Mental Health (Approval Functions) Bill

Lord Skelmersdale Excerpts

Wednesday 31st October 2012 Lords Chamber

[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.