Health and Social Care Bill

Lord Adebowale Excerpts

Monday 5th December 2011 Lords Chamber

[Lord Patel of Bradford]

My Lords, I believe that I speak with some authority in proposing this amendment as a former chair of the Mental Health Act Commission and one who has worked for many years as a practitioner, manager and researcher in the field of mental health. Many noble Lords are also familiar with the particular needs of those with mental health problems and we have already debated some of the key issues and omissions in the Bill with respect to mental health. Although the noble Earl has been understanding and generally supportive, we have not yet seen any movement by the Government on issues such as ensuring parity between physical and mental illness. I sincerely hope that we will see some movement with respect to this clause because I am in no doubt that it will have the effect of reducing the quality of service and safety to some of the most vulnerable people in our society, those who have been detained under the Mental Health Act.

On the surface, Clause 37 appears quite reasonable. It seeks to amend Section 117(2) of the Mental Health Act 1983 in order to transfer duties that currently sit with the PCT to the newly created clinical commissioning groups. Section 117 concerns the provision of aftercare services. Aftercare services for this extremely vulnerable group of patients are absolutely vital. They consist of a range of services in a single care package. Some examples are visits from a community psychiatric nurse, going to a day centre on a regular basis, befriending and support services and having medication, counselling and supportive accommodation.

Everyone with mental health needs is entitled to a community care assessment to establish what services they might need. However, Section 117 of the Mental Health Act at present goes much further and imposes a duty on both health and local authorities to assess and provide aftercare services to patients who have been detained under a variety of sections from the 1983 Act. That means that these agencies are under a joint duty to provide aftercare services free of charge until both NHS and local authority commissioners agree that the service user is no longer in need of such services.

However, the real problem here—and it is a serious one—is that Clause 37 does more than transfer these duties to the clinical commissioning groups. In effect, it significantly alters these duties so that the protections currently afforded by the Mental Health Act are greatly weakened. Separating the statutory responsibilities between CCGs and local authorities in the manner proposed by Clause 37 will allow one agency to decide to end the provision of services without notice or consultation with the other agency or even the patient. The duty established by Section 117 of the Mental Health Act was applicable to the ongoing care of roughly 18,000 people discharged from detention in hospital last year alone. I should point out that this included over 3,700 people discharged on to a community treatment order, thus making a total CTO population of approximately 6,000 people. People on a CTO can be required by law to accept forms of treatment and care that amount to aftercare, and they equally deserve and need the protections currently afforded to those patients leaving hospital.

There are three things about Clause 37 that concern me most. First, it removes the duty of co-operation on delivering aftercare services between the health service, the local authority and the voluntary sector. Secondly, it turns what is currently a free-standing duty into a gateway provision, which will restrict the scope and effect of aftercare services. Thirdly, as a consequence of this, it provides a back-door route by which aftercare services for detained patients will become chargeable.

I will start with the duty of co-operation. Clause 37 has the following effects. First, with respect to Clause 37(2)(c), (e) and (f), the joint duty to provide aftercare services is split between health and social services authorities. Each can separately decide when to withdraw its own services without requiring the agreement of the other. Secondly, at line 8, page 73 in Clause 37, CCGs will no longer be under a duty to arrange aftercare,

“in co-operation with relevant voluntary agencies”.

I am sure that my noble friend Lord Adebowale will say more on that subject. This is not about general health responsibilities or duties. It is about fundamental recognition of the impact of being detained under the Mental Health Act. For example, on leaving hospital after a prolonged period of detention, a person is likely to have lost their accommodation and will be in need of somewhere safe and appropriate to live. They are also most likely to be feeling very vulnerable and low. During their period of acute illness they may have offended or alienated family, friends and neighbours. They may be particularly vulnerable to abuse as a consequence of the stigma of having been detained and, while they may certainly be recovering, they will not be better. They remain in need of treatment whether through medication, counselling or both.

None of the after-care services that they will need will be effective on their own. These services work and thus prevent readmission to hospital or worse because they are joint and co-ordinated, which means that neither authority can unilaterally decide to remove an element of their after-care package without the agreement of the other. Most importantly, they are also required to work collaboratively with the voluntary sector on these arrangements. This means that a local authority cannot decide that it can no longer afford to provide the funding for supported accommodation in the voluntary sector and unilaterally decide to withdraw from the arrangements. In the current economic climate, it seems to me that that scenario would become likely if the clause is passed as part of the Bill in its current form. It is absolutely certain that there will be greater scope for dispute between the various authorities and the voluntary sector, which will be left ultimately responsible at the end of the day. We need think only of the burden of the expenditure cuts in health and social services to realise that that will be the case, as both CCGs and local authorities seek to restrict their services. The patient will be left to play piggy in the middle, and it is often the patients, their carers and their families who will suffer the most.

My amendment would retain the joint duty on CCGs and social services authorities. It would also ensure that CCGs continue to arrange for provision of services under Section 117 of the Mental Health Act, in co-operation with relevant voluntary agencies. But it is not just the potential loss of co-operation and shared responsibility for care that is at stake here. My other two concerns are with respect to the fact that the current protection afforded by the duty to provide after-care services is a freestanding duty. Clause 37 fundamentally changes this. First, it states that CCGs’ duty to commission health care services will be limited to services of a kind that must be provided under Section 3 of the NHS Act 2006 or may be provided under Section 3A of the NHS Act. This removes the clear and unambiguous responsibility on PCTs and local authorities to provide appropriate after-care services.

The current wording of the clause has the effect that the duty to provide after-care falls only on CCGs and, as such, will be only for health services, not social care services. By definition, after-care services must go beyond those provided by health alone, as they involve all the things I have already mentioned with respect to picking up your life after being detained—housing, counselling, befriending and advice, alongside the traditional health treatments and support. The wording is insufficient to ensure that these protections continue, and it clearly alters the nature of what was a freestanding duty to make it a gateway provision.

Secondly, Clause 37 states that Section 117 will be treated as a duty under Section 3 of the NHS Act 2006 and will be provided under the same duties as other healthcare. By removing the freestanding duty and making duties to provide after-care for detained patients the “same duties as other healthcare”, Clause 37 opens the way for charging for after-care services. For example, a potential effect of the clause is that it would allow for means-tested charging for such services as care home fees. They are currently exempted on the grounds that having detained a patient the state owes something of a reciprocal duty to provide after-care and that charging for such services would therefore not be acceptable. I spoke of this at Second Reading, when I reminded the House of the judgment made in this very issue in the Stennett case before the Appellate Committee of this House. Let me remind noble Lords of this landmark judgment more fully.

The exact case concerned Manchester City Council and two other councils, which appealed High Court rulings that they could not charge for the residential care of patients who had been discharged into such care from detention in hospital. Mr Stennett was one of those three patients. The judgment was made on 25 July 2002. In essence, the case established that Section 117 established a freestanding duty to provide after-care and that, as it contained no charging provisions, no charge should be made for after-care under that section, including for the provision of residential accommodation.

The argument that this was in fact a gateway provision, whereby other statutory protections would be triggered was completely rejected by the appellate court. I hope that the noble and learned Lord, Lord Steyn, will forgive me for paraphrasing his judgment in the case, but in essence what he said was that if it had been the intention of Parliament that Section 117(2) of the Mental Health Act would be a gateway provision, by which other statutory provisions were triggered, it would have specified what those provisions were. More importantly, if it were a gateway provision then it would require appropriate wording. The noble and learned Lord, Lord Steyn, said in summary that,

“Section 117 is free-standing. It imposes a duty on the authorities to provide the after-care services and to continue to do so ‘until such time as . . . the person concerned is no longer in need of such services’”.

If I am not mistaken, I believe that the noble and learned Lord, Lord Mackay of Clashfern, was part of the panel of judges that agreed with that judgment. The importance of this being a free-standing duty is that the relevant authorities are required to sort out the funding for the package of aftercare between them.

Furthermore, one of the greatest issues in ensuring that aftercare services are effective is securing the agreement and co-operation of the patient. This is known to work best when aftercare services are free and seamless. The current protections afforded by Section 117 represent best practice for vulnerable patients with mental health problems as it ensures that there is a joint support with a package of integrated services. The requirement that, once in place, this joint package of care cannot be broken without everyone's agreement means that patients are more likely to get access to the services that they need for as long as they need them. My amendment seeks to ensure that the arrangement of services by CCGs under Section 117 is not limited to services arranged under Section 3 or Section 3A of the NHS Act, by deleting the proposed new subsection (2E). In addition, the amendment will ensure that the duty on CCGs will not be regarded as a duty under Section 3 of the NHS Act. This means that it remains a freestanding duty under Section 117 of the Mental Health Act.

I am grateful to the Law Society and to Mind, which have helped in preparing briefings on this amendment and the key issues at stake. In addition, the Law Society has obtained independent legal advice on the specific implications of the current wording of Clause 37, which leaves me in no doubt that my concerns about this aspect of the Bill are justified. It is clear to me that the impact of Clause 37 would be to make a very vulnerable group of patients more likely to fall between the gaps created by the confusion and scope for dispute that it will create. Moreover, it strikes me that removing this protection goes against the ethos and promise of this Bill, which is for more, not fewer, integrated services. The joint duty on health authorities and local authorities to provide health and social care, coupled with the fact that Section 117 is a freestanding duty to provide aftercare, effectively prevents either health authorities or local authorities charging for such services. I believe this to be necessary and a vital protection for this vulnerable group of patients.

I sincerely hope that the Minister will see the necessity of this amendment and agree that it seeks to ensure that vital protections for some of these patients remain in place. Most importantly, I hope that he will accept that this House should not allow the possibility of charging as an unintended consequence of this change in statutory wording. Clause 37 reverses that ruling by the House’s Appellate Committee—or has the potential to do so—by taking such matters as domiciliary care, not directly linked to health provision, out of the scope of Section 117 of the 1983 Act. This potential reversal would appear to have been suggested without the matter being debated in Parliament at all. For that reason alone, surely the current clause cannot stand. I beg to move.

[Lord Adebowale]

My Lords, I support the amendment in the name of the noble Lord, Lord Patel of Bradford. I should first declare my interest as the CEO of the social enterprise, Turning Point, which provides mental health, substance misuse and LD services.

When I looked at this clause, I wondered whether there was malice aforethought but I was reassured by the civil servants that that is not the intention. I know full well that the Minister’s intention is always to be helpful. I understand that it was not the intention of this clause to wreck a partnership between health and social care that has been around since 1983 and has ensured that detained patients obtained an appropriate care plan, provided by a joint duty requiring PCTs and local authorities to work together to provide aftercare. I think that this clause was an attempt to tidy things up in some way and to provide clarity.

However, I should warn the House of the consequences of such a tidying-up exercise on the lives of detained patients. The current arrangements effectively hide the wiring about who pays and any debates on their provision of aftercare. There was a statutory curse on both the local authority and the NHS, should they fail to sort it out, which in effect has ensured that people who are detained get the care and support that they need on departure.

More to the point, experience tells me that the removal of this duty creates the very real possibility of one or other of the parties refusing to pay, thus leaving the client in an expensive limbo. The really worrying changes suggested in the clause refer to the fact that CCGs will no longer be under any duty to arrange aftercare in co-operation with relevant voluntary organisations. Furthermore, the clause goes on to state that CCGs, due to commission healthcare services, will be limited to services under Section 3A, effectively meaning—as set out by the noble Lord, Lord Patel—that health services only may be provided, thus opening up patients to funding disputes about whether they get care, and if so who pays.

There are other worrying suggestions in this clause that give cause for concern and that open up the possibility, as the noble Lord, Lord Patel, has pointed out, of charging for the services of aftercare. The question I would put to the House is: who is charging whom? Who pays under these circumstances?

In the excellent briefing provided by the Royal College of Psychiatrists, Mind, Rethink, the Centre for Mental Health and the Mental Health Foundation, a scenario was set out which I want to put to the House, because it illustrates the reality. We often debate these clauses in the absence of their real impact upon real people.

Mr B had a diagnosis of schizo-affective disorder and was unable to read or write due to also having a learning disability. He had a history of being detained under the Mental Health Act and of being discharged with Section 117 aftercare packages and then withdrawing from services in due course as his situation improved. However, as is often the case, he would then relapse and be returned to hospital. His aftercare package comprised a care worker from his community mental health team, who spent about two hours per week helping Mr B with paperwork—such as housing, rental and other benefits and community appointments—and the community psychiatric nurse, who administered medication. On health grounds, the health authority decided that the community mental health team support was to be withdrawn, but made no provision for further support with paperwork or appointments. Without that support, Mr B could not manage his tenancy, bills or get to his GP for his medication; he would certainly have relapsed quickly and stayed in a relapsed position, costing the state, the health authority and social care far more. There had been no recent reassessments of Mr B’s needs by social services and they had not agreed to the withdrawal of any services.

With the help of an advocate, Mr B was able to argue that Section 117 aftercare was his right and should not have been withdrawn without the agreement of social services. As a result, the support was left in place, he won his argument and social services agreed to review his needs before any further decision was made. That is the result of what we currently have in place. Remove that, and Mr B does not have those rights and is left in limbo.

This clause creates a gap through which not only Mr B will fall, but many others. It also places many services in the not-for-dividend and voluntary sector at risk of sudden withdrawal of funding, as has been pointed out by the noble Lord, Lord Patel. My own services, some of which we have raised finance to fund, will be at immediate risk. I would not be in a position to continue those services; they will not be available for people leaving detained services and therefore the care will not be available. I urge the House and the Minister to do everything necessary to retain the current certainty for Mr B and for many like him.

[Lord Alderdice]

My Lords, I support the amendment of the noble Lord, Lord Patel of Bradford. The Minister will know well that one of the many attractions of the Health and Social Care Bill for me is the lengths that it goes to in order to try to achieve some degree of integration between healthcare and social care, and indeed integration of various other kinds. For the most vulnerable of all patients, not only physically but mentally and socially, who are at serious risk, such integration of healthcare and social care is of enormous importance—something that I know well from my own experience.

It is surprising to me that in this clause it is as though we are going in the opposite direction. Instead of healthcare and social care being integrated, they are being separated out. I rather suspect that the noble Lord, Lord Adebowale, is right: while in previous clauses the criticism from the other Benches has been that too much complexity is being introduced into the system, on this occasion the attempt to simplify things may actually be the problem. It may have seemed that it would be good to get clarity and give the responsibility to one side or the other, but the care of those who are mentally disturbed to the degree that they are a risk to themselves or someone else and therefore have to be detained cannot be accomplished by either one side or the other, either healthcare or social care; they need to be working together.

I appeal to the Minister to look at this question again. I do not think anyone suspects there is any malice aforethought in this. The clause is rather complex, referring to lots of other pieces of legislation, and it may merit being looked at again in order to ensure that those who have been cared for up until now by a more integrated approach will not in any way lose out from the change that is proposed.