Care Bill [HL]

Baroness Barker Excerpts

Wednesday 16th October 2013 Lords Chamber

[Baroness Hollins (CB)]

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

[Baroness Barker (LD)]

My Lords, I wish to indicate my support for the continuance of Section 117, as I have done on many occasions before, not least during the passage of the most recent Mental Health Act—when various people, whom I shall not embarrass now by saying who they were, did indeed stand up to defend some of it—because it works.

When the Law Commission first made this proposal in its report, I had occasion to talk to that body. The noble Lord, Lord Patel, is right; the commission relies very heavily on the Mwanza case, and there is a great deal of dispute about the advisability of doing that. The question that I had when I first met the Law Commission still remains: when everything else in the legislation is geared towards enabling health and social care to work together to enable the transfer of people from acute health settings back into the community, why rip up the one piece of legislation that has been there doing that for 30 years? It is not just that some of us see Section 117 as being important with regard to the individuals whom we might know or come across; rather, we see it as an important means of bringing about the transfer that some of us have long hoped would happen in mental health services whereby, instead of having patients who revolve between acute and the community, we could have proper care planning in which people’s mental health needs were addressed by some of the same people, whichever setting they were in. It is not just about trying to preserve a pot of money; it is about trying to keep open a pathway to good and better practice. That is why the noble Lord, Lord Patel, as he always does in this area, has presented the House with a very persuasive argument. I have not yet fully understood why the department feels the need to make the changes that it is making.

[Baroness Wheeler]

My Lords, we fully support my noble friend in his valiant efforts once again to try to get this important issue on mental health aftercare sorted out. We recognise the Government’s concession in removing “the” from subsection (5)(a), but my noble friend is right that there still remains the very real risk that leaving the rest of the subsection in place could lead to local authorities arguing that,

“a need arising from or related to a mental disorder”,

was the requirement only to provide psychiatric, medical and follow-up services.

The statutory definition of aftercare services in the Bill is confusing because it separates out the needs arising from the person’s mental disorder from the need to reduce the risk of deterioration in the person’s condition and the risk of readmission to hospital. My noble friend’s amendment would instead define aftercare services as those services that reduce the risk of deterioration in the person’s mental condition and the likelihood of the person requiring readmission to hospital.

It is right that the definition of aftercare services focuses on reducing the likelihood of hospital readmission and does not lead to confusion or legal disputes about a local authority’s role in this or what services should be provided under Section 117 of the Mental Health Act. It is also right that aftercare continues to be viewed as a comprehensive range of generic services across healthcare, social care and other services such as suitable accommodation and community support.

Amendment 128A is a compromise offered by my noble friend that I hope the Government will take up because, as he said, he would prefer to delete Clause 5 entirely, so that the current position in relation to Section 117 remains unchanged. Mind, the mental health and disability committee of the Law Society and the Mental Health Lawyers Association all consider that the best way to avoid confusion over the definition of aftercare is to remove Clause 71(5)(a) altogether.

I hope that the Minister will have some good news for my noble friend and for other Lords who, too, are very frustrated that the mental health aftercare issue has not been laid to rest in the way we thought it had under our discussions as far back as on the Health and Social Care Bill.