Health and Social Care Bill

Lord Patel of Bradford Excerpts

Wednesday 29th February 2012 Lords Chamber

Moved by

[Lord Patel of Bradford]

136A: Clause 39, leave out Clause 39 and insert the following new Clause—
“Aftercare
(1) Section 117 of the Mental Health Act 1983 (aftercare) is amended as follows.
(2) In subsection (2)—
(a) after “duty of the” insert “clinical commissioning group or”,(b) omit “Primary Care Trust or” in each place it appears,(c) for “such time as the” substitute “such time as (in relation to England) the clinical commissioning group or”.(3) After subsection (2C) insert—
“(2D) Subsection (2), in its application to the clinical commissioning group, has effect as if for “to provide” there were substituted “to arrange for the provision of”.
(2E) The Secretary of State may by regulations provide that the duty imposed on the clinical commissioning group by subsection (2) is, in the circumstances or to the extent prescribed by the regulations, to be imposed instead on another clinical commissioning group or the National Health Service Commissioning Board.
(2F) Where regulations under subsection (2E) provide that the duty imposed by subsection (2) is to be imposed on the National Health Service Commissioning Board, subsections (2D) and (2E) have effect as if references to the clinical commissioning group were references to the National Health Service Commissioning Board.
(2G) Section 272(7) and (8) of the National Health Service Act 2006 applies to the power to make regulations under subsection (2E) as it applies to a power to make regulations under that Act.”
(4) In subsection (3)—
(a) after “section “the” insert “clinical commissioning group or”,(b) omit “Primary Care Trust or” in each place it appears, and(c) after “means the”, in the first place it appears, insert “clinical commissioning group or”.(5) In consequence of the repeals made by subsections (2)(b) and (5)(b), omit paragraph 47 of Schedule 2 to the National Health Service Reform and Health Care Professions Act 2002.”

[Lord Patel of Bradford]

My Lords, it is with a heavy heart that I find myself speaking here again on this amendment, which attempts to make changes to Clause 39. This amendment is not about politics and is not in opposition to this troubled Bill; it is about the protection of the vulnerable and those in greatest need. I set out in some detail in Committee the reasons and purpose for my amendment, which had the support of not only many Members of this House from all sides but also many leading mental health organisations in this country, such as Mind, Rethink, the Mental Health Foundation, the Centre for Mental Health, the Law Society and the Royal College of Psychiatrists. These are not agencies with vested interests; they do not gain anything from fulfilling their core purpose, which is to advocate on behalf of those who are less able to speak for themselves as a consequence of severe mental illness. We are talking about people who have suffered from severe illness—those who have been so ill and at such risk that the full powers of the Mental Health Act 1983 were used to detain them and keep them in hospital.

These are not lifestyle problems; these are not people who could have chosen a different path. They did not choose to be detained in hospital, sometimes for very long periods of time. No—these are people whom the state, in making use of its considerable powers under the Mental Health Act, has a very clear obligation and duty to protect. That protection must go beyond the time spent in hospital to include their aftercare under Section 117 of the 1983 Act. One crucial thing about that section is that it requires primary care trusts and local authority social services to work jointly together in providing aftercare. This could include a variety of necessary things such as visits from a community psychiatric nurse, attending a day centre, administering medication and providing counselling services—or, most importantly, providing supported accommodation within the community.

Under the current law, a mental health patient can expect that their PCT and local authority provide the aftercare package in an appropriate way, including sorting out the funding between themselves. These vital services cannot be taken away until the PCT or local authority are satisfied that the person no longer needs them. I am not suggesting that Clause 39 would stop the provision of aftercare. What I am saying, and what many other experts in mental health and the law are saying is that that will have profound effects on how that aftercare is delivered and paid for, effects that fall down like dominoes with insidious and devastating impacts. For example, the clause removes the duty of co-operation in delivering aftercare services between the health service, the local authority and the voluntary sector, which makes what is a freestanding duty into a gateway provision. As a consequence, it provides a backdoor route by which aftercare services for detained patients will become chargeable.

I am grateful to the noble Baroness and the noble Earl for making time to meet the noble Lord, Lord Adebowale, and me to discuss our concerns. Unfortunately, this has been to little avail since, as your Lordships can see, there is no change to this clause. With the greatest of respect, I have to say that the Minister and indeed the officials in the Department of Health do not understand the full import of the changes that will be brought about by this clause. At least, I hope it is a misunderstanding because I am at a complete loss as to why our concerns have not been addressed.

Let me briefly give some examples of why I believe this clause will be so damaging. I take these from the Local Government Ombudsman, who became involved following several complaints about the application of the current law. I will explain why this is important in a moment, but let me first give your Lordships some of the detail of these cases. The first concerns a woman, Mrs Wilson, who, following a period of detention under the Mental Health Act, required care in a residential home as part of her jointly agreed aftercare. Yet despite the clear meaning of Section 117 of the Mental Health Act she was charged by the local authority for this care, resulting in the loss of her home. She was also discharged from a Section 117 agreement without her or her mother Mrs Walton, who was her main carer, being either involved or consulted in the decision, which was yet another breach of the clear meaning of the Act. The ombudsman found that the local authority had failed in its duty to provide aftercare, and in its duty to consult the patient and their carer.

The exact same issue—a failure to involve people in decisions, and inappropriate and illegal charging for services—arose in several other cases, such as with Mr Hughes’s sister, who was placed in a care home after being discharged from hospital, again under a Section 117 agreement. She, too, was charged for the costs of her social care and lost her home as a result. Despite clear advice from the Department of Health about Section 117 services being free, the council continued to apply charges. The ombudsman decided that,

“the Council’s delay in changing its policy amounted to maladministration, and that there was no reason why, with reasonable diligence, the policy could not have been changed some two years earlier than in fact it was. And this was a case where such diligence was required”.

It most certainly is required. I could go on and give many examples. The lady in question was being charged £256 a week for her aftercare, even after the legal advisers at the time said that this should have been free. At the time of the ombudsman’s decision, Mr Hughes’s sister had in fact paid costs amounting to £60,000.

Why are these cases so important? It is because they illustrate, even with the protection of the freestanding duty, that local authorities sought to break their agreements without consultation and did everything in their power to charge the people in their care for services that should most certainly have been free. That is the key to the issue in this argument. If this is how local authorities are applying the current law, what can we expect when they are freed from the duty of this care as Clause 39 seeks to do? They did that in a time of plenty, so what shall we see in the current challenging economic climate? What then for the vulnerable people who are coming out of hospital after having been detained under the Mental Health Act?

My amendment is about ensuring that this does not happen, and that even though it is not perfect we keep the joint duty, so that aftercare can be recognised and responded to in ways that are appropriate and necessary. The Minister has argued that this is about tidying up and aligning the legislation. It is exactly that alignment—that so-called tidying up—that causes the problems. I am reliably informed by legal advisers that introducing reference to the 2006 NHS Act in the way that this clause does will import into Section 117 the power to charge for aftercare services whenever the 2006 Act allows for it. I am in agreement with the noble Baroness, Lady Murphy, who asked in Committee, “What is wrong with the current situation? Why change what are clearly essential arrangements without some serious reasons for the change”?. This does not mean just a tidying up.

My amendment is simple. It retains a clear and unambiguous responsibility on clinical commissioning groups and local authorities to provide appropriate aftercare services. It will retain these duties on the basis that CCGs and social services authorities must act together jointly. It would also ensure that CCGs continue to arrange for the provision of aftercare services under Section 117, in co-operation with the relevant voluntary agencies. Most importantly, it preserves the judgment of the Law Lords of this House in the Stennett case that this is a freestanding duty, and as such cannot be used for the charging of aftercare services under Section 117.

As I said at the start, I move this amendment with a heavy heart because we should never have come to this point on this clause. I am not making trouble and this is not about making political points, but the Government make their case for this Bill so much harder by refusing to listen to those who perhaps know something more about the impact on people's lives, especially those who are marginalised and at serious risk. The current joint duty is essential, because it means that the patient is more likely to get access to the right kind of integrated health and social care services which they need and, most importantly, that the patient has an enforceable right to those services.

Aftercare under Section 117 is free of charge because the people who need these services are incredibly vulnerable and face a very real risk of relapse or self-harm, and of becoming more isolated and vulnerable as a result of not being adequately housed in an environment that offers them the protection they so desperately need. I will not retreat from this. My duty to those who are in such critical need of our support and my conscience will not let me retreat from this. I move this amendment in good faith and I hope that the Minister, whether it is the noble Earl or the noble Baroness who replies to this debate, will accept it.

[Lord Adebowale]

My Lords, I support the amendment moved by the noble Lord, Lord Patel. I am grateful to the noble Earl for the time that he generously gave to me and the noble Lord to meet him and the civil servants. However, I was disappointed by the letter that we received following the meeting. I thought that we had driven home the point and had some sympathy from the noble Earl. I understand the need to tidy up legislation, which is an important thing to do, but I find it faintly disgusting that we are going to mess up people's lives. The legislation might be neater but lives will be made much messier.

I have just come from Manchester—from Turning Point’s offices there; and I declare my interest as the chief executive of an organisation that will be directly affected by the Bill—where we have a case of an elderly lady who has been with us for 14 months, at a cost of well over £100,000. We cannot get the NHS to pay it because it claims that it is the responsibility of the local authority, whereas the local authority claims that it is the responsibility of the NHS. That is the reality under the current legislation, even with, as the noble Lord pointed out, the provisions of Section 117.

We are told that, in tidying up, the proposed provisions will allow people who are discharged from mental health institutions to seek a judicial review if they are refused aftercare arrangements in co-operation with health and social services. I was astonished to read that in the letter. I do not know what planet the writer of the letter is on but I would welcome them to join my planet and actually visit and speak to people who are discharged from these institutions, and to talk to their families and friends, and then to come back and tell me whether they are in a fit state to seek judicial reviews against local authorities and the NHS. We must be real when discussing legislation that will affect the lives of real people who may not sit in this Chamber but who will cost us a fortune if we do not get this right.

It is with a very heavy heart that I support the noble Lord, Lord Patel, in his amendment. I hope that, at this late stage, the Government will see the obvious logic. Even in their responses to previous amendments they said that they wished to support the joined-up provision of health and social care. What better example is there of such provision than Section 117 of the Mental Health Act? It is as obvious as gravity. So we must insist—not to make a political point or reference to the Bill, but on behalf of people not in this Chamber who will cost the country dearly if we do not get it right—that the Government accept the logic of the amendment and just say yes.

--- Later in debate ---

[A noble Baroness]

Now you have to go over and give her a kiss.

[Lord Patel of Bradford]

I was about to take my jacket off—

[Lord Beecham]

Just stop there.

[Lord Patel of Bradford]

But a hug is probably more appropriate. That is really good news; I am pleased that the Minister and the noble Earl, who I knew was sincere in all the discussions that we had, have accepted this important amendment. Of course I shall formally withdraw the amendment—

[Noble Lords]

No!

[Lord Patel of Bradford]

Sorry, I have lost my flow completely. I meant that I shall formally move my amendment. However, I would like to reserve the ability to see those technical changes and come back if they do not quite achieve what we want.

Amendment 136A agreed.