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Mental Health Act 2007 (Consequential Amendments) Order 2008

Volume 704: debated on Monday 27 October 2008

rose to move, That the draft order laid before the House on 7 July be approved.

The noble Baroness said: My Lords, you will recall that the Mental Health Act 2007 received Royal Assent on 19 July last year. This evening we have to consider a straightforward order that makes a number of amendments to legislation as a result of the implementation of the changes that the Mental Health Act 2007 makes to the Mental Health Act 1983 on 3 November this year.

One of the main changes made by the 2007 Act was to introduce a new, simplified definition of mental disorder. That removes the unnecessary and sometimes unhelpful distinctions between different categories of mental disorder. In future, the powers in the Act will apply to all mental disorders, regardless of the legal label attached to them. This gives rise to the amendments at Articles 4, 5, 6, 8 and 10 of the order.

Another difference will be the increase in the number of professions from which people can be drawn to perform the role of approved social worker. The former will now be approved mental health professionals—AMHPs—who will be drawn from nurses, occupational therapists and clinical psychologists as well as social workers. Articles 3 and 20 of the order are required as a consequence.

Articles 17(b), 18(b) and 19(b), together with Articles 11 to 14, reflect the abolition of after-care under supervision. They take effect on the later date of 4 May next year because the provisions they abolish remain in force until the end of the transitional period for people who are currently on after-care under supervision. I note in passing that that period was extended from three to six months in response to comments from key stakeholders on the consultation version of the secondary legislation.

Articles 17(a), 18(a) and 19(a) insert references to supervised community treatment—SCT—into three sets of regulations about direct payments. This preserves their effect in relation to patients who come under the 1983 Act while living in the community given that the current references to after-care under supervision are being removed.

Article 7 provides that the Mental Health Act Commission takes on an additional function in respect of patients on supervised community treatment. Articles 9 and 15 are simply tidying-up measures. Article 9 revokes some redundant regulations about after-care under supervision in relation to Scotland. Article 15 revokes an old order which amended the Mental Health Act 1983 in 2001 to put right an incompatibility with the European Convention on Human Rights in respect of the powers of the Mental Health Review Tribunal.

That leaves Article 16, which amends the Private and Voluntary Health Care (England) Regulations 2001. These refer to the current Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983 which will be replaced by the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008.

None of the main changes that the 2007 Act brings in on 3 November gives rise to any need for consequential amendments. Similarly, we do not expect to need to amend any other legislation as a consequence of either of the two further measures that we are introducing at later dates. We are on course to introduce the statutory services of independent mental health advocates—IMHAs—in April next year, and our plans are still on track to implement the requirement for hospitals to ensure that patients aged under 18 admitted for mental health treatment are accommodated in an age-appropriate environment, subject to their needs, in April 2010.

On this basis, I hope that your Lordships’ House will approve the order. I beg to move.

Moved, That the order laid before the House on 7 July be approved. 26th Report from the Joint Committee on Statutory Instruments.—(Baroness Thornton.)

My Lords, I should first of all like to thank the Minister for introducing the order in her customary clear and helpful way. Much of its substance is non-contentious and consequential on the 2007 Act, and I do not propose to detain the House by referring to each and every provision.

There are, however, some associated issues, which I hope the Minister will not mind if I raise. The first relates to advocacy. When the 2007 Act went through this House there was strong cross-party support for including a right to an independent advocate for anyone who found himself subject to compulsory detention and treatment. Many of the voluntary sector organisations specialising in mental health reconciled themselves to some of the more difficult provisions in the Act in the knowledge that commitments on advocacy had been made by Ministers. There is, however, an emerging worry that the measures necessary to enable commissioners to prepare for the introduction of independent mental health advocates are not in place, resulting in people with a legal right to an IMHA from April being unable to access one.

What measures are needed? There are perhaps four. The first is commissioning guidance. I should be glad if the Minister could say what progress the department has made in preparing guidance for commissioners, following the example set by Wales. While some good commissioners have taken the initiative on this, I understand that many others will not be building IMHA provision into their 2009-10 plans. There have been signs that the department will not be in a position to publish guidance by the end of this year, which is worrying.

The second measure is effective training. Training with mandatory qualifications was another important element to IMHA development, but again there are signs that it has been allowed to slip. That cannot be satisfactory. A trained and qualified workforce should be seen as a priority, and momentum is absolutely key to the full rollout of such training. The third issue relates to the relationship between advocacy and community treatment orders. There are strong concerns about community treatment orders being introduced several months before the introduction of the legal right to an IMHA. It would be extremely helpful if the Minister could clarify how the transition period is managed to ensure that service users are fully protected.

The final issue is to do with money. No budget announcement about advocacy has yet been made, and I am afraid that this has further contributed to the confusion that exists in the field and to the fact that planning at a local level has been limited. When will an announcement be made on this? Apart from advocacy, the other issue of critical importance to patients and families is access to information. Information needs to be both adequate and appropriate. While the care services improvement partnership has put some fairly minimalist leaflets on its website covering several of the key legal issues, there is no obligation on trusts to make these available to service users, or indeed families and carers. Also the leaflets are not themselves adequate to provide the kind of information that a person, including a member of the public, might need.

Secondly, the statutory information leaflets that are required to be given to patients are not at all helpful. Their language is almost incomprehensible. Patients in this situation are likely to be frightened and on medication. They will also be ill and may have a learning disability. I feel very strongly that these forms should be made available as a simple guide at an appropriate level of literacy so that they can be readily understood. In practice, a nurse or other staff member will sit down with the patient to explain the contents but this may not happen properly and, in any event, it is not in itself enough. People should have ready access to information at all stages so that they become less fearful and more able to talk to staff. Good information aids effective communication with staff and helps them to reach together a better way forward. The 2007 Act introduces a major new regime in CTOs as well as new professional roles, and everything needs to be done to help vulnerable patients to feel secure in this new regime.

Finally, I raise a practical issue—readiness for the 3 November deadline. The Royal College of Psychiatrists tells me that it is concerned that the new detention forms are not yet available and that an insufficient number are being sent to hospitals. Will the Minister look into that urgently? It would be better if the forms were available on the website and could be downloaded as PDF files, instead of having to be ordered and paid for as paper copies when, in all probability, there will not be enough of them anyway.

In advance of the Act commencing, the forms need to be sent out or otherwise made available to practitioners who may be involved in sectioning patients. We must all hope that, as the provisions of the Act come into force, practitioners administer it in a way that ensures the maximum dignity and autonomy for patients. Some of us fear that defensive practice may kick in and that the Act may be applied in ways that may not be in the best interests of patients and others. We hope that CTOs will be used only as intended, and that they will not lead to a rise in the overall use of coercion in the care and treatment of those with mental illness. If that were to happen, the consequences in increased stigma and discrimination against mental health patients would undoubtedly be damaging.

My Lords, I am a Member of your Lordships’ House who lived life to the full through the whole passage of the Mental Health Act 2007 and the various consultations and pre-legislative discussion that preceded it. Your Lordships will recall that at one stage it was expected that there would be a completely new and self-contained mental health Act but, in the end, the Government opted for an Act that is not self-contained but, none the less, makes important amendments to the Mental Health Act 1983 and other Acts.

I did not have strong views on that point because I found that we were able to make substantive amendments in the form of new additions to the 1983 Act. An example is Section 31 of the Mental Health Act 2007, adding a new Section 131A to the Mental Health Act 1983 on age-appropriate accommodation for children.

In the 2007 Act, we achieved points of substance, but I welcome the order tonight, which is, as far as I can see, wholly consequential and technical, because I attach importance to completing everything that we set out to achieve in the 2007 Act. This is part of that programme. I would also welcome hearing the Minister's comments on the points raised by the noble Earl, Lord Howe, on some of the substantive matters.

My Lords, as the noble Lord, Lord Williamson of Horton, said, the order is not particularly contentious; it is, as its name implies, consequential. However, it would be wrong to allow the opportunity to pass without pointing out one or two important issues referred to in the order, although not dependent on it, and one or two things that are not in the order but which are raised by it.

First, as the noble Baroness pointed out, we have the removal from the Act of the terms, “impairment”, “severe mental impairment”, “psychopathic disorder” and “mental illness” and the substitute of the term “disorder”. I do not know whether legally that makes an enormous difference, but I fear that it tends towards imprecision in people's understanding of what they are dealing with.

There is a fundamental difference between a person who, because of damage or disturbance at or before birth, is permanently incapacitated in their functioning mentally and emotionally in a way that is not repairable for their lifetime and a person who, for example, in their later teenage years, begins to show traits which they then continue to exhibit over the rest of their life, which we could call a disturbance of personality. That is, in turn, completely different from the acute disturbance where someone who has previously been well falls ill. That may be transient—for a few days; it may be relapsing; it may be chronic; it may be profoundly severe; it may affect the personality much more profoundly in the case of a psychosis than in the case of a neurosis.

Those are differences and if by substituting the single term “disorder” we are encouraging people to ignore the differences between those things or to think them unimportant, we are not doing anyone a great favour. We will find that in 20 or so years’ time, people will come back to change the provision. Those are important differences, not just from the point of view of treatment but legally, because they make for a very different legal issue—so different that in the Northern Ireland Act in the early 1960s, the notion of personality disorder being included was unacceptable. Northern Ireland legislation was quite different from legislation on this side of the water because of a different view. I do not think that psychiatrists in Northern Ireland ever regretted that difference.

Although moving to a single term may be unobjectionable, I have substantial reservations about it. I rather think that we will live to regret it and those of us who live long enough will live to see it changed.

The second issue referred to by the noble Baroness is the replacement of “approved social workers” with “approved mental health professionals”. There are substantial potential benefits in that change, in that it opens the opportunity for a wider number of professionals to be involved in some important decisions, but we must not forget why social workers were specified in the first place. The reason was that we wanted a professional who would not only understand the disturbance of the individual but have a sense of their social background. The person was meant to be there in loco of their relation. The wife, husband, mother or father was unable to be there for whatever reason, so the social worker was there as someone who understood not only mental illness and the illness of the person involved but the family and the family context.

If we are now to have a range of professionals involved, many of them in their practical training will not necessarily have the same appreciation of those issues as social workers in their training. I know that training is being put in place for that, but we need to understand that this is not a part of the core professional training of some people who will be involved. That needs to be kept in mind. When we move further down the line to regulation of others, such as psychotherapists, there is no reason why they should not be included in this list, but the same problem will arise. We need to pay attention to that.

The noble Earl, Lord Howe, also referred to the question of independent mental health advocates. That was a very important development. Noble Lords will all recall the serious discussion about problems of consent and compulsion in relation to treatment—especially, but not exclusively, community treatment orders. There was a general sense—not entirely erroneous, I think—that some of the pressure for the legislation that came before us came not from the health department but from another department where the issue was about justice and order in the community. Therefore, there was felt to be a very strong need to have independent mental health advocates. Why? Because those who are mentally ill are vulnerable and often need someone who can speak on their behalf, someone who is not detained, someone outside who has the freedom to access information.

It is a little disturbing that we find that the compulsory elements in the community treatment orders and other legal matters are coming into place shortly, but advocacy is left to the side in commissioning guidance, effective training, budget allocations and the whole question of the relationship to CTOs. It is not unreasonable for us to seek some assurance from the Minister that that will all be attended to. Otherwise, we will have to come back in some other context to press the issue.

It is entirely possible that the community treatment orders will be dealt with in a fashion that is helpful to patients and professionals and reassures families. The noble Earl referred to his confidence that nursing staff, when the patients are in hospital, or other staff, when the patients are outside hospital, will manage to conduct the legal form in such a way that the patients will be looked after properly, humanely and thoughtfully and not compelled inappropriately. I do not wholly share that confidence, not because I believe there to be a lack of professionalism or because I lack confidence in the integrity of my professional colleagues in psychiatry, medicine, nursing, social work and psychology, but because I am very aware as a practising psychiatrist of the pressures under which all these healthcare professionals are working. Those pressures are substantial and are not diminishing. Nor will they diminish in the next while, and I fear that they will encourage people to take short cuts and to allow the rather compulsory component inherent in the legislation to take pride of place.

The noble Earl speaks about the nurse explaining everything to the patient. Of course that is what the nurse wants to do. Indeed, the nurse tries desperately to create the space in which to do it. However, when there is a shortage of staff and staff sickness, and agency staff are in—all the sorts of pressures that are the reality of mental health in-patient care—it is not so easy to be optimistic that it will be done in quite that way.

Finally, the availability of the form was mentioned. It is not unreasonable that forms and information of various kinds should be readily available on the internet. This is not the kind of form that is likely to be abused or misused. There is no real reason why it should not be readily available. I can see many a junior doctor or other professional trying to get a form at 12 o’clock at night. Rather than scrabbling through filing cabinets and drawers to find out where the last one was put and finding that the secretary to the ward, if such a thing existed, had not replaced the last form that was used, they can just get on to the internet and download and print the form. I see no reason why they should not immediately be made available and accessible on the internet, with all the other kinds of information that were mentioned earlier.

I applaud the Government for trying to ensure that more and more government information is available on the internet and that there are more and more opportunities for healthcare staff to use the internet. This is laudable, but here is an opportunity to put this into place. If patients could see what is on the forms, what would be wrong with that? Families could see what the form looks like and what information is asked for. There is no disadvantage in that. It is transparent and open, which is only to be welcomed.

My Lords, I am grateful for the thoughtful contributions to this debate. I know that many noble Lords have strong views on mental health and a great deal of expertise in it. I shall pick up some of the key points that were made.

The noble Earl talked about three issues: advocacy, information and the forms. The decision was taken to bring the provisions on IMHA services in England into force in April 2009 because of the need to develop suitable training and commissioning arrangements for those services. That is still the case. Although there is no statutory requirement for services to provide independent mental health advocacy support before April 2009, advocacy provision is already available on a non-statutory basis from a number of agencies, and we expect these arrangements to continue.

The noble Earl also asked whether there will be additional funding for advocacy. We are committed to funding independent mental health advocacy, and funding for this, together with commissioning arrangements, will be announced later this year.

On the delay in announcing funding and commissioning arrangements for the services, we have publicly said that these services will be introduced in England in April 2009, and that is still the case. The commissioning arrangements will be announced shortly, and to support the process, comprehensive guidance for commissioners will also be published shortly.

The noble Earl asked whether primary care trusts or local authorities will commission the services and why there has been no announcement. We consulted on this. Different people have different views on who should commission IMHA services, so we want to ensure a system that offers maximum flexibility but delivers a high-quality service. We will announce our conclusion about those arrangements at the same time, so the announcement will be part of the same package.

The noble Earl and the noble Lord, Lord Alderdice, talked about supervised community treatment. We see this as an improvement to after-care under supervision, and we see no reason to delay its implementation on account of the need to take longer to prepare for the introduction of advocacy.

Clearly, IMHAs have to have appropriate training and experience. This will be set in regulations, and we are developing training materials for precisely this purpose. I will confirm the timetable for that later, as I am not absolutely certain at the moment.

Both noble Lords talked about information, which is extremely important for patients and their families. Section 132 of the Act places a duty on hospital managers to provide information to patients both orally and in writing. To help them, the department has provided updated leaflets, which are also on the Department of Health website. Although the use of those leaflets is optional and managers’ own materials can be developed, the materials are there and there is a duty on managers to provide them.

I undertake to look into the availability of the forms, as that is clearly very important, but the information that I have at the moment suggests that the forms have to be purchased. The contractors have assured us that they will be dispatched and that there is no need for panic ordering.

I thank the noble Lord, Lord Williamson, for his kind remarks and for the work that he did, among others, during the passage of the Bill.

I will resist the temptation at this stage to reopen some of the issues to which the noble Lord, Lord Alderdice, referred in his broader comments, such as the definitions and approved mental health professionals, partly because of the time, partly because noble Lords here are significantly more experienced in these matters than I am, and partly because, as the noble Lord, Lord Williamson, said, it is probably not appropriate to reopen all those discussions while we are seeing this through.

On that basis, I hope that noble Lords will be content with this draft order.

On Question, Motion agreed to.

[The Sitting was suspended from 8.08 to 8.40 pm.]