My Lords, my amendment affects Clause 68(5), which aims to provide a definition of aftercare services as they relate to Section 117 of the Mental Health Act 1983. It was only just over 12 months ago, while debating amendments to the Health and Social Care Bill, that I was concerned about elements of that legislation affecting Section 117, which could have had a detrimental effect on the recovery of mental health patients. So it is a little disappointing that we have to rehearse some of those earlier arguments again today.
I must make it clear from the outset that this is not a probing amendment, nor does it seek assurance or clarification. It is an amendment that I believe is essential, and unless the noble Earl or the noble Baroness can persuade me of a better form of words, they should look to accept it. I will also tell the Minister from the outset that we are on the same side on this issue. We both want the same outcome, which is that this extremely vulnerable group of people covered by Section 117 gets access to all the help and services that it needs.
As the Minister outlined in his speech at Second Reading, the Government have already redrafted the original wording of the clause in response to the many concerns of mental health organisations in the country. However, it is clear to me and to them that we still need to do more to protect and safeguard this essential statutory provision. I apologise if I speak at length on this amendment, but it is essential that I make my case. I will try to be as logical in my arguments as possible; therefore, I will first outline why Section 117 is a unique statutory provision and needs the protection that Parliament intended it to have.
Secondly, I will highlight what the current drafting in the Bill does and why it will result in a detrimental effect. I shall conclude by explaining what I am proposing and why. I have taken time to explore many of the arguments and must thank the Care and Support Alliance, a consortium of more than 70 organisations,
including Mind, the national mental health charity, which has been leading the charge on this issue. I also place on record my sincere thanks to members of the Law Society, especially Sophy Miles, the chair of the mental health and disability committee and counsel from the Mental Health Lawyers Association. It is also important that the Minister knows that I have received advice from Nicola Mackintosh, a principal solicitor, who is widely recognised as a national expert in community care, health and mental health law. I have taken seriously all their views on this issue.
First, what is Section 117 of the Mental Health Act all about and why is it unique? As noble Lords will be aware, that section concerns the provision of aftercare services for people who are discharged from hospital treatment after a period of compulsory detention in hospital. Parliament placed a joint duty on health services and local authorities to provide that aftercare. The group of people to whom Section 117 applies are the most vulnerable in the mental health system. They have been detained in hospital for psychiatric treatment following an established diagnosis. There are two groups, one of which is made up of those detained under Section 3 of the Act, and the other of those detained by the criminal justice system for in-patient treatment. It is likely that those in both groups will have had extensive previous contact with psychiatric services and support, which have failed them and been unsuccessful, hence they require longer-term detention for treatment.
These are therefore groups at the highest level of vulnerability because of risks to themselves, including their own health, or others. They are in a special group that has been recognised by Parliament as such. Among the statutory provisions in community care and healthcare law, Section 117 is unique in several respects. First, it relates to the duty owed to a particular individual. Secondly, it arises only in limited circumstances and for a very specific group of people, and is not a target duty. Thirdly, it is a joint duty placed on the relevant health authority and the social services body to work together to provide appropriate aftercare services, free of charge and for as long as necessary, and to sort out the funding between them. The aim has been to ensure that the group of people to whom the duty is owed receives the services at the time that they are needed, thereby avoiding extensive disputes about whether health or social care agencies are responsible.
Exactly which services are provided will depend on the individual’s needs and can vary greatly. The mental health code of practice stipulates for patients:
“As well as meeting their immediate needs for health and social care, after-care should aim to support them in regaining or enhancing their skills, or learning new skills, in order to cope with life outside hospital”.
The code goes on to provide a fairly comprehensive list of factors for professionals to consider when creating an aftercare package. These include patients’ psychological and mental health needs, physical healthcare, daytime activities, appropriate accommodation, assistance in welfare rights and managing financing, social and cultural needs and specific needs arising from drinking alcohol. The services cannot be withdrawn until both
the health body and the local authority are satisfied that the patient no longer needs them.
Let me give a real case example. A man was sectioned in 1996 when he was very unwell. Since that time, he has been stable and in receipt of joint supervision and support by the then primary care trust and social services. He lives in a London borough and qualifies for Section 117 aftercare because he was previously detained under the Mental Health Act. He is in a supported placement funded by social services. His social services care co-ordinator decided that he could be discharged from the care home and that there should be a review of the duty under Section 117 to provide aftercare. However, the patient’s psychiatrist strongly opposed this move, stating that his condition was only partially controlled by medication and that he continued to have challenging behaviour as a result of his condition. The psychiatrist strongly believed that the joint duty was still required, as was funding under Section 117, because the patient needed the supervision and safe environment that was provided in the care home. As a result, that duty to the patient has remained and he continues to reside in the care home. This example shows that the effective healthcare being provided to keep the patient stable and safe was directly dependent on the social care. However, social services saw only that he was managing in the supported setting, which led to the suggestion that he should move on, which could have resulted in a deterioration in his health and well-being, and eventually to his being readmitted to hospital. Without the joint duty, a decision could be taken regardless of the views of a patient’s medical team.
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This example shows that the duty under Section 117 is not indefinite. It continues only until such time as both statutory agencies decide that the person is no longer in need of aftercare services. For some people this will be a short period of time, for others it will be longer, but the point is that the duty is unique because the client group is unique. As Lord Justice Buxton stated in the Court of Appeal stage of the Stennett v Manchester City Council case it applies to an “an exceptionally vulnerable class”.
There is also clear public health policy and purpose behind Section 117—to help get vulnerable people out of hospitals and back into the community. I am sure noble Lords will agree that no one should remain in hospital any longer than they need and that aftercare services should be provided to enable a safe discharge and to avoid the emotional harm and expense of deterioration. This is vital to prevent our hospitals becoming bottle-necked. As we all know, it is more cost efficient to work with people in the community than in hospitals. I would argue that Section 117 focuses on ensuring the well-being of some of the most severely vulnerable people in our communities, which is in line with the principles of this Care Bill.
So what does the Care Bill do? What is my issue with Clause 68(5)? The subsection introduces a new, two-part statutory definition of the aftercare services provided under Section 117 of the Mental Health Act. There may have been some concern among the
Government that there was no definition of “aftercare services”, as if this was an oversight that needed to be addressed. However, let us be clear, there was no error and no oversight. The aftercare services in Section 117 were deliberately not defined by Parliament. This is because there is a wide variety of mental disorders and the ways in which they manifest themselves require the most flexible approach to meet a person’s needs and it would be nonsensical to bind the hands of professionals in deciding what services should be provided. Aftercare packages will be different for each person and should be developed based on the needs of each individual. Flexibility in the definition was therefore essential as it would be impossible to list all the potential services that could make up these individual aftercare packages.
Clause 68 as it stands would result in this carefully crafted provision being stripped of its content. Disputes could arise as to whether services were required simply because of a physical as opposed to a mental disorder. There could be a split in the service entitlement between physical and mental symptoms, and expensive litigation between authorities as to what was meant. There could also be far more disputes between health and social care agencies because the definition would be more restrictive than now.
Amid all this, the person concerned would be stuck in the middle, needing essential services to be safe and well cared for and yet unable to be discharged. This will cost the taxpayer far more and fail the very group Parliament intended would be served by this provision. Hospital beds would be blocked by people unable to be discharged because of funding disputes and arguments about whether a need fell within the amended definition. This is not progress and will do much to undo the good work that has been done in ensuring that people receive the services they need, for both their sakes and for others.
Let me give a real case example of the kind of issues that could arise. A man has a severe anxiety disorder and depression. He lives in a residential care home. He has been admitted to hospital because he has become incontinent when anxious and this has resulted in an infection. In hospital he becomes more anxious and attempts to self-harm on several occasions. He is then detained under the Mental Health Act. An assessment is undertaken which concludes that he needs nursing care and not residential care. However, there is then a dispute between health and social care about whether his nursing needs are a result of his mental disorder or a physical health problem and who is responsible for them. He remains in hospital unnecessarily for weeks without a decision being made because of the stand-off. Eventually, through threatened legal action against both health and social care agencies, reminding them of their joint obligations under Section 117, they agree a way forward which results in him being discharged from hospital to a place which meets his needs and releases a hospital bed.
I think that example demonstrates that vulnerable people may be detained in hospital for longer than necessary while disputes are settled and that they are usually not in a position to fight for aftercare services when disputes such as this arise. Moreover, if it is decided that elements of care do not fall into the remit
of Section 117, the person may have to go through difficult and lengthy financial assessments at a time when they should be focusing on their recovery. If people are asked to pay for a service on discharge from hospital, in my experience, they may well choose to go without the service, and without the right aftercare people are likely to become very unwell and risk falling out of society and being subject to more compulsory treatment.
Why, then, are the Government doing this? Minsters accepted my arguments and amendments to the Health and Social Care Bill regarding Section 117 of the Mental Health Act. In fact, the Minister, the noble Baroness, Lady Northover, stated during the Health and Social Care Bill debate,
“the Government have no plans to bring in measures that would change the position on charging for Section 117 services”.—[Official Report, 29/2/12; col. 1368.]
That assurance was very welcome. Yet here we are again, facing significant changes to the definition of aftercare that could remove these services from very many people.
I am not 100% sure what the Government’s decision is based on, but I fear that they are being influenced by what I and other legal experts consider to be a very unusual case that clearly does not reflect the vast majority of Section 117 cases: R (Mwanza) v the London Borough of Greenwich in 2010. I argue that this statute should be decided not by such an unusual case, but by Parliament.
The Minister will be aware that Mr Mwanza was an illegal overstayer who tried to use a Section 3 admission eight years earlier, and nine years after his discharge from hospital, to obtain free accommodation. However, perhaps rightly, the judge decided that he was not entitled to Section 117 help, because the decision had already been made to terminate Section 117 services, and the judge took the view that Section 117 services must,
“meet a need arising from a person's mental disorder.”
I disagree, because it suggests that the focus of Section 117 should be only on the mental disorder of the patient. As I have previously stated, Section 117 cannot just be tied to the needs around the mental disorder. It should be tied to the overall needs of the person for both healthcare and social care, to enable them to get out of hospital and back into the community as quickly as possible.
Let me give a hypothetical but typical example of a case that could arise where there is a dispute and a narrow definition of aftercare is adopted. A man with a diagnosis of schizophrenia is detained under the Mental Health Act. To be discharged into the community he needs welfare benefits advice and floating support for managing his flat, his bills and his daily activities so as to keep appointments. The local authority says that the floating support and welfare benefits advice are generic services that are needed by many people, not just those who have been discharged from a mental health hospital. These cannot be described as needs relating to or arising from the mental disorder that resulted in the man’s detention. The local authority
therefore argues that they are not Section 117 services, and he must be means-assessed to pay for them if he requires them.
What I find worrying is that some local authorities have already used the Mwanza case to argue that social care services should be excluded from Section 117 care packages. We know that during times of economic austerity such as these, local authorities will try to reduce their responsibilities for service provision if they can. A prescriptive definition of aftercare services may allow them to do that. A recent survey of 81 councils found that almost half said they were planning to reduce spending on care services for adults, specifically those with learning disabilities or learning difficulties. Eight have already scrapped care for those deemed to have moderate needs, leaving thousands of vulnerable people with reduced support.
Mind has provided me with details of two current cases that I believe clearly demonstrate the problems and show that local authorities will sometimes refuse to provide care services until they are legally required to do so. The first case is about a woman who was detained for many years with a diagnosis of personality disorder. The local authority only wanted to fund partly supported accommodation when she clearly needed 24-hour accommodation. The local authority was willing to fund the much needed accommodation only after a letter threatening legal action. This delayed the woman’s discharge for months.
The second case is of a man who was granted a deferred conditional discharge by a tribunal, but could not be discharged for many months since the local authority refused to fund aftercare accommodation and look for an appropriate community psychiatrist. Once again, after many letters, phone calls and a letter before legal action, the local authority conceded and the man is likely to be granted a conditional treatment discharge next week. These cases show why it is important not to let one unusual case form the basis for a statutory definition of aftercare for Section 117.
I am sorry because I am going on a bit, but another five minutes would allow me to lay out this important argument very clearly. I will quickly say that the House of Lords, in contrast to Mwanza, agreed in R v Manchester City Council ex parte Stennett with the definition in a previous judgment that aftercare services,
“would normally include social work, support in helping the ex-patient with problems of employment, accommodation or family relationships, the provision of domiciliary services and the use of day centre and residential facilities”.
That is more in line with the code of practice. I have a real problem with the use of the definite article and the term “mental disorder”, which I will come back to when I respond to the Minister. I think there is a real problem with that.
Ideally, I would like to delete Clause 68 completely and the whole idea of setting a definition of aftercare. Reluctantly, I have not gone down that road, as I suspect the proposal would fail. However, if there must be a definition, I would strongly argue that it must be as wide as possible. The amendment that I have proposed to Clause 68 would ensure that the focus on aftercare is on preventing readmission to
hospital, whether that requires social care services, health services or, most likely, both. I do not believe it is necessary to state that services must meet needs arising from, or related to, mental disorder, since the aftercare package will be reviewed at regular intervals as a person’s mental health improves. If it is no longer needed, then there will be a reassessment by social care.
Section 117 provides a vital level of protection for vulnerable people with mental health problems. The impact of diminishing this duty should not be underestimated. I apologise for going over time.