HL Deb 20 January 1994 vol 551 cc776-82

7.20 p.m.

Lord Jenkin of Roding

My Lords, I beg to move that the Bill be now read a second time.

It is a very short Bill, it is straightforward and it is a very necessary Bill. It enjoys the support of all of the voluntary and professional organisations concerned with mental health. I am particularly indebted to the lawyers of MIND for their help in drafting the Bill. I am also indebted to my noble friend Lord Hayhoe for having stood in for me in moving the First Reading.

As many of your Lordships are aware, appeals under the Mental Health Act 1983 against compulsory detention in mental institutions are heard in the first instance by panels of Mental Health Act managers who have been appointed for that purpose by health authorities. The managers may or may not be members of the authorities but they have all had training. Many of them have had long experience in that crucial function.

Following the establishment of NHS trusts it had been assumed that trusts with Mental Health Act responsibilities would have had the same power as health authorities to appoint Mental Health Act managers. In most cases the same people would simply have been re-appointed by the new trusts.

However, owing to a mistake in the drafting of Schedule 9 to the National Health Service and Community Care Act 1990 which established the trusts, Section 145 of the 1983 Act was amended in such a way as to require those appeals to be heard by three independent directors of the relevant trust with no power to delegate the duty to Mental Health Act managers.

Most independent directors of trusts have had no training and have little or no experience in this role. Quite simply, they are not qualified to undertake that specialised function. Trusts up and down the country have resorted to a variety of devices, under guidance from my noble friend's department, in order to comply with the law, but it has been extraordinarily difficult. On departmental advice, trusts have had to make sure that the final decision on whether to detain or discharge a patient is taken and is seen to be taken by independent directors. That can be highly inconvenient and is proving very difficult in practice.

I have had a number of letters from trusts indicating their support not only for the passage of the Bill but for the urgent passage of the Bill. Perhaps I may quote from one or two. East Cheshire NHS Trust stated: Already we are finding that patients are facing delays in appearing because of the difficulty of arranging hearings. On at least two occasions in the past month Non-Executive Directors here in Macclesfield have had to leave their sickbeds to conduct appeals in the interests of patients". One of my honourable friends in another place had a letter from the Wexham Park Hospital near Slough saying: You will appreciate that appeals are unpredictable and must be heard at short notice. With only six Non Executive Directors this is almost impossible". I received a letter the other day from the Association of Mental Health Act Administrators. As they are the people who are primarily concerned and who are the professionals involved, the association's view is very important: The Association of Mental Health Act Administrators receives many queries from its members on this matter, especially from those hospitals where there is a large detained population and a consequent large number of appeals to the 'hospital managers'. As you will appreciate, it is very difficult to arrange appeal hearings on a regular basis with a limited number of 'managers'—there are hospitals where, for example, appeal hearings are held at least three times per week and NHS Trusts are very anxious not to act otherwise than in accordance with the law—notwithstanding that there has been an error in drafting this part of the legislation; there is no doubt that hospitals are experiencing much difficulty in this respect and we, as an Association, would support the proposed amendment and would ask that it be dealt with as a matter of urgency". I should perhaps have declared an interest. I am chairman of an NHS trust and we are, of course, affected. We have had considerable difficulties, often having to arrange hearings on the telephone if independent directors cannot be in the hospital. Advisers will hear the case and conduct the proceedings but they cannot make the decision. Documents have to be distributed to the independent directors, who have to hold themselves available and then be given an account over the telephone of exactly what has happened, what has been said and what the arguments have been and be told the recommendation as to what the course of action should be. It is essential that each director in turn makes up his own mind and reaches the decision. Your Lordships will understand that that is a very unsatisfactory way of proceeding. We are complying with the law but it is not satisfactory.

Only a very simple amendment of the legislation is necessary to put the matter right. Paragraph 24(9) of Schedule 9 to the National Health Service and Community Care Act 1990 added to the definition of "the managers" in Section 145 of the 1983 Act: in relation to a hospital vested in a National Health Service trust, the directors of the trust". My Bill seeks to delete the words "the directors of", leaving the trust itself as the manager. I am advised that if that change is made there is no bar to trusts delegating the function to Mental Health Act managers in the same way as health authorities have always done.

Trusts up and down the country and the professional people involved are looking to the swift passage through Parliament of this short amending Bill. Tonight, if the House so decides, we can take the crucial step of giving it a Second Reading.

Moved, That the Bill be now read a second time.—(Lord Jenkin of Roding.)

7.27 p.m.

Lord Mottistone

My Lords, I want briefly to supplement what my noble friend Lord Jenkin of Roding said. I was approached by my own Isle of Wight community care trust to ask whether I would move a similar Bill. I was delighted to find that my noble friend, with his much greater experience in this area, was moving this Bill. I hope very much that there will be no difficulty with it.

I have very little to add, except that my noble friend mentioned the fact that the directors do not necessarily have the required expertise. Our trust has discovered that the directors can pick up what is required, given time, but that the key issue, as my noble friend mentioned, is lack of numbers. I spoke to the chairman of our trust this morning. He said that the trust is dealing with a case at this moment. An appeal is waiting to be heard. In his opinion, it should have been heard at the beginning of this week, but it could not be heard because the five available non-executive directors could not be gathered together to do the job as it should be done and the appeal will have to be put off until next week. In his opinion that is sad for the person who made the appeal. He hopes very much that this Bill will rattle quickly through Parliament. I hope that your Lordships will support it in every way.

7.30 p.m.

Lord Simon of Glaisdale

My Lords, perhaps I may step into the gap in the list of speakers to say, as the surviving member of the Percy Royal Commission on Mental Health, which was the origin of the appeal procedure on mental health, that in my view what the Bill proposes is entirely consonant with the purposes of what was proposed by the Royal Commission.

Baroness Jay of Paddington

My Lords, I should like to support the Bill from these Benches. We welcome the fact that the noble Lord, Lord Jenkin of Roding, has introduced this and that, with Government support, it is probably assured of a swift and speedy passage through both Houses.

Like the noble Lords, Lord Jenkin of Roding and Lord Mottistone, I have had personal experience in London of the difficulties caused by this obvious anomaly in the 1990 Act. I have also seen the problems which arise when non-executive directors have to be summoned urgently to deal with cases and have, indeed, resorted to the rather strange arrangements of having conference telephone calls. I cannot forbear but to say that perhaps this might have been less burdensome to some of them, as was pointed out in the debate in your Lordships' House yesterday on quangos, had more than 12 per cent. of existing trust directors come from voluntary sector backgrounds, from organisations such as MIND, who have supported this Bill and who have more experience than the average lay person in dealing with this complicated area.

As your Lordships will know, there have been areas of concern about the National Health Service new legislation, and we on these Benches have been less than happy about the developing role and perhaps over-extensive role in some instances of managers within the health service trusts. But on this occasion it is obviously an entirely appropriate role for them to play. I should like to support the Bill.

7.32 p.m.

The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege)

My Lords, I am very grateful to my noble friend Lord Jenkin of Roding for introducing the Bill. As a distinguished former Secretary of State for Social Services and a dynamic chairman of a trust, he has introduced it with predictable clarity and brevity. Although the measure that my noble friend proposes may seem beguiling straightforward, it is an important one because it concerns the way in which decisions are taken about the liberty of people who are detained in hospital because of their mental health. The present Bill seeks to correct an anomaly introduced into the Mental Health Act 1983 by the drafting of the NHS and Community Care Act 1990. We have been acutely aware of the administrative burden this has put on trusts which provide treatment to the severely ill people. If the legislation is allowed to remain uncorrected, there is also a real danger that detained patients may experience unacceptable delays in the hearing of their cases. Indeed, during this debate we have already heard that in some cases that is what is happening. So I am glad to record that the objectives of the Bill have the Government's full support.

The right to appeal to the so-called hospital managers is an important safeguard for patients detained under the Mental Health Act. The managers have the power to discharge the patient if the statutory grounds for detaining him or her are not satisfied. Those hospitals still managed by health authorities are able to delegate the hearing of these appeals to committees made up of experienced outside members. This has been their widespread practice.

The 1983 Act was amended by the NHS and Community Care Act 1990 to take account of the creation of trust hospitals. The intention of the legislation was that executive directors of NHS trusts should be precluded from exercising the powers of discharge under Section 23(2), and non-executive directors should be able to delegate those functions (in much the same way as health authority-run hospitals) to a committee or sub-committee composed of people who are not directors. Unfortunately, the effect of the legislation was that non-executive directors of trusts alone are required to hear appeals in person, as we have heard this evening.

As my noble friend Lord Jenkin of Roding has said, the problem lies with the definition of "the managers" in Section 145(1) (bb) of the 1983 Act. This was added by paragraph 24(9) of Schedule 9 to the NHS and Community Care Act 1990. This Bill seeks to amend the definition of the managers in order to reflect the original intention of the Act. I appreciate that not a lot needs to be said on this, but I hope that your Lordships will forgive me if, just for the record, I spend a little time explaining the nature of the legal problem in some detail. Under section 23(2) (a) of the 1983 Act an order for the discharge of a patient liable to be detained in a hospital may be made by, among others, the managers. Where the hospital in question is vested in an NHS trust, the managers are defined as the directors of the trust.

Section 23(4) enables the powers of discharge conferred on any "authority, trust or body of persons" to be exercised by "any three or more members of that authority, trust or body authorised by them in that behalf", or "by three or more members of a committee or sub-committee of that authority, trust or body which has been authorised by them in that behalf". Our advice is that because, by virtue of Section 145(1), the managers of a trust are the directors of the trust rather than the trust as a body, the Act does not confer any powers of discharge on the trust itself. Therefore, it is the phrase "body of persons" rather than the word "trust" in Section 23(4) which refers to the managers of the trust. The effect of this is that the directors of the trust cannot delegate the power of discharge to a committee of outside members of the kind I described earlier.

We are further circumscribed by the new subsection 23(5) of the 1983 Act, which was also added by Schedule 9 to the 1990 Act. This stipulates that the power to discharge patients conferred by Section 23 on an authority, trust or body, may only be, in the case of a trust, by the chairman and those directors who are not also employed by the trust. In fact it is not entirely certain that this restriction applies to the directors of the trust in this instance. But given the clear intention of Section 23(5), our advice is that we must assume that it does, and the effect is to leave the non-executive directors bearing the burden alone.

The amendment to the 1983 Act proposed by my noble friend, by defining the "managers" referred to in Section 23(2) as "the trust" rather than the "directors of the trust", appears to circumvent very neatly the difficulties I have been outlining. Each of the other references to "the managers" in the 1983 Act has been considered, and there is no instance in which we would wish the present definition of "the managers" as it relates to a hospital vested in an NHS trust to remain the directors of the trust personally, rather than the trust as a corporate body.

In conclusion, I am very glad to have the support of my noble friend Lord Mottistone as well as that of the noble and learned Lord, Lord Simon of Glaisdale, and the noble Baroness, Lady Jay, who speaks from firsthand experience.

The legislation as it stands is unsatisfactory both in terms of ensuring the civil liberties of patients and the efficient conduct of trust business. In spite of the burden this problem has caused, I must applaud the fact that many hospitals have managed to hear appeals without extra delay. Nevertheless, it is clearly undesirable for non-executive directors to continue in this role.

I have said that the Government fully support the objectives of the Bill. We shall need to give a little more thought to whether there are any amendments which we need to bring forward at Committee stage. We may well find that the Bill already does the trick and does not need to be amended at all. I should like to congratulate my noble friend, and I have pleasure in commending this Bill to your Lordships' House.

Lord Jenkin of Boding

My Lords, I am immensely grateful for my noble friend's support. I think the whole House will be grateful, and indeed those outside, that she has placed on record in some detail the legal arguments that drove her department to the view that this had to be done by the independent directors themselves. It is a complicated question. I was tempted to go down the same road myself, but thought it was easier to deal with it rather more briefly because I was able in moving the Second reading to describe the nub of the problem.

It is very reassuring to have had such universal support from all parts of the House, and it is particularly gratifying that my noble and learned friend Lord Simon of Glaisdale was able to reassure us that this was fully in accordance with the spirit of the Percy Commission's report.

In relation to Forest Healthcare Trust perhaps I could reassure the noble Baroness, Lady Jay, that we were very fortunate and wise in having as one of our independent directors the chairman of the Mental Health Act managers who had acted for the trust previously. That redoubtable lady has borne the heat and burden of what we have had to do over the past few months. I am anxious to relieve her of some of the problems as quickly as possible. I should add that that is why we put twenty-one days and not the customary two months after the Royal Assent for the Bill to come into force.

I am very grateful indeed for all the support which has been given to the Bill and I commend it to the House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

Baroness Trumpington

My Lords, I beg to move that the House do now adjourn during pleasure until 8.5 p.m.

Moved accordingly, and, on Question, Motion agreed to.1

[The Sitting was suspended from 7.40 to 8.5 p.m.]