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Mental Health Act 1983

Volume 552: debated on Monday 29 October 2012

With permission, Mr Speaker, I wish to make a statement about an issue relating to the Mental Health Act 1983.

It has become apparent that there are some irregularities around the way in which doctors have been approved for the purpose of assessing patients for detention under the Act. 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. The latter will usually be a social worker.

In 2002, when strategic health authorities came into being, the then Secretary of State properly and lawfully delegated his function of approving doctors under the Act to them. However, it came to light last week that in four of the 10 SHAs—North East, Yorkshire and Humber, West Midlands and East Midlands—between 2002 and the present day the authorisation of doctors’ approval appears to have been further delegated to NHS mental health trusts.

I was made aware of the issue and kept up to date with the actions being taken last week. Our latest best estimate is that approximately 2,000 doctors were not properly approved, and that they have participated in the detention of between 4,000 and 5,000 current patients within institutions in both the NHS and independent sectors. Rampton high-secure hospital is in one of the affected areas, and some patients at Ashworth high-secure hospital are also included.

There is no suggestion that the hospitalisation or detention of any patient has been clinically inappropriate; that the doctors so approved are anything other than properly qualified to make such recommendations; or that these doctors might have made incorrect diagnoses or decisions about the treatment that patients needed. All the proper clinical processes were gone through when these patients were detained. We believe that no one is in hospital who should not be and that no patients have suffered because of this. The doctors would have had no reason to think that they had not been properly approved. They acted in good faith and in the interest of their patients throughout this period.

In the light of our legal advice, we do not believe that any decisions made about patients’ care and detention require review because of this irregularity. Doctors should continue treating patients currently detained under the MHA in the usual way. We have received advice from the First Treasury Counsel that there are good arguments that the detentions involving these particular approval processes were and are lawful, but the counsel also argues the need for absolute legal clarity. The legal advice is that this should be resolved through emergency retrospective legislation.

As soon as the irregularity was identified, my Department worked swiftly to identify the best course of action and to put the necessary preparatory work in place. It first became aware of the problem last week. Officials immediately sought initial legal and clinical advice. We then swiftly analysed possible options, including the option of reassessing all potentially affected patients, working with the health leads in the regions affected and clinical experts from the Royal College of Psychiatrists.

When I was briefed on the situation, I asked for detailed information on the time it would take and the clinical risks involved in reassessing all potentially affected patients. On Friday, I asked for an emergency Bill to be drafted over the weekend, as a matter of contingency. I also briefed the Prime Minister personally the next day. Following further discussions and analysis over the weekend, the decision to introduce emergency legislation was taken yesterday, and we have since worked to prepare the necessary materials.

At all times, my priority has been to resolve the situation in a way that follows clinical advice about the most sensitive way to deal with a highly vulnerable group of individuals. We have also worked to remedy the problem as it relates to current and future detentions. As of today, all the doctors involved have been properly approved. 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 remaining 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 Act.

Although we believe there are good arguments that past detentions under the Mental Health Act were and are lawful, it is important that doctors, other mental health professionals and, most importantly, patients and their families have absolute confidence in the decisions made. That is why, in relation to past detentions, we have decided that the irregularity should be corrected by retrospective legislation. Although we are aware of the problem in only the four areas going back to 2002, the proposed legislation will apply in principle to the approval of all doctors under the Mental Health Act since its introduction in 1983. The proposed legislation will retrospectively validate the approval of clinicians by those organisations to which responsibility was delegated, up to the point when all the relevant doctors were fully re-approved and their status put beyond doubt. The legislation will not deprive people of their normal rights to seek redress if they have been detained for any reason other than the narrow issue of the delegation of authority by the strategic health authorities, nor will it affect any future detentions or legitimise any similar failures in future. We are proposing to introduce the draft legislation to this House and, through best endeavours, looking for it to complete its passage through all the appropriate stages in this House and the other place as soon as is practicable.

While addressing the technical issue, it is also important that we get to the bottom of how this happened and that we learn any lessons to help inform the operation of the new system architecture from April 2013. As such, I have asked Dr Geoffrey Harris, chair of NHS South and former chair of Buckinghamshire mental health trust, to undertake an independent review to look at how the responsibility was delegated by the four SHAs and, more broadly, the governance and assurance processes that all SHAs use for delegating any responsibilities. I will also ask him to look at this issue in the context of the new NHS structures that come into force from next April and to see whether any lessons need to be learned. It is imperative that the review is swift, and I have asked Dr Harris to report to me 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.

I stress to the House that I have reviewed with lawyers, clinicians and NHS managers possible alternatives to introducing this retrospective legislation. I have been advised that all alternatives would be highly disruptive to many of the most vulnerable patients and would deprive many other patients of the care they need while any action is undertaken. However, all the advice I have received has been unequivocal in stressing the need for absolute clarity of the legal status of any hospitalisation or detention of patients, in the interests of those patients, their families, those caring for them and the wider public. That is why, in such exceptional circumstances, this retrospective legislation is being proposed. Both a Bill and the accompanying explanatory notes will be published this afternoon. I commend this statement to the House.

I thank the Secretary of State for his statement and for notice of it. Detaining people under the Mental Health Act raises the most serious issues of fundamental rights and of patient and public safety. Any reported failure will therefore always be a matter of the highest concern. I know this House will want to get to the bottom of the unacceptable breaches of procedure that we have just heard about. However, I am sure I speak for both sides in saying that the House will have been reassured by the Secretary of State today on three crucial points: first, that no patient has been wrongly detained, received care that was not clinically appropriate or will see their legal rights restricted by the legislation; secondly, that no doctor was unqualified to make decisions; and, thirdly, that urgent action is being taken to correct the situation and bring the clarity that is so essential.

Let me now turn to the serious questions that need to be answered. Will the Secretary of State say more about the events that brought this issue to light last week? Was it discovered in one SHA first, and by what process did the Department establish that it extended to three more? When exactly was the Department made aware, when was the Secretary of State informed and what action has been taken to establish the full extent of the problem? Have extensive checks been undertaken in all 10 SHA areas, and is he absolutely confident that no more patients and families are affected than the 4,000 to 5,000 he has mentioned?

I want to press the Secretary of State for more information on the people affected. Will he say whether he has any plans for direct communication with the patients and families affected? Are the patients living not only in the four regions mentioned but in all parts of the country? How many are in high-secure hospitals, and how many could pose a risk to the public?

We understand and support the Secretary of State’s wish to remove any doubt about the legal status of the patients concerned, but that must be set against the undesirability of asking the House to legislate tomorrow on an issue that it has found out about only today. Over the next 24 hours, will he ensure that Members have access to the fullest possible information, including a summary of the legal advice he has received?

There will be concerns about precedent. This is the first time that the House has been presented with emergency legislation in this area that will affect people’s rights. The public will want to know that it is being used in exceptional circumstances as a last resort, and not as a convenient means of correcting administrative failures. Will the Secretary of State therefore explain precisely what alternatives to legislation were considered, and why it was decided that they were not acceptable in these circumstances?

Let me turn to the investigation. We support the review under Dr Harris that will try to get to the facts and ensure that lessons are properly learned. We do not want to prejudge it, but is the Secretary of State in a position to confirm today whether the review is already proceeding on the basis that this is a failure of policy implementation rather than a defect in the original legislation? That is important, as practitioners working in this field will not want any unnecessary question marks hanging over the Mental Health Act 1983.

We also need clarity about the future. This area is currently the responsibility of SHAs, which are due to be abolished next April. So, as well as establishing the historical facts, will the Secretary of State ask his review to consider whether the new arrangements for sections, following the Government’s reorganisation of the NHS, are sufficiently well understood? Will he also ask the review to advise on how any danger of further confusion arising from the process of transition can be prevented?

I commend the Secretary of State for the pragmatic approach he is taking to this difficult issue. His request of the House is exceptional, but failure to act could cause unnecessary distress and uncertainty to many thousands of vulnerable patients and their families, and present risks to public safety. We will press him for answers in the areas that I have outlined, but we believe that his action is justified. He will have our support in removing any uncertainty.

First, I thank the right hon. Gentleman for the co-operation that he has shown to me and my Department over the weekend. There are occasionally moments when issues of public safety and patient well-being transcend the normal political divides, and I greatly appreciate his co-operation on this matter.

Let me deal with the important questions that the right hon. Gentleman has asked. The issue arose when a challenge was made to the authorisation of one doctor in Yorkshire and Humberside and, in dealing with that challenge, the irregularity in the way in which all authorisations had happened became apparent. Following further investigation, we discovered that this had happened in four other SHAs. We found out about this early last week, and I was informed towards the end of last week. Immediate action was taken to ensure proper validation last week of all the doctors who are currently taking section 12 decisions under the Mental Health Act, and that was completed as of today.

We have done exhaustive checks on the other SHAs, which is part of the reason why we asked all the SHA bosses to write to Sir David Nicholson—which they have all done today—to confirm that their processes in this area are in order. We do not believe that this issue affects any patients other than the ones we have talked about, to date. However, because people move and are moved to different hospitals and places of detention, it might be happening in other parts of the country beyond the four SHAs in which the irregularities in authorisation happened.

The right hon. Gentleman will understand that it is not the practice for Governments to publish legal advice because we want to continue to be able to receive frank legal advice in the future. However, I am happy to answer any questions about the legal advice and, as he knows, I am happy for him to talk to my Department’s legal advisers to satisfy himself on the precise legal situation.

Let me move on to the really important point about the alternatives that we considered, as it is highly exceptional to bring in emergency legislation. The right hon. Gentleman will know that authorities are allowed to detain someone under the Mental Health Act for 72 hours while the correct processes are followed to section them. Although, as I mentioned, we believe we have good arguments to show why these detentions were lawful, we did not know what a court might have decided if the detentions were challenged. We could have faced literally having to redo the entire process for 4,000 to 5,000 patients within 72 hours. Given the high level of vulnerability of many of them, we could not find a means of doing that in an orderly way that protected their well-being. I received clear medical advice from the NHS medical director, Professor Sir Bruce Keogh that that would not be an appropriate course of action. We looked at the position carefully and because we were trying to explore other alternatives we did not come to the decision to introduce emergency legislation until this weekend.

I can confirm that we do not believe that this has highlighted a defect in the legislation. We are not seeking in the emergency draft Bill to change the Mental Health Act. This is purely retrospective legislation dealing with some specific procedures under that Act; it will have no impact as this goes forward.

The right hon. Gentleman is absolutely right that we must be sure to minimise the confusion as we move towards the new structures. Under them, the problem would have been resolved, with the power reverting from strategic health authorities to the Department of Health. I do not want to be complacent: if this problem happened in one area, we want to be sure that it cannot happen in others.

I welcome the prompt action taken by my right hon. Friend and the support he has secured from Opposition Front Benchers for putting this sensitive matter on a secure legal footing. Is not the key point the fact that no patient has been sectioned and no doctor has been authorised who would not have been sectioned or authorised under the legislation? Is not the purpose of the emergency Bill, as always with retrospective legislation, simply to put the position as Parliament intended it to be in the first place?

My understanding is exactly the same as that of my right hon. Friend. The key point is that this was a technical irregularity, but we do not believe that any patient has been sectioned, detained or hospitalised who would not have been if the correct procedures had not been followed. It is none the less very serious that this technical breach happened; that is why, as well as correcting the technical breach and providing absolute clarity, we are conducting this review to make sure that we do everything we can to avoid anything similar happening again—even under completely different structures than the SHAs.

I do not necessarily disagree with anything the Secretary of State said, but I noted that he used the term “we believe”, which means that it is not simply factual at this point that no one has been detained who should not have been. It would be worth the Secretary of State addressing the reverse position: does he believe that no one who should have been detained has been released and then gone on to commit a serious offence?

As a result of the technical irregularities that we have identified and put right, I do not believe that what the hon. Gentleman describes has happened. Let me explain that when I say “we believe”, it reflects the advice we have had that there are good arguments on why the detentions were and are lawful, but that is not to say that those arguments cannot be challenged or that a court would necessarily agree with us. That is why it is necessary to take this unusual step of introducing emergency legislation.

Removing the liberty of ill people is serious business, and deserves to be taken seriously. That has not been the case for the past decade, or perhaps even longer. I hope that, as we go forward, we can ensure that people who are ill get the representation and advocacy they deserve and that they—and, most importantly, their rights—are taken seriously.

My hon. Friend is absolutely right. As a result of the new structures in the NHS, responsibility for ensuring that all patients who are threatened with detention receive the advocacy to which they are entitled under the Mental Health Act will be transferred from primary care trusts to local authorities. We will use this opportunity to review the arrangements, talk to local authorities, and do all that we can to ensure that those functions are discharged in the way my hon. Friend seeks.

Two mental health trusts that do a fantastic job in my constituency, Humber NHS Foundation Trust and Rotherham, Doncaster and South Humber NHS Foundation Trust, have been involved in this. Can the Secretary of State tell us how many patients have been affected by what has happened in trusts, so that if families approach us we can offer them the information that they require?

Does the Secretary of State agree that speed is of the essence in the provision of clarity, and will he accept our congratulations on having moved with such commendable speed?

I am grateful to my hon. Friend for saying that, but I think that we should extend our gratitude to the Opposition on this occasion. It is possible to move with speed only when there is cross-party co-operation, and I think that everyone has recognised the seriousness of the situation.

Given the huge, overwhelming concentration on the subject of detention during the passage of the National Health Service Act 2006, which revised the Mental Health Act 1983, why was this departure from the law not brought to Members’ attention, or, indeed, to light? Someone in the Department of Health must be answerable, surely.

The truth is that no one in the Department of Health knew that this irregularity was happening. I do not think that anyone in the system knew that it was happening, until the issue arose in Yorkshire and Humberside when a particular decision was challenged. However, the hon. Gentleman is right: there is an important question mark over why it was possible for the irregularity to continue for so long without being noticed. I think that we need to listen to what Dr Harris says about why he believes that it was possible for it to continue for so long, and to act on his advice.

I declare an interest, as someone who represented a number of individuals under section 12 of the Mental Health Act—and also as someone who is owed money by the state for the work that he did on behalf of such individuals three and a half years ago, but I leave that to one side.

I welcome the drafting of retrospective legislation to resolve this problem, but has advice been obtained on whether the section 12 patients will retain any right to challenge their original detention procedures by way of judicial review?

My hon. Friend makes a very important point. All the patients’ rights to challenge their detention are preserved, with the exception of their rights relating to the technical irregularity over the authorisation of doctors under section 12. If they are challenging any other clinical or legal due-process decision, they are free to continue to do so: that will be completely unaffected by the retrospective legislation.

Can my right hon. Friend explain the position of trusts such as Milton Keynes PCT, which was part of South Central strategic health authority but is now part of East Midlands SHA? I understand that that is one of the SHAs that were affected. Will my right hon. Friend look into whether any issues have arisen from that transfer?

I can reassure my hon. Friend that if any issues have arisen from the technical irregularity involving the authorisation of doctors under section 12, they will be dealt by the retrospective legislation.

I welcome my right hon. Friend’s approach, which is responsible and right. May I urge him to ensure that the review being undertaken by Dr Harris will include the effect of the changes in NHS structures on all relevant provisions of the Mental Health Act—for example, the provision of information about bed availability to courts under section 39?

I shall certainly pass my hon. Friend’s question on to Dr Harris. It is not clear that the irregularity is a result of reorganisations, but I want to give Dr Harris a completely free hand. We shall then listen to what he says very carefully.

I am so sorry, Mr. Speaker.

I am very grateful to the Secretary of State for his statement. Despite the irregularity, sections 2 and 3 of the Mental Health Act give patients an automatic right to a tribunal hearing, and the tribunal will have been able to consider their applications for release.

That is correct. Nothing in the legislation will affect any rights that patients have, except with respect to the technical irregularity involving the authorisation of doctors under section 12.