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This clause creates a gap through which not only Mr B will fall, but many others. It also places many services in the not-for-dividend and voluntary sector at risk of sudden withdrawal of funding, as has been pointed out by the noble Lord, Lord Patel. My own services, some of which we have raised finance to fund, will be at immediate risk. I would not be in a position to continue those services; they will not be available for people leaving detained services and therefore the care will not be available. I urge the House and the Minister to do everything necessary to retain the current certainty for Mr B and for many like him.

Lord Alderdice: My Lords, I support the amendment of the noble Lord, Lord Patel of Bradford. The Minister will know well that one of the many attractions of the Health and Social Care Bill for me is the lengths that it goes to in order to try to achieve some degree of integration between healthcare and social care, and indeed integration of various other kinds. For the most vulnerable of all patients, not only physically but mentally and socially, who are at serious risk, such integration of healthcare and social care is of enormous importance-something that I know well from my own experience.

It is surprising to me that in this clause it is as though we are going in the opposite direction. Instead of healthcare and social care being integrated, they are being separated out. I rather suspect that the noble

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Lord, Lord Adebowale, is right: while in previous clauses the criticism from the other Benches has been that too much complexity is being introduced into the system, on this occasion the attempt to simplify things may actually be the problem. It may have seemed that it would be good to get clarity and give the responsibility to one side or the other, but the care of those who are mentally disturbed to the degree that they are a risk to themselves or someone else and therefore have to be detained cannot be accomplished by either one side or the other, either healthcare or social care; they need to be working together.

I appeal to the Minister to look at this question again. I do not think anyone suspects there is any malice aforethought in this. The clause is rather complex, referring to lots of other pieces of legislation, and it may merit being looked at again in order to ensure that those who have been cared for up until now by a more integrated approach will not in any way lose out from the change that is proposed.

Lord Marks of Henley-on-Thames: My Lords, I shall speak to Amendment 237, a probing amendment concerning independent mental health advocates, in my name and that of my noble friend Lady Williams. It concerns Clause 40 of the Bill. The scheme for independent mental health advocates was introduced into the Mental Health Act 1983 by the 2007 Act, and came into force in 2009. Under the legislation, the responsibility was that of the Secretary of State, and, under the regulations, commissioning was to be job of PCTs.

Mental health advocates fulfil an important function. They act as independent advocates experienced in mental health matters to provide qualifying patients with help and advice. Qualifying patients are those who are liable to be detained, who are subject to guardianship and who are community patients, and patients can qualify in some other circumstances. The help involved can include help and advice on: the provisions of the legislation; the conditions and restrictions to which such patients can be subject; importantly, the mental treatment that they are receiving or are likely to receive; why it is being given; and their rights in connection with it. The right also involves a right to help and advice on visits and, importantly, a right for the advocate to inspect the medical records of the patient.

The point to which the amendment is directed is that, under Section 130A of the 1983 Act, subsection (7) introduces an element of discretion because regulations may make different provisions for different circumstances and cases. That may be unexceptionable as it stands, but the difficulty is that there is a concern when the Secretary of State's function is transferred to local social services authorities. The amendment raises particular concern about the position of minors, and seeks to ensure that independent mental health advocates must be made available to minors who are qualifying patients. Minors who are also mentally ill are in the worst possible position to speak for themselves and to seek help independently. Therefore, we invite the Government to respond with an indication of how, after the transfer of functions to local social service authorities under Clause 40, they intend to monitor

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the working of the independent mental health advocate provisions; and to ensure their provision, particularly to this very vulnerable class.

9 pm

Baroness Barker: My Lords, I shall speak to Amendment 237A, which is in my name. The justification for this legislation is that it does three things. It enshrines the Government's stated policy that health services should be built around patients and that all decisions about patients should be taken with them. No decision about me without me: that is the phrase that we have heard. The second justification is that the Bill empowers clinicians and local authorities to commission health services that meet the needs of all groups in the population and reduce health inequalities. The third justification is that the Bill will enable the National Health Service to deal with the pressure on it because of demography and increased longevity among the population by being more efficient and more effective. Those are the justifications for the Bill. It is with that in mind that I go back to a discussion that many noble Lords here this evening had at considerable length during the passage of the Mental Health Act 2007. We were all on different sides of the Chamber then, which is not a point to be missed, I suspect.

The amendment seeks to include in the decision whether someone should be placed under a community treatment order-a compulsory order, as alluded to by the noble Lord, Lord Patel of Bradford-an assessment of whether someone who is suffering from mental illness may yet have capacity to make a decision about their treatment. To put it in lay terms, someone may be ill but still retain sufficient insight into their illness to make decisions about their treatment and in particular about whether they should be subjected to compulsory treatment. It is a similar, although legally slightly different, test of capacity to that in the Mental Capacity Act, with which noble Lords will be familiar.

It is the same provision that occurs in the Mental Health (Care and Treatment) (Scotland) Act 2003. Without going back over the ground that we covered in much greater depth in 2007, when the Scottish authorities prepared their legislation, unlike the Government of the time in England they did not simply go around a lot of different jurisdictions throughout the world where there are variants of community treatment order, pick elements that they liked and put them together. They went through a long and considered process, looking at how to bring their concept of a compulsory community treatment order into being. They did so with a greater degree of protection for people who might end up in effect being subjected to treatment against their will indefinitely. They included this concept of impaired decision-making within the Act.

Why should we revisit this decision? I was about to say that it was made by this House but it was not. This House agreed that we should include the concept of impaired decision-making; it was another place that removed it. The simple answer is statistics. When we debated what was then just a theoretical proposition that there would be community treatment orders, we were repeatedly assured by the then Government that they would be applied to only a very small group of people. Noble Lords will remember that it was envisaged

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at that time that there would be a few hundred people who were routinely referred to as "revolving door patients"-those patients who were in and out of acute care.

What has happened? In the first year of operation, 4,000 people-not 300-were put on to community treatment orders. There are now 7,000 people on them. I admit that we are still only a few years into the programme, but the number suggests that, first, the law is being much more widely applied than it was ever envisaged that it would be and, secondly, that practitioners are taking a precautionary approach to putting people on to compulsory treatment. In short, I suspect that a number of practitioners decide that the consequences of taking somebody off a community treatment order are potentially so hazardous to those practitioners that they are keeping people on indefinitely. That means that the situation that some of us foresaw whereby people were put on to community treatment orders from which they are unable ever to escape is happening. That seems to me to fly in the face of all the underpinning principles of this Bill.

At a time when we know that the resources of the National Health Service are going to be stretched and put under pressure in a way that they never were before, putting people on to treatment orders that they may not need is wrong. We know that lots and lots of people out there are suffering various degrees of mental distress, particularly those for whom their mental distress is not sufficiently serious that they are subject to compulsion, who desperately wish to get themselves into treatment and to see counsellors and therapists but cannot. Why take our already stretched resources and apply them to people who may not need them? I think that is wrong.

Why is this measure included in the Bill? I think it is unlikely that we will have a major revision of mental health legislation for some considerable time. In fact, there is a very good reason why we probably should not do so in that significant changes in mental health legislation happen not quite once in a generation but over a very long period when treatments and therapies have developed. Therefore, as I say, I do not envisage that we will have a major revision of mental health legislation for some years. However, I do not know whether that will be the case as I am not party to the Government's proposals in that regard.

In the mean time, it appears that we are going to subject thousands of people to treatment that may be wrong-the only people in the country who are subjected to medical treatment against their will. It seems to me that we cannot let that carry on without looking at it in considerable detail. I suspect that the Minister is unlikely to want to go into this area at this stage, but if he cannot accept this amendment can he give a commitment that the issue will be kept under review and that we will return to it at some stage even though another large piece of mental health legislation may not be forthcoming?

Baroness Meacher: I apologise to the Committee and to the Minister for not being present in these debates. However, I cannot resist supporting the noble Baroness, Lady Barker, on this issue, which, as the

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Minister knows, we debated at length when the Labour Party was in government. I, for one, strongly supported the idea that people leaving hospital should not be put under a community treatment order, most particularly if they are no threat to others, are competent, can give consent and can make rational judgments. Large numbers of people under community treatment orders suffer with depression and the only persons at any risk at any time are themselves. At a time when we so strongly support the principle of autonomy and the right to some control over medical treatment in general, it feels completely inconsistent to throw all those principles away in this one area and say, "No, doctor knows best. Whatever you say and however competent you may be, you have no right to make a decision about the treatment".

Having said that, I understand Ministers feeling very concerned about having the same principles apply if someone might-if they become unwell again-be a real, serious and major risk to other people. Therefore, my plea to the Minister is that he gives serious consideration at least to those who are no risk to anyone else, because the noble Baroness, Lady Barker, is right to say that while these provisions are on the statute book it is almost impossible for doctors not to impose these community treatment orders or for them then to rescind them because, if something goes wrong, they will be in the most appalling trouble. I will say no more but I wanted to add a strong voice to the comments of the noble Baroness, Lady Barker.

Baroness Murphy: My Lords, it will be no surprise for you to hear me say that I support all the amendments in this group. I do not really understand the need for the change in Section 117 on aftercare provisions. I am not quite sure what the tidying up is about or what the matter is with the existing arrangements. They are complicated to deliver but nevertheless seem to be utterly essential in the way in which they are currently framed. I would need to be convinced that there was some serious reason for changing them, as they apparently will be in the Bill.

As I understand it, we did not struggle with the provisions on independent mental health advocates during the proceedings on the 2007 Bill. While it is thought that parents could take the place of advocates in negotiating treatment, the proposals for independent mental health advocates for children are important in adding to the quality of services, and I support that.

The major thrust of my support relates to the amendment in the names of the noble Baroness, Lady Barker, and other noble Lords. It is my fervent belief that one day we will look back in this House and be horrified at how we structure our mental health legislation. The fact that we do not have legislation on capacity-based decision-making seems to be a terrible tragedy and is extraordinary, given that we see in Scotland that it is perfectly capable of being implemented safely. We should be at the forefront of developing legislation that destigmatises mental health services and allows people to make their own decisions about treatment.

We will have to wait a long time for that, but this amendment focuses on something that many of us predicted would be overused, and I regret to say that it is all too obvious that it is being overused for the wrong people. Yes, there are some people for whom

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community treatment orders should be used, but if we had legislation for capacity-based community treatment orders we would still be able to implement them safely. I strongly support the noble Baroness's amendment.

Baroness Hollins: My Lords, I support these amendments. I was president of the Royal College of Psychiatrists when the Mental Health Bill was passing through this House and I remember listening to and reading the debates with great interest. I know that noble Lords on the government Benches, including the noble Earl the Minister, at the time very much supported capacity-based legislation. It works well in Scotland, but what was anticipated here would happen has happened-far too many people are subject to community treatment orders who know what they are doing and are no risk to themselves or to others. It would be good if it were possible in this Bill to make a change on this issue that made sense.

9.15 pm

Baroness Finlay of Llandaff: My Lords, I in no way want to detract from the debate that has already taken place, and I am grateful to the Committee for allowing me to speak now on my opposition to Clause 51. I appreciate it, although I realise that it is in many ways unrelated to the very important debate that we have just had. Clause 51 relates to medical examiners, to the changes in the coronial system introduced through the Coroners and Justice Act, and to the change of placement for these medical examiners, given that PCTs will no longer exist.

Medical coroners are being phased out, in part due to concerns about their difficulty in handling complex cases in court. However, legal coroners have difficulty in making crucial, and sometimes far more common and more far-reaching, decisions on whether to open an inquest and whether to question medical reports. The recent BBC Radio 4 "File on 4" programme on the variation in the adequacy of inquiries in NHS inquests criticised several coroners, none of whom was a medical coroner.

Every jurisdiction needs medical input to support a legal coroner, but the introduction of medical examiners per se is not without its problems and is not straightforward. Local authorities have made it clear that they do not want to take over this role. They are concerned that it will be more expensive at a time when they have no capacity to increase investment. They are also concerned about how this burden will be funded and that the need to raise the money directly will be viewed as a death tax by their local population, which will be politically unacceptable. The cremation certificate fee of £147, which is paid directly to the clinician signing the form but is currently taken from relatives as part of the undertaker's fee, raises about £40 million per annum across the country. That is only for cremations, which make up 70 per cent of all funerals.

There is a need for transparency over the fees, and that is to be welcomed. However, there are real concerns about how local authorities will decide to raise this money and what they will do about debt recovery if people are unable to pay, and about the various models

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of medical examiner that will be put forward and how the fees to support them overall should be collected. There is also uncertainty about whether there will be a national medical examiner. There is a need for a national medical examiner to ensure the quality and competence of examiners, who are likely to be retired GPs who have to be trained in coronial law and in the importance of judging decisions according to the requirement to ascertain causation and not to breach a duty of care. There will also be a need to ensure that an examiner is available within 24 to 36 hours so that families can proceed with rapid burial arrangements and not delay them. The current coronial officer capacity is already very stretched, and there is concern that examiners would have a conflict of interest if they were recruited from local general practices or trusts.

There is also real concern over the pilots of the new death certificate processes, which are showing delays in the role of the new medical examiners of up to four or five days, with mortuaries being stretched, undertakers being concerned that funerals are not happening as quickly as they should be, and a general backlog.

I hope that in response to my questioning of Clause 51, the Government will recognise that there is a need for the Department of Health to get together with the Ministry of Justice as the new chief coroner is appointed to make sure that a group looks at this issue in detail before proceeding further with the rollout. The system should be examined in the light of the chief coroner, in the light of what the local authorities find acceptable, in the light of how the costings are worked out, and in the light of the pilots, which are raising, rather than allaying, concerns. As I said, I am grateful to the Committee for allowing me to speak, as a matter of convenience, on Clause 51 at this point.

Baroness Jolly: My Lords, I wish to add something on Clause 51 stand part. I am sorry that it is not where we expected it, but that is absolutely fine. We are in a place of unintended consequences, because without a PCT there is no home for this particular service. Also, post-Shipman, there is a need for sharpening up clinical governance on death certificates. Therefore, there is no disagreement with any of that, but the unintended consequence is that local authorities have a serious problem in that, as I understand it, funeral directors no longer wish to be a part of the mix, so local authorities are being tasked with implementing a system in which something will have to be collected-somewhere in the order of £150 per certificate to cover the costs. The call for the system to be set up came in 2009; the previous Labour Government asked us to look at regularising the system of certification of deaths not only for cremations but for burials. It was to be revenue-neutral, which poses another problem for the local authorities.

The timing of this for somebody who is bereaved is really difficult. If you lose somebody, you can neither bury them nor have them cremated without the death certificate. Being charged something in the region of £150 could be really awkward, difficult or maybe even impossible. If they paid into an insurance plan, it will not have paid out; after a few days, probate is just not in the right place at all. I would like the Minister to consider two things. First, the cost is anticipated to be

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somewhere between £40 million and £60 million. I cannot think of anything else on which the taxpayer actually pays for the collection of government data. I would like the Government to consider whether it is appropriate to pass on these fees when certificates for births, marriages and deaths are currently less than £20. Secondly, failing that, would my noble friend commit to working with the Department for Communities and Local Government and the Ministry of Justice to devise a sensitive system that does not call for a sizable payment up front on collection of the death certificate? They should pay attention to the pilot data alluded to by the noble Baroness, Lady Finlay; the pilots are not running absolutely smoothly.

Baroness Thornton: My Lords, what links the two parts of this debate are the unintended consequences and the need for second and third thoughts about things. My noble friend Lord Patel, the noble Lord, Lord Adebowale, and the noble Baroness, Lady Hollins, expressed concern about this clause. That is frankly good enough for me. It has been suggested elsewhere in the way of things that some enthusiastic civil servants, in the process of tidying up this Bill, have actually brought about what could be serious unintended consequences. The noble Baronesses, Lady Murphy and Lady Barker, also have some important points to make about the amendment in the name of the noble Baroness, Lady Barker. This House spent many hours constructing the architecture through the Mental Capacity Act and the Mental Health Acts, not all of it right. I do, however, remember the duty of co-operation being an important part of those Acts; those rights, protections and duties are very important and we need to check that we have not damaged them through the construct of this Bill.

On Clause 51 stand part, we on these Benches are pleased to support the important amendment put down by the noble Baroness, Lady Finlay, about the problems that might occur when the responsibilities of primary care trusts for the certification of deaths are transferred to local authorities. I do not intend to read out the whole of this note because the noble Baroness, Lady Jolly, has referred to most of it, but we are very concerned that these proposals will mean delay and an increase in cost when people are at their most vulnerable and least able to withstand that. I do not think that anybody in this House would want that to happen. I suspect that the Government would not want to place in jeopardy the trust and confidence in the system as it is, and I think there is a danger that Clause 51 does that. We on these Benches support the amendments in this group.

Baroness Northover: My Lords, noble Lords have spoken passionately about the need to support patients who are particularly vulnerable. These are complicated areas, and I am happy to write to noble Lords to clarify what is intended in the Bill and to address their specific questions if I do not answer them in what I say here.

The Bill makes a number of essentially consequential amendments to the Mental Health Act 1983. The Government are also taking the opportunity to remove a few redundant powers and to make a small number

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of changes to that Act. That is the intention. This is not a major shift; these are meant to be tidying-up changes. However, if they have unintended consequences, it is important that they are flagged up, and I hear what the noble Lord and other noble Lords said.

The principal changes are the change in the responsibility for commissioning independent mental health advocates from the NHS to local authorities and the change in the requirement that a second opinion must be given even where patients on supervised community treatment consent to their treatment. This condition does not apply to patients who are detained in hospital and is contributing to the major difficulties that the Care Quality Commission is experiencing in managing the second opinion appointed doctors service.

The Government are also taking the opportunity afforded by the Bill to make a number of changes to the Section 117 of the 1983 Act. The first amendment in this group, which was tabled by the noble Lord, Lord Patel of Bradford, addresses that. The main change is to transfer the duty on primary care trusts to commissioning consortia, but the clause also takes the opportunity to align the duty in Section 117 more closely with mainstream NHS legislation. That is the intention. For example, it gives the Secretary of State the power to make regulations that say which consortium is to be responsible in any given case. That will allow us to end the current anomaly that sees some PCTs responsible for Section 117 aftercare for patients whose other needs are the responsibility of a different PCT.

Regulations could also say that, in particular circumstances, the NHS Commissioning Board is responsible rather than the consortium. That would allow us to prevent consortia ending up having to commission services that are normally commissioned by the board just because the patient happens to qualify under Section 117. The noble Lord, Lord Patel, spoke very persuasively about the need to avoid this clause having unintended side effects, and I can confirm that that is certainly not the Government's intention. I am very happy to meet the noble Lord to discuss these issues further.

On co-operation with the voluntary sector, we need to consider consistency with other services that CCGs will commission in order not to give in some way a distorted picture of when CCGs should work closely with the voluntary sector. Nevertheless, I am happy to have further discussions on this point.

On charging, which is clearly a significant concern of the noble Lord, the Bill does not change the current situation. Patients will not have to pay for any care under Section 117. I hope that I can reassure the noble Lord on that point.

The second amendment in this group was tabled by my noble friend Lord Marks and is about access for children who come under the 1983 Act to the services of an independent mental health advocate. Section 130C of the Mental Health Act 1983 already gives the same right of access to such an advocate to all qualifying patients, including children. Making special provision for minors might give the impression that other qualifying patients should have lower priority for access to such services. Our aim is that every vulnerable person who comes under the major provisions of the 1983 Act and

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wants the support of an advocate should have one. That should, of course, include every child and young person, but it should also include everyone else as well. The current law not only supports the aim of this amendment in respect to children but does so for all vulnerable people of all ages.

9.30 pm

Thirdly, Amendment 237A, tabled by my noble friend Lady Barker and others, seeks to make a further and very significant change to the 1983 Act. It would introduce a new criterion of impaired decision-making into just one of the areas which that Act covers, that of supervised community treatment. Many of your Lordships will recall the much more extensive debates on this subject both in your Lordships' House and in another place during the passage of the Mental Health Bill in 2006. Such a change would potentially have wide-ranging impacts on the working of the Mental Health Act and would need careful and detailed reconsideration. At that time, the proposal was to introduce the criterion for detention under Part II of the 1983 Act as well as for SCT. Introducing it for SCT alone would run the additional risk that those with less insight could benefit from SCT while those whose decision-making was not impaired could continue to be kept in hospital.

We feel that it is too soon after the debates of 2006 to be making more major changes to the 1983 Act. Although I was not directly involved in those debates, anybody who was in this House could not but be aware of them. I certainly was. It was a very controversial area. I hear what my noble friend and others have said and I assure my noble friend and others that we will continue to review this. In fact, all government Bills receive post-legislative scrutiny within five years of receiving Royal Assent. I can confirm that we will be doing this for the Mental Health Act 2007 next year, so we will be reviewing the Act shortly, although we do not expect any further legislation on this topic in the imminent future. Nevertheless, I commit to the review, and we will then have to see what happens as a result of that.

I hope that noble Lords will in due course be prepared not to press their amendments in these areas. I hope that we can continue to discuss the areas where there may be unintended consequences so that these can be addressed.

Baroness Barker: I understand entirely my noble friend's response to my amendment. I am very pleased with that. No doubt I and other noble Lords will spend at least part of 2012 making sure that we hold the Government's hand to the flame on that review. I wanted to respond to what she said about the amendment in the name of the noble Lord, Lord Patel of Bradford, which I very much support. The first scenario that the Law Society and others were trying to probe in that amendment was one where it was unclear whether or not a patient came under the auspices of a CCG. The second was what would happen if a CCG decided not to commission a particular type of service-for example, some kind of psychological therapy-and it did so independently and not in discussion with the social services authority. I was not clear from the noble

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Baroness's answer whether in her discussions with the noble Lord, Lord Patel, she would be covering both those eventualities.

Baroness Northover: My Lords, I am happy to cover both those eventualities in the discussions. Moving on to Clause 51 concerning death certification reforms, this amendment to the Coroners and Justice Act 2009 places responsibility for the appointment of medical examiners and related activities on local authorities in England instead of the PCTs. The Government are committed to implementing the reforms of the process of death certification set out in the Coroners and Justice Act 2009. These are important and long overdue reforms, which will involve a medical examiner providing an independent and proportionate scrutiny of cause of death in all cases not investigated by a coroner. The reforms will improve the quality of information on cause of death, increase transparency for bereaved families, and strengthen local clinical governance and public health surveillance arrangements. As your Lordships will be aware, these reforms form part of the response to the recommendations of the Shipman inquiry and, of course, the noble Baroness played a key role in taking these changes through.

The clause moves responsibility for the appointment of medical examiners from PCTs to local authorities and makes similar changes to the arrangements for performance managing and funding the medical examiner service. This change is needed because of other provisions in the Bill which will abolish PCTs from April 2013, despite the quote that was made earlier. Establishing the medical examiner service in local authorities should enhance the availability and accessibility of important public health information and intelligence. It will also align the service with other existing local authority responsibilities, including coroner and registration services.

I now turn to the fee payable for death certification, which, clearly, is a very difficult and immensely sensitive issue. Many people, including my noble friend Lady Jolly, have questioned whether there should be a fee at all and whether the state should pay for certification of death. It is the Government's policy in line with the proposals set out by the previous Government in 2009 that the medical examiner's independent scrutiny and confirmation of cause of death stated on the certification should not result in an increase in costs. It is also important to remember that the payment of the fee is already the case as regards the 70 per cent of people who are cremated, with this fee forming part of undertakers' fees.

The current economic situation means hard choices are inevitable and the need to ensure that certification of death is cost neutral is one of those challenges. With regard to how the fee is paid by individuals, I am aware of the problems. Let me make it clear: it is neither the Government's desire, nor intention, that this fee should be paid upfront. We would like to come to a solution that fully recognises how difficult a time this is for families and we do not want to add to the heavy burden which is felt at such a time.

As such, we have already started discussing with stakeholders and others how to arrive at an appropriate method for payment of fees. We will be consulting

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fully on this topic and want to hear the full range of views before making a decision. Given the sensitivities, if any Member of the Committee would like to discuss these issues further with me or officials, we would be very happy to take that forward. In due course, I will move that this provision stands part of the Bill.

Lord Patel of Bradford: I am very grateful to the noble Baroness for her response. I am particularly grateful to noble Lords who have contributed on the amendment standing in my name. We have had the benefit of the huge expertise and experience not only of the voluntary sector but of eminent psychiatrists who understand what happens to patients detained under the Mental Health Act. We should not simply ignore those views or brush them under the carpet. My problem is that we have heard a number of times in this Committee that, "Such-and-such is not an intention of the Bill, and the new arrangements will ensure that quality and outcomes are the prime drivers in decision-making rather than cost or expediency". No doubt that is what is intended, but as we all know, the road to hell is paved with good intentions.

This is not a technical issue, or an issue that can be left alone in the hope that matters will resolve themselves and things will work out. This is about a fundamental principle of law that seeks to protect the vulnerable. The noble Lord, Lord Adebowale, gave a perfect example of what happens to real patients. If we cannot act now in the best interests of those who cannot speak for themselves by virtue of being detained under the Mental Health Act, who are by definition vulnerable and dependent on the state to make the right choices for them, then I do not know what we are doing here today.

The amendment tabled by the noble Baroness, Lady Barker, exemplifies why we have to be very careful about decisions that we make for this group of patients-the unintended consequences could be enormous. It is wonderful that the Minister said that the Government will review this next year. That is welcome. However, how many more lives will be ruined in the next 12 months? We have made mistakes in the past and we continue to make them. In terms of this amendment and Section 117, the danger with simply moving forward and saying, "This will be okay-that is not what we intend", does not sit comfortably at all.

My amendment is very simple: it will ensure that CCGs and social services authorities continue to have a joint duty. I cannot see why we should not insist that CCGs and local authorities should have a joint duty in relation to this very vulnerable group of people. It will ensure that the joint duty includes maintaining co-operation with relevant voluntary agencies. We are asking the voluntary sector, "Please take over services and help us deliver", and all the rest of it. Why can we not maintain the co-operation that exists?

The amendment will also ensure that the duty remains free-standing, as was the clear intention of the Appellate Committee of this House, so that aftercare services are not limited to other provisions but can actually meet the patient's needs. By doing so it ensures that patients who have been detained

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under the Mental Health Act and require aftercare services do not find themselves having to pay for those services.

The noble Baroness said that there is no intention regarding payment. However, I think that I gave enough examples in my speech to show why I think that will be challenged. I am not a lawyer or an expert on these things but I did look at the judgment. What is interesting about the judgment that was given way back in 1999-when we did not have austerity measures and there were plenty of resources-was that, on three occasions, three local councils tried to force four people detained under the Act to pay for aftercare services. They had three different appeals. By the time they got to the fourth appeal in this place, one of the patients had died. That emphasises my point about how long people have to wait. If they were trying to charge then, what is going to happen now when we are desperate for resources in health and social care? People are really going to be pushing this.

I am afraid that that does not hold water for me at all. I tabled this amendment in good faith but I am concerned that clauses in this Bill will clearly have unintended and detrimental consequences. We chose not to reject this Bill out of hand under the rightly justified position that it is the proper place of this House to amend and improve legislation through a robust process of scrutiny. I believe that my amendment is the right and proper way to correct the Bill and to prevent significant harm arising.

Baroness Northover: I did not directly address the Stennett case and I must do so. The Stennett case indeed makes clear that such services have to be provided free of charge and the Bill in no way overturns that. It does not challenge that. What comes under Section 117 remains as it was-what is provided by it is still free of charge. This does not in any way challenge the Stennett conclusion.

Lord Patel of Bradford: The clause actually says-again, I am not a lawyer; I am looking at this in layman's terms-that you do not need to have this consultation. As the noble Lord, Lord Adebowale, said, Mr Bloggs could then leave hospital and receive some accommodation, daycare and counselling through the health service, but the local authority could then decide unilaterally to say-as it can-"Right, the daycare and the accommodation have gone. We are not going to pay for them". It does not even consult the patient or the CCG. It can do that. The legislation states that. The clause says that local authorities can do that now. It is okay.

We are being foolish if we think that local authorities or CCGs are not going to opt out of this where they can. They will opt out of providing bits of services. The voluntary sector will be lumbered with them. It will be told to pick up the tab, but organisations such as Turning Point do not have the resources to pick up the tab.

Baroness Northover: I repeat my invitation. The noble Lord makes a cogent case. I invite him to come into the department and make that case. I am saying that his worries are ill founded, but if he is right and

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there are things that need to be done to ensure that the case that I am making is indeed watertight, please will he help us to do that?

Lord Patel of Bradford: The noble Baroness is almost as persuasive as the noble Earl. I gratefully accept the invitation, and I am sure that the noble Lord, Lord Adebowale, will also be very happy to sit with officials. Like I say, I do not think for one second that the department is being malicious. There are some unintended consequences that are worth exploring further to see if we can make this legislation better. I beg leave to withdraw the amendment.

Amendment 236B withdrawn.

Clause 37 agreed.

Clauses 38 and 39 agreed.

Clause 40 : Independent mental health advocates

Amendment 237 not moved.

Clause 40 agreed.

Clauses 41 and 42 agreed.

Amendments 237A not moved.

Clause 43 : Role of the Board and clinical commissioning groups in respect of emergencies

Amendments 237B to 238 not moved.

Clause 43 agreed.

Clauses 44 and 45 agreed.

Clause 46 : Primary care services: directions as to exercise of functions

Amendment 239

Moved by Baroness Thornton

239: Clause 46, page 80, line 2, at end insert-

"( ) In exercising functions under subsections (1) and (2), the Secretary of State must set out how the performance of the Board in relation to these functions will be managed, and how the Board must agree any arrangements for provision with the appropriate Health and Wellbeing Boards."

Baroness Thornton: My Lords, this small group of probing amendments concerns itself with primary care services and the directions that would provide for those primary care services. I will briefly outline each of the amendments and ask the Minister's reactions to them.

On Amendment 239, if directing the board to exercise the Secretary of State's functions relating to the provision of primary medical services, the Secretary of State must set out how the performance of the board in relation to these functions will be managed and how the interaction with the appropriate health and well-being board will occur. How will that be supported and how will it occur?

On Amendment 239ZZA, the Secretary of State may not direct the board to exercise the Secretary of State's functions in Section 114 of the 2006 Act, which relates to dental services and the provision of accommodation. Amendment 239ZZB is very similar. It relates to ophthalmic services. Amendment 239ZZC

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relates to pharmaceutical services. The Clause 205 stand part debate relates to the list of performers of pharmaceutical services and particularly addresses the question of how the Government would intend to support the provision of community pharmaceutical services in the future through the Bill. That is another probing amendment.

I want to hear what the Minister has to say about how local services being commissioned nationally will work in terms of relationships with the health and well-being boards and in terms of the provision and support of community pharmaceutical services. I beg to move.

Earl Howe: My Lords, Amendment 239 raises the issue of performance management of the board. Noble Lords will recall the debate on Clause 20, in which I sought to reassure the Committee that new Section 13A of the National Health Service Act 2006, introduced by Clause 20, already enables the Secretary of State to specify the manner in which he proposes to assess the performance of the NHS Commissioning Board. It is not appropriate to set out performance management processes in respect of each and every direction issued to the board by the Secretary of State. I agree about the importance of the NHS Commissioning Board developing its commissioning responsibilities in a way that complements and supports other local health and social care commissioning, as the amendment proposed by the noble Baroness seeks to ensure. As I have indicated previously, the NHS Commissioning Board will be under a duty to have regard to joint health and well-being strategies. It would confuse lines of accountability and would actually be unworkable if we forced a duty on the board to agree with the health and well-being boards on how it will deliver its functions. I hope very much that your Lordships will agree that it is right that health and well-being boards do not have a right to veto plans for the provision of those primary medical services, which the Secretary of State has determined are necessary for patients. The NHS Commissioning Board will also have responsibility for commissioning primary dental services, primary ophthalmic services and pharmaceutical services.

Directions from the Secretary of State-usually of a technical or administrative nature-are currently made to primary care trusts and others in respect of primary care services under existing powers in the 2006 Act. So the provisions in this part of the Bill are not new powers; they are replacement powers adjusted to reflect the new organisations created by the Bill. These amendments would remove essential administrative and operational flexibility to enable those primary care services to continue to be provided efficiently and effectively for the ultimate benefit of patients. I realise that they are probing amendments and that the noble Baroness has no intention of pressing them, but clearly they are not appropriate.

Clause 205 enables regulations to be made that require the board to prepare, maintain and publish performers lists of pharmacists and pharmacy technicians on the abolition of primary care trusts. It replaces those provisions of the 2006 Act that currently relate to fitness to practise for pharmaceutical services performers. It also amends the Act so that, where a

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performer of local pharmaceutical services is included in a local pharmaceutical services performers list, they can be automatically included in an assistants list of performers and vice versa. We have yet to take a view on implementing performers lists for local pharmaceutical services performers and for those who assist pharmaceutical contractors in the provision of pharmaceutical services. We expect to do so during the coming months. In the mean time, this clause is needed to ensure that, if we do decide to introduce them, the primary legislation will adequately enable this.

The noble Baroness asked how, logistically, the board will manage approximately 8,300 GP contracts. We recognise that the NHS Commissioning Board could have difficulty in appropriately managing primary medical services contracts throughout England without help. The proposals to establish a significant field force as part of the board's establishment will assist, but it will remain the case that the board's ability to undertake this task will be enhanced if it can utilise the important local expertise and knowledge that will be available to the clinical commissioning groups. We have put in the Bill an explicit duty for all clinical commissioning groups to support and assist the board in securing continuous improvement in the quality of primary medical services. That is in new Section 14R in Clause 23. Alongside this, direction-making powers in Clause 46-

Baroness Thornton: The Minister mentioned field forces that will help to make this work, and I can see that that will almost certainly be the way to do it. But would there be an intention to have expertise in each of the different areas or across the piece? The Minister does not need to answer the question now; he can write to me. But the community pharmaceutical industry would be interested in an answer on how that would be delivered.

Earl Howe: I would be happy to write to the noble Baroness in the interests of time, but I was about to explain that as regards primary medical services the direction-making powers that I mentioned will also enable the board to arrange for clinical commissioning groups to carry out some contract monitoring functions and limited commissioning functions on its behalf should it so wish. So the board can enlist the help of the clinical commissioning groups themselves to do some of the monitoring function. That will not alter the board's overarching responsibility for

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commissioning general practitioner services and holding their contracts. But I will write to the noble Baroness, as she asks.

Lord Warner: Can the Minister explain something to us, if necessary in writing in order not to detain the House? I am very confused about what happens in areas where historically there have been great problems with health inequalities in securing a volume of primary medical services to meet the needs of those communities. I am very unclear who we are expecting to ensure that there is a sufficient volume of primary medical services and what the relative roles of the Commissioning Board, the CCGs and the health and well-being boards are in that context. It is a longstanding problem for the NHS. I do not expect the Minister to answer now, but it would be helpful to have some thoughts in a letter on that issue.

Earl Howe: I undertake to write to noble Lords about that, and I agree that it is an important matter.

Baroness Thornton: I thank the Minister for that answer. We will return to discuss issues about the community pharmacies, possibly not in Committee or on Report but outside the Chamber, because there are some areas of concern where clarification is required. I thank the Minister for his answer and beg leave to withdraw.

Amendment 239 withdrawn.

Amendments 239ZZA to 239ZZC not moved.

Amendment 239ZA had been withdrawn from the Marshalled List.

Clause 46 agreed.

Clause 47 agreed.

Clause 48 : Pharmaceutical services expenditure

Amendment 239A not moved.

Clause 48 agreed.

Schedule 3 agreed.

House resumed.

House adjourned at 9.59 pm.


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