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The Mental Health Act Commission rightly operates entirely differently from the other two inspectorates. It relies in a unique way upon visits to individual detained patients to check that services are being properly provided under the law. But the new regulator will also need to consider safeguarding those patients who, from 1 October 2008, will be subject to community treatment orders. There is a whole raft of new challenges that have not been faced previously. Also the new provisions of the Mental Capacity Act are another

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raft of new requirements and demands. How on earth are the interests and needs of these different groups of very vulnerable people to be assessed alongside all the other regulatory responsibilities of health and social care providers? They will need to be dealt with in an entirely different way.

The Healthcare Commission adopted an efficient self-assessment system with visits limited to trusts that are not coming up to scratch and a number of others chosen on a random basis. But this process simply will not be suitable for mental health. One of the benefits of the unified CQC regulator will be the streamlining of the work of the three organisations, as appropriate, and the reduction of bureaucracy. As Members of the Committee know, I am one of those who feels that, in relation to health, the weight of all these regulators, plus that of about 50 others, has been pretty disastrous and incredibly time and resource-wasting.

There will be potential for streamlining in health and social care. For any individual patients, health and social care are increasingly intertwined, certainly in my world. People move all the time between health and social care and back again, and at any one time they can be using both. An important role for the new regulator will be the monitoring and inspection of care pathways across and between health and social care. That is one of the reasons why in the future there will be a great potential benefit in bringing these areas together. That is the main reason why I do not support Amendment No. 25. There will be a value in bringing these areas together. You do not want to create silos where the potential benefits of the regulator will not be experienced.

I am not arguing that all three parts of the new body should simply carry on as before; that would make nonsense of the reform. Equally, though, it will be important to be sensitive to the fact that the three existing bodies are dealing with very different issues and very different people, as well as different environments, from hospitals to domestic homes to individuals in the community. Only through something like an expert mental health sub-committee will the new body find the right balance between the integration of functions and adequate protection for people with severe and enduring mental health problems whether they are in the community or in hospitals.

The expert committee could make skilled judgments about the extent to which it would be reasonable to adopt a more selective approach to visiting detained patients, those in the community and those under the Mental Capacity Act. It would be dangerous for those sorts of decisions to be made by a general commission comprised of people with very different kinds of experience but not a depth of professional knowledge about mental health.

It is worth reiterating that we have a precedent for this approach in the Equality Act 2006, which included provision for a disability committee within the Commission for Equality and Human Rights. The committee was included in the Bill to ensure that the EHRT was able to respond effectively to the distinctiveness of disability without that specific perspective affecting its ability to deliver other strands of its remit.

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I hope that the Minister will recognise that there is a similar case for a mental health sub-committee within the new Care Quality Commission.

Lord Low of Dalston: I have put my name to this amendment and would like to speak in support of it. It has been widely recognised in our discussions that health and social care are very different. Sir Ian Kennedy made that point in his evidence to the Public Bill Committee in another place when he said that the health and social care sectors were significantly different. So different models of regulation will remain appropriate despite the new legislation. Dominating the healthcare sector are large, publicly funded providers with many highly technical services. The social care sector comprises 26,000, mostly smaller, privately funded providers.

[The Sitting was suspended for a Division in the House from 6.07 to 6.17 pm.]

Lord Low of Dalston: I had just got going. I was quoting from Sir Ian Kennedy when he spoke to the Public Bill Committee in another place and emphasised the differences between health and social care. I had not got very far, so perhaps I may go back to the beginning of what he had to say:

One can summarise these differences in the regulatory methodology employed by health and social care by saying that the regulation of healthcare facilities proceeds much more by looking at large datasets kept by these mostly large organisations to see where the risks are to be found, and in the skills and experience required in the two sectors. While almost everyone has some experience of health services, that is not the case for social care. There are also complex inter-relationships between social care provision and other services, including extra care housing, employment services and benefits. A whole different body of expertise is required for the regulation of social care when compared with the health sector.

These are generalisations and obviously I am not trying to say that health inspection does not rely on visits to premises and facilities at all or that the examination of data is not appropriate in social care regulation, but what I have said serves to characterise correctly, I think, a general distinction that exists between the two kinds of regulation.

Baroness Meacher: The points that the noble Lord has made relate to mental health as well as to social care. For people with mental health problems, you have to look at the housing, the benefits and all the other aspects of their care, although one can maybe separate off acute health from mental health and social care. One needs to be careful about that.

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Lord Low of Dalston: I am happy to acknowledge that. Forgive me for shorthanding my presentation. The noble Baroness’s point is obviously correct with regard to mental health, and I warmly embrace it. The Committee can see where I am going: I am arguing for specialisation in the commission. I would take no persuading at all that there needs to be specialisation in the regulation of services for those with mental health problems, and indeed a structure to reflect that. The noble Lord, Lord Lipsey, has acknowledged that in moving the amendment. The points in relation to mental health are going to have to be taken care of as we go through the Bill.

Worries have been expressed that social care will be the poor relation of health in the new dispensation that the Bill seeks to set up. There are two grounds for feeling that those worries have some basis. First, there was the specification of the job in the advertisement for the chair that was put out, which no one has sought to deny focused predominantly on health. Then there are the priorities announced for the new body, the Care Quality Commission; the advertisement says that the first priority for the new commission will be dealing with healthcare-acquired infections. I am not seeking to say that that is not important, but saying that it is the first priority has certainly conveyed the impression in the social care world that concerns of social care are being downplayed and deprioritised in the way that the new body is being conceived.

Worries have been expressed not just by CSCI but widely across the voluntary sector. Several significant voluntary organisations, including Carers UK, Help the Aged, Age Concern, Mind, Mencap, RADAR and the Alzheimer’s Society, wrote a letter to the Guardian. I cannot think why the RNIB was not there, but then perhaps I would have had to declare an interest. This impressive raft of organisations expressed their serious concern, saying that:

Those points were made forcefully in the debates on the Bill in another place that preceded the debates in this House. The Minister of Health acknowledged their force when he said,

My contention is that it has not been emphasised. The Bill, in relation to the structures that have been put in place to reflect parity between health and social care, has not altered in one particular. Amendment No. 25 seeks to do that. I have no problem whatever in embracing Amendment No. 93, tabled by my noble friend Lady Meacher, as well. These amendments seek to put new structures in place to reflect fully the parity of importance which the Minister himself has acknowledged needs to be given to social care.

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CSCI is on record as saying that it would like a social care commissioner on the board, but it is a contention of the noble Lord, Lord Lipsey, and myself that that is not enough. We must all have had the experience of being a lone representative of some constituency or other on a board of anywhere between 10 and 20 people. You are a lone voice. It is very difficult to get your point of view across in a mindset which may come from somewhere completely alien, let alone succeed in winning the points that you are trying to make. It is our contention that we need a commission, not just a commissioner.

Of course, there should be a social care commissioner on the board and a commissioner with responsibility for mental health as well, no doubt. Commissioners on the board should be able to reflect the views and the expertise of the sub-commissions. If such commissioners on the board are to be able to operate effectively, it is essential that they have the support of their commission. That will give them the added weight that they will need and it will guarantee that the board will have to take account of the perspectives being generated by the sub-commissions. If you are a lone commissioner on a larger body, you can have your say, but it is all too easy for the rest of the commissioners to pass on it. If there is a sub-commission, it will have minutes; it will put papers to the main commission; and account will have to be taken of them—they cannot just be passed over. That is the case for a commission and not just a commissioner.

My noble friend Lady Meacher has mentioned the danger of working in silos. That point has been made a number of times in our debates already, but I am not worried about that. Of course, the social care commission would be working in a silo if it did all the work of the regulator in relation to social care, but that is not how I see it functioning at all. The commission would report to the main board, which would have responsibility, not just for taking account of and implementing the views generated by the commission, but for taking an overview and integrating the perspectives of the different sub-commissions. I do not entertain any worry about silos, but the arguments advanced for having a commission, and for saying that a lone commissioner is not enough, are overwhelming. I support the amendment.

6.30 pm

Baroness Howarth of Breckland: I find myself in difficulty at this moment. In principle, I would very much like to support Amendment No. 25, but I have some real difficulties with it. I shall take rather more moments than I have been doing to work through why.

In my Second Reading speech I said that the rationalisation of regulation is not necessarily rational regulation. I say that again, because we must go back to the first principle that the Bill is deeply flawed in its timing and thinking. However, we have the Bill and, in having it, we must move forward with it. One of the dangers we now face is that, in moving forward, we are trying to maintain the status quo rather than moving forward in a new way.

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To tackle one or two side issues before going on to where we need to be, I say to my noble friend Lady Murphy—this is a terrible thing, I have done it again. It is my noble friend Lady Meacher. They know that I am mad. I apologise to my noble friend. In her speech she talked about pathways of care, which are terribly important. Those pathways run through whole social strata. Young disabled people and young people with learning difficulties would certainly not consider going through those sorts of pathways of care, because they would consider themselves not sick but in need of other kinds of services. Just as people with mental illness do not see themselves as being in need of the same acute service, there are serious difficulties with some other groups. I therefore do not accept that mental health is unique. All the services have unique positions.

Like the noble Lord, Lord Lipsey, and my noble friend Lord Low—and although they both begin with “L” I have managed to get it right—I think that we must have movement forward. If you are to look at the governance of this body—that is, good governance—you must be able to set it up in a way that allows it to move forward. The Bill is flawed because we have not had a more fundamental review of services. We have all of us become continually confused in this debate between service delivery and the regulation of services. We are not really talking about service delivery, but regulation. However, regulation must follow service delivery. If we had had that review, we would have been able to regulate for the 21st century. We are currently, to use my noble friend Lord Low’s phrase, going through yesterday’s policy agenda. With that review, we would have been able to look at services as they should be, and the pathways as they should be for all service users, and have them reformed.

I have expressed time and again my huge concern that social care will get lost in health services. We have example after example of what is happening in social care now. Only yesterday, I was talking to a provider of large nursing home services who wished to provide those services as a home, a care facility, but perpetually found himself following health-based regulations. He almost felt that he should have a matron in a small hospital rather than a place where people who happened to be frail were being cared for. That is one example of the kind of issue that we will face if we do not ensure that social care has a fairly strong focus.

I cannot support the amendment because, in terms of good governance, an organisation must be able to think through the structure that will meet the requirements. If we had clear objectives in the Bill—I go back to that—the governance would therefore follow them and there would be greater clarity in the balance between social care and healthcare. I am therefore deeply sorry that I cannot support the amendments.

Baroness Murphy: I rise to speak to Amendment No. 93 and shall put my medical historian hat on for a moment. I am not entirely sure that the Government understand the implications of the abolition of the Mental Health Act Commission and its place in history, and that is what has led me to support the proposal for a special committee.

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Between 1840 and 2008, apart from one 20-year period, to which I shall return, a national named authority has been responsible for the inspection and visiting of individuals detained in mental health hospitals. The seventh Earl of Shaftesbury got permission to extend the metropolitan Lunacy Commission on a national basis. The Lunacy Commission became the Board of Control, which, noble Lords will remember, was abandoned in 1959. Apart from the 20-year period until 1983, during which time there was constant pressure on the Government from mental health professionals to recreate a mental health commission, there has always been a named statutory authority.

During that 20-year period, there were several famous occurrences. I do not think that anyone around this table will need to be reminded of the names of Ely, Whittingham, Fairfield and Normansfield hospitals. The inquiries surrounding those hospitals began around 1962 and carried on for the next decade. The Government tried very hard to address some of the problems with the creation of the Health Advisory Service, which was a very good thing but never exercised visitatorial and inspectorial functions. Although I have no direct evidence that there is any connection between the demise of the visitatorial and inspectorial functions of a specialist mental health commission, it is quite possible that there is a relationship between the two.

I speak as a former vice-chair of the Mental Health Act Commission over many years. I was there during some of its early, most difficult years when it was trying to work out how to work effectively and efficiently, and it was not always easy. When you first join the commission, one of the first things to strike you, as I am sure other noble Lords who have been on the commission will acknowledge, is the sheer complexity of mental health legislation. Those of us who toiled in the mines of the Mental Health Act 2007 will remember the extraordinary complexities and the difficulties that mental health services have in keeping up to date and implementing the right legislation. There are constant case law reviews being thrown at you that you have to take account of, and you have to relearn while continuing your professional development and so on. Throwing away a national focus without substituting something that can provide an alternative seems utterly foolhardy. Therefore, when creating a specialist committee with specialist functions for overseeing the implementation of the Mental Health Act—particularly when we have just changed the Act to make it even more complex, involving community patients and so on—we would be foolish not to try to meet those anxieties.

I take the point that many patients in our hospitals are as vulnerable as the detained and probably also need visiting functions—that certainly includes many people in social care units. In fact, the vast majority of people with mental health problems are in care homes, as they have dementia. However, the reality is that those who come under mental health provisions are especially vulnerable, and we owe it to them to create a system in which there will be a national body within the Care Quality Commission to focus on these special issues. Therefore, I strongly support Amendment No. 93.

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With regard to Amendment No. 25, I understand the need, or urge, to look at care pathways and integrated care systems in which health and social care work together, and I understand why we would not wish to constrain the new Care Quality Commission.

The Deputy Chairman of Committees (Lord Geddes): A Division has been called in the Chamber. The Grand Committee stands adjourned until 10 minutes to seven.

[The Sitting was suspended for a Division in the House from 6.40 to 6.50 pm.]

The Deputy Chairman of Committees: The Committee can now resume. I apologise to the noble Baroness for interrupting her so rudely, but rules are rules.

Baroness Murphy: Thank you. I was nearly at the end of my diatribe about my view that we must have at least a national committee with responsibility for visiting and overseeing the implementation of the Mental Health Act.

I will be raising this issue again under different amendments later in Committee, but I would like to remind noble Lords that the Optional Protocol to the Convention Against Torture, OPCAT, makes it clear that where a patient or anyone else is detained, there must be a truly independent body of experts visiting and monitoring their condition. Mental health patients clearly fall under that protocol; the Mental Health Act Commission is bound by it and the Government have signed up to it.

As was said on an earlier amendment, this also suggests that we need rather more independence than is perhaps discharged by the current wording with regard to the relationship between the commission and the Secretary of State. It is clear that we must have a national profile for mental health legislation and its implementation, and that the care of patients under that legislation should be a national function. I therefore strongly support Amendment No. 25.

Baroness Tonge: I support Amendments Nos. 25 and 93. In the event of the Bill being passed, I should like to see either of the amendments on the face of the Bill. No doubt the Committee will be relieved to hear that my remarks can also be applied to Clause 2 stand part and that I do not intend to speak when we get to that part of the proceedings. Amendment No. 25 goes a little way towards recognising that this reorganisation of the regulatory bodies is a bad thing—I am quite sure of that. We have heard from other noble Lords that social services will suffer and that certainly mental health services will suffer.

I appreciate the Government’s attempts to reduce the number of quangos associated with the NHS. The other day I was sent a list of them; it is quite big. There are 65 quangos associated with the NHS. Twenty have been abolished in the last couple of years so there must have been many more than 25. The Government are doing well. I agree that there are far too many, but if these commissions are such a good

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idea and too many quangos are such a bad idea, why on earth did the Government not do what the Liberal Democrats suggested three years ago, which was to set up a commission to cover all three services? I cannot understand why the Government have done it this way.

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