My Lords, I am speaking to Amendment 128A which affects Clause 71(5) that aims to provide a definition of “after-care services” as they relate to the Mental Health Act 1983.
We had an extensive debate on this clause in Committee and as a result the Government have tabled their own amendment. I am grateful to the Minister for Care and Support, Norman Lamb, and his officials for taking time to meet me and discuss my concerns about this clause. During the debate in Committee, I highlighted the importance of Section 117 in providing a comprehensive care package of health and social care services to a very specific and extremely vulnerable group of patients when they are discharged after detention in a psychiatric hospital. Without appropriate community health and social care support they may relapse, come to harm or even present a risk to others.
In recognition of the inherent vulnerability of these patients and the risks involved, and to encourage take-up by them, after-care services under Section 117 have required local authorities and clinical commissioning groups to provide after-care services free of charge and are deliberately not defined in statue, as there is a wide range of services that a detained patient might need in order to leave hospital and live in the community. Mental health professionals need to have the widest flexibility possible to devise creative care packages to keep patients who have been detained well and prevent them relapsing. The concept appears well understood by both health and local authorities and has been for over 30 years.
There is also a clear public health policy purpose behind Section 117, which is to help get vulnerable people out of hospitals and back into the community. No one should remain in hospital any longer than they need and after-care services should be provided to enable a safe discharge and to avoid all the emotional harm and exposure of a deterioration. This is vital to prevent our hospitals being bedblocked—I am sure that all noble Lords saw the news headlines this morning about the severe lack of in-patient psychiatric beds. So what does this clause do and why?
Clause 71(5) proposes to provide the first ever statutory definition of after-care services, but it is a narrow definition which I and many others believe will be detrimental to patients’ welfare. For example, an
after-care package may include daytime activities, welfare benefits and financial advice, residential accommodation and medication. However, if the proposed definition is introduced, after-care providers may argue—I think they will argue—that it is only the provision of psychiatric medicine that meets,
“a need arising from … the mental disorder”,
of the person.
I accept that the Government have made some concessions on this issue. For example, concerns were raised that the definition in the Bill refers to, “the mental disorder”, which might refer only to the medical treatment of a single diagnosis, rather than looking at a person holistically. In response to these concerns, amendments have been tabled by the Government to make it clearer that Section 117 after-care services are to meet needs,
“arising from or related to the person’s mental disorder”.
That can mean one or more mental disorders, and not necessarily the mental disorder for which the person was detained in hospital for treatment. While this concession is, of course, welcome, and the current proposed definition is wider than that set out in the draft Bill, I still remain extremely concerned about the risk of confusion, litigation and delays, which is why I have tabled my amendments.
Noble Lords will be very relieved to hear that I will not repeat the many reasons I have for tabling Amendment 128A; I simply want to give two very clear reasons why this amendment should be accepted. First, I want to challenge the basis on which the Government have introduced this definition and say why it is wrong. Secondly, I think that the definition, even with the Government’s amendment, remains problematic and harmful to patients.
The Government have clearly stated that they have put this definition into the Bill following the recommendation from the Law Commission’s report Adult Social Care, a recommendation that is based on the Law Commission’s concerns around one case, Mwanza v the London Borough of Greenwich in 2010. I am not a lawyer, but I had a nasty feeling about this case, so I contacted the counsel, Nicholas Armstrong from Matrix Chambers, who actually represented Mr Mwanza in this case, to get his views. I am extremely grateful for his time and the explanation he gave me. Suffice to say he was very concerned to hear that the case is being used in this way. He informed me that there were a number of issues that make this case unique and unrepresentative, explaining that,
“this is a very unstable basis on which to disturb a provision of primary legislation that has benefited many and operated largely without difficulty for 30 years (rather a long time in these areas of law and, some might feel, a testament to its success)”.
I have shared the full contents of the communication from Nicholas Armstrong with the Department of Health so that it can clearly see the issues and concerns that Mr Armstrong has raised about his own case. Most importantly, he states:
“Mwanza was highly unusual and complex. First, it is critical to recognise that it was a migrant case. The family had no immigration status and so were cut out of mainstream benefits and sources of support, including housing. Their possible routes
to support and, in particular, accommodation were therefore very limited. Normally, accommodation is not an issue because people get it from any number of other routes. Not so here . . . Second, the Section 117 issue had to be addressed here, despite how difficult it was, because of the way the other possible route to accommodation (Section 21 of the National Assistance Act 1948), works. That provision cannot provide accommodation if there is an alternative. Hence, to resolve where a Section 21 duty was owed, the court had first to decide whether Section 117 applied . . . We were, in other words, only in Section 117 at all because of the way the migrant exceptions work.”
The situation was then complicated by the detention under Section 3 many years earlier—about eight to nine years prior to this case—and it looked like the duty had not been discharged properly by the local council. Nicholas Armstrong continued:
“It is critical to recognise that it was a disabled migrant case where another local authority wanted to avoid liability under Section 21 of the National Assistance Act 1948, and we had to resolve the Section 117 question because we could not get to Section 21 unless Section 117 was definitely not in play . . . That was a pretty rare set of circumstances. So far as Section 117 is concerned, Mwanza is a permission decision only. It was fully argued but it is not binding, even on courts below the High Court”.
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As Nicholas Armstrong says, I am not convinced that this is a very stable basis on which to disturb the provision of primary legislation that has benefited many and operated largely without difficulty for the last 30 years. I accept that some effort has been made to address the issue by devising the Care Bill’s Explanatory Notes, but I do not think that goes far enough. In fact, this just highlights for me how unclear and confusing the proposed definition is—if you need Explanatory Notes to clarify something in the Bill, why are you doing it?
Even putting Mwanza aside, I have consulted widely on the proposed definition, and I must say that so far only the Department of Health officials and the Law Commission believe that this is the way forward. No one operating in the mental health field that I have spoken to, no experts or professionals, agrees that this is the right way forward. I have had discussions with, among others, representatives from Mind, the national mental health charity, the mental health and disability committee of the Law Society and the Mental Health Lawyers Association, all of which have reached a consensus that, even with the extended Explanatory Notes, they still believe that the best outcome would be to remove Clause 71(5)(a). The Care and Support Alliance, representing over 70 organisations, after having taken extensive legal advice, firmly believes that paragraph (a) is too restrictive.
The reasons for this are that, first, the proposed definition as it stands is too restrictive and will not clarify the purpose or content of aftercare packages; rather, it will narrow and limit the services that can be regarded as aftercare services, so it runs the risk of imposing a medical model. Secondly, it opens the way for legal disputes and conflicts about whether or not a service is directly linked to a person’s mental disorder, and there is a real risk that aftercare services will be narrowly interpreted, encompassing only health provision.
I have a whole batch of real case examples provided by Mind and others although, again, I will not share them with the House today. Given all these points and
all the consultation that I have done, my preference would be for the Government to delete Clause 71 altogether. However, if a definition is to be introduced, it must retain a broad, flexible approach. Therefore, in the spirit of co-operation, which I know that the Minister always aims for, and in trying to reach a way forward, I propose Amendment 128A, which once again I urge the Government to consider seriously. I beg to move.