Health and Social Care Bill

Lord Alderdice Excerpts

Monday 5th December 2011 Lords Chamber

[Lord Adebowale]

My Lords, I support the amendment in the name of the noble Lord, Lord Patel of Bradford. I should first declare my interest as the CEO of the social enterprise, Turning Point, which provides mental health, substance misuse and LD services.

When I looked at this clause, I wondered whether there was malice aforethought but I was reassured by the civil servants that that is not the intention. I know full well that the Minister’s intention is always to be helpful. I understand that it was not the intention of this clause to wreck a partnership between health and social care that has been around since 1983 and has ensured that detained patients obtained an appropriate care plan, provided by a joint duty requiring PCTs and local authorities to work together to provide aftercare. I think that this clause was an attempt to tidy things up in some way and to provide clarity.

However, I should warn the House of the consequences of such a tidying-up exercise on the lives of detained patients. The current arrangements effectively hide the wiring about who pays and any debates on their provision of aftercare. There was a statutory curse on both the local authority and the NHS, should they fail to sort it out, which in effect has ensured that people who are detained get the care and support that they need on departure.

More to the point, experience tells me that the removal of this duty creates the very real possibility of one or other of the parties refusing to pay, thus leaving the client in an expensive limbo. The really worrying changes suggested in the clause refer to the fact that CCGs will no longer be under any duty to arrange aftercare in co-operation with relevant voluntary organisations. Furthermore, the clause goes on to state that CCGs, due to commission healthcare services, will be limited to services under Section 3A, effectively meaning—as set out by the noble Lord, Lord Patel—that health services only may be provided, thus opening up patients to funding disputes about whether they get care, and if so who pays.

There are other worrying suggestions in this clause that give cause for concern and that open up the possibility, as the noble Lord, Lord Patel, has pointed out, of charging for the services of aftercare. The question I would put to the House is: who is charging whom? Who pays under these circumstances?

In the excellent briefing provided by the Royal College of Psychiatrists, Mind, Rethink, the Centre for Mental Health and the Mental Health Foundation, a scenario was set out which I want to put to the House, because it illustrates the reality. We often debate these clauses in the absence of their real impact upon real people.

Mr B had a diagnosis of schizo-affective disorder and was unable to read or write due to also having a learning disability. He had a history of being detained under the Mental Health Act and of being discharged with Section 117 aftercare packages and then withdrawing from services in due course as his situation improved. However, as is often the case, he would then relapse and be returned to hospital. His aftercare package comprised a care worker from his community mental health team, who spent about two hours per week helping Mr B with paperwork—such as housing, rental and other benefits and community appointments—and the community psychiatric nurse, who administered medication. On health grounds, the health authority decided that the community mental health team support was to be withdrawn, but made no provision for further support with paperwork or appointments. Without that support, Mr B could not manage his tenancy, bills or get to his GP for his medication; he would certainly have relapsed quickly and stayed in a relapsed position, costing the state, the health authority and social care far more. There had been no recent reassessments of Mr B’s needs by social services and they had not agreed to the withdrawal of any services.

With the help of an advocate, Mr B was able to argue that Section 117 aftercare was his right and should not have been withdrawn without the agreement of social services. As a result, the support was left in place, he won his argument and social services agreed to review his needs before any further decision was made. That is the result of what we currently have in place. Remove that, and Mr B does not have those rights and is left in limbo.

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