Lords considers Mental Health (Approval Functions) Bill

01 November 2012

The second reading and all remaining stages of the Mental Health (Approval Functions) Bill took place in the House of Lords yesterday (Tuesday 31 October)

About the Mental Health (Approval Functions) Bill

The bill was moved by Earl Howe (Conservative), the Parliamentary under-secretary of state, Department of Health. He provided background to the bill by saying: ‘Detaining a mentally ill person in hospital and treating them against their will is clearly a matter of the utmost seriousness... The statutory framework is contained in the Mental Health Act 1983, which sets out that for assessments and decisions under certain sections of the act... three professionals are required to be involved: two doctors and an approved mental health professional, usually a social worker. One of the two doctors must be approved under section 12 of the act.’

He continued: ‘When strategic health authorities were established in 2002, the secretary of state at the time quite properly and lawfully delegated to them his function under the 1983 Act of approving the doctors able to be involved in making these decisions. Early last week, the Department of Health learned that in four of the ten strategic health authorities (SHAs) – North East, Yorkshire and Humber, West Midlands and East Midlands – the function of approving clinicians had been further delegated by the SHAs to NHS mental health trusts over a period extending, in some cases, from 2002 to the present day... Our current assessment is that about 2,000 clinicians were not approved properly in line with the provisions of the 1983 act and that those clinicians have participated in the detention of between 4,000 and 5,000 of the patients currently detained in NHS or independent sector hospitals.’

He went on to explain: ‘As of Friday last week, the SHAs concerned had corrected their procedures and all the clinicians involved had been properly approved. In the light of our legal advice, we do not believe that any decisions that have been made about patients' care and detention require review because of this irregularity. Doctors should continue treating patients who are currently detained under the Mental Health Act in the usual way... we have been advised by First Treasury Counsel that there are good arguments that the detentions involving these particular approval processes were, and are, lawful. Given the seriousness of the issues, counsel also argues the need for absolute legal clarity and advises that this is most safely resolved through emergency retrospective legislation.’

Earl Howe then explained the scope of the bill: ‘Although we are aware of the problem only in the four areas going back to 2002, the bill applies in principle to the approval of all clinicians under the Mental Health Act since its introduction in 1983. It retrospectively validates the approval of clinicians by those organisations to which responsibility was delegated up to the point when all the relevant clinicians were fully reapproved and their status put beyond doubt.’

Baroness Murphy (Crossbench), followed by saying: ‘Speaking as a former vice-chair of the Mental Health Act Commission in the 1990s, I would like to ask why that commission did not pick up that these section 12 approved doctors were being approved by the wrong authorities. I find that quite astonishing. While I can see the need for this legislation and the reason for the emergency, I hope that we will look carefully at how they got this so wrong.’

Lord Hunt of Kings Heath (Labour) expressed his concerns by asking: ‘It would be helpful for the House to know more about the extent of the checks that have been carried out on the 4,000 to 5,000 cases that the minister mentioned. The fact that we have a very vague figure suggests that there has not yet been a thorough case-by-case review. Would the minister agree that that has to be done and that we need to know the precise number on the extent of the problem?’

Earl Howe responded to Baroness Murphy’s point, saying: ‘What happened was that rather than carry out the approval process in-house, the four strategic health authorities decided to deliver the function through a contract with a mental health trust... However, the effect of these arrangements was that the approval functions were to be carried out by the trust, and the regulations and directions specifically set out, as I have said, with which bodies the SHAs may make arrangements to exercise the functions. They cannot completely delegate their responsibility in the way that they did, but it can be exercised on their behalf by a committee, a sub-committee or an officer of the authority. In essence, the panels in the trusts should have been regarded as advisory to the SHA, not having the approval functions themselves.'

He went on to respond to Lord Hunt: ‘As of today, my advice is that the North and Midlands SHA clusters have reported that they have currently identified 4,117 affected patients – 1,265 in the North SHA cluster and 2,852 in the Midlands.’

The bill was read a third time, and given royal assent.

Royal assent

Once a bill has completed all its parliamentary stages in both Houses, it's ready to receive royal assent and become an act of Parliament (law). Royal assent is the Queen's formal agreement to make the bill into an act.

There is no set time period between the consideration of amendments and royal assent.

When royal assent has been given, an announcement is made in both Houses by the Lord Speaker in the Lords and the Speaker in the Commons.

At prorogation (the formal end to a parliamentary session), Black Rod interrupts the proceedings of the Commons and summons MPs to the Lords chamber to hear the Lords commissioners announce royal assent for each bill.

Further information

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