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
Governments legislative programme for 2009-10 last
July.
The Assembly
Government published their strategy for mental health services in 2001.
Implementation of the strategy is supported by a national service
framework
that sets standards for mental health services in Wales. A key aim of
the framework is to drive up the quality of services and ensure that
they are delivered consistently and comprehensively across Wales. The
Assembly Government believe that a right to early assessment and
extending rights of advocacy services are consistent with the
framework. They wish, in particular, to impose a specific,
comprehensive duty on service providers with regard to the assessment
and treatment of mental disorders so that fewer individuals become
subject to compulsion. They also wish to provide wide-ranging and
comprehensive advocacy services to those suffering from a mental
disorder.
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 Committees
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 Governments 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
Assemblys flexibility to further improve and develop the
advocacy scheme in Wales.
The
Committees 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.
Finally,
I hope that hon. Members would agree that it is appropriate for
legislative competence in this very important area to be devolved to
the National Assembly.
I welcome the spirit of co-operation that all parties concerned have
adopted in discussions regarding the LCO. The process has worked and
has enabled us to take forward an LCO that meets the objectives of
Jonathan Morganthe Assembly Member proposing the
orderand that is supported by the UK and Welsh Assembly
Governments. I commend the order to the
Committee.
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
wasif it is not too unhappy a metaphor to usestrangled
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
persons 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
persons 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. Morgans 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. Morgans 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 conditionsclearly,
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 laymanthe person who is suffering
from mental ill healthwhat 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 Westerns
faultmy 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 Governments 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 persons 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 Assemblys 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
Governments
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 Governments experience in pioneering this approach
will be closely watched by the Department of Healtha 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.