Mental Health (Approval Functions) Bill

Lord Hunt of Kings Heath Excerpts

Wednesday 31st October 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, detaining people under the Mental Health Act raises fundamental questions of individual liberty and public safety requiring the most careful consideration. When that is combined with emergency legislation of a retrospective nature, it is clear that the circumstances in which we find ourselves today are far from ideal. Your Lordships will want to satisfy themselves that the retrospective measures that the Government are asking us to approve are justified. We have to be sure that this is the only real course of action available and that we are not setting a precedent where emergency legislation can be used as a convenient means of correcting administrative failings.

In doing so, we must have at the forefront of our minds the simple fact that the uncertainty that has arisen in the past week affects thousands of highly vulnerable people and their families, as well as holding serious implications for patient and public safety. If we leave that uncertainty hanging, it has the potential to cause real harm to those individuals and damage public trust in our system of individual and public protection. That is why Her Majesty’s Opposition have concluded that the public interest is best served by the Government taking the swift action that they propose today.

In reaching that judgment, we can take comfort from the fact that the main mental health charities, as well as the Royal College of Psychiatrists and the devolved Administrations, are also supporting the Government’s course of action. We are further helped by the fact that the Minister has today set out a cogent case for this exceptional retrospective measure that is before your Lordships.

However, a number of matters of detail and of principle arise from what the Minister said, which I would like to cover today. It would be helpful for the House to know more about the extent of the checks that have been carried out on the 4,000 to 5,000 cases that the Minister mentioned. The fact that we have a very vague figure suggests that there has not yet been a thorough case-by-case review. Would the Minister agree that that has to be done and that we need to know the precise number on the extent of the problem?

I press the Minister again on the question of the people and families affected, who will no doubt be unsettled by the news of what has happened. I noted from yesterday’s proceedings in the other place that strategic health authorities have been charged with putting a proper communication process in place. With all respect, those very SHAs that did not do this properly have been charged with communicating with the patients. I would like to press the Minister on the point that my right honourable friend Mr Andy Burnham made yesterday about the need for his department to be involved in personal communication to the individuals concerned.

Alongside the question of the details, I ask the Minister about the details of individual SHAs and timing in terms of notification of the department. If it had happened in just one SHA, the explanation might be easier to ascertain and understand. But given that it has happened in four SHAs, it seems to point to a more widespread issue of concern. I share the concern of the noble Baroness, Lady Murphy, on that point. Is it symptomatic of problems arising from historical practice among NHS bodies in those regions, or does it indicate that in those regions there may well have been a general problem with schemes of delegation? If the noble Baroness, Lady Murphy, was able to do the job properly, it is very difficult to know why other SHAs were not so able to do the job, given the extensive legal advice available to strategic health authorities.

I would also like to ask the Minister about timing. On Monday, he said that knowledge arose because 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”.

But it was not until 22 October that,

“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”.—[Official Report, 29/10/12; col. 449.]

If I have read that right, it seems to have taken a matter of six months or even more between the Yorkshire and Humber SHA, which I think has been subsumed into the northern SHA cluster, first knowing and its then not alerting the Department of Health. I am interested to know why it took so long for the department and Ministers to be alerted.

I come to the point raised by the noble Lord, Lord Pannick, and whether the concept of “Any person” in Clause 1(1) of the Bill is too broad. On normal reading, it appears to legalise approvals by anybody. I know that the Minister said something about that in his introductory remarks. However, the intervention of the noble Lord, Lord Pannick, regarding the outcome of the Constitution Committee’s deliberation this morning was helpful. He said that its reading of the draft is that it is not confined to the mischief of the improper use of delegated powers and, on the face of it, appears to give very broad and retrospective approval to actions that have been carried out in relation to the approval functions. This matter was raised in the other place by my right honourable friend Mr Andy Burnham yesterday when he asked for clarification. In response, Mr Norman Lamb said:

“I am grateful to the shadow Secretary of State for that intervention. We have gone through a very careful process and have followed legal advice on what is necessary to regularise the position. This relates specifically to the approval function, which is defined in clause 1(2). As I have said, the legal advice is that this is the best way to regularise the issue that has been uncovered”.—[Official Report, Commons, 30/10/12; col. 205.]

I recognise that kind of response. It is the sort of response that one tries to get away with. Will the noble Earl give us a little more help on this matter? The clause, on the face of it, seems to go much wider than what would be deemed to be required.

We welcome the review. It will need to look at all the technical issues surrounding mental health so that this House and the public can be absolutely certain that there have been no other technical failures or breaches of regulation. We hope that Dr Harris will be able to undertake this review as swiftly as possible because it is important that it informs the current changes taking place in the National Health Service. We also hope that Dr Harris will be helped by independent professional involvement. Informing the new arrangements which will come in from April next year seems to me a very important part of the work of Dr Harris and his review.

As the noble Baroness, Lady Jolly, said, we are not at all sure about how in practice the new arrangements will relate to the authorisation of doctors under the Mental Health Act. On Monday, the noble Earl said that in future those functions will come back to the Department of Health, but how will that be done in practice? I assume that we will continue to have local panels that will interview the doctors concerned and make recommendations on whether they should be authorised or not. But what happens then? Will the matter then go to the Secretary of State? Will he delegate to the NHS Commissioning Board or local NHS trusts? It is important that we know that there is clarity in the system. I certainly hope that Dr Harris’s review will inform that.

Finally, I echo a point raised by the noble Baroness, Lady Murphy, concerning whether this whole sorry episode is symptomatic of a wider cultural problem with regard to mental health in our National Health Service. Was the issue omitted from the lists of the four SHAs we are discussing because mental health is simply not given the priority that it ought to be given?

We are very glad that the Health and Social Care Bill, following its passage through your Lordships’ House, now includes parity of esteem for mental health services. I do not expect the noble Earl to go into the details of how the department is planning to turn that into a reality. However, in taking forward the work that needs to be done in Dr Harris’s review, it would be helpful to ensure that in future the health service as a whole accepts that legislation relating to people with mental health issues needs to be given as much priority and importance as legislation relating to other parts of the National Health Service.

--- Later in debate ---

[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.