Mental Health (Approval Functions) Bill

Andy Burnham Excerpts

Tuesday 30th October 2012 Commons Chamber

[The Minister of State, Department of Health (Norman Lamb)]

I will first set out what the clause seeks to do and then respond to the shadow Minister’s questions.

The clause directly addresses the issue that the Bill intends to resolve. Between 2002 and 2012, four strategic health authorities delegated to mental health trusts the function of approving doctors with responsibilities under the Mental Health Act 1983. The legal advice that we have obtained is that there are good arguments, as we have already discussed, that decisions to detain made by doctors who were approved in that irregular way are nevertheless lawful. The clause removes any doubt—that is its purpose. It clearly spells out that when mental health trusts gave approval in the past they are to be treated as having had the power to do so.

The clause has the effect of eliminating any irregularity from decisions made in complete good faith, and in the best interests of the patient, by doctors fully qualified to make them. It does so in a way that is fully consistent with the legal and clinical advice that we have received on the issue, and means that patients and their families do not have to undergo the process of assessment for detention under the Act again solely for the purpose of correcting a technical error made by a strategic health authority.

The hon. Lady asked why the clause was so broad as to refer to “Any person”. I understand her concern, but the point is that we do not yet know whether there were other issues before the establishment of the SHAs. Obviously, that is part of the work that the review will undertake, but to ensure that we resolve the problem absolutely and that all those patients have clarity the decision was made for the clause to refer to “Any person” in order to avoid any risk of our uncovering another problem that might need a separate resolution. This deals with the whole problem of the approval process for the doctors who made those decisions.

The hon. Lady then asked, correctly, whether decisions will be taken properly as we progress. I can confirm that all the doctors have already been re-approved according to a proper process, so every decision that is taken from hereon in cannot be challenged. As we have said, any patient who wants to question the clinical judgement can do so and their rights remain the same as they have always been. This simply addresses the technical issue that we have been debating today.

[Andy Burnham (Leigh) (Lab)]

The clause refers not only to “Any person” but one who

“has done anything in the purported exercise of an approval function”.

On both counts, it is incredibly widely drawn and could take us into the territory of other elements of the approval process that may have been defective. Will the Minister assure the Committee that the clause is as narrow as it needs to be? It seems to be uncomfortably wide and may well restrict somebody’s ability to challenge an element of their section other than the fact that the doctor was not approved by the SHA. It is very loose in its current form.

[Norman Lamb]

I am grateful to the shadow Secretary of State for that intervention. We have gone through a very careful process and have followed legal advice on what is necessary to regularise the position. This relates specifically to the approval function, which is defined in clause 1(2). As I have said, the legal advice is that this is the best way to regularise the issue that has been uncovered.

--- Later in debate ---

[Norman Lamb]

I absolutely take the right hon. Gentleman’s point, and I am grateful to him. We must be absolutely certain that everybody is now properly authorised to make decisions. We know that everybody outside the four affected SHAs has been properly authorised—that has been checked and confirmed by SHAs, which have undertaken a proper check of their procedures. We also know that the four affected SHAs have already regularised the position of all their authorised practising doctors. We therefore know that across the whole system, doctors who undertake sectioning from now onwards will be properly authorised in accordance with the Mental Health Act 1983. The Bill addresses the previous problems with the authorisation process, and we have addressed the problem for the future by ensuring that everybody is properly authorised. I hope that deals with that point.

[Andy Burnham]

rose—

[Norman Lamb]

It does not entirely seem to deal with it, so I give way to the shadow Secretary of State.

[Andy Burnham]

I am grateful. It is important to get clarity before we leave this clause.

I know that the Government have not yet undertaken a full case-by-case review of the up to 5,000 cases involved. That prompts the question how the Government can be sure that the whole team involved in each case was qualified to a suitable level, and that there were not some instances of under-qualified people making decisions. That gives rise to concern that we may be retrospectively approving processes that were defective.

[Norman Lamb]

I do not think there is any suggestion that any of the people who undertook sectioning were not medically qualified to do so. The issue is simply with the body that undertook the authorisation and the fact that SHAs delegated that responsibility to mental health trusts, which was not in accordance with the law. The Bill is intended to regularise the position of every clinician who was not properly authorised because of that flaw.

[Andy Burnham]

I do not want to detain the Committee unnecessarily, but because the clause is drawn so widely it will possibly take away some people’s right to challenge whether there was a deficiency in the process or whether someone involved in the sectioning decision was under-qualified. Given that the Government have not undertaken a case-by-case review, I wonder how we can have absolute confidence that the power in the Bill is not too widely drawn.

[Norman Lamb]

I am told that we have dealt, doctor by doctor, with all the doctors in question who are currently practising. The problem relates to the doctor, not the patient, because it is about their authorisation to undertake the duties in the 1983 Act. The only people who undertake the actions referred to in the clause are doctors, who were authorised but unfortunately by the wrong body. That is what we are seeking to regularise.

[Andy Burnham]

We must have absolute clarity about this. In that case, why does the Bill mention “Any person” rather than “any doctor”? Our understanding is that a broader team of people can be involved in a sectioning decision, such as a social worker. If it is only doctors, the Bill should just say “any doctor”, but it does not.

[Norman Lamb]

We are talking about the approval function. Subsection (2) mentions

“practitioners approved to give medical recommendations”,

so it clearly deals with practitioners who have already been authorised, but by the wrong body.

--- Later in debate ---

[Andy Burnham]

The Opposition thank the Secretary of State and the Minister for attempting to answer all the questions that colleagues have raised. We appreciate that they have acted in good faith in bringing this legislation before the House with such speed, but, as my hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott) rightly said, this takes us into unprecedented territory. We are legislating retrospectively on matters of fundamental importance concerning people’s basic rights and public safety, and it is therefore right for the House to pause for thought and consider those issues before giving its assent to the legislation.

We had an important exchange on the precise drafting of the legislation, and a concern arose during the course of that debate. Clause 1 essentially states that “any person” who has undertaken any activity

“had the power to do so”.

If I heard the Minister and the Secretary of State correctly, that is not carte blanche to justify anything—including something inappropriate—that may have happened over the course of a decision, but simply means that the person who made the decision had the power to do so. I hope that people outside this House will hear those words clearly and understand that that is the only permission the House is giving this afternoon on this exceptional basis. In doing so, we return to the point about balancing our concerns about the exceptional nature of this legislation with the fact that this issue affects thousands of the most vulnerable people in our society and their families. We do not want any further distress caused to those people, or for them to suffer any unsettling effect, and that is why the Opposition believe that the legislation is justified.

It is crucial that no legal doubt hangs over arrangements that are made for patients and public safety. This Bill removes that doubt, but we do not want to remove any of the rights held by the individuals concerned, and in particular the 5,000—or more—people who may currently be challenging their detention. Having made that point as clearly as I can, the Opposition give the Government their support. We will seek to ensure that co-operation is continued in another place so that the Bill can be put on the statute book, and any uncertainty removed.

Question put and agreed to.

Bill accordingly read the Third time and passed.