Will mental health patients now have equal rights to timely treatment?

Published: 19th Nov 2012

"Basically we're making changes to the so-called "Mandate" by which the Health Secretary directs the NHS Commissioning Board, which in turn sets the framework for NHS managers and doctors. Like most things in the NHS it is all oddly technical but what this new "Mandate" means is that, for the first time, mental health patients will have a right to treatment within 18 weeks just like everyone else."

Nick Clegg - letter to Lib Dem members and supporters, 18 November 2012

Last week Health Secretary Jeremy Hunt proudly announced to Parliament the publication of the Government's first ever 'Mandate' to the NHS Commissioning Board.

The same document was highlighted by the Deputy Prime Minister on Sunday in his regular letter to members and supporters. He claimed that this 'Mandate' ensured that mental health patients will have the right to treatment within 18 weeks, "just like everyone else".

Let's try to answer a few obvious questions.

What is the 'Mandate' to the NHS Commissioning Board?

Essentially, this is one innovation to how the NHS operates that was enacted this year in the Health and Social Care Act, which amended the National Health Service Act 2006 to read:

[Part 2, before chapter 1]

(1) Before the start of each financial year, the Secretary of State must publish and lay before Parliament a document to be known as "the mandate".

(2) The Secretary of State must specify in the mandate—

(a) the objectives that the Secretary of State considers the Board should seek to achieve in the exercise of its functions during that financial year and such subsequent financial years as the Secretary of State considers appropriate, and

(b) any requirements that the Secretary of State considers it necessary to impose on the Board for the purpose of ensuring that it achieves those objectives.

In other words, the Mandate sets out key objectives the Government wants the NHS to achieve in the coming year. The NHS Commissioning Board, who will oversee the day-to-day management of the Health Service, have a statutory requirement to seek to achieve these objectives.

The first such Mandate was published last week following a period of consultation on what it should contain after an earlier Draft Mandate was published.

Why are the Liberal Democrats so happy?

Mental health has been a key area of interest for the minority Coalition partner even while the party was in opposition. The issue they've been aiming to address is that mental health patients don't currently have equal 'rights' to timely treatment as the majority of patients with a physical ailment.

This all stems from the creation of the NHS Constitution for England in 2009/10 which, along with the Health Act 2009, gives NHS providers a legal obligation to "have regard to the NHS Constitution in all their decisions and actions" (this isn't the same as guaranteeing that all patients will be treated in line with the 'rights' established by the Constitution)

This sets out a 'right' to treatment for certain categories of patients:

"From 1 April 2010, you will have the right to... start your consultant-led treatment within a maximum of 18 weeks from referral for non-urgent conditions"

The NHS has to take all reasonable steps to offer a range of alternative providers where this is not possible. The problem, as the Lib Dems have highlighted, is that among the exceptions to this right were:

"non-medical consultant-led mental health services"

The party claims that the new Mandate has dealt with this disparity by guaranteeing these patients the same rights to treatment within 18 weeks as those currently benefited by the NHS Constitution.

Do they have good reason to be happy?

Yes and no. Looking at the Mandate itself, the key text isn't explicit about guaranteeing this specific 'right':

"By March 2015, we expect measurable progress towards achieving true parity of esteem, where everyone who needs it has timely access to evidence-based services.

"Too often, access to services for people with mental health problems is more restricted and waiting times are longer than for other services, with no robust system of measurement in place even to quantify the scale of the problem.

"As part of its objective to put mental health on a par with physical health, we expect the Board to be able to comprehensively identify levels of access to, and waiting times for, mental health services. We want the Board to work with CCGs [clinical commissioning groups] to address unacceptable delays and significantly improve access and waiting times for all mental health services"

[emphasis added]

Revealingly, Health Minister Norman Lamb isn't explicit either:

[Lamb was keen to say that he was] "not setting a specific waiting-time target, but we are saying to the NHS for the first time: let's start collecting the data so we can understand the scale of the problem, address unacceptable delays and then move towards establishing proper standards to significantly improve access and waiting times for all mental health services.

"We will be asking the NHS to demonstrate real and meaningful progress towards achieving true 'parity of esteem' between mental health and physical care by March 2015."

Conclusion

The new NHS Mandate certainly contains positive signs towards establishing greater parity of treatment between physical and mental health services, and it's worth remembering that the NHS Act 2006 now imposes a legal obligation on the Board of Commissioners to seek to achieve these objectives.

However, it's wrong at this stage to say that this Mandate means mental health patients will have the same 18 week right as most physical health patients, and the achievements cited in the Mandate suggest that this goal remains a work in progress.


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