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Health and Social Care Bill

I declare an interest as chairman of the Mental Health Act Commission. I was also a non-executive member of the Healthcare Commission for several of its first and formative years. Amendment No. 1 establishes principles which will have important practical consequences. In particular, paragraphs (e) and (f) seek to ensure that the Care Quality Commission maintains a human rights perspective in its general monitoring of health and social care services, and that it does so specifically by protecting and promoting the rights of patients detained under the Mental Health Act or otherwise deprived of their liberty. I anticipate that a counter argument against the proposal to set out these matters as explicit regulatory objectives is that surely the Care Quality Commission will be a public body and, as such, will be required to operate in accordance with the Human Rights Act, including when exercising the powers given to it for monitoring the use of psychiatric detention, and that adding these regulatory objectives would add little to the existing legal state of affairs were the Bill to pass unamended. However, I would guard against the assumption that public authorities will quietly comply with their Human Rights Act requirements without active monitoring and intervention. The weakness of such an assumption became apparent to me last week when I was speaking to one of my Mental Health Act Commission commissioners who had just come back from a visit to a secure ward where she had met 11 detained patients. The hospital detaining those patients had a duty to comply with both the Mental Health and Human Rights Acts. It had a duty, for example, to provide detained patients with information about their legal status, including their right to appeal against a decision. Nevertheless, the commissioner felt that at least eight of the 11 detained patients had little or no knowledge about their legal rights. Indeed, two of the patients did not even know that they were detained. Therefore, we cannot assume that services will comply with legal duties just because those duties exist. As many members of the Committee know, the duty to give information to detained patients has been on the statute book for nearly a quarter of a century, and yet the Mental Health Act Commission frequently finds that it is inadequately met by detaining authorities today. The only way to uncover such inadequacy is by going to the hospitals and meeting the patients directly. As I pointed out at the previous stage of the Bill, my worry is that the Care Quality Commission’s wide and complex task of regulating general health and social care services will leave insufficient emphasis on resources for exercising that methodology. The one most likely to be employed by the Care Quality Commission in its general task will be ill suited to the protection of detained patients. The Minister in another place has stated that he expects the Care Quality Commission to continue the approach of the MHAC in visiting hospitals and meeting detained patients. I welcome the amendment as a means by which the law will ensure that such an expectation is met without being overly prescriptive. The amendment would also help the Government to fulfil their obligations as a signatory to the Optional Protocol to the Convention against Torture—or OPCAT, as it is known. The Government must sooner or later designate a ““national preventive mechanism”” of visits to detained patients to prevent their ill treatment. The Care Quality Commission, at least in so far as it takes over the role of the Mental Health Act Commission, will by necessity be a part of this mechanism. The guidance for establishing national preventive mechanisms recommends that legislation should include a provision that states its purpose and incorporates the language of Article 1 of OPCAT. In particular, it should require that ““regular”” and ““preventive”” visiting is undertaken as a part of any monitoring system. The guidance is clear that such preventive visiting must be recognised as different in purpose and methodology from other types of inspection or visit, especially in being proactive rather than reactive. It is designed to stop abuses of patients, not to investigate such abuses after they have occurred. Let us learn from experience. Fifty years ago, the Royal Commission, under Lord Percy of Newcastle, recommended the abolition of the independent visiting of mental hospitals on the grounds that those hospitals were now a ministerial responsibility and that their inspection should, "““rest squarely on the shoulders of the Minister””." Then, it was seen to be anachronistic that there should be special arrangements for the inspection of mental hospitals by the Board of Control, which was the direct descendant of the Lunacy Commission, when other hospitals were subject to nothing more than informal visits by officers of the ministry. After much consultation and correspondence, it was decided that the Board of Control should be abolished. For two decades from the end of the 1950s, no specialist visiting body was concerned with psychiatric detention. Within 10 or so years of that abolition, the first of a number of hospital scandals erupted. In 1969, there was an inquiry into patient abuse in Ely Hospital, Cardiff. After that came similar scandals at Farleigh in 1971, at Whittingham in 1972 and then a number more. Those inquiries provided part of the rationale for the re-establishment of the Mental Health Act Commission as a visiting body at the beginning of the 1980s. I know that my noble friend the Minister has no intention of repeating the mistakes of our recent history and that it is the wish of the Government that Mental Health Act Commission-style visits to psychiatric hospitals should continue under the Care Quality Commission. But what will be the situation 10 or 20 years from now? For these reasons, I hope that the Minister will support the principle of stating regulatory intentions at the start of the Bill and that he will look sympathetically at other means of ensuring that the Care Quality Commission gives adequate attention to its role in protecting the most vulnerable patients in the health and social care system throughout its existence.