Care Bill [HL]

Lord Patel of Bradford Excerpts

Monday 29th July 2013 Lords Chamber

Moved by

[Lord Patel of Bradford]

105: Clause 68, page 56, leave out lines 4 to 11 and insert—
““(5) In this section, “after-care services” means services to reduce the likelihood of the person requiring admission to a hospital again for treatment for mental disorder.””

[Lord Patel of Bradford]

My Lords, my amendment affects Clause 68(5), which aims to provide a definition of aftercare services as they relate to Section 117 of the Mental Health Act 1983. It was only just over 12 months ago, while debating amendments to the Health and Social Care Bill, that I was concerned about elements of that legislation affecting Section 117, which could have had a detrimental effect on the recovery of mental health patients. So it is a little disappointing that we have to rehearse some of those earlier arguments again today.

I must make it clear from the outset that this is not a probing amendment, nor does it seek assurance or clarification. It is an amendment that I believe is essential, and unless the noble Earl or the noble Baroness can persuade me of a better form of words, they should look to accept it. I will also tell the Minister from the outset that we are on the same side on this issue. We both want the same outcome, which is that this extremely vulnerable group of people covered by Section 117 gets access to all the help and services that it needs.

As the Minister outlined in his speech at Second Reading, the Government have already redrafted the original wording of the clause in response to the many concerns of mental health organisations in the country. However, it is clear to me and to them that we still need to do more to protect and safeguard this essential statutory provision. I apologise if I speak at length on this amendment, but it is essential that I make my case. I will try to be as logical in my arguments as possible; therefore, I will first outline why Section 117 is a unique statutory provision and needs the protection that Parliament intended it to have.

Secondly, I will highlight what the current drafting in the Bill does and why it will result in a detrimental effect. I shall conclude by explaining what I am proposing and why. I have taken time to explore many of the arguments and must thank the Care and Support Alliance, a consortium of more than 70 organisations, including Mind, the national mental health charity, which has been leading the charge on this issue. I also place on record my sincere thanks to members of the Law Society, especially Sophy Miles, the chair of the mental health and disability committee and counsel from the Mental Health Lawyers Association. It is also important that the Minister knows that I have received advice from Nicola Mackintosh, a principal solicitor, who is widely recognised as a national expert in community care, health and mental health law. I have taken seriously all their views on this issue.

First, what is Section 117 of the Mental Health Act all about and why is it unique? As noble Lords will be aware, that section concerns the provision of aftercare services for people who are discharged from hospital treatment after a period of compulsory detention in hospital. Parliament placed a joint duty on health services and local authorities to provide that aftercare. The group of people to whom Section 117 applies are the most vulnerable in the mental health system. They have been detained in hospital for psychiatric treatment following an established diagnosis. There are two groups, one of which is made up of those detained under Section 3 of the Act, and the other of those detained by the criminal justice system for in-patient treatment. It is likely that those in both groups will have had extensive previous contact with psychiatric services and support, which have failed them and been unsuccessful, hence they require longer-term detention for treatment.

These are therefore groups at the highest level of vulnerability because of risks to themselves, including their own health, or others. They are in a special group that has been recognised by Parliament as such. Among the statutory provisions in community care and healthcare law, Section 117 is unique in several respects. First, it relates to the duty owed to a particular individual. Secondly, it arises only in limited circumstances and for a very specific group of people, and is not a target duty. Thirdly, it is a joint duty placed on the relevant health authority and the social services body to work together to provide appropriate aftercare services, free of charge and for as long as necessary, and to sort out the funding between them. The aim has been to ensure that the group of people to whom the duty is owed receives the services at the time that they are needed, thereby avoiding extensive disputes about whether health or social care agencies are responsible.

Exactly which services are provided will depend on the individual’s needs and can vary greatly. The mental health code of practice stipulates for patients:

“As well as meeting their immediate needs for health and social care, after-care should aim to support them in regaining or enhancing their skills, or learning new skills, in order to cope with life outside hospital”.

The code goes on to provide a fairly comprehensive list of factors for professionals to consider when creating an aftercare package. These include patients’ psychological and mental health needs, physical healthcare, daytime activities, appropriate accommodation, assistance in welfare rights and managing financing, social and cultural needs and specific needs arising from drinking alcohol. The services cannot be withdrawn until both the health body and the local authority are satisfied that the patient no longer needs them.

Let me give a real case example. A man was sectioned in 1996 when he was very unwell. Since that time, he has been stable and in receipt of joint supervision and support by the then primary care trust and social services. He lives in a London borough and qualifies for Section 117 aftercare because he was previously detained under the Mental Health Act. He is in a supported placement funded by social services. His social services care co-ordinator decided that he could be discharged from the care home and that there should be a review of the duty under Section 117 to provide aftercare. However, the patient’s psychiatrist strongly opposed this move, stating that his condition was only partially controlled by medication and that he continued to have challenging behaviour as a result of his condition. The psychiatrist strongly believed that the joint duty was still required, as was funding under Section 117, because the patient needed the supervision and safe environment that was provided in the care home. As a result, that duty to the patient has remained and he continues to reside in the care home. This example shows that the effective healthcare being provided to keep the patient stable and safe was directly dependent on the social care. However, social services saw only that he was managing in the supported setting, which led to the suggestion that he should move on, which could have resulted in a deterioration in his health and well-being, and eventually to his being readmitted to hospital. Without the joint duty, a decision could be taken regardless of the views of a patient’s medical team.

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[Baroness Northover]

My Lords, we understand and respect the desire of the noble Lord, Lord Patel of Bradford, to achieve the best that he possibly can for people with severe mental disorders and pay tribute to his many achievements in the mental health field over many years. We are indeed, as he said, on the same side. We recognise the special vulnerability of this group, and I listened very carefully to what he said.

The Government’s view is that our proposed definition of aftercare services meets the objective of providing clarity on the duty to ensure such provision. That will give greater certainty to those needing or providing aftercare so that it can be provided when it is needed. The inclusion of a definition of aftercare services followed a recommendation by the Law Commission that aftercare services should be defined in accordance with a two-limbed definition from the Mwanza case. This case law defined the services to mean services necessary to meet a need arising from the person’s mental disorder and aimed at reducing the likelihood of the person’s readmission to hospital for further treatment of the disorder.

The Government’s definition of aftercare services builds on the definition recommended by the Law Commission. That was the starting point for the definition. We accepted the recommendation of the Law Commission as a sensible starting point, but we have gone further. The clause now clarifies that the Section 117 duty requires services to be provided to meet needs arising from or related to the person's mental disorder, as well as reducing the risk that the person’s mental condition could deteriorate, requiring their readmission to hospital.

Following public consultation, the Government expanded the proposed definition to put it in the Bill in what we feel is a much improved form. The noble Lord’s amendment omits the first limb of the Government’s definition while making changes to the second. In particular, his amendment weakens the connection between the services required to be provided under Section 117—I assure the noble Baroness, Lady Wheeler, that we are fully committed to continuing those—and the specific needs linked to a mental disorder, meaning that the scope of the definition would be unclear.

The Government are concerned that this amendment may confuse rather than clarify the circumstances in which aftercare services should be provided. That would run counter to the purpose of introducing a new definition. If there are disputes over the aftercare services to be provided, the wait that some people would have to endure before the aftercare services would be in place to enable them to leave hospital could be prolonged, something which the noble Lord wants to avoid. In our view, given that it omits the criterion that services must have the purpose of,

“meeting a need arising from or related to the mental disorder of the person concerned”—

I can assure the noble Lord that the definite article does not simply mean something singular but encompasses the plural as well, something to which he briefly referred—the amendment is likely to give rise to more disputes and administrative uncertainty than would be the case with the clause as it stands. Examples of disputes arising under the current Section 117, with no definition, highlight why a statutory definition will add clarity. As highlighted by the Law Commission, having no definition means that the interpretation is left to case law, which has provided varying interpretations.

Nothing in Clause 68 will change the guidance in chapter 27 of the code of practice. It covers housing, employment counselling, and cultural and spiritual needs. The professionals involved include mental health professionals, GPs, employment experts, independent advocates and others. The proposed definition sets out the essential elements and requirements for services to fall within Section 117. The Government do not wish to be more prescriptive as aftercare services should be agreed by health and social care professionals as guided by the code. I hope that that reassures the noble Lord. This has to be done, of course, in the light of each patient’s particular needs.

Finally, the current clause introduces a purpose for Section 117 services to reduce the risk of deterioration in a person’s mental condition, which the noble Lord’s amendment leaves out. I found myself looking at his examples as he went through them. I could not see that they would be excluded by the definition in the Bill, so we see no compelling reason to alter the definition of aftercare from what has been proposed, which is based on research and consultation by the Law Commission and the Government. Perhaps I should propose to the noble Lord that we meet between now and the Report stage to discuss his concerns and make sure that they are not well founded. I am very happy to take this forward and see whether we can involve my honourable friend Norman Lamb in those discussions. I hope that, on the basis of this response, the noble Lord will be happy to withdraw his amendment.

[Lord Patel of Bradford]

I suppose the only bit of that I was pleased about was the proposal that we should meet. Unfortunately, I disagree with everything the Minister has said. The Law Society, the Mental Health Lawyers Association, Mind, and the Care and Support Alliance—an alliance of over 70 organisations—agree with me that the Mwanza case is completely unique and off the wall. It concerned someone who was sectioned nine years ago and had nothing to do with Section 117 services, but his lawyers were trying to use that as a basis to get free accommodation.

[Baroness Northover]

Does the noble Lord accept what I have just said: that it was doubt over cases like that which led the Law Commission to come up with a recommendation that there should be a definition as a starting point for where the Government would then take this?

[Lord Patel of Bradford]

I still have a problem because the definition is very clear, as the noble Baroness has said. It is about being related to “the mental disorder”. I know that the Minister said that this is standard legislative language and that it is not intended to be a singular disorder, but I disagree. First, the definition does not give us a sense that aftercare should be holistic and thus in line with the underlying well-being principle. Secondly, the use of the definitive article in “the mental disorder” is completely out of keeping with the Mental Health Act. I can give a couple of examples from some of the trigger sections of the 1983 Act. Section 1 of that Act defines mental disorder but Sections 2 and 3, which refer to mental disorder, have no definite article. The wording is completely separate from that of the Mental Health Act, so officials should go back to the drawing board and look at it a bit more carefully. It is very unclear and it poses huge legal arguments, as people will say that this is about “a mental disorder”.

[Baroness Northover]

Under the Interpretation Act 1978, words in the singular may include the plural.

[Lord Patel of Bradford]

I completely agree that legally that is what it means, but the 1983 Act does not use the word “the” in front of “mental disorder” in any of its important trigger sections. What is important is that it is not in keeping with the 1983 Act at all. Moreover, we have already seen local authorities trying to use this case. We should be dictating what happens. I am not sure whether the judge in that case—I do not know if I should be saying this—was by any stretch a mental health expert. I think he was a family court judge, so it was completely different. The Stennett case, which was appealed to the House of Lords, clearly stated a definition that was very different from this. We should not be dictated to by that; Parliament should dictate. The Bill will dictate what aftercare services are.

I am prepared to look at the definition I have crafted and without doubt there might be something that we can improve on. However, I agree with the noble Baroness, Lady Barker, that this is crucial because it is the only piece of statutory provision we have to make sure that statutory health services, the voluntary sector and social services work together. Time after time over the past 30 years local authorities have used any opportunity they can not to provide Section 117 aftercare services. It goes to legal action and then they back off. Why do it when we can resolve this? We do not need the first bit that says “the mental disorder”. Why introduce that level of doubt? We are on the same side and we can move forward on this, and we do not need to introduce any doubt. I am pleased that we have something to think about and to work together on and I am sure that between us, as we did last time, we will come to an amicable conclusion. In the mean time, I beg leave to withdraw the amendment.

Amendment 105 withdrawn.

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[Lord Touhig]

My Lords, I shall speak to Amendment 105Q in my name and in the name of someone I am proud to call a noble friend, the noble Baroness, Lady Browning, who spoke to this amendment so well and eloquently. As law makers, we can be proud of the Autism Act 2009. It was a significant piece of legislation and it is well embedded. I look forward to the review of the autism strategy that the Government are now undertaking. This amendment will ensure that the duties set out in the statutory guidance continue to apply to local authorities and NHS bodies to ensure the ongoing implementation of the Act. There is much wisdom and common sense in this and I hope that the Government will support it.

[Lord Patel of Bradford]

My Lords, I shall speak to my amendments 105AA and 105CA, which affect subsections (6) and (7) of Clause 69. Amendment 105AA ensures that people in prison and those residing in approved premises have the same equivalence of care when it comes to safeguarding inquiries by local authorities under Clause 69(6). Amendment 105CA requires a senior member of the Prison Service to be a member of the safeguarding adults board in the area.

We just have to look at the figures in terms of the vulnerability of people in prison: prison suicide rates are 14 times greater than in the general population; over a third of offenders have self-harmed; many have a huge number of delusional disorders and personality disorders and a great many have drug and alcohol problems. This is all compounded by prisoners struggling to get access to services for a range of reasons, and they are impeded by waiting times and transfers within the prison system. Prisoners with complex needs may have too many different agencies to work with when they are released. Prisoners with such problems are particularly vulnerable, and the characteristics I have outlined are the norm rather than the exception. Providing appropriate care and support can have a significant impact on reoffending and greatly enhance people’s ability to rebuild their lives on release.

However, a huge lack of clarity around the provision of adult social care for prisoners has led to care needs not being addressed or identified, and this in turn has increased the risk of reoffending upon release. I welcome the clarity provided by the Government through this Bill, which places the responsibility for the adult social care of prisoners on the local authority where the prison is located. Clause 69 outlines the responsibilities of local authorities towards people in prison with care and support needs and ensures that they are able to access care and support on a similar basis to those in the community. The Bill confirms local authorities’ responsibilities towards this group by applying core duties to assess and meet needs on the same basis as for other groups.

However, I am concerned that, having made such a significant and welcome commitment to the social care of prisoners, people in prison and people residing in approved premises, which means people living in the community, they are not to receive the same equivalence of care when it comes to safeguarding inquiries by local authorities under Clause 69(6). I am pleased that government Amendment 105A allows safeguarding adults boards to provide advice and assistance to protect all adults in its area, including those in prison and residing in approved premises. This is a significant and positive step forward in helping to protect vulnerable individuals wherever they might be, and aids the support staff who work with them.

However, denying prisoners and people residing in approved premises the benefit of “enquiry by local authority” when safeguarding concerns are raised surely places an already vulnerable group of individuals at even greater risk. The offer of advice or assistance is no substitute for statutory inquiry when safeguarding concerns are raised. “Enquiry by local authority” not only protects the individual, it also helps to shine a light on some of the most hidden corners in our society. It is another tool to help ensure that our prisons are safe both for vulnerable prisoners and for the staff who work with them. An inquiry by the local authority does not duplicate the excellent work undertaken by Her Majesty’s Inspectorate of Prisons or by the prison itself. It complements and enhances them and, most importantly, it could help to save lives. While the Minister’s amendment is helpful, I feel that it does not go far enough. I would be grateful if she could give us a clear reason why such changes have not been included.

I am also pleased that the Minister has moved forward in enabling governors or prison officers to be members of safeguarding adults boards. I would say that they should be told to be on a board because we know how busy prison officers and staff are. If it happens on a voluntary basis, unfortunately we will get regular lack of attendance; people will not turn up to the meetings. It is important that we get some joint working between prisons and local authorities. Prison staff can learn from safeguarding boards, as they have done in Surrey, which is a fantastic example of prisons working with local authorities. Prison staff benefit from the expertise of social services and local authority safeguarding teams.

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[Baroness Northover]

My Lords, I thank noble Lords for tabling the other amendments in this group on these very important issues. On the amendment in the name of the noble Lord, Lord Patel of Bradford, we agree that a person with care and support needs should be protected against abuse or neglect wherever they are. As I have already set out, prison governors and directors have in place procedures to follow in response to allegations of abuse or neglect. Governors and directors will provide assurance to the National Offender Management Service and Her Majesty’s Chief Inspector of Prisons, through their inspection regimes, that those procedures and their implementation provide similar protection to that available in the community. The Prisons and Probation Ombudsman will investigate individual complaints and incidents. I can assure the noble Lord, Lord Ramsbotham, that the Ministry of Justice and the NOMS have acknowledged that there is a need for improved directions to the Prison Service and probation trusts in this area. They will be working with officials from the Department of Health and stakeholders to develop instructions and guidance that will give clarity about the roles and responsibilities of the Prison Service and probation trusts in safeguarding adults in their care. In addition, prison governors and other prison staff will be able to approach their local Safeguarding Adults Board for advice and assistance in improving their arrangements. The MoJ was, of course, fully consulted on the provisions relating to prisons in the Bill and will be working with the Department of Health and NOMS to develop detailed guidance so that people who are concerned about the safeguarding issue will know exactly how to raise it and get advice on how to approach it. The MoJ is fully involved in the development of all parts of this clause.

The noble Lord, Lord Ramsbotham, also raised the issue of a statutory obligation on the senior management of prisons to take responsibility for the care and support needs of prisoners. The governor or, in the case of contracted prisons, the director, has the primary duty of care for prisoners and is the appropriate first point for reporting concerns. There is an investigations procedure in place for cases in which prisoners suffer significant harm. Prisons are monitored by a range of inspectorates, including the CQC.

[Lord Patel of Bradford]

I just want to get this point on record and then perhaps we can come back to it. I understand that prisons have a whole range of safeguarding measures in place. 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? That is my first question. If somebody is in approved premises, such as a bail hostel, and living in the community like anybody else, and they have been abused or are neglected or at serious risk, why should a local authority not have an obligation to have a safeguarding inquiry? I just cannot fathom why such a person would be excluded.

[Baroness Northover]

The point is that 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. Noble Lords will be extremely familiar with how this has happened in the past in other sectors. Therefore, a decision has to be made as to where the expertise is and where the primary responsibility is. The decision made in discussions with the MoJ and NOMS is that the primary responsibility is with the prisons. We have to make sure that they carry forward that responsibility. Obviously, they will draw on advice in the way that I described, but we need to make sure that there is one body with ultimate responsibility.

We agree that prison staff should have access to local safeguarding expertise if, in their particular circumstances, it would be useful, so we agree that the second half of the subsection, from the second “officer” onwards, should be removed. However, because prisons have their own safeguarding procedures, we believe that it should be left to local discretion to determine whether it is appropriate for a governor or other prison staff to become members of safeguarding boards rather than a statutory duty. That is the intention of the first part of subsection (7).

I now turn to Amendment 105Q, in the name of my noble friend Lady Browning and the noble Lord, Lord Touhig. It raises important issues about how future statutory guidance will be issued under the Bill and how it may interact with existing guidance. The noble Baroness, Lady Wheeler, also asked about this. We intend to develop a single, consolidated bank of guidance for local authorities covering all their care and support functions under this part of the Bill. We will replace all existing guidance that covers this territory to remove the potential for future misunderstanding. Current statutory guidance for local authorities is issued under Section 7 of the Local Authority Social Services Act 1970. Future guidance on adult care and support will be issued under Clause 71 of the Bill. The amendment also proposes to require a consistent application of the definition of an “NHS body”. We agree, of course, that definitions must be clear and consistent in guidance and regulations and we will keep this in mind in drafting regulations and guidance to ensure that key terminology and definitions are consistent. I can assure the noble Baroness, Lady Wheeler, that guidance remains in place until it is superseded by new guidance.

My noble friend Lady Browning and the noble Lord, Lord Touhig, referred to guidance for people with autism. As they said, unlike other statutory guidance related to care and support, this is issued under a specific requirement included in the Autism Act 2009. I can assure noble Lords that it is not our intention to repeal these provisions by this Bill. The duty to issue guidance on autism will continue. I hope noble Lords are reassured by that.

I now turn to Amendment 105R, to which the noble Lord, Lord Low, spoke. The Government believe it is right to allow local authorities the flexibility to delegate their care and support functions to third parties. However, when a local authority chooses to delegate any of its care and support functions, this must not be a way of relieving itself of its responsibilities for how those functions are carried out. This clause does not absolve the local authority of its legal obligations with respect to care and support functions. However, we believe it is necessary that, when a local authority arranges with a third party to carry out a public function, the local authority should have contractual recourse against that third party for breach of contract. Subsection (7)(a) ensures that this is the case. It is not a limitation of the local authority’s ultimate responsibility for the performance of its functions.

The noble Lord, Lord Low, asked to be reassured about the application of the Human Rights Act. I can assure him that the Human Rights Act applies to the discharge of public functions, so even when a local authority delegates its public function to a third party, that function must still be carried out in a way that complies with the Human Rights Act. Local authorities retain legal responsibility for anything done or not done by the third party when carrying out the function. It follows that any failure to carry out the function in a way that is compliant with the Human Rights Act will be considered a failure by the local authority. We do not think that this needs to be specified in law as it is covered. The function must be carried out in a way that is compliant with the Act. By specifically referencing the Human Rights Act in legislation there is a risk that this could imply that the Human Rights Act does not apply in relation to various other pieces of legislation where it is not specifically referenced. I hope that the noble Lord is reassured.

Care Bill [HL]

Lord Patel of Bradford Excerpts

Monday 22nd July 2013 Lords Chamber

[Lord Patel of Bradford]

My Lords, I had not intended to speak on these amendments, but they present something of a dichotomy in one of the areas in the Bill, particularly Amendment 92ZFC from the noble Baroness, Lady Greengross, on the powers of access. Last year I was invited by the manager of the local Bradford safeguarding social work team, a Mr Robert Strachan, who had already thought about this issue and had had extensive consultation with some of his colleagues, social work professionals and strategic managers in Bradford. He told me that opinions varied. At that time, no one had had a problem pulling together a protection plan for a vulnerable adult within the existing legislation, although people felt, when they were pushed to the limit, that such a power could be quite useful. I was gently persuaded by that.

However, when talking to Mind, the mental health charity, which has recently done an extensive consultation with its network, I found that it believes that this power is disproportionate and unnecessary. Its members have been clear that they would consider it intrusive and contrary to the European Convention on Human Rights, and that this would undermine the trust between social workers and service users. Mind has sought the views of its network of people with experience of mental health problems, and was clearly told that there is a mistaken but prevalent belief that people with mental health problems do not have the capacity to make decisions about their own safety. Because of that, many have had negative experiences of intervention, compulsion and detention, all of which reduce choice and control and can undermine trust in statutory authorities. Mind argues that introducing powers of access for social workers is likely to further undermine trust in statutory authorities and lead to extremely difficult working relationships between social workers and service providers. I am of course sympathetic to these views. However, I am also extremely sympathetic to the views expressed in the arguments from the noble Baroness, Lady Greengross, so I am a little torn.

The only way in which I can look at this is by case example. Let us assume that an elderly lady is being cared for by her son, who has some behavioural problems, like the case that we recently had in Bradford where the grandson actually killed his grandmother. Neighbours report their concerns to social services, who dutifully go around and visit. However, they never get further than clacking the front door; the son tells them that everything is fine and he is looking after his mother. Further reports of shouting and banging reach the authorities via the neighbours, but still they are refused permission to enter and see the older lady. What do you do? The police have no powers of entry but clearly there are some major concerns. How, therefore, to proceed and establish even that the lady is dead or alive? Powers of entry, in such extreme circumstances, would allow professionals to access the house and see the person, as in cases involving domestic violence or children. I would therefore be broadly inclined to support the powers, which would add something that is not currently in place.

However, the trick would be in the execution of those powers. For example, it would not be sufficient merely to gain entry. What would you do next—convey the lady to a place of safety or take the son away? If you did not, you would be exposing the victim to further and sustained abuse. This would need thinking through carefully. The question of how the powers would be controlled and executed would be difficult but not insurmountable. I look forward to the Minister’s arguments to persuade me either way on this one.

[Baroness Barker]

My Lords, I support the amendments of the noble Baroness, Lady Greengross. They go straight to a gap that exists for older people who have capacity but are physically dependent upon people who may be abusing them. With all respect to the noble Lord, Lord Patel—whose arguments I listened to very carefully because they were very thoughtful, and I would not want to disregard what Mind has found in its consultation with its members—I point out to him that members of Mind are likely to have protection under either the Mental Health Act or the Mental Capacity Act. The people to whom the amendment tabled by the noble Baroness, Lady Greengross, is addressed do not have that protection. For me, that swings the argument.

Elder abuse has a rather odd standing in the general consciousness. It does not have the same profile as the abuse of children. It goes up and down the public agenda depending upon whether there has been some scandal or an awful case in the papers. People’s reactions to it vary enormously. When people are polled on their views about this, the phrasing of the questions in any consultation can have a profound impact. Were we faced with a question that said: “Would you like social workers to have the power to intrude into your house?”, most of us would say no, but if we were asked, “Do you think that somebody ought to be able to look out for people who are extremely vulnerable and may not be able to get out and tell anybody?”, we would say yes. That goes straight to the consultation that the Government have already held, and the reason for some of its findings. Professionals who have had experience of dealing with people and operating under the law have said that they think there needs to be a greater degree of protection, albeit with brakes and conditions, such as the necessity of getting the agreement of a JP—not just social workers barging in because they feel like it.

Taken together, the amendments tabled by the noble Baroness, Lady Greengross, get the right balance. They are not about empowering bossy professionals to wade in regardless of what people want but they are quite important, not least because of something the noble Baroness, Lady Greengross, said, which was of tremendous importance: the largest percentage of people who abuse vulnerable elderly adults are family members. The consequence of that is that very often people who are being abused are highly reluctant to do anything about it because they fear that there will be repercussions against their family members. That is why it is necessary to have a bit more legal force behind some of this than we would otherwise think we should, and I think that, on balance, the noble Baroness’s amendments are right and proportionate.

Finally, there is a very good case for the Government to accept the amendments or something like them within this legislation. They should do it now when we are not making decisions in the shadow of a scandal and when we can talk about best practice in neutral terms.

Care Bill [HL]

Lord Patel of Bradford Excerpts

Monday 22nd July 2013 Lords Chamber

Moved by

[Lord Patel of Bradford]

92AY: Clause 52, page 41, line 40, leave out “the Care Quality Commission” and insert “Monitor”

[Lord Patel of Bradford]

My Lords, I shall also speak to Amendment 92AZ. I welcome the aspects of the Bill that are aimed at securing the sustainability of the social care sector and social care provision. It is particularly important to put measures in place setting out the action to be taken to protect people from the negative impacts of business failure in adult social care. However, I have some concerns about the key clauses that relate to provider failure and market oversight. I refer specifically to Clauses 47 to 54, which specify the criteria for the application of market oversight, determine whether criteria apply to a care provider and cover the assessment of financial sustainability of care providers.

Amendment 92AY focuses on the financial regulation of providers. The Bill currently allocates to the Care Quality Commission responsibility for maintaining quality care services, mitigating risk to business sustainability and ensuring continuity of care for any person who receives care services. These steps will include obtaining regular financial and relevant performance information, working with the provider to develop a sustainability plan to manage any risk to the organisation’s ongoing sustainability, using powers to commission an independent business review to help the provider to return to financial stability and requiring information from the provider to enable the CQC to support local authorities to manage provider failure.

I concur with the view that all providers of care and support services should be subject to thorough financial checks which may indicate that a care organisation might be unable to fulfil its obligations as a provider of services in the future. However, plans to allocate responsibility for financial regulation to the CQC appear to be poorly thought through and Monitor, as the current financial regulator for health services, should assume this role. The pressures facing the CQC as part of its expanded remit for regulating quality across the health and social care sectors have already been eloquently highlighted in previous debates on this Bill by many noble Lords, including the noble Lord, Lord Sutherland, and my noble friends Lord Hunt and Lord Campbell-Savours.

We are all aware that the CQC is undergoing significant structural change and it does not have the capacity and organisational expertise to take on responsibility for assessing the financial stability of care providers. This is being proposed because of the belief that service users would benefit from having a single regulator, specifically the CQC, to oversee care and support services and provide an overall assessment of performance, combining quality and financial data. I am also aware that the Francis report highlighted the importance of simplifying the quality and financial regulation regime for health providers to eradicate overlap and minimise the gaps between the functions of the different organisations and regulators. This included changes to the current division of regulatory responsibilities between Monitor and the Care Quality Commission.

However, the noble Lord, Lord Sutherland, in a previous debate, specifically highlighted the key concerns—which I share—about giving the CQC additional responsibilities for financial assessment. He stated, and I agree, that the CQC is not prepared for these additional responsibilities. I would question whether it has the specialist staff, skills, experience and, most importantly, expertise required to decide whether care providers have financial sustainability.

Alongside all the other demands it faces, the CQC will also be pressured into developing a rushed financial accountability system, without proper consultation and checks and balances. These additional responsibilities for financial regulation place added pressure on an organisation that is already undergoing significant change and faces a greatly increased workload as part of its expanded duties for quality assurance. The development of a poor-quality financial accountability system will only affect its credibility further and I therefore question the rationale for designating the CQC as a financial regulator for the care and support sector.

In fact, under the Health and Social Care Act 2012, Monitor became the economic regulator to promote effective and efficient providers of health and care, promote competition, regulate prices and safeguard the continuity of services. Monitor can license providers, work with NHS England to set prices for NHS-funded services, prevent anti-competitive behaviour and work with commissioners to ensure continuity of services when providers get into financial difficulty. I would therefore argue that Monitor already has its own robust financial oversight regime for healthcare providers that can be adapted and applied to the social care sector; and the Government should use these existing powers as a means to effectively regulate the sector in the future. My amendment to Clause 52, on the assessment of financial sustainability of care providers, simply replaces the CQC with Monitor. I hope that the noble Earl will agree that this is a sensible and helpful amendment.

I now turn to Amendment 92AZ on the accountability of commissioners. As many noble Lords have commented throughout the Committee stage, the focus in the Bill on greater integration between health and social care services is to be welcomed. As services between health and social care become more integrated, it is essential that the plans of local authorities face the same levels of scrutiny as clinical commissioning groups and have clear lines of local and national accountability.

However, there is at present no effective regime in place to oversee and monitor the standard of local authorities’ commissioning of care and support services. The annual performance assessments previously undertaken by the Care Quality Commission to evaluate the quality of councils’ commissioning of adult social care services were scrapped in 2010. Of course, the Minister may argue that the scrutiny of commissioning plans is now covered under the provisions of the Health and Social Care Act 2012 and that additional oversight is not therefore required.

I know that that Act contains a number of duties that focus on aligning the plans of clinical commissioning groups and health and well-being boards to ensure that clinical commissioning groups take into account the joint strategic needs assessments when preparing their commissioning plans. Equally, I am also aware that health and well-being boards are expected to have a key role in bringing together local authorities, clinical commissioning groups and local Healthwatch to assess the health and care needs of local populations through joint strategic needs assessments and joint health and well-being strategies.

However, recent cases such as those at Winterbourne View and Southern Cross have demonstrated the devastating impact on vulnerable people when commissioners, commissioning systems and processes are found wanting. Winterbourne View was set up as an assessment, treatment and rehabilitation centre for people with learning disabilities and autism, but the review into Winterbourne View found that it had “strayed far” from this purpose and stated that the commissioners, as well as the owners, Castlebeck, were to blame for this. The primary care trust commissioners who placed people at Winterbourne View did not set performance targets for the company or effectively check the progress of patients, despite being charged an average of £3,500 a week for places. Their reviews were clearly flawed, completely ineffective and did not bring to light either concerns about the quality of assessment and treatment or the detail of abusive practices. Strategic health authorities also did not effectively performance-manage primary care trusts in their commissioning of placements for this client group. The review concluded that closed establishments such as Winterbourne View would benefit from a more prescriptive approach. This includes far more effective planning processes, and performance management and monitoring systems by commissioners.

That is why I am proposing a new clause that focuses on the accountability of commissioning organisations that would give NHS England a duty to scrutinise the commissioning plans of local authorities for adult social care services to ensure that they are upholding the safety and care of vulnerable people, and the efficient and effective operation of a market. Equally, notwithstanding my previous comments, I would be content if the noble Earl thought that the CQC rather than NHS England would be able to provide that scrutiny. I beg to move.

[Lord Warner]

My Lords, I intervene briefly to make a couple of observations and put a question to the Minister on this set of amendments. I must confess that I am not thrilled by the idea of NHS England being asked to supervise the commissioning of local authorities. I think that it may struggle to supervise the commissioning of 211 clinical commissioning groups, or however many we have this week, without our turning it loose on 152 local authorities as well. There must be some doubts about whether it is the right body to supervise local authority commissioning.

My noble friend Lord Patel of Bradford makes a very fair point in asking where we will get some sort of overview of the quality of local authority commissioning. It may not be NHS England, but we could perhaps have some idea of the Government’s thinking on how they will be satisfied that the commissioning is of a reasonable standard across 152 local authorities. If the Minister could tell us this evening which quality assurance mechanism the Government have in mind, that would be a useful insight.

The other point was about whether it should be Monitor rather than the CQC. This is an area where I have struggled quite a lot, because I think that there is a problem with what is going on with the financing of adult social care. Who actually bankrolls the providers in this sector? I question whether, without a lot more expertise, either Monitor or CQC are well placed to penetrate some of the private equity models of financing adult social care provision. These models are being brought in almost as we speak.

The financial complexities of this sector are very considerable. The providers of residential and nursing home care within the adult social care sector have moved on a long way since my days in local government as a director of social services. People are assembling packages of money to buy groups of homes, and they put groups of homes together in what is often basically a hedge fund or private equity-type process, essentially consolidating providers in this sector. The days of mom and pop homes seem to be passing quite quickly, as the sector tries to secure greater financial capability to respond to the buffets of a market system.

In this extraordinarily complicated market, it is not clear to me how the Government will equip any regulator—or help it equip itself—to secure the expertise to actually raise the money to buy and merge groups of residential and nursing home providers. It is not a very transparent system. Either CQC or Monitor will require a lot of expertise. It will have to go into territory into which few of us are equipped to go, and find out what is actually going on, if we are not to have another Southern Cross experience.

I suggest that the risks of that happening again are becoming greater as the funding systems for these organisations become less transparent. They are not publicly quoted companies, and in many cases they are hidden behind a rather mysterious cloak of financial allocations. Without making adverse comments, I suggest we look at what happened with Four Seasons, which was taken over by Terra Firma. Where are the loyalties? Are the loyalties of that organisation to the people receiving care, or are they to the people who are creating the funds for the purchase of that organisation? I would like some reassurance that CQC or Monitor—I do not feel strongly doctrinal, one way or the other—will have the expertise to penetrate some of these rather opaque organisations that are now involved in funding providers in this sector.

--- Later in debate ---

[Earl Howe]

The noble Lord is absolutely right. We are entirely open to looking at the lessons to be drawn from other sectors and the regulators of other sectors. I am sure that important messages will come from such sectors of the kind the noble Lord describes—no doubt not just the energy and water sectors but others, too.

I will move on to the question of whether there should be central oversight of local authority commissioning practices. I wholeheartedly agree with many of the arguments that have been expressed this evening. Commissioning practices which risk undermining personal dignity and lowering quality are simply not acceptable. That is why Clause 5 of the Bill introduces a duty on local authorities to shape high-quality, diverse and sustainable markets in care and support services. Clause 5(4) requires local authorities to have regard to this duty when commissioning services. As I said when the Committee discussed Clause 5, we are aware that there are examples of poor commissioning practice across the country. We need to move away from overly prescriptive commissioning that focuses only on price or time slots, to consider how it can do things differently and deliver better outcomes in quality care.

In relation to the option of central oversight of local authority commissioning that the noble Lord, Lord Patel of Bradford, suggested, the Bill leaves open the possibility of the CQC conducting reviews of local authority commissioning. However, by enabling the CQC to review local authority commissioning, if it is prescribed in regulations, the Bill gives us the opportunity to discuss this option further. In particular, we are considering whether the new chief inspector, who will work with local authorities that commission care and support, should have a formal role in assuring the performance of those authorities, building on the strength of the current programme of improvement activity and peer assurance led by councils.

I emphasise at this stage that if there is to be central oversight of commissioning, the CQC, as a consequence of its links with the chief inspector and its existing relationships with, and expertise in, the social care sector, will be the most appropriate body to undertake this function. Although we have not closed our minds to the option of central oversight of local authority commissioning, the fundamental problems underlying poor commissioning practices are cultural and structural. Central oversight on its own will not necessarily tackle these issues.

The noble Lord, Lord Warner, asked how we could be satisfied that local authorities’ commissioning will be of a suitable quality. It goes without saying that it is for local authorities to decide the most appropriate way for them to fulfil their duty of commissioning and of shaping local markets, responding to local needs and circumstances. They will be accountable locally for those decisions. However, we are working with local authorities to support them to develop their capacity to shape local markets. We launched a programme of support last year and intend to continue working with local authorities to improve commissioning practices. We are committed to working with the sector to support local authorities to shape diverse and high-quality markets, including through improving commissioning practices, through the recently announced homecare challenge and through a programme to support the authorities in their market-shaping capacity.

In conclusion, I fully understand and sympathise with the issues raised by the two amendments. However, I hope that I have been able to shed some light on why the Government have come to their view on the issues. In so doing, I hope that I have provided a measure of reassurance to the noble Lord, Lord Patel of Bradford.

[Lord Patel of Bradford]

My Lords, I thank the Minister for his detailed response. On the first amendment, which deals with financial regulations, he singled out three issues that were relevant to why the CQC was chosen: having a single regulator, better relationships with local authorities and better relationships with commissioners. That goes some way towards reassuring me, but I still feel, coming back to the comments of my noble friend Lord Warner, that this is not necessarily about relationships and capacity but about the expertise and skills required in a very complex financial arena. That is the key.

If I were naive, we lived in an ideal world and I was providing care homes, and either my accountant was not very good and I did not know that I was going bankrupt or I wanted to carry on and would do everything possible to keep the company running, regardless of my relationship with the CQC, that is where somebody with the real financial expertise required in this day and age could come in and spot what was happening. I am not 100% reassured that the CQC will have that capacity or expertise. I suppose that I recognise that Monitor does not understand the social care sector as well but it has the financial expertise that I think is invaluable. I may want to return to this issue again and to have a further discussion about it.

However, I am far more reassured by the response that the noble Earl has given me on central commissioning. I suppose that I stipulated NHS England in the amendment because I could not think of another body. Having said that the CQC does not have the capacity to do this, I could not say that the CQC should be doing it. However, I am reassured that the potential is there for central oversight through regulations and other areas. In the mean time, I beg leave to withdraw the amendment.

Amendment 92AY withdrawn.

--- Later in debate ---

[Lord Patel of Bradford]

My Lords, I have put my name to Amendment 94 in the name of the noble Lord, Lord Patel. I do not think that I can add to the detailed and clear exposition that the noble Lord has provided. I know that the amendment is slightly lengthy, but it is also very logical and clear—I understood it very clearly, so that is a bonus. I welcome the intention behind Clauses 55 to 63, which enable parents and young people to request a child’s needs assessment. Clause 56, on requirement’s for a child’s need assessment, states:

“A child’s needs assessment must include an assessment of … (a) the outcomes that the child wishes to achieve in day-to-day life”.

What is the intention behind “outcomes”? What outcomes are we looking at?

[Lord Hunt of Kings Heath]

My Lords, it was remiss of me not to declare an interest during our debate today as president-elect of GS1, chair of a foundation trust and consultant trainer with Cumberlege Connections.

Perhaps I, too, may raise the connection of this Bill with the Children and Families Bill. As my noble friend Lord Warner said, with the Care Bill applying to adults from the age of 18 and the Children and Families Bill setting the framework for children and young people up to the age of 25, there is a clear overlap in their jurisdiction in the context of social care provision. Education, health and care plans under the Children and Families Bill also include an assessment of a child or young person’s social care needs, which means that young people between the ages of 18 and 25 may be eligible both for an EHC plan and an adult care and support plan. That seems to reinforce my noble friend Lord Warner’s comments.

My understanding—perhaps the Minister could confirm this—is that the Government are considering bringing forward amendments to the Children and Families Bill to make sure that the two link together. If that is so, the problem that we have is that the Children and Families Bill will not go into Grand Committee until we come back in October, whereas this Bill should have cleared the House by about the fourth week in October. It would be very disappointing if we, in debating this Bill, were not able to see the changes that the Government were going to make to the Children and Families Bill so that we could make sure from our perspective that the two hung together. Can the Minister assure us that, if the Government are contemplating some amendments, we could see them so that we could debate them within the context of this Bill?

Care Quality Commission: Morecambe Bay Hospitals

Lord Patel of Bradford Excerpts

Thursday 20th June 2013 Lords Chamber

[Lord Patel of Bradford]

My Lords, I welcome the Statement made by the noble Earl, particularly in respect to the CQC’s new focus on being a champion for patients, putting safety and care at the heart of the system and having more specialist teams. I am particularly pleased that David Behan has been appointed as the new chief executive. However, I am extremely concerned that another scandal is looming round the corner. There are very strong warnings. I am extremely concerned that mental health patients detained under the Mental Health Act are very poorly served at the moment. To put this in context, the CQC was formed from three organisations: the Healthcare Commission, the Commission for Social Care Inspection, and the Mental Health Act Commission. The Mental Health Act Commission was not an inspectorate—it was a visitorial body, and looked after the care and treatment of detained patients. It did so by employing a number of commissioners with specialist expertise, not only in understanding the issues faced by mental health patients but also in mental health law, which is so important.

[Noble Lords]

Question!

[Lord Patel of Bradford]

I am coming to the question.

As the former chairman of the Mental Health Act Commission, I was assured when those organisations merged that the CQC would keep the focus of those commissioners, those skills and that methodology, and that specialist focus and attention would be given. That is legally required under the Mental Health Act, but it has not happened. Over the last few years the expertise of Mental Health Act commissioners has been eroded. Can the Minister assure me that this focus will be renewed, and the focus of Mental Health Act commissioners returned? Will the Government consider having a chief inspector of mental health? That was one of the original ideas when it was formed.

[Baroness Northover]

I remind noble Lords that brief questions are allowed. As the Companion states, this is not the occasion for an immediate debate. I note that many noble Lords want to speak, so the briefer the better, please.

Care Bill [HL]

Lord Patel of Bradford Excerpts

Tuesday 21st May 2013 Lords Chamber

[Lord Patel of Bradford]

My Lords, the Minister has clearly outlined the many positive qualities in the Bill. Although I welcome many aspects of it, a number of issues cause me concern, particularly with respect to the care of some of the most vulnerable people in society—those with mental health problems.

I wish to explore four specific aspects of the Bill and seek assurances from the Minister about how the Government intend to address these: first, the lack of adequate safeguards for effective advocacy—for example, in ensuring take-up of personal budgets and protecting those detained under the Mental Health Act; secondly, what I see as unnecessary changes to the definition of mental health aftercare services; thirdly, how adult safeguarding boards will be able to exercise their functions effectively; and, finally, the lack of clarity about continuity of care for people in prison and on leaving prison.

I start with the new national eligibility criteria and personal budgets. Overall, I support the Bill’s focus on this and believe that giving everyone who is eligible access to a personal budget will greatly improve their lives. However, accessing these budgets is a far from simple process. For example, there are already significant variations in the take-up of personal budgets between councils and regions, and between different community groups. The official figures from the NHS information centre show that while 29% of adult care users or carers receiving community services had a personal budget in 2010-11, the rates ranged from 4% in Somerset to 71% in Manchester. The figures suggest that progress on moving people onto personal budgets is slowest in the south-west, where the average take-up is around 18%, and fastest in the north-west, at around 35%.

Moreover, the uptake of personal budgets among people with dementia still lags way behind most other client groups. The Alzheimer’s Society in a report in 2011 found that three in five people with dementia assessed as eligible for a care package were not even offered a personal budget, while 15% declined an offer of one. The report clearly highlighted the importance and need for advocacy or brokerage services and stated that,

“support planning and brokerage services are crucial to enable people to access the system”.

I fear that without a statutory entitlement to effective advocacy and support, some of the most vulnerable users and carers, such as those with mental health problems, learning disabilities and dementia, will not be able to access the system nor have their needs met through the kinds of informal support services that personal budgets are so good at enabling.

I am concerned that it was not considered necessary specifically to reference advocacy within the duty to provide information and advice. In meeting this duty, local authorities will be expected to provide information and advice that is accessible and proportionate to all. Of course, I recognise that an individual’s requirements for information and advice could range from a leaflet or a face-to-face conversation to long-term independent advocacy but, as the Law Society stated, “information … is no substitute” for a proper system of advice and advocacy for service users to navigate what will be a “complex system”.

Further, in a really important point, the Law Society notes that Clause 2(3) states that local authorities may be permitted to “make a charge for” this service and that this will be set out in regulations. I would like to know how vulnerable people who lack resources and in many cases live in poverty will find the means to pay for this. For those who are vulnerable and disadvantaged, charging could in fact become a new barrier to accessing an already difficult system.

What about those with mental health problems? The Bill rightly highlights the Government’s aspirations of achieving integrated and joined-up care, including parity of esteem between physical and mental health. This parity of esteem must include those detained under the Mental Health Act, where there is an even stronger case for the provision of effective and independent advocacy. I feel very strongly that unless all patients subject to compulsory powers under the Mental Health Act can access a truly independent mental health advocate, they will continue to be at risk of missing out on the most basic elements of care and support intended by the Bill. This is even more important for those groups already experiencing significant inequalities, such as those suffering from mental health problems who are from black and minority ethnic communities. It is crucial that we tackle these existing inequalities in the mental health system. I believe that providing effective and independent advocacy would be an essential step in doing this.

In fact, I am very concerned about the relative lack of focus on mental health in the Bill. Frankly, mental health is the biggest unaddressed health challenge of our age and is costing our society and the economy millions of pounds every day, not to mention the cost of the suffering among individuals and families. Why, given the critical nature of mental health problems, have the Government once again chosen to change the statutory provision of free aftercare services for people who have been treated under the Mental Health Act? I speak, of course, about Section 117 services, which noble Lords will recall this House debated to a large extent during the passage of the Health and Social Care Bill. Yet here we are again, faced with what I believe to be an unnecessary and possibly harmful change to these vital services. I will be seeking to make amendments in Committee unless the Minister can explain how these changes help or improve provisions which may not be perfect, but which ensure a degree of protection for those very vulnerable groups of people.

In particular, I am at a loss as to why the Government are attempting to change the eligibility criteria for Section 117 services. For example, Clause 68(5) introduces a new definition of aftercare services such that these services must be,

“meeting a need arising from or related to the mental disorder of the person concerned”.

This is surely unnecessary, but more importantly—and this gives me real cause for concern—given the history of local authorities in trying to avoid their responsibility for aftercare services of this kind, this new definition would enable local authorities to refuse aftercare on the basis that the need is no longer related to the mental disorder. Far from clarifying the position, this new definition adds to the complexity and risk, creating a situation where more people are denied access to these essential services.

I understand that the Government’s aim was to translate the Law Commission’s recommendation on Section 117 of the Mental Health Act into the draft Bill, but I note that the Law Society has asked for specific assurances that there is no intention by government to erode the current free-standing duty to provide free aftercare under Section 117 to,

“some of the most vulnerable”,

individuals in society. I suggest that the proposed new definition of aftercare services is too restrictive and could generate complex legal disputes over whether a service should be provided under Section 117. I will need a great deal of persuading that the proposed changes bring any benefit and do not in fact create the likelihood of greater harms.

Care of the vulnerable must be at the forefront of our efforts. Therefore I welcome the statutory framework for adult safeguarding, which includes the establishment of Safeguarding Adults Boards in local areas. The Bill states that these boards will be required to produce safeguarding plans and updates on progress, and that where a board “knows or suspects” that “serious abuse or neglect” has contributed to the death or serious harm of an individual, it will be required to carry out a safeguarding adult review.

However, I have a number of concerns and questions around how these boards will be able to exercise these functions effectively. For example, not only must local authorities and the NHS work together, but neighbouring local authorities must establish communication systems to ensure that all knowledge on abuse issues is shared not just in a local area but across areas, if another Winterbourne View is to be avoided. We also need avenues of communication for carers and families to register concerns, and for these to be looked at quickly. In fact, carers and families should not only have input on the boards but, I suggest, be supported to act as representatives on them.

Moreover, effective safeguarding work cannot be disassociated from other aspects of care and support provision. For example, with more and more people with higher needs potentially being employers with personal budgets, they will be vulnerable to abuse in their own homes. How will this be safeguarded against? There can be no doubt that for these boards to be effective, local authorities will require additional funding. Where is this to come from? I will not add to the many comments about lack of funding already made by other speakers; I simply pose the question again.

Finally, as I understand it, the whole point of this Bill is to move away from responding to crises and emergencies which can result in costly and unnecessary hospital or residential care. The aim is rather to develop person-centred and preventive approaches that meet real needs in a timely and appropriate fashion. One group who especially need this are those with social care needs who are entering or leaving prison. For this group, care is often not of the same standard as it would be in the community. In fact, a 2007 report by the University of Birmingham for the Care Services Improvement Partnership, Adult Social Care in Prisons: A Strategic Framework, identified major shortcomings in the provision of social care in prisons.

Clause 69 could be a very important step in addressing these shortcomings, particularly considering that around 70% of prisoners will have mental health and substance misuse problems. Providing this care can have a significant impact on reoffending and greatly enhance people’s ability to rebuild their lives on release. However, for such benefits to be realised, it is essential that there is continuity of care between prisons and the community. We need to ensure that prisoners have access to care that is equivalent to what is available in the community. People receiving care before entering prison should continue to receive such support, and any care provided while a person is in prison should be continued through the gate. Local authorities, prisons and probation services must work together to ensure that effective links are in place. I would like some reassurance from the Minister that this will indeed be an outcome from the Bill and one that he recognises is important.

Many aspects of this Bill are welcome and are long overdue. However, there are significant omissions and there is a real risk that in the current economic climate and with the background of funding cuts, nothing will really change. I am concerned about those who are most vulnerable and whether we have truly learnt the lessons from Winterbourne View and Mid Staffs. If we continue to react to problems rather than resolving them at an earlier and more effective point, we will place the most vulnerable in our society at risk. I hope that the Minister will reflect on my concerns and respond appropriately.

Health: Mental Health

Lord Patel of Bradford Excerpts

Wednesday 21st November 2012 Lords Chamber

[Earl Howe]

My Lords, we expect the equal priority for mental and physical health to be reflected in all relevant aspects of the NHS’s work. There can be no single measure of parity. As I said earlier, we expect the board to be able to demonstrate measureable progress towards parity by 2015. However, there are some specific areas where we expect progress; for example, relevant measures from the NHS outcomes framework, including reducing excess mortality of people with severe mental illness; delivering the IAPT programme in full and extending it further; addressing unacceptable delays, and significantly improving access and waiting times; and working with others to support vulnerable and troubled families. Those are very detailed objectives for the board, all of which bear upon the key question of parity between mental and physical health.

[Lord Patel of Bradford]

Given the real terms drop in mental health funding last year, which was even greater for older people’s mental health services—an area which has many challenges ahead for us; will the Minister tell us how the Government will ensure consistency and parity in local commissioning strategies, as clinical commissioning groups can obviously choose to prioritise or exclude what they want to have in those strategies? How will the Government deliver the Prime Minister’s dementia target?

[Earl Howe]

My Lords, the way in which mental health services are commissioned locally is of paramount importance. One of the features of the reforms is to bring together local authorities and the health service to plan services in a much more integrated way. Clinical commissioning groups will ignore the imperative of mental health at their peril, because they will be charged—under the commissioning outcomes framework, which the board will set—to deliver meaningful progress on all the indicators, including mental health indicators. It is an absolute necessity that good commissioning takes place at a local level.

NHS: Evidence-based Medicine

Lord Patel of Bradford Excerpts

Wednesday 10th October 2012 Lords Chamber

[Lord Patel of Bradford]

My Lords, the UK is blessed with an excellent evidence base on the treatment of drug misusers. Can the Minister reassure the House that government policy around illegal drug use and treatment for drug users is based on that evidence base and not on what appears to be a policy direction of abstinence only and punishment for drug users?

[Earl Howe]

My Lords, yes I can. There is a real impetus within Government to look at evidence-based treatment for illegal drug users.

NHS: Mental Health Services

Lord Patel of Bradford Excerpts

Monday 8th October 2012 Lords Chamber

[Lord Patel of Bradford]

My Lords, I too add my thanks to the noble Lord, Lord Alderdice, for tabling this important and timely debate. The noble Lord has made and continues to make an immense and important contribution to this area of healthcare in terms of its development and delivery. Like him, I believe passionately that we must do a great deal more to address the needs of people who suffer from mental health problems.

The question before us today is how do the Government intend to strengthen the provision of mental health services in the NHS? It is a vital question at a time when the NHS is facing the most significant upheaval in its entire history and the finite resources we have for healthcare are being further reduced.

When the coalition Government first came to power I was very pleased to see mental health given priority attention. Those earlier efforts to raise the profile of mental health problems were very much welcomed, in particular their strategy No Health Without Mental Health, although I think I prefer the title of the noble Baroness, Lady Emerton. The Government have continued to invest in talking therapies and we have seen the excellent anti-stigma campaign Time to Change. However, I have to ask myself what is really changing? What lies beneath all the rhetoric and good intentions? The problems are certainly not getting any less.

My noble friend Lord Layard talked about his recent report published by the London School of Economics that sets out some of the starkest evidence that I have seen that the problems are getting worse. More significantly, as we see increasing levels of problems, we do not see a similar rise in treatment services. The report clearly outlined that mental illness is now nearly half of all ill health suffered by people under 65 and it is more disabling that most chronic physical disease. Yet, only a quarter of those involved are in any form of treatment. Mental illness also accounts for 23% of the total burden of disease. Yet, despite the existence of cost-effective treatments, it receives only 13% of NHS health expenditure.

There are currently six million people with depression or crippling anxiety conditions, and more than 700,000 children with problem behaviours, anxiety or depression. The noble Baronesses, Lady Tyler and Lady Young, raised the important issues with respect to these children. However, most of these people receive no treatment because, as the report says:

“NHS commissioners have failed to commission properly the mental health services that NICE recommend”.

The report concluded:

“The under-treatment of people with crippling mental illnesses is the most glaring case of health inequality in our country”.

It is a shocking form of discrimination because effective psychological treatments exist but are still not widely enough available. What steps are the Government taking to address this health inequality and to ensure that local authority and NHS commissioners do commission mental health services in line with NICE recommendations?

It is very clear that we cannot allow this situation to continue. At a time when the economy continues to struggle it is vital that these issues are addressed, because the lack of adequate mental health provision is threatening the chances of our economy recovering. For example, recent research shows that one in 10 workers has taken time off work because of depression. The MORI poll that identified this figure was conducted across seven European countries involving more than 7,000 people. Overall, 20% of those polled had received a diagnosis of depression at some point in their lives and, shockingly, the highest rate was in Britain, where 26% had been diagnosed. Among workers experiencing depression, 58% in Britain were most likely to take time off. Surely, in view of these facts, the Government need to rethink cuts to mental health care and should be looking to expand care instead.

Notwithstanding the comments made by the noble Lord, Lord Alderdice, about therapies, evidence has shown that the cost of psychological therapy is low and recovery rates are high. Expenditure on psychological therapies for the most common mental health problems is also cost effective as long as we take heed of the comments made by the noble Baronesses, Lady Meacher and Lady Tyler, about the need for consistency, quality and choice of services. For example, when people with physical symptoms receive psychological therapies, the average improvement in physical symptoms is so great that the resulting savings on NHS physical care would outweigh the cost of psychological therapy—a point made clearly by my noble friend Lord Layard.

It was for these reasons that the Labour Government started in 2008 the six-year IAPT programme. We know that in areas where this has been effectively commissioned, it has had a positive impact. However, we also know that the £400 million earmarked by the coalition Government for psychological therapy has not always been used for its intended purpose because there was no commitment on NHS commissioning managers to do so. It is essential that that programme is completed as planned, since even this will provide for only 15% of need.

What about those with more complex and enduring mental health problems? Let us not forget that when we are talking about strengthening NHS services, this includes services provided in prisons, where we know there are very high numbers of people with mental health and substance misuse problems. In fact, the annual report to Ministers by the independent monitoring board at HMP Pentonville reported that health and social care workers providing health support to inmates are being stretched by a “serious and sharply increasing” rise in demand for care. The report stated that mental health teams at the prison received 24 referrals a week in 2011-12, up from 18 a week the year before. Incidents of self-harm had also increased “very significantly” over the past year. The prison’s 22 in-patient beds, the majority of which are used for mental health patients, were full to capacity. The report said that the reasons behind the spike in mental health demand at the prison were “not fully understood”, and warned that,

“further resources are urgently needed to tackle these issues”.

What will the Government do in response to this report to address the urgent health service resource needs in prison to tackle complex mental health issues?

When we are talking about vulnerable groups, we know that people from black and minority ethnic communities face specific difficulties, including higher rates of mental illness in some groups and problems with access to the right care and treatment—issues raised by the noble Baroness, Lady Young. Service user groups have expressed fears that funding provided to local user-led mental health groups, where some of the best progress has been made in black and minority ethnic mental health service user involvement, may especially be vulnerable when services are looking to make significant economic savings.

I share these concerns especially in light of the establishment of more generic service user involvement mechanisms such as Healthwatch England and local Healthwatch organisations. These cannot and must not be seen as a replacement for involvement mechanisms especially for mental health service users, and especially not for those that engage black and minority ethnic communities and have a rights-based focus capable of addressing issues in relation to the use of compulsion under mental health law. What specific steps are the Government taking to ensure that vital local user-led mental health groups are being maintained alongside Healthwatch and not being replaced by them?

In conclusion, it has been said that the challenge of mental health should be placed at the heart of Government but I suggest that where it really needs to be is at the heart of the new commissioning structures within clinical commissioning groups and local authorities. But as the NHS has clearly failed to commission mental health services in line with official guidance, and with further pressures to come on the whole NHS budget, will commissioners be able to take the action that is needed on securing and developing mental health services? I greatly fear that mental health services will continue to be the Cinderella services and that the urgency of need and the benefits that can be realised are not fully understood within these new and as yet untested commissioning structures. My final question to the Minister is: what will the Government do to ensure that clinical commissioning groups and local authorities address the full range of needs for mental healthcare in their commissioning plans?

Drugs: Prescribed Drug Addiction

Lord Patel of Bradford Excerpts

Thursday 12th July 2012 Lords Chamber

[Lord Patel of Bradford]

My Lords, while there certainly is a focus on recovery for illegal drug users, does the Minister agree that the journey from being a drug user to becoming “recovered”—that is, to abstinence—is very complicated? It may require that person to have treatments, including methadone, Subutex and other drugs. It is not simply a matter of someone becoming abstinent, especially in the current economic climate. Does he agree that that is still the direction of travel?

[Earl Howe]

Most certainly yes, and that conforms to all the expert advice that we in the department and local commissioners have received.

Health and Social Care Bill

Lord Patel of Bradford Excerpts

Monday 19th March 2012 Lords Chamber

Moved by

[Lord Patel of Bradford]

1: Clause 8, page 4, line 17, leave out “promoting equality of provision” and insert “reporting on and reviewing the treatment of providers”

[Lord Patel of Bradford]

My Lords, I speak to Amendments 1 to 6 in respect of Clause 8 of the Bill. As noble Lords will no doubt have realised, Amendment 1 is slightly different from the one that was debated on Report and I will explain why my noble friend Lord Noon and I have tabled it.

VAT recovery for charities is an important issue and one that has received considerable support. Indeed, my previous amendment to the Bill was passed. I will not repeat all the arguments made on Report but given the changed nature of the amendment I feel I should explain some of the differences.

I am very indebted to Sue Ryder Care for its support and invaluable information in preparing this amendment. It stems directly from its campaign, which started in 2011, to raise awareness about the problem of irrecoverable VAT for charities providing healthcare services. For example, the NHS is able to recover VAT on certain non-business supplies that charities cannot. This may hinder them from taking full advantage of the Government’s agenda, which will see more services outsourced from the NHS to other providers. It can be seen as a significant barrier to entry for charities which may be forced to use their charitable funds to pay the VAT.

--- Later in debate ---

[Earl Howe]

My Lords, I am pleased to conclude what has been a very good and constructive debate. I am extremely grateful to the noble Lord, Lord Patel of Bradford, for raising these important issues, both now and in Committee. As he stated, since his original Amendment 46 was introduced in Committee, we have worked together on this alternative amendment. While this has to some extent been a joint venture, all credit for the inspiration behind it must go to the noble Lord—along with the noble Lord, Lord Noon, whose strong commitment to the charitable sector is well known.

I can add little more to what the noble Lord has said, but it might be helpful to clarify a small number of points. First, I reassure the House that the Government are committed to a fair playing field for all providers of NHS services. We are particularly keen for voluntary sector organisations and social enterprises of all types and sizes to be involved. These providers are often among the most innovative and can offer highly personalised and bespoke services that meet the needs of local people. We understand that it is not just charities but the full range of voluntary sector providers—mutuals, co-operatives and social enterprises—that noble Lords are keen to see delivering NHS services. The new amendment enables a fair, transparent and impartial consideration of the issues, addressing all providers and possible means of responding to their concerns. I can confirm that the full intention is to look at how existing barriers can be removed, not to create new obstacles.

Secondly, as noble Lords are aware, a variety of barriers affect different providers. This includes not only payment of taxation but also access to and the cost of capital, the difficulty of securing appropriate insurance and indemnity, and the difficulty of bidding due to the scale or scope of contracts. The amendment therefore relates to a review of the full range of issues that affect the ability of providers or potential providers to deliver services for the NHS. I am sure noble Lords will agree that the potential is truly enormous.

We are clear that this is an important issue, which is why we want the report to be statutory and therefore accountable to Parliament and produced within 12 months of Royal Assent. Equally, it is crucial that the duty for the Secretary of State to keep these matters under review is in the Bill.

I can also assure noble Lords that the preparation of the report will involve full engagement with providers from all sectors, commissioners, and other stakeholders, such as Members of this House, to ensure that the full range of issues are considered and each of the concerns addressed. In particular, it will ensure that concerns around treatment for VAT of supplies of healthcare services or associated goods to the NHS by charities, including hospices, are considered. In response to the specific question of the noble Lord, I can confirm we would not see this review as in any way being slanted towards giving private sector firms a ‘leg up’.

This review will look at the barriers to achieving a fair playing field, and recommend actions to be taken to address them. We are already well aware that a number of the most deep-seated barriers affect voluntary sector providers, not those from the private sector. While I would not want to prejudge the result of the review, I fully expect that it will put forward a number of actions which could be taken to remove such barriers, thereby better enabling third sector providers to compete fairly with other providers of NHS services. I hope this reassures the noble Lord that, while I think we should look across all providers, it is our view that barriers facing voluntary sector providers are greater than those facing the private sector and we expect the review to focus accordingly on those.

I turn to the separate but related issue raised by my noble friend Lord Newby. We have also listened to the matters raised in other debates during this Bill and during the passage of the Public Services (Social Value) Bill, about the need to take social value into consideration in public sector procurement more generally. The Government agree that a wide-angle lens on the extended social, economic and environmental benefits when conducting procurement exercises can only be helpful. Today I am going further and put on the public record that the Secretary of State for Health is committing that the requirements in the public services Bill will be fully applied in relation to commissioning of NHS services through the procurement guidance that the board will produce on this. These were issues that were raised very compellingly by the noble Lord, Lord Mawson, and I pay tribute to him for his powerful and consistent advocacy on this theme.

I hope very much that your Lordships will find the amendment of the noble Lord, Lord Patel of Bradford, agreeable and I will be happy to support it.

[Lord Patel of Bradford]

I am very grateful for the Minister’s support in this and for taking it a lot further than I had done initially. I have learnt an enormous amount while we have been discussing these issues and I am sure that the not-for-profit sector will be very grateful for the support provided by the Government on this issue. I am sure it will raise a number of very important factors that will improve service provision for those areas.

Amendment 1 agreed.

Moved by

[Lord Patel of Bradford]

2: Clause 8, page 4, line 18, leave out from beginning to second “the”

--- Later in debate ---

[Earl Howe]

My Lords, I shall speak also to the other amendments in this group: 12, 13, 15, 16 and 18-29. During Report, the noble Lord, Lord Patel of Bradford, tabled an amendment to Clause 40, then Clause 39, relating to Section 117 mental health after-care services. Noble Lords will recall that in recognition of the strength of feeling on this issue, we did not oppose the noble Lord’s amendment. In the same spirit, we have now brought forward a set of consequential amendments resulting from the noble Lord’s amendment. Some of these simply tidy up the wording of the Bill as a result of the noble Lord’s amendment. Others are positive amendments to ensure that those receiving services under Section 117 of the Mental Health Act 1983 are not inadvertently excluded from benefiting from other provisions in the Bill. Specifically, the amendments ensure that Section 117 services are included in determining payments for quality; in special reviews and investigations by the Care Quality Commission; in emergency preparedness planning; in local authority scrutiny of the NHS; in NICE quality standards; and in information standards and information gathering. They also ensure that Section 117 services can continue to be available through direct payments.

I am pleased that the noble Lord, Lord Patel, has welcomed these amendments, and I hope that other noble Lords will agree that it is important that Section 117 services are included in all of these cases and will support these amendments. I also take this opportunity to ask noble Lords to support two minor and technical amendments. These remove an uncertainty about the breadth of the meaning of the reference to the Public Services Ombudsman for Wales in Clause 184, by clarifying that independent advocacy services extend only to certain complaints to that Ombudsman. I beg to move.

[Lord Patel of Bradford]

My Lords, I am obviously very happy to add my name to the amendments tabled by the Minister in respect of Section 117 of the Mental Health Act, pertaining to after-care services. I was grateful to the noble Earl and to the noble Baroness, Lady Northover, for not opposing my amendment on this issue. It somewhat caught me off-guard, but I was pleased with that. I was particularly pleased that we have continued to work together to add these technical adjustments today. To remind noble Lords: Section 117 requires primary care trusts and local authority social services to work jointly in providing vital after-care services. These types of services can vary a great deal, including visits from the community psychiatric nurse, attending a day-care centre, administering medication, providing counselling and advice, and most importantly supporting accommodation within the community.

Section 117 provides crucial protection for vulnerable people because it ensures that their local primary care trusts and local authority provider supply that after-care package in an appropriate way, including sorting out the funding on an agreed basis. This means that these essential services cannot be taken away until both the PCT and local authority, in consultation with the patient and their carers or the voluntary sector—the people who are supporting some of these patients—are satisfied that the patient no longer needs their services. The original concern that the noble Lord, Lord Adebowale, and I had was that Section 117 after-care was being unnecessarily diluted, as a joint duty to provide after-care was being changed. To all intents and purposes, Section 117 would have been treated as a duty under Section 3 of the NHS Act, and that would potentially have opened up the possibility of charging.

The noble Earl has laid out the protections set out in additional amendments and they are to be welcomed. They go beyond my original concerns and address a number of important issues. I will not list those listed by the noble Earl, but I was happy about the part of Section 117 arrangements that fall under the remit of the Care Quality Commission, ensuring that the regulator and monitor of services should look across patient pathways. I am particularly pleased about the amendment that ensures that Section 117 services are eligible for direct payments. This is a positive step, because it means that people detained under the Mental Health Act can take more control of the services that they receive after their release.

This is not only the right thing to do, as it will empower people who have been affected by being detained, but it is also likely to help to avoid readmissions by ensuring that people are more satisfied and engaged with services. We still have a long way to go to improve services for people detained under the Mental Health Act; in particular the experiences and outcomes when they return to the communities where they live. However, these amendments are a definite move in the right direction and I must congratulate the Minister for having the foresight and good grace to bring these amendments before the House. I wholeheartedly support them.

[Baroness Finlay of Llandaff]

My Lords, in this group of amendments there are two that relate to Wales. On behalf of the NHS in Wales, I am most grateful for the clarification. Could the Minister confirm that the Public Services Ombudsman would deal with complaints by any provider who is providing services for and on behalf of the NHS, irrespective of whether that is an NHS provider or a non-NHS provider? It would be helpful to have that clarification.