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Amendment, by leave, withdrawn.

Earl Howe moved Amendment No. 33:

(a) for all references to “applicant” substitute “NHS trust responsible for hospital provision”; and (b) for “convey him to the hospital” substitute “convey him to the hospital identified by the trust as being able to receive him”.”

The noble Earl said: This amendment brings us back to the process involved in admitting a mental health patient to hospital and focuses on a real difficulty that is often encountered. Under the present Act, the approved social worker is personally responsible for the custody and transporting of the patient, which of course carries with it a

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responsibility for the patient’s safety and the safety of anyone else with whom they come into contact until they are finally accepted on to a hospital ward. However, quite often there are difficulties in getting prompt or adequate assistance from police and ambulance staff. Not uncommonly, beds are scarce, with offers of beds being withdrawn when the patient is brought to the hospital. In those sorts of situation, the ASW is extremely exposed, both personally and legally.

The converse of this is that, because trusts do not become legally responsible for the patient until he or she is actually received on to a ward, there is little pressure or incentive on management to resolve the difficulties. The amendment would transfer legal responsibility from the approved mental health professional to the trust from the moment the application is signed. It would also provide for the application to be made to the trust rather than to a named hospital, which would prevent the application from being invalidated if it was necessary to admit the patient to a hospital other than the one originally planned. It is perhaps worth adding that this need not affect the way in which an admission is carried out. The trust could appoint the approved mental health professional as its agent and then authorise him or her to convey under Section 6(1), but the key point is that the trust would remain ultimately responsible in law. I beg to move.

Baroness Meacher: As the chairman of a mental health trust, I am very aware of the difficult position in which approved social workers in this process of detention find themselves under the Mental Health Act. I endorse the comments made by the noble Earl, Lord Howe, many of which I would have made but now will not do so.

One of the main issues is that police and ambulance personnel do not have unlimited time. Police officers are often under pressure to move on to another commitment, yet their presence is absolutely essential in most of these cases, if they are called at all, to ensure the safety of the patient and of the professionals involved.

As the noble Earl, Lord Howe, said—the Mental Health Alliance has made this point strongly, too—beds are incredibly scarce these days. We are increasingly facing the situation where all this work is being done—two medical recommendations are obtained, and the doctors, ambulance staff and police are there—but no bed is available. It is not difficult to imagine the position of the approved social worker, fairly junior in the hierarchy, with this undoubtedly very disturbed patient in an ambulance, kicking around and making life difficult for everybody through no fault of their own, having nowhere to go. That is the position that we are faced with.

Amendment No. 33A makes some constructive proposals on the role of the primary care trust. However, nothing is ever as straightforward as it seems. In speaking to these amendments, I make it clear that, particularly in the new world of foundation trusts, the question of a trust’s financial responsibility for a patient becomes an issue. If responsibility is

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transferred from an ASW to a trust, as I believe it should be, it will need to be made very clear, probably in regulations, that the relevant commissioning bodies—currently primary care trusts, but we do not know what they will be in the future—will have to be responsible for commissioning services to cover patients detained by one trust when in fact they are the responsibility of another.

Let me give an example. A patient from Cumbria may come down to London for the weekend and find themselves in an A&E department and placed under section. It may not be feasible to transfer that person back to Cumbria immediately. The local trust will need to be reimbursed with the cost of detaining the patient—if that is what happens—until the transfer can be arranged.

I do not want to take up more of the Committee’s time. I say only that I strongly support the principle of placing with a trust the responsibility for, in particular, the custody of someone in the difficult position of having been detained. However, I want to make it clear that I understand that that is not entirely straightforward and that regulations would be needed to work out a method of dealing with these issues, in particular the financial ones.

5.15 pm

Baroness Gardner of Parkes: I shall speak to Amendment No. 33A. I had not intended to take part in this Bill as I consider that I know nothing about mental health and the arrangements. However, I was prevailed on by various social workers who felt that it contained gaps and that this was one of them. I undertook to support the amendment on the basis that the noble Baroness, Lady Finlay, or the noble Baroness, Lady Meacher, would take it over. I found the noble Baroness, Lady Finlay, first and she agreed to speak to it. However, she cannot be here today and has passed the responsibility to me with a heap more points that she has worked out and that I would never have known about. I am afraid that noble Lords will therefore have to listen to her comments.

I cannot see that the principle is very different from that in Amendment No. 30 tabled by the noble Earl, Lord Howe. We are both aiming at the same thing and the idea is to put the matter before the Committee for consideration. Why is the provision needed? The code of practice exhorts the relevant authorities to agree joint policies and procedures at a local level, but the degree of co-operation is variable. Even where agreements exist, they are often ineffective in practice as they are purely voluntary and tend to be overridden by other operational priorities. The amendment would put these voluntary arrangements on a statutory basis in a form capable of being monitored by the relevant performance review mechanisms.

I quote from an approved social worker:

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Despite the duty on the primary care trust to let local social service departments know where urgent cases should be taken, few perform it. This leaves users, carers, professionals and the public at risk in volatile and difficult situations with no bed available and nowhere to go with a distressed, unwell patient.

Last year, a survey by the Association of Directors of Social Services into the approved social worker service found that nearly 60 per cent of local areas reported problems with accessing police and ambulance support. Indeed, the noble Baroness, Lady Meacher, referred to that. More worryingly, a significant number reported that the more serious the case, the longer the delay might be. A current survey of approved social worker needs in London found that assessments needing tactical or firearms officers can sometimes be booked only on alternate weeks and can be cancelled at short notice.

There are many committed officers, including at senior level, in both the police and ambulance services. However, when operational procedures change, too often little thought is given to the impact on mental health. Support to mental health therefore becomes rationed to some specified times or days. Yet such delays can result in the patient deteriorating and presenting an escalating risk to others.

In some areas, the ambulance will not attend unless the police are present, occasionally even when they are not needed, leaving the approved social worker with a patient becoming increasingly agitated and distressed. One recent example was of a four-hour wait which meant that the detained person absconded and could not be found for several days. Worryingly, such delays may affect people from ethnic minorities disproportionately. Some social workers have even reported delays running into weeks from the time when a request for an assessment that needs police presence is made to the time when such an assessment has been successfully completed.

Imaginative solutions may need to be considered. For example, one mental health trust has a “total transport policy”, which includes the transporting to hospital of most patients detained under the Mental Health Act, thus avoiding delays and preventing ambulances from being tied up unnecessarily. Equally innovative policies with the police may need to be considered. Only a small number of the assessments that approved social workers undertake each year need the support of the police and an even smaller number need the response of armed units. Yet when they do it is essential for all concerned that the support is available swiftly and in a way that is appropriate to the needs of the service user, their family and public safety. Timely interventions prevent situations that place people at unnecessary risk and decrease the possibility of patients being picked up by the police because they have gone on to offend.

Conflicts between services around conveyance arise too often, leaving the approved worker trying to negotiate between the ambulance and police services. The amendment, coupled with the amendment to Section 6(1) in the names of the noble Baroness, Lady Meacher, and others, is designed to ensure that the issue is given appropriate weight and authority to

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ensure that the current problems experienced around the country are resolved as far as humanly possible. I place those facts before the Committee and it is for the Government to view the matter in the light of the comments made on the amendments and the Bill.

Baroness Royall of Blaisdon: Amendments Nos. 33 and 33A both address how local services work together to ensure patients’ safe and efficient admission to hospital, including patients requiring urgent admission. Amendment No. 33 concerns the responsibility for conveying to hospital a patient who is admitted under the Mental Health Act. The Bill leaves that responsibility with the person who made the application for the patient’s admission. That will almost always be an approved social worker or, in future, the AMHP.

Amendment No. 33 would transfer responsibility for conveying the patient to hospital from the AMHP and place it with the NHS trust or someone authorised by the trust that contains the hospital to which the AMHP has made the application for admission. Currently, a patient for whom an application has been made is the responsibility of a named individual—the ASW—until they are admitted to a hospital. The Bill places accountability with another named individual, the AMHP. However, if we place the responsibility for conveying a patient with an NHS trust, we lose that individual responsibility and I fear that it will become more likely that a patient will not be safely conveyed to hospital, although I recognise the concerns expressed by the noble Earl, Lord Howe, about the responsibility placed on the ASWs. That does not seem desirable when the system that we have now better ensures the patient’s safe passage to hospital.

Any problem with the trust’s processes that results in a failure to ensure the patient’s proper conveyance could place the patient or others at risk of harm or neglect. It is therefore essential that we ensure a robust system with clear lines of personal accountability, which is what the Bill provides for in the form of an AMHP. The skills that an AMHP brings will be well suited to the job of conveying a patient in the least distressing manner, rooted as they are in a holistic perspective of patients’ needs. AMHPs will be highly trained in their role. The AMHP attends the patient to assess them before making the application, so they are normally already with the patient and should have already established a relationship with the patient. If the responsibility for conveying the patient lies with the trust-appointed person, there may be delays in identifying that person and waiting for them to arrive.

Baroness Meacher: There is no suggestion in the amendment that there would be a change in the method or process. The AMHP, or the ASW at the moment, would still be the person responsible, and they will have the appropriate skills; there is no question about that. The problem is the availability for hours at a time of the police and ambulance services. They are not available indefinitely, so the AMHP or ASW is in an impossible position. We are

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not questioning anyone’s skills; we are pointing out the realities out there and the fact that we need someone with some power—that is, the trust—and some funding for the arrangement to work in practice, otherwise we are leaving people in a difficult position.

Baroness Royall of Blaisdon: I understand that position and will come back to it. Essentially, we believe that these are service issues which need to be addressed, and while we all want to ensure that all patients and AMHPs have the services that are necessary available to them when they need them, we believe that it is not appropriate to address those issues through legislation.

The noble Earl, Lord Howe, suggested that the trust could appoint an AMHP as an agent. But if an AMHP is given responsibility for conveying by the trust, nothing would be different from the position at present. There would be the same requirement for them to secure services, such as from the ambulance service, police service and bed manager. Good local protocols setting out how these services will co-operate will still be key.

More substantively, the Bill allows an application to be made for a patient’s admission only if there is appropriate treatment available. That is extremely important. I therefore believe it is right that if the appropriate treatment is available in a particular hospital, the application should be made to that hospital, not to any in the trust that may or may not be able to provide appropriate treatment.

The amendment is intended to address the important issue of the extent to which ASWs can rely on the co-operation of a trust in admitting a patient. I understand that a breakdown in this co-operation can result in unnecessary delays in securing a bed or an ambulance if one is needed, leading to distress for the patient and often their family, and avoidable difficulties for the ASW. The amendment seeks to address this by transferring the legal responsibility for conveying and admitting a patient to the trust. Of course I sympathise with the concerns that the amendment reflects, but I do not believe that a legal solution is the answer. It is a matter of good practice. General provisions under the National Health Service Act 1977 already require NHS bodies to co-operate with local authorities. None the less, despite this legal requirement, I acknowledge that ASWs can have problems accessing trust resources.

I hear all that noble Lords have said about the level of local delivery. It has been said before in this House that it is not appropriate to legislate centrally for local arrangements, and I agree with that view. What is needed here is better communication between trusts and local authorities and agreed protocols. It is not the Government’s place to say what these local arrangements should be. However, I will consider whether the codes of practice can be strengthened—I am sure that they can be—to make clear the duty on trusts to co-operate with AMHPs in providing an effective service for conveying and admitting patients in their area.

Amendment No. 33A would replace Section 140 of the Act, which currently provides that a primary care trust in England or a local health board in Wales

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must advise the local authority of all the hospitals that accept patients as urgent cases for the treatment of mental disorder. The amendment would replace the existing section with one that provides for a much wider-reaching duty. It provides for a duty on the PCT to work co-operatively with the police, local authorities, the ambulance service and NHS hospitals that provide in-patient services to develop and publish a protocol that covers a wide range of practice issues. It provides that such protocols must cover maximum response times for trusts, the police and ambulance services in urgent cases, arrangements for obtaining a bed and prioritising cases, conveying a patient safely to hospital, assessing urgent cases and ensuring the safety of all those involved.

The amendment describes what should be good practice. Throughout England and Wales, the police, local authorities, health authorities and trusts, including the ambulance services, have in place protocols and local agreements to address these issues. I understand that there are enormous pressures on services and that in some areas of the country there are concerns about local services co-operating effectively to ensure the safe and efficient admission of patients to hospital. Various surveys have been referred to, but, as I said in the context of Amendment No. 33, I do not think that legislation is the correct place to address these issues.

5.30 pm

While we agree that it is good practice to develop, agree and publish local protocols such as those detailed in this amendment, the code of practice already provides guidance on this matter. As the noble Baroness, Lady Gardner of Parkes, explained, the code makes it clear that authorities should have joint policies and procedures on the conveyance of patients and that health authorities, trusts and local authorities should co-operate in ensuring that professionals meet regularly to promote understanding and to address issues. It also calls on social services authorities, health authorities and chief constables to establish policies for the removal of patients to places of safety. The code of practice states that local protocols on these matters should be in place, but it does not specify the details of what the protocols should contain. The protocols must be kept up to date to reflect changes taking place, as the noble Baroness said. We believe that it is right that the details of local arrangements should be a matter for local decision, taking account of local circumstances, and that they should not be dictated by central government. We therefore do not believe it necessary to include them in statute.

The issues raised in this debate must be addressed properly to ensure that services are available. However, we do not believe that the right way to address these practice issues is through legislation. We have to change practices, but that is a matter of ensuring proper implementation. In many ways, that is a matter of changing culture so that mental health services are no longer seen as Cinderella services and so that the urgency of mental health cases is properly addressed. I ask the noble Earl to withdraw his amendment.

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Earl Howe: We are under a self-imposed time constraint, so I do not propose to reply at length. I thank noble Lords who have taken part in this debate and I thank the Minister for her reply. I wish that we could get away from the myth that the Bill has nothing to do with service issues. It seems to me that the whole of Chapter 2 relates to service issues and the expansion of professional roles. We cannot get away from the improvement of services, and I do not accept that as a valid pretext for rejecting amendment after amendment. Nevertheless, I heard what the Minister said about considering how the code of practice might be beefed up to address the problems that we all acknowledge exist in this area. I hope that she and her officials will be able to do that. Between now and the next stage of the Bill, I shall consider carefully whether this is a matter on which we shall need to return. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 33A not moved.]

Schedule 2 [Approved mental health professionals: further amendments to 1983 Act]:

Baroness Gardner of Parkes moved Amendment No. 33B:

The noble Baroness said: This amendment concerns the duty of approved mental health professionals in applications for admission or guardianship. It has two purposes. The first purpose is to guarantee the legal independence of the approved worker. That person is currently an approved social worker and under the new remit will be an approved mental health practitioner. The second purpose is to ensure that there is a duty on the local social services authority to provide an AMHP to undertake an assessment within a reasonable time.

The independence of the approved mental health professional is essential to the process of assessment. While two doctors or approved clinicians can, under the Bill, recommend admission, unless the AMHP agrees that there is no less restrictive way of providing the care or treatment needed, they can refuse to make an application and prevent compulsory admission. It is essential that AMHPs are able to make their decisions independently and free from even the slightest hint of being obligated to apply under pressure from some other body or person. They should, like the current approved social workers, be classed as an independent public body in law.

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