New
Clause
3
Duty
to assess needs
‘(1) The 1983
Act is amended as
follows—
(2) After
section 1
insert—
“1A
Assessment of needs for health and social care
services
(1) Where it appears
to a local authority or a health authority
that—
(a) any person
with a mental disorder for whom they may provide or arrange for the
provision of community care services may be in need of any such
services, or
(b) any person
with a mental disorder may be in need of services which are
commissioned by the health authority in respect of mentally disordered
persons—
the authority
and the health authority shall carry out a joint assessment of his
needs for those services; and having regard to the results of that
assessment, shall then decide whether his needs call for the provision
by them of any such services.
(2) Where a local authority or health authority
receives a request for an assessment under subsection (1) in writing
by—
(a) the person with
mental disorder,
(b) the carer,
(as defined under section 1 of the Carers and Disabled Children Act
2000(c.16)),
(c) the person who
is or who would be the nearest relative,
or
(d) an approved mental
health professional
the
authorities must comply with subsection (3)
below.
(3) The requirement
referred to in subsection (2) above is to give notice, before the
expiry of the period of 14 days beginning with the day on which the
request is received, to the person who made the request of whether the
health authority and local authority intends to undertake the
assessment; and if the intention is not to undertake the assessment, of
the reason why that is the case.”.’.—[Sandra
Gidley.]
Brought
up, and read the First
time.
Sandra
Gidley (Romsey) (LD): I beg to move, That the clause be
read a Second time.
The clause is a straightforward
attempt to introduce a duty on health and local authorities to assess
the needs of people with mental health problems, when appropriate, and
to respond to written requests for assessment by certain key people
within a fixed period. It provides also that clear reasons should be
given for refusal.
The Scottish legislation has
been referred to many times, and this will be another such occasion. In
Scotland, a provision has been introduced whereby health and social
services must respond to a reasonable request for assessment within 14
days. The response must take the form either of arrangement of an
actual assessment or of written reasons for refusal.
Throughout our sittings, the
Minister has admitted from time to time that past mental health
provision in many areas was not good enough. I concede that things have
to a certain extent improved, but there is a long way to go before they
are good enough, and there are many parts of the country in which
people do not have access to services. The patchy nature of access to
mental health services means that in many respects it would be in the
Government’s wider interests to have a mechanism whereby they
could collect data indirectly on service availability. There are
precedents in other Bills for providing such assessments. The Minister
worked on the Adoption and Children Act 2002, which introduced a duty
on local authorities to assess the needs of children who are being
adopted.
5.45
pm
In other areas
of legislation, the Government have accepted the principle that there
are occasions when there is a need for an assessment. The argument has
been advanced that that somehow gives people with mental health
problems greater rights than those with a physical health problem. That
is not a robust argument because, for far too long, people with mental
health problems and service users have felt that they do not have
access to services and that they are the underdog when it comes to
provision. The new clause would go some way to reassuring service
users, who are quite worried by some of the compulsion aspects of the
Bill, that if they come forward, their needs would be looked at in a
wider context.
I shall quote a case story that
does not involve a made-up Lily, Ruth or Mary. Lesley Savage is the
mother of Daniel Gonzalez, who was convicted of killing four people in
September 2004. She said that the family had made a hundred attempts to
get help at various times and
that
“We cannot list
every phone call that went unanswered, every letter that went astray,
every contact with a professional who told us they could not help or
who passed us on to someone else. We cannot list here the ever-changing
diagnoses that were offered, the ever-changing advice we were given,
the lost and wrongly recorded notes that misled us and the
professionals.”
If the
Government are serious about preventing that sort of situation,
providing an assessment would go a long way to allaying the fears of
that mother, and the realistic fears of others who are in the
system.
Section 47 of
the National Health Service and Community Care Act 1990 already
provides for a right to assessment for vulnerable people. The key
mechanisms for enforcing that are the Commission for Social Care
Inspection and the Healthcare Commission. In practice, section 47
assessments are severely limited. They are led by social services and
focus on the need for community care services. In some authorities,
assessments are carried out by a separate “adults with
disabilities” team, which does not specialise in mental health
care. Existing service users reported to the joint scrutiny Committee
in 2004-05 that unless social workers are involved in their care, they
are denied access to a community care assessment. The existing system
provides a stop-gap, but does not address the problems and needs of
service users.
By
placing a duty on NHS organisations and social services departments to
respond to requests for an assessment, the new clause would bring the
1990 Act up to date and reflect the more joined-up nature of services.
It would also offer the same rights regardless of at what point an
individual gets into contact with the system. Although the Government
are considering many different people for being the approved person in
charge, the new clause would ensure a holistic approach to
assessments.
There
is support for the new clause elsewhere. In 1999, the
Government’s expert committee said
that
“there should be a
duty on the NHS and Social Services jointly to assess and meet the
needs of people with mental health problems, with reasons if their
needs could not be
met.”
The joint
parliamentary scrutiny Committee accepted that there was a compelling
argument for balancing the draft Bill by including a duty to provide an
appropriate and adequate mental health service. The Committee
recommended that the Bill should include a duty on public services to
assess and meet the mental health needs of people with mental health
problems. The Disability Rights Commission has also stated that the
Bill should include a right of assessment and
treatment.
Ms
Winterton:
As I am sure the hon. Lady knows, the new
clause was debated at length in the other place, and I am afraid that I
wish to reiterate a number of the points that were made there. There
are existing duties, such as those in the National Health Service Act
2006 on the Secretary of State and in the National Health Service
(Wales) Act 2006 on Welsh Ministers, to secure improvement in the
physical and mental health of
people in the prevention, diagnosis and treatment of
illness. There are also duties that provide for joint assessments
between providers of health and community care
services.
We believe
strongly that the new clause would impose an additional duty in
relation to mental health services that is not replicated for other
patient groups such as cancer sufferers. Unfortunately, it would skew
the priorities of the NHS in favour of one service at the expense of
others. I am sure that were we to say that there should be specific
assessments for mental health services, we would quickly find that
other groups of patients such as those with coronary heart disease felt
that they had been discriminated
against.
However, if
somebody requires an assessment to be detained under the 1983 Act, the
assessment happens. That is the difference; because those circumstances
involve detention, an assessment is required. The new clause suggests
that there should be an assessment on every single occasion. I tell the
hon. Member for Romsey that it will be up to clinicians to decide what
further action should be taken if somebody presents with a particular
problem, as they would with any other
condition.
Sandra
Gidley:
Does the Minister accept that cancer services are
much more widely accessed and much easier to access than mental health
services? I suspect that there have not been similar cases in the
cancer service or any other physical health service whereby people have
had to make a hundred phone calls or write a hundred letters and
received no help at
all.
Ms
Winterton:
The point of principle is whether to take one
particular condition and create a difference from all other conditions
in how an individual is assessed. Assessments will involve a small
number of people deciding whether someone needs compulsory treatment,
and I hope that it will be of some help if I say that when approved
mental health professionals decide not to apply for detention, they
should as a result of their assessment identify any further action
required and do whatever is necessary to implement
it.
Mr.
Boswell:
This is a small point, but it may be important.
The Minister said that that situation arose in cases of detention under
the 1983 Act. We have just debated schedule 6 to this Bill, which will
make changes to the 2005 Act on compulsory detention and the
deprivation of liberty. Does she envisage that persons detained under
the 2005 Act following the Bournewood case will be able to avail
themselves of the services of an
assessment?
Ms
Winterton:
As we discussed, there will be an independent
assessor on the deprivation of liberty. The provision discussed relates
to that, not to
treatment.
The
role of the approved mental health professional, when considering
whether further treatment is necessary having made an assessment, will
include referring on for a community care assessment and/or a health
service assessment if appropriate. The draft illustrative code of
practice provides specific guidance on that point, including that all
persons involved—the patient and carers too, of
course—should understand the alternatives to detention proposed
by the AMHP.
With that
explanation, I hope that the hon. Member for Romsey will seek leave to
withdraw the motion.
Sandra
Gidley:
I shall not detain the Committee longer. I beg to
ask leave to withdraw the
motion.
Motion and
clause, by leave,
withdrawn.
New
Clause
5
Seclusion
‘(1)
The 1983 Act is amended as
follows.
(2) After section 142
insert—
“142A
Use of seclusion and other forms of behaviour
management
(1) This section
applies to the use of seclusion, mechanical restraint or other
interventions to manage disturbed behaviour as may be specified for the
purposes of this section by regulations made by the Secretary of
State.
(2) For the purposes of
this Act, seclusion means the removal of a patient without consent from
normal levels of association or freedom of movement for the protection
of others from significant
harm.
(3) A patient shall not
be so removed except for the purpose stated in subsection (2)
above.
(4) A patient shall not
be subject to any form of intervention to which this section applies,
except in accordance with
regulations.
(5) The Secretary
of State shall make regulations
prescribing—
(a)
circumstances under which any form of intervention to which this
section applies may be
used;
(b) reporting
requirements on the use of any such
intervention;
(c) review of
such interventions with a view to bringing the intervention to an
end;
(d) scrutiny of the use of
such interventions; and
(e)
circumstances under which patients subject to such interventions must
be visited by persons authorised by the
Commission.
(6) Before making
any regulations for the purposes of this section the Secretary of State
shall consult such bodies as appear to him to be
concerned”.’.—[Dr.
Pugh.]
Brought
up, and read the First
time.
Dr.
John Pugh (Southport) (LD): I beg to move, That the clause
be read a Second
time.
The new clause
should prompt a brief but useful debate about physical restraint and
its use within the mental health service. It is about the use of
seclusion, other forms of behaviour management, mechanical restraint
and other interventions managing disturbed behaviour and the removal of
a patient from normal levels of association and freedom—in other
words, locking them away or keeping them in some very controlled
environment. The new clause endeavours to specify certain purposes for
which that may be done, suggesting that there should be regulations
defining the circumstances in which any form of intervention might be
used; reporting requirements for the use of such interventions, which
obviously at times involve quite fraught methods of physical restraint;
a review of such interventions, to find out how common they are;
scrutiny of their use; and also a record of the circumstances under
which patients subject to interventions are
visited.
This is
really the most troublesome of all ends of mental health care. More
than 35 years ago, I think, I had my only experience of showing
somebody into what was then a padded cell, in an old-fashioned,
locked refractory ward. Even today I remember the episode very vividly.
The individual was terribly distressed, standing out from all the other
patients in many ways, and many of the patients were in a very severe
state indeed. He was routinely excluded. He seemed to have some sort of
immunity to drugs like Stelazine, the psychoactive then available.
Therefore, he lived in a deeply troubled world, tortured by
hallucinations. To this day I wonder what on earth could have happened
to him. My point is
about what was done to him, however, which was not by and large
therapy, but an act of therapeutic desperation. The only alternative
was to over-sedate him, which is equally undesirable. Given that that
is what happens in such extreme—I accept that it is quite
rare—circumstances, it is entirely appropriate for us to have
reports, reviews, scrutiny and a visit in order to minimise such
episodes, because more sophisticated interventions might be able to
prevent some cases happening. I accept that in modern medicine this
procedure is rarely used and that there are alternatives. The more
normal form would not be physical restraint, but some
injection—forcibly delivered into the backside in all
probability. Insofar as this happens at all, we need to record and
regulate it as a precursor to minimising
it.
Ms
Winterton:
The new clause certainly raises an important
issue. I appreciate the concerns that exist around the use of
interventions such as seclusion and mechanical restraint in managing
disturbed behaviour. I know that the subject concerns my hon. Friend
the Member for Norwich, North as well, obviously because of the very
distressing case of Rocky Bennett and the following
inquiry.
6
pm
Many issues
have come to the Government’s attention in the past few years. I
can assure the Committee that we share the common objective of ensuring
that there is no inappropriate use of seclusion, restraint or similar
interventions. We want to see such measures taken only when they are
essential and used properly, and that patients have adequate
safeguards.
However,
I must tell the hon. Member for Southport that new clause 5 is not the
best way in which to address those concerns. It would not be practical
to define in regulations all the situations in which disturbed
behaviour may need to be managed and the range of techniques that may
be used and it would limit the ability of staff to respond flexibly to
the wide range of situations that they may face. There are
circumstances in which restraint will be the only action available to
make a dangerous situation safe. Also, regulations run the risk of
inhibiting the development of new and improved techniques for managing
difficult behaviour. We have to be careful not to do that.
The management of disturbed
behaviour and the techniques involved are not regulated specifically by
the Mental Health Act, but they are subject to general criminal and
public law, including the Human Rights Act 1998. They are also subject
to the professional duties and obligations of the practitioners
involved. We have reflected the 2004 guidance from the National
Institute for Mental Health in England in the code of practice, which
also advises adherence to the National Institute for Health and
Clinical Excellence guidelines, which were issued in 2005. That
guidance addresses the issue of the management of aggression and
violence, including restraint. The Healthcare Commission and
the Health Inspectorate Wales will be mindful of the guidance when they
visit hospital units—they would wish to be satisfied that it is
being followed.
Mr.
Boswell:
I am following the Minister’s argument
with quite a lot of sympathy. I understand the case for flexibility and
the difficulty of covering everything in regulations. There was a
trainee in a secure training centre in my constituency who sadly died.
A restraint lock was used on him, in accordance with Home Office
guidelines, but he collapsed and died. We need not expand on that now.
Does the Minister agree that it is terribly important that less
invasive and aggressive techniques are developed and brought forward
and communicated as best practice as soon as possible? The fact that we
have set guidance in the past, perhaps because a practice was
acceptable at the time, does not mean that we so much as tacitly accept
that it is the way forward. As soon as we know a better way, we should
avoid old practices.
Ms
Winterton:
The hon. Gentleman is absolutely right. One of
the reasons why we do not want to accept the new clause is that the
spreading of best practice in the way in which he described might be
hampered. Hospital managers also have responsibilities for best
practice. They should regularly review the use of seclusion. Providers
should have clear written policies on the use of restraint, which
should include provision for review and for the application of
restraint to be audited and reported to hospital managers.
The “Count Me In”
census collects and publishes information about periods of seclusion
during an in-patient’s stay in hospital. It also records
incidents of hands-on restraint, which it defines as the physical
restraint of an in-patient by one or more members of staff in response
to aggressive behaviour or resistance to treatment.
We will, however, consider how
information on the use of seclusion and restraint may be reported to
the new regulator for England. That will also be a matter for Welsh
Ministers, and it will be an important step forward. The guidance on
seclusion and restraint has been revised and updated during preparation
of the draft illustrative code of practice for England to accompany the
Bill, and it will be further developed in the new code, on which
consultation will take place.
The Government completely
understand the concerns that underlie the new clause, but we oppose it
for the reasons that I have stated. I can give a commitment to hon.
Members that we shall continue to work to ensure that restraint and
seclusion are used only when they are
essential.
Dr.
Pugh:
I thank the Minister for that enlightenment and
range of assurances. I beg leave to withdraw the
motion.
Motion and
clause, by leave, withdrawn.
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