Mental Health Act

Earl Howe Excerpts

Monday 29th October 2012 Lords Chamber

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

My Lords, I shall now repeat a Statement made earlier this afternoon by my right honourable friend the Secretary of State for Health on the subject of the Mental Health Act. The Statement is as follows.

“With permission, Mr Speaker, I wish to make a Statement about an issue relating to the Mental Health Act 1983. It has become apparent that there are some irregularities around the way that doctors have been approved for the purpose of assessing patients for detention under the Act. For assessments and decisions under certain sections of the Act, including detention decisions under Sections 2 and 3, three professionals are required to be involved—two doctors and an approved mental health professional, usually a social worker.

In 2002, when strategic health authorities came into being, the then Secretary of State properly and lawfully delegated his function of approving doctors under the Act to them. However, it came to light last week that in four out of the 10 strategic health authorities—North East, Yorkshire and Humber, West Midlands and East Midlands—in a period of time dating from 2002 to the present day, authorisation of doctors’ approval appears to have been further delegated to NHS mental health trusts. I was made aware of the issue and kept up to date with the actions being taken. Our latest best estimate is that approximately 2,000 doctors were not properly approved, and that they have participated in the detention of between 4,000 and 5,000 current patients within institutions in both the NHS and independent sectors. Rampton high-secure hospital is in one of the affected areas. Some patients at Ashworth high-secure hospital are also included.

There is no suggestion that the hospitalisation or detention of any patient has been clinically inappropriate, nor that the doctors so approved are anything other than properly qualified to make such recommendations, nor that these doctors might have made incorrect diagnoses or decisions about the treatment that patients need. All the proper clinical processes were gone through when these patients were detained. We believe that no one is in hospital who should not be, and no patients have suffered because of this. The doctors would have no reason to think that they had not been properly approved. They acted in good faith and in the interest of their patients throughout this period.

In the light of our legal advice, we do not believe that any decisions that have been made about patients’ care and detention require review because of this irregularity. Doctors should continue treating patients who are currently detained under the Mental Health Act in the usual way. We have received advice from First Treasury Counsel that there are good arguments that the detentions involving these particular approval processes were and are lawful, but Counsel also argues the need for absolute legal clarity. The legal advice is that this should be resolved through emergency retrospective legislation.

As soon as the irregularity was identified, my department worked swiftly to identify the best course of action and put the necessary preparatory work in place. It first became aware of this problem last week. Officials immediately sought initial legal and clinical advice. We then swiftly analysed possible options, including the option of reassessing all potentially affected patients, working with the health leads in the regions affected and clinical experts from the Royal College of Psychiatrists. When I was briefed on the situation, I asked for detailed information on the time that it would take and the clinical risks involved in reassessing all potentially affected patients. On Friday, I asked for an emergency Bill to be drafted over the weekend, as a matter of contingency. I briefed the Prime Minister personally the following day. Following further discussions and analysis over the weekend, the decision to introduce emergency legislation was taken yesterday, and we have since worked to prepare the necessary materials. At all times, my priority has been to resolve this is a way that follows clinical advice about the most sensitive way to deal with a highly vulnerable group of individuals.

We have also worked to remedy the problem as it relates to current and future detentions. As of today, all the doctors involved have now been properly approved. The accountable officers for the four strategic health authorities in question have written to Sir David Nicholson, chief executive of the NHS, to confirm that they have made the necessary changes to their governance arrangements. Furthermore, the accountable officers in the remaining six strategic health authorities have written to Sir David to confirm that they have, in the light of this issue, reviewed their own arrangements and that they are in full compliance with the Mental Health Act.

Although we believe that there are good arguments that past detentions under the Mental Health Act were and are lawful, it is important that doctors, other mental health professionals and, most importantly, patients and their families have absolute confidence in the decisions made. That is why, in relation to past detentions, we have decided that this irregularity should be corrected by retrospective legislation. Although we are aware of the problem only in the four areas going back to 2002, the proposed legislation will apply in principle to the approval of all doctors under the Mental Health Act since its introduction in 1983. It will retrospectively validate the approval of clinicians by those organisations to which responsibility was delegated, up to the point when all the relevant doctors were fully reapproved and their status put beyond doubt. The legislation will not deprive people of their normal rights to seek redress if they have been detained for any other reason apart from the narrow issue of the delegation of authority by the SHAs, nor will it affect any future detentions or legitimise any similar failures in future.

We are proposing to introduce the draft legislation to the Commons and, through best endeavours, looking for it to complete its passage through all the appropriate stages in this House and the other place as soon as is practicable. While addressing this technical issue, it is also important that we get to the bottom of how this happened and that we learn any lessons to help inform the operation of the new system architecture from April 2013. As such, I have asked Dr Geoffrey Harris, chair of NHS South and former chair of Buckinghamshire Mental Health Trust, to undertake an independent review to look at how this statutory responsibility was delegated by these four SHAs; and, more broadly, the governance and assurance processes that all SHAs use for delegating any statutory responsibilities. I will also ask him to look at this in the context of the new NHS structures that come into force from next April, to see whether any lessons need to be learnt. It is imperative that this review is swift and I have asked Dr Harris to report to me by the end of the year with recommendations to ensure that every part of the system employs the highest standards of assurance and oversight in the delegation of any functions.

I stress to the House that I have reviewed with lawyers, clinicians and NHS managers possible alternatives to introducing this retrospective legislation. I have been advised that all alternatives would be highly disruptive to many of the most vulnerable patients, and would also deprive many other patients of the care that they need while any action is undertaken. However, all the advice that I have received has been unequivocal in stressing the need for absolute clarity of the legal status of any hospitalisation or detention of patients, in the interests of those patients, their families, those caring for them and the wider public. That is why, in such exceptional circumstances, this retrospective legislation is being proposed. Both a draft Bill and the accompanying Explanatory Notes will be published this afternoon. I commend this Statement to the House”.

My Lords, that concludes the Statement.

--- Later in debate ---

[Earl Howe]

My Lords, I am extremely grateful to the noble Lord for his supportive comments, and I shall do my best to answer as many of his questions as I can. He first asked me what train of events led up to this situation. Earlier in the year, a doctor challenged a refusal by the Yorkshire and Humber approvals panel to approve him under Section 12. This challenge highlighted the possibility that the Secretary of State’s approval function, which had been properly delegated to SHAs, may, in some areas, have been unlawfully further delegated to NHS trusts. Yorkshire and Humber and then the northern SHA cluster took their own legal advice, which confirmed that the trust had been acting ultra vires in issuing the approvals. The northern SHA cluster identified that this applied to the arrangement in North East SHA and alerted the Midlands cluster, where it was possible that the same issue might apply in East Midlands and West Midlands. On 22 October, the northern SHA cluster alerted the Department of Health to the issue surrounding the approval of doctors and the possible knock-on effects that that would have. Events then took the course that I outlined when repeating the Statement. I can confirm to the noble Lord that we are satisfied that all 10 strategic health authorities have now gone through the proper process for approving doctors under the Act. The four that may not have been compliant have regularised the situation.

The noble Lord asked whether more than the 4,000 to 5,000 patients that I indicated when reading the Statement might be affected. It is possible that more are affected, but the key point is that the legislation that we are introducing this week will cover all affected patients, whatever the process was that led to their detention.

The noble Lord asked whether there were any plans to communicate with patients. We have worked, and continue to work, with the Royal College of Psychiatrists to ensure that patients and staff will understand clearly what has happened, how it affects them and what the situation now is. Sir David Nicholson, the NHS chief executive, today has written to all SHA leaders setting out the situation and the immediate need for them to communicate across their mental health organisations. The Department of Health is also assisting in that process.

The noble Lord also asked how many patients were detained in high-secure hospitals. I do not have the exact numbers. However, a small number of patients in secure hospitals are detained under sections of the Act covered by approval under Section 12 but these patients are not in secure hospitals by virtue of a criminal section. On whether I could share with the House the legal advice that the department has received, I am sure that he will know that it has been the practice of successive governments not to do that for very good reasons. However, if the noble Lord is in any doubt about the advice that we have received, I am very happy to give him access to my officials in the department who can talk him through this.

Quite rightly, the noble Lord said that your Lordships’ House has in the past been extremely cautious about approving retrospective legislation and I am the first to acknowledge the validity of that comment. In no way do the Government enter into retrospective legislation lightly. As he said, it is very much a last resort. We looked at the only possible alternative, which was to reassess each and every one of the 4,000 to 5,000 patients currently detained in every setting. We would need to have done that within 72 hours, which is what the law allows. In our judgment, it was logistically impossible to do that.

Furthermore, if we had attempted to do that, it would have undoubtedly caused a great deal of anxiety and distress to the patients involved, and their families, while taking away from other patients the attention of the clinical staff who look after them. The very clear advice that we received from not only our legal experts but also the clinicians was that the retrospective legislation route was undoubtedly the best route to go down. It is not now necessary to reassess patients. I believe that that perhaps is the central consideration we should have in our minds.

The noble Lord, Lord Hunt, also asked whether this affair reflected a failure of policy implementation or the underlying legislation. Certainly, from our scrutiny, there is no defect in the legislation. What has happened is that powers have been inappropriately delegated by those four strategic health authorities. The panels whose job it is to approve the clinicians failed to refer back to the strategic health authority for ratification the recommendations that they were making, which is the only thing that we believe was not done under this process.

The noble Lord also asked what would be the arrangement after April 2013. The power under the Mental Health Act to approve clinicians in this context will revert back to the Department of Health. There will be a refreshed set of arrangements which will be co-ordinated and managed by the department. Those arrangements are being put in place over the next few months.

--- Later in debate ---

[Baroness Jolly]

My Lords, will the review look at whether the SHAs have made any approvals under any other legislation, such as the Mental Capacity Act?

[Earl Howe]

My Lords, the review by Dr Harris will take into consideration any lessons that need to be learnt. We have asked him to take into account any other possible lessons that we should take on board, particularly in the run-up to April 2013. However, I am happy to reassure my noble friend that her request will be passed on. If there is a relevance to the Mental Capacity Act, I will ensure that Dr Harris takes it into account.

[Baroness Pitkeathley]

My Lords—

[Lord Lloyd of Berwick]

My Lords, like the noble Lord, Lord Hunt of Kings Heath, I would hope that the Minister could tell us a little more about how these irregularities came to light only last week. The problem, of course, is that there is a well known maxim of the law that the delegate of a power—that is to say the person to whom a power is delegated—cannot delegate it to another. I think that it is expressed in Latin as delegatus non potest delegare.

It is no doubt that maxim which has caused the lawyers to have had some doubt about the lawfulness of the detention in these cases. Indeed, it is perhaps surprising—again, the noble Lord might be able to give us some understanding about this—that these irregularities have not come to light before. Now that they have, I agree with the advice given by First Treasury Counsel that there is here a need for absolute clarity and that the best way to achieve that is by legislation. The whole point of it is that it should have retrospective effect. I end by congratulating the Government on reacting so quickly.

[Earl Howe]

I am extremely grateful to the noble and learned Lord, Lord Lloyd. In front of me, I have a very detailed timeline of the events which have led to the current situation, starting from the early summer of this year when the doctor who was turned down for approval in Yorkshire and Humberside SHA challenged the decision. Subsequently, he dropped his appeal but the legal advice taken on his grounds for appeal highlighted the possibility that the arrangements for the panel convened by the Rotherham, Doncaster and South Humber NHS Foundation Trust to exercise this function were unlawful. From that point, questions were asked not only in that strategic health authority but in neighbouring strategic health authorities and the department was alerted a few days ago.

The noble and learned Lord rightly asked how this could ever have happened and not been picked up. We will rely on the review by Dr Harris to tell us the answer to that question, but I am grateful for his support.

[Baroness Pitkeathley]

In further clarification to the response that the noble Earl gave to my noble friend about communication with patients, will he tell the House more about how that communication is to take place, whether there is a timescale for it and whether the communication also will extend to patients’ families who will be particularly worried by some of these developments?

[Earl Howe]

My Lords, I would willingly give the noble Baroness further details. Unfortunately, I do not have any beyond those that I gave to her noble friend Lord Hunt. I will gladly pick up the very valid points that she has made and let her know as soon as I can. Perhaps when we reach Second Reading of the Bill, which I believe has been timetabled for Wednesday, I shall have a more detailed answer to give her. If she is not in the Chamber, I shall make sure that she receives it by other means.

[Lord Williamson of Horton]

I have a particular interest in the Mental Health Act 1983, because I played some role in getting some provisions on to the statute book. I am normally very against any retrospective legislation, but in this particular case I strongly support the view taken by the Government, because it is absolutely essential to avoid a situation in which we impose disruption and distress on a large number of people who are vulnerable and in difficult circumstances in any event. For what I may call “human reasons”, the alternative was rightly ruled out, and I support the Government’s view.

[Earl Howe]

I am most grateful to the noble Lord, Lord Williamson. Indeed, it was the well-being of patients that was central in our mind when we sat down to consider how to resolve this very unfortunate situation at the end of last week. I hope and believe that patients should not suffer any inconvenience or distress at all as a result of the remedial route that we chose.

[Baroness Ford]

I welcome a review by Dr Harris, but can the Minister say whether, outwith the sphere of mental health, the department has any concerns that there are other areas of health where the Secretary of State would normally delegate authority to strategic health authorities and where that delegation might be further delegated? Is there any belief in the department that any other areas could be similarly ultra vires?

[Earl Howe]

We know of no such instances, but again we have asked Dr Harris to investigate that issue. I am sincerely hopeful that he will not find any other irregularities, but we cannot of course rule out that possibility.

[Lord Laming]

We are all grateful for the way in which this matter has been handled, and particularly pleased that it will not result in any fundamental change in mental health legislation. I come to this from a point of ignorance, so I hope that the Minister will excuse what seems an innocent question. Does this mean that the future emergency legislation that will come to the House is aimed at deeming that the practitioners who dealt with these cases are now licensed to deal with them, or does it mean that the patients have been deemed to be appropriately assessed?

[Earl Howe]

The question that the noble Lord, Lord Laming, asks is not a naive one at all—it is a very important one. The draft legislation that has been prepared is very narrowly drawn and its effect will be to ratify retrospectively those decisions taken by the panels that assess doctors for approval and treat those decisions by the panel as if they had been lawfully made. So it does not apply directly to patients but to the approval of the clinicians involved.

[Baroness Barker]

Could the Minister say something about the role of regulators and professional bodies, and why none of them picked up this issue over time? Will that matter form part of Dr Harris’s review?

[Earl Howe]

Yes, it will, my Lords.