Mental Health (Approval Functions) Bill

Hywel Williams Excerpts

Tuesday 30th October 2012 Commons Chamber

[Norman Lamb]

I can assure the hon. Lady on that point. All SHAs have undertaken an assessment of the position, and the position has been regularised for future cases in those four SHAs. Of course, individual patients may be moved to different parts of the country, but the problem relates to those four SHA areas.

[Hywel Williams (Arfon) (PC)]

Rampton and Ashworth are involved, and patients from Wales travel to those hospitals. Have there been any discussions between the Minister’s Department and the Wales Office or the Welsh Government on the implications of this for patients from Wales?

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[Norman Lamb]

I am grateful to the hon. Gentleman for that intervention, but I am afraid that I struggled slightly to hear all the points that he was making. Perhaps the best way of dealing with all this is to ensure that I respond in writing to all his questions. I can also assure him that the Secretary of State spoke to the Northern Irish Minister yesterday and briefed them fully on the situation. There is good liaison there.

Our current assessment is that about 2,000 doctors were not approved properly in line with the provisions of the 1983 Act, and that those doctors 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 that I would like 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 doctors has resulted in any clinically inappropriate decision being made, whether the decision was to detain or not to detain. Nor is there any suggestion that the doctors 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 doctors had no reason to think that they had not been properly approved; they acted in total good faith and in the interests of the patients throughout this period. As of Friday last week, the SHAs concerned had corrected their procedures and all the doctors involved had been properly approved. I hope that that addresses the question raised by the hon. Member for Wolverhampton North East (Emma Reynolds).

[Hywel Williams]

This may be a naïve question, but will the Minister tell us whether doctors approved in one SHA area are then approved automatically for other parts of England or possibly parts of Wales, or is the approval confined to the particular SHA area?

[Norman Lamb]

My understanding is that people are approved for the SHA in which they work, but it is an important question and I will happily confirm the position to the hon. Gentleman in writing.

In the light of our legal advice, we do not believe that any decisions made about patients’ care and detention require review because of this irregularity. Doctors should continue to treat patients who are currently detained under the Mental Health Act in the usual way.

My second point is that we have been advised by First Treasury Counsel that there are good arguments to show 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 taking 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 then 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 I was briefed on the situation, I asked for detailed information on the time it would take—the Secretary of State has also sought and obtained this advice—and the clinical risks involved in reassessing all potentially affected patients. Last Friday, the Secretary of State asked for an emergency Bill to be drafted over the weekend as a matter of contingency, and 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, the Secretary of State’s priority—and, indeed, mine too—has been to resolve this in a way that follows clinical advice. That is the most important thing. In the interests of a group of highly vulnerable individuals, it is important to do this in the most sensitive way. It would not have been feasible quickly to reassess all the patients and it may well have caused great distress to them and their families.

We have 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 that they have made the necessary changes to their governance arrangements. Furthermore, the accountable officers in the other six SHA areas have written to Sir David to confirm, in the light of this issue, that they have reviewed their own arrangements and are in full compliance with the Mental Health Act. That directly addresses the question asked by the hon. Member for Wolverhampton North East. I can confirm, incidentally, that approval in one SHA applies elsewhere in England. The Bill will put right those doctors’ approvals wherever they are now practising. That again gives complete clarity to that particular point.

Although we believe that there are good arguments that past detentions under the Mental Health Act were and are lawful, it is vital 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 the irregularity should be corrected by the Bill.

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[Andy Burnham]

I thank the Secretary of State for his intervention. We understand that these are urgent matters, and I am sure that he is receiving briefings from the Department, but I think that there is a sense among Opposition Members that that is not good enough, and that he should have been here to answer the questions that were asked. We appreciate that he will be winding up the debate, but I hope he will take careful note of all the questions that are asked, and will give every Member present the fullest possible answer.

First things first: let us begin with the detail. I think it would help the House to know more about the extent of the checks that have been carried out on the 4,000 to 5,000 cases involved. The very fact that the number remains vague suggests that there has not yet been a thorough case-by-case review. Does the Minister—or, indeed, the Secretary of State—agree that it is essential to conduct such a review, and to put a precise number on the extent of the problem? I asked yesterday whether the Department could tell us how many of the people concerned were in high-security hospitals. I think that that is an important aspect of the issue, and I should be grateful if the information could be given to us at some point this afternoon. Without detailed case-by-case checks, how can we be sure that this procedural defect was the only technical irregularity in the process that was operating in the four SHAs concerned? We need to be reassured that there are no further problems that will need to be corrected at a later date.

That brings me to another question that was not answered yesterday. Families of the people involved will have heard yesterday’s news, and will no doubt have been unsettled by it. Does the Secretary of State agree that it is important for the Government to make arrangements, urgently, for direct communication to take place with the families who have been directly affected so that the issue can be explained to them more fully, and in isolation from some media coverage that may not give them the reassurance and support that they seek? Have such arrangements been made, and has any facility been provided enabling questions to be answered so that people can be given that reassurance and support?

That, in turn, brings me to another important point. If the Government were to leave a vacuum in terms of advice and communication, it could of course be filled by less scrupulous elements of the legal profession seeking to initiate compensation claims. We have already read warnings today that efforts may be made to encourage patients to sue for £500 or £600 a day, the amount that a prisoner would receive in compensation for unlawful detention. I am sure the Secretary of State agrees that any such activities would be highly unsettling, and would amount to the potential exploitation of vulnerable people. I hope he will join me in sending the clearest of messages to the legal profession that that would not be at all welcome. On the other hand, we would not want to see any curtailment of individuals’ legitimate right to challenge the decisions made affecting their liberty as a result of the Bill.

[Hywel Williams]

I am glad that the right hon. Gentleman has made that second point. The fact that some people are litigious, possibly as a result of their condition—of which that is a notorious aspect—should not detract from their right to pursue a case if they wish to do so.

[Andy Burnham]

That is a good point. So many cases are involved that challenges may have already been in progress before this technical problem arose. There may have been complaints about the nature of the decision-making process, the number of professionals involved, or any matter relating to the process by which the decision was made.

I hope that it will reassure the hon. Gentleman to learn that I have been given access to Government lawyers—the Secretary of State promised that yesterday, and I am grateful to him for arranging it—and I have been assured that the Bill will not wipe away an individual’s right to issue a legal challenge on a different point of process. That is a fundamentally important point, and I am glad that the hon. Gentleman has given me an opportunity to put it on the record. We would certainly not support the Bill if it were intended to wipe away an individual’s rights retrospectively, and I am sure that the hon. Gentleman would not either. We are grateful for that reassurance from the Government.

Along with the urgent steps that are being taken to correct the legal position, we need a review of how this came about in the first place. If it had happened in a single SHA, the explanation might have been easier to ascertain and understand, but the fact that it happened in four SHAs points to a more widespread issue of concern. It raises the question whether the problem arose from historical practice among clinicians and NHS bodies in the four regions concerned, or whether a piece of Department of Health guidance that was circulated in the past may have been responsible. I hope that the Minister or the Secretary of State will be able to enlighten the House further.

We want the Harris review—which I support—to cover all the technical issues surrounding mental health, so that the House and the public can be absolutely certain that no other technical failures or breaches of regulation have been identified. Let me make two appeals to the Secretary of State. First, I ask him to consider widening the remit of the review, and ensuring that in future it can take the broadest possible view of arrangements for sections under the Mental Health Act 1983. Secondly, I ask for the review to be conducted as swiftly as possible, so that it can inform the current reorganisation of the NHS.

It seems to me that the crux of the issue is the interrelationship between the 1983 Act and the potential for reorganisations of the NHS to disturb important existing arrangements and procedures for the carrying out of these essential public functions. That is the crux of the matter. I accept that a problem may have arisen as a result of the introduction of SHAs and PCTs in 2003, and we will have to wait and see whether that was the case. Regardless of the answer to that, however, the Government still have to face a relevant and current issue: they have to be absolutely sure that the changes they are proposing—and which the Opposition continue to believe are unnecessary and highly disruptive to an NHS that is functioning well for the vast majority of people—will not run the risk of causing further confusion.

We have not had anywhere near enough clarity from the Secretary of State—or his predecessor, the right hon. Member for South Cambridgeshire (Mr Lansley), who has just left the Chamber—on how some of the essential functions of NHS bodies to do with safeguarding and public protection are to be handled in the new NHS structure. Many months have passed since the publication of the Government’s first White Paper, yet there are still doubts in the minds of clinicians and others practitioners on the ground. That is an indictment, and shows the confusion the reorganisation has created. We are seeing the emergence of myriad new bodies in the NHS whose functions are not yet fully understood or specified by the Government. This crowded landscape has the potential to cause for further uncertainty. I therefore today ask for more clarity on this matter.

As things currently stand, what will the NHS arrangements be for sectioning people under the mental health provisions to be introduced from April 2013? I do not yet know with confidence what those arrangements are, and if I do not know there is a good chance that the wider public and many people working in the NHS have no idea. The Government need to answer these questions.

There is a further specific question the Department needs to answer, and it goes to the heart of the issues under discussion. I am sure I heard the Secretary of State say yesterday that the secondary approval function that SHAs are meant to carry out will come back to the Department of Health following the Government’s current reorganisation of the NHS.

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[Andy Burnham]

My hon. Friend makes a very important point, and we have the seen the beginning of the kind of campaign he advocates with the work of the Time to Change group. There has also been incredible bravery from individuals such as the cricketer Marcus Trescothick, who spoke out very publicly about the difficulties he had faced, and just a few weeks ago in this House we witnessed some incredibly powerful contributions from Members on both sides of the Chamber: for the first time Members spoke personally and publicly about the difficulties they faced.

I think a change is under way, therefore. People who have been suffering alone will take great heart and encouragement from these developments. We are beginning to challenge the last taboo—the last form of acceptable discrimination in our society—but that does not come a moment too soon. My feeling is that Parliament is finally waking up to the full scale of the mental health challenge we face. A Bill before us at the moment will outlaw the discrimination that exists whereby somebody who has suffered a serious mental breakdown is unable to be a Member of Parliament, a company director, a juror or a school governor. It is so important to remove that discrimination from the statute book because it sends a message that recovery is not possible, and that if someone has a serious mental breakdown there is no possibility of their coming back and playing a full part in our society. The further problem with that legislation is that it prevents those people from being in leadership positions in those organisations—in schools, in Parliament and in companies—where they could develop a better understanding of mental health and what policies need to be put in place to support people who may experience those problems.

[Hywel Williams]

Does the right hon. Gentleman share my concern, and that of organisations such as Mind, that the rate of compulsory detention seems to be growing, as does the rate of detention in police cells?

[Andy Burnham]

We need to look carefully at those trends. I remember the moment when my thinking about mental health changed. It came when I was Secretary of State for Health and I received the Bradley report on mental ill health in the criminal justice system. I recall the moment when I read the statistic that seven out of 10 young people in the system have some form of undiagnosed or untreated mental health problem. My jaw dropped and at that moment I realised that we were seriously failing many thousands of people by failing to give them the support they needed when they needed it, and so they went into detention and down a path of failing to fulfil their potential. That is a terrible indictment of our life today. In addition, the level of prescribing of anti-depressants has almost doubled over the past decade. We are issuing almost 40 million prescriptions for anti-depressants, which suggests to me that insufficient alternatives to medication are available in our communities and people are being given very old-fashioned, outdated interventions by the authorities which are not meeting their needs. That is why we cannot allow this complacency any more and why we need a modern approach to good mental health care.

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[Hywel Williams (Arfon) (PC)]

I state an interest as a member of the all-party group on social work. Before I was elected, I was for a short time an approved social worker under the Mental Health Act 1983. I was also a member of the Joint Committee that looked at mental health legislation before the passage of the National Health Service Act 2006. As far as I remember, the issue was not addressed that winter when we looked at the legislation in considerable detail.

First, to state the obvious, compulsory detention is a serious matter, as hon. Members and right hon. Members have said. The deprivation of liberty without the legal processes of the courts has always been subject to great safeguards. I accept that this is an emergency, but it is undesirable in the extreme that the subject is dealt with in such a manner. Emergency legislation should always be used as sparingly as possible, in particular in mental health.

The House will be interested to learn that the expert group examining mental health legislation in the winter before the 2006 Act was looking at legislation from the previous century. As I said at the time, they had been looking at it for years and years, not just overnight.

As I have said, I acted as an approved social worker for some time, and I was briefly a mental welfare officer under the Mental Health Act 1959. That measure was extremely unsatisfactory and, to contextualise the subject we are discussing, there was particular concern about section 29 of the Act, under which people could be taken into hospital compulsorily as an emergency for up to 72 hours, on the basis of one medical recommendation. Recourse to that provision was particularly high in rural areas such as mine where one could not get hold of a second approved doctor. That was one of the reasons why the 1983 Act tightened things up as much as it did.

The 1983 Act brought in safeguards and followed a long campaign by Mind, among other organisations, led by Larry Gostin. The burden of the Act is that better human rights safeguards must be in place, and I welcomed it at the time. One of its provisions was that two properly approved doctors should look at any application. That is the context for the worrying statement made by the Secretary of State yesterday.

I was glad to hear the Secretary of State’s assurances that the measure is a technical matter and that no one was wrongly detained, that proper clinical processes were carried out and doctors were properly qualified for the roles they undertook—apart from this technicality. I agree that the position should be regularised as soon as possible.

However, I take the points made by the hon. Member for Southport (John Pugh) and the right hon. Member for Oxford East (Mr Smith): there are rightful worries about compulsory detention and there could be further cases. We must get to the bottom of how the situation arose and find out why it has taken so long—more than 10 years—to come before the House. Did it not come up in any of the Department’s visits in its inspectorial role? I worked briefly as a freelance for the inspectorial arm of the then Welsh Office, so I know how much detailed care went into that role at the time. Why has the issue not come to the fore until now?

I have some questions that I will ask now, even though it is a Second Reading debate. Perhaps the Secretary of State could answer them when he winds up. As background to the Bill, I read that there are between 4,000 and 5,000 current patients. Can the Secretary of State confirm that they really are current patients? If so, are there many thousands of former patients who might have been sectioned who also have an interest in the matter? Is the figure current or a cumulative total? Does it include only in-patients? What about patients in the community on compulsory treatment orders? There could be many thousands of them. We need clarity about the size of that population.

I asked in an intervention whether only particular strategic health authorities were involved. Rampton was certainly involved; it takes patients from Wales and elsewhere. I was not sure whether Ashworth was included. The hon. Member for Southport seemed to indicate that Ashworth—Park Lane, as it was—had not been drawn in. Could the Secretary of State provide some confirmation?

There are questions about informing patients and their families about the problem that has arisen. Those people may be very vulnerable, given their condition. Some patients are likely to be anxious as part of their illness, and this situation could exacerbate their condition. We need to make sure that these events do not exacerbate existing conditions, so I should like some assurance from the Secretary of State about how patients, former patients and their families will be contacted. Will independent advocacy services be involved? I am not talking about lawyers or ambulance chasers, but about the many services properly set up in the community to support people.

Communication must be appropriate. The code of practice for the 1983 Act specifies that communication with patients must be made appropriately on the basis of age, gender, race and language. One of the reasons I am speaking in the debate is that some Welsh-speaking patients might have been involved, so I want to be sure that they will be contacted and communicated with appropriately. Because of this incident, the process might be upsetting for people who have been sectioned in the past, so I should be grateful for reassurance that long-term support will be available if that is a disturbing factor in their condition.

The briefing notes, which I read with interest, refer to compensation, which should be the last thing on anyone’s mind at a time like this. I was reassured, however, to learn that people can bring cases. Some individuals can be litigious. Sometimes, as part of their condition, they are notoriously litigious, as I said earlier, but that does not detract from their right to bring cases unless the court rules otherwise.

I have some concerns about doctors. I asked earlier whether approval by a strategic health authority automatically enabled people to act elsewhere. The Minister initially said that it was just within the strategic health authority area, but then he said it was throughout England. I should like that matter to be cleared up and, as a Welsh Member, I should like it to be cleared up in relation to Wales and possibly Northern Ireland and Scotland. I am worried that doctors may slip through the net because they have acted outside the four areas that have been identified.

What discussions has the Secretary of State or the Minister of State had with doctors’ representatives? I appreciate that time has been short, but I hope that doctors have been fully involved. Are there any implications—I cannot think of any—for the second doctor involved in sectioning? I should be grateful for reassurance on that point. Equally, are there any implications for the social worker, as it is usually a social worker who is involved?

Finally, has the Wales Office been involved in any way? I am glad that Wales, Scotland and Northern Ireland have been informed. It is more of an issue for Wales, given that we share many clinical services and people from Wales are often treated in England: special hospitals are an obvious example. I hope that there has been the closest co-operation possible between the Wales Office and the Welsh Government in Cardiff. I am glad that an independent review under Dr Geoffrey Harris has been announced. I hope that the Wales Office and the Welsh Government will be involved to the degree that they should be.