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Health and Social Care Bill

I am sorry to be keeping people from their dinners, but I want to make a few points about this group and shall speak to Amendment No. 183, which is tabled in my name. It addresses the issue that the noble Baroness, Lady Gould, has already raised: the need for independent advocacy for these individuals. I am not wedded to my amendment, which I lifted lock, stock and barrel from the Mental Health Act 2007. It was a highly convenient to lift it out and transpose it. I want us to think about who these people are and why they are so rare. Normally someone gets carted away by the police and the courts under the criminal justice system or under mental health legislation. Tens of thousands of people are carted away every year. Everybody who works in those two systems has intense training in recognising individuals’ rights and ensuring that they receive information. There is a system of appeals that is brought to their attention, and there are advocates on their behalf who ensure that they know how to use the system to their best interests. However, there are provisions where that is not the case. Many people will know that Section 47 of the National Assistance Act 1948, which was put in place following catastrophes in 1925, and the shorter emergency version in the National Assistance (Amendment) Act of 1951 are still on the statute book. They are about carting away dirty old people who do not fit conveniently into mental health legislation. They are rather vague statutes, and they are used about 200 times a year. A medical officer of health has to apply to a JP in the same way, and those people are removed to a hospital and detained. As a research project, my colleague Paul Wolfson and I interviewed 200 individuals who had been removed under Section 47. None of them had appealed. I think that one was enabled to appeal after our interview but mostly they did not appeal because no one told them how to do it. These were very sick and frail old people, and half of them died following their removal. Seventy per cent of them could have been removed under the mental health legislation if someone had thought to use it appropriately. As the noble Baroness, Lady Gould, has said, it could well be the case that individuals who do not speak English and who arrive with a very peculiar disease, such as SARS, will be subject to these orders, and it seems to me that they will be in the same boat as people taken away under Section 47. We must have some way of ensuring that they know how to appeal and make certain that someone is responsible for ensuring that they know their rights. No data are collected centrally about Section 47. Questions were raised in 2000 in a letter from the Department of Health about the difficulties that Section 47 of the National Assistance Act posed in relation to the Human Rights Act. A discussion was got going but it did not seem to continue. The letter from the Department of Health was circulated. It expressed anxiety about the likely incompatibility of some of the provisions with the Human Rights Act. It said that it was difficult to judge how far any incompatibility of Section 47 and the Human Rights Act went and pointed out the practical difficulties for authorities that did not have any information available. The reality is that people who are carted away under Part 2A orders will be in exactly the same boat. It is crucial that we understand that it is not just for local authorities to collect the data; we must have data that can be used to review why these things are happening, and those data must be collected centrally by some authority. I, for one, think that the health protection authority was the right organisation to do that. I also express support for the notion that the individuals should have someone independent—I am not wedded to the idea of the local authority doing it—who can assist them in exercising their right to an appeal.