Care Bill [HL]

Baroness Wheeler Excerpts

Wednesday 16th October 2013 Lords Chamber

[Baroness Barker (LD)]

My Lords, I wish to indicate my support for the continuance of Section 117, as I have done on many occasions before, not least during the passage of the most recent Mental Health Act—when various people, whom I shall not embarrass now by saying who they were, did indeed stand up to defend some of it—because it works.

When the Law Commission first made this proposal in its report, I had occasion to talk to that body. The noble Lord, Lord Patel, is right; the commission relies very heavily on the Mwanza case, and there is a great deal of dispute about the advisability of doing that. The question that I had when I first met the Law Commission still remains: when everything else in the legislation is geared towards enabling health and social care to work together to enable the transfer of people from acute health settings back into the community, why rip up the one piece of legislation that has been there doing that for 30 years? It is not just that some of us see Section 117 as being important with regard to the individuals whom we might know or come across; rather, we see it as an important means of bringing about the transfer that some of us have long hoped would happen in mental health services whereby, instead of having patients who revolve between acute and the community, we could have proper care planning in which people’s mental health needs were addressed by some of the same people, whichever setting they were in. It is not just about trying to preserve a pot of money; it is about trying to keep open a pathway to good and better practice. That is why the noble Lord, Lord Patel, as he always does in this area, has presented the House with a very persuasive argument. I have not yet fully understood why the department feels the need to make the changes that it is making.

[Baroness Wheeler]

My Lords, we fully support my noble friend in his valiant efforts once again to try to get this important issue on mental health aftercare sorted out. We recognise the Government’s concession in removing “the” from subsection (5)(a), but my noble friend is right that there still remains the very real risk that leaving the rest of the subsection in place could lead to local authorities arguing that,

“a need arising from or related to a mental disorder”,

was the requirement only to provide psychiatric, medical and follow-up services.

The statutory definition of aftercare services in the Bill is confusing because it separates out the needs arising from the person’s mental disorder from the need to reduce the risk of deterioration in the person’s condition and the risk of readmission to hospital. My noble friend’s amendment would instead define aftercare services as those services that reduce the risk of deterioration in the person’s mental condition and the likelihood of the person requiring readmission to hospital.

It is right that the definition of aftercare services focuses on reducing the likelihood of hospital readmission and does not lead to confusion or legal disputes about a local authority’s role in this or what services should be provided under Section 117 of the Mental Health Act. It is also right that aftercare continues to be viewed as a comprehensive range of generic services across healthcare, social care and other services such as suitable accommodation and community support.

Amendment 128A is a compromise offered by my noble friend that I hope the Government will take up because, as he said, he would prefer to delete Clause 5 entirely, so that the current position in relation to Section 117 remains unchanged. Mind, the mental health and disability committee of the Law Society and the Mental Health Lawyers Association all consider that the best way to avoid confusion over the definition of aftercare is to remove Clause 71(5)(a) altogether.

I hope that the Minister will have some good news for my noble friend and for other Lords who, too, are very frustrated that the mental health aftercare issue has not been laid to rest in the way we thought it had under our discussions as far back as on the Health and Social Care Bill.

[Earl Howe]

My Lords, I first would like to echo the comments made by my noble friend Lady Northover during Committee, when she paid tribute to the excellent work of the noble Lord, Lord Patel of Bradford, in the mental health field.

I think we can all agree that setting out a definition of mental health aftercare in legislation is important. A clear legal definition will mean that the scope of aftercare will no longer be entirely open to interpretation by the courts, whose views have varied over time. The question is what that definition should be. As updated by government Amendments 129, 130 and 131, our proposed definition contains a carefully framed duty that reflects the Government's policy on the appropriate scope of the duty to provide free aftercare services for a very small group of patients who have been detained for treatment under certain sections of the Mental Health Act. It has carefully drawn limits because the Government do not consider that it would be appropriate for the Mental Health Act to impose a duty on local authorities to commission services that are based on needs which neither arise from, nor are related to, a mental disorder.

Therefore we believe that the amendment tabled by the noble Lord, Lord Patel of Bradford, goes too far and would create an inequity between this group of people and others with equivalent needs for care and support who are not eligible for free aftercare, either because they have been detained under other provisions of the Act or not detained at all. They will be means tested and will have to meet eligibility criteria for the social care part of their aftercare package, so may not receive any social care from the local authority. In addition, with an ageing population, local authorities will have to be able to differentiate “mental health aftercare” in order to know when the “aftercare” finishes and ongoing support for other reasons begins.

The noble Lord suggested that the case of Mwanza was not a stable basis for primary legislation. He said that it is, after all, only one case. There is a bit of a misunderstanding around this. The Mwanza case merely triggered a debate; the issue is whether the definition is a good idea and, if so, how it can most helpfully be drafted. The Government’s definition of mental health aftercare services builds on the definition recommended by the Law Commission. The Government accepted the recommendation of the Law Commission as a sensible starting point, but we have gone further. We propose a wider definition than that suggested by the Law Commission, including that Section 117 services may relate to as well as just arise from the person’s mental disorder, and that the aftercare should prevent deterioration as well as readmission to hospital.

Because our definition is more precise, I feel that it will be more helpful than the noble Lord’s in ensuring that clinical commissioning groups, local health boards and both English and Welsh local authorities more easily agree on the aftercare services to be provided, so that these services can be put in place promptly.

I reassure the House that the definition we are now considering is the result of extensive consultation. In consequence, we have added a positive objective to prevent deterioration as well as preventing readmission to hospital, and have further changed the clause to remove the definite article when referring to “the mental disorder”, for which the noble Lord made the case in Committee. This is intended to remove any doubt about our intention that the scope of aftercare covers more than just one form of mental disorder, and is not necessarily limited to the specific disorder or disorders for which a person was previously detained under the Act and which gave rise to the right to aftercare.