Mental Health Bill [HL]

Lord Adebowale Excerpts

2nd reading
Monday 25th November 2024 Lords Chamber

[Lord Adebowale (CB)]

My Lords, this has been a fascinating debate so far. It is an honour to contribute and to listen to so many learned Peers around the House. In fact, earlier on I detected an almost kumbaya moment around the agreement on some of the aspects of the Bill.

I declare my interest as chair of the NHS Confederation, which is a membership organisation representing health and care leaders in England, Wales and Northern Ireland. We have the privilege of having 100% of all mental health trust leaders in membership.

This debate is overdue, just as updating the Mental Health Act is long overdue. I could not help thinking, during the contributions of the noble Lords, Lord Meston and Lord Scriven, that if we were to go back to 1959, this House would be of archaeological interest before we got anywhere near where we have got to today—so we shall start where we are and continue to make the Bill the best it can be.

I should also point out that a member of my family is on the autistic spectrum, so I get it, just as people who have that experience also get it.

Organisations such as the NHS Confederation have warned that the success of reforms will be dependent on the wider infrastructure to support them. My first question to the Minister is: can she confirm that as well as the important measures in the Bill, we will see further details in next spring’s spending review and in the 10-year NHS plan about how patients and staff working in mental health will be supported in years to come?

The Bill is welcome, not least because it is intended to stop people with learning disabilities and autistic people from being detained long-term, unless they also have a serious mental health condition, but only when there is sufficient and appropriate community care in place to support them. It is clear, therefore, that a plan on how this capacity will be built up is vital; otherwise, people will continue to be detained inappropriately. Can the Minister provide more details on what the Government will do to ensure that we see that capacity is built up, so that people with learning disabilities and autistic people are able to benefit from the support that community care can provide?

Concerns have also been highlighted to me by many of our members and other organisations that the changes for people with learning disabilities and autistic people may unintentionally risk these groups falling into the criminal justice system due to a lack of community provision, as mentioned by the noble Baroness, Lady Watkins. This is similar to the changes in New Zealand she referred to, which led to people with learning disabilities and autistic people sometimes being sent to prison and left neglected in the community or admitted to forensic facilities as secure patients, as they were unable to be detained under its equivalent of the Mental Health Act.

I welcome the safeguards that the changes relating to people with learning disabilities and autistic people will be enacted only once sufficient provision is in place. Can the Minister provide more details on what the Government will do to ensure that capacity is built up so that people with learning disabilities and autistic people are not inappropriately—and indeed unintentionally—detained for many years, often far away from home and for very long periods?

The Government are committed to enacting the changes to detention regarding people with learning disabilities and autistic people only once sufficient community provision is in place to reduce the risk of these people falling into the criminal justice system. Again, can the Minister outline how the decision to enact this part of the legislation will be made?

The reforms that we are debating introduce duties on commissioners to ensure an adequate supply of community services to prevent inappropriate detentions in hospital, but without a funded plan to build up this provision, there is a risk that the proposed changes to the legislation will never be enacted, and people will continue to be inappropriately detained. Can the Minister say what measures the Government will put in place to help commissioners get it right at local level?

In addition, as the noble Lord, Lord Bradley, mentioned, referring to the 28 days, some people are very concerned that it is not long enough to complete a thorough assessment to identify whether patients with a learning disability or autistic people have a co-occurring mental health disorder, due to the complexity of what patients often present. Does the Minister acknowledge these concerns, and will she remain open to discussions with the sector throughout the passage of the Bill so that the views of those who work day to day with vulnerable people, as well as the views of people with learning disabilities and autistic people and their families, can be fed directly into the legislative process?

It is nice to note that many have referred to the stark racial inequalities in the use of CTOs, and wider concerns around their use. However, mental health providers and many professionals agree that they can be beneficial to patients as they can be the least restrictive option, and we welcome the Government’s commitment to reviewing CTOs. Can the Minister share details about the scope and timescale of this review?

The NHS Confederation has raised concerns about high vacancy rates across the sector, which are bound to impact on staff capacity. Again, can the Minister give assurances that this will be addressed as soon as possible, if not as part of this legislation then through the upcoming 10-year plan or the review of the NHS workforce plan? This was mentioned by the right reverend Prelate the Bishop of London, and indeed the noble Baroness, Lady Buscombe, whose points on data I also agree with.

The NHS Confederation has pointed out that more opportunities for patients to challenge their detention are likely to increase the number of tribunal hearings. This would require an additional 33% expansion of the in-patient responsible clinician workforce. Given that national consultant psychiatrist vacancy rates are currently around 10% to 15%, this will be very challenging. With the Government set to publish an updated long-term workforce plan for the NHS next year, as mentioned earlier, can the Minister give an assurance there will be measures in this plan to specifically tackle workforce shortages in mental health?

In referring back to the issue of racial inequality, the patient and carer race equality framework is the key vehicle in reducing the racial disparities that exist in the Mental Health Act and in wider services—which mean, for example, as we mentioned, that black people are far more likely to be detained under the Act or to be placed on a community treatment order than white people. The so-called PCREF is not part of legislation, but all mental health providers are expected to implement it. Concerns exist that the lack of understanding of the framework, as well as the lack of resources available, are hampering its implementation. Again, will the Minister consider using legislation to address these concerns?

Racial disparities are a significant issue, and the NHS Confederation has described the disparities in rates of detention of people from different racial backgrounds as unacceptable—I agree. For example, black people are more than three times more likely to be detained under the Mental Health Act. There is evidence that advance choice documents reduce racial disparities in the level of detentions. This led to many in the sector calling for them to be made statutory. Indeed, this was recommended by both the Mental Health Act review and the pre-legislative scrutiny committee which looked at the draft Bill. Can the Minister set out why advance choice documents will not be made statutory? Is she confident that measures in the Bill concerning such documents will help reduce those racial disparities in detention rates? There are very few evidential interventions that actually reduce racial disparities, so let us use the one that we know works.

The NHS Confederation has highlighted concerns that the new criteria for detention set out in the Bill—namely, that serious harm may be caused—need to be defined. If they are not, we risk inconsistency in how the definition is interpreted. Will the Minister come forward with a definition of what constitutes serious harm so that there can be no doubt about what this means in practice?

Funding for new mental health crisis centres announced in the Autumn Budget was welcome, but we need to see more funding provided for the NHS and mental health in the coming years. As the confederation has pointed out, successful implementation of the legislation we are debating will depend on ensuring that the workforce and resources are in place. That includes capital funding to improve the safety and therapeutic environments of in-patient wards. I have seen some shocking places, as no doubt many noble Lords have. Can the Minister say whether, alongside these much-needed reforms, we will see further funding for mental health in next spring’s spending review? I urge her to speed dial the Treasury.

The Government estimate the overall cost of the reforms to be around £5.3 billion for housing, health and social care costs and £313 million for costs to the justice system in England and Wales. The upcoming 10-year plan and next spring’s spending review are key opportunities for the Government to acknowledge what is needed to enact these reforms. The money for the NHS in the Budget was very welcome. I am a big fan of £22 billion for the NHS, but will the Minister give an assurance that further funding will be made available so that these reforms have the best chance of being effective?

The Government’s commitment to shift more care into the community is welcome because it supports better patient outcomes and is a more efficient use of funding. However, the NHS Confederation and I are among those who have pointed out that we need to make sure that the right provision is in place for that community care. Can the Minister provide assurance today that the Government acknowledge this, and can she set out the Government’s plans to ensure that we have this provision?

As the NHS Confederation pointed out recently, on behalf of our members, people with mental health needs and those with learning disabilities—

[Lord Cryer (Lab)]

Let me just point out that the limit of nine minutes is voluntary, but a lot of people want to speak.

[Lord Adebowale (CB)]

I know. I have two things to say and then I will finish, honestly. People with mental health needs, those with learning disabilities and autistic people are waiting too long for appropriate care and support. The mental health estate has also experienced years of underinvestment. Can the Minister give an assurance that alongside this Bill, the Government will use every opportunity they have with the 10-year plan and the upcoming spending review to ensure that we see further investment in care and support for those who need it and into the mental health estate?

Health and Care Bill

Lord Adebowale Excerpts

2nd reading
Tuesday 7th December 2021 Lords Chamber

[Lord Adebowale (CB)]

My Lords, I declare my interests as the founder and co-chair of Visionable, a provider of services to the NHS; as a board member of Nuffield; and as an adviser to Telstra UK. I also chair the NHS Confederation, the largest body representing health leaders in the UK.

I welcome my noble friend and colleague, Lord Stevens, to this House. We have often had debates. It is great to see him here. It is obvious now to all of us that he is very smart and very funny. He is a certified national treasure. He has been welcomed to the House, and deservedly so.

I want to make a few points on this Bill—hopefully briefly, given the hour. First, this Bill is a ground-up Bill; it is not an imposition from on top. Rather oddly, it would be strange if we did not support the Bill, not least because the restructuring would be the result of us not supporting it. We have chairs of ICSs in place; we have chief executives of ICSs in place; and we have strong relationships across health, local government, housing and education in place. This Bill provides the legislative infrastructure to enable ICSs to go faster. Not to support this Bill is a backwards step. I know because the last Bill, in 2012, could be seen from space. I chaired the NHS England sub-committee that authorised some 211 CCGs. I wake up perspiring in the middle of the night at the thought of going back there. This is better, and it is not just me saying that; it is the majority of health leaders in the UK.

I also point out that those noble Lords who are concerned about privatisation need not worry. I say that again because the leaders in the NHS Confederation, in the health system, in the acute care system and in the social care system are not. Personally, as the son of a nurse of 40 years, I would not be standing here supporting this Bill if that were the case. I would not support this Bill, and neither would members of the NHS Confederation. It is already in place and happening because the people leading those systems believe that ICSs and population health will make a significant contribution to the thing at the top of 95% of their to-do lists: health inequity and inequality, exampled by the experience of Covid. The Covid experience has forced systems to work together—for example, local authorities to work with acute trust and acute trust to work with social care. It is imperfect but necessary. It is as a result of that learning that we need population health and the infrastructures to support it. To that extent, I support this Bill.

There are examples. Many Peers have talked about particular sections of the community. The noble Baroness, Lady Hollins, referred to people with learning disabilities. In West Yorkshire and Harrogate, the ICS decided to prioritise people with learning disabilities as part of its acute waiting list response. It could do that because it was operating on a good understanding of population health needs, stratified according to real need in that area. That is what ICSs can do, and that is what we should encourage them to do.

However, there are some concerns. Ministerial powers are the number one concern of many health leaders. I do not quite understand it, to be honest; I am not convinced by the introduction to the Bill from the noble Lord, Lord Kamall. The powers are sweeping. In informal discussions, I did say to him that my feeling was this: why would he want all these powers? How would he feel having them? It is the equivalent of attaching a lightning rod to your derrière and dancing blithely into the middle of a lightning storm. Why would you do it?

More seriously, let me give noble Lords an example of why this really matters in practice. Following a review of Kent and Medway’s stroke service in 2015, the local council referred a decision to create three hyperacute stroke units—HASUs—to the then Health and Social Care Secretary, who then passed it to the independent reconfiguration panel, which approved the changes in autumn 2019. The green light for the decision sat on the desk of successive Health and Social Care Secretaries until just a few weeks ago. This means that those HASUs will not be up and running until 2024. It is estimated that 25 people a year would avoid death or disability if HASUs were established, so those delays have cost lives.

These powers are not necessary. They work against the very principle of this Bill: to distribute leadership so that it is as near as possible to the people who need health and social care. I will be supporting amendments to this Bill that reduce the powers of the Secretary of State so that the Government can benefit from the principles enshrined in this Bill.

The noble Baroness, Lady Harding, summed up the position on the workforce brilliantly, ably supported by my noble friend Lord Stevens. The fact is that, without a credible plan, you plan to fail. It is as simple as that. The thing in the room that people are afraid of noting is that a proper analysis will cost money. Well, not having a proper analysis will cost lives and money.

I will say a couple of things to close. First, I support the comments of my noble friend Lord Stevens on mental health and I will support amendments that give greater clarity on that issue. Secondly, the idea that we might slow down this Bill is for the birds. We need to examine it, obviously, but we need to move with full speed because people are waiting for services that are joined up. The then chief executive of the NHS commented on the last major change as being one that could be seen from space. This is not that change. It is a change which will enable health and social care to be felt by patients and citizens, which is what I commend this Bill to the House to do—though it is not for me to commend it. However, we should support this Bill for that reason and support the leaders of our health and social care system, who have worked so hard through the pandemic. Now they want this support; let us give it to them.

Coronavirus Bill

Lord Adebowale Excerpts

2nd reading & 2nd reading (Hansard - continued) & 2nd reading (Hansard - continued): House of Lords
Tuesday 24th March 2020 Lords Chamber

[Lord Adebowale (CB)]

My Lords, I support the Bill. Clearly, we are in the throes of a pandemic, and the Government’s attempt to make it a slow pandemic rather than a fast one needs to be supported.

I want to make three points, the first of which relates to the vulnerable. It is in a time of crisis that the real values and priorities of a society become apparent, and I will reference homelessness in this regard. The homeless will be on the front line of whatever happens next in the Covid-19 pandemic, and I wonder whether we are really doing enough to ensure that they get the support that they need. I am aware of the hotels opening up rooms for the homeless, but more needs to be done to co-ordinate the efforts of the homelessness organisations, which are attempting to do their best for and with the homeless.

Here, I refer in particular to the Faculty for Homeless and Inclusion Health, formerly known as Pathway, which has been working very hard with UCL professors to ensure that there is a proper care pathway for homeless people. Will the Government ensure that organisations such as the Faculty for Homeless and Inclusion Health, which I know are struggling for funds while doing this important work to ensure that the most vulnerable homeless get the support they need during this pandemic, are supported? Will the Government go as far as they can to ensure that homelessness services are co-ordinated in their attempts to provide support for those on the streets?

That leads to my second point, which is about testing. I know that the Government are looking to bring forward testing, but what will they do to prioritise it? The World Health Organization has made it clear that we need to test, test, test; we cannot manage what we do not know. In so doing, however, it is important that we are very clear about the priorities and stratification as to who gets tested first. In my view, that should be the most vulnerable and those who are working on the front line in the NHS and other areas. Can we have some assurances about the timing of that testing and how it will be prioritised?

Moving on, I declare an interest as the incoming chair of the NHS Confederation. In preparing for this debate, I sought feedback from NHS Confederation members about the Covid-19 Bill. There continue to be concerns about PPE supplies. The Government need to work closely with the NHS Confederation and providers in ensuring that supplies are available for those in most need on the front line. I am receiving emails from doctors and nurses who are very concerned about the supply of PPE to them and their colleagues.

I have mentioned that testing must be ramped up for all staff; staff in the NHS need to be prioritised. We welcome the £5 billion emergency fund in the Budget for public services, but we need to ensure that money can be accessed quickly to manage additional workloads and to cover absences due to staff sickness. Relaxing the rules on PCN underspends would be a positive enabler of this. Further, there is a need for care and nursing home staff, who will require training and preparation for scale, which will be difficult.

I should mention the efforts being made to make transport more available for staff on the front line. I am concerned: I have read reports that reducing transport has an impact on staff who work shifts, particularly in London, and there are reports of overcrowding.

Before I leave this issue, I note the self-employed. Notwithstanding the Government’s statement on the self-employed, I am concerned, because I am aware that people who are self-employed in the health and social care sector feel forced to go to work in order to put food on the table. I note the Minister’s comments on the self-employed. Shakespeare, of course, wrote some wonderful works during a time of stress, but I note that he had a patron; these people do not. It is very, very important, not just for their welfare but for the welfare of all of us, that people are not forced into a position where they have to work in order to feed their family and put a roof over their kids’ heads. I hope that those proposals are brought forward now and are focused with particular rigour on those in the health and social care sector.

Finally, I know the Minister is aware that social enterprises are also businesses. Some 38% of community services are provided by social enterprises. They need to be treated in exactly the same way as other providers in the health and social care sector. Indeed, the fact that social enterprises are run not just to provide dividends should be taken into account as a favourable aspect of them. I am sad to report, however, that many social enterprises have not yet received the communication that others in the health and social care sector have, and some are relying on emails being passed via CCGs. Details of reimbursement for any additional services are not being provided to the social enterprise sector, and day-forward and other Covid-19 payments have not been extended to social enterprises, nor have evaluations of supply of PPE. This is important, because social enterprises tend to provide services in our poorest communities. Not many Peers have mentioned the fact that those are the communities that will suffer most from this pandemic. I urge the Minister to communicate with social enterprises and ensure that they are treated in exactly the same way as other providers of health and social care during this crisis.

Mental Health Units (Use of Force) Bill

Lord Adebowale Excerpts

2nd reading (Hansard): House of Lords
Friday 7th September 2018 Lords Chamber

[Lord Adebowale (CB)]

I rise to put forward my view on the Bill. Before doing so, I congratulate Steve Reed in the other place and the noble Baroness, Lady Massey, on bringing the Bill forward. I agree entirely with the points made by the noble Baroness and the noble Lord, Lord Harris. I declare my interests as a board member of NHS England and the chief executive of Turning Point, which provides services to people with mental health challenges.

Before I begin, I want to raise an issue that came out of my work in 2012 looking at the Metropolitan Police’s response to mental health. I looked at 55 deaths associated with the police response to mental health before they got anywhere near a mental health unit. All of them involved the use of pain restraint, which has resulted in the deaths of too many individuals. I ask the Minister to take a look at that report in considering his approach to the Bill. The Bill is excellent and goes a long way to resolving some of the issues, but I do not feel that the concerns raised in bringing the Bill to the House will be fully addressed until we can look at the police response to mental health. I am more than happy to forward to him my commission’s recommendations.

As I said, the Bill is very welcome. It could take the next few steps to provide strong guidance; it would be a shame if it could not. It is very rare that the voluntary sector’s lobbying on these issues is so in tune with the Government’s support for a Bill, such that we should take into account almost word for word what it is saying in the Bill’s accompanying guidance. Its recommendations are sensible and clear on extending the definition of the use of force to cover threats of the use of force and coercion, which, as I have observed when talking to patients in mental health institutions, can be a real restriction on their ability to receive good care.

The guidance needs to clarify that force cannot be used with the intention of causing pain, suffering or humiliation, save for the purpose of lawful self-defence. That would also be helpful. It needs to ensure that a mental health unit’s policy includes a commitment to reducing the overall use of force and to clarify that the post-incident reviews need to take into account the patient’s perspective and that of their relatives. When you have looked into the eyes of relatives who have suffered the tragedies of deaths as a result of restraint, you can see how important that is. Ensuring that the patient’s legal rights advocacy relating to use of any force is communicated to them would also be sensible and entirely appropriate. Establishing proper standards of training in these units would also be useful.

We need to take into account two points. It is vital that we eliminate any loopholes in the recording of the use of force of any kind in units, such that we can have transparency. We have to ensure accountability and transparency in the use of force, in particular the disproportionate use of force on those people from black and minority ethnic communities. It is a burning injustice that this issue has been allowed to continue. The statistics tell the story but we do not react to them. We should publish those statistics so that we can see just how disproportionately it affects those people from minority ethnic groups.

This is a good Bill that is supported by expertise from outside the House. It would be a shame if were not to use that expertise to strengthen it and the guidance that supports its implementation.

People with Learning Disabilities

Lord Adebowale Excerpts

Thursday 12th June 2014 Lords Chamber

[Lord Adebowale (CB)]

My Lords, I declare my interests as chief executive of Turning Point, which provides health and social interventions for many people with learning disabilities, and as a non-executive member of NHS England. I thank the noble Baroness, Lady Hollins, for tabling this debate nearly a year after the Government responded to the report of the Confidential Inquiry into Premature Deaths of People with Learning Disabilities, and indeed just days before the start of this year’s Learning Disability Week. Obviously, I share the views that have already been expressed about the noble Baroness’s contribution to the field of care for people with learning disabilities.

The intolerable and often repeated statistics continue to stand out: 37% of the deaths that the confidential inquiry investigated could potentially have been avoided had the individuals had better care. In a sense, the points made by both noble Lords, Lord Ribeiro and Lord Patel, speak to the lack of training and knowledge necessary to care properly for individuals with learning disabilities. The situation is indeed intolerable.

The inquiry examined many issues that have been discussed and referred to by the noble Baroness, Lady Hollins, et al during their excellent contributions to the debate so far today, including the inappropriate “do not attempt cardiopulmonary resuscitation” orders, which the noble Lord, Lord Patel, referred to; problems with adhering to the Mental Capacity Act, which are, frankly, shocking; and incorrect or delayed diagnosis and poor co-ordination of care, which is also a familiar problem across health and social care as a whole for those at the sharp end of the inverse care law.

Another frustrating finding was that the concerns of individuals that their families and carers were reportedly not taken seriously enough by medical professionals in one-quarter of the cases where the individual was identified as being unwell. A case that illustrates this and shocked me was that of Henry. Despite his family’s concerns, hospital staff assumed that the bleeding from his nose and mouth was because he had bitten his tongue while fitting, but it was later discovered that he had actually been suffering from a brain haemorrhage. Mencap’s excellent report, Death by Indifference, gives many cases that are, sadly, even more shocking than that one, and refers to the fact that although family members and carers may not be medical experts, they are experts with valuable insights and are well placed to know when something is just not right. They, after all, are the ones who know the individuals best and understand their needs.

The service has to be able to properly understand and respond to people’s needs. That is one of the key challenges that I will come back to shortly. First, I turn to some of the inquiry recommendations and the Government’s response. The recommendations gave the Government and other agencies a clear path to follow: identification of people with learning disabilities; reasonable adjustment audits; named healthcare co-ordinators; improvement of annual mental health checks; Mental Capacity Act training; clarity around “do not attempt cardiopulmonary resuscitation” orders; and better local and national learning disability data, to name but a few.

As I have found in my own work carrying out inquiries into deaths associated with mental health, the implementation of policies, guidance and recommendations is key to success. While the Government’s response last summer was welcome, it lacked a clear timetable for improvements, given the urgency needed. There was a shying away from the recommendation for a national learning disability mortality review body, and this is of concern. However, I now understand that resources have been made available and work is under way by NHS England to establish how a mortality review function would work, which is strongly welcomed—although, if I were to be critical of a body on which I sit, I would have to agree with the noble Lord, Lord Rix, that it has taken too long. When NHS England was established, one of the first things we did was spend time with people with learning disabilities in an attempt to understand health and social care from their point of view. We have to start implementing a little faster what they told us.

The inquiry’s revelations are everyone’s problem, and improvements need to happen at local and national level and across different agencies and among health services and providers. The Government need to continue to provide the leadership needed for change to happen as robustly as they did in the wake of Francis inquiry. No doubt we will hear more from the Minister today on other progress since the Government’s response was published. At the heart of the inquiry was the fundamental issue of meeting and responding to people’s needs properly. That is often about changing deeply rooted ways of working, treating people as individuals and avoiding one-size-fits-all approaches or making assumptions about people. In short, it is about equality.

As Sir Jonathan Michael said in his 2008 inquiry into healthcare for people with learning disabilities, and as the confidential inquiry also highlighted, equal does not mean the same. Reasonable adjustments to enable people with learning disabilities to have parity of access to health services are not particularly difficult to make, and we should not pretend that they are. Health and social care service providers across the board must be able to respond to the needs of the people who they serve, rather than the other way round. Although there is much talk about hard-to-reach groups, we should look to improve hard-to-reach services. This again comes back to involving individuals and their families and carers in their health and social care. We are not going to make improvements without doing this, and if we want to be able to offer tailored and relevant services, we should involve people as a matter of course.

In conclusion, we also need to learn lessons from the past because if we keep doing what we have always done, we will get what we have always got. As the confidential inquiry team noted, optimism that lessons had been learnt from past reviews was quashed during its work, which showed that the same issues are resurfacing, which is simply unacceptable. The inquiry’s recommendations offer a significant opportunity, so they need to be address as a matter of urgency alongside improving the care culture and responding better to people’s individual needs. People with learning disabilities must receive the same standards of care as everyone else. They must also receive the same level of determination from the Government to lead the improvements that are needed.

Mental and Physical Health: Parity of Esteem

Lord Adebowale Excerpts

Thursday 10th October 2013 Lords Chamber

[Lord Adebowale (CB)]

I start by thanking the noble Lord, Lord Layard, and the noble Earl, Lord Howe, for bringing forward this debate on what is a vital issue not only for our health and social care systems but for society more widely. I should declare my interest as the chief executive of a health and social organisation called Turning Point, and I will draw on some cases that Turning Point has come across to illustrate why parity of esteem is so important. I should also declare my interest as a non-executive director of NHS England. Many of the points made by other speakers, including the noble Lords, Lord Layard, Lord Alderdice and Lord Stone, and the noble Baroness, Lady Murphy, I take to heart, and they can be assured that I will be making those points around the table of NHS England.

The strategy, No Health Without Mental Health, and the subsequent implementation framework make it clear that mental health is everyone’s business: one in four adults and one in 10 children in the UK are experiencing mental health issues at any given time; 30% of the 15 million people with a long-term health condition also have mental health problems; and, as has been pointed out by the noble Baroness, Lady Murphy, within a prison environment up to 90% of the population experience one or more mental health conditions, often alongside substance misuse and/or a learning disability. Given this and the costs of mental health, calculated by the Centre for Mental Health to be £105 billion, it is frankly shocking that huge disparity still exists between those with a diagnosable mental health issue and those without. As has already been mentioned in the debate, this results in there being an unacceptable difference in the life expectancy of those with a severe mental health condition and those without of between 16 and 25 years.

I want to illustrate my contribution to this debate from the perspective of people who have mental health issues, and perhaps I may do so by presenting to the House three very short vignettes. The first is a case that has come to the attention of Turning Point. It illustrates a lack of consideration of an individual’s whole needs. It concerns a chap called Fred, although I have changed his name. He has a learning disability and a history of poor eyesight, which staff assessed as contributing towards his high levels of anxiety. Staff working closely with Fred arranged for him to access specialist optical services. It was found that he had a detached retina and cataracts were diagnosed, leading to surgery. Following this surgery, a decrease in what had been perceived as “challenging behaviour” was clearly evidenced. This is someone who, because of a physical illness, had been classed as severely problematic.

The second case concerns professionals failing to work together. Alan had enduring mental health issues when he experienced a stroke and was admitted to the local hospital from one of our residential services. While in hospital undergoing rehabilitation, Alan had all medication reviewed by a ward doctor. The doctor, knowing that Alan had a mental health condition, decided without any discussion with him, the care manager or psychiatrist to stop his medication, even though it had a multiple purpose. It could be used to reduce mood swings and also to treat epilepsy. The hospital doctor stated that, as Alan did not have epilepsy, the medication could be stopped with immediate effect. This had a detrimental effect on his mental health—something that the doctor appeared to be ambivalent about, having not once discussed anything other than Alan’s physical needs with any member of his care team.

The final case is, I think, the most shocking example and most immediate in case we have any doubt that these issues are taking place right now. It involves a support worker who just happened to be at the bedside of one of our clients. They noticed that the file was open and that there was a “Do Not Resuscitate” note in it. Luckily, the care worker knew that no such thing had been discussed with the individual’s next of kin. The support worker challenged hospital staff and was told that because the individual was a mental health patient and under a Home Office order, he had “no priority of life”. Because our member of staff challenged this, the DNR note was removed, but the fact that it was there in the first place highlights the discriminatory treatment that people with a mental health condition can face, which is compounded when other complex needs are applicable, such as offending behaviours or a learning disability.

The implications of introducing parity of esteem are wide-ranging and they highlight the vast amount of work still required to make it real. Rhetoric, commitments and case studies have highlighted the need for parity but there are certain things that have to happen if this is to be embedded throughout the health and care system.

We will simply not achieve parity of esteem without first addressing equality of access and experience. This means breaking down the cultural barriers that still prohibit people from black and minority ethnic communities receiving the support that they need. As the Mental Health Foundation has found, people from BME groups are more likely to be diagnosed with mental health problems, more likely to be diagnosed and admitted to hospital, more likely to experience a poor outcome from treatment—this has been repeated in annual surveys of people in mental health institutions —and more likely to disengage from mainstream mental health services, leading to social exclusion and a deterioration in their mental health.

Staff at all levels of the health system, including GPs and A&E staff, must receive adequate training in mental health. So, too, should the police—something that was brought very much into my experience when I chaired the Commission on Mental Health and Policing. The police are too often the first point of contact for people experiencing a mental health crisis.

The commission reported that one of the clearest examples of disparity between physical and mental health was in regard to how the police and ambulance service respond to a crisis. If I or one of your Lordships had a heart attack—heaven forfend—I can guarantee that an ambulance would arrive within eight minutes. If I had a mental health crisis, it is more likely that I would be carted away by the police and it is highly likely that I would be put in the back of a police van. Such disparity has led to the deaths of too many people, particularly from BME groups. Responding to crisis is a whole other debate but, for me, it is the very start of any definition of parity of esteem. If you cannot have parity of esteem when you are in crisis, when can you have it?

Finally, I turn to something that I spoke about a lot when the Health and Social Care Bill was going through the House: the issue of integration. Until we have a health and care system that looks at the whole person and designs, commissions and delivers services in conjunction with the community to ensure that they are fit for purpose, fragmentation will persist. People will continue to receive disjointed care where their mental health issue is not considered alongside their physical health condition because it is not a priority or is not understood well enough.

The implications of embedding parity certainly will be challenging and require people to work differently, but if we do what we have always done, we will get what we have always got, and the experiences of the people that I have highlighted show why this is no longer acceptable.

Care Bill [HL]

Lord Adebowale Excerpts

Monday 22nd July 2013 Lords Chamber

[Baroness Tyler of Enfield]

My Lords, I will speak to Amendments 92BA and 104ZA. My noble friend Lady Browning and the noble Lord, Lord Touhig, whose names are also attached, are not in their places.

I welcome the attempt in the Bill to tackle the issue of transition from children’s services to adult social services and to try to make it work for young people. Clauses 55 to 63 undoubtedly present an important step in the right direction. However, some improvements are needed to ensure that the Bill provides the appropriate legal basis for the smooth transition for young people from children’s services to adult services that I am sure we would all like to see, and to remove the cliff edge that has been referred to in this and previous debates.

First, Amendment 92BA relates to Clause 63, which is about the continuity of services and is designed to ensure that if adult care and support is not in place by the time the child reaches 18, the services they receive under other legislation will continue until adult care and support is put in place. The potential for this change to benefit young disabled people making the transition to adulthood is very much to be welcomed. However, the benefits outlined in Clause 63 apply only if a request has been made for a child’s needs assessment by the time that child turns 18. The concern remains that some young people will not be able to benefit from this protection because they or their parents or carers will not be aware that they need to request an assessment by the time they are 18. Therefore, the amendment would ensure that every child who is receiving support under the relevant legislation and is likely to continue to have a support need after the age of 18 receives that assessment and the benefits that flow from it.

With regard to Amendment 1042A, as I have said in some of our earlier debates on the Bill, there is an overlap in the jurisdiction between this Bill and the Children and Families Bill, which specifically relates to social care for young people entering adulthood. The proposed new education, health and care plans, which the Children and Families Bill sets out to introduce, are at the very centre of this debate. If the aim of the current legislation is to create a better, joined-up system—as I think it should be and I am sure that other noble Lords agree—it is vital that the Care Bill makes reference to these EHC plans.

I will briefly explain that important link between the two Bills. At the same time as the Care Bill aims to bring adult social care into the 21st century, the Children and Families Bill aims to create a new joined-up system of support for children and young people with special educational needs between the ages of nought and 25. Plainly, with the Care Bill applying to adults from the age of 18 and the Children and Families Bill setting out the framework for children and young people up to the age of 25, there is an overlap in the 18-to-25 age range. It is vital that these plans are able to talk to each other if we are really to have the sort of integrated system that we all want, and if we are to achieve that desired goal of a one-stop shop of services that young people can access when they need them.

I support many of the other amendments in this group, but shall not spend time going through them.

[Lord Adebowale]

My Lords, I support Amendments 92B, 92C and 92D, which are also in the names of the noble Baroness, Lady Pitkeathley, and the noble Lord, Lord Patel, who have spoken eloquently on this matter. I declare an interest as the chief executive of Turning Point, which provides health and social care to many young people in the process of transition. I know, as we all do, that transition can be a very delicate process if not done well. Young people slip through the net between children’s and adult services and begin their adult lives without adequate care and support, which risks deterioration of physical and mental health, and the escalation of need to the point of crisis. That is both immoral and expensive.

The Bill goes a long way to improve the current situation. I am pleased to hear that Ministers informed the House during an earlier session that discussions between the Department of Health and the Department for Education about the links referred to between this Bill and the Children and Families Bill are already taking place. These transition amendments offer an opportunity for us to go further—it is quite rare for a Bill to offer an opportunity to do something quite brilliant for young people—and to ensure that all young people receive support under other legislation. That support is likely to continue after young people reach 18 and they will receive an offer of a needs assessment from their local authority. Importantly, this process will begin in good time.

This includes those young people—or their families and carers, as has already been mentioned—who have not themselves requested an assessment. It is an important addition to recognise that there may be cases, as mentioned by the noble Baroness, Lady Tyler, where a family just does not realise that they need to request an assessment. Good transition is about helping to ensure that local authorities are better prepared to meet the needs of young people. If assessments can be conducted earlier, so long as this is what young people and their families want, care and support can be in place sooner, and there is less risk of people’s needs escalating to the point of crisis.

I hope that the Minister will agree that the assessment process needs to begin in good time, and that he can assure the House that those who do not themselves request an assessment will also be able to benefit from the improvements that this Bill offers.

[Lord Warner]

My Lords, I will make two quick points, the hour being late. The Government need to look again at the way this Bill works with the Children and Families Bill. These arrangements look clunky for those moving from childhood into adulthood. The real problem is that this Bill does not seem to work on the basis that many, if not most, of these children will be known to the same local authority. Why, then, is this Bill framed as though they are strangers coming into the system, in which the local authority is permitted to involve them? The local authority should have an obligation to make seamless the move from childhood to adult services. The Bill does not really deliver that. The Government need to look again at that transition point, and reconcile the Children and Families Bill and the Care Bill, because they do not work together as well as they might.

National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013

Lord Adebowale Excerpts

Wednesday 24th April 2013 Lords Chamber

[Baroness Masham of Ilton]

My Lords—

[Lord Adebowale]

My Lords—

[Noble Lords]

Minister!

--- Later in debate ---

[Lord Adebowale]

My Lords—

[Noble Lords]

Minister!

[Lord Adebowale]

My Lords, I will be brief. I have sat through this debate patiently and I understand the impatience of the House to hear the Minister. I should declare my interest. I have listened to the debate very carefully as a non-executive director of NHS England, the chief executive of a not-for-profit provider of health and social care services in partnership with the NHS and as a board member of a small private company that provides services to the NHS.

I just want to say a couple of things. First, I am absolutely committed to the NHS. My mother was a nurse for 30 years. Listening to the views of the House, it would be possible to slip into a pit of despair having heard the descriptions of the dystopian future that awaits us all if either side of the argument is accepted whole-heartedly. The truth probably lies somewhere in the middle.

However, in reference to the issue of guidance, it might be worth the House hearing that NHS England and Monitor are working in partnership to develop a choice and competition framework. Guidance is important; it is not just the law, but how it is interpreted. The statement that NHS England and Monitor have made points out clearly that: patients and their interest come first and the use of competition must be in patients’ interests; the use of competition must be based on evidence, not ideology, and it is the evidence of what will improve outcomes for patients that matters; commissioners will decide when to introduce competition beyond patients’ rights to choice set out in the NHS constitution—something that not many people have mentioned during the course of this debate, but which has a huge impact on its outcome; where there is poor performance there is an expectation that commissioners will use all the tools available, including competition where that will improve outcomes for patients; and there is a need to strengthen the evidence base further on the potential benefits of introducing competition.

Given that some of the concerns associated with the regulations are about how they will be interpreted and applied in practice, do the Government believe that the regulations are consistent with these principles of how competition should be used in practice and as set out in the agreement between NHS England and Monitor?

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, we are debating a set of regulations on which, as we have heard this evening, a great deal of passion and a large quantity of printers’ ink has been expended over recent days and weeks. I would like to begin with three very simple statements, which I hope will be helpful as mental marker posts before I respond to the concerns and questions that have been raised.

First, amid the many changes that the Government have made to NHS commissioning, one area of the law that we have not changed one iota is the law relating to competitive tendering. That law has been in place for a number of years. It has been governed by a European directive, and as regards the rules that govern NHS procurement, these regulations usher in nothing new at all.

Secondly, there is no government agenda to privatise NHS services—quite the contrary. The House may remember that we made it illegal in the Health and Social Care Act for the Secretary of State, Monitor or NHS England to have a policy of deliberately favouring the independent sector.

Thirdly, it is NHS commissioners and no one else who will decide whether, where and how competition in service provision should be introduced. These regulations do not confer any obligation on commissioners to create or promote markets, nor do they require commissioners to unbundle or fragment services against the interests of patients.

I begin with these simple statements because they are key to understanding what the Government are doing and what they are not doing. What we are doing, above all, is having a set of arrangements in place that will protect the interests of patients. The basic purpose of the regulations is to prevent commissioners failing to think about how the needs of their patients can best be met. Equally, their purpose is to ensure that commissioning in the NHS is protected from abuses arising from conflicts of interest or anti-competitive behaviour that works against the interests of patients. There is no encouragement in these regulations, explicit or implicit, to commission services from the independent sector, or indeed any other sector. The regulations enshrine the principle that patients must receive services from the providers, from whichever sector—public, private or voluntary—that are most capable of meeting their needs and improving the quality of services that they receive.

Mechanisms to make sure that this happened were put in place by the previous Administration. These mechanisms consisted of the Principles and Rules for Co-operation and Competition, which were overseen by the Co-operation and Competition Panel. Now that primary care trusts no longer exist, we need to carry over those arrangements so as to apply them to clinical commissioning groups. The Government committed, in their response to the NHS Future Forum report, to maintain the previous rules and place them on a statutory footing in order that they could continue to apply to commissioners. That is exactly what we have done; the panel has been transferred into Monitor, so that there is absolute continuity in how the rules will be applied.

This is a key point for noble Lords to understand. Monitor is now the sector-specific regulator for the NHS. In practice that means that it, not the courts, will be the guardian of patients’ interests and will adjudicate if allegations of anti-competitive conduct arise. In effect, it will act as a firewall between commissioners and the courts. If the House annuls these regulations, that firewall will disappear and I suggest to the House that this could not possibly be in the interests of the health service.

The regulations also make it clear that Monitor has no powers to direct commissioners to go out to tender, which brings me to Regulation 5(1). People who have looked at that regulation have stated that it requires commissioners to go out to tender for just about every NHS service. That is not so. It is not even remotely near the reality. First, the wording of Regulation 5 which refers to “one capable provider” is almost exactly the same as that of the previous Government’s guidance to PCTs. My noble friend Lord Clement-Jones was quite right in pointing this out. I shall now read from that guidance. It said that PCT boards “must act transparently” and without discrimination,

“and be able to demonstrate rationale for decisions on whether or not to competitively tender. In particular, where the commissioner decides to procure through single tender the rationale must demonstrate that there is only one capable provider to deliver the services”.

The circumstances in which a commissioner may therefore award a contract without a competition under the regulations are exactly the same as they have been up to now. There is no daylight between them.

It is worth my making a point about that guidance. It was not guidance that PCTs could take or leave but guidance that was declaratory of public procurement law, which applied to PCTs, so those who think that we are replacing a rather loose arrangement with something more stringent are mistaken. The law was binding before and it is binding now. These regulations are declaratory of the existing legal position, just as the previous Government’s guidance was. However, we also need these regulations to ensure that the various protections for patients and commissioners afforded by Monitor, as agreed during the passage of the 2012 Act, are in place.

We have heard concerns this evening from the noble Lord, Lord Davies, about what might happen to the unbundling of hospital services. I would like to put that misconception to rest. Elective hospital care is not relevant to these regulations. The previous Government brought in a policy known as “any willing provider” for elective hospital services. We have continued with that policy, which means that patients have a free choice between hospital providers who meet NHS quality standards and contractual terms. There is therefore no question of tendering for those services.

In the main, the services where tendering might be relevant are those delivered in the community and certain more specialised services. Again, the overarching principle to guide commissioners is Regulation 2—to do what is in the best interests of their patients. In some circumstances, tendering may be appropriate, but in many cases it will not: for example, where there is only one provider capable of providing the integrated package or pathway of services which the commissioner wishes to secure for its patients. In another situation, they may judge that only one provider is able to meet the clinical quality and safety standards that they require. They may decide not to tender where they conclude that it is necessary for services to be co-located because of the interdependencies between them—a point raised by the noble Lord, Lord Davies, once again—in order, for example, to ensure patient safety.

It is worth looking at the actual wording of Regulation 5(1), which says:

“A relevant body may award a new contract … without advertising … where the relevant body is satisfied that the services to which the contract relates are capable of being provided only by that provider”.

The relevant body has to be satisfied. This means that a commissioner needs to go through a process to make sure that it is taking sensible decisions that genuinely address the interests of its patients. In other words, it must have a rationale for what it does and be satisfied that it is doing the most appropriate thing. As long as it has that rationale, that is where the matter ends. I repeat: in those circumstances there is no one who can oblige the commissioner to go out to tender.

Those who maintain that these regulations usher in a lawyers’ charter are not looking at the evidence. The evidence to date tells us that only a tiny handful of cases have been referred to the Co-operation and Competition Panel in the space of several years. I can tell the noble Baroness, Lady Hollins, that none has gone to court. Since the rules on NHS procurement are staying exactly the same, I fail to see why we should expect a sudden avalanche of challenges to commissioning decisions.

As I said during the passage of the Health and Social Care Act, there is no requirement in these regulations or anywhere else to create markets. Nor, as I have said, is there any requirement for commissioners to unbundle or to fragment services to facilitate competition: in other words, to separate out individual services so they could be provided by a larger range of providers. The decision whether and when to create these conditions and the services to which they apply remains entirely with commissioners.

One of the arguments produced by the noble Lord for annulling these regulations is that they lack clarity, particularly Regulation 5(1). I suggest that is a specious argument. First, the law has not changed. Secondly, employees of commissioning support units, whose job it is to support CCGs in commissioning decisions, are very largely the same people who did exactly the same jobs in PCTs and are entirely familiar with this area of the law. Thirdly, there is already guidance out there, produced by the NHS Commissioning Board Authority last year. Fourthly, Monitor will be providing further guidance to support commissioners in understanding the circumstances in which single tender is appropriate, including specific case studies. This guidance will be consulted on shortly. Monitor will continue, as the Co-operation and Competition Panel did before it, to provide informal advice to help commissioners understand the regulations. We really do not have to worry about lack of clarity here.

I turn now to one or two of the specific questions that were posed in the debate. The noble Lord, Lord Owen, asked why other countries have not applied these procurement laws. All member states in the European Union have been required to transpose the EU directive on public procurement into their own national legislation. In fact, it has been applied in Wales and Northern Ireland through the Public Contracts Regulations 2006.

The noble Lord, Lord Hunt, maintained that the OFT’s role in mergers is evidence of the Government’s agenda to marketise the NHS. First, that issue is in no way related to the regulations that we are debating tonight. Perhaps I could remind the noble Lord that the OFT is acting independently under the powers conferred on it under the previous Administration through the Enterprise Act 2002.

With regard to the Competition Commission gagging clinicians in the Bournemouth and Poole merger case, I suggest that that is not relevant either. My understanding is that those arrangements are simply to prevent the merger proceeding further while it is being reviewed. They should not get in the way of providers co-operating with each other in the usual way in the interests of patients. The noble Lord said that Monitor is anti-bundling and that it would be policing the regulations at the same time. That is misleading. Decisions about whether or not to bundle services are not for Monitor to make; they are squarely for commissioners to take in the best interests of their patients, and Monitor is under a duty to enable integrated services.

The noble Lord, Lord Owen, raised concerns about charities. I have seen the brief from National Voices, Marie Curie and others in this regard. Those concerns are helpful in illustrating the point that there is no one-size-fits-all approach to the commissioning of services. It is interesting that some stakeholders have raised concerns about unbundling leading to fragmentation, while others are concerned about the effects of bundling too many services together. In practice, it is for clinically led commissioners to take decisions on whether or not services should be bundled in the best interests of patients. That is their job, and these regulations do nothing to require them to bundle or unbundle, as I have said.

The noble Lord, Lord Davies, asked me whether the regulations take into account the financial viability of hospitals and economies of scale. First, I remind the noble Lord that these regulations are not relevant to the vast majority of elective hospital services, so they do not herald the prospect of large numbers of services being hived off. Secondly, it is for commissioners to make decisions about the need for services to be bundled or co-located, as I have said. It is not in their interest to destabilise providers. Thirdly, the NHS tariff is being improved in order to ensure that it is properly reflective of the costs faced by providers. This would mean that profit-making services would no longer need to cross-subsidise other services.

The noble Lord, Lord Hunt, asked me why there is no contract value threshold below which commissioners do not have to go out to tender. Where the value of a contract is such that it would be disproportionate for the commissioner to hold a tendering exercise, there is no requirement under the regulations or the law to do so.

The noble Baroness, Lady Hollins, said that Monitor should publish figures relating to the cases that it considers. Paragraph 21 in Schedule 8 to the Health and Social Care Act 2008 requires Monitor to publish an annual report on the exercise of its functions and lay a copy before Parliament, and to provide the Secretary of State with such other reports and information relating to the exercise of its functions as the Secretary of State may require. We would also expect Monitor to publish reports on cases considered by it, as the Co-operation and Competition Panel has to date.

I of course took due note of the criticisms made by your Lordships’ Scrutiny Committee. However, I would say that there was a formal public consultation on the requirements of the original set of regulations between August and October last year. Engagement events were held up and down the country. The response to the consultation demonstrated broad support for the proposals from a wide range of stakeholders. The revised regulations did not substantially change the policy, and for that reason I suggest to the Scrutiny Committee that further consultation was not necessary.

Let me be clear about what we would lose if the regulations were not in place. The main thing that we would lose is the adjudication role of Monitor as an expert health sector regulator with an overarching statutory duty to protect and promote patients’ interests. That would mean that NHS commissioners would be exposed to the full force of public procurement law, as interpreted by the courts. I firmly believe that in that situation we would be more likely to secure the very kind of risk-averse behaviour by commissioners that some have argued today must be avoided. In addition, without the regulations, patients’ right to choice under the NHS constitution would not be protected; commissioning processes would be much less transparent and accountable; we would lose safeguards to protect against and address conflicts of interest, discrimination and anti-competitive conduct that work against the interests of patients; and requirements to ensure that the objective of procurement must always be in pursuit of meeting the needs of patients and improving quality would not be in place.

Although in one sense, the regulations can be seen as unexceptional, because they largely carry forward existing rules and arrangements; but in another sense they are more than that. They are vital for anyone who believes that the central interest that the NHS should have at its heart is that of the patient. With that observation in particular, I urge the noble Lord to withdraw the Motion.

Health and Social Care Bill

Lord Adebowale Excerpts

Tuesday 6th March 2012 Lords Chamber

[Lord Adebowale]

My Lords, I had not planned to speak in this debate but, having heard the contributions of many noble Lords, it is important perhaps to indulge in reminding the House that competition does not revolve around just what one might call private and public. I am the chief executive of a social enterprise organisation, which some might consider to be a new entrant into the health and social care market. However, in substance misuse and learning disabilities, it is a significant, historical provider of services to members of the community and the provision of long-term condition management.

The debate around competition becomes polarised very quickly, as has been pointed out in earlier contributions to this debate. I am in favour of competition. It seems to be currently the case in the NHS that we have competition. I am concerned about the way in which the market is managed. Let me illustrate this with an example: it is possible for a new entrant into a care market—say, delivery of community health services —with very little experience in that market to win a substantial contract against an incumbent provider with vast experience and an excellent track record simply because the interpretation of the way in which procurement rules need to be managed means that that a not-for-profit provider gets ruled out. That happened recently in reference to the provision of community health services in Surrey and the Surrey nurses.

The safeguards that I want to see in regard to competition are those that protect public taxpayers’ money in the procurement of health and social care services. Again, we tend to concentrate on hospitals, surgery and related issues. These days, the health service is as much about what happens in the community. I am concerned that we have safeguards in place to protect health and social care services from new incumbents with a poor track record, or no track record, which can bid at or below cost and win simply because the procurement rules rule out not-for-profit providers who may not be able to access capital. I refer to the intention of this Government to bring in laws that would encourage social value and social enterprise.

It would be helpful for the House to be reminded that the players in the health and social care market are no longer just public and private. The market has to be managed in favour of a mixed economy and in favour of retaining resources in the public realm that could be pulled out in a simple battle between private capital and public service. I hope that my contribution has made sense and I apologise for keeping the House.

[Lord Turnberg]

I shall speak in support of Amendment 165 in the name of the noble Baroness, Lady Finlay of Llandaff. This amendment is designed to ensure that Monitor encourages integration and collaboration. In all that, it is important that Monitor ensures that the operation of the system of payment by tariffs does not interfere with that integration and, at worse, adds to the costs of the health service.

I shall give two examples of where the tariff system might be counterproductive. The first is in relation to the hospital admission of a patient who goes home, is readmitted and may be readmitted several times. It is in the hospital’s financial interest to have these episodes of care because it gets paid by the tariff each time the patient comes in. There is no inducement in the hospital to try to enlist social services. I am sure that it does, but the system works against that and tends to promote readmission as a way of earning money.

The second concerns patients who are in the hospital for one condition and develop a condition relevant to another consultant. For example, a patient may come in with an orthopaedic problem such as a broken hip, and then develop an acute episode of diabetes, so there is a need to call for a diabetologist to look after the patient’s diabetes. That requires a rather tortuous consultation process which involves a second episode and a further payment by the tariff system. Those are two obvious and common examples of where integration is interfered with by the system we are operating.

I know that the Government are not keen to change that sort of system, but there must be ways for Monitor to look at it critically and see whether the current tariff system can be made to work better than it does at the moment. I hope that the noble Earl will be able to comment on that.

Health and Social Care Bill

Lord Adebowale Excerpts

Wednesday 29th February 2012 Lords Chamber

[Lord Patel of Bradford]

My Lords, it is with a heavy heart that I find myself speaking here again on this amendment, which attempts to make changes to Clause 39. This amendment is not about politics and is not in opposition to this troubled Bill; it is about the protection of the vulnerable and those in greatest need. I set out in some detail in Committee the reasons and purpose for my amendment, which had the support of not only many Members of this House from all sides but also many leading mental health organisations in this country, such as Mind, Rethink, the Mental Health Foundation, the Centre for Mental Health, the Law Society and the Royal College of Psychiatrists. These are not agencies with vested interests; they do not gain anything from fulfilling their core purpose, which is to advocate on behalf of those who are less able to speak for themselves as a consequence of severe mental illness. We are talking about people who have suffered from severe illness—those who have been so ill and at such risk that the full powers of the Mental Health Act 1983 were used to detain them and keep them in hospital.

These are not lifestyle problems; these are not people who could have chosen a different path. They did not choose to be detained in hospital, sometimes for very long periods of time. No—these are people whom the state, in making use of its considerable powers under the Mental Health Act, has a very clear obligation and duty to protect. That protection must go beyond the time spent in hospital to include their aftercare under Section 117 of the 1983 Act. One crucial thing about that section is that it requires primary care trusts and local authority social services to work jointly together in providing aftercare. This could include a variety of necessary things such as visits from a community psychiatric nurse, attending a day centre, administering medication and providing counselling services—or, most importantly, providing supported accommodation within the community.

Under the current law, a mental health patient can expect that their PCT and local authority provide the aftercare package in an appropriate way, including sorting out the funding between themselves. These vital services cannot be taken away until the PCT or local authority are satisfied that the person no longer needs them. I am not suggesting that Clause 39 would stop the provision of aftercare. What I am saying, and what many other experts in mental health and the law are saying is that that will have profound effects on how that aftercare is delivered and paid for, effects that fall down like dominoes with insidious and devastating impacts. For example, the clause removes the duty of co-operation in delivering aftercare services between the health service, the local authority and the voluntary sector, which makes what is a freestanding duty into a gateway provision. As a consequence, it provides a backdoor route by which aftercare services for detained patients will become chargeable.

I am grateful to the noble Baroness and the noble Earl for making time to meet the noble Lord, Lord Adebowale, and me to discuss our concerns. Unfortunately, this has been to little avail since, as your Lordships can see, there is no change to this clause. With the greatest of respect, I have to say that the Minister and indeed the officials in the Department of Health do not understand the full import of the changes that will be brought about by this clause. At least, I hope it is a misunderstanding because I am at a complete loss as to why our concerns have not been addressed.

Let me briefly give some examples of why I believe this clause will be so damaging. I take these from the Local Government Ombudsman, who became involved following several complaints about the application of the current law. I will explain why this is important in a moment, but let me first give your Lordships some of the detail of these cases. The first concerns a woman, Mrs Wilson, who, following a period of detention under the Mental Health Act, required care in a residential home as part of her jointly agreed aftercare. Yet despite the clear meaning of Section 117 of the Mental Health Act she was charged by the local authority for this care, resulting in the loss of her home. She was also discharged from a Section 117 agreement without her or her mother Mrs Walton, who was her main carer, being either involved or consulted in the decision, which was yet another breach of the clear meaning of the Act. The ombudsman found that the local authority had failed in its duty to provide aftercare, and in its duty to consult the patient and their carer.

The exact same issue—a failure to involve people in decisions, and inappropriate and illegal charging for services—arose in several other cases, such as with Mr Hughes’s sister, who was placed in a care home after being discharged from hospital, again under a Section 117 agreement. She, too, was charged for the costs of her social care and lost her home as a result. Despite clear advice from the Department of Health about Section 117 services being free, the council continued to apply charges. The ombudsman decided that,

“the Council’s delay in changing its policy amounted to maladministration, and that there was no reason why, with reasonable diligence, the policy could not have been changed some two years earlier than in fact it was. And this was a case where such diligence was required”.

It most certainly is required. I could go on and give many examples. The lady in question was being charged £256 a week for her aftercare, even after the legal advisers at the time said that this should have been free. At the time of the ombudsman’s decision, Mr Hughes’s sister had in fact paid costs amounting to £60,000.

Why are these cases so important? It is because they illustrate, even with the protection of the freestanding duty, that local authorities sought to break their agreements without consultation and did everything in their power to charge the people in their care for services that should most certainly have been free. That is the key to the issue in this argument. If this is how local authorities are applying the current law, what can we expect when they are freed from the duty of this care as Clause 39 seeks to do? They did that in a time of plenty, so what shall we see in the current challenging economic climate? What then for the vulnerable people who are coming out of hospital after having been detained under the Mental Health Act?

My amendment is about ensuring that this does not happen, and that even though it is not perfect we keep the joint duty, so that aftercare can be recognised and responded to in ways that are appropriate and necessary. The Minister has argued that this is about tidying up and aligning the legislation. It is exactly that alignment—that so-called tidying up—that causes the problems. I am reliably informed by legal advisers that introducing reference to the 2006 NHS Act in the way that this clause does will import into Section 117 the power to charge for aftercare services whenever the 2006 Act allows for it. I am in agreement with the noble Baroness, Lady Murphy, who asked in Committee, “What is wrong with the current situation? Why change what are clearly essential arrangements without some serious reasons for the change”?. This does not mean just a tidying up.

My amendment is simple. It retains a clear and unambiguous responsibility on clinical commissioning groups and local authorities to provide appropriate aftercare services. It will retain these duties on the basis that CCGs and social services authorities must act together jointly. It would also ensure that CCGs continue to arrange for the provision of aftercare services under Section 117, in co-operation with the relevant voluntary agencies. Most importantly, it preserves the judgment of the Law Lords of this House in the Stennett case that this is a freestanding duty, and as such cannot be used for the charging of aftercare services under Section 117.

As I said at the start, I move this amendment with a heavy heart because we should never have come to this point on this clause. I am not making trouble and this is not about making political points, but the Government make their case for this Bill so much harder by refusing to listen to those who perhaps know something more about the impact on people's lives, especially those who are marginalised and at serious risk. The current joint duty is essential, because it means that the patient is more likely to get access to the right kind of integrated health and social care services which they need and, most importantly, that the patient has an enforceable right to those services.

Aftercare under Section 117 is free of charge because the people who need these services are incredibly vulnerable and face a very real risk of relapse or self-harm, and of becoming more isolated and vulnerable as a result of not being adequately housed in an environment that offers them the protection they so desperately need. I will not retreat from this. My duty to those who are in such critical need of our support and my conscience will not let me retreat from this. I move this amendment in good faith and I hope that the Minister, whether it is the noble Earl or the noble Baroness who replies to this debate, will accept it.

[Lord Adebowale]

My Lords, I support the amendment moved by the noble Lord, Lord Patel. I am grateful to the noble Earl for the time that he generously gave to me and the noble Lord to meet him and the civil servants. However, I was disappointed by the letter that we received following the meeting. I thought that we had driven home the point and had some sympathy from the noble Earl. I understand the need to tidy up legislation, which is an important thing to do, but I find it faintly disgusting that we are going to mess up people's lives. The legislation might be neater but lives will be made much messier.

I have just come from Manchester—from Turning Point’s offices there; and I declare my interest as the chief executive of an organisation that will be directly affected by the Bill—where we have a case of an elderly lady who has been with us for 14 months, at a cost of well over £100,000. We cannot get the NHS to pay it because it claims that it is the responsibility of the local authority, whereas the local authority claims that it is the responsibility of the NHS. That is the reality under the current legislation, even with, as the noble Lord pointed out, the provisions of Section 117.

We are told that, in tidying up, the proposed provisions will allow people who are discharged from mental health institutions to seek a judicial review if they are refused aftercare arrangements in co-operation with health and social services. I was astonished to read that in the letter. I do not know what planet the writer of the letter is on but I would welcome them to join my planet and actually visit and speak to people who are discharged from these institutions, and to talk to their families and friends, and then to come back and tell me whether they are in a fit state to seek judicial reviews against local authorities and the NHS. We must be real when discussing legislation that will affect the lives of real people who may not sit in this Chamber but who will cost us a fortune if we do not get this right.

It is with a very heavy heart that I support the noble Lord, Lord Patel, in his amendment. I hope that, at this late stage, the Government will see the obvious logic. Even in their responses to previous amendments they said that they wished to support the joined-up provision of health and social care. What better example is there of such provision than Section 117 of the Mental Health Act? It is as obvious as gravity. So we must insist—not to make a political point or reference to the Bill, but on behalf of people not in this Chamber who will cost the country dearly if we do not get it right—that the Government accept the logic of the amendment and just say yes.

[Baroness Tyler of Enfield]

My Lords, I support this important amendment. The whole basis of the Health and Social Care Bill is to place great emphasis on delivering integrated care as part of the needed reforms, and I am sure that we all support that. As the noble Lord, Lord Adebowale, has just said, though, Clause 36 in its current form will remove one of the few examples of genuinely joined-up service provision between local health and social services. A joint duty on aftercare services for these people, some of the most vulnerable in society, is crucial if they are not to have further lapses and become more and more marginalised. We talked earlier about people falling between the cracks, and that is the danger that we are in.