NHS: Health and Social Care Act 2012 Reforms

Lord Patel of Bradford Excerpts

Wednesday 22nd October 2014 Lords Chamber

[Earl Howe]

First, let me make it clear that the Government have no regrets whatever about the NHS reforms. These reforms enabled massive savings to be made, all of which have been ploughed into the front line. Without investment in the cost of the reforms—which I concede were considerable—we would not have been able to realise these savings, nor would the NHS have been able to plough those savings back into the front line. This has enabled us to employ more than 7,700 extra doctors, and the NHS is now performing more than 850,000 more operations every year. That is the benefit of the reforms.

[Lord Patel of Bradford (Lab)]

My Lords, if there is so much investment being put into the NHS, as the Minister said, why are mental health services being cut across the country and especially in the north of England? In my own city of Bradford, our mental health care service has been cut by 23%. How do we expect mental health care to have parity of esteem when it is experiencing these kinds of cuts?

[Earl Howe]

The noble Lord raises a very important issue, which results from the fact that commissioning decisions are taken not by the Government but by clinical commissioners across the service. We are very concerned by the reports of lower resources being channelled into mental health services. A lot of work is going on, in my department and in NHS England, to make sure that those services—and, crucially, the outcomes from those services—are maintained.

Mental Health: Parity of Esteem

Lord Patel of Bradford Excerpts

Monday 23rd June 2014 Lords Chamber

Asked by

[Lord Patel of Bradford]

To ask Her Majesty’s Government what assessment they have made to measure the success of their policy No Health Without Mental Health, which undertook to give mental health “parity of esteem” with physical health within the National Health Service.

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

My Lords, our commitment to parity of esteem is explicit in the Health and Social Care Act 2012. As stewards of the system, we hold the NHS to account for the quality of services and outcomes for patients through our mandate to NHS England and the NHS outcomes framework.

[Lord Patel of Bradford (Lab)]

My Lords, I think that the picture is fairly gloomy. There has been a real-terms 1% drop in investment in mental health services for adults of working age, and mental health trusts have reported a real-terms reduction of 2.36% over the past two years. Investment across the three priority areas—crisis resolution, early intervention and assertive outreach—has seen a £30 million drop for the first time. Funding for older people in mental health services has seen a 1% real cash-terms drop, and 67% of councils have stopped child and adolescent mental health services funding. These cuts have come in at a time when more people—almost 8 million—are experiencing mental health problems. In addition, 30% are suffering from a long-term physical health problem, the number of deaths by suicide is increasing and mental health ward occupancy levels are at over 100%. This Government promised parity of esteem and we were assured that that would be in the Health and Social Care Act. Does the Minister agree that we are far from meeting our obligations on this simply because of the cuts and what has happened to these vulnerable people?

[Earl Howe]

My Lords, mental health and mental well-being are priorities for the Government; I want to make that clear to the noble Lord. We have legislated for parity of esteem between mental and physical health, and we mean business on this. Our new mental health action plan, which has been well received, sets out our priorities for essential change. We have the Crisis Care Concordat, which guarantees that no one experiencing a mental health crisis should ever be turned away. We are rolling out choice in mental health, which is an extremely important step forward, and a whole range of other measures, including IAPT and the children’s mental health measures that I outlined a moment ago. I hear what the noble Lord says about funding. We have debated that matter in the House before. We are currently scrutinising local CCG spending plans to make sure that mental health gets the priority that it needs.

People with Learning Disabilities

Lord Patel of Bradford Excerpts

Thursday 12th June 2014 Lords Chamber

[Lord Patel of Bradford (Lab)]

My Lords, I, too, add my thanks to the noble Baroness, Lady Hollins, for having secured this debate on such an essential issue: one that goes to the heart of the kind of society we should be aspiring to be, one that cares for and protects the most vulnerable of its members. As we have already heard from the noble Baroness, Lady Hollins, and others, we are clearly not meeting this aspiration. We are failing to protect those who deserve our constant and vigilant care and protection. In fact, we should all be truly shocked by the stark findings of the confidential inquiry—that more than a third of deaths of people with a learning disability could have been prevented if they had received better healthcare.

I find that completely unacceptable. What is even more unacceptable is that some of the reasons for those shocking figures are that people lacked information about their health—information that they could understand—or the provision of professionals and health advocates to help to explain such information. Yet as my noble friend Lady Andrews said, we have legislation to ensure that this happens. The Mental Capacity Act 2005 set out a comprehensive statutory framework to define mental capacity, help those lacking it to make their own decisions where they can and enable sound decisions to be made for them when they cannot. The Act is there to empower, protect and support people who lack mental capacity and to ensure that professionals, families and friends who care for people who lack it understand more fully and clearly their legal rights and responsibilities. So what has gone wrong?

Implementation of the Mental Capacity Act is clearly failing; it is certainly failing for many people with a learning disability. This was clearly highlighted by the confidential inquiry but also by the post-legislative House of Lords Select Committee that I was a member of, along with the noble Baroness, Lady Hollins, and my noble friend Lady Andrews. The committee heard a huge amount of written and oral evidence from experts, professionals, service users and their families. I shall read just two sentences about the key finding of the committee’s report. It stated:

“Vulnerable adults are being failed by the Act designed to protect and empower them. Social workers, healthcare professionals and others involved in the care of vulnerable adults are not aware of the Mental Capacity Act, and are failing to implement it”.

The committee’s findings are fairly clear.

I am pleased that the Government put out a joint statement earlier this week from the Department of Health and the Ministry of Justice. It said that they,

“share the Committee’s concern at the low levels of awareness and understanding of the Act. Too many people who may lack capacity may be missing out on the legal rights that the MCA gives them. This is not tolerable and we are determined to put this right”.

While I of course welcome this acknowledgement, quite frankly it falls far short of my expectations and, I am sure, those of your Lordships. In the face of the enormity of the problem, we must have clear actions to swiftly ensure that the protections of the Act work as they were intended to: empowering patients to make choices about their healthcare and protecting the rights of those who lack capacity by ensuring that best interests decisions are made.

Some of the practices highlighted by the confidential inquiry are simply illegal and there are numerous instances of the Mental Capacity Act being misapplied or not used at all, including the failure to appoint independent mental capacity advocates where there are no family members present to ensure that the wishes of individuals are understood and respected. I would like to highlight the consequences of what this means in reality by briefly reading a case study from Mencap’s Death by Indifference report that clearly shows how grave the individual circumstances can be when staff fail to understand the Act. I take this opportunity to thank Mencap, particularly Rob Holland and his team, for its expert advice and briefing on this issue.

The case study is about a woman called Anne Clifford, who died of pneumonia on 20 July 2010, aged 53. She,

“had Down’s syndrome and a severe learning disability. Although she had no verbal communication, her sisters, Monica and Mary, describe her as a ‘feisty character who was able to show what she liked and disliked’ … When Anne was first admitted to the Mayday Hospital”,

in Croydon,

“she was put in the intensive care unit … and placed on life support as she was having difficulty breathing. She was diagnosed with pneumonia. From the moment of Anne’s admission, Monica contacted the hospital every day to enquire about the treatment her sister was receiving. She also made it absolutely clear to staff that she and her sister Mary were to be kept fully informed about Anne’s progress”,

which was their right under the Mental Capacity Act.

The report continues:

“When Anne was eventually able to breathe unassisted, she was placed on a general ward. Monica and Mary viewed this as a very positive step and began to believe that Anne could recover. However, during one of Monica’s regular phone calls to the ward, she was told that Anne’s pneumonia appeared to be returning. Monica then naturally enquired if Anne would be returned to the ICU and put on life support. It was then that she learned that Anne’s notes stated that she was not to be returned to the high dependency unit and that she would not be resuscitated. This was the first that the family knew of this. Alarmed, Monica began to seek advice and, with the assistance of the adult safeguarding team, a best interest meeting was called. But the consultant responsible … informed Monica that he had agreement from other doctors”,

on the “do not resuscitate” decision. The Mental Capacity Act states that Anne’s family should have been consulted before the best interests decision was made. This did not happen, resulting in the worst possible consequences for Anne and her family.

Anne is not alone in having been failed by health professionals who did not understand the Mental Capacity Act. There are other examples of “do not resuscitate” orders being used in situations where mental capacity has not been fully assessed.

It is hard to believe that seven years have passed since the Mental Capacity Act came into force. While the expectation, rightly, is that all health and social care professionals should have knowledge and understanding of the Act, evidence has consistently shown this not to be the case, and our committee found that staff continue to be ill equipped with knowledge about the Act. Even with the development of resources and materials for professionals, far too few understand the Act well enough to confidently and successfully ensure that it is implemented correctly.

Knowledge and understanding of the Act must be available for patients, families and staff to ensure that it is applied properly. As such, the confidential inquiry’s suggestion that a 24-hour Mental Capacity Act phone line, staffed by expert advisers in all matters relating to the Act, must be established with some urgency, and I hope that the Minister can give me some good news on that front. In addition, Mental Capacity Act training should be mandatory core training, and minimum training standards are desperately needed; my noble friend Lady Andrews spelt out why. I hope that the Minister can reassure us that this is high on the Government’s agenda and we can see some positive moves very shortly.

Care: Older People

Lord Patel of Bradford Excerpts

Wednesday 7th May 2014 Lords Chamber

[Earl Howe]

The short answer to my noble friend is that it is too soon to say as the plans are currently in formation. However, the whole idea of the Better Care Fund is to enable joint working. It is an opportunity to make the best use of available resources and improve value for money through the collaborative redesign of existing services. The pay for performance element of the fund should incentivise local areas to make efficiencies and will provide initial evidence of the impact of the Better Care Fund on savings and outcomes.

[Lord Patel of Bradford (Lab)]

My Lords, the Minister will be aware that the Royal College of Psychiatrists carried out a recent survey which found that 11% of NHS trusts had cut specialist psychiatric teams that specialise in working with older people. A similar number of trusts are planning to disband their specialist psychiatric teams across the country. That is having a huge impact on older people who have to go all around the country for a specialist service. What assessment have the Government made in respect of those cuts?

[Earl Howe]

My Lords, as the noble Lord is aware, specialised services are the responsibility of NHS England. We have charged it in the mandate and through regulations to make sure that there is comprehensive specialised cover for mental health services and other services throughout the country. For less specialised services, we expect the parity of esteem principle to apply, and CCGs are being held to account by NHS England to achieve that.

Mental Health: Young People

Lord Patel of Bradford Excerpts

Monday 7th April 2014 Lords Chamber

[Baroness Goudie]

To ask Her Majesty’s Government what steps they have taken to reduce mental illness among young people.

[Lord Patel of Bradford (Lab)]

My Lords, on behalf of my noble friend Lady Goudie, and at her request, I beg leave to ask the Question standing in her name on the Order Paper.

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

My Lords, through our action plan Closing the Gap we are supporting schools to ensure that mental health problems are identified early, improving outcomes. Children’s mental health is a priority, and we have invested £54 million over the four-year period 2011-15 in the children and young people’s improving access to psychological therapies programme, known as CYP IAPT, to transform child and adolescent mental health services—CAMHS—improving young people’s access to the best evidence-based care.

[Lord Patel of Bradford]

I thank the noble Earl for that reply. Is he aware that the Royal Society for Public Health, together with the Prince’s Trust, published a report in this year’s annual Youth Index that showed an extremely high correlation between unemployment and mental illness among young people? In fact, a startling 40% of young people who were unemployed had signs of mental illness and were developing self-harm issues and even suicidal thoughts. Can the Minister say what the Government are doing about that report? Following on from the earlier Question, I suppose that the simple answer would be more jobs for unemployed people, but can the Minister say more about what the Department for Education is doing? Schools have a responsibility to introduce mental health and well-being classes formally within education but they are very reluctant to work with health services, particularly mental health services, to deliver that. Can the Minister say what is being done at a national level between the Department of Health and the Department for Education, as well as in encouraging local mental health services to work with schools?

[Earl Howe]

My Lords, I am aware of the study to which the noble Lord refers. It ties in quite closely with the findings of the Marmot report of a few years ago, which correlated quite closely the link between socioeconomic deprivation and children and young persons’ mental ill-health. Helping people, especially young people, get back into employment is a key priority for the Government. We know that young adults with mental health issues are underrepresented in the labour market. We aim to enable more young people with mental health needs to find and keep a job. There is an ongoing government programme to drive whole-system and cultural change, led by the Department for Work and Pensions. We are working with health and social care services to support young people to become economically active, not least through the CYP IAPT programme.

As regards schools, very briefly, schools can raise awareness of mental health through PSHE. Mental health is not a compulsory part of the curriculum. However, I note that the new national curriculum will see children aged five to 16 taught about internet safety in a sensible, age-appropriate way, which is a really important step to help children and young people understand some of the issues facing them.

Mental Health: Funding

Lord Patel of Bradford Excerpts

Tuesday 18th March 2014 Lords Chamber

[Earl Howe]

My Lords, my honourable friend Norman Lamb has expressed his concern that the cuts to the mental health tariff have taken the form that they have. I can tell my noble friend that the department will be scrutinising the commissioning plans of clinical commissioning groups and the draft budgets of mental health trusts to make sure that they reflect the central importance, as set out in the Government’s mandate to the NHS, of making measurable progress towards parity of esteem. We know that there are regional differences in access and we are setting up a new national mental health intelligence network to provide comprehensive and up-to-date information about mental health and well-being.

[Lord Patel of Bradford (Lab)]

My Lords, can the Minister confirm that, despite having very clear guidance and legislation in place, we still have an unacceptable number of 16 and 17 year-olds being admitted to psychiatric wards and that, worryingly, many children under the age of 16 are being placed on adult wards many miles from their families and homes? I am sure the Minister will agree that this is totally unacceptable and extremely harmful to the children concerned and their families. What plans do the Government have to put a complete stop to this harmful practice and provide the resources that are clearly needed for appropriate places for young children in mental health services? Does he have an approximation of the number of children we are talking about?

[Earl Howe]

I do not have a figure to quote to the noble Lord, but our aim, as he says, must be to support children and young people with mental health problems wherever possible in the community in which they live. Admission to hospital should be a last resort for a young person. We have done a great deal to improve mental health services for young people in the community. We also recognise the difficulties for young people and their families if they are treated in hospitals some way from home, but the decision about where they are treated is bound to depend on what is available and what facilities are needed to meet their particular clinical needs.

Health: Talking Therapy

Lord Patel of Bradford Excerpts

Tuesday 3rd December 2013 Lords Chamber

[Earl Howe]

I can assure my noble friend that Health Education England has it in its sights to make sure that sufficient numbers of professionals are trained in the talking therapies, and that work is ongoing.

[Lord Patel of Bradford (Lab)]

My Lords, following on from what the noble Lord, Lord Alderdice, said about having staff who can provide appropriate talking therapies, and what the Minister himself said about someone who needs a service receiving it, we have a long history in the mental health field of mental health practitioners not referring certain minority-ethnic groups such as the south Asian and black African communities for talking therapies. I believe that that is still the case with referrals to the CBT programme. What are the Government doing to address this imbalance?

[Earl Howe]

I can tell the noble Lord that IAPT is working with a number of BME groups to promote wider access to the service from all sections of the community. A grant scheme will shortly be launched to encourage community-based interventions to increase uptake of talking therapies, including from BME groups.

Care Bill [HL]

Lord Patel of Bradford Excerpts

Tuesday 29th October 2013 Lords Chamber

Moved by

[Lord Patel of Bradford]

7: Clause 75, page 68, line 14, at end insert—
“( ) Within one year of the coming into force of this section, the Secretary of State shall report to Parliament on the discharge by probation trusts of their responsibilities for safeguarding adults residing in approved premises.”

[Lord Patel of Bradford (Lab)]

My Lords, I once again thank the Minister for taking time to speak to me last week about my continued concerns in respect of ensuring that adults detained in prison or residing in approved premises have the same protection and care as all other vulnerable adults when it comes to safeguarding inquiries by local authorities.

Clause 75(7) expressly excludes adults detained in prison and those residing in approved premises from the Section 42 duty on local authorities to carry out safeguarding inquiries. I spoke about this on Report believing that it is a serious gap in the Bill in providing safeguards and protection to some of the most vulnerable people in our communities and prisons. On Report, I sought clarification about who would be responsible for carrying out safeguarding inquiries in prisons and approved premises, such as bail hostels. The response I received from the Minister was:

“Prison governors and directors, and the probation trust in the case of approved premises, are responsible for safeguarding prisoners … Her Majesty’s Chief Inspector of Prisons and the Prison and Probation Ombudsman require assurance that safeguarding procedures are in place and their implementation provides equivalent protection to that available in the community”.—[Official Report, 16/10/2013; cols. 623-4.]

In response to my specific question about approved premises, the Minister said that probation trusts have responsibility for carrying out safeguarding inquiries. I was a bit concerned by that response, but I accepted it. I decided to seek further clarification about how it would work in practice in local areas. What I found raised more issues and questions, which I shall briefly outline. I should say that I am very grateful to Jenny Talbot and her team at the Prison Reform Trust for their continued support and expert guidance on this matter.

I fully support the concept that all prisons and approved premises should have their own arrangements for safeguarding that include a comprehensive policy understood by all staff and should ensure that vulnerable adults are identified and given appropriate support within the local authority safeguarding process. I remain uncertain about what the Minister said about probation trusts having the responsibility for carrying out safeguarding inquiries in respect of adults residing in approved premises, so I sought further expert legal advice from people in the field. I was categorically assured that local authority safeguarding duties and, indeed, other community care duties extend to approved premises within the local authority area.

--- Later in debate ---

[Earl Howe]

My Lords, the Ministry of Justice will want to ensure that the guidance is adhered to and the department will have oversight of the way that this works in practice, as the noble Baroness might expect. As I say, there is best practice already out there; we want to build on what we know works, with joint working across the prison and probation services and local authorities.

[Lord Patel of Bradford]

My Lords, I thank the noble Earl for taking time to talk to me about these concerns and providing a comprehensive response. I am really pleased about the guidance that is going to be produced and shared. The noble Earl said that comprehensive policies and procedures are in place, and I should say for clarity that I have no argument with that. A number of institutions do not have them in place and that is where the guidance will come in handy.

However, I have no desire to see the local authority relieving the prison or probation trust of any duty of care. What I was saying—although it is probably a play on words—was that the No Secrets guidance seems to suggest that a local authority is probably the only agency that would investigate or inquire into a safeguarding issue. I am not saying that probation trusts will not do so but the feeling is that that duty falls on the local authority at the moment. My big anxiety is that Clause 75(7) expressly states that Section 42 should not apply. The Bill therefore actually states that local authorities should not carry out a safeguarding inquiry for people in prison or approved premises. The fact that it says in the Bill that they should not do it, but at the same time we are giving guidance to say that if everybody works together it should be okay, leads me to ask the Minister how we square that circle. It gives an awkward flavour to the debate. I hope that the noble Earl is willing to go back and have a look at both the guidance and the clause, as I believe that that is where the problem lies.

As regards safeguarding adults boards, I am very pleased that the noble Earl has said that prisons and probation trusts should join the safeguarding boards. Initially the Bill said that they should not be forced to do so. Then it was drafted to say that they “may” do so. I suggest that they should. This is crucial, as the noble Lord, Lord Ramsbotham, said, as otherwise their skill base is missing.

Those two areas are crucial. I do not know what will happen if and when the probation trusts are abolished, and what problems that will cause, but at least the amendment requiring that there is a report within a year will give us that information.

[Earl Howe]

I am most grateful to the noble Lord. For clarification, the provision that he has cited says that the duty to conduct an inquiry does not apply. It does not say that local authorities should not conduct an inquiry. I think that that is an important distinction.

[Lord Patel of Bradford]

The fact that we each have looked at that provision in a different light suggests that it may be useful to look at that again when the guidance is produced so that we are very clear and we give local authorities the confidence to play the lead in co-ordinating this.

I again thank the Minister for taking away all the issues and re-examining them. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Care Bill [HL]

Lord Patel of Bradford Excerpts

Wednesday 16th October 2013 Lords Chamber

Moved by

[Lord Patel of Bradford]

128A: Clause 71, page 59, leave out lines 35 to 42 and insert—
“(5) In this section, “after-care services” means services that reduce the risk of a deterioration of the person’s mental condition (and, accordingly, to reduce the risk of the person requiring admission to a hospital again for treatment for mental disorder).”

[Lord Patel of Bradford (Lab)]

My Lords, I am speaking to Amendment 128A which affects Clause 71(5) that aims to provide a definition of “after-care services” as they relate to the Mental Health Act 1983.

We had an extensive debate on this clause in Committee and as a result the Government have tabled their own amendment. I am grateful to the Minister for Care and Support, Norman Lamb, and his officials for taking time to meet me and discuss my concerns about this clause. During the debate in Committee, I highlighted the importance of Section 117 in providing a comprehensive care package of health and social care services to a very specific and extremely vulnerable group of patients when they are discharged after detention in a psychiatric hospital. Without appropriate community health and social care support they may relapse, come to harm or even present a risk to others.

In recognition of the inherent vulnerability of these patients and the risks involved, and to encourage take-up by them, after-care services under Section 117 have required local authorities and clinical commissioning groups to provide after-care services free of charge and are deliberately not defined in statue, as there is a wide range of services that a detained patient might need in order to leave hospital and live in the community. Mental health professionals need to have the widest flexibility possible to devise creative care packages to keep patients who have been detained well and prevent them relapsing. The concept appears well understood by both health and local authorities and has been for over 30 years.

There is also a clear public health policy purpose behind Section 117, which is to help get vulnerable people out of hospitals and back into the community. No one should remain in hospital any longer than they need and after-care services should be provided to enable a safe discharge and to avoid all the emotional harm and exposure of a deterioration. This is vital to prevent our hospitals being bedblocked—I am sure that all noble Lords saw the news headlines this morning about the severe lack of in-patient psychiatric beds. So what does this clause do and why?

Clause 71(5) proposes to provide the first ever statutory definition of after-care services, but it is a narrow definition which I and many others believe will be detrimental to patients’ welfare. For example, an after-care package may include daytime activities, welfare benefits and financial advice, residential accommodation and medication. However, if the proposed definition is introduced, after-care providers may argue—I think they will argue—that it is only the provision of psychiatric medicine that meets,

“a need arising from … the mental disorder”,

of the person.

I accept that the Government have made some concessions on this issue. For example, concerns were raised that the definition in the Bill refers to, “the mental disorder”, which might refer only to the medical treatment of a single diagnosis, rather than looking at a person holistically. In response to these concerns, amendments have been tabled by the Government to make it clearer that Section 117 after-care services are to meet needs,

“arising from or related to the person’s mental disorder”.

That can mean one or more mental disorders, and not necessarily the mental disorder for which the person was detained in hospital for treatment. While this concession is, of course, welcome, and the current proposed definition is wider than that set out in the draft Bill, I still remain extremely concerned about the risk of confusion, litigation and delays, which is why I have tabled my amendments.

Noble Lords will be very relieved to hear that I will not repeat the many reasons I have for tabling Amendment 128A; I simply want to give two very clear reasons why this amendment should be accepted. First, I want to challenge the basis on which the Government have introduced this definition and say why it is wrong. Secondly, I think that the definition, even with the Government’s amendment, remains problematic and harmful to patients.

The Government have clearly stated that they have put this definition into the Bill following the recommendation from the Law Commission’s report Adult Social Care, a recommendation that is based on the Law Commission’s concerns around one case, Mwanza v the London Borough of Greenwich in 2010. I am not a lawyer, but I had a nasty feeling about this case, so I contacted the counsel, Nicholas Armstrong from Matrix Chambers, who actually represented Mr Mwanza in this case, to get his views. I am extremely grateful for his time and the explanation he gave me. Suffice to say he was very concerned to hear that the case is being used in this way. He informed me that there were a number of issues that make this case unique and unrepresentative, explaining that,

“this is a very unstable basis on which to disturb a provision of primary legislation that has benefited many and operated largely without difficulty for 30 years (rather a long time in these areas of law and, some might feel, a testament to its success)”.

I have shared the full contents of the communication from Nicholas Armstrong with the Department of Health so that it can clearly see the issues and concerns that Mr Armstrong has raised about his own case. Most importantly, he states:

“Mwanza was highly unusual and complex. First, it is critical to recognise that it was a migrant case. The family had no immigration status and so were cut out of mainstream benefits and sources of support, including housing. Their possible routes to support and, in particular, accommodation were therefore very limited. Normally, accommodation is not an issue because people get it from any number of other routes. Not so here . . . Second, the Section 117 issue had to be addressed here, despite how difficult it was, because of the way the other possible route to accommodation (Section 21 of the National Assistance Act 1948), works. That provision cannot provide accommodation if there is an alternative. Hence, to resolve where a Section 21 duty was owed, the court had first to decide whether Section 117 applied . . . We were, in other words, only in Section 117 at all because of the way the migrant exceptions work.”

The situation was then complicated by the detention under Section 3 many years earlier—about eight to nine years prior to this case—and it looked like the duty had not been discharged properly by the local council. Nicholas Armstrong continued:

“It is critical to recognise that it was a disabled migrant case where another local authority wanted to avoid liability under Section 21 of the National Assistance Act 1948, and we had to resolve the Section 117 question because we could not get to Section 21 unless Section 117 was definitely not in play . . . That was a pretty rare set of circumstances. So far as Section 117 is concerned, Mwanza is a permission decision only. It was fully argued but it is not binding, even on courts below the High Court”.

--- Later in debate ---

[Baroness Masham of Ilton (CB)]

My Lords, it is vital that people with mental illness have adequate aftercare. I ask the noble Lord, Lord Patel of Bradford, if his Amendment 128A would cover such cases as the tragic case of the schoolgirl who was travelling by bus to school and was killed by a person who was mentally ill. There should be more protection for the public, who are at risk from mentally ill people who are let loose in the community without adequate aftercare and supervision. It is vital that people have aftercare, otherwise we will have more and more disasters.

[Lord Patel of Bradford]

I thank the noble Baroness for her question. I would not like to associate mental health patients leaving hospital with the case that she has outlined, but clearly it is true that if we do not provide good quality aftercare services and encourage people to take them up but rather leave people in hospital anxious about whether they will have to pay for some of these services, then that is a potential result that we will have to live with, in circumstances where people do not have accommodation, health and social services provided or someone coming in and saying to them, “Deal with your accommodation and social care issues as well as your medication”. This is a real anxiety.

[Baroness Hollins (CB)]

My Lords, I commend the amendment of the noble Lord, Lord Patel of Bradford. I shall not say much more than that other than that he commented on the risk that the current situation could lead to more likelihood of a more medical approach to aftercare. Noble Lords might think that as a retired psychiatrist I would support that, but I do not; it is incredibly important that people who have a history of mental illness and need aftercare services receive the broadest possible support so that admission to hospital is not simply because there is inadequate support for them in the community. I commend his proposal.

--- Later in debate ---

[Earl Howe]

My Lords, the protection of the public is of great importance, as I need hardly say; but we are dealing here with quite a narrow point of definition about who should be entitled to free mental health aftercare. To expand the scope of that definition to include others would not be fair on many people, which is why I have argued that I believe we have positioned the definition in the right way. The noble Baroness’s question is a very relevant one in the broader context of how we look after those with mental illness, but I would like to think that this amendment should not affect her concern one way or another.

[Lord Patel of Bradford]

My Lords, I am clearly disappointed at the response. I was expecting at least a halfway point at which we could meet and perhaps change the definition once again. I will not detain the House for very long. The noble Baroness, Lady Barker, very clearly and succinctly put the benefits of Section 117 and the joint working that takes place. That is probably the only piece of legislation that has encouraged joint working really well and has worked.

The noble Earl talked about the Government’s definition, and that is what it is: a Department of Health definition. However, it does not ride with everybody else out there. Everybody that I have spoken to clearly says that this is the wrong way. I fear that the department has got itself in a corner because it has accepted the Law Commission’s recommendation on this point. It did not accept the other three recommendations, which clearly shows, to me, that the Law Commission does not understand Section 117 services properly. Although the department has accepted this recommendation, I think it has realised that the basis on which it has done so is not appropriate; the case is unique and unrepresentative.

We have talked about inequity. These people have their liberty taken away: they are locked up against their will. They have been in and out of mental health services; they have had a raw deal. That is why they are there. This is a reciprocal duty on behalf of society to make sure that we give them free aftercare services. Yes, other patients may not get that, but this group of patients is extremely vulnerable. There is also the issue of public safety. We should give them the services they require.

I could go on, but I will not. I am really disappointed. This matter deserves that the House makes its views known, so I want to test the opinion of the House.

Care Bill [HL]

Lord Patel of Bradford Excerpts

Wednesday 16th October 2013 Lords Chamber

Moved by

[Lord Patel of Bradford]

136A: Clause 72, page 61, line 18, leave out from beginning to “not” in line 19 and insert “Section 42 and 47 does”

[Lord Patel of Bradford (Lab)]

My Lords, Amendments 136A and 136B seek to ensure that people in prison and those residing in approved premises have equivalence of care when it comes to safeguarding inquiries by local authorities. Noble Lords may remember that I raised this issue in Committee but I was a little concerned by the response I received from the Minister on that occasion. I am grateful to Jenny Talbot and her team at the Prison Reform Trust for all the support and guidance they have provided throughout.

I welcome the Government’s commitment in this Bill to place responsibility for the social care of adult prisoners with the local authority in whose area the prison is located. The Bill outlines the responsibilities of local authorities towards people in prison who have care and support needs and would ensure that people in prisons are able to access care and support on a similar basis to those in the community. However, having made such a significant and welcome commitment to the social care of prisoners, there is an anomaly in the Bill, which states that people in prison and people residing in approved premises are not to receive equivalence of care when it comes to safeguarding inquiries by local authorities. Surely denying people in prison and people residing in approved premises the benefit of an inquiry by the local authority when safeguarding concerns are raised places an already vulnerable group of individuals at even greater risk.

Of course, I understand that prisons have a whole range of safeguarding measures in place. However, when there is a real problem that a prison has not resolved, why can a local authority not have an inquiry for a person who is vulnerable and at risk? Moreover, I cannot understand why people in approved premises—in other words, people who have been released from prison and are living in the community; for example, in a probation hostel—should be excluded from local authority safeguarding inquiries. If the local authority is not responsible for safeguarding vulnerable adults in approved premises in the community, who is?

When I raised this issue in Committee, the noble Baroness, Lady Northover, stated,

“if local authorities must also conduct inquiries in prisons and approved premises, we run the risk of duplicating inquiries. Prison governors and directors have the primary responsibility for preventing abuse or neglect of prisoners with care and support needs. Prison governors already have a duty to care for and safeguard prisoners. If we duplicate this responsibility, we run the risk that the lack of clarity will mean that safeguarding concerns fall between agencies”.—[Official Report, 29/7/13; col. 1585.]

I have a number of concerns about this response, two in particular. First, with regard to people in prison, the noble Baroness talked about the duplication of effort and lack of clarity. I suggest that this is simply not the case. My amendment would not limit the responsibility that prisons already have. On the contrary, their involvement on safeguarding adults boards would help to ensure shared learning and expertise, including, where necessary, the option for a safeguarding inquiry should safeguarding concerns not be resolved by the individual prison.

In fact, inquiries by local authorities should be viewed as another tool to help ensure our prisons are safe for both vulnerable prisoners and the staff who work with them. I am not suggesting that local authorities need to be directly involved in all interventions in prisons or that local safeguarding teams would need to be called upon to intervene in every safeguarding concern raised. However, directors of adult services need to be confident that their standards are consistent with those set out in the report No Secrets and any exceptions are explicit and jointly agreed. Therefore, I believe that an inquiry by a local authority will not duplicate the excellent work undertaken by Her Majesty’s Inspectorate of Prisons, or by the prison itself. It will complement and enhance it, and could potentially help save lives.

Secondly, the noble Baroness did not provide an answer as to who would be responsible for the safeguarding of people in approved premises, if it is not the local authority. For the sake of clarity, I will ask the question again. As I understand it, approved premises are the responsibility of the probation service and not of the prison service. Any responsibilities that prison governors have for safeguarding adult offenders end once that person is released and physically leaves the premises. As the Bill currently stands, people living in approved premises will not be the responsibility of local authorities as is everybody else who lives in the community. So if someone is living in approved premises, such as a probation hostel, and is part of the community, as is anybody else, and that person has been abused or neglected or is at serious risk, who will have the obligation to carry out a safeguarding inquiry?

In terms of safeguarding inquiries by the local authority, not providing people in prison or who reside in approved premises with the same equivalence of care as for other people in the community makes little sense. The Bill establishes that equivalence of care applies to prisoners, and this should extend to safeguarding and to how safeguarding concerns are dealt with. Local authority adult safeguarding procedures are well established within local communities and the safeguarding of people in prisons and of those residing in approved premises should not be excluded from this body of expertise.

Of course, prisons and approved premises, such as hospitals and care homes, should have their own internal safeguarding arrangements and responses to safeguarding concerns. However, by excluding prisons and approved premises from safeguarding inquiries by the local authority, prisoners and people residing in approved premises will be denied the equivalent protections afforded to other vulnerable adults. Further, the opportunity for constructive dialogue and shared learning, which some prisons and local authorities currently enjoy, may also be lost. As the Bill stands, this is a serious gap which places a very vulnerable group at risk. Therefore, I hope the Minister can provide some clarification, reassurance or, better still, accept my amendments. I beg to move.

[Baroness Masham of Ilton (CB)]

My Lords, I hope that the Minister will take note of the very serious points which the noble Lord, Lord Patel of Bradford, has made to your Lordships tonight.

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

My Lords, these two amendments deal with changes to Clause 72 to impose a duty on local authorities to make safeguarding inquiries in prisons and approved premises. I thank the noble Lord, Lord Patel, for tabling these amendments. We strongly agree that a person with care and support needs should be protected against abuse or neglect wherever they live.

Prison governors and directors, and the probation trust in the case of approved premises, are responsible for safeguarding prisoners and for protecting them from abuse and neglect. They have in place procedures to follow in response to allegations of abuse or neglect, and they must provide assurance on this to the National Offender Management Service. The UK operates a comprehensive level of monitoring and scrutiny within prisons to ensure that prisoners are kept safe and secure and that governors and directors are accountable for taking steps to improve matters if necessary.

We have in place a fully independent prison inspectorate that carries out a rigorous programme of scrutiny; more than 1,700 volunteers on prison independent monitoring boards who monitor the treatment of adult prisoners; and a Prisons and Probation Ombudsman who investigates both the complaints of those in prison and all deaths that occur among prisoners. Her Majesty’s Chief Inspector of Prisons and the Prison and Probation Ombudsman require assurance that safeguarding procedures are in place and their implementation provides equivalent protection to that available in the community. Investigations by the Ombudsman will provide learning to improve effectiveness. The important thing is not to impose a duty on another body to conduct inquiries in prisons and approved premises, but to ensure that the procedures within the prisons and approved premises are informed by best practice and local expertise.

The Ministry of Justice and the National Offender Management Service have acknowledged that there is a need for improved directions on safeguarding to the Prison Service and probation trusts. They will be working with officials from my department and stakeholders to develop instructions and guidance that will give improved clarity about the roles and responsibilities of the Prison Service and probation trusts in safeguarding adults in their care. The Ministry of Justice encourages prison staff to be involved with local safeguarding adults boards, but the nature of that involvement is best determined at local level.

The Ministry of Justice and the National Offender Management Service will be producing guidance for prison staff on safeguarding in conjunction with their partners. This will be consistent with the broader advice and guidance on safeguarding adults in the community and will ensure that the importance of active engagements with SABs is routinely reiterated to prison staff. Any particular safeguarding considerations for older prisoners and those with dementia will be part of this operational policy. The guidance will set out clear instructions on the need for structured relationships with local safeguarding boards; for example, the model being employed by Surrey, where a memorandum of understanding sets out how prison staff will benefit from the expertise of social services and local authority safeguarding teams. It will also set out how and in what instances referrals to SABs will be made.

I hope that I have reassured the noble Lord, Lord Patel of Bradford, that the existing position makes clear the responsibility and accountability for the safeguarding and protection of prisoners, and that further guidance to prisons and approved premises will bring about the improvement and joint working that we all want to see. The proposed amendments to Clause 72 are therefore not necessary and I would respectfully ask him to withdraw this amendment.

[Lord Patel of Bradford]

My Lords, I thank the Minister for that informative response and I take on board completely the fact that prisons and the MoJ have developed some good safeguarding measures. I am pleased that further guidance is to be issued to encourage governors and directors to attend local authority safeguarding adults board meetings. I am fairly happy about prisons, prisoner safeguarding and liaison with local authorities. However, for clarification, if someone is living in approved premises, my understanding is that that has nothing to do with the prison governor or the prison because they are in the community living in, say, a bail hostel. Who has responsibility for any serious issue of neglect? I do not think that the probation service undertakes safeguarding inquiries. It would be the local authority, but this clause seems to suggest that it would not be; rather, that it would be the prison governor. That does not make sense to me, although perhaps I do not understand it completely. Of course, one assumes that the local authority would have responsibility for someone in the community, but this provision clearly states that it does not.

[Earl Howe]

My Lords, the advice I have received is that the probation trust would have that responsibility.

[Lord Patel of Bradford]

For the record, because no one on the outside seems to have been able to give me an answer, someone would have to report to the probation trust that a person is being neglected or abused and it would carry out a safeguarding inquiry. It would not be the local authority or the prison.

[Earl Howe]

That indeed is my understanding.

[Lord Patel of Bradford]

If that is the case and it is correct, I beg leave to withdraw the amendment.

Amendment 136A withdrawn.