Department of Health will consider carefully the practical effects of any Measures that are ultimately introduced.
4.42 pm
Hywel Williams (Caernarfon) (PC): I speak as Chairman of the Welsh Affairs Committee, which considered this LCO. Having previously discussed the matter with Mr. Morgan, I very much welcome it. I also welcomed the short but effective hearings that we held on the LCO.
Speaking as someone who has been involved in mental health work in the past, I know that early intervention is the most effective way of addressing mental ill health and that it is certainly the best as far the person who is suffering from the symptoms is concerned. I am glad that the LCO empowers people in such circumstances to ask for early intervention. One of the difficulties that we have experienced with mental health education is that, in the past, people had to become very ill indeed before they got help; statutory intervention seemed to be the only help that was available, and the patients’ understanding of their own illness did not really count. It is significant that the scope of the LCO is extended to cover both people with new conditions and people with existing conditions—clearly, mental ill health is often a recurring condition.
The hon. Member for Clwyd, West referred to the opportunity that might have been available for framework powers in the previous legislation. I sat on the Joint Committee that considered the reform of mental health law. The Committee met in 2004-05, I think, and considered the matter very comprehensively. It suggested that early intervention might be written into that Bill and so would appear in the Act, using the principle of reciprocity, which means that because the state is able to intervene when people are ill and, essentially, force them into hospital, there should be reciprocal rights for the patient to say, “I am ill. I have rights, too, to help and treatment.” That provision was rejected by the Government at that time. There was an opportunity to extend that principle throughout England and Wales.
Interestingly, the principle of reciprocity lies behind the Scottish legislation in this field, as exemplified in the so-called Milan principles, which are simple and tell the layman—the person who is suffering from mental ill health—what their rights are. We Committee members asked the Minister to include a similar set of principles in the new Bill, but she refused on some interesting grounds: eventually, she said that, unfortunately, those could not be included because principles occasionally change. I thought at the time that the point of principles was that they did not change, but there we are. The opportunity to include those principles was missed then, but I am glad that reciprocity is now being introduced in Wales.
Independent advocacy is one of the most important aspects of intervention in this difficult, fraught field. I know that from my experience as a social worker sectioning people many years ago and feeling rather on my own, but not as on my own as the patient felt, confronted with the whole apparatus of the state taking him or her off to hospital. The explanatory memorandum clarifies certain points and I am glad that it does. It is now possible that, should the Welsh Assembly Government or the Welsh Assembly, as this is a Back-Bench LCO, see an opportunity to develop advocacy services, they could press ahead with that. I am pleased that that provision is included.
Other than that, Mr. Caton, I am pleased that the LCO is proceeding. I wish it all speed.
4.47 pm
Mr. Roger Williams (Brecon and Radnorshire) (LD): Mr. Caton, I apologise to you and the Committee for being late at the start of this sitting. It is Great Western’s fault—my train was a little bit late arriving.
I welcome the proposal and congratulate Jonathan Morgan on becoming the first Back-Bench Assembly Member to have an LCO laid formally before Parliament. The case has been set out by Committee Members. Mental health is an important part of the health service but is often regarded as a Cinderella service that does not have the headline-grabbing characteristics of transplants and cancer cures. Mental illness can be extraordinarily debilitating for those individuals suffering from it and for their family and friends and, often, their colleagues in the work place. We are pleased with the proposals and welcome them.
I hope that a few more LCOs proposed by Back-Bench Assembly Members will reach us. I understand why those that are directly related to the Welsh Assembly Government’s legislative programme have been given precedence. The Welsh Assembly Government say that Government LCOs were not given priority over those proposed by Back-Bench AMs, but I wonder if the Minister has considered that matter and discussed it with his colleagues in the Assembly. Despite the fact that this LCO was proposed by a Back-Bench AM, the Assembly Government are sympathetic to the order and to the need for the powers that it would give the Assembly.
There is a clear need for the LCO, which could fill gaps in the provision of several areas of mental health policy, particularly assessment, treatment and advocacy. It will allow duties to be placed on an NHS body to assess a person’s mental health and, in respect of treatment, an assessed mental disorder. It will also allow the Welsh Assembly Government to extend provision for social care services to include mental health. The LCO will also enable the provision of independent advocacy, which I know the mental health sector supports very much. The Welsh Assembly Government already have significant powers in mental health, but the extent of their powers is limited by the 1983 Act, and the powers being requested would give a much more wide-ranging set of powers. There is a clear case for filling the gaps, and that complements the Assembly’s legislative objectives.
Concerns have been expressed about cross-border care, particularly the provision of specialist care outside Wales. I know from my constituency work that, to make use of secure facilities for acute mental health problems, constituents sometimes have to travel to England. What discussions has the Minister held with colleagues in Cardiff and Westminster to ensure that that is not a problem?
The LCO has been widely supported in the Assembly and Westminster and I offer my support for it today. None the less, there has been concern about delays in the LCO process, which continues to be slow. It has taken more than two years to introduce this LCO, and that is not an uncommon occurrence. The LCO process, especially the scrutiny process, is working better, but it is still too slow.
The order is welcome and will be of great use in continuing to develop a Wales-specific mental health policy, and I look forward to Measures being passed as a result of it.
4.52 pm
Mr. David: We have had a brief but positive exchange of views, and I am glad that there is consensus that the LCO is a positive step from which many people will benefit.
The hon. Member for Clwyd, West asked why the Welsh Assembly Government opted to support the LCO proposed by Jonathan Morgan rather than propose framework powers under the 2007 Act. That legislation amended the 1983 Act, which is concerned with compulsion, whereas the order would allow early intervention prior to compulsion, which is quite a fundamental difference. As the hon. Gentleman suggested, the order addresses specific legislative gaps, and it is all the stronger for that.
The hon. Members for Clwyd, West and for Brecon and Radnorshire mentioned the important issue of cross-border relations. We must recognise that existing protocols are operating effectively, and no doubt their scope and content will be expanded once the order is in place. The principle of cross-border co-operation is firmly enshrined in the Assembly Government’s approach.
The hon. Member for Clwyd, West spoke of the attitude of the Department of Health. A positive and notable feature of my evidence sessions before the Welsh Affairs Committee was the presence of a Department of Health official. The approach in England is different, but nevertheless complementary. One of the strengths of devolution is that we learn from each other.
Mr. Jones: In what sense is the English approach complementary?
Mr. David: Both Governments agree on the need to address mental health as positively and effectively as possible. As Jonathan Morgan said, under this LCO the Welsh Assembly Government want to emphasise “prevention and early diagnosis.” The Welsh Assembly Government’s experience in pioneering this approach will be closely watched by the Department of Health—a positive relationship in which one might learn from the other, which is what devolution is all about.
The hon. Member for Caernarfon stressed the need for early intervention, which is extremely important. In Wales, there is a perceived need for improved focus on early intervention and treatment, and the LCO will provide statutory duties in respect of that.
The hon. Member for Brecon and Radnorshire asked about perceived delay. I do not think that there has been any delay. The LCO has been debated thoroughly and, as the hon. Member for Clwyd, West has recognised, it is that much stronger and more coherent as a consequence of that thorough scrutiny and vigorous debate. If we consider the very start of the LCO process and compare it to where we are now, we can see that matters are dealt with much more speedily and effectively. All of us who are involved in the legislative process, and particularly in pre-legislative scrutiny, are learning as we go and the position is that much stronger in consequence.
Mr. Jones: I agree with the Minister. It was heartening to see in the explanatory memorandum an indication of the type of Measure that would flow from the LCO. Is that something we can look forward to with future LCOs?
Mr. David: By their very nature, LCOs vary enormously. This is a very narrowly defined LCO and is therefore easy to deal with. It is very much up to the Welsh Assembly Government to define precisely and say over what scope it intends to put forward LCOs in future.
I am very pleased that a broad measure of support is in evidence in this place, in the other House and in the Welsh Assembly. All of us who agree that this an extremely important subject that must be properly dealt with look forward to the Measures that will emanate from the order.
Question put and agreed to.
4.47 pm
Committee rose.
 
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