Clause 74 - After-care under the Mental Health Act 1983

Care Bill [Lords] – in a Public Bill Committee am 3:00 pm ar 23 Ionawr 2014.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Grahame Morris Grahame Morris Llafur, Easington 3:00, 23 Ionawr 2014

I beg to move amendment 131, in clause 74, page 65, leave out lines 35 and 36.

I will be extremely disciplined and focused on the subject of the clause. I refer the Committee to a declaration that I made previously and the specific issues that I wish to raise have been suggested to me by the charity Mind. Clause 74 seeks to amend section 117 of the Mental Health Act 1983, clarifying anomalies in determining  the responsibilities of local authorities in relation to the provision of aftercare treatment of mental disorders and the provision of care and support services to which the Bill applies.

Clause 74(5) seeks to introduce a definition for aftercare services. It is a concern of mine, as well as the consensus among a number of charities such as Mind, the Mental Health Lawyers Association, the Law Society, the Care and Support Alliance and some eminent lawyers, that the proposed definition is problematic and ought to be amended. There is a danger that the existing definition in clause 74 will not protect those suffering from mental disorders, probably the most vulnerable group in the mental health system.

Sitting suspended for a Division in the House.

On resuming—

Photo of Grahame Morris Grahame Morris Llafur, Easington

Before that important vote, we were discussing clause 74 and the concerns expressed about the Bill containing a new, restrictive definition of aftercare. I remind the Committee that those to whom the clause will apply will have been sectioned under the Mental Health Act 1983 and detained in hospital against their will because they are so unwell. The clause is important because those are some of society’s most vulnerable people. They are in need of great consideration when deciding on their eligibility for care. My amendment proposes to remove proposed new subsection (6)(a) of the Act altogether.

I was initially minded to press the amendment to a vote, but I hope that the Minister will think carefully about the issues I am raising. I think that they address a point he has raised several times about the law of unintended consequences. The amendment would remove a provision from the Bill, for reasons that I hope will become apparent.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport), Shadow DUP Spokesperson (Human Rights)

The hon. Gentleman has outlined a clear course of action that he feels is appropriate. Is he aware that both the Law Commission and the Law Society have indicated that there is a need to change the law to ensure that people with mental difficulties, at the times when those are most difficult for them, are looked after correctly?

Photo of Grahame Morris Grahame Morris Llafur, Easington

With due respect, I do not think that I have made the case yet, but I hope to do so. The hon. Gentleman is right. They are among a number of organisations who made that point forcefully and I will refer to those. Unless we address that, the risk is that these vulnerable people will receive only the bare minimum of medical and social services in the future.

Section 117 of the Mental Health Act ensures that people who have been detained in hospital receive aftercare after having been discharged. That mix of health and  social care is designed to help people cope once they have left hospital. Because these people are so vulnerable, their lives tend to be chaotic and, because being sectioned is such a traumatic experience, it is vital that clinical commissioning groups and local authorities work together so that they can rebuild their lives, look after themselves and avoid being sectioned again.

The code of practice, which provides guidance on how the Mental Health Act should be applied, states that, when creating an aftercare package, professionals must consider not only the patient’s psychological and mental health needs, but whether they need physical health care, daytime activities, appropriate accommodation, assistance with welfare rights and managing finances, social and cultural assistance and specific assistance arising from drug and alcohol problems.

At the moment, when a patient is discharged from hospital, the aftercare package is provided free of charge. The services do not last for ever: people who require them have a review at some point to see if they still need them. Section 117 of the Mental Health Act is unique in that it requires health authorities to work together with local authorities to provide care; one cannot make a decision without reference to the other. In other words, health cannot make a decision without reference to a local authority.

Secondly, the package has to be free of charge. This is in recognition of the fact that the state—this may come back to the Minister’s stout defence of the Human Rights Act and the need to protect the individual from the overbearing state—has detained an individual against their will, for their own protection, and has a duty of care to do everything possible to give them back their freedom and support them outside hospital. It is important that people with such serious problems get all the care they need and do not risk falling through the gaps and ending up back in hospital.

Lines 35 and 36 are problematic because of the narrow criteria of meeting a need arising from or relating to a person’s mental disorder. They may well result in complicated disputes about whether a service meets a need arising from a person’s mental disorder or not and therefore whether it should be provided.

The whole package of care keeps a person well and out of hospital. Removing or trying to remove elements of the package because it does not serve a need arising from or relating to a mental disorder will put a person’s health at risk. It will also mean patients will spend unnecessary amounts of time in hospital beds—an issue that we are all concerned about—which may not be the best place for them. This will be at considerable public expense and the patients will be unable to regain their freedom in society

Where there are disputes about what services should or should not be provided, people will find that they cannot be discharged from hospital when they should be, exacerbating the shortage of in-patient psychiatric beds. Members of the Health Committee are well aware of this issue.

The nature of mental health disorders also means that if people are asked to pay, there is a high risk of non-compliance. The existing limiting wording employed in lines 35 and 36 will prevent some of the most vulnerable people in our society receiving the care that they need. Parliament will have failed its responsibility to give  freedom back to those who have suffered from the most severe mental disorders. Until now, there has been no statutory definition of aftercare, just a lot of guidance in the Mental Health Act 1983 code of practice. The reason for this is not by chance.

This side of the House has often argued for things to be included on the face of the Bill, rather than in guidance, but there is a particular reason for this in relation to patients who have been sectioned. The reason is that law-makers, when they were writing the Mental Health Act, realised that exactly what people need in an aftercare package varies because mental health conditions and the way they affect people are varied. The drafters of the Act wanted professionals to be free to put together the most appropriate care package and not to be restricted by legislation. I think this concept is well understood.

It might be useful to illustrate this point. For example, it might be argued that a person who has been sectioned because they are suffering from schizophrenia will require some talking therapies to address their depression, although they were not originally sectioned for depression. It might be argued that benefits or employment advice services are generic services that everybody needs, not services to meet a need arising from a mental health disorder or that a mental disorder is for the NHS to deal with, not the local authority.

Without the amendment, perverse incentives will be encouraged and those with mental health disorders will be damaged. I do not want to detain the Committee much longer, but I want to say that, rather than creating inequality, this amendment will preserve the status quo where professionals have the flexibility to design an aftercare package that is suitable for individual needs and looks at the whole person. That is a strong argument, and as my hon. Friend the Member for Strangford pointed out, it is supported by a whole series of informed opinions from charities and others. I hope the Minister will look carefully at those issues to ensure that we are not failing in our responsibility to care for the most vulnerable people in society.

Photo of Sarah Wollaston Sarah Wollaston Ceidwadwyr, Totnes

I rise to support the amendment in the name of the hon. Member for Easington, a fellow member of the Health Committee. The Minister will know that the greatest health inequalities in our society relate to people with severe mental illness. Men with severe mental illness are likely to die 20 years earlier, and for women the figure is 15 years. That is almost entirely due to physical health problems, not mental health problems. The hon. Gentleman eloquently outlined a series of issues relating to people who have been detained against their will under the Mental Health Act 1983. We need to prevent readmissions under the 1983 Act, but there are other issues that we must consider. People’s circumstances are critical, and we need to ensure that they do not drift into becoming rough sleepers.

The issue of interpretation is not irrelevant, as we saw in the case of R (Mwanza) v. Greenwich. We should remove the line in the Bill to which the hon. Gentleman’s amendment refers, and the word “both” in the line above it is also problematic, because it would mean that both those circumstances would have to be present. Somebody who assesses an individual with mental health problems may see them when they are relatively well.  However, mental health conditions can be variable, and just because somebody at the point of assessment is not acutely unwell and their condition is controlled, that does not mean they are not acutely at risk.

I ask the Minister to look again at the clause because there are already issues of interpretation. If we are to achieve what we want from section 117 of the 1983 Act, I urge the Minister to look at it again, because it is already causing problems and we have the opportunity to use the Bill to clarify it. I hope the Minister will address those matters in his response.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I thank the hon. Member for Easington for raising this issue. As he rightly said, we are dealing with some of the most vulnerable people in our communities, so we must ensure that the clause is right. I welcome the chance to debate it.

My hon. Friend the Member for Totnes is absolutely right that people with severe and enduring mental health problems are among the most let down by society. As she rightly said, their physical health causes them to die many years earlier than others, which is a cause of massive concern and is completely unacceptable. My hon. Friend may have noticed that the Government launched a mental health action plan on Monday called “Closing the gap”, which seeks to address the lack of parity between the way that mental and physical illnesses are treated. We set out 25 priorities for essential change, and the report’s contents were widely welcomed. I thank the hon. Gentleman and my hon. Friend for their contributions.

The amendment would alter the Government’s definition of mental health aftercare services in the 1983 Act. The key point is whether it would give us a clearer, more useful definition than the one in the Bill. One advantage of introducing a clear definition will be that the scope of aftercare will no longer be entirely open to interpretation by the courts, whose views have varied and led to uncertainty over time. The hon. Member for Easington made the point about how legislation can sometimes provide clarity, as long as the words used are clear. Because our definition is more targeted, I feel it will be more helpful than the hon. Gentleman’s in assisting clinical commissioning groups, Welsh local health boards and both English and Welsh local authorities to commission aftercare services more promptly.

Importantly, our definition provides that section 117 services may “relate to” as well as “arise from” the person’s mental disorder. That is an important broadening of the definition so that a wide breadth of services is covered. They simply need to “relate to” and not only “arise from”. The current definition results from extensive consultation, which has led us to add a positive objective to reduce the risk of both deterioration in a person’s mental condition and readmission to hospital.

We have further changed the clause to replace a reference to “the disorder”—I suspect the hon. Member for Easington will be aware of this from the debate in the House of Lords—with “mental disorder”, which is something that the Mental Health Alliance had been lobbying for, and for which Lord Patel of Bradford made the case in another place. This change was to remove any doubt that aftercare may relate to more  than one form of mental disorder, and not necessarily the specific mental disorder for which the person was admitted to hospital.

We will also clarify the scope of the definition in the Bill’s revised explanatory notes. Lawyers from the Mental Health Alliance have told us that this would be of considerable value in resolving disputes at a local level. The definition will be further explained when we revise the code of practice on the Mental Health Act 1983 later this year. We have given a commitment to work with all interested stakeholders when revising the code of practice.

Finally, I can reassure the hon. Gentleman and my hon. Friend that our definition contains a carefully framed duty that reflects the Government’s policy on the appropriate scope of the duty to provide free aftercare services for a very small group of patients who have been detained for treatment under the Mental Health Act. It has carefully drawn limits, because the Government do not consider it would be appropriate for the Mental Health Act to impose a duty on the responsible bodies to provide or commission services that are based on needs that neither arise from nor are related to a mental disorder. That is what the purpose of the provision is all about.

In reaching their decision, the Government have taken a holistic approach to the provision of mental health services across the population and the funding implications of that. In the light of that, I hope the hon. Gentleman will feel able to withdraw his amendment.

Photo of Grahame Morris Grahame Morris Llafur, Easington 3:30, 23 Ionawr 2014

I am grateful for the Minister’s consideration, but I am not persuaded by what he says. A weight of evidence from experts and charities is at odds with the Government’s position. I recognise the maths of the voting system, so I am willing to withdraw the amendment, but I am not satisfied with the assurances I have received from the Minister. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 74 ordered to stand part of the Bill.

Schedule 4 agreed to.

Clause 75 ordered to stand part of the Bill.