Health and Social Care Bill

My Lords, noble Lords have spoken passionately about the need to support patients who are particularly vulnerable. These are complicated areas, and I am happy to write to noble Lords to clarify what is intended in the Bill and to address their specific questions if I do not answer them in what I say here. The Bill makes a number of essentially consequential amendments to the Mental Health Act 1983. The Government are also taking the opportunity to remove a few redundant powers and to make a small number of changes to that Act. That is the intention. This is not a major shift; these are meant to be tidying-up changes. However, if they have unintended consequences, it is important that they are flagged up, and I hear what the noble Lord and other noble Lords said. The principal changes are the change in the responsibility for commissioning independent mental health advocates from the NHS to local authorities and the change in the requirement that a second opinion must be given even where patients on supervised community treatment consent to their treatment. This condition does not apply to patients who are detained in hospital and is contributing to the major difficulties that the Care Quality Commission is experiencing in managing the second opinion appointed doctors service. The Government are also taking the opportunity afforded by the Bill to make a number of changes to the Section 117 of the 1983 Act. The first amendment in this group, which was tabled by the noble Lord, Lord Patel of Bradford, addresses that. The main change is to transfer the duty on primary care trusts to commissioning consortia, but the clause also takes the opportunity to align the duty in Section 117 more closely with mainstream NHS legislation. That is the intention. For example, it gives the Secretary of State the power to make regulations that say which consortium is to be responsible in any given case. That will allow us to end the current anomaly that sees some PCTs responsible for Section 117 aftercare for patients whose other needs are the responsibility of a different PCT. Regulations could also say that, in particular circumstances, the NHS Commissioning Board is responsible rather than the consortium. That would allow us to prevent consortia ending up having to commission services that are normally commissioned by the board just because the patient happens to qualify under Section 117. The noble Lord, Lord Patel, spoke very persuasively about the need to avoid this clause having unintended side effects, and I can confirm that that is certainly not the Government’s intention. I am very happy to meet the noble Lord to discuss these issues further. On co-operation with the voluntary sector, we need to consider consistency with other services that CCGs will commission in order not to give in some way a distorted picture of when CCGs should work closely with the voluntary sector. Nevertheless, I am happy to have further discussions on this point. On charging, which is clearly a significant concern of the noble Lord, the Bill does not change the current situation. Patients will not have to pay for any care under Section 117. I hope that I can reassure the noble Lord on that point. The second amendment in this group was tabled by my noble friend Lord Marks and is about access for children who come under the 1983 Act to the services of an independent mental health advocate. Section 130C of the Mental Health Act 1983 already gives the same right of access to such an advocate to all qualifying patients, including children. Making special provision for minors might give the impression that other qualifying patients should have lower priority for access to such services. Our aim is that every vulnerable person who comes under the major provisions of the 1983 Act and wants the support of an advocate should have one. That should, of course, include every child and young person, but it should also include everyone else as well. The current law not only supports the aim of this amendment in respect to children but does so for all vulnerable people of all ages. Thirdly, Amendment 237A, tabled by my noble friend Lady Barker and others, seeks to make a further and very significant change to the 1983 Act. It would introduce a new criterion of impaired decision-making into just one of the areas which that Act covers, that of supervised community treatment. Many of your Lordships will recall the much more extensive debates on this subject both in your Lordships’ House and in another place during the passage of the Mental Health Bill in 2006. Such a change would potentially have wide-ranging impacts on the working of the Mental Health Act and would need careful and detailed reconsideration. At that time, the proposal was to introduce the criterion for detention under Part II of the 1983 Act as well as for SCT. Introducing it for SCT alone would run the additional risk that those with less insight could benefit from SCT while those whose decision-making was not impaired could continue to be kept in hospital. We feel that it is too soon after the debates of 2006 to be making more major changes to the 1983 Act. Although I was not directly involved in those debates, anybody who was in this House could not but be aware of them. I certainly was. It was a very controversial area. I hear what my noble friend and others have said and I assure my noble friend and others that we will continue to review this. In fact, all government Bills receive post-legislative scrutiny within five years of receiving Royal Assent. I can confirm that we will be doing this for the Mental Health Act 2007 next year, so we will be reviewing the Act shortly, although we do not expect any further legislation on this topic in the imminent future. Nevertheless, I commit to the review, and we will then have to see what happens as a result of that. I hope that noble Lords will in due course be prepared not to press their amendments in these areas. I hope that we can continue to discuss the areas where there may be unintended consequences so that these can be addressed.