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Lord Clement-Jones: My Lords, I strongly support what the noble Earl, Lord Howe, said in his excellent exposition of the case for the amendment. There is a clear case for mental health services to be explicitly exempt from the proposed reimbursement regime and from being brought under the scope of the Bill by future regulation. We entirely agree with the noble Earl that it would be inappropriate to apply the scheme to the mental health sector, due to the different procedures from those operating in the acute sector for patient discharge and for working across health and social services to facilitate service users' onward journey.

Under the current draft regulations, the local authority will not be made liable for charges if the patient is awaiting another NHS or community care

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service, such as psychiatric or mental health after-care assessment, but cannot move on because the availability of those NHS services is blocked due to lack of social care provision. However, as the Explanatory Notes make clear, Ministers intend eventually to apply the reimbursement regime to other NHS services, including mental health services.

NHS mental health services now operate in an integrated structure between health and social care, with varying degrees of pooled budgets and legal responsibilities. It is not clear how the financial flows could operate in that context. The duty to levy financial penalties against local authorities would undermine the success of those arrangements. According to the Government's National Service Framework for Mental Health, it is lack of capacity in community mental health services, not inefficiencies in social services departments, that is the key cause of delayed discharges for psychiatric patients.

Moreover, assessment of a psychiatric patient's fitness for discharge and putting together an appropriate after-care package involves complex considerations, including self-harm, risk to others and appropriate accommodation, which can rarely be worked through in a three-day period. Furthermore, there is no provision in the Bill for involvement of specialist advocates and carers in the discharge planning process. There is a risk that pressure to reduce prolonged hospital admissions will concentrate resources on the acute sector of mental health services at the expense of community care provision. Pioneering community care projects around the country could lose their funding as councils divert money into different services to avoid the penalties.

There is also the danger that the Bill will put pressure on local authorities to accept discharged patients earlier than they should, without proper accommodation or essential support services in place. Medication may be used to manage symptoms to achieve earlier discharge without proper consideration being given to a range of therapeutic interventions. For all those reasons, we strongly support the amendment.

3.15 p.m.

The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I first welcome the opportunity to debate mental health issues. Although I recognise that it would be inappropriate to extend the Bill's provisions to mental health patients at the same time as we intend to do for those who are receiving acute care, I cannot agree to the amendment, which would mean that mental health patients would be excluded for all time from the provisions. I am well aware of the pressures and issues that face those running mental health services and the impact that that has on the services' users.

The noble Earl, Lord Howe, is absolutely right to say that over-extended stops in mental health hospitals is a cause of real concern. I echo the point that he cited from the Sainsbury Centre for Mental Health—an

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organisation for which I once worked—describing some aspects of hospital care as non-therapeutic. None the less, many mental health patients continue to require treatment in hospitals. As a matter of general principle, the core of the Bill, which is to allow for effective and speedy discharge when it is safe, ought to extend to mental health patients at some point in future.

I want to make clear, as I did in Committee, that we intend in the first instance to prescribe acute care as the type of care that patients must be receiving to qualify, and then, later, to extend the Bill to other types of care where there is a problem with delay. Mental health is one of the types of care excluded from the Bill by draft regulations that have been circulated. We have chosen to take a pragmatic approach because we do not want to overload local authorities, which are preparing to implement the system as a whole.

There is no automatic decision to expand the scope of the Bill to cover mental health, but if we made that decision at some stage, I assure noble Lords that that would not happen without full and proper examination of whether it would be beneficial to mental health patients and the mental health sector as a whole. We should want to consider whether the level of reimbursement should be set differently to provide the right incentive for mental health patients, and whether the minimum compliance period should be extended to reflect the difficulties described by the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, which may arise when assessing mental health patients or providing services.

The Bill has been drafted to allow for expansion. It does not commit us to do so; nor does it restrict us to extending the reimbursement scheme in its current form, because Clause 8 enables us to make different provision for different cases. That will enable us to avoid the perverse incentives mentioned by both noble Lords. We do not have a timetable in mind for such an extension. The decision whether to apply reimbursement to the mental health sector will be taken after the system has had time to bed down in the acute sector.

However, it would be a mistake explicitly to exclude mental health patients from the Bill. It is much to be regretted when such patients have unduly to extend their stay in hospital because of issues such as those raised by the noble Earl, concerning community services. It is important that we retain the ability to extend the benefits of the Bill to mental health patients at some stage, if that is what is decided.

My department has received representations from many mental health professionals who are concerned that their patients should be included in the Bill's provisions as soon as possible, and who want them to benefit from the more timely provision of services that should result. Although we are not prepared to go down that route, we should enable ourselves later to extend the Bill's provisions to mental health patients. Would it be justified to say that we should ring-fence mental health from a scheme that will start with acute patients and can be extended to other parts of NHS

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service provision—to say that mental health patients should not receive those benefits? That would be unjustified.

I hope that I have given reassurances that if it were decided to extend the Bill to mental health patients, that would not be done without careful discussion and consultation with appropriate stakeholders—many of whom have argued that it should extend to mental health patients right from the start.

Lord Skelmersdale: My Lords, before the Minister sits down, much as I hate this way of releasing beds for other patients in hospitals and, therefore, dislike the Bill as a whole, he talked about extending it to mental health patients when it becomes an Act. I am inclined to agree with him. At some stage it would be a logical, sensible progression. However, the Minister also talked about full and proper examination of the facts before an order for the extension was laid. Will that examination of the facts include consultation with health professionals and the charities involved in this area?

Lord Hunt of Kings Heath: My Lords, it is a fair point. It would be a major step to extend the Bill to mental health patients. I can give the noble Lord an absolute assurance that no such step would be taken without full consultation with the groups that he mentioned.

Earl Howe: My Lords, I am grateful to the Minister for his reply, which was not unexpected, but I fear that I am not persuaded by it. The essence of a solution for unblocking beds in psychiatric wards is partnership working between health and social services and ensuring that we do not discharge patients before they are ready. I cannot accept that we should adopt a suck-it-and-see approach and wait to discover how the legislation works in practice. As it is, the Government are being extremely cavalier about the risks of applying a system of fines and reimbursement to the acute sector, never mind to any other.

But we can be sure of one thing: if Ministers have the legal scope to improve the delayed discharge statistics by extending the Bill to the mental health sector, sooner or later it will happen. No proper heed will be paid to the lack of capacity in community services, low-secure accommodation and so on. No doubt, consultation will take place, but I wonder how heavily those factors will weigh. Local authorities will be seen as the whipping boys, as they are at present.

If I sound cynical, I am sorry to say that I plead guilty. Despite everything the Minister has said, I am very much against leaving our options open on this matter. I submit that in mental health the problems created by the Bill are of a different order from those that may arise elsewhere. The Minister's reference to denying mental health patients the benefits of the Bill seems an extraordinary gloss that many of us would not recognise in what the Bill will actually do to such

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patients. The risks for patients and other people are simply too great. I should like to test the opinion of the House.

3.23 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 124; Not-Contents, 113.

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