Mental Health (Approval Functions) Bill

Earl Howe Excerpts

Wednesday 31st October 2012 Lords Chamber

Moved By

[Earl Howe]

That the Bill be read a second time.

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

My Lords, the purpose of this Bill is simple but urgent and vital. On Monday, I described to noble Lords how the need for it arose and came to light. I am glad to have this opportunity to continue that discussion today.

[Lord Skelmersdale]

My Lords, I hesitate to interrupt my noble friend on the Front Bench but it would be helpful to those noble Lords who want to listen to what he has to say about this important Bill if other noble Lords were to leave the Chamber silently.

[Earl Howe]

My Lords, I am grateful for that. I am glad to have this opportunity today to continue the discussion and explain further why we believe we must take this action. I begin by repeating my deep gratitude to noble Lords on all sides of the House for the highly constructive, sensitive and helpful approach that they are taking to this issue. Were it not for that, we would not be able to respond with the speed needed to resolve matters in the best way available to us and the best interests of patients.

As noble Lords appreciate, detaining a mentally ill person in hospital and treating them against their will is clearly a matter of the utmost seriousness, and must be treated as such both by the law and by health and social care practitioners. The statutory framework is contained in the Mental Health Act 1983, which sets out that 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. One of the two doctors must be approved under Section 12 of the Act.

To recap, when strategic health authorities were established in 2002, the Secretary of State at the time quite properly and lawfully delegated to them his function under the 1983 Act of approving the doctors able to be involved in making these decisions. Early last week, the Department of Health learned that in four of the 10 SHAs—North East, Yorkshire and Humber, West Midlands and East Midlands—the function of approving clinicians had been further delegated by the SHAs to NHS mental health trusts over a period extending, in some cases, from 2002 to the present day. The issue was identified as a result of a single doctor querying an approval panel’s processes. Ministers were informed later in the week as soon as the extent of the issue became clear and since then have been kept informed of and involved in the action being taken. Our current assessment is that about 2,000 clinicians were not approved properly in line with the provisions of the 1983 Act and that those clinicians have participated in the detention of between 4,000 and 5,000 of the patients currently detained in NHS or independent sector hospitals.

There are two important points to make clear now: first, the decision to detain a patient under the Mental Health Act is primarily a clinical one. There is no suggestion and no reason to believe that the irregularity of the approval process for these clinicians has resulted in any clinically inappropriate decision being made, whether the decision was to detain or not. Nor is there any suggestion that the clinicians approved by mental health trusts are anything other than entirely properly qualified to make these recommendations. All the proper clinical processes were gone through when these patients were detained. There is no reason why the irregular approval process should have led to anyone being in hospital who should not be—or vice versa—and no patients have suffered because of this. The clinicians had no reason to think that they had not been properly approved. They acted in total good faith and in the interest of their patients throughout this period.

As of Friday last week, the SHAs concerned had corrected their procedures and all the clinicians involved had been properly approved. 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.

The second point I want to make is that we have been advised by First Treasury Counsel that there are good arguments that the detentions involving these particular approval processes were, and are, lawful. Given the seriousness of the issues, counsel also argues the need for absolute legal clarity and advises that this is most safely resolved through emergency retrospective legislation. We are heeding that advice. As soon as the irregularity was identified, the department moved swiftly to identify the best course of action and to put the necessary preparatory work in place. Officials immediately sought initial legal and clinical advice and swiftly analysed the options, including the reassessment of all the potentially affected patients, working with the health leads in the regions involved and clinical experts from the Royal College of Psychiatrists.

When the Secretary of State was briefed on the situation, he asked for detailed information on the time it would take and the clinical risks involved in reassessing all potentially affected patients. Last Friday, he asked for an emergency Bill to be drafted over the weekend, as a matter of contingency. He briefed the Prime Minister personally the following day. Following further discussions and analysis over the weekend, the decision to introduce emergency legislation was taken on Sunday.

At all times, our priority has been to resolve this in a way that follows clinical advice about the most sensitive way to deal with a highly vulnerable group of individuals. It would not have been feasible quickly to reassess all the patients and could well have caused great distress to them and their families.

We have also worked to remedy the problem as it relates to current and future detentions. The accountable officers for the four SHAs in question have written to Sir David Nicholson, chief executive of the NHS, to confirm they have made the necessary changes to their governance arrangements. Furthermore, the accountable officers in the other six SHAs 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.

Our best medical advice is that all the detained patients who have been affected and, where appropriate, family members, should be informed, but first we need to consider carefully how best to give people all the information and advice that they are entitled to in ways that do not cause unnecessary confusion or distress, so we need to take a little more time to make sure we get that right. Sir Bruce Keogh, the NHS medical director, will write shortly to SHA medical directors with further advice, which will be informed by the view of clinical experts and organisations representing detained patients and their families. It is vital that doctors, other mental health professionals and, most importantly, patients and their families have absolute confidence in the decisions made.

I am also aware that Mind and Rethink Mental Illness are providing very helpful advice to patients and their families and carers through their information lines and on the websites. This is just one aspect of the valuable assistance they have provided in dealing with this matter, and I am very grateful to them for it.

I will turn now to the scope of the Bill. Although we are aware of the problem only in the four areas going back to 2002, the Bill applies in principle to the approval of all clinicians under the Mental Health Act since its introduction in 1983. It retrospectively validates the approval of clinicians by those organisations to which responsibility was delegated up to the point when all the relevant clinicians were fully reapproved and their status put beyond doubt.

I would like to clarify who this Bill is targeted at. The “persons” referred to in Clause 1(1) are those who have exercised the approvals function only—no one else, and no other function—under the Mental Health Act 1983. Although it addresses a very particular issue, the Bill deliberately avoids going into further detail about which persons it applies to. Attempting to include a totally comprehensive list of which bodies or people believed in good faith that they were exercising the approvals function in the past would have created what we believe would have been an unacceptably high risk of omitting agencies or individuals that should have been included.

Although the Bill may appear to bestow a wide-ranging retrospective validation on “any person”, in fact, it is very narrowly targeted. It validates only any approvals given in the past and relates only to the function of giving approvals to clinicians as having particular skills—for example, as having special experience in the diagnosis or treatment of mental disorder. Once approved, the clinicians are then allowed to carry out certain functions under the Mental Health Act, such as giving medical recommendations in relation to a patient whose possible detention is being considered. The Bill helps to ensure that we regularise the situation completely and finally.

Crucially, the Bill will not deprive anyone of any 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 to approve by the SHAs. Nor will it affect any future detentions or legitimise any similar failures in future.

Necessary as we believe that it is to address the issue in this way, it is also important that we get to the bottom of how this happened. Therefore, the Secretary of State has asked Dr Geoffrey Harris, chair of NHS South of England and former chair of Buckinghamshire Mental Health Trust, to undertake an independent review looking at how this responsibility was delegated by these four SHAs and, more broadly, the governance and assurance processes that all SHAs use for delegating any responsibilities. We will also ask Dr Harris 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 we have asked Dr Harris to report 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.

In conclusion, I stress to the House that we have reviewed thoroughly with lawyers, clinicians and NHS managers all possible alternatives to introducing this retrospective legislation. We have been advised that all alternatives would be highly disruptive to the welfare of many of the most vulnerable patients within the mental health system, and would also deprive many other patients of the care they need while any action is undertaken. That is why, in such exceptional circumstances, we are proposing this retrospective legislation.

--- Later in debate ---

[Earl Howe]

My Lords, I again express my sincere gratitude to noble Lords who have spoken in this debate for recognising both the seriousness of the issue and the need for rapid action to resolve it. The expertise and wisdom that noble Lords bring to bear on these difficult questions has been extremely valuable. Regardless of the urgency, this is a matter that demands proper scrutiny, and that is exactly what the House is providing today, albeit within abnormal time constraints.

It is also important to record, once again, our appreciation of the invaluable help and advice that we have received from partners such as Mind, Rethink and the Royal College of Psychiatrists. Their primary concern is naturally those whom they represent so ably, but we are genuinely grateful for the mature and calm way that they have responded. We shared the same ultimate objective—to do what is best for the patients affected by a technical error.

I shall now do my best to address the questions put to me. Perhaps I may begin with the questions posed by the noble Lord, Lord Pannick, who relayed the concerns of the Constitution Committee. One of those concerns was why the Bill is drafted as it is, bearing in mind that the source of the mischief was the inappropriate delegation by strategic health authorities, resulting in the technical irregularity to which I have alluded. The answer to that question is that because we do not know the exact administrative arrangements that were in place before 2002 when SHAs came into being, it was impossible to limit in the way that the noble Lord suggested the framing of Clause 1. He suggested an addition at the end of Clause 1(1) specifying whether or not the SHAs had legal power to delegate. I can understand why the noble Lord made that suggestion, but we wanted to make sure that we captured any events of which we are currently unaware that may have occurred prior to 2002, before strategic health authorities were set up.

[Lord Pannick]

My Lords, because we are not going to have a full Committee stage, I hope that the Minister will indulge me in relation to this matter. Is there reason to think that there is any problem whatever other than delegation? I appreciate that it may relate to events prior to 2002, but surely it is only improper or possibly improper delegation of functions that is the mischief here.

[Earl Howe]

The main mischief, I respectfully suggest to the noble Lord, is that the panels which approved the clinicians involved did not, strictly speaking, have the direct power to do that. That is the issue that the Bill tries to capture. The Bill deliberately does not include a comprehensive list of which bodies or persons believed in good faith that they were exercising the approvals function in the past. If we limited the Bill in the way that the noble Lord suggests, we would run the risk of failing to cover some of the approvals given by bodies that we may otherwise have failed to list. I ask the noble Lord to accept that the way in which the Bill is drafted is in the form of a blanket, which gives us certainty that we may not inadvertently have left out any bodies prior to 2002 that may have been guilty of a similar lack of authority.

[Lord Hunt of Kings Heath]

I hope that the noble Earl will forgive my intervention because this is an important point. As the noble Lord, Lord Pannick, said, we are not having a Committee stage, and this is the only time when we can raise this matter.

The problem relates to the approval function. The way that I read it, as the noble Baroness, Lady Murphy, put it so eloquently, is that there might be a quack who somehow got through the system because there has not been the sign-off by the strategic health authority, which could check that the panel had done the right thing by actually exercising an approval function in agreeing—as part of a panel—to someone losing their liberty and being sectioned under the Mental Health Act. The issue is whether this rather open-ended, retrospective clause would give the okay to that as well. The noble Earl has essentially suggested that the problem is the vagueness about the organisational arrangements that were in place prior to 2002. I understand that but it seems to read in such an open-ended way that it could give almost a green light to poor practice or practice that should not have taken place within the panel so constituted under the Mental Health Act.

[Earl Howe]

I understand the question but I believe that that concern is misplaced. The panels operating in this area apply agreed national criteria for approval. Those criteria are clear and extremely rigorous, and that is why we are confident that doctors must meet the same high standards across the country irrespective of whether this technical irregularity applies. The technical irregularity was simply that the panel did not refer back to the strategic health authority for ratification the recommendations that it had made. It is my understanding that strategic health authorities, as a matter of course, accept the advice of the specialist panels. Therefore, I do not share the worry that, somehow or other, quacks or inappropriate clinicians have been appointed to these very onerous and responsible roles.

I now turn to the other main concern raised by the noble Lord, Lord Pannick, and the reason why the Bill has been drafted to refer to, “any person”. I see why he believes that the Bill appears to bestow a wide-ranging retrospective validation on any person, but in fact, the Bill is very narrowly targeted. It only validates any approvals given in the past and it relates only to the function of giving approvals to clinicians as having particular skills, for example, as having experience in the diagnosis or treatment of mental disorder. Once approved, the clinicians are then allowed to carry out certain functions under the Mental Health Act, as I said earlier. It is not the case that the Bill validates anyone other than persons who purported to approve clinicians. It is that role, and that role alone, that is referred to in the Bill.

The persons referred to in Clause 1(1) are as I have described. The Bill deliberately avoids going into further detail about which persons it applies to because, as I have said, attempting to include a totally comprehensive list of which bodies or people who believed in good faith that they were carrying out the approvals function would have created an unacceptably high risk of omitting agencies or individuals that should have been included. I hope that that is helpful.

I am advised in a further answer to the noble Lord, Lord Pannick, that if the power had been wrongly exercised by a panel and an inappropriate clinician had been authorised, that could still be challenged. That is to say: the challenge would be on the basis that the power was wrongly exercised but it would not be a challenge to the power to exercise the approval. I hope that that is helpful further clarification.

On the concerns raised by the noble Baroness, Lady Murphy, she asked how on earth strategic health authorities could have believed that they had this power to delegate. I share noble Lords’ dismay that we could have arrived at this situation but, having been advised by my officials, I am now more understanding of how this could have arisen. Strategic health authorities are able to delegate this function to certain bodies and in certain circumstances. However, they are not able to delegate it in the way that has come to light here. That is why we are legislating.

The options open to strategic health authorities for delegating their functions in relation to all issues are set out in regulations issued in 2002. In relation to the approval of clinicians under the Mental Health Act—which may include clinicians such as psychologists—there were also directions issued in 2008. Such approvals may be delegated to PCTs and therefore there is scope for legitimate confusion as to the exact way in which strategic health authorities had the power to delegate in this area.

I do not think there is any evidence for the fear expressed by the noble Lords, Lord Hunt and Lord Pannick, and the noble Baroness, Lady Murphy, that mental health was somehow not being given the priority it should be in those four strategic health authorities. What happened was that rather than carry out the approval process in-house, the four strategic health authorities decided to deliver the function through a contract with a mental health trust, believing that the focus brought about through a specific contract and the expertise and connections of a mental health trust would deliver a more rigorous and effective approvals process. However, the effect of these arrangements was that the approval functions were to be carried out by the trust, and the regulations and directions specifically set out, as I have said, with which bodies the SHAs may make arrangements to exercise the functions. They cannot completely delegate their responsibility in the way that they did, but it can be exercised on their behalf by a committee, a sub-committee or an officer of the authority. In essence, the panels in the trusts should have been regarded as advisory to the SHA, not having the approval functions themselves.

The noble Baroness, Lady Murphy, asked why this was not picked up sooner. The incorrect delegation was within the process between the strategic health authority and the mental health trust. To all appearances, the process of approving doctors and the quality of the doctors in these four SHAs was the same as in the rest of the country. However, this is a matter with which Dr Harris will no doubt wish to concern himself.

The noble Lord, Lord Hunt, asked me whether we could more precisely define the extent of the problem in terms of the number of patients affected. As of today, my advice is that the north and midlands SHA clusters have reported that they have currently identified 4,117 affected patients—1,265 in the north SHA cluster and 2,852 in the midlands.

I turn now to the questions posed by my noble friend Lady Jolly. She asked me whether the intention of Clause 1 is to give power not only retrospectively but also with effect from today. I hope I have made it clear that that is not the case. It takes effect from today retrospectively as soon as it receives Royal Assent, but it has no effect in relation to future approvals because all people involved in this process have now been properly approved. She asked me to confirm that the people who think they are approved actually are and do not need to undergo any validation or further approvals. The answer to that is yes, if she is referring to approved clinicians or Section 12-approved doctors, which I believe she is.

She asked about the lessons to be learnt from 1 April next year once strategic health authorities cease to exist and how the preparations for the transfer of responsibilities are being progressed. From next April, the Department of Health will be responsible for this specific approval process for approved clinicians. The Secretary of State said yesterday that while this will be a departmental process, we do not want the process to be remote from local areas. He also pointed out that we intend to have a structure that draws on local and regional expertise to help us make the right decisions on the suitability of doctors for the role, and we hope that Dr Harris will advise the department on this when he conducts his review.

The noble Baroness asked where the definitive list of SHA roles and responsibilities is and who is its guardian. The guardian is the Department of Health, while the actual list of strategic health authority roles is set out in the 2002 regulations, the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002, and the precise details on approved clinicians are set out in the Mental Health Act 1983 Approved Clinician (General) Directions 2008. That usefully lists the 28 competencies required of an approved clinician. She asked whether we can be confident that there are no other areas where action has not been taken by some or all of the SHAs. We know of no other areas or functions affected, but again Dr Harris’s review will look at the issues of governance and assurance of delegating responsibilities.

I thank the noble Baroness for making a valid point as regards the transition, but as I have alluded, the Harris review will look at issues of the governance and assurance of delegating responsibilities. Moreover, the review will report by the end of the year, so that will be before the completion of the transition process that my noble friend has so rightly brought to the attention of the House. The one remaining question my noble friend asked me concerned communicating with patients and the timescale of that. I shall repeat what I said before: we think that we need to take time to get things absolutely right, which I know she will understand. However, we hope to be able to issue advice within the next few days. I would reiterate that both the advice and the approach to delivering it will be agreed by both clinical experts and representatives of patients and families. I thought that I had covered every point, although I now see that the noble Lord, Lord Hunt, asked me a question about approvals post April 2013. The one thing I should have added was that we do not intend to delegate the function to the NHS Commissioning Board.

I hope that I have now answered satisfactorily the questions that were raised and that I have provided additional reassurances where necessary. Again, I thank noble Lords and others outside the House for their understanding and for the very significant contribution they have made to the debate.

Bill read a second time. Committee negatived. Standing Order 46 having been dispensed with, the Bill was read a third time and passed.