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As I have explained, the commission will have significantly greater powers to intervene directly with NHS providers than is currently the case, because it will fall within the ambit of the registration regime. It will therefore be able to apply conditions to registration, issue warnings or penalty notices and, in serious cases, suspend or cancel registration. I have also set out that there is nothing preventing the commission, as part of its duty to keep the Secretary of State informed under Clause 49, from recommending that the Secretary of State takes particular measures if it feels that that is necessary. I therefore believe that the powers in the Bill closely match what is being proposed in this amendment. However, in line with our intentions to create a more intelligent regulatory environment, streamline the system for providers and ensure that issues are dealt

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with where they arise rather than centrally, the commission must also act in the wider context of NHS performance management.

I have described the assurance framework we are putting in place for achieving world-class commissioning to ensure that PCTs are effective and well supported in this aspect of their work, and the emphasis that this puts on the role of the SHAs in strengthening performance management in the NHS. Where the commission takes action in relation to a breach of registration requirements, it is required under Clause 35 to notify the relevant PCT and SHA so that it can take action to prevent the issue escalating. As discussed, we would also expect it to take account of the results of periodic reviews if they give cause for concern. I believe that these strategies will help to ensure that services improve locally and will be much more effective than intervention from the centre.

I hope that that satisfactorily explains why we do not believe that the clause proposed by the noble Earl is necessary and that, therefore, he will withdraw his amendment.

Earl Howe: I thank the Minister for her reply. It is reassuring to hear that the interpretation to be placed on Clause 49 is consonant with the intention behind the amendment; namely, that that clause confers a duty on the commission to keep the Secretary of State informed and a power to advise the Secretary of State on matters that it wishes to bring to his notice. I hope that that will fulfil the same objectives as I have outlined. I shall study the Minister’s reply and, for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 46 and 47 agreed to.

Clause 48 [Transfer and amendment of functions under Mental Health Act 1983]:

[Amendment No. 93 not moved.]

Baroness Murphy moved Amendment No. 94:

The noble Baroness said: We return to concerns that have been expressed by the Mental Health Act Commission and I am joined in these amendments by the noble Lord, Lord Patel of Bradford, who is unable to be here. These exploratory amendments seek reassurance about how the CQC will discharge its special functions in relation to detained provisions. Amendments Nos. 94 and 96 would insert a requirement for visiting and interviewing patients in private, as required in Schedule 3, to be carried out sufficiently regularly to ensure that patients’ rights and welfare “are safeguarded and promoted”.

Amendment No. 97 imposes a requirement that those who do specific visiting in relation to the implementation of the Mental Health Act, and undertake a review of those powers in relation to

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individuals, should have special training and expertise in doing so. I want to stress that particular point—that the Mental Health Act Commission is, as noble Lords know from previous debates, very supportive of service users and carers for service users being involved in general visiting and inspecting of individuals’ welfare. However, when it comes to visiting in private, expertise is required. It is not always easy to recruit that expertise; when the Mental Health Act Commission was first established, it was actually quite difficult to persuade doctors and lawyers that they should be involved in this work. It was difficult to get the quality of person involved in this day-to-day commissioner type of work.

Amendment No. 95 introduces a new category of patients to those who must receive regular visits from the commission. These patients are detained under the Mental Capacity Act, so dear to the hearts of those who sat through the Bournewood gap debates in the Mental Health (Amendment) Act 1994. This would give rights under the new commission to visit this group of patients. Infringements of the liberty of these patients under the current proposals for their detention mean that they must fall within the optional protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the Government have signed up. The 2006 protocol establishes the international inspection system for places of detention. The protocol’s objective is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty. Article 1 describes the importance of preventive visiting. Those detained under the Mental Capacity Act who lose their liberty fall clearly within its remit.

It is not sufficient to leave vague in the schedules what degree of visiting is to be undertaken or what regularity must be achieved. This is frankly an area which light-touch regulation will do nothing to assist. It is possible to collect a mammoth amount of information and lots of data. We know well, for example, that self-reported standards reported to the Healthcare Commission about dignity and hospitals and so on are often fictitious and do not relate clearly to what is really happening on the ground. It is simply not possible to risk that with patients detained under the Mental Capacity Act or the Mental Health Act.

You need to have trained specialists and not to leave this to the whim of the future CQC. Whatever degree of importance they give this task at the beginning, we need it established in the Bill that mental health wards are not like other wards and that people in them are at greater risk. We know that these wards are often very tough, violent places, with excessive noise, fear and sexual abuse. Poor ventilation, cramped conditions and a dirty environment often add to the problems. A lot of the wards are run at 100 per cent occupancy—the least risk, of course, being that someone will leave. I do not want to leave to chance the regularity and style of the visiting activity. We need to be clear about how we discharge functions of protection under the Mental Capacity Act for new Bournewood patients. I beg to move.

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7.15 pm

Baroness Barker: I support the noble Baroness, Lady Murphy. I would like to pick her up on a couple of points in order to support her argument. Not everyone who finds themselves in the Bournewood gap would call themselves a patient, nor would they be recognised as a patient. For those who did not sit all through the Mental Capacity Act—one of the best pieces of legislation to go through this House in recent years—I will say that people who are detained under Bournewood are in residential care homes; they are not all in mental health wards. That is my point and that is why I believe that the noble Baroness, Lady Murphy, is absolutely right to ask for more explicit statements and more clarity in the Bill. If we do not have that, we shall be guilty of overlooking people who find themselves in social care at the expense of others—in this case not acute care, but mental health care. I believe it is worth making that point.

Baroness Thornton: Amendments Nos. 94 to 97 relate to the visits that the Care Quality Commission and Welsh Ministers will be required to carry out for the purpose of monitoring the application of the Mental Health Act in England and Wales respectively. There is no doubt about the importance that we attach to these aspects of the commission’s work. On numerous occasions in previous debates I have stressed how important it is that the commission has the skills and expertise required to carry out the functions that it will inherit from the MHAC, including appropriate visiting arrangements. At Second Reading in another place, my right honourable friend the Secretary of State for Health also paid tribute to the emphasis that the MHAC places on its visiting programme, and signalled his expectation that the new commission will continue with that approach.

At Second Reading, my noble friend Lord Darzi, the Minister for health, stressed how important it is that the commission has the skills and expertise to carry this out. That proportionate regulation does not mean adopting a tick-box mentality; it means assessing the risks of individual providers and the services they provide and prioritising inspection activities accordingly.

Both the commission and the Welsh Ministers will be obliged to conduct these visits. Both will also be required to demonstrate how they have fulfilled those obligations in their annual reports. In addition, Clause 2 requires the commission to have regard to the need to safeguard and promote the rights and welfare of vulnerable adults when carrying out its functions, which would include its investigative and visiting functions under the Mental Health Act. So I believe that the Bill provides the safeguard intended by Amendments Nos. 94 and 96.

I turn now to Amendment No. 95, which would extend the monitoring remit of the commission and Welsh Ministers under the Mental Health Act to apply to the deprivation of liberty safeguards under the Mental Capacity Act 2005. The Mental Capacity Act 2005 provides a statutory framework for acting and making decisions on behalf of individuals who

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lack the mental capacity to do so for themselves. The Government recently amended the Act, through the Mental Health Act 2007, to make it lawful to deprive such an individual of their liberty in a care home or hospital, if it is in their best interests. The Act also provides detailed safeguards to ensure that such a deprivation of liberty is independently authorised. We propose to make regulations in due course to give the Care Quality Commission the responsibility to monitor the operation of these safeguards in England.

In Wales, I understand the intention is that the monitoring of the deprivation of liberty safeguards in hospitals is to be undertaken by the Healthcare Inspectorate Wales, the body that will also monitor Mental Health Act functions. For care homes and local authorities, monitoring of the safeguards will be undertaken in Wales by the Care and Social Services Inspectorate Wales.

Amendment No. 97 focuses on the visits which are fundamental for the monitoring of the application of both the Mental Health Act 1983 and the Mental Capacity Act 2005. Given the commission’s duty to have regard to the need to safeguard the rights of children and vulnerable adults, I agree it will be very important that the training provided to those carrying out the visits ensures that they have a good understanding of civil, legal and human rights. It will ultimately be the duty of the new commission, as it is for the current commissions, to determine what skills and experience are required by its staff to fulfil its obligations, as it will for the Welsh Ministers. However, to ensure that the transition is as smooth as possible and that no expertise is lost, we are in the process of developing a human resources strategy for the new commission. A similar approach is being adopted in Wales.

It is clear that the commission will also need to consider its functions in the context of the Human Rights Act, including its responsibilities as a public authority under that Act. Welsh Ministers, too, will have to act in accordance with the conventions enshrined in the Human Rights Act by virtue of the Government of Wales Act 2006.

It is clear from the MHAC’s success in incorporating a human rights framework into its work that no additional statutory responsibility is necessary to accomplish this. The Joint Committee on Human Rights said that the Healthcare Commission and CSCI could learn from this work—I agree with that. I would expect the new commission to learn from and continue this approach.

I hope that I have been able to demonstrate that the commission will have due regard to these functions. While understanding noble Lords’ concerns, I believe that we must trust the ability of the commission as an independent organisation to fulfil its statutory obligations properly. I therefore ask the noble Baroness to withdraw the amendment.

Baroness Murphy: I thank the Minister for that helpful reply, by which I feel in part reassured. A much less specific power is being suggested for the Care Quality Commission in respect of monitoring powers under the Mental Capacity Act for Bournewood patients,

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but it is certainly an improvement on the bare bones of what we have at the moment. I shall read in detail the Minister’s response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 48 agreed to.

Schedule 3 [Amendments of Mental Health Act 1983]:

[Amendments Nos. 95 to 97 not moved.]

Schedule 3 agreed to.

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Clause 49 [Information and advice]:

[Amendments Nos. 98 to 101 not moved.]

Clause 49 agreed to.

Baroness Thornton: This may be a convenient moment for the Committee to adjourn until Wednesday at 3.45 pm.

The Deputy Chairman of Committees (Baroness Gibson of Market Rasen): The Committee stands adjourned until Wednesday 14 May at 3.45 pm.

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