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