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Similarly, in Wales, the Assembly Government have reviewed the operation of CPA and recently issued a report with recommendations to service commissioners and providers in Wales. The implementation of these reviews, not statutory requirements, will improve care planning for the patient group.
The care programme approach has been developed to ensure that all people involved in supporting and caring for the patient, be they friends and family, providers of a specialist mental health service—and I note the noble Lord’s point about the need for clinical
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It is right and proper that planning for community services—and, in some cases, the provision of some of these services—should not stop when a patient goes into hospital, as the noble Earl, Lord Howe, said. Indeed, when the patient goes into hospital, that provides an opportune time to reflect on how well the care plan has been working, to thoroughly review it and to plan how it should be changed when the patient is discharged.
The amendment has the potential to create confusion and unnecessary bureaucracy. We need to keep some flexibility for the in-patient services to assess and provide for the care and treatment of patients in hospital as part of the care planning process. In-patient staff are already involved in the care programme approach planning process, and, as part of their own assessments and service provision, they will consider the services and treatment the patient may have received prior to being detained in hospital. The treatment plan is an integral part of the care programme approach; however, the amendment risks providing for it to replace an existing CPA.
The quality of care programming is measured in patient experience, and we believe that this would not be best set out in legislation. The best way to improve quality is through the current review and its effective implementation, and through the code of practice. I therefore ask noble Lords to reconsider the amendments.
Lord Patel of Bradford: I thank the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, for their contribution to the debate.
I am keenly aware of the support among professionals, patients and communities with whom I am engaged day to day for improving the definition of CPA and ensuring it has the appropriate statutory force. In moving these three amendments I stated that it is a matter of significant public concern that CPA is not done well, and that defining it clearly and making it a statutory requirement would improve care for patients, ensure their safety and significantly contribute to wider public safety. As the noble Earl, Lord Howe, said, patients should not have to put up with poor services. In a reciprocal arrangement for detention, they should receive high quality services.
I am not entirely convinced by the argument of the noble Lord, Lord Warner, that guidance, training and a code of practice will suffice. We have had guidance, training and a code of practice for 16 years, without success. Unfortunately not only have a number of people received a very poor quality of service, but many have paid with their lives.
I remain convinced that we should follow this route. In my opinion it is essential for the
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Amendment, by leave, withdrawn.
Clause 15 [Certain registered medical practitioners to be treated as approved under section 12 of 1983 Act]:
Earl Howe moved Amendment No. 23:
The noble Earl said: I shall also speak to Amendment No. 24. These amendments relate to Section 12 of the 1983 Act, which deals with the recommendations required from the medical practitioners before someone can be compulsorily admitted as a mental in-patient. There is a strongly held feeling that the existing provisions in Section 12(3) to (7) of the 1983 Act are complex and over-rigid, and that they have failed to keep up with the development of new patterns of service delivery. As a result they contain a number of anomalies. One could try to resolve those within the existing format, but that would probably entail considerable complication. The subsections are also concerned mainly with the relationship of the two doctors, and do not properly address the relationship with the approved mental health practitioner.
This amendment would allow the drafting of regulations based on a set of principles, which would then govern the appropriate choice of assessors in each case. They would also allow, as the present Act does not, for a stipulation that at least one of the assessors must be completely impartial by virtue of having had no previous involvement with the patient or continuing responsibility for his case. I beg to move.
9.45 pm
Baroness Neuberger: I support the amendment. For many of us, the key point is that one of the people concerned has to be independent: someone who has not seen the patient before or been involved in the case. We support that point very strongly.
Baroness Royall of Blaisdon: Amendment No. 24, in conjunction with Amendment No. 23, would remove subsections (3) to (7) of Section 12 of the Act and replace them with a regulation-making power. Section 12 concerns the two medical recommendations that must accompany an application for a patient’s admission under the Act. An application for admission is made by an approved social worker. Subsections (3) to (7) of Section 12 set out circumstances in which a doctor may or may not provide one of the two medical recommendations that accompany the AMHP’s
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The amendment would replace these provisions with the power to make regulations saying when a doctor may not provide the medical recommendation accompanying the application and when an approved mental health professional may not make the application. In particular, the amendment would allow the regulations to specify when a doctor or an AMHP may not act due to a conflict of interest, when they must have had professional involvement with the patient and when they must not, and when these requirements may be relaxed if they would result in delay involving risk to the patient or others.
We acknowledge that if we were conducting a complete overhaul and replacement of the Act there might be many matters of detail, such as these, that we would wish to adjust. But as the Committee will know, we have deliberately moved away from a comprehensive replacement of the Act to one which concentrates on the most significant and necessary amendments. We are reluctant, therefore, to make changes that fall into the category of desirable but rather less than essential.
This is a matter not just of the drafting of the Bill but also of its implementation, which will inevitably require considerable effort, especially if we are to bring it into force expeditiously. It will also require practitioners and others to learn and to become familiar with new rules and practices. Naturally, we are keen to focus their efforts and those of the department on key changes. However, I have heard the arguments made. We recognise that subsections (3) to (7) of Section 12 are complex provisions and that placing them in secondary legislation would allow more flexibility to ensure provision keeps pace with changes in practice over time. Given that, I would be happy to take the amendment away and consider whether it would be appropriate to come back to your Lordships with proposals that take account of these issues.
Earl Howe: I am very grateful to the noble Baroness for that helpful reply. I accept her offer with alacrity. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Approved mental health professionals]:
Baroness Barker moved Amendment No. 25:
(e) the making of arrangements for the deployment, supervision and support of persons approved.”The noble Baroness said: One of the many joys of being a member of the Joint Committee was to watch my noble friend Lord Carlile as he chaired a very disparate and feisty bunch of people. He took them, in a masterful way, through some extremely complex
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We did so for two reasons. One was that we believed that it was important that the distinct traditions of social work, as opposed to the disciplines of health, formed an additional and sometimes second opinion in the health and social care treatment of an individual. The other reason was that, because we come from social care backgrounds, we appreciated the importance of the involvement of people from different organisations. Different organisations have different cultures, practices and policies. We saw the importance of maintaining those two different perspectives on decisions about the health and social care of people with mental health problems.
It is for that reason that I have been happy to put my name to this amendment. The Bill allows the Secretary of State to give directions to local authorities about the making of appropriate contractual and management arrangements for approved mental health professionals. AMHPs—I have not quite got the acronym slipping off the tongue, as they are not yet established—unlike approved social workers, need not be employees of a local authority. They could be free agents; they could come from voluntary organisations. That may be a good and advisable thing. All that is necessary is that there should be directions on their training and approval. Thereafter all the operational arrangements about these subcontractors are left open, therefore they could be employees or have a contractual agreement with the health trust. In my view—and I imagine it would be the view of Mr Hinchliffe were he still a Member of Parliament—that does not maintain the necessary distance from the decision-making of the health trust which would be responsible for a person’s treatment.
For that reason—it is not an unfounded reason, given the overall move towards joint health and social care bodies—there could be an important safeguard for patients where somebody from a distinctly different organisation comes in and on occasion can see something that is blindingly obvious but that had been completely overlooked by people working in the particular culture of health. I hope the Government may address this point, perhaps not by means of my amendment but by tweaking the Bill, just to ensure that that small but important safeguard is there, particularly where people’s social care needs are met in the community. I beg to move.
Baroness Royall of Blaisdon: Listening to the intervention of the noble Baroness, I wished I had been a member of that Joint Committee too under the excellent chairmanship of the noble Lord.
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Unlike approved social workers (ASWs), the new approved mental health professionals (AMHPs)—they just trip of the tongue—will not have to be employed by a local social services authority (LSSA) when carrying out their functions. I am aware that the concern expressed by the noble Baroness is shared by some existing ASWs and their representatives, and they believe that this will lead to situations in which arrangements between AMHPs, their employer and the LSSA are not satisfactory However, I do not think that we have to tackle this important issue through legislation.
In opening up the role of the ASW to a wider group of professionals, we intend to bring the workforce in line with more modern ways of working. That includes allowing employers and other organisations the flexibility to develop innovative ways of co-operating to ensure that the right people are in the right jobs, with the right competencies to produce the best outcome for patients with mental disorders. Of course, it is important that LSSAs make appropriate arrangements for the deployment, supervision and support of the AMHPs, but, if we were to prescribe that in directions, we would reduce the opportunity for the arrangements to fit with local practice and we would restrict innovation and development.
I agree that implementation details need to be structured. We do not want to leave trusts and LSSAs floundering to find solutions unassisted, so we will be convening working groups of relevant stakeholders to develop high-quality substantive employer guidance. The guidance will be developed by the employers and practitioners for the employers and practitioners, so it will be very much hands-on guidance. We will address their concerns and provide, instead of one rigid structure, options for carrying out the necessary arrangements. We will also provide examples of good practice and templates for important things such as contracts between trust-employed AMHPs and LSSAs on behalf of which they will be acting. Similarly, in Wales, appropriate guidance will be developed taking account of the views of Welsh stakeholders.
I believe that the guidance, which will be amendable as new processes are developed and new practice comes to light, will be a much more dynamic and therefore helpful way of assisting organisations and professionals to put in place suitable and reliable arrangements to carry out their statutory functions.
Baroness Barker: As I expected, the noble Baroness went some way to address my fears, but she did not do so entirely. I still think that another outcome may be possible, that of a CSSR—a council with social services responsibility—contracting with an NHS trust to provide this service. It would be simple to do that without prescribing in any great detail where AMHPs should come from. It would be simple to write it into the legislation that they could not come from the organisation that provides the compulsory care.
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I shall consider what the noble Baroness has said, and I may return to the matter at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe moved Amendment No. 26:
“CHAPTER 2A Children and young people (a) capable of expressing his wishes, and (b) requires treatment for mental disorder. (a) for him to be admitted to hospital and remain there and be treated for mental disorder, or (b) otherwise for him to be treated for mental disorder,and he may be so admitted, so remain and be so treated, or be so treated, in pursuance of the arrangements, even though there are one or more persons who have parental responsibility for him.
(5) The patient’s refusal to consent or resistance may not be overridden by the giving of consent by a person who has parental responsibility for him.
(6) References in this section to the patient being admitted to hospital and remaining there and being treated for mental disorder, or being treated for mental disorder, are references to his being admitted to hospital and remaining there and being so treated, or being so treated, in accordance with any of the provisions of this Act.””
The noble Earl said: This brings us to the way in which the Bill impacts on patients who are children. There is a serious contradiction in the law as it stands in relation to children receiving treatment for mental illness. A young person who is deemed to be competent can consent to being admitted to hospital and can consent to treatment, but, if they refuse admission to hospital or refuse treatment, they can have their decision overridden by their parents under the provisions of the Family Law Reform Act 1969. In other words, a child can be compelled to receive treatment against his or her will despite being deemed competent to make a decision for himself or herself.
I am aware from Young Minds that it knows of cases where parental consent has been used to admit to hospital 16 and 17 year-olds who have not consented to treatment. Young people who are admitted in that way have no access to the protective features of the Mental Health Act. That simply cannot be right or just. I like to hope that the Minister will be in agreement with me. Clause 202(5) of the 2004 draft Mental Health Bill stated that, for 16 and 17 year-olds,
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“The patient’s refusal to consent or resistance may not be overridden by the giving of consent by a person who has parental responsibility for him”.
That was encouraging, but it is disappointing that the provision was not carried over into the Bill now before us.
I should tell the Minister that, anecdotally, there is a huge amount of confusion in the minds of some practitioners about whether to use the Mental Health Act or parental consent to override the young person’s wishes, when faced with a refusal from a child, either to go to hospital or to have treatment. Again, that cannot be at all satisfactory. Parents are often in the dark about what it may be best to do for their child and can agree to treatment for him or her simply on the basis that a doctor is recommending it. It is completely invidious to put parents and children in that position in the first place.
Being a 16 or 17 year-old and having your wishes overwritten by your parents when you are adamantly against a particular treatment can severely compromise the parent/child relationship. The amendment would ensure that a young person was properly assessed under the Act, to see if it is necessary to detain him or her. He would then have the protection of that process: visits from the Mental Health Act Commission; legal representation at tribunal; and the review process within the tribunal. There would be no question of the parents feeling compromised, because they would have the assurance and knowledge that the care plan suggested was necessary and in the child’s best interests. I very much hope that the Minister will consider the amendment favourably. I beg to move.
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Lord Williamson of Horton: I support the amendment proposed by the noble Earl, Lord Howe. As he stated, 16 and 17 year-olds deemed competent can, currently, consent to admission to hospital and treatment. If they refuse, they can be admitted by parental authority under the Family Law Reform Act 1969, producing the rather anomalous situation to which the noble Earl referred.
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