Mental Health (Approval Functions) Bill

Diane Abbott Excerpts

Tuesday 30th October 2012 Commons Chamber

Question proposed, That the clause stand part of the Bill.

[Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)]

I want to raise two specific points. Opposition Members are concerned that the concept of “Any person” in clause 1 is too broad, because it appears to legalise approvals by anybody. Why does the clause not refer specifically to North-East, Yorkshire and the Humber, West Midlands and East Midlands?

Secondly, where is the provision for the doctors who have been approved by a trust according to what we now understand was a defective process to be re-approved by the correct process? As the clause stands, it seems—I am happy to be put right on this—that doctors approved previously by the trust will be able to continue to section patients without re-approval under the correct process.

[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.

--- Later in debate ---

[Norman Lamb]

All that is being regularised is the power to approve a doctor, not whether a doctor is clinically sound. Any patient who challenges a judgment to section them either now or in the past will retain all their rights in law. We have acted on the advice of both lawyers and clinicians to ensure that we deal with the problem that has emerged in a way that respects patients’ clinical interests and considers them with the utmost seriousness. To go through a full reauthorisation process in every case could be incredibly damaging to individuals in potentially vulnerable situations. The Bill is based on the best clinical and legal advice that we have received on how to deal with the problem.

[Ms Abbott]

The Opposition have listened with great care to what the Minister has said. He has made a point of saying that his advice suggests that the Bill is the best way to deal with the situation. We argue that it is perhaps the most convenient way, but we know that the parliamentary draftsman has been under huge pressure to produce the Bill, and this would not be the first time that parliamentary draftsmen have come up with a form of words that is in some way defective. I repeat our concern about the broad nature of the clause, which states that “any person” who “has done anything” is to be “treated for all purposes”.

[The Secretary of State for Health (Mr Jeremy Hunt)]

Perhaps I can assist in this matter. I do not believe that there is a drafting error, but the hon. Lady is absolutely right to scrutinise every word of the Bill carefully and ask questions.

Clause 1 does not mention “any doctor” because it is about the power for an SHA to delegate the authority in question, not about a doctor’s decision or clinical ability. It refers to the person who approves that power of delegation. I hope that that clarifies the matter.

[Ms Abbott]

We have listened to what the Secretary of State and the Minister have said. We remain concerned about the broad nature of the clause, but we rest our case.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.

The Deputy Speaker resumed the Chair.

Bill reported, without amendment.

Third Reading