Explanatory Memorandum to the Mental Health (Regional Provision) (Wales) Regulations 2012
This Explanatory Memorandum has been prepared by the Department for Health, Social Services and Children and is laid before the National Assembly for Wales in conjunction with the above subordinate legislation and in accordance with Standing Order 27.1.
Minister’s Declaration
In my view, this Explanatory Memorandum gives a fair and reasonable view of the expected impact of the Mental Health (Regional Provision) (Wales) Regulations 2012. I am satisfied that the benefits outweigh any costs.
Lesley Griffiths AM
Minister for Health and Social Services
26 March 2012
Part 1 – Explanatory Memorandum
1.
The
Mental Health (Regional Provision) (Wales) Regulations 2012 will
provide for regional provision arrangements between certain Local
Health Boards (LHBs) and local authorities in Wales, which will
require the delivery of local primary mental health support
services under Part 1 of the Mental Health (Wales) Measure 2010
(“the Measure”), and the undertaking of assessments of
former users of secondary mental services under Part 3 of the
Measure on a regional basis.
2.
This is the
first set of Regulations to be made relating to Part 1 of the
Measure and the second set to be made relating to Part 3 of the
Measure.
3.
The
powers to make these Regulations are found in sections 45, 46 and
52(2) of the Measure, and are subject to the affirmative
procedure.
4. It is proposed that these Regulations are made before the commencement of the main provisions of Parts 1 and 3 of the Measure. However, the powers to make these Regulations have commenced in accordance with section 55(1) and (2)(b) of the Measure.
5. These Regulations contain provisions to allow for a split commencement date. This split commencement means that:
a.
the
duty to agree schemes in relation to the provision of primary
mental health services on a regional basis will come into
force on the 8 May 2012, immediately after the coming into force of
section 45 (part 1: power to secure regional provision) of the
Measure. Certain sections of Part 1 of the Measure also come into
force on the 8 May 2012 to enable schemes to be agreed in
anticipation of the remainder of Part 1 coming into force in
October 2012.
b. the duty to agree arrangements for assessment of former users of secondary mental health services on a regional basis will come into force on the 6 June 2012, immediately after the coming into force of section 46 (part 3: power to secure regional provision) of the Measure. Part 3 of the Measure will also come into force on the 6 June 2012.
6. These Regulations may be made in exercise of powers conferred on the Welsh Ministers by sections 45, 46 and 52(2) of the Mental Health (Wales) Measure 2010.
7. These Regulations relate to arrangements for delivering services under Part 1 and Part 3 of the Measure. A brief overview of each of the relevant Parts of the Measure has therefore been included in this section by way of context.
Local Primary Mental Health Support Services
8.
Part 1 of the
Measure 2010 places statutory duties on Local Health Boards and
local authorities in Wales to work together to develop joint
schemes for the provision of local primary mental health support
services and to provide such services in all local authority
areas in Wales.
9.
Section 1 of
Part 1 of the Measure introduces the term ‘local mental
health partners’ to describe the bodies (LHBs and local
authorities) which will be responsible for providing primary mental
health support services.
10. The services that will be delivered by local primary mental health support services are:
a) comprehensive mental health assessments for individuals who have first been seen by their GP, but for whom the GP considers a more detailed assessment is required; in some cases, individuals may be referred by secondary mental health services;
b) treatment by way of short-term interventions, either individually or through group work, if this has been identified as appropriate following assessment. Such treatment may include counselling, a range of psychological interventions including cognitive behavioural therapy, solution-focussed therapy, stress management, anger management and education;
c) provision of information and advice to individuals and their carers about treatment and care, including the options available to them, as well as ‘signposting’ them to other sources of support (such as support provided by third sector organisations);
d) provision of support and advice to GPs and other primary care workers (such as practice nurses) to enable them to safely manage and care for people with mental health problems;
e) supporting the onward referral and co-ordination of next steps with secondary mental health services, where this is felt to be appropriate for an individual.
11.
These services
are aimed at individuals of all ages who are experiencing mild to
moderate, or stable but severe and enduring, mental health
problems.
12.
The Measure
requires Local Health Boards and local authorities to enter into
partnerships as ‘local mental health partners’ for the
purpose of meeting their statutory duties under Parts 1 and 3 in
each local authority area in Wales. However, sections 45 and
46 of the Measure provide regulation-making powers which facilitate
LHBs and local authorities to enter into partnerships and agree
schemes which are wider than a single local authority area, by way
of regional provision arrangements.
13.
In April 2011
Welsh Government officials contacted LHBs and local authorities in
Wales to establish whether they would be interested in principle in
adopting regional provision arrangements in relation to Part 1 of
the Measure. All LHBs and local authorities, with the
exception of Powys, informed the Welsh Government that they were
interested in exploring the possibility of entering into
partnerships for agreeing schemes to deliver primary mental health
support services which would involve more than one local authority
in partnership with one LHB.
14.
Powys LHB and
local authority initially expressed interest in entering into
arrangements with other Local Health Boards for the provision of
Part 1 (and Part 3 services) on the basis of Powys local authority
area being split between the relevant Boards. However, as the
powers used to introduce these Regulations would not enable such an
arrangement, Powys LHB and local authority will become local mental
health partners under section 1 of the Measure for the purposes of
agreeing a scheme and providing services under Part 1 of the
Measure, and for making arrangements under Part 3 of the Measure,
and will retain responsibility for the provision of mental health
services in the LHB/local authority area.
15.
In all cases
except Powys, LHBs and local authorities expressed a preference for
entering into regional provision arrangements whereby each LHB
would develop a scheme and deliver services in partnership with all
of the local authority areas within its geographical boundaries
(e.g. Hywel Dda Local Health Board would
develop a scheme and deliver services in partnership with the three
local authorities within its geographical footprint -
Carmarthenshire County Council, Ceredigion County Council and
Pembrokeshire County Council).
Assessments of
Former Users of Secondary Mental Health Services
16.
Part
3 of the Measure will enable adults who have been discharged from
secondary mental health services, but who subsequently believe that
their mental health is deteriorating to such a point as to require
such care and treatment again, to refer themselves back to
secondary services directly for an assessment of their mental
health, without necessarily needing to first go to their general
practitioner or elsewhere for a referral.
17.
To this end,
Part 3 of the Measure requires ‘local mental health
partners’ in each local authority area (i.e. the relevant LHB
and local authority) to agree arrangements for dealing with
requests from former users of secondary mental health services for
assessment where these are requested. Section 46 of the
Measure provides a
regulation-making power to facilitate LHBs and local authorities to
enter into regional arrangements for the provision of such
assessments.
18.
As with Part 1,
all LHBs and local authorities (except Powys) initially indicated
to the Welsh Government that they wished to explore the possibility
of entering into regional arrangements for the provision of
assessments under Part 3 of the Measure, with each LHB entering
into partnership arrangements with all of the local authorities
within its geographical boundaries (as per paragraph 13
above).
Regional Provision Arrangements for Part 1 and Part 3
19.
As set out
above, all of the LHBs and local authorities for which provision is
made in these Regulations had previously informed the Welsh
Government that they were content to arrange and provide services
under Part 1 and Part 3 of the Measure on a regional basis.
These Regulations have therefore been drafted in a way which
facilitates the type of regional provision arrangements requested
and requires LHBs and local authorities to deliver services on this
basis.
20.
These
regulations will ‘disapply’ Parts 1 and 3 of the
Measure in relation to certain local authority areas, and instead
apply those Parts, and so far as necessary Parts 5 and 6, in
relation to each of the ‘regions’ of combined local
authority areas which are set out in column 1 of Schedule
2. The local authorities whose areas
make up these regions are then combined with the relevant LHB and
identified as ‘local mental health partners’ for the
purposes of Part 1 and Part 3 of the Measure.
21.
This
arrangement will effectively mean that the duties which previously
rested with partnerships between a local authority and an LHB in
relation to Parts 1 and 3 of the Measure will instead fall to each
of the mental health partners in the regions listed in column 2 of
Schedule 2 of the Regulations.
22.
Any regional
schemes or arrangements made under these Regulations do not extend
to arrangements for dealing with requests for assessment under
Parts 1 and 3, or the determination of usual residence under Part
3, both of which would continue to be determined on a local
authority, rather than regional
basis.
23.
These regional
working arrangements are binding, with LHBs and local authorities
obliged to agree schemes and arrangements on the basis of their
partnerships. LHBs and local authorities who have become
local mental health partners would not be able to agree separate
schemes or arrangements for areas within the LHB area.
24.
The schemes and
arrangements entered into for each region will be required to make
provision for those below the age of 18, as well as
adults: any regional
schemes made under these Regulations would apply in respect of
children as well as adults, as Part 1 services must be provided to
individuals of all ages. Any regional Part 3 arrangements
would also be required to make provision for individuals below the
age of 18 discharged from services who will reach their
18th birthday within the relevant discharge period (3
years from the date of discharge).
PART 2 – REGULATORY IMPACT ASSESSMENT
26.
This section
of the RIA presents two different options in relation to the policy
objectives of the proposed Regulations (see Section 4 of Part 1 of
this document). Both of the options are analysed in terms of
how far they would achieve the Government's objectives, along with
the risks associated with each. The costs and benefits of each
option are set out in section 7 of this RIA.
27. The options are:
· Option 1 – do nothing
· Option 2 – facilitate regional provision arrangements through the Regulations
28.
This option
proposes not making the Regulations.
29.
In response to
a written request from the Welsh Government seeking information as
to how they intended to arrange and deliver their statutory duties
under Part 1 and Part 3 of the Mental Health (Wales) Measure 2010,
and drawing their attention to the regional provision arrangements
available under sections 45 and 46, all LHBs and local authorities
in Wales (with the exception of Powys LHB and local authority which
will become local mental health partners
under section 1 of the Measure for the purposes of agreeing a
scheme under Part 1 of the Measure and arrangements under Part 3 of
the Measure) informed the Welsh Government that they were
interested in exploring the possibility of entering into regional
provision arrangements within the geographical area of the relevant
LHB.
30.
If the Welsh
Government were not to make these Regulations, LHBs and local
authorities would still be required to agree joint schemes for the
provision of local primary mental health support services under
Part 1 of the Measure, and to agree arrangements for undertaking
assessments of former users of secondary mental health services
under Part 3 of the Measure. However, without these
Regulations being made, they would be required to agree schemes and
make individual arrangements for each of the 22 local authority
areas in Wales, rather than schemes and arrangements for the 6
regions provided for by these Regulations, which cover 21 local
authority areas (Powys LHB and local authority are not included in
these 6 regions; they will become local
mental health partners under section 1 of the
Measure).
31.
Therefore, not
making these Regulations would result in 22 local schemes and
arrangements being prepared and delivered (one for each local
authority area in Wales) between the relevant LHBs and relevant
local authorities.
32.
This option
proposes making the Regulations.
33.
Making these
Regulations will require LHBs and local authorities in Wales to
work together in partnership on a regional basis to develop and
deliver local primary mental health support services under Part 1
of the Mental Health (Wales) Measure 2010, and to make arrangements
for the assessment of former users of secondary mental health
services under Part 3 of the Measure.
34.
This approach,
which LHBs and local authorities have confirmed that they wish to
adopt, will facilitate them in meeting their statutory duties under
Part 1 and Part 3 of the Measure through 6 regional schemes and
arrangements, rather than a separate scheme for each local
authority. Coordinating and delivering services on an
LHB-wide basis, rather than developing and delivering individual
schemes for each local authority area in Wales, could potentially
result in reduced planning and delivery costs for partners.
This collaborative approach would be in keeping with the
Welsh Government’s focus on strengthening joint working
arrangements and achieving greater service integration between
public sector organisations.
36.
If these
Regulations were not made, LHBs and local authorities would be
required to develop and deliver a scheme for Part 1, and
arrangements under Part 3, for each of the 22 local authority areas
in Wales, rather than the 6 regions which are provided for by the
arrangements in these Regulations, which will cover all local
authority areas with the exception of Powys.
37. It is possible that the establishment of 22 Part 1 schemes and 22 Part 3 arrangements across Wales would entail more time and effort, and incur more resource and administrative costs for LHBs and local authorities than would the development of 6 regional schemes and arrangements. In addition, the delivery and monitoring of services provided by 22 schemes and arrangements might also incur higher ongoing staffing and administrative costs over time than would be the case if services were delivered by the 6 regions which would be established by these Regulations (Powys LHB and local authority are not included in these 6 regions; they will become local mental health partners under section 1 of the Measure).
38.
If made, these
Regulations would enable LHBs and local authorities to develop
schemes and arrangements on a regional LHB-wide basis, rather than
separately for each local authority area in Wales.
39. Developing and delivering 6 regional schemes, rather than 22 local authority-wide schemes may potentially be a more effective approach than developing and delivering 22 separate schemes and arrangements. Making these Regulations could potentially result in more strategic regional configuration and delivery of services with resulting efficiency savings, by reducing duplication of services and administrative costs.
40. For the reasons set out at paragraphs 33-35 above, the Welsh Government’s preferred approach is to make these Regulations.
42.
In Autumn 2011
Welsh Government undertook a formal 12 week consultation exercise
on the draft Mental Health (Regional Provision) (Wales) Regulations
2012. 24 written responses were received, including responses
from all LHBs in Wales (often submitted on behalf of their local
authority partners also).
43.
A detailed
consultation report has been published on the Welsh
Government’s website, but a summary of the views received is
set out in the following paragraphs.
44.
There was
wide-ranging support for the proposed approach set out in the draft
Regulations, with the majority of respondents agreeing that such
arrangements would help ensure a more coherent approach to
provision, a wider range of services, and greater economies of
scale than might otherwise be possible under multiple local
authority schemes.
45.
All LHBs
responded positively to the draft Regulations, indicating their
support for regional provision, and in many cases, the support of
their local authority partners also in joint responses.
Several LHBs and local authorities reported that the proposed
approach was in keeping with existing regional or collaborative
working arrangements within mental health services and other policy
areas.
46.
A number of
issues of potential concern were raised by some respondents; for
instance, several stakeholders suggested that with more partners
involved in developing and delivering services there could be
greater organisational complexities, with a potentially increased
risk of discord or disagreement, or services which were ‘more
remote and less responsive’.
47.
Given that a
large majority of respondents (75%), including all LHBs, agreed
with the suggested approach, the Welsh Government has not amended
the draft Regulations post-consultation.
48. The Welsh Government is confident that mental health service planners and providers will be able to resolve any operational or administrative issues, such as those raised by some respondents and recorded in the summary above, and will continue to provide guidance and practical support to LHBs and local authorities in meeting their statutory duties under the Mental Health (Wales) Measure 2010.
49.
The
competition filter is required to be completed if the subordinate
legislation affects business, charities and/or the voluntary
sector. The filter is therefore not required in respect of these
Regulations.
50.
Section 48 of
the Measure places the Welsh Ministers under a duty to the review
the operation of Measure, and to publish a report of the findings
of the review. The report must be published no later than
four years after the commencement of the principal provisions of
Part 1 and Part 3 of the Measure.
51.
It is intended
that the review relating to the delivery of local primary mental
health services under Part 1 of the Measure and assessments of
former users of secondary mental health services under Part 3 of
the Measure, will take account of these Regulations on the
establishment and delivery of those services.
52. The report of the review will be placed before the National Assembly for Wales, in accordance with section 48(9) of the Measure.
[1] http://www.assemblywales.org/bus-home/bus-legislation/bus-legmeasures/
business-legislation-measures-mhs-2.htm