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Health and Social Care Bill

My Lords, I declare an interest as chairman of the Mental Health Act Commission. While, as a rule, turkeys do not vote for Christmas, I support the broad intentions of the Bill. My concern is not to retain the commission as a separate organisation, but rather to ensure that its essential function of protecting the rights of detained psychiatric patients is not lost in the transfer of responsibilities to the new regulator, the Care Quality Commission. It is this aspect of the Bill that I will speak to briefly, covering five key areas. It is important to note that the Mental Health Act Commission is more of a watchdog than a regulatory body. It is the eyes and ears of Ministers, and indeed Parliament, in relation to psychiatric detention. It monitors the ways in which Mental Health Act powers are used to detain and care for psychiatric patients. There are 107 part-time public appointees, who regularly and frequently visit hospitals, mainly unannounced or at short notice, and meet detained patients in private, reporting concerns to the hospital’s management. In many ways, it might be thought of as the psychiatric equivalent of the prisons’ inspectorate, although the detainees that it watches over are, for the most part, not offenders, but people with the misfortune to suffer from a serious mental disorder that warrants the deprivation of their liberty. They are some of the most vulnerable people in our society. I was heartened by the Secretary of State’s speech in another place, in which he said: "““I emphasise again that the Bill brings the vital role carried out by the Mental Health Act Commission into the heart of the care quality commission. That will strengthen the monitoring of the Mental Health Act 1983, and offer increased oversight of the treatment of patients subject to compulsory detention. I know that the MHAC places great emphasis on its visiting programme, covering each hospital and each ward that accepts detained patients. I expect the new commission to continue that approach””.—[Official Report, Commons, 26/11/07; col. 38.]" I am glad that the Government intend that the commission’s visiting approach should survive its organisational demise, and I recognise that its visiting powers are replicated in the Bill. I also thank the Minister for echoing those issues in his opening remarks. Nevertheless, empowering the Care Quality Commission to visit detained patients, or expecting it to do so, is not the same thing as requiring it to do so. The Care Quality Commission will have a very broad and varied focus and many pressures on its resources. I therefore want to be assured that it will be required, rather than empowered or expected, to maintain a focus on the legal and human rights of detained patients, to visit hospitals regularly and frequently and to meet in private with detained patients. Regular and frequent visits to providers are the only way to ensure that patients’ rights are protected and that the potential for abuse or poor treatment of patients is minimised. Recent scandals such as those in learning disability services in Cornwall, Merton and Sutton, where MHAC visits did not extend because of the legal status of the patients concerned, illustrate only too well what can happen if services are not visited regularly. Although, unfortunately, we cannot say how many abuses or incidents we prevent through visiting, even with a commissioner-visiting resource that equates to only 15 whole time equivalent staff, the MHAC finds misuse of the law and extremely worrying aspects of poor patient care on a weekly basis. In addition, many services are unsafe for the very patients they are designed to protect. We make numerous reports of ligature points on wards with seriously ill and suicidal patients, and frequently see overcrowding and high occupancy levels, well above 100 per cent with sleeping-out practices and a severe lack of space. Being a member of staff working in this type of environment is very stressful, yet there are many dedicated people who work hard and contribute a great deal to caring for this population. Many staff welcome the MHAC’s involvement, without which they might not be able to bring some of these serious issues to the attention of their managers. Regular and frequent visiting is required as a matter of course for this group of patients, and it is not enough to visit only where some risk assessment or other intelligence indicates a specific need. Visiting cannot simply be undertaken by generic inspectors; it requires a team of staff who are appropriately trained and skilled in meeting mental health patients who, on occasion, may be highly disturbed. They must be able to offer patients, carers and professionals advice or discussion over difficulties with the operation of the Mental Health Acts. Will the Minister reassure me that regular and frequent visiting with an experienced staff team will continue in the new organisation? Secondly, as we have already heard, the Care Quality Commission will be expected to register all health and social care providers in the public and private sector. The registration criteria are not yet known, but given the wide range of services, they are likely to be fairly broad, and could easily overlook the specific needs of detained patients. I will therefore be arguing that such licensing should explicitly include operation of legal powers of detention or deprivation of liberty under the mental health and mental capacity legislation, which can be used to judge the performance of providers. Thirdly, the Care Quality Commission should also have a statutory duty to collect certain information on the use of compulsory powers and the care of detained patients. As with visiting, the Bill currently empowers the Care Quality Commission to require certain types of information, but does nothing to direct that such powers must be used to inform a focus on specific aspects of the care of psychiatric patients. It should be a requirement that such notifications encompass as a minimum all formal admissions and discharges under the Act, including compulsion in the community; all serious or untoward incidents involving psychiatric patients; all deaths of detained patients as well as unnatural deaths of informal patients. The noble Baroness, Lady Bottomley, said that we are talking about 80 unnatural deaths every year; that figure has been consistent for a number of years, but we have not looked into that issue enough. It is also essential that information provided allows monitoring of ethnicity, age, gender, sexuality, faith and disability, as currently collected under the Government’s delivering race equality census project. The MHAC has been at the forefront of raising the issue of the disproportionate admission and detention rates of black and minority ethnic patients and about the plight of children and adolescents inappropriately detained on adult psychiatric wards. We need to collect that information to continue to monitor those issues. It should be mandatory for the Care Quality Commission to report on such matters every year to help ensure that the operation of Mental Health Acts powers continue to be monitored by an independent body. Fourthly, the Care Quality Commission must be at the forefront of protecting patients’ rights and freedoms and ensuring that the Act is applied without adverse discrimination, having a clear focus on rights. The 18th report of the Joint Committee on Human Rights last year commended the MHAC’s approach to human rights. It states: "““In our view, lessons can be learned from the more systematic approach pioneered by the Mental Health Act Commission””." It continues: "““MHAC state that their purpose was to … ‘incorporate a human rights framework fully in the work of the MHAC, so that it becomes a recognised part of regular activity across the organisation’””." It goes on to say: "““We are encouraged by the fact that the MHAC is to be merged with the Healthcare Commission and CSCI and urge that the highest common denominator should prevail””." To this end, the new regulatory framework must pay sufficient attention to patients’ rights as well as quality and safety. I would like the Bill to be amended to include an explicit reference to patients’ rights in Clause 2(5) with a provision to the effect that the Care Quality Commission will perform its functions for the general purpose of encouraging the protection of the civil legal and human rights of all persons subject to health and social care provision. Finally, I, too, am concerned that the Bill does not set an explicit requirement for service users and care involvement in the organisation and work of the Care Quality Commission. The Mental Health Act Commission has a proud record of having mental health service users appointed to its membership, and for the past two years it has operated an explicit strategy to reach out and involve service users who might otherwise not come forward, including patients currently detained under Mental Health Act powers. The Mental Health Act Commission will publish a report on this aspect of its work next month, and I look forward to discussing with Ministers and officials how our gains can be built upon in the new organisation. In the mean time, the statute establishing the Care Quality Commission should establish that such involvement should be a core part of the organisation in general, and in its monitoring of mental health services in particular.