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Welsh Ministers (Transfer of Functions) Order 2008

rose to move, That the draft order laid before the House on 22 April be approved. The noble Baroness said: My Lords, this draft order, which was debated and approved by the House of Commons Delegated Legislation Committee on 3 June, seeks to effect the transfer of functions relating to two health Acts from UK Government Ministers of the Crown to Welsh Ministers. The draft order contains functions under Section 86 of the Mental Health Act 1983 and Section 259 of Schedule 21 to the National Health Service Act 2006. The proposed transfer of functions has the approval and support of the Department of Health, the Ministry of Justice and, of course, the Welsh Ministers. The relevant powers of the Secretary of State under Section 86 of the Mental Health Act 1983 apply to patients detained under Part 2 and Part 3 of that Act. Your Lordships may recall from our consideration of the Mental Health Bill last year that Part 3 of the 1983 Act relates to patients concerned in criminal proceedings or under sentence, while Part 2 relates to those often referred to as ““civil patients””; that is, patients whose detention in hospital does not involve the courts. Section 86 applies only to patients detained under Part 2 or Part 3 of the Act who are neither British citizens nor Commonwealth citizens with the right of abode in the United Kingdom. The powers in Section 86 are to remove the person from a hospital in England or Wales and to send them to another country. Section 86 provides that, before exercising the power of removal, the Secretary of State must be satisfied that appropriate arrangements have been made to ensure that a patient receives proper care and treatment in the other country and that removal would be in the patient’s best interests. Before exercising the power of removal under Section 86, the Secretary of State must obtain the approval of the Mental Health Review Tribunal, an independent judicial body concerned with determining whether a patient continues to meet the criteria for detention under the Act. It has the power to discharge a person from detention. As set out in Section 86(3), the Secretary of State shall not exercise the power except with the approval of the Mental Health Review Tribunal. Responsibilities for mental health matters are devolved to the National Assembly for Wales under the Government of Wales Act 1998. At the time of the original transfer of functions in 1999, which covered the Mental Health Act powers, Section 86 remained the responsibility of the Home Secretary. These powers subsequently have been transferred to the Secretary of State for Health in respect of unrestricted patients and to the Secretary of State for Justice in respect of restricted patients by the machinery of government changes which took place in 2007. At present, Welsh Ministers are dependent on the Secretary of State for Health to exercise the powers of removing a patient who is receiving treatment for a mental illness from Wales to a country abroad. Given that health falls within the executive competence of the Welsh Ministers, it would be appropriate for them to exercise Section 86 functions. Most of the functions exercisable by the Secretary of State for Health in England are exercisable by the Welsh Ministers in relation to Wales. This draft order makes it clear that there will be no transfer of functions relating to Section 86 for patients who are subject to a restriction order or direction under Section 41 or Section 49 of the 1983 Act or a hospital and limitation direction under Section 45A of that Act, which, I am sure noble Lords will appreciate, is key. These will remain with the Secretary of State for Justice, who will exercise those functions in relation to England and Wales, which, also, is key. That reflects the current settlement and arrangements regarding such patients. The Welsh Ministers are not seeking to change those arrangements. There are potential benefits to be gained from the proposed transfer of Section 86 functions to the Welsh Ministers for Part 2 patients and unrestricted Part 3 patients. The Secretary of State for Health currently exercises functions under Section 86 in relation to Wales on the basis of advice from health service bodies in Wales, which are part of NHS Wales. The Secretary of State has no statutory control over NHS Wales; it is the responsibility, as we know, of Welsh Ministers, so it is appropriate for this function to be transferred. For hospital managers in Wales, the transfer of Section 86 powers would provide consistency with the exercise of other functions within the MHA 1983 which are exercised by the Welsh Ministers. If Section 86 powers are transferred, there will be a direct benefit to patients. Let me exemplify that point: currently, hospital managers in Wales inform the Secretary of State for Health that a patient needs to be removed from a hospital in Wales under Section 86. Subsequently, either the hospital managers or the Secretary of State for Health will refer the case to the independent Mental Health Review Tribunal for Wales. After the tribunal has considered the case, it passes its advice and recommendations to the Department of Health and the Secretary of State for Health. The transfer process will be expedited by virtue of hospital managers in Wales being able to make direct requests to Welsh Ministers, who will then be able to take the decision regarding removal, based on the advice of the Mental Health Review Tribunal, without the need to refer the matter to the Department of Health and the Secretary of State for Health. The line of responsibility and accountability will be greatly clarified as a result of the transfer of functions. The proposed transfer of functions under Section 86 will set right the anomaly in how powers under the Mental Health Act 1983 have been transferred to Welsh Ministers. There are no significant cost issues relating to this transfer. The proposed transfer of functions under Section 259 of Schedule 21 to the National Health Service Act 2006 in relation to the sale of good will of medical practices would give Welsh Ministers the responsibility and power to grant certificates stating that no good will has been sold. Subject to specified exceptions, the sale of good will of medical practices is prohibited under Section 259 of the Act. Schedule 21 makes it an offence to sell good will contrary to Section 259, which provides that any person proposing to be a party to a transaction which they think might amount to the sale of good will of a medical practice has to ask the Secretary of State for Health for a certificate confirming that the transaction does not give valuable consideration in respect of the good will. This function is currently exercised by the National Health Service Litigation Authority on behalf of the Secretary of State for Health for England and Wales. No issue arises regarding cross-border practices. The premises are being sold, not the patients registered at the practice. If the premises are physically in England, the National Health Service Litigation Authority would continue to be responsible for issuing a certificate confirming that no good will has been sold. The transfer of functions order would make the Welsh Assembly Government responsible for issuing the same certificates to GP practices in Wales. There are no major financial implications relating to the proposed transfer of functions under Section 259 and Schedule 21, as the small administrative costs in dealing with cases will be funded from existing resources. I beg to move. Moved, That the draft order laid before the House on 22 April be approved. 17th Report from the Joint Committee on Statutory Instruments.—(Baroness Morgan of Drefelin.)